Sacramento Lawyer Magazine by Sacramento County Bar Association

www.sacbar.org

September/October 2014

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

Presiding Justice Vance W. Raye The SCBA’s 2014 Judge of the Year www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

FASTER ALERTS. DEEPER INSIGHTS. FOCUSED ON WHAT MATTERS TO YOU. PRACTICE AREAS • Antitrust • Bankruptcy • Capital Markets • Corporate Counsel • Corporate Governance • Energy & Environment • Employment • Finance & Banking • Health Law • Immigration

• Intellectual Property • Mergers & Acquisitions • Products Liability • Securities Enforcement and Litigation JURISDICTIONS • National • New York

WESTLAW NEXT PRACTITIONER INSIGHTS Life moves fast. It’s important to stay on top of current events and related legal developments that have an impact on the decisions you make every day. WestlawNext Practitioner Insights™ gives you the expert insight and analysis you need. Plus, now you can create and manage all of your alerts from one platform, ensuring you’re always up to date on emerging legal developments. Stay focused – and stay in the know – with Practitioner Insights. Learn more at westlawnext.com/current-awareness

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

EDITOR’S MESSAGE Betsy S. Kimball Editor-In-Chief, Sacramento Lawyer Sacramento County Bar Association magazine

Sophomore Editor

by Betsy S. Kimball

his is the magazine’s annual SCBA Distinguished Judge of the Year issue. Sincere congratulations to Presiding Justice Vance Raye on his selection. Justice Kathy Butz has written a wonderful cover story. This issue also commemorates the retirement of Judge Lawrence Karlton from the federal bench with an article by Chief Magistrate Judge Dale Drozd. Both Judge Judy Hersher and Judge David Brown have also supplied articles for this issue. In this space, I have recently written about how overburdened our local courts are. (Sac. Lawyer, May/June, p. 4.) The fact that four bench officers have taken their scarce time to write for these pages warrants a sincere thank you. During travels with my daughter when she was young, we often stopped over in London. On one trip, I determined that we “must see” the Magna Carta. My daughter has never had the slightest interest in law, but I still at-

tempted to instill in her an appreciation for our legal system (with all of its flaws). She may not remember seeing the Magna Carta, but I do. It gave me the same almost reverential feeling that I have had when viewing an original copy of the Declaration of Independence or the Constitution. This year we are celebrating the 800th anniversary of the Magna Carta. We have reproduced on page 22 a portion of the press release from the Library of Congress about the copy that will be on display in the U.S. later this year. This issue marks the beginning of my second year as Editor of this magazine. The SCBA’s weekly e-newsletter has enabled the magazine to make a number of changes, with more to come. Your feedback is welcome here. I am already thinking about the January/February 2015 issue – when we will be deep in the bowels of a grey and hopefully wet winter. What a perfect time for a piece on summer vacations, with lots of bright colorful photographs. We lawyers are not one dimensional beings. If you did something special this summer, climbed a big mountain, did volunteer work where needed, went to camp with your kids, performed at a Shakespeare festival (you get the idea), please let me know. I would also like to add some writers and editors to the already stellar, but very busy, people we have. Welcome to Maureen Onyeagbako as a new Staff Editor. Photographers, visual artists, cartoonists: I want you too. Did you notice that, in the past year, we have published two works of art on the cover of this magazine? Your work could be next.

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

EDITOR-IN-CHIEF Betsy S. Kimball bkimball@kimballwilson.com STAFF EDITORS Ellen Arabian-Lee, Bryan Hawkins, Heather Cline Hoganson, Maureen Onyeagbako MAGAZINE COMMITTEE Betsy S. Kimball, Samson R. Elsbernd, David Graulich, Coral Henning, Heather Cline Hoganson, Yoshinori H.T. Himel CREATIVE DIRECTOR Mary J. Burroughs (916) 564-3780 - mburroughs@sacbar.org PRODUCTION DESIGN Milenko Vlajsavljevic ADVERTISING SALES EVENTS - MEMBER CLASSIFIED ADS (916) 564-3780 - scba@sacbar.org SCBA OFFICERS B.J. Susich - President Angela Lai - 1st Vice President Heather Hoganson - 2nd Vice President Sabrina Thomson - Secretary Treasurer SCBA EXECUTIVE DIRECTOR Mary J. Burroughs - mburroughs@sacbar.org

