The Marin Lawyer December 2021 by Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER December 2021 Editor Robert Rosborough Guest Editors Joel Gumbiner, Valerie Kushel, Sarah Léger Creative Director Kiersten Ross 2021 Officers President J. Timothy Nardell President Elect Robert Rosborough Secretary Scott Buell Treasurer Ahtossa Fullerton Past President Susan Feder 5 Year Past President Joel Gumbiner Board of Directors 2021 Directors Habib Bentaleb Michael Chaput Sarah Léger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju 2023 Directors Chelsea Heaney Valerie Kushel Thomas McCallister Thomas (Tom) McInerney Mary Sackett Executive Director Mee Mee Wong Communications Kiersten Ross

Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2021. All Rights Reserved.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS 4 | Editor’s Introduction: The New ROBERT ROSBOROUGH 7 | President’s Message: Signing Out J. TIMOTHY NARDELL 9 | 2021 Employment Law Legislative Update JENNY SCHWARTZ AND MENAKA FERNANDO 15 | New California Laws JOEL GUMBINER 24 | Marin Superior Court Update JOEL GUMBINER 29 | 2021 Bay Area MCLE Conference ROBERT ROSBOROUGH 32 | How to File and Obtain a Name and Gender Change Petition and Order MARK RICE 39 | Meet the 2022 MCBA Officers and Board of Directors THE MARIN LAWYER 42 | New Members 43 | Upcoming Events

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EDITOR’S INTRODUCTION The New ROBERT ROSBOROUGH

Welcome to another year-end issue of the Marin Lawyer, at the end of another pandemic year. I look forward to being able to report on in-person gatherings instead of solely Zoom ones (but don’t forget the sum-

mer BBQ at the Way Station!) Any such reporting I do is likely to be in a president’s message since I am MCBA’s incoming president and its outgoing Marin Lawyer editor. Yes, after five years as editor (how did that happen?), I am leaving behind my editor hat for the presidency. I’m expecting a lot more leisure time. In all seriousness, I will remain involved with publication during my presidency to some extent, to help new edi-

or better yet, reach out to me specifically about the Marin Lawyer. While I hardly de-

tors learn the many steps of the editing and publishing process and to encourage inter-

termined all of the content these past five years, I did my best to encourage content

esting content.

that was relevant to as many of our members as possible, sometimes in a substantive area

The interesting content is up to you and I encourage readers to write for the Marin Lawyer. I also encourage readers to speak with me about the Marin Lawyer. I feel that it is one of the things that helps keep us connected, especially in these remote Zooming times. We will always have a need for announcements and invitations and conducting other business of MCBA. Do we still need more than that? With all of the information we are bombarded with these days, is the Marin Lawyer something you still want? Please let me know the next time you see me

of the law and sometimes about law practice (Cybersecurity, anyone? Insurance? Cybersecurity insurance?) Or about important legal issues of the day, sometimes more relevant

to our lives than our practices. I welcome whatever thoughts you have about all of this, even when I’m just the president and not the editor! Please take a moment to answer a short survey about the Marin Lawyer—it should take you literally one minute. Speaking of being the editor, this issue is about the new. New law in particular, with

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Jenny Schwartz and Menaka Fernando

ley Campus. The venue has plenty of room

bringing us a handy overview of new Califor-

indoors but also connects to a lovely court-

nia employment and labor legislation. They

yard, weather permitting. Food and drink will

include some legislation that did not make it

be served cocktail-style, with plenty of space

into law, including proposed legislation that

to wander as well as small tables to sit for a

did not pass, which can be handy for seeing

bit. The programming is minimal (a swearing

what won’t change but where there still may

in, of course) and you’ll have a chance to cir-

be enough initiative to pass something simi-

culate and catch up with many colleagues. I

lar. Joel Gumbiner provides us an overview

look forward to seeing you there!

of new California laws more broadly, from

gender-neutral store toy sections to to-go cocktails. Joel also recaps the latest Marin County Superior Court update, including upcoming judicial assignments (spoiler alert: not all that much is changing) and the all-important status of the march to e-filing and case management. If you missed last month’s MCLE conference, I recap all of the interesting things you could have learned (and gotten specialty

View this article at Marinbar.org Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.

EMAIL | WEBSITE

credit for!) Perhaps the most interesting new thing in this issue is Mark Rice’s conversation with a client and another person at his firm about their journey together to get a new legal name and gender for their client. It’s a handy primer for those who might end up needing to know how but also an insightful look into the process and a person behind it. That’s all she wrote, folks. I look forward to being in touch next month via the president’s message and to seeing many of you at MCBA’s next in-person event: our installation gala on January 27th at the new Jonas Center at the College of Marin’s Indian ValTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE Signing Out J. TIMOTHY NARDELL

Well, the time has come for my last message to the membership. I’ll try to keep it short.

some of whom closed down the bar, so I think I wasn’t the only one to enjoy the fa-

It has been an honor to serve as your presi-

miliar, yet almost-forgotten taste of oldfashioned, in-person collegiality.

dent this past year. I came to the presidency with the goals of supporting our association

On a contrasting note, the biggest disap-

as a vibrant community and building stronger relationships between our association and

pointments of my presidency were to have to skip the second holiday party in a row and

the broader Marin community, particularly in the area of pro bono legal services.

to have to postpone yet again the Lifetime Achievement Award celebration for Gary

The definite high point of my presidency was

Ragghianti. No one has more friends in the Marin County legal community than Gary, for

the midsummer BBQ social at the Way Station in Fairfax. It was nothing more elaborate than some beer and BBQ in an open-air venue. But it was so, so nice after more than a year of Zoom meetings and responsible so-

good reason. When his dinner does happen – and it has been confirmed for the Deer Park Villa in Fairfax for Wednesday, June 29th – it will be a great time.

cial distancing just to lift a glass and share some nosh with colleagues old and new. We

I am grateful to the members of the MCBA Board for sticking with the program and

had a turnout of more than 100 members,

stepping up to support our association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

through this second and hopefully most diffi-

will do an excellent job as our incoming

cult pandemic year. Thanks to the hard work

MCBA president. Most of all, I want to thank

of our programs committee and section lead-

our Executive Director, Mee Mee Wong, for

ership, we continued to feature great speak-

all of the creative thinking, leadership, and

ers and lunchtime section meetings, still

hard work that she and her staff—Denise

mostly over Zoom, but still getting strong

Belli and Kiersten Ross—contribute to the as-

attendance and showing that we can still

sociation every day.

maintain an enthusiastic community remotely. And both last year and this year, members of the MCBA Board stepped up to put on ex-

cellent All Bay Area MCLE conferences.

