Lawyer SACRAMENTO
SUMMER 2021
2021 SCBA Judge of the Year
Russell L. Hom
Photo by Roger Ele | Eleakis & Elder Photography
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INDEX SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE
SUMMER 2021 VOLUME 121, NUMBER 2
Lawyer SACRAMENTO
COVER STORY 8
Judge Russell L. Hom - 2021 SCBA Judge of the Year
FEATURE ARTICLES 12 Remembering Justice Cruz Reynoso (1931-2021) - A Life of Righting Wrongs 16 Pathways to the Bench: A Judicial Perspective 18 Key Points on Drafting an Enforceable Settlement Agreement at Mediation 22 Utilizing Conservation Easements to Protect Land and Create Access to Native American Cultural and Ceremonial Gathering Sites Photo by Roger Ele Eleakis & Elder Photography
CAPITAL PRO BONO 6
Bracing for a Bankruptcy Barrage
DIVISION 15 Solo/Small Practice Division Update
EDITORS Ellen Arabian-Lee Arabian-Lee Law Corporation Kim Garner Garner Estate Law EDITORS EMERITAE Betsy Kimball Heather Hoganson Editor@sacbar.org
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PRODUCTION DESIGN Milenko Vlaisavljevic (916) 604-9682 milenko@sacbar.org ADVERTISING SALES, MEMBERSHIP, EVENTS, MEMBER CLASSIFIED ADS 916-564-3780 support@sacbar.org
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SCBA OFFICERS Trevor Carson - President Bryan Hawkins - 1st Vice President Andi Liebenbaum - 2nd Vice President Betsy S. Kimball - Secretary/Treasurer FEE ARBITRATION Larry Doyle (916) 604-9726 feearb@sacbar.org
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12 Sacramento Lawyer welcomes letters and article suggestions from readers. Please e-mail them to editor@sacbar.org. The Sacramento County Bar Association reserves the right to edit articles and letters submitted for publication. Please contact the SCBA at 916-564-3780 for deadline information. Web page: www.sacbar.org. Caveat: Articles and other work submitted to Sacramento Lawyer become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Editors, by pickup at the SCBA office only.
18 Sacramento Lawyer (USPS 0981-300) is published quarterly by the Sacramento County Bar Association, 8928 Volunteer Lane, Suite 250, Sacramento, CA 95826. Issn 1087-8771. Annual subscription rate: $6.00 included in membership dues, or $24.00 for nonmembers. Periodicals postage paid at Sacramento, California. Postmaster: Send address changes to Sacramento Lawyer, 8928 Volunteer Lane, Suite 250, Sacramento, CA 95826. Copyright 2021 by the Sacramento County Bar Association.
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CAPITAL PRO BONO
Bracing for a Bankruptcy Barrage
Heather Tiffee is the Managing Attorney of Capital Pro Bono. She can be reached at htiffee@capitalprobono.org.
By Heather Tiffee
S
o far, 2021 has progressed much like 2020 with varying degrees of business and court closures, countless Zoom meetings, and an endless sea of masked faces. However, as we look to the fall and winter, many of the current legal protections for debtors and eviction/foreclosure moratoriums are ending, leaving us to wonder: What will so many people do with all this debt? Since 2003, Capital Pro Bono has assisted low-income debtors in the Sacramento region in filing for Chapter 7 bankruptcy protection. Using a combination of staff and volunteer attorneys, CPB has helped hundreds of people get a fresh financial start and quite often a new lease on life, free from
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the damaging health effects of constant creditor harassment. Staff at CPB’s Debt Collection Defense/ Bankruptcy Clinic have seen a lot over the last two decades. Much of the consumer and lender behavior from before and during the Great Recession of 2007-2009 is repeating itself. We anticipate a similar flood of indigent individuals in our area needing bankruptcy relief once the COVID-19 related safety nets are lifted. In order to meet this anticipated, and possibly unprecedented, increase in demand, WE NEED YOU! If you are a bankruptcy practitioner in the Sacramento region, please contact me. CPB staff will gather all the credit reports and financial information from the
SACRAMENTO LAWYER | Summer 2021 | www.sacbar.org
clients, but we need you to prepare the paperwork and advise them through the process. If you have a paralegal or secretary that can prepare the paperwork under your supervision, that works too. If you are interested in this volunteer opportunity, please contact Heather Tiffee at htiffee@capitalprobono.org. Your time and expertise can make all the difference in our clients’ lives.
Local Solutions. Global Reach.
FEATURE ARTICLE
Richard K. Sueyoshi Judge of the Superior Court, Sacramento County
Judge Russell L. Hom 2021 SCBA JUDGE OF THE YEAR By Judge Richard K. Sueyoshi
A Persevering Leader in an Unprecedented Time As the hours passed on Thursday, March 19, 2020, Sacramento Superior Court Presiding Judge Russell Hom swiftly moved through a series of meetings and phone calls while confronted with a question that no Presiding Judge before him had ever faced: Should he order the immediate closure
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of all Sacramento Superior Court facilities to protect the health and safety of jurors, parties, attorneys, court employees and the general public in face of the COVID-19 pandemic? Judge Hom recalls the uniquely turbulent time for the court and community: “At that very early stage, there was confusion regarding the extent of the public health
SACRAMENTO LAWYER | Summer 2021 | www.sacbar.org
“Judge Hom is the epitome of what you want in a judicial officer. He is a total class act, calm, balanced, never gets flustered, and has a sense of humor.” Roger Dreyer of Dreyer Babich Buccola Wood Campora LLP.