Sacramento Lawyer (USPS 0981-300) is published bi-monthly by the Sacramento County Bar Association, 1329 Howe Avenue, #100, Sacramento, CA 95825. 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, 1329 Howe Avenue, #100, Sacramento, CA 95825. Copyright 2014 by the Sacramento County Bar Association. Each author’s commentary reflects his/her individual opinion only and not that of his/her employer, organization with which he/she is affiliated, or Sacramento Lawyer magazine, unless otherwise stated.

CONTENTS SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

SEPTEMBER/OCTOBER 2014 VOLUME 115, NUMBER 5

COVER STORY 18 Justice Vance W. Raye: the SCBA’s 2014 Judge of the Year FEATURE STORY 8

U.S. District Judge Lawrence K. Karlton Steps down from the Bench

EVENTS 25 The SCBA Golf Tournament 30 California Women Lawyers Hosts Its Annual Forum on the Judicial Appointments Process THE VIEW FROM THE CIVIL BENCH 10 Settlement Demands in Excess of Available Insurance: Good or Bad Faith Offers under Code of Civil Procedure Section 998? 16 Sealing Records and Documents, a Primer (Part Two)

18 32

NEWS FROM THE LIBRARY OF CONGRESS 22 “Magna Carta: Muse and Mentor” Exhibition at the Library of Congress to Display the 1215 Lincoln Cathedral Magna Carta from England SECTION, AFFILIATE & BARRISTERS NEWS 23 Recent Developments in California Online Privacy Law 24 The Probate and Estate Planning Section’s 2014 Jean C. McEvoy Public Service Award Goes to Borden D. Webb

28 The Public Law Section Looks at Public Records Act Law 31 SacLEGAL Celebrates LGBT Pride Month 32 Mayor Kevin Johnson Attends the Successful Wiley Manuel Bar Association Law Day Mixer 33 SABA Sacramento Celebrates Its Sixth Year 33 Barristers’ Club Update DEPARTMENTS

14 The VLSP Advisory Committee Needs You

Editor’s Message

President’s Message

TIPS AND TRICKS

34 Index of Advertisers

26 Better Photos

Sacramento Lawyer magazine 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 sent in for publication. Please contact the SCBA 916-564-3780 for deadline information, fax 916-564-3787, or email mburroughs@sacbar.org. Web page: www.sacbar.org. Caveat: Articles and other work submitted to Sacramento Lawyer magazine become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.

31 September/October 2014

www.sacbar.org

VLSP

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

Presiding Justice Vance W. Raye

COVER Presiding Justice Vance W. Raye The SCBA’s 2014 Judge of the Year

The SCBA’s 2014 Judge of the Year

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

ar, Commercial Litigation, 0 y Litigation, 2012, 2013, 2014 PRESIDENT’S gation, 2012, 2013, 2014 ng and Finance, 2012, 2013, 2014 state, 2012, 2013, 2014

MESSAGE B.J. Susich

President,

Pro Bono in Our Community

Sacramento County Bar Association

by B.J. Susich

clearly gone above and beyond, proou should receive this edition of viding exceptional services over long Sacramento Lawyer just after the periods of time. While not everyone SCBA’s and Sacramento Law Foundais in a position to offer such assistance, tion’s August 28th joint “Celebration of (916) 525-8446 providing pro bono services is not as Pro Bono” event, held at Casa Gardens. difficult as you may think. The most At this event the inaugural SCBA Pro enshlealaw.com common reasons attorneys give for not Bono award will be given to Danny taking on pro bono work is that it will Moore, recognizing his contributions be too time consuming, or that the to Voluntary Legal Services, and to scope of the project will grow on them. John Davis, in acknowledgment of his If this describes you, the answer may services to Legal Services of Northbe to offer your services through an ern California. Net proceeds will be existing program where you will find given to Sacramento Law Foundation, 1/3 Page Ad: structure and support. a 501(c)(3) charity. Thanks go out to Jay-Allen Corp ad It would be impossible to highthe SCBA Pro Bono Committee, and Eisen Law July/August issueall of the pro bono programs MAGAZINE light here particularly Chair Sil Reggiardo, for 2014 in our community. I will direct you to helping make this event happen. a few—all of which you can find more Mr. Moore and Mr. Davis have