I grew up all over Marin and I have spent most of my adult life here. Over the past 15 years, I’ve run a civil law practice based in

Not only has MCBA continued to offer vi-

San Rafael. Over the 40 years that I’ve lived here, I’ve seen the County change in some

brant programming, I am proud to be leaving our association in good financial condition

ways that are sad. It has become harder, even nearly impossible, for ordinary folks like

despite the challenges of the past year. Our books are in good shape and thanks to your

my parents to afford to live here, and Marin has become less and less diverse in various

generosity, our scholarship fund is stronger than it has ever been before.

ways as the cost of living here goes up and up and up. The cost of legal services is also

My presidency was made so much easier because of the teamwork of Sue Feder, our past president, Rob Rosborough, our incoming president, and the leadership and collegiality of the rest of our executive committee team: Ahtossa Fullerton, Scott Buell, and 5-

out of reach for so many, and that is one of the reasons why I believe it is so important for our association to give back to the community however we can. But Marin is still a beautiful place, and I am still proud to call it home.

year Past President, Joel Gumbiner – thanks so much to you all! I am confident to be leav-

I look forward to seeing you all around town and at the many fun MCBA events to come…

ing the MCBA presidency in good hands with Rob Rosborough. Rob has already done a he-

mic drop.

roic amount of work for the association as the editor and lead evangelist for the Marin Lawyer over the past five years. Under Rob, we saw the Marin Lawyer go from a monthly newsletter to a full online magazine. Rob is now leaving his editorship behind (any aspiring editors out there?) but I’m sure that he

View this article at Marinbar.org J. Timothy Nardell is a partner with Nardell, Chitsaz & Associates in San Rafael. He runs a general civil litigation practice, focused on real estate and business disputes, and select tortious injury cases. Tim also serves as an AAA arbitrator and represents companies and individuals in business matters. Tim can be reached at tim@ncalegal.com or (415) 306-5560. EMAIL | WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

LABOR LEGISLATION 2021 Employment Law Legislative Update JENNY SCHWARTZ AND MENAKA FERNANDO

Labor and employment law in California has

Confidentiality Agreements – SB 331 ex-

been evolving rapidly in recent years. While

pands the prohibition on non-disclosure

perhaps not quite as momentous as some re-

agreements (“NDAs”) found in Civil Code

cent years, 2021 saw much legislative activi-

section 1001 and Government Code section

ty. We provide below a summary of the most

12964.5 in settlement agreements in cases

significant legislation. We also summarize

involving sexual harassment, sexual assault,

significant legislation that either did not pass

and sex discrimination to cover settlement

or that Governor Newsom vetoed since vari-

agreements involving all forms of harassment

ations of these laws could still be on the horizon for future passage.

or discrimination. It also expands the prohibition on overly-broad confidentiality and non-

Signed Legislation

disparagement clauses in employment agreements to prohibit such clauses as part of a

Arbitration Fees – SB 762 strengthens ex-

severance agreement.

isting law that establishes standards for employer breach of arbitration agreements (and

Agricultural Workers – AB 73 expands the

concomitant waiver of right to compel or proceed in arbitration) by requiring payment of arbitration fees within 30 days of the due date. It also requires the arbitration provider to simultaneously send both parties a copy of the fee invoice with the due date.

definition of essential workers to include agricultural workers for the purpose of accessing the personal protective equipment (PPE) stockpile for emergencies established by the State Department of Public Health and the Office of Emergency Services. It also directs the Division of Occupational Safety and

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Health (Cal/OSHA) to review and update the

(1) each quota to which the employee is sub-

content of wildfire smoke training in existing

ject within a defined time period, and (2) any

regulations and it requires training provided

potential adverse action that could result

by employers to be in a language and manner

from the employee’s failure to meet the quo-

readily understandable by employees.

ta. Any actions taken by an employee to

Domestic Workers Health & Safety – SB 321 establishes an advisory committee to: (1) make recommendations, in consultation with other specified divisions and entities, to the Department of Industrial Relations or the Legislature to protect the health and safety of household domestic service employees, and (2) develop industry-specific occupational health and safety guidance to educate household domestic service employees and employers. Tips – AB 286: (1) prohibits a food-delivery platform from retaining any portion of amounts designated as a tip or gratuity, and (2) requires food-delivery platforms to disclose to the customer and the food facility specified information related to fees, commissions, and costs charged to both parties. COVID Exposure Notifications – AB 654 clarifies and strengthens provisions enacted in 2020 relating to workplace COVID-19 exposure notifications.

comply with occupational health and safety laws, as specified, must be considered time on-task and productive time for purposes of any quota or monitoring system. The bill clarifies that meal and rest breaks are not con-

sidered productive time unless the employee is required to remain on call. It also establishes a rebuttable presumption of unlawful retaliation if an employer in any manner discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee doing either of the following: (1) initiating a request for the employee’s quota or personal-work-speed data, or (2)

making a complaint related to a quota violation, as specified. Wage Theft – AB 1003 creates a new offense, punishable as either a felony or a misdemeanor, for an employer’s intentional theft of wages. It specifies that wages, gratuities, benefits or other compensation that are the subject of a prosecution under this section may be recovered as restitution in ac-

Warehouse Workers – AB 701 strengthens

cordance with Penal Code Sections 1202.4

protections for warehouse workers by requiring specified employers of 100 or more

and 1203.1. Further, it does not prevent the employee or the Labor Commissioner from

nonexempt employees at a single warehouse distribution center or 1,000 or more nonexempt employees at one or more warehouse

commencing a civil action to seek Labor Code remedies for acts prosecuted under

distribution centers in California to provide each employee with a written description of:

Garment Workers – SB 62: (1) prohibits the

this section.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

practice of piece-rate compensation for gar-

Electronic Delivery of Employment Posting

ment manufacturing except in the case of

– SB 657 allows employers to distribute and

worksites covered by a valid collective bar-

post information electronically, including via

gaining agreement, and (2) further requires a

email. This does not alter an employer’s obli-

garment manufacturer that contracts with

gation to display any required postings physi-

another person for the performance of gar-

cally in the workplace.

ment manufacturing to share joint and individual civil legal responsibility and civil liability for workers employed by that other person.

Contractor Liability – SB 727 expands existing direct contractor liability to include liquidated damages and penalties in circumstances where the direct contractor fails to

Civil Procedure and Electronic Court documents – SB 241: (1) establishes a statutory

meet payroll monitoring and corrective action requirements, as specified.

framework for conducting court proceedings in civil cases through the use of remote tech-

Fair Employment and Housing Act Proce-

nology; (2) extends to arbitration continuances or postponements the general rule that a trial continuance or postponement caused by the COVID-19 pandemic extends other case deadlines; and (3) as of July 1, 2024, requires courts to transmit documents issued by the court electronically where parties have consented to or are required to use electronic service. Port Drayage Workers – SB 338 expands the set of violations that can cause port drayage contractors to be placed on a Division of Labor Standards Enforcement list that extends joint liability for future violations to custom-

dures – SB 807 makes clarifying procedural modifications to the Fair Employment and Housing Act. It extends the time that an employer must retain employment records from two to four years and removes the State Personnel Board (SPB) exemption. It also tolls the statute of limitations for filing claims during any period of time in which DFEH is investigating or mediating a complaint. Workplace Health & Safety – SB 606 establishes a rebuttable presumption that an employer’s written policy that violates specified health and safety regulations exists at all of that employer’s worksites and adopts an

ers of that contractor.