“His skill and ability as a trial judge, settlement judge, and judicial administrator meet the highest of standards and serve as a template for those who follow in his path.” David Mastagni of Mastagni Holstedt.
risk. My decision needed to be based upon the science and protecting the health and safety of our court personnel and the public. While we had previously taken important steps to reduce our capacity, my final decision to close our buildings came after many consultations and a final walk through the main courthouse assessing the risks. I decided that we needed to close our buildings and immediately work on creating safer alternatives for delivering court services to the public.” Judge Hom’s unprecedented decision proved to be the right one as the Sacramento County Public Health Officer issued its “stay-athome order” on the same day amid the state of emergency previously declared by the President and Governor. From the moment of the court closure, emergency services continued uninterrupted through a single department — Judge Hom’s own courtroom. Judge Hom immediately shifted the court leadership’s focus on developing new and innovative ways to provide court services that would also protect the health and safety of everyone involved. This led to the development and implementation of remote technology-based hearings which continue to be used courtwide. Under Judge Hom’s steady leadership, the Sacramento Superior Court recreated and reopened nearly all services under new pro-
Young Russell Hom (front row, far left) with family and friends
tocols providing a high level of service balanced with public health orders and guidelines. Attorneys and judges widely commend Judge Hom’s ongoing leadership during what has been the most trying time for the court. Karen Goodman, ABOTA President for the Sacramento Valley Chapter, observed that Judge Hom’s “leadership in an unprecedented situation has been outstanding.” “Since his appointment to the bench in 2002, Judge Hom has been regarded as an outstanding judge who continues to promote the importance of a fair legal system accessible to everyone.” Mark Slaughter, Supervising Attorney at the Office of the Public Defender, described Judge Hom as a “ubiquitous champion of the legal system, spending countless hours meeting with
judges, lawyers, bar organizations, county agencies, and public groups to openly discuss the solutions to many challenges presented by social justice demonstrations and the COVID-19 pandemic.” Court CEO Judge Lloyd
Judge Hom
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Judge Hom, Judge Raoul Thorbourne, Justice Elena Duarte and Judge Thadd Blizzard
Connelly (Ret.) commented, “Judge Hom remained calm and demonstrated his profound wisdom during the global pandemic. With a steady keel, he kept fundamental and necessary court services up and running while he piloted this court through troubled waters.” Judge Hom’s own colleagues similarly described the value of his leadership, as Judge Shama Mesiwala stated, “what we have gained as a legal community has been priceless: a functioning superior court that has thrived during the pandemic in providing effective access to justice for all while remaining vigilant of the health threat.” An Exemplary Jurist and Problem-Solver After graduating from Hastings College of Law and practicing for two decades as a prosecutor, criminal defense attorney, and civil litigation and trial attorney, Judge Hom joined the Sacramento Superior Court in 2002. Since joining the bench, Judge Hom has presided over hundreds of trials including some of the most difficult and complex cases. Judge Hom says that he approaches each case as a problem-solver with an eye towards facilitating the resolution of disputes whenever possible. In exploring
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potential settlement in civil cases, for instance, Judge Hom stated, “it is important for me to have a clear understanding of the motivation of each party. Often what is driving the respective positions of the parties is not directly tied to money. It is important for the parties to know that I understand their needs and can be trusted in assessing their case and advocating for a resolution that is reasonable from the perspectives of all sides.” Attorney Jeffrey Williams described his experience with Judge Hom in resolving a difficult dispute: “The parties were miles apart, and I had no hope at all that the case was going to settle. But Judge Hom’s tenacity and his stubborn refusal to take ‘no’ for an answer proved me wrong. In short, he’s a fantastic settlement judge.” When cases proceed to trial, Judge Hom is lauded for his out-
Judge Hom and Judge Shama Mesiwala
SACRAMENTO LAWYER | Summer 2021 | www.sacbar.org
Judge Hom and Justice Art Scotland (Ret.)
standing skills as a trial judge. As conveyed by trial attorney Paul Marron, Judge Hom’s “intellectual curiosity, attention to detail, mastery of the legal issues and engagement on the case was deeply appreciated by all counsel. Amongst experienced trial attorneys, he was the best, most insightful observer of testimony in the courtroom. It was a privilege to try a case in his department.” Indeed, Judge Hom’s skills as a trial judge are widely respected as Judge Geoffrey Goodman noted, “for years, he has trained our newly appointed judges and he often lectures in judicial training programs throughout the state.” A Champion of Diversity and the Community Judge Hom has always viewed his role and responsibility to ex-
Judge Hom and Judge Emily Vasquez
“I am familiar with Judge Hom’s performance as a trial judge and it is outstanding,” commented Justice Ronald Robie of the Third District Court of Appeal. “Judge Hom is a pillar of our greater legal community, a highlyrespected jurist and a clear-eyed and ethical leader” Sacramento Superior Court Judge Larry Brown.
tend far beyond presiding over cases. Prior to joining the bench, Judge Hom took leadership roles in many non-profit community and professional organizations and received national awards and honors for his service. Since he joined the court, Judge Hom’s commitment to diversity, inclusion and the community continued unchanged: “As a judicial officer, I understood my obligation extended beyond the four walls of the courthouse and with this position came a responsibility to the community. I value the importance of serving as a mentor to others and using what equity I may have to promote a profession and judiciary that is diverse and inclusive.” In reflecting on Judge Hom’s community service, Attorney Jerry Chong commented, “his thoughtfulness and courteous emphasis on diversity, equality and inclusion have advanced the administration of justice in Sacramento County, local law schools and the judiciary.” Similarly, Judge Judy Hersher observed, “while his work at the court and in the community over the years in support of minority
Judge Hom and Judge Sueyoshi
law student programs, training and educational opportunities has never wavered, this past year has proven him a strong, thoughtful and highly effective Presiding Judge in very, very challenging times impacting the very same minority communities.” Attorney Andre Campbell commented, “Judge Hom is well-known in the Sacramento legal community and beyond for his unswerving commitment to diversity, equality and inclusion.” UC Davis law student Kristi Thielen added, “I am one of the hundreds of students and practitioners who consider Judge Hom a mentor. He has also become my career coach, confidant, and number one supporter. There is no doubt that Judge Hom places great time and value into the legal profession’s future.” These well-deserved accolades are among many that reflect Judge Hom’s invaluable commitment and contribution to our community. SCBA’s 2021 Judge of the Year While Judge Hom’s excellent leadership through the
past year is widely acknowledged, he readily credits Lloyd Connelly, his supervising judges, colleagues and staff. Judge Hom notes, “the most important lesson that we learned is that when faced with a crisis, we can persevere. Our ability to keep a functioning legal system open during the pandemic was due to the dedicated public servants who work for the court and the legal community that worked collaboratively with us to get through the worst of the crisis.” On a more personal note, although his “spare time” has been scarce in the past year, Judge Hom enjoys spending time with his wife, Shirley, his soon-to-be-college-bound daughter, Kristi, and his mother and extended family in the Bay Area. As demonstrated by Presiding Judge Russell Hom’s exemplary leadership and judicial career, the Sacramento County Bar Association has made an excellent selection for its 2021 Judge of the Year.