PROOF

al is needed to run your ad, heck appropriate box below.

oof OK as is

orrection needed

• Voluntary Legal Services Program provides services to low income individuals in connection with civil matters. • Legal Services of Northern California assists seniors through its Senior Legal Hotline. • Sacramento County Public Law Library has a “Lawyers in the Library” program. • Sacramento County Superior AD PROOF Court uses volunteers in its “One Day Divorce” program. • The U.S. District Court for the Eastern District has a pro bono panel that represents prisoner plaintiffs, including limited purpose appointment opportunities. • The SCBA has a Fee Arbitration Program, where volunteer arbitrators help resolve fee disputes between attorneys and clients.

ee a second proof

K with corrections

AARON S. MCKINNEY

JAY-ALLEN EISEN

ASSOCIATE

C I V I L A P P E L L AT E + W R I T + M OT I O N P R A C T I C E

Certified Appellate Law Specialist State Bar of California, Board of Legal Specialization DATE

Best Lawyers in America Northern California Super Lawyers Past Chair, California State Bar Standing Committee on Appellate Courts Past President, California Academy of Appellate Courts Fellow, American Academy of Appellate Lawyers

Over 130 Reported Decisions, including:

McAdams v. Monier, Inc., 182 Cal. App.4th 174 (2010) (Consumer Class Action) Katiuzhinsky v. Perry, 152 Cal.App.4th 1288 (2007) (Medical Damages) Hahn v. Mirda, 147 Cal.App.4th 740 (2007) (Medical Malpractice, Loss Of Consortium) Hawkins v. Wilton, 144 Cal.App.4th 936 (2006) (Landlord Liability) Bunch v. Hoffinger Ind., Inc., 123 Cal. App.4th 1278 (2004) (Products Liability)

T (916) 444-6171

2431 Capitol Ave.

Sacramento, California 95816

www.eisenlegal.com 6

information about on the Internet. Just know that there are a lot more opportunities, and even more need.

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

•

Our local law schools have various clinics that rely, in part, on help provided by practicing attorneys.

Recently, pro bono opportunities have arisen in connection with the influx of unaccompanied children crossing into the United States, including at least one ABA sponsored program (ProBAR). While the opportunities to help are only beginning to arrive in our community, do not assume that you cannot make a difference if this is something you are passionate about. After all, SCBA Board Member Daniel Yamshon and Sacramento Lawyer Editor Betsy Kimball have provided volunteer legal services as far away as Africa—all within the year!

Since 1963

Marty Anderson Vice President

Lawrence H. Cassidy President

Do your Accounts Receivables have a high balance and your bank account a low balance? • We have a staff of experienced collectors and three in house attorneys to put the cash in your bank account. • Over 100 law firms and many Fortune 500 firms select us to collect their past due accounts whether they are in the thousands or millions. • International collections recently made in England, Israel, Poland, and other countries. • Members: Commercial Law League of America. 700 Leisure Lane, Sacramento, CA 95815 Phone 916.929.7811 ext 222 | Fax 916.929.5125 | Email norcal@covad.net

FEATURE STORY

Chief Magistrate Judge Dale A. Drozd, U.S. District Court, Eastern District of California