“egregious violation” standard that gives Cal/ OSHA the ability to stack penalties in cases

Pain & Suffering Damages – SB 447 authorizes a decedent’s personal representative or

where an employer willfully and negligently has refused to comply with safety standards.

successor in interest to recover damages for a decedent’s pain, suffering, or disfigurement in an action or proceeding on the decedent’s

Mandatory Mediation – AB 1033 revises the mandatory mediation pilot program for

cause of action, as specified.

claims brought under the California Family

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Rights Act (CFRA) against small employers

ble under the Labor Code. This law does not

with between 5 and 19 employees. It re-

apply to cases filed before January 1, 2022,

quires the DFEH, when an employee requests an immediate right to sue alleging a

its effective date, and will sunset on January 1, 2028.

violation of the above-described family care and medical leave provisions by an employer,

Legislation Eligible to Advance but Not

to notify the employee in writing that mediation is mandatory prior to filing a civil action if either the employer or employee requests it. The bill would also require the employee

to contact the department’s dispute resolution division, in the manner specified by the

Signed Family Leave for Chosen Family – AB 1041 (Assembly Member Wicks) would expand caregiving leave and paid sick days so that workers can take leave for chosen family members. 2-year bill (eligible to advance next

department, prior to filing an action and to indicate whether they are requesting mediation.

year).

Rehiring and Retention of Hospitality Work-

bereavement leave for workers after the loss of a loved-one. 2-year bill (eligible to advance

ers – SB 93 requires an employer, within five days of establishing a position, to offer its

Bereavement Leave – AB 95 (Assembly Member Low) would establish job-protected

next year).

laid-off employees, in writing and by email

Discrimination Based on Family Responsibil-

and text message, all job positions that be-

ities – AB 1119 (Assembly Member Wicks) would strengthen discrimination protections

come available after the effective date of this bill for which the laid-off employees are qualified. Specifies that the Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction to enforce these provisions.

under the Fair Employment and Housing Act for workers with family responsibilities. 2year bill (eligible to advance next year).

PAGA: Janitorial Workers – SB 646 exempts

Lactation Accommodation at State Courthouses – AB 1576 (Assembly Judiciary Com-

from the Private Attorneys General Act of 2004 janitorial employees who are covered

mittee) would provide lactation accommodation at state courthouses for lawyers and

by a collective bargaining agreement that meets certain conditions. Specifically, the

other officers of the court. 2-year bill (eligible to advance next year).

collective bargaining agreement must provide expressly for certain minimum wages

Vetoed Legislation

and benefits, a grievance and bindingarbitration process to redress PAGA violations, and the authority of an arbitrator to award any and all remedies otherwise availa-

Paid Family Leave – AB 123 (Gonzalez) would have increased the wage replacement rate: (1) to 65% or 75% for paid-family-leave (PFL) claims commencing after January 1,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

2023, but before January 1, 2025, and (2) to

tions apply, including if the aggrieved em-

70% or 90% for claims commencing after

ployee has brought an action under the act in

January 1, 2025. Vetoed.

conjunction with, or in addition to, claims for

Veteran’s Preference Policy – SB 665 (Umberg) would have established the Voluntary Veterans’ Preference Employment Poli-

monetary damages or penalties for violations of the Labor Code arising out of the same period of employment.

cy Act (Act) and authorized a private employ-

Wages: Records: Inspection and Copying –

er to establish a veterans’ preference em-

AB 436 (Fong) would have lengthened the

ployment policy without violating the Fair

time for providing copies of wage statements

Employment and Housing Act. It specified

from 21 to 30 days when a request for per-

that an employer that adopted a voluntary veterans’-preference employment policy

sonnel records also is made.

shall report annually to the Department of Fair Employment and Housing (DFEH), in a manner prescribed by DFEH, the number of veterans hired in that reporting year under the preference policy and any demographic information about those veterans that the employer obtained in response to DFEH’s reporting requirements.

Proposed Legislation Not Passed Worker Classification: Employees and Independent Contractors – AB 25 (Kiley) would have repealed provisions relating to the “ABC” test for certain occupations and business relationships.

Employment: Flexible Work Schedules – AB 230 (Voepel) would have weakened overtime protections as they relate to alternative -workweek schedules and schedule changes. PAGA – AB 385 (Flora) would have prohibited an “aggrieved employee” from maintaining an action on behalf of themselves or any other aggrieved employee if certain condi-

PAGA: Filing Requirements – AB 530 (Fong) would have required an aggrieved employee bringing a Labor Code Private Attorneys General Act (PAGA) claim to meet certain pleading requirements. Specifically, workers would have been required to inform the employer which specific violations of the Code are being brought under each subdivision of the act and to inform the employer whether the statutory right-to-cure provisions apply. Worker Classification: Business-to-Business Voluntary Deposit Arrangements – AB 612 (Mayes) would have impacted the misclassification framework for business-to-business arrangements, as recently revised under AB 2257 (Gonzalez, 2020). Private Employment: COVID-19: Positive Test or Diagnosis: Documentation – AB 757 (Davies) would have allowed employers to require workers to prove COVID-19 infection—or an applicable self-quarantine order— in writing before they could receive COVID19 paid sick leave required by the Cal/OSHA

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Emergency Temporary Standard (ETS).

Telework Flexibility Act – AB 1028 (Seyarto) would have provided employer protection for overtime and meal- and rest-break claims related to remote work and alternative/ flexible workweek schedules. View this article at Marinbar.org JENNIFER SCHWARTZ is a partner at Outten & Golden LLP and heads the individuals rep-

resentation practice in the San Francisco office. She represents employees exclusively in a wide range of employment matters, including litigation in state and federal trial courts, arbitration, before administrative agencies, and in appellate courts. Ms. Schwartz’s practice focuses on claims of wrongful termination, discrimination, sexual harassment, retaliation, and violation of state and federal wage and hour laws. EMAIL | WEBSITE MENAKA N. FERNANDO is a partner at Outten & Golden’s San Francisco office and

focuses her practice on gender-based issues in the workplace. She is a member of the firm’s Sex Discrimination and Sexual Harassment and Family Responsibilities & Disabilities Discrimination Practice Groups. Ms. Fernando represents individual employees in negotiation and litigation in a variety of employment matters including sexual harassment, gender and race discrimination, family and pregnancy leave, retaliation, and wrongful termination, among others. EMAIL | WEBSITE

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Professional Credibility THE MARIN LAWYER An Official Publication of the Marin County Bar Association

2022 NEW LAW New California Laws JOEL GUMBINER

It is an exciting time of the year for “new law” buffs. As always, California’s new laws are a mix of added protections for workers, consumers, citizens in general and the press. Some of these new laws may start trends

across the country. What’s the saying? “As California goes, so goes the nation.” So keep your condoms on, get your old press credentials out, and make sure you go to the right section of the toy store when shopping next Christmas. In the meantime, start reading—here are just some of the new laws taking effect in California on January 1, 2022 and beyond. Gender-Neutral Toy Sections AB 1084 requires large department stores

and ensures reporters can be in protest areas without being arrested. It also prohibits po-

that sell kids’ products to maintain a genderneutral section of toys and childcare items.

lice from “intentionally assaulting, interfering with, or obstructing” journalists’ newsgather-

Stores that do not comply face a penalty of up to $250 for first offenses, and up to $500 for second offenses.

ing. It does not, however, create criminal liability for the police.

Some commentators say this bill might not

crackdowns—some violent—on protests and

radically alter Californians’ shopping experiences as some large stores already organize

demonstrations in recent years where journalists covering events were arrested and in-

their toys by type of product rather than by gender.

jured.