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FEATURE ARTICLE
Remembering Justice Cruz Reynoso (1931-2021) A Life of Righting Wrongs
Emily E. Vasquez Judge of the Superior Court, Sacramento County.
By Judge Emily E. Vasquez
J
Justice Cruz Reynoso
ustice Cruz Reynoso, the son of immigrant farmworkers, who labored in the fields as a child and grew up to counsel U.S. Presidents, California Governors and to serve as the first Latino Justice on the California Supreme Court, died on May 7, 2021 at the age of 90. The judiciary, legal profession, our state and nation mourn the loss of this giant civil rights advocate. His contributions to our country and state are indelible. He changed the lives of so many for the better. To those who had the privilege to know him personally, Justice Reynoso was one of the most inspiring and remarkable people that they would ever meet. Where I come from, Justice Reynoso was a legend and a larger-than-life icon in the judiciary, legal profession and the communi-
Justice Reynoso and California Supreme Court Colleagues
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ty-at-large. His “justice bone” led him to a life dedicated to ensuring that all persons are equal before the law and share in the blessings that have been bestowed to our country and state. Born in Brea, California on May 2, 1931, Justice Reynoso was one of eleven children who spent his summers with his family working in the fields of the San Joaquin Valley. He spent his life fighting the inequities and discrimination he first encountered during his childhood. He received a scholarship to attend Pomona College, graduating in 1953. After serving two years in the United States Army Counterintelligence Corps, he enrolled at the University of California, Berkeley School of Law, where he was the only Latino in his 1958 graduating class. Later in his career, Justice Reynoso would work to increase
Justice Cruz Reynoso performed wedding for Judge Emily E. Vasquez and Ralph Lightstone
the diversity of the student body at his alma mater and other law schools and to guide many minority students toward the law. Many years later in meetings with Berkeley law students, he would joke that if he had been in the La Raza Law Students Association while he was at UC Berkeley, he would have been the president, vice-president, treasurer, and secretary. After graduation from law school, Justice Reynoso and his wife Jeannene moved to El Centro, in California’s Imperial Valley, where he started his own law practice. In 1968, he became director of California Rural Legal Assistance (CRLA), a trailblazing legal services agency and the first statewide federally funded legal aid program in the country, which continues to this day to provide legal services to rural poor communities. As Executive Director for CRLA, he oversaw efforts for farmworkers’ access to sanitation facilities in the fields, to ban the use of the carcinogenic pesticide, DDT, and obtained an injunction that banned schools from administering IQ tests in English to Spanish-speaking students and then placing those Spanish-speaking students in classes for the mentally challenged when the students were simply new English learners. After leaving CRLA in 1972, Justice Reynoso taught law at the University of New Mexico School of Law before he was appointed by Governor Jerry Brown to the state’s Third District Court of Appeal in Sacramento in 1976. In 1982, Governor Brown appointed him to the California Supreme Court, the first Latino justice in the high court’s history. Governor Brown described him as “the most outstanding candidate I could nominate” . . . [and] “a man of outstanding intellect, superior judicial performance, high integrity, and . . . rare personal qualities.” He earned respect for his attention to detail, conscientious
Elaine Rowen Reynoso and Justice Cruz Reynoso on their wedding day
approach as a jurist, and his compassion during the five years he served on the state’s high court. But in 1986, he along with Chief Justice Rose Bird and fellow Associate Justice Joseph Grodin all failed to win confirmation at the polls, following an intense, divisive, high-profile, and well-funded campaign against them. Kevin Johnson, Dean of the UC Davis School of Law, explained that Justice Reynoso was a “fervent supporter of an independent judiciary and did not believe that justices should run political campaigns and raise money. It was important to him to maintain his integrity and his belief in an independent judiciary. He sacrificed his career on the California Supreme Court for that overarching principle.” After leaving the bench, Justice Reynoso practiced and taught law at UCLA and later at U.C. Davis where students loved him and bestowed “Professor of the Year” awards on him. He served on the U.S. Commission on Civil Rights and the United Nations Commission on Human Rights. In 2000, President Bill Clinton awarded him the Presidential Medal of Freedom, our country’s highest civilian honor for his significant contributions to public service and our nation. The removal of Justice Reynoso from the California Supreme Court was not a defeat for him because it allowed him to advocate for social justice, civil rights, and the legal
representation of the poor, no longer constrained by the limitations placed on judges. Indeed, in 2014, as part of his National Hispanic Hero Award ceremony in Chicago, Justice Reynoso described his longtime commitment to social justice: “That means real justice, not just legal justice. Are we doing what we should in terms of medical attention to all of our people? Are we doing what we should in terms of educating our young people? Are we doing everything we need to do in terms of making sure the laws truly represent the interest of the people? Do we have real justice for all the people in this state and this country and this world? That’s really what I’ve devoted my life to.” Justice Reynoso’s legacy has been acknowledged and celebrated widely in our state and nation. In 2010, Abby Ginzberg debuted the award-wining documentary film, Cruz Reynoso: Sowing the Seeds of Justice. In 2016, the “Sacramento La Raza Lawyers Association” changed its name to the “Cruz Reynoso Bar Association” recognizing that Justice Reynoso’s spirit and “justice bone” live on in all of us and to continue his advocacy for social justice. Justice Reynoso has been a role model and inspiration to many who followed him, including myself. I come from a background similar to Justice Reynoso’s background. My parents were immigrant farm workers; and I remember as a young child, my family and I traveling from town to town in the San Joaquin Valley following the harvest of the crops. It was very inspiring for me to meet Justice Reynoso and know that his challenges did not stop him and that he grew up to be a champion for justice and one of the most distinguished jurists and leaders in our nation. Besides the legend that he will always be, Justice Reynoso was also a generous, thoughtful, collegial and remarkable human being with