U.S. District Judge Lawrence K. Karlton Steps down from the Bench

by Chief Magistrate Judge Dale A. Drozd

he year was 1979. The Shah fled Iran, and the U.S. Embassy in Tehran was seized. Margaret Thatcher was elected as Britain’s new Prime Minister, the Soviet Union invaded Afghanistan, and Mother Teresa was awarded the Nobel Peace Prize. It was the same year that U.S. Senator Alan Cranston submitted the name of Lawrence K. Karlton, then a 43-year old Sacramento County Superior Court Judge, to President Jimmy Carter for appointment as a U.S. District Judge for the Eastern District of California to fill a seat vacated by District Judge Thomas J. McBride, who had taken senior status. Later that year, on June 5, President Carter nominated Judge Karlton, and a mere seven weeks later, on July 23, 1979, the U.S. Senate confirmed him. My, how things have changed over the last 35 years! On October 1, 2014, at the age of 79, Judge Karlton will take “inactive Senior District Judge” status, bringing to an end one of the longest and most influential periods of judicial service in this district’s history. His career as a District Judge has included seven years as Chief Judge (1983-90) and over 14 as a Senior District Judge. During most of the latter period, he has carried a 100 percent caseload, though he was entitled under regulations to carry far less. Judge Karlton was an innovative leader of the court as Chief Judge. He was one of the first in the country to hold an annual District Conference where the judges and practitioners could exchange ideas on how to improve the effective administration of justice within the district.

Most importantly, in his 35 years as an active jurist, Judge Karlton has made a significant mark on the development of the law in a diverse range of cases: environmental litigation, prisoner civil rights, criminal law, campaign finance reform, and general civil litigation. He has done so by finding, as best he could, what the law as he saw it required and then following it. His inquisitive nature, demand for precision and commitment to understanding why a particular statute was enacted, or how the Constitution speaks to the question at issue has long tested the lawyers who appear before him. He has always been a judge who truly loves the law and knows the law – qualities that made countless lawyers better advocates and assured litigants that the result, for or against them, complied with the law. Those of us who have had the honor to work with him will remember Judge Karlton’s adages about the duties and privileges of working at the court. Among his favorites, he has always instructed his new law clerks to “never forget that the file is not the person;” and calls the federal courts as “the last bastion of hand-crafted law.” Now, the man who says that being a U.S. District Judge is “the best job a lawyer could ever have” is stepping down. The lawyers, plaintiffs, defendants, petitioners, and respondents will feel his influence for a very long time. His colleagues and the people of the Eastern District of California owe him a tremendous debt of gratitude for his lengthy and loyal service.

“the best job a lawyer could ever have”

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

We proudly support

The SacramenTo counTy Bar aSSociaTion as it celebrates its

Annual Bench-Bar Reception honoring

JuSTice Vance raye as Judge of the Year

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

THE VIEW FROM THE CIVIL TRIAL BENCH

Judge Judy Holzer Hersher, Sacramento County Superior Court

Settlement Demands in Excess of Available Insurance: Good or Bad Faith Offers under Code of Civil Procedure Section 998? by Judge Judy Holzer Hersher This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to HersherJ@saccourt.ca.gov.

ode of Civil Procedure §998i is a powerful statute designed to encourage pretrial settlement through a series of financial rewards and penalties. More specifically, in all but a very limited number of cases it punishes a party who declines a reasonable settlement offer and fails to obtain a more favorable judgment after trial. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1440; Heritage Engineering Construction, Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1439; Code Civ. Proc. § 998 subd. (g) and (i).) Section 998 works by withholding otherwise awardable incurred costs or by augmenting other party incurred costs and expert witness fees. For example, a plaintiff who rejects a reasonable settlement offer and fails to obtain a more favorable judgment after trial forfeits his or her rights to certain prevailing party costs and, in turn, must pay certain litigation costs to the defendant. This includes possibly all of defendant’s incurred and reasonably necessary expert witness fees since the inception of the case. (Code Civ. Proc. § 998, subd. (c)(1) and (e).) Similarly, a defendant who rejects a reasonable settlement from a plaintiff and who fails to obtain a more favorable judgment assumes the plaintiff’s post-offer costs of expert witnesses. (Code Civ. Proc. § 998, subd. (d).) For both sides, the costs can run into the thousands, if not millions, of dollars. The cost shifting mechanism occurs post-verdict and after the court