A Free Press at Protests

SB 510 aims to put a stop to “surprise billing” for COVID-19 tests and vaccinations, ensur-

SB 98 prevents police from blocking journalists covering protests and demonstrations

This bill appears to be a response to police

Free COVID Testing

ing patients face no out-of-pocket fees from

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

health plans and insurers during the public

health emergency regardless of whether they receive their services through in- or out-ofnetwork providers. The bill also requires insurers to fully cover COVID-19 screening tests—like those increasingly required on a regular basis by employers and schools. Governor Newsom signed the bill on October 8, at which time he said it “will ensure uniformity in testing payment and access rules throughout the state.” In a side note, the Governor also directed the Department of Managed Health Care to issue guidance “to address concerns about how the prevailing market rate is determined. This would help prevent price gouging.” Teaching Mental Health SB 224 mandates mental health instruction

in middle schools and high schools that have an existing health education course. Supporters hope that such instruction would eventually be required in all schools statewide. Required content covers a range of topics, including promoting mental wellness, signs and symptoms of common mental health conditions and ways to seek help.

stealthing.

Decertifying Police Officers SB 2 gives the state’s Commission on Peace Officer Standards and Training the power to decertify an officer for wrongdoing— effectively kicking them out of the profession. It also creates an advisory board made up mostly of civilians without policing experience to look into serious misconduct allega-

tions against officers. It requires a two-thirds vote of commissioners to decertify officers. In signing this and several other police reform bills on September 30, Governor Newsom said, “Today marks another step toward healing and justice for all. Too many lives have been lost due to racial profiling and excessive use of force. We cannot change what is past, but we can build accountability, root

out racial injustice and fight systemic racism.” Restaurants Can Continue to Sell “To Go” Cocktails SB 315, AB 61, and SB/AB 389 allow restaurants to continue selling

Removing Condoms Without Consent

to-go cocktails, using parking lots

AB 453 makes it illegal to remove a condom without consent during sexual intercourse, making “stealthing”—nonconsensual condom

for expanded seating, and serving alcohol in parklets. The laws are already

removal—a sexual battery under the state’s Civil Code. It allows victims to sue their sexu-

in effect but are now made permanent—at least until 12/31/2026.

al partners for damages and makes California the first state in the country to outlaw THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Year-Round Fishing Licenses

AB 817 authorizes local authorities to issue year-round fishing licenses. Enough said! Golden Gate Bridge Bike Speed Limit Though not a new law, starting January 1, 2022, the Golden Gate Bridge authorities will be enforcing a 15 mile-per-hour speed limit for regular and electric bikes. Currently, the bridge has a “recommended” 15-mph limit in place. After January 1, the fines for exceeding 15 mph will be between $238 and $490 – the same as for speeding cars. The California Highway Patrol will be enforcing the limit! NEW EMPLOYMENT LAWS Read Jenny Schwartz and Menaka Fernando’s article in this issue for a rundown of significant new employment laws. Here are a few additional laws in chart form.

Law

Main Topic

Summary

AB 1171 Criminal Background Checks/Spousal Rape

Existing law requires certain employers to notify parents or guardians that an employee with specified convictions will supervise or have disciplinary authority over a child. This bill changes the specified convictions to any felony conviction. It also eliminates the distinct crime of spousal rape and defines rape to include rape of a spouse under the same circumstances as other rapes.

AB 1506 Independent Contractors

Extends the applicability of the ABC test exemption to newspaper carriers until December 31, 2024. Requires newspaper publishers and distributors that directly contract newspaper carriers to submit certain information related to their workforce to the LWDA on or before March 1, 2022, 2023, and 2024.

AB 1561 Independent Contractors

Extends until December 31, 2024, the applicability of the ABC test exemption to specified occupations (licensed manicurists, construction trucking services, research subjects working for data aggregators, claims adjusters and third-party administrators, and manufactured housing salespeople).

AB 794

Port Drayage Motor Carriers

Provides financial incentives for port drayage motor carriers, and others, for switching to electric vehicles.

AB 825

Privacy: Data Breach Notice

Modifies existing data security breach notifications to include genetic data under the definition of personal information.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Law SB 255 Also SB 718 SB 326

Main Topic

Summary

Benefits: Health Authorizes an association of employers to offer a large group Insurance health care service plan contract or large group health insurance policy consistent with ERISA if certain requirements are met. Benefits: Health Provides requirements for multiple employer welfare arrangements Insurance to offer large group health plans.

SB 572

Wage & Hour: Penalties

Allows the Labor Commissioner to place a lien on real property to recover penalties owed for violations of the Labor Code.

SB 639

Disability: Subminimum Wage

Phases out the licensing program for subminimum wages for persons with disabilities and requires that all employees with disabilities be paid no less than the state or local minimum wage by January 1, 2025.

San Benefits: Health Raises San Francisco's health care expenditure rate to $3.30 per Francisco Insurance hour for employers with 100 or more employees and $2.20 per Healthcare hour for employers with 20-99 employees. Security Ordinance

NEW REAL ESTATE / HOUSING / ZONING LAWS

•

Limits fee increases on housing applications;

New Housing Developments

•

Prohibits development policy that would have the effect of changing the general plan land use designation or zoning of a

SB 8 is an omnibus clean-up bill impacting several previous housing initiatives. Notably, it extends key provisions of SB 330, also

parcel of property to a less intensive use (including reductions in height, floor area

known as the Housing Crisis Act of 2019 (previously set to expire in 2025), until Janu-

ary 1, 2030. That act: •

ratios, or open space/lot coverage); •

Sets limits on the local approval process for housing projects;

•

Curtails local governments’ ability to downzone residential parcels after project initiation;

Prohibits approval of a housing development project that will require the demolition of occupied or vacant protected rental units unless certain requirements are met;

•

Allows existing occupants that are required to leave their units to return at

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

their prior rental rate if the demolition

(10) residential units if located in “transit rich

does not proceed and the property is re-

areas” and urban infill sites. This provides

turned to the rental market.

cities, including charter cities, an increased

This section applies to housing development projects that submit a preliminary application after January 1, 2022 and before January 1, 2030. Housing Opportunity and More Efficiency (HOME) Act

SB 9 facilitates the process for homeowners to subdivide their current residential lot or build a duplex and allows for ministerial approval, without discretionary review or hearings, of duplex residential development on

ability to upzone property for housing without the processing delays and litigation risks associated with CEQA, from which the law is exempt. SB 10 does not apply to parcels located within a high or very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection. OTHER IMPORTANT NEW LAWS TAKING EFFECT LATER: •

quires ethnic studies for all California public school students and actually makes

single-family zoned parcels. There are limitations, such as: •

ethnic studies a graduation requirement. School districts could either develop their

The project may not be located within a

own lessons or use the model curriculum developed by the state board of educa-

historic district or within a site that is designated as a landmark or historic property pursuant to local ordinance. •

•

tion. The law will go into effect by the 2024-25 school year, beginning with the class of 2030.

A local agency may impose objective zoning standards unless they would preclude either of the two units from being at least

Ethnic studies to graduate: AB 101 re-

•

A menstrual equity bill: AB 367 requires

800 square feet in floor area.