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a deep understanding and appreciation of all people, no matter their station in life. My story about Justice Reynoso is about one very memorable afternoon 35 years ago, when Justice Reynoso performed the lovely wedding ceremony for my husband and me. Because my parents spoke only Spanish, Justice Reynoso conducted the service in English and Spanish, and then he took the time to talk to my parents at length in Spanish during the reception. Indeed, during the reception, I would glance over at my parents and Justice Reynoso, and they were chuckling and laughing, like old friends. My parents were so touched and impressed with his courtesy and knowledge. They had never met a judge who spoke Spanish. They had never met a judge of Mexican descent like them. He left a lasting impression on them. Years later, my mother would tell me that she cried the night she learned that Justice Reynoso had not been confirmed by the voters to retain his seat on the Cal Supreme Court because she recognized the huge loss for our state. Many years later in 2008, Justice Reynoso asked me to preside over his wedding to Elaine Rowen, after his first wife passed. It was such an honor for me to reciprocate the huge favor that he had accorded my husband and me many years before. I distinctly remember Justice Reynoso and Rowen coming to my chambers at the court for the ceremony. They were both “dressed to the nines” and they were so in love. I have very fond memories of their wedding. Let us together celebrate the life and work of this amazing scholar, wise jurist, civil rights advocate, and inspiring role model for generations of judges and lawyers that came after him. He always acted with courage, dignity, humility, and fairness. His shining example reminds us all to bravely lead with integrity in all that we do and together we can move this nation closer to equal justice under law.
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DIVISION NEWS Alexandra Baron, Board Member of the SSPD, practices family law in the Sacramento region. She may be contacted at alexandra@baronfamilylaw.com.
Solo/Small Practice Division Update By Alexandra Baron
Upcoming Mixer! On August 19th, the Solo/ Small Practice Division (“SSPD”) is jointly hosting its fall mixer with the Business Law Section. We look forward to seeing everyone again in person after a long year of being virtual. The SSPD’s mixers are a great way to network and socialize with other local attorneys. Many SSPD members have reaped the benefits of referrals from other SSPD members, after meeting through SSPD events. Advancing Your Law Practice with the Solo/Small Practice Division On March 3rd, Kenneth E. Bacon, senior counsel at Mastagni Holstedt and a certified specialist in legal malpractice law, presented on “Ethically Handling Advance Deposits and Credit Card Payments.” With the recent revisions
to California’s Rules of Professional Conduct, this was an extremely informative and practical presentation helping to ensure members remain in compliance with the guidelines. On April 7th, Karen Goodman of Goodman Law Corporation, presented on “Transitioning Your Solo Practice in a Virtual World – How to Adjust to the Changing Legal Profession.” Goodman, also a certified specialist in legal malpractice law, highlighted the importance and ethical obligations of planning for emergencies, the adjustments to the legal profession post-pandemic and the realities and opportunities regarding succession planning. Goodman gave attendees critical and practical information which is often overlooked by attorneys. Michael Chastaine of Chastaine Law Office has given SSPD members several very helpful presenta-
tions on “Increasing Profitability,” focusing specifically on small law offices. Later in the year, the SSPD board’s very own Tyler Dahl of Law Offices of Tyler Q. Dahl will discuss the “Top 5 Technology and Ethics Issues” for small law firms. If you are not a member of the SSPD and would like to be, simply let SCBA know you would like to be included. There is no additional fee for membership in our section. Let’s Collaborate! The SSPD is committed to providing its members with the most relevant educational and networking opportunities possible. To that end, please feel free to contact SSPD board members to discuss possible topics and/or networking opportunities. In the meantime, please check the SCBA calendar for upcoming SSPD events!
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FEATURE ARTICLE
Pathways to the Bench: A Judicial Perspective By Misha D. Igra
Judge Judy Holzer Hersher (Ret.)
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n April 9, 2021, the Leonard M. Friedman Bar Association hosted a virtual event, Pathways to the Bench: A Judicial Perspective. The program was moderated by Sacramento Superior Court Judge Judy Holzer Hersher (Ret.), and featured presentations by Luis Céspedes, Judicial Appointments Secretary to Governor Gavin Newsom, the Honorable David Rosenberg, Judge of the Yolo County Superior Court, the Honorable Garen Horst, Judge of the Placer County Superior Court, and the Honorable Steven Gevercer, Judge of the Sacramento County Superior Court. Secretary Céspedes conveyed the Governor’s inclusive vision
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Misha D. Igra is the President of the Leonard M. Friedman Bar Association. She can be contacted at jsacbar@gmail.com.