considers the nature and circumstances surrounding pre-verdict offers to take judgment in accord with the specific terms and conditions stated in a formal offer between the parties. The affected costs and fees are identified in Code of Civil Procedure sections 1031,ii 1032iii and 1033.5iv, as well as section 998. Under certain circumstances, an award of prejudgment interest calculated at the rate of 10 percent is also available from the date of the first offer by a plaintiff who later obtains a more favorable judgment. (Civ. Code §3291.)v Do Insurance Policy Limits Matter? How have recent courts handled the circumstance where a plaintiff has offered to settle with one or more defendants in an amount that exceeds a defendant’s available insurance? What role, if any, does an insurance policy play in a court’s consideration of the good faith or reasonableness of a section 998 offer? Can an offer that exceeds available insurance ever be considered in good faith? Does it matter if the plaintiff is aware of the policy limits or that there is more than one defendant covered by a particular policy? Before any party can be obtain the cost shifting benefits of section 998, the trial court must make a determination that the offer was reasonable, made in good faith and must have had a reasonable chance of being accepted. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1112; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Whether the offer is was reasonable “depends upon the infor-

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

mation available to the parties as of the date the offer was served.” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 130.) Reasonableness generally “is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant,” and “[i]f an experienced attorney or judge, standing in defendant’s shoes, would place the prediction within a range of reasonably possible results, the prediction is reasonable.” (Aguilar v. Gostischef (2013) 220 Cal.App.4th 475, 479-481; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) Next, the court considers whether the information available to the offeror was known or reasonably should have been known by the offeree. (Whatley-Miller v. Cooper, supra, 212 Cal.App.4th at p. 1113.) An offeree cannot be expected to accept an offer if there is no reason to know whether the offer is reasonable. (Ibid; Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p. 699.) A court also looks at the outcome at trial. If the offeror obtained a more favorable judgment, the judgment establishes prima facie evidence that the offer was reasonable. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 116-117.)

LITIGATION An offer to compromise that exceeds insurance policy limits is made in good faith where the defendant‘s insurance company fails to timely disclose its policy. An offer to compromise that exceeds insurance policy limits is made in good faith where the defendant‘s insurance company fails to disclose policy limits before the submission of an offer under Code of Civil Procedure section 998. (See Aguilar v. Gostischef, supra, 220 Cal.App.4th at pp. 479481.) In Aguilar, the plaintiff suffered the loss of his leg when his motorcycle was negligently struck by the defendant automobile driver. (Id. at pp. 478-479.) Prior to trial, both parties agreed that the plaintiff’s reasonable and necessary costs for past medical expenses exceeded $500,000. (Id. at p. 477.) In an effort to settle, the plaintiff made three discovery requests for policy limits from the insurance company, but the company made no response to the request or the plaintiff’s stated intent to make an offer within policy limits. Consequently, the plaintiff submitted an offer in the amount of $700,000. (Id. at p. 478.) After rejection of the offer, the case went to trial, and the jury found for the plaintiff in the amount of $2.3 million. (Ibid.) On appeal, the insurance company sought to tax $1.6 million in post-offer expenses awarded to the plaintiff by the court pursuant to the cost-shifting penalties and rewards of Code of Civil Procedure section 998, arguing that the plaintiff’s offer to settle for $700,000 was in bad faith because it exceeded the defendant’s $100,000 policy limit and because the defendant was struggling financially and could not agree to that amount. (Ibid.) In affirming the trial court’s decision to award the costs, the Second Appellate District found, among other factors, that the offer was in good faith because the company delayed the disclosure of policy limits despite the plaintiff’s stated

attempts to settle within those limits. (Id. at pp. 479-482.) It ordered the insurer to pay the costs, which included prejudgment interest. Both the court and the insurance company acknowledged that an insurer can be liable for damages in excess of policy limits if the company fails to accept a reasonable offer. (Id. at pp. 480-481.) Here, the court found that the multiple requests to negotiate from the plaintiff represented a reasonable settlement opportunity, thus the company’s failure to disclose its limits as part of those negotiation requests exposed it to greater liability. (Ibid.) Furthermore, the insurer failed to show that the plaintiff’s offer was unreasonable based on the plaintiff’s lack of knowledge, because the company denied the plaintiff’s repeated attempts to find out the insurance limits and reach a settlement within those limits. (Id. at pp. 480-482.) Lastly, the court did not challenge the superior’s court conclusion that the jury’s award constituted prima facie evidence that the offer was reasonable because the awarded damages were substantially higher than the offer. (Id. at p. 479.) Offers to compromise can be reasonable and in good faith even though the same insurer is exposed to multiple liabilities through defense of multiple parties. Further, an offer to compromise can be reasonable and in good faith even though the same insurer exposes itself to multiple liabilities by undertaking the defense of multiple parties. (Arno v. Helinet Corp. (2005) 130 Cal.4th 1019, 1027.) In Arno, the plaintiff was injured in a helicopter crash and sought damages from the pilot, the helicopter company, and the helicopter’s owner. (Id. at p. 1022). The plaintiff offered to settle for $999,999 with the pilot, but the defendant allowed the offer to expire. The same offer was extended to the helicopter company, but was ultimately rejected. (Ibid.) Following a jury trial,