California’s public universities, community colleges, and secondary schools to pro-

No setback may be required for an existing structure or a structure constructed

vide free menstrual products on campus, beginning in the 2022-2023 school year.

in the same location and dimensions as an existing structure. Local Government Zoning Ordinances for Dense Urban Areas SB 10 creates a voluntary process for local governments to pass ordinances prior to January 1, 2029, to zone any parcel for up to ten

•

Greater access to police records: SB 16 expands the public’s access to police records, allowing them to view sustained findings in which an officer used unreasonable force, failed to intervene when another officer used excessive force, engaged in racist or biased behavior, or conducted unlawful arrests and searches. It

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

goes into effect 1/1/22, but provides a

ty colleges to UC and Cal State four-year

grace period until 1/1/23 to make public

programs.

the newly disclosable records. •

plan: AB 570—the Parent Health Care

AB 1405 prohibits a debt settlement pro-

Act—allows adult children to add parents

vider from engaging in false, deceptive, or

and stepparents to their individual health

misleading acts or practices, as specified,

insurance policies. It takes effect in 2023.

It goes into effect 7/1/22.

•

Truth in recycling: SB 343 restricts what kinds of plastic packaging can tout the tri-

More authority for cities to reduce their speed limits: AB 43 takes effect June 30,

angular symbol known as “chasing arrows” under the state’s truth-in-

2024.

advertising law, taking effect in 2024.

Illegal to harass people entering vaccination clinics: SB 742 amended an existing

View this article at Marinbar.org

law on this subject to help it get past first amendment issues.

For more than thirty years, Mr. Gumbiner has litigated cases involving insurance coverage and "Bad Faith," real estate and property damage [including landslide, flood, earthquake, construction defect, transactional misrepresentation], and complex injury matters. He has extensive trial and appellate experience in these areas and has written and lectured on insurance-related issues for more than twenty years. Mr. Gumbiner has represented commercial and individual policyholders in every type of insurance litigation since 1983 including trials, appeals, arbitrations, mediations. WEBSITE

Doggie blood bank: AB 1282 phases out controversial donor dog facilities to create a new canine blood bank system.

•

Adding dependent parents to your health

A crackdown on debt settlement firms:

when providing debt settlement services. •

•

Easing transfers to UC and Cal State: AB 928 allows easier transfer from communi-

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MCBA Membership Perks A reminder of MCBA Member Benefits available to you. Be sure to check out the MCBA Member benefits offered through:

Cal Connect with select partners and discounts in Insurance, Financial Services, Business Services, Case Management and Travel!

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

COURT UPDATE Marin Superior Court Update JOEL GUMBINER

If you missed it, outgoing Presiding Judge Andrew Sweet and Court CEO James Kim provided the much-anticipated update on the Marin County Superior Court on October 27, 2021, at what is normally the annual Judges' Luncheon. Again this year, there was no lunch and no gathering – just a Zoom meeting that over 130 of you attended.

JUDICIAL ASSIGNMENTS These assignments are for 2022 and 2023. Judge James Chou will assume the duties of Presiding Judge on January 1, 2022. Judge Mark Talamantes will become Assistant Presiding Judge. There were many thanks and much deserved praise for Judge Sweet’s han-

We can expect some positive changes in

dling of the Court over the past two years. Within three months of taking the job in Jan-

2022. Some things will surprisingly remain the same. Generally, civil jury trials are back to nearly normal, though with COVID pre-

uary 2020, Judge Sweet inherited and presided over the most difficult two years at the Court in any of our careers. Though it was

cautions. Criminal trials have been going since much further back during the pandemic

certainly not easy, all facets of the Court continued on during the pandemic and the

and continue apace.

wheels of justice continued to turn.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Starting in 2022, most assignments are not

(down 15%)

changing:

Misdemeanor filings: Down from 3433 to

Civil: Judges Sweet (Supervising), Chou, and Freccero Family: Judges Lichtblau (Supervising), Adams, and Talamantes Criminal: Judges Haakenson (Supervising), Howard, Jordan, and Chernus Judge Haakenson: Adult Drug Court

2232 (down 32%) Felony filings: Up from 844 to 1,643 (nearly double) Probate filings: Up from 489 to 525 (up 7%) James Kim provided an update and insight into the administrative side of the Court during COVID and what to expect in the coming year. CASE FILING BACKLOG Mr. Kim explained that much of the backlog

Judge Howard: Domestic Violence Court Judge Jordan: STAR Court

we have experienced is a problem with state funding. The state has approved additional

Judge Chernus: Department M and Veterans Court

funding to allow for more hiring, but there is still a backlog. At the height of the pandemic,

Juvenile:

backlogs were running six weeks or more from drop off in the inbox to actual filing, the

Judge Wood (who will also handle trial court from the Criminal Division ½ time) Probate: Judge Simmons Settlement: Judge Simmons COURT FILINGS Most court filings were down last year ex-

current backlog in civil cases is down to about two weeks. Family law, small claims, and unlawful detainer filings are all caught up and are pretty much filed in real time now. Drop box filings are still prioritized by date dropped off. Staff regularly check the box and are taking the documents on the day they are dropped off. Filings at the counter do not have priority over the drop box filings.

cept that criminal filings were up. Judge Sweet made the comparison between pre-

COVID 19 UPDATE

(2018-19 fiscal year) and post-pandemic filings (2020-2021) with some surprising re-

The Court continues to do electrostatic cleaning and deep cleaning of Court facilities.

sults:

Court personnel are using thermal cameras to ensures that people with higher-than-

Civil filings: Down from 2873 to 2546 (down 11%) Family law filings: Down from 1365 to 1155

normal temperatures are kept out. There have been no outbreaks of COVID in any of

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

the Court offices.

•

E-delivery is not e-filing. Rather, lawyers

Marin Superior Court staff are 94% vaccinated with only a “handful” of people remaining

will be able to “deliver” filings to the court digitally, but filing will continue manually.

unvaccinated. A 100% masking requirement still applies in all courtrooms.

•

with future backlogs. It should be in place

temperature screening. Jury questionnaires

by July 2022. Once that is in place, the e-

are being used regularly. There are also air

filing system can be implemented.

purifiers with HEPA filters in the jury rooms. •

The Court had a $1 million shortfall last year.

report that it had no furloughs or layoffs through the pandemic and none are ex-

ital and there will be no more paper records at the Court. •

sideration in its budgeting and Mr. Kim feels that, despite the shortfalls, Marin Superior Court has a sound fiscal policy in place and that it is in good shape going forward. ELECTRONIC CASE MANAGEMENT SYSTEM There was, and has been for some time, substantial interest among our members about the new electronic filing and case management systems. The Court is in the last fiscal year of planning for the new system, which will be implemented incrementally over the coming years. The anticipated highlights of that rollout are:

There will be training for staff, lawyers, and the public in the use of the new system.

pected. State funding and filings are correlated: as filings go down, so does funding from the state. The Court has taken this into con-

The Court is, and has been, engaged in an “aggressive scanning process.” All filings that now exist on paper are being scanned. By mid-2022, all files will be dig-

State funding has stayed flat despite increased costs of dealing with COVID. The Court projects a $700,000 shortfall for the coming year. The Court was very proud to

The new case management system will be automated—Bot Technology—to help

All jurors and prospective jurors undergo

BUDGET

E-delivery in January or February 2022.

•

The Court’s website is also being updated to be accessible from all devices, accessible in multiple languages, and to allow a user to increase font size in real time.