Judicial Appointments Secretary Luis Céspedes
Judge Steven Gevercer, Sacramento County Superior Court
for the bench. He shared data about recent appointments, and information about jurists with varying backgrounds, experience, and professional paths. Secretary Céspedes advised that the appointment process involves several stages of review before a candidate is presented to him, and it can be a lengthy endeavor. He encouraged those who are interested in a judicial appointment to do their research, put their best foot forward in their judicial applications, be patient, and refrain from contacting his staff while an application is pending. The three judges who followed Secretary Céspedes’ presentation explained their unique pathways
to the bench and imparted advice to the assembled Zoom audience. Judge Rosenberg described his lengthy career in public service, including serving as Mayor of the City of Davis, Chief of Staff to Governor Jerry Brown, and a Senior Advisor to Governor Gray Davis, who appointed Judge Rosenberg to the Yolo County bench in 2003. Judge Rosenberg discussed the importance of having a somewhat thick skin, and how he learned from Governor Davis’s gracious and dignified demeanor amid a rancorous recall election. Judge Horst described his own pathway to the bench, which necessitated hard work, patience, and a rare opportunity. Judge
SACRAMENTO LAWYER | Summer 2021 | www.sacbar.org
Horst was elected to the Placer County bench in 2012, following the public censure of former Judge Joseph O’Flaherty. Before running for election, Judge Horst served as a Placer County Deputy District Attorney for eighteen years and had unsuccessfully applied for a judicial appointment earlier in his career. Judge Horst imparted that the “seasoning” that came with experience and patience helped to ready him for the bench, and continues to benefit his judicial temperament. Judge Gevercer was appointed to the bench during Governor Jerry Brown’s second governorship, following a lengthy career that included private practice, serving as a public defender, and over twenty years with the California Department of Justice. Judge Gevercer recommended that attorneys keep a journal of their cases, including the names of the parties, opposing counsel, issues involved, and other information. Such a journal may later prove helpful in completing an application for judicial appoint-
Judge David Rosenberg, Yolo County Superior Court
Judge Garen Horst, Placer County Superior Court
ment. Judge Gevercer also emphasized the importance of humility and self-reflection. At the close of the program, Misha Igra, President of the Leonard M. Friedman Bar Association, presented a plaque to Judge Hersher. The award recognizes and expresses appreciation for Judge Hersher’s support of the Jewish
bar association since its founding. Secretary Céspedes, the judicial panelists, and everyone assembled on Zoom congratulated Judge Hersher and wished her all the best for a well-earned retirement. For information and a membership application to the Leonard M. Friedman Bar Association, please visit www.jsacbar.org.
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FEATURE ARTICLE
I Settled My Case! Now What? Key Points on Drafting an Enforceable Settlement Agreement at Mediation By Robert Jacobs
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he posturing, negotiations, drama and stress are over. The mediation was successful. You’ve settled the case. Now what? Nobody wants to settle a case only to have the settlement fall apart later on. Everybody wants a settlement that sticks. But no settlement is bulletproof. We all know what happens. Parties settle their case – and
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then (assuming no confidentiality agreement) they go home and talk about it with their parents, their children, their siblings or their friends. Sometimes these are happy conversations. Other times not so much. Buyer’s remorse (and settler’s remorse) can be a real thing. What happens when someone regrets settling a case because after talking it over they think they paid too much – or accepted too little?
SACRAMENTO LAWYER | Summer 2021 | www.sacbar.org
Robert Jacobs is the principal of Law Office of Robert B Jacobs. After litigating for more than 30 years, he now mediates challenging real estate, business, construction, personal injury, trust and probate cases. He can be reached at bob@attorneymediator.com.
What do they do then? Lawyers are paid (in part) to dissect documents and look for loopholes and imperfections. We are paid to fight, and if our client wants to back out of a settlement, then we may end up placing a magnifying glass over the written settlement agreement in an effort to break it up. After all, a settlement agreement is – well – an agreement, which means it’s a contract. And
as we all know, any contract is subject to possibly being broken. So how do you wrap up your settlement agreement in “armored legalese” so that if it’s attacked, any stones or arrows just bounce off of it instead of making a major headache for you and your clients? Know and follow key rules that govern the admissibility and the enforceability of settlement agreements that are signed at mediation. Make it Admissible. In the event of a dispute, the world’s most bulletproof settlement agreement is useless if it’s not admissible in court. Do attorneys or their clients ever regret signing a settlement agreement and then seek to thwart its enforcement based on inadmissibility? The answer is a clear “YES.” 1 Evidence Code section 1119(a) provides that nothing said in the course of a mediation is admissible, so an oral settlement agreement at mediation isn’t worth the paper it’s not written on. Evidence Code section 1119(b) provides that any “writing” prepared in the course of a mediation is inadmissible. A settlement agreement is unquestionably a “writing” and is therefore made inadmissible by this section unless an exception applies; Evidence Code section 1123 provides that exception. Section 1123 provides that a “written settlement agreement” prepared “in the course of, or pursuant to, a mediation” is not made inadmissible by the mediation sections of the Evidence Code if the following requirements are met: First, the settlement agreement must be signed “by the parties.”2 Second, the written settlement agreement must satisfy any of the following three criteria3: (a) The settlement agreement provides that it is admissible or subject to disclosure (or words to that effect)4; or (b) The settlement agreement pro-