the plaintiff was awarded $13.1 million in damages, and approximately $3.6 million in costs related to the rejection of the settlement offer. (Id. at pp. 1022-1023.) On appeal, the defendants argued that the offer was not made in good faith because the interests of the insurer were not considered when determining the reasonableness of the offer. (Id. at p. 1023.) Moreover, the defense contended that rejection of the offer to the pilot was reasonable because the insurer, which represented both the pilot and helicopter company, would not decrease its exposure by settling on behalf of one of its insureds. (Ibid.) In affirming the decision, the Second Appellate District held that the offer was made in good faith because any consideration of the insurer’s interests in evaluating the reasonableness of an offer under Code of Civil Procedure section 998 is firmly within the discretion of the trial court. (Id. at p. 1025.) Moreover, the court found that the cost shifting was justified because a settlement with the pilot would be credited to the remaining defendants and would reduce the damages liability of the pilot’s company. (Id. at p. 1027.) Finally, the court determined that the primary aim of the statute to encourage settlements would be frustrated if parties could restrict the discretion of the trial court with considerations of insurers or other defendants. (Ibid.) From the rationale of these two cases, it appears that there is no per se rule that makes the limits of an insurance policy determinative of whether a section 998 offer is or is not reasonable when made. Rather, the amount of coverage, the timing of its disclosure, the injuries sustained by the parties, their respective potential liability under the facts as then known, and whether liability among multiple defendants is joint and several or individual,

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

LITIGATION are factors to take into account when considering the reasonableness of the offer. Endnotes i. § 998. Offer to compromise; Recovery of costs; Inapplicability of law (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any

other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. (1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly. (2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (3) For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. (c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant›s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. (2) (A) In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer costs. (B) It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorney’s fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment. (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff›s costs. (e) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly. (f) Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, «plaintiff» includes a cross-complainant and «defendant» includes a

LITIGATION cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement. (g) This chapter does not apply to either of the following: (1) An offer that is made by a plaintiff in an eminent domain action. (2) Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor. (h) The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code. (i) This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code). ii. § 1031. Attorney fees in actions for recovery of wages In actions for the recovery of wages for labor performed, where the amount of the demand, exclusive of interest, does not exceed three hundred dollars ($300), the court shall add, as part of the cost, in any judgment recovered by the plaintiff or cross-complainant, an attorney’s fee not exceeding 20 percent of the amount recovered. iii. § 1032. Recovery of costs by prevailing party as matter of right (a) As used in this section, unless the context clearly requires otherwise: (1) «Complaint» includes a cross-complaint (2) «Defendant» includes a cross-defendant or a person against whom a complaint is filed (3) «Plaintiff» includes a cross-complainant or a party who files a complaint in intervention (4) «Prevailing party» includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the «prevailing party» shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (c) Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034. iv. § 1033.5. Items allowable as costs (a) The following items are allowable as costs under Section 1032: (1) Filing, motion, and jury fees. (2) Juror food and lodging while they are kept together during trial and after the jury retires

for deliberation. (3) Taking, video recording, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions. (4) Service of process by a public officer, registered process server, or other means, as follows: (A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action. (C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service. (D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c). (5) Expenses of attachment including keeper›s fees. (6) Premiums on necessary surety bonds (7) Ordinary witness fees pursuant to Section 68093 of the Government Code. (8) Fees of expert witnesses ordered by the court. (9) Transcripts of court proceedings ordered by the court. (10