Information about the CMS and e-filing systems will be coming through the Court’s web site. Training programs are being planned now and will be either in person or on Zoom in 2022. HIRING NEW STAFF Since June 2021, the Court has hired 17 people. There is a “crisis” in government, as there is in the private sector, of finding qualified applicants. Marin has hired people from other courts and the private sector including from Tesla, Google and Amazon.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

These are people with skill sets needed in

and they do their best. Sometimes they

the new age of a digital court. Much training

are late but every effort is being made for

of staff is happening now and there is a new

timely Friday tentative rulings.

energy among Court staff because of the new hirings and blossoming technology.

•

experiences with what works and what

Nonetheless, Mr. Kim puts the current staff shortfall as still being at 15-20% –not just clerks, but in HR, IT, and finance. The Court

does not work in other jurisdictions. •

ated a statewide contract. The other main

are welcome!

system, Tyler, does a lot of e-filing systems, but does not have a statewide con-

COURT APPEARANCES

tract. Journal is the system Alameda just changed to as well as Placer and several

The default in criminal cases is still “inperson” appearances. Most parties demand it. Judge Sweet was not sure how long Zoom

other counties. It has a higher level of integration and was deemed preferable.

appearances will be allowed.

make in-person appearances, but there is still the opportunity to request remote. Family Court requires personal appearances though Judge Adams points out that the ten-

The CMS and E-Filing details. Marin’s contract is with Journal, which has negoti-

is most in need of IT professionals. Referrals

The default and presumption for evidentiary hearings is that counsel and witnesses will

E-filing ideas. The Court welcomes your

Sonoma is on the Tyler system. San Francisco runs the Thompson Reuters system. •

Local Rules. Changes are coming. The

main focus is working with the State Management System. View this article at Marinbar.org

tative rulings still say appearances can be either in-person or by Zoom. Zoom remains available and will continue to for the foreseeable future for nonevidentiary hearings. Judge Sweet notes that Zoom is preferable to, and cheaper than, telephonic appearances, and is less expensive for clients. There are no plans at present to change this. QUESTIONS AND ANSWERS •

Probate tentative rulings are out early on Friday. The department is understaffed

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONFERENCE RECAP 2021 BAY AREA MCLE CONFERENCE ROBERT ROSBOROUGH

Last month marked the second Bay Area MCLE Conference MCBA has put on via Zoom and its 14th MCLE Fair/Conference. The reviews are in and attendees gave high marks to 15 programs over the three-day

fair. We were particularly excited about our four keynote speakers. In the opening keynote, fan-favorite Professor Rory Little gave us insight into the current Supreme Court term, being called a “blockbuster” in the media. Day two’s keynote saw me in conversation with groundbreaking retired Judge LaDoris Cordell, who has a new memoir out about her nearly 20 years on the bench. In Her Honor, Judge Cordell manages to discuss

attorney, not just criminal lawyers, could have taken away a lot of insight into courtroom strategy. And Professor and former

the good and the bad in our justice system while making her book a page-turner with

host of KQED’s Forum Michael Krasny closed out the conference as MCBA Presi-

compelling stories, some uplifting, some heartbreaking, from all areas of the law. I

dent-Elect Ahtossa Fullerton “interviewed the interviewer.” Professor Krasny shared

highly recommend it.

stories from a long and distinguished career that has included interviewing three Su-

The conference’s final day saw Deputy Public Defender (and MCBA board member) Karthik Raju interview famed criminal defense attorney Thomas Mesereau (think the Michael Jackson trial). Mesereau not only had plenty of fascinating stories to tell, he had plenty of good advice for trial attorneys. He often used unexpected, even high risk, (and successful) defense strategies, and he revealed his thinking behind them, as well as their effects in the courtroom and the jury room. Any trial

preme Court justices and countless politicians, authors, actors and celebrities from all

walks of life. In so doing, he made many trenchant observations about society today and how it has changed over his career. Many thanks to each of our keynote speakers. Of course, many additional speakers and moderators covered a broad range of interesting and useful topics, some of them

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

providing those elusive specialty MCLE cred-

curity expert Georg Usi to educate all of

its:

us on improving our cybersecurity,

•

whether at your firm or for yourself. He

Lita Abella from the State Bar Lawyer As-

had great, practical advice.

sistance Program and Psychologist Starr Kelton-Locke made an excellent team to

•

with a timely discussion of vaccines in the

with advice on identifying it and what to

workplace with Shannon Clausen,

say and not say when trying to help oth-

Charles Thompson and Holly Sutton. Fred Hertz brought his tremendous in-

sight as a mediator to give us lots of great advice on preparing pre- and postnuptial

sion of mediation confidentiality with mediator extraordinaire Jeff Kichaven.

agreements.

My colleague Tom Weathers interviewed

MCBA board member Habib Bentaleb moderated a panel with Lauren Mendel-

his friend Professor Larry Baca, a Pawnee Indian and Justice Department Civil

sohn, Lara DeCaro and Alison Malsbury on current issues in cannabis law, which

Rights Division alum, about the pervasive discrimination Native Americans still

had plenty of good advice about practical lawyering issues that arise in the tricky

face, sharing several chilling stories in the process.

space where your clients do not have access to the banking system and are violating federal law.

MCBA board member Valerie Kushel welcomed Tim Galusha and Thea Beatie Eliot

•

And leading into Michael Krasny’s closing

for a deep dive into the changes wrought by Proposition 19.

keynote, one of my best friends, Cliff Atkinson, spoke with Bill Green about the

Maura Prendiville presented an excellent

incredible power of telling a story visually to a jury, or in Bill's case, a mediator

ly leave. I welcomed my colleague Andy Wolfe, one of Marin’s top fee arbitrators, for his thoughtful lessons on running a law practice that avoids fee arbitration. •

•

Incoming MCBA Treasurer Scott Buell held an informative, if worrisome, discus-

update on the many employment law changes surrounding pregnancy and fami•

The final day of the conference started

address the realities of substance abuse

ers. •

•

To round out day two, I invited cyberse-

and defendants and their counsel. As chair of the conference committee, I would like to give thanks to the many additional folks who made this conference possible. Foremost among them are Executive Director Mee Mee Wong and Membership and Events Administrator Denise Belli. Their many hours of blood, sweat, and tears are

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

what really made the conference not only

•

Marin County Women Lawyers

•

Marin Trial Lawyers Association

and effort in planning (and participating in) all

•

San Francisco Trial Lawyers Association

of these great programs: Karthik Raju, Va-

•

San Mateo County Bar Association

•

Santa Clara County Bar Association

•

Sonoma County Bar Association

possible but a success. And I would like to thank the committee members for their time

lerie Kushel, Ahtossa Fullerton, and Kris Cirby. Our partnering bar associations made the conference a truly “Bay Area” one. Many

Finally, our sponsors were critical to the suc-

thanks to:

cess of the conference. MCBA extends a

•

Alameda County Bar Association

•

Bar Association of San Francisco

•

California Women Lawyers

heartfelt thanks to all of them for supporting the conference and the association. View this article at Marinbar.org

2021 Bay Area MCLE Conference Sponsors

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

GENDER CHANGE PETITIONS How to File and Obtain a Name and Gender Change Petition and Order MARK RICE