vides that it is “enforceable” or “binding” (or words to that effect); or (c) All parties to the settlement agreement expressly agree in writing, or orally, to its disclosure. However, such an oral agreement must satisfy each of the following four requirements: i) The oral settlement terms must be recorded by a court reporter or by other “reliable” means of audio recording, and ii) The terms of the oral agreement must be recited on the record in the presence of the parties and the mediator, and the parties must express on the record that they agree to the terms, and iii) The parties expressly state on the record that the agreement is enforceable or binding, or words to the effect, and iv) The recording must be reduced to writing and the writing must be signed by the parties within 72 hours after it is recorded5. Wow! Those are a lot of requirements for enforcing an oral settlement agreement. Miss any one of them and you’re out. Parties might orally settle a case on the record if they are at the courthouse for a settlement conference, but virtually all mediated cases are settled by written settlement agreement. Are these real considerations? Will a court really refuse to admit a hard-fought signed and written settlement agreement if the other side backs out and refuses to perform? The answer is unquestionably yes. The legislature and the courts mean business about these admissibility requirements. See Fair v. Bakhtiari (2006) 40 Cal. 4th
189, 197, where the Supreme Court declined to enforce a written settlement memorandum because it failed to incorporate all of the elements which Evidence Code section 1123 requires in order to create an exception to the nearly absolute ban on admissibility of documents prepared at mediation which is established by section 1119. Not only was the settlement agreement in Fair signed by the parties and the mediator, it also included an arbitration provision. In holding the settlement agreement inadmissible, the California Supreme Court held that such an arbitration provision by itself is insufficient to show that the parties intended to be bound by the settlement agreement. Instead, “a writing must directly express the parties’ agreement to be bound by the document they sign” and “words to that effect” may be insufficient if they don’t clearly show this express intent to be bound. The upshot? Either include one of the above-described elements of 1123(b) in your settlement agreement or risk having it deemed inadmissible in subsequent court proceedings (and it’s clear that an inadmissible settlement agreement is unenforceable). Are there other considerations to enforceability of settlement agreements? Yes. “A settlement agreement is a contract, and the legal principles [that] apply to contracts generally apply to settlement contracts.” Stewart v. Preston Pipeline Inc., (2005) 134 Cal. App. 4th 1565, 1585. A settlement agreement’s “validity is thus ‘judged by the same legal principles applicable to contracts generally.’” Id. The required elements of a valid, binding contract include consideration and mutual assent, but a full discussion of the elements and enforceability of contracts is outside the scope of this ar-
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ticle. Instead, this article will focus on only one issue in the enforceability of written settlement agreements: mutual assent as manifested by signatures. Mutual assent to most written contracts is most frequently expressed by having the contracting parties sign the contract. But mutual assent can be manifested in other ways so that parties can in some situations agree to and be bound by a contract through behavior other than affixing their signature to the contract document itself. In Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565, 1584, a mediation concluded with a written settlement agreement that was signed by the plaintiff, plaintiff’s counsel and defense counsel (but not by defendant). The defendant thereafter repudiated the settlement agreement by claiming 1) it was inadmissible under Evidence Code section 1119 as a written document prepared in the course of mediation and 2) it was signed only by his attorney and not by himself. Litigation was filed and an appeal was taken. The court of appeal held the signature of defendant’s counsel was sufficient to qualify the settlement agreement for the mediation confidentiality exclusion provided by Evidence Code section 1123 so that it was admissible. Stewart v. Preston Pipeline Inc. supra, 134 Cal. App. 4th at 1583-1584. The Stewart court noted that in order to be enforceable under CCP section 664.6, a settlement agreement must be signed by each of the parties personally (and not by their attorney). Id. at 1584 citing Levy v. Superior Court (1995) 10 Cal. 4th 578, 584. The Stewart court then further cited Levy for the proposition that settlement agreements which do not qualify for enforcement pursuant to CCP section 664.6 because they are not signed by the litigants personally
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may nevertheless qualify for enforcement by alternative methods such as by motion for summary judgment, a separate suit in equity or an amendment of the pleadings. Stewart v. Preston Pipeline Inc., supra at 1584. By so holding, the Stewart court expressly confirmed that impediments to enforceability under CCP section 664.6 (such as a lack of the litigants’ personal signatures) may be purely procedural in nature such that some settlement agreements that may not satisfy the necessary elements for enforcement pursuant to CCP section 664.6 may nevertheless still be enforceable (via an alternative method). Following a successful mediation many attorneys will include in the written settlement agreement a provision that the agreement may be enforced pursuant to motion under CCP section 664.6. The language of CCP section 664.6 provides that “If parties to pending litigation stipulate, in writing . . . for settlement of the case, the court . . . may enter judgment pursuant to the terms of the settlement.” In Levy v. Superior Court (1995) 10 Cal. 4th 578, the Supreme Court held that the word “parties” as used in CCP section 664.6 means the litigants themselves and not their attorneys. The Levy opinion thereby foreclosed enforceability of written settlement agreements through a section 664.6 motion if the written settlement agreement was signed by anyone other than by the parties themselves. However, pursuant to Stewart, a settlement agreement signed by an attorney (or by another authorized representative) may still be enforceable through court procedures other than a CCP section 664.6 motion6. The California Legislature recently amended CCP section 664.6 by broadening the definition of “parties” to include an attorney who represents a party. CCP sec-
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tion 664.6(b)(2). This amendment became effective January 1, 2021. By making this change, the Legislature brought the enforcement procedures available through section 664.6 more in line with effect of the Stewart decision (which expressly recognized the potential enforceability of a settlement agreement through means other than section 664.6 when the agreement was signed by a party’s counsel instead of by a party). Now settlement agreements at mediation can be enforced pursuant to section 664.6 if for whatever reason one of the parties is not personally present at the mediation (or is otherwise available to sign the settlement agreement) and the settlement agreement is signed by their attorney. This new arrangement provides an opportunity for abuse. Sometimes, the interests of a client and their attorney may differ; for several different reasons an attorney may be more interested in settlement than a client is. The possibility of such abuse is specifically addressed in the 2021 amendment to section 664.6 by providing that an attorney who signs a settlement agreement without the client’s “express authorization” is subject to professional discipline. By including this provision, the legislatures strongly disincentivized California attorneys from making any rogue signatures on settlement agreements that they may otherwise be tempted to make. This “hammer” of potential professional discipline may create a trap for the unwary practitioner. Attorneys won’t have a professional discipline problem with clients who never dispute their attorney’s signature on a settlement agreement at mediation. But what about a client who experiences “buyer’s remorse” and alleges they never authorized their attorney to sign a settlement agreement
at mediation? If an attorney signs a settlement agreement at mediation on behalf of a client, and if that client becomes unhappy and complains to the State Bar by claiming that the attorney signed the settlement agreement without express authority, what happens? Since CCP section 664.6(d) now expressly provides for attorney discipline, there’s a real chance the State Bar would investigate such a claim. If the settlement agreement signed by the attorney states that it’s intended to be binding (or otherwise qualifies for the confidentiality exceptions provided by Evidence Code section 1123) then such a settlement agreement could properly be admitted into evidence by the State Bar court, since it would qualify for an exception to the confidentiality provisions of Evidence Code section 1119. Arguably the client’s statement to the State Bar would not be subject to the confidentiality provisions of section 1119, because the client would be asserting a negative: i.e. “I never authorized the attorney to sign the settlement agreement” and Evidence Code section 1119 only bars evidence of anything said at mediation. The client would not be relying on nor communicating anything said at mediation, but would instead be relying on a lack of something being said; therefore, the client’s complaint may not be subject to mediation confidentiality under section 1119. However, once the client has made an allegation against the attorney that the attorney was never authorized to sign the agreement, the burden of proof would naturally shift to the attorney, who would need show that the client expressly authorized the attorney to sign. But Evidence Code section 1119(a) makes inadmissible anything that was said at mediation, even in an administra-
tive adjudication (which would undoubtedly include State Bar proceedings). Evidence Code section 1119(b) makes inadmissible any writing prepared in the course of a mediation. Evidence Code section 1123 only provides exceptions for settlement agreements, so a written instruction from the client authorizing the attorney to sign the settlement agreement may also be inadmissible unless such a written instruction can be construed as a “settlement agreement.” It’s a conundrum. A State Bar court may construe section 1119 differently, but under current case and statutory law there’s a real possibility that the attorney would be prevented in a State Bar court proceeding from introducing into evidence any client statement made at mediation authorizing the attorney to sign the settlement agreement. This mediation “statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” Provost v. Regents of University of California (2011) 201 Cal. App. 4th 1289, 1302 citing Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, 15. “The Legislature decided that the encouragement of mediation to resolve disputes requires broad protection for the confidentiality of communications exchanged in relation to that process, even where this protection may sometimes result in the unavailability of valuable civil evidence.” Provost v. Regents of University of California (2011) supra at 1302-1303 (citing Cassel v. Superior Court (2011) 51 Cal. 4th 113, 136). Attorneys who proceed to sign settlement agreements on behalf of their clients at mediation may want to give careful consideration as to whether or not their client is likely to claim that they didn’t authorize their attorney to sign
the agreement. It is not presently clear exactly how such attorneys may be able to defend themselves in State Bar proceedings should the client lodge a complaint with the State Bar. 1
See Fair v. Bakhtiari (2006) 40 Cal. 4th 189 for a reported case where counsel moved to block (and succeeded in blocking) enforcement of a settlement agreement on the basis of inadmissibility where the agreement was signed not only by the parties but also by the mediator. See also Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565 where a mediated settlement agreement was signed only by the plaintiff, the plaintiff's attorney and the defendant's attorney; the defendant didn't sign it. After execution of the agreement, the defendant tendered a settlement check which plaintiff refused on the basis that no settlement had been reached.
2 Note that notwithstanding the language in Evidence Code section 1123 the court in Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565 held a mediated settlement admissible under the facts of that case notwithstanding that- it was signed only by plaintiff, plaintiff’s attorney and defendant’s attorney and was not signed by defendant. In Preston the court granted defendant’s motion to amend the answer to assert the settlement agreement and then granted defendant’s motion for summary judgment; the moving party had filed alternative motions to enforce the settlement agreement under CCP section 664.6 or by way of summary judgement; the court granted the defendant’s motion for summary judgment. 3 A fourth grounds of admissibility is found at Evidence Code section 1123(d) which allows a settlement agreement to be admitted for the purpose of showing fraud, duress or illegality that is relevant to an issue in dispute. However, this fourth grounds of admissibility does not provide that the settlement agreement may be admitted solely for purposes of enforceability, thereby leaving in question whether or not a settlement agreement could be admitted into evidence for purposes of enforcement if admitted solely under this fourth exception. 4 The phrase “words to that effect” in Evidence Code section 1123 have been judicially construed to mean that “a writing must directly express the parties’ agreement to be bound by the document they sign.” Fair v. Bakhtiari, supra, 40 Cal. 4th at 197. 5 Evidence Code section 1124. 6 See Provost v. Regents of University of California (2011) 201 Cal. App. 4th 1289, 1295-1296 where the court held that a signature of a corporate officer isn’t necessarily required for enforcement of a settlement agreement under CCP section 664.6 but that the signature of a duly authorized corporate employee may be sufficient. The court noted it would be unreasonable to expect a corporate officer of Ford Motor Company or WalMart Stores, Inc. to sign every settlement agreement on behalf of those entities in order for such entities to avail themselves of the expedited enforcement procedures afforded by CCP section 664.6. Stewart v. Preston Pipeline Inc., supra, at 1297.
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FEATURE ARTICLE Ellen A. Fred is the founding partner at Conservation Partners. She can be reached at efred@conservationpartners.com.