This year, I was asked by a longtime contrac-

order accomplished for Paula. It walks you

tor client if I would help him (now, her) ob-

through all the steps, the fees, and the sur-

tain a name and gender change order. The

rounding tasks beyond the Court – DMV,

name change was not just from Paul to Pau-

passport, birth certificate, and Social Security

la, but also a last name change, as Paula had

card.

been adopted and desired to have the born family last name instead, as well as a change of birth certificate in another state. I said yes, we would help. And we had never done one of these before, much less during the limited court access during COVID-19. I suppose this was another moment ce-

menting my client relationship with Paula, my own growth curve, not just adding a skill to our office, but really, a better appreciation over what identity is. In a booklet that my now adult daughter gave me one year, on page 34, stating what my dad has given me, she wrote, “the courage to be myself.” And, I thought a lot about that statement while helping Paula with the legal piece for her own courage to be herself. The Court just signed the order last month, and we have 12 certified copies to prove it. Here is a short conversation among Paula, me and my digital manager, Allison Jacob, who got the assignment to do the research, prepare the forms, and interface with the Court to get the name and gender change

Mark: Paula, what led you to ask us to help you with your gender and name change petition? Paula: In working through run-of-the-mill construction disputes, you and I had had enough personal conversations that I felt comfortable, and that you would respond positively—first to my announcing my gender and name changes, and then, be willing to help with the legal paperwork. Just a feeling I had. We had talked about my being adopted, my upbringing and feelings about it, and it just felt right to ask. Mark: Allison, how did you react to getting this assignment to help Paula?

Allison: Both excited and nervous. I had met Paula in the office several months before when you were mediating something. When you told me he was becoming Paula, and then asked if I would be in charge of researching the steps needed, I was proud to help and curious what was involved. It was all new to me. I appreciated the confidence

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

you placed in me, and knew it was important

www.cdph.ca.gov. The fee currently is $23

to do right by Paula.

for birth certificate change and includes one

Mark: How did you start? Your research? Allison: I went to the internet, and found a handful of really good resources: www.courts.ca.gov/22489.htm for the forms, http://transequality.org/documents, and even a good YouTube video, “How to: Name and Gender Marker Change in Califor-

nia,” by one of the law students at UC Berkeley’s Name and Gender Change Workshop

certified copy; pay $25 at time of application for each additional certified copy requested. Per CDPH’s website, it takes six to eight weeks to process. The forms needed are a VS-20 and VS-24, plus the certified court order. Mark: Allison, what about DMV – how does that work? Allison: Well, and this is pretty interesting,

(NGCW), which is staffed by law students. California courts’ self-help website has a sec-

the DMV in California will permit you to change your name and gender without a

tion on gender change as well. There were some good articles on how to navigate the

court order. To do so, go to dmv.ca.gov. A good resource here is transgenderlaw-

forms, which the State Judicial Council recently simplified and streamlined. From

center.org/resources/id/id-change. Two forms are needed – DL-329S for gender

there, it was working with Paula to get a few details, plus a medical doctor’s declaration.

(male, female or non-binary), and DL-44 for name change. DMV charges a $38 fee and

Mark: What about ID documents, such as birth certificate and driver’s license – is that automatic once there is a name and gender change or does that entail more forms and paperwork? Allison: Well…more forms and paperwork, of course. If the client was born in California,

once the Petition for Name and Gender Change is granted by the court, a certified copy should be sent to the California Department of Public Health, Vital Records – MS 5103 PO Box 997410, Sacramento, CA 95899-7410. Paula was born in Illinois so she is submitting the certified copy there for birth certificate change. There is going to be a fee for that as well. In California, see

the process can be done online, it seems. Also, usually, the DMV will want proof of a new name and it seems they want you to present your new Social Security number and card – so that’s one more name change to carry out so the client’s Social Security benefits are properly tracked after the name and gender change. Here’s that website: KA01981 Customer Self-Service. Here again, a certified copy of the court order is needed, or, this change in Social Security number and card can occur based on the change in birth certificate, driver’s license and passport. There does not appear to be any fee with the Social Security Administration.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Mark: Sounds tricky and circular – right, Alli-

fee for the new passport is $110 to the U.S.

son? Man, my head spins just counting the

Passport Office, or $140 if you also want a

number of forms, much less filling them out.

Passport Card in addition to a Booklet Pass-

You know how much I hate paperwork.

port (the Card also serves as a “real ID”) and

Thank goodness you managed this, not me.

requires passport photos as well. All on the

Allison: Yep. It was a bit confusing at first and it needed lists. It’s a big puzzle of sorts between all the agencies you need to contact and their forms. Just as an example, DMV’s website seems to suggest that you have to change your Social Security card first, otherwise, DMV will deny your driver’s license change. Here’s the language from DMV’s website: When you apply for a new DL/ID card using your new name, the first thing DMV will do is verify your information with SSA, so make sure you have informed SSA of your new name. If your SSA information does not match your new DL/ID application information, your application will be denied, and you will receive a Request for Verification of Information letter from DMV telling you what to do.

Mark: Okay, good to know. Typical DMV. But what about the passport – more forms and fees? Allison: (Lol) Yeah, that’s right Mark, more forms and fees. You take a certified copy of the court order to the U.S. Passport Office— one’s in San Francisco—and fill out a form called DS-60, Affidavit of Name Change. The

website, Name Change for U.S. Passport or Correct a Printing or Data Error. Sometimes a local post office will receive and process passport applications, but the fastest way to get this done is make an appointment direct-

ly with the U.S. Passport Office; its usually two in-person visits – one to drop off the new application and old passport, and then a few days later, to pick up the newly issued passport. Mark: Allison, what does the U.S. Passport Office say about non-binary gender markers, beyond “Female” and “Male” descriptors?

Allison: Yes, this here is where it’s getting really interesting – maybe political? According to the U.S. Passport Office website, you can change your identification without any court order, as a matter of personal preference, choice and “gender marker”. But the US Passport Office has only said it’s trying to implement the new rule, and has yet to update its forms and apologizes sort of for not having it done yet – sort of hard to say what that means. Maybe it means this is mired in Washington politics: You can now select the gender you would like printed on your U.S. passport, even if the gender you select does not match the gender on your supporting documentation

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

such as a birth certificate, previous pass-

We cannot provide an exact timeline for

port, or state ID. We no longer require

when we will begin offering a gender

medical certification to change the gender

marker for non-binary, intersex, and gen-

marker on your U.S. passport.

der non-conforming persons. However,

To request a new passport with a different gender than the one you have on your current passport, or if you are applying for your first passport, submit a new application and select your pre-

we will provide updates on this webpage. In the meantime, applicants should not apply for a passport with a non-binary, intersex, or gender non-conforming gender marker.

ferred gender marker. Follow the steps

Mark: Hmm…geez, this seems like double-

on this page to learn which form to submit. You can select “M” or “F” which

talk, since the California Bar pretty easily has expanded its gender marker elections

are the gender markers currently available. We are working to add a gender

when renewing a law license. California in 2017 was the first state to permit gender-

marker for non-binary, intersex, and gender non-conforming persons as soon as

neutral or non-binary gender markers in vital statistics and identification, with pas-

possible.

sage of SB 179, the Gender Recognition Act. Here's a good article about the Act.