Utilizing Conservation Easements to Protect Land and Create Access to Native American Cultural and Ceremonial Gathering Sites By Ellen Fred The Environmental Law Section hosted Ellen A. Fred, founding partner at Conservation Partners, and Tsnungwe Council representative, Robert Benson. Fred represented the Tsnungwe Council in gaining access to their historic tribal homeland in Northern California. With partner Misti M. Schmidt, Fred and Conservation Partners serve clients by advising, negotiating, and drafting agreements to protect agricultural lands, natural habitats, and open spaces. Members of the Tsnungwe Native American tribe (now known formally as the Tsnungwe Council) have resided along the Trinity River in Northern California for thousands of years. They describe their original ancestral village, Hlel-din (pronounced “clay-el-ting”), located at the confluence of the Trinity River and South Fork Trinity River, as “the place where the rivers come together.” With a mild climate and rich with natural resources, Hleldin became a cultural and economic center for tribes along the Klamath, Trinity, and South Fork Rivers. However, the arrival of white settlers in the mid-1800s led to the Tsnungwe people being pushed from their land and ultimately being fully displaced. On May 19, 2020, after more than 150 years of not having legal access to its homeland, the Tsnungwe Council regained the right to access what was once its ancestral village, Hlel-din, to gather traditional plants and medicines and to perform ceremonies; the Council also gained the right to prevent the land from ever being developed or altered from its natural condition. And yet, these rights were not obtained by the Council through acquiring ownership of the land, but rather through
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the conveyance to the Council of a conservation easement. A conservation easement is a real estate interest that serves to protect the environmental, agricultural, cultural, and/or scenic attributes of a piece of property in perpetuity. The owner of the property continues to own the underlying fee interest, while a nonprofit or governmental entity or Native American tribe holds the conservation easement and sees that its terms are upheld. The holder of the easement will visit the property, typically annually, to confirm that the owner is abiding by
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the easement, and, if a violation is discovered, may pursue legal and equitable remedies to stop the violation and repair any damage. In the Hlel-din conservation easement, the Tsnungwe Council is also granted certain additional rights to undertake cultural activities. Conservation easements are technically considered “easements in gross,” meaning that they are not appurtenant to an adjacent property, and are governed by California Civil Code sections 815 – 816, colloquially known as the “Conservation Easement Enabling Act.” The Act provides the applicable pur-
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poses for which easements may be SACRAMENTO granted, eligible easement holders, available remedies, and other requirements. The Act also provides that all conservation easements must be granted in perpetuity. The entities eligible to hold conservation easements in CaliforSACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE nia include local and state govern1329 Howe Ave., #100 Sacramento, CA 95825 425 University Ave., Suite 120 ••Sacramento, CA 95825 ments, qualified nonprofit organizations, and certain Native AmerADVERTISE IN OUR PUBLICATION ican tribes. In particular, the Act provides that, to be eligible to hold a conservation easement, a Native American tribe must either be federally recognized or “a nonfederally recognized California Native American tribe that is on the contact list maintained by the Native Superior Court of CA, County of Sacramento (Ret.) American Heritage Commission to protect a California Native Amer• Business & Commercial ican prehistoric, archaeological, cultural, spiritual, or ceremonial • Real Estate place, if the conservation easement is voluntarily conveyed.” (Cal. Civ. • Partnership & Code section 815.3.) Shareholder Disputes The conservation easement • Construction Defects at Hlel-din was conveyed by the landowner to the Council to mit• Complex Civil Litigation igate for potential impacts to cultural and natural resources from a proposed agricultural operation the landowner is undertaking on nearby property. While not technically required to be conveyed, the conservation easement served to State Commissioner of Corporations - Three years offset any possible negative consequences to the cultural resources on the neighboring land, thereby Employment & Labor Member, AAA Panels on: allaying the concerns of the TsnunCommercial & Complex Civil gwe tribal government about the proposed agricultural operation and garnering the Council’s support for the project. Judge Brian R. Van Camp, Ret. As noted, the conservation FREE for SCBA Members easement not only ensures that Office: (916) 515-8442 Cell: (916) 425-1469 Hlel-din will never be developed $100 for Non-Members or materially changed from its cur2443 Fair Oaks Blvd. #397 • Sacramento, CA 95825 1 Hour Ethics - Topic: “Attorney Fees, rent natural condition, but it also Practically and Ethically” brvc@vancampadr.com grants the Council certain unique rights to undertake the following cultural, research, recreational, and of Mastagni Holstedt land stewardship activities:
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i. Restore, conserve, and steward the property’s natural and cultural resources; ii. Promote indigenous land and cultural stewardship through the application and sharing of traditional ecological knowledge related to traditional conservation and sustainable resource management practices, including plant gathering, collection of seeds, digging bulbs/ roots, cutting and pruning vegetation, tending of plants, and planting and dispersing seeds and bulbs; iii. Provide educational services about traditional cultural and ecological knowledge, including traditional land management principles and resource management methods that reflect the grantee’s cultural values; iv. Host and engage in traditional recreational, cultural, ceremo-
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nial, and educational activities and gatherings, including without limitation: ceremonies, dances, games, and knowledge-sharing workshops, for members of the grantee and its guests and invitees; v. Perform a cultural resources survey of the property to identify and determine whether additional cultural resources or archaeological sites are in need of protection, including ongoing documentation and monitoring of any such cultural resources, and perform other scientific and cultural research; and vi. Install cultural improvements, subject to the grantor’s review and prior written approval . These cultural rights augment the more typical rights granted to an easement grantee to access the property to monitor compliance with the easement terms and to enforce the terms of the easement.
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While working on this conservation easement, members of the Tsnungwe Council explained that the outright ownership of the land was less important to the tribal members. Instead, knowing that the land would never be developed and having the legal right to access the land to gather and perform ceremonies was deeply significant to the Council. In this way, conservation easements are a useful tool to fulfill the important function of returning protection, stewardship, and cultural use of a landscape to the land’s original inhabitants without necessarily involving the conveyance of the underlying fee. For more information about Conservation Partners, please see https://www.conservationpartners.com and for more information about the Tsnungwe Council, please to go to the Tsnungwe Council Narrative available at https://lnkd.in/ gCqSDrk.
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Endnotes 1 See Fair v. Bakhtiari (2006) 40 Cal. 4th 189 for a HOSTED BY SACRAMENTO reported case where counsel moved to block (and succeedCOUNTY BAR ASSOCIATION ed in blocking) enforcement of a settlement agreement on the basis of inadmissibility where the agreement was signed not only by the parties but also by
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