Plans for a Gender Marker for NonBinary, Intersex, and Gender NonConforming Persons We are taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex. We are beginning the process of updating our procedures for the issuance of U.S. passports and Consular Reports of Birth Abroad (CRBAs) with the goal of offering a gender marker for non-binary, intersex, and gender non-conforming persons. The process of adding a gender marker for non-binary, intersex, and gender nonconforming persons to these documents is complex and will take time for extensive updates to our information technolo-

And, this U.S. federal webpage saying “gender non-conforming persons” seems a bit pejorative, don’t you think? Like it’s saying, only male and female selections are “conforming,” otherwise you are “nonconforming”? I detect a little bias there…the whole point is that we conform to who we are, no longer to what others say we “should be” or say we are.

Allison: Yep, gotcha, Marco. It does seem that the language is lagging—not quite catching up to the reality of folks’ identities and choices. It seems the Passport Office could have written, “and other gender markers and recognition.” I mean, why call anyone “non-conforming” in a blurb

gy (IT) systems. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

about making the form more receptive to

for Issuance of Birth Certificate (for signa-

everyone conforming to themselves, not

ture by the Judge);

forced anymore into solely “F” or “M” categories if they don’t neatly fit? Bugs me. Mark: Okay, right. So, let’s leave Washington and return to the meat and potatoes of the required California Judicial Council forms and our petition. Which are the forms needed? And the court fees?

4. CM – 010, Civil Cover Sheet;

5. NC-310 - No longer needed - Declaration of Treating Medical Physician under the Health & Safety Code, this can be on the Declaration Form (NC-310) or as an attachment, as long as it has the required language and is under penalty of perjury

Allison: They are pretty simple and you can download them all from www.courts.ca.gov:

by the doctor. It used to be required under Health & Safety Code Sections 10340

1. NC-200, Petition for Change of Name,

-103433, but no longer. But we had one anyway. The clerk told me when we filed

Recognition of Change of Gender, and Issuance of New Birth Certificate;NC100, Attachment to Petition; 2. NC-125/NC-225, Order to Show Cause for

Change of Name to Conform to Gender Identity; 3. NC-230, Decree Changing Name and Order

Recognizing Change of Gender Identity and

the petition this form was no longer needed, but that really was not very clear anywhere in the form instructions. But no harm to have it since instinctively, it was required, and you just want the petition granted without questions, and a “doctor’s note” form NC-310 exists, so we used it.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Mark: Okay. That’s a bunch. And how easy were those forms to fill out? Allison: Fairly simple. Paula provided the biographical information, like location and date of birth, reasons for the name change, and the doctor’s affidavit. It has to be signed by the petitioner, not just the attorney. It can be done without an attorney. Just file with the $435 filing fee and added $40 for each additional certified copy needed (one copy will be provided, but more are needed -see above. I recommend at least 10). And if it’s just a gender change and not a name change, it’s the same forms except for an NC-300 instead of an NC-200. Those who cannot afford the filing fees can apply for a fee waiver at the court. Mark: Paula, looking back on this, from a cus-

tomer experience, how could it have gone smoother, better?

ed. As in, they too were left without a lot of guidance on when it's ready to have the judge sign, after the objection period is over. Today, once the forms are filed and a notice filed – to solicit any objections – if none, there is no court hearing needed. So, it sat a bit while the Court staff was itself verifying everything was in order. It was, but even they were not exactly sure and that led to some delay, plus all the COVID-19 pro-

cessing delays. It helped a lot that the clerk’s office opened back up in June by appointment, so I could talk in person with a clerk and iron anything out, quickly, within a day or two. Mark: Well, so I add it up, just court and filing fees, its $435 to the court, $40 per each added certified copy, $38 to DMV, $140 to the U.S. Passport Office, $23 for a new birth certificate, $25 for each added certified copy of a birth certificate, and some postage and

Paula: Well, and you explained this, with COVID-19 making in-person clerk visits im-

legwork. Maybe $750 total unless the court

possible, it was hard to know how long this was going to take. We submitted it in April

do this by themselves, in pro per, selfrepresented? Can it be done?

and got the order in August, so four months, and we each had to make some calls to see

Allison: Absolutely. It takes some patience

what was up. So that was a bit unexpected. I thought even with COVID-19, two months, max. So, I was pretty far along as a woman before the paperwork caught up, the order that is, to who I had become, and really was. Allison: Yes, I agree with Paula. In fact, with the new streamlined forms, when I called to see the status, the clerk did mention that they were not sure exactly if more was need-

filing fee gets waived. Allison, could a person

reading the forms and instructions, but there are many resources out there now aimed at helping people with these forms, plus clinics like at UC Berkeley that are specialized selfhelp clinics just for name and gender change and gender marker documentation. And we have the Legal Self-Help Center also, at the Civic Center: Marin County Superior Court – Legal Self-Help Center. So yes, it can be done.

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Paula: Don’t forget – I’m married, so I also

had to change our marriage certificate, to now reflect my legal name. That was another step. Mark: Yes – I looked it up, as this piece Paula you took care of on your own with your spouse. Back to California’s Name Equality

all are.

List of Resources: National Center for Transgender Equality information, self-help guides, documentation information California Court Website information on

Act of 2017. You submit your request with a

Name Change

certified copy of your name change court or-

California Department of Public Health, to

der to the California Department of Public

obtain new copy of Certified Birth Certificate

Health, Vital Records, and the County Clerk/ Recorder where the marriage license was is-

California Department of Motor Vehicles to

sued, and indicate the desired name change. It’s no different than when someone keeps their maiden name upon marriage, or decides after marriage to adopt the other spouse’s last name, or change back to the last name before marriage. A request coupled with proof of legal name change should do it. Mark: Paula, any final thoughts on this, so others can learn about what you just got done?

obtain new copy of Driver’s License Social Security Administration to obtain new Social Security Card U.S. Department of State for obtaining new Passport UCSF Article about the California Gender

Recognition Act Marin County Superior Court Legal Self-Help Information View this article at Marinbar.org

Paula: I appreciated your and Allison’s help. There is so much to gender change, from medical, to telling people, to life changes and spiritual journey, to self. It was good to have this one less thing that I had to do in the midst of my own personal changes and evolution of who I really am. And, it also was nice to have your and Allison’s support along the way for my own decision to change gender and name. Allison would kid and laugh telling me that you sometimes slipped back to “Paul” and she’d correct you and you’d mutter, “I know, darn it, working on it.” We

As an attorney since 1986, Mark Rice has over 450 days in trials and arbitrations, in addition to mediations. Mr. Rice’s trial experience includes all matters of business disputes, with a specialty in construction disputes in the public and private works sectors, bid disputes, real estate, complex business torts, collections, and employer defense related matters for corporate and business clients. Mr. Rice serves as corporate counsel to many small to mid-size firms, drafts contracts, and performs corporate compliance reviews, acting as a go to advisor for daily troubleshooting or strategic mapping against risk. In addition to his corporate, litigation and trial work, Mr. Rice has written and presented seminars on mechanics liens, bonds and stop notices, is a member of trade organizations such as the AGC Legal Advisory Committee, and is involved in community and nonprofit organizations. WEBSITE

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The Marin Lawyer December 2021

Articles inside

2021 Employment Law Legislative Update

New California Laws

Editor’s Introduction: The New

President’s Message: Signing Out

Marin Superior Court Update

2021 Bay Area MCLE Conference

How to File and Obtain a Name and Gender Change Petition and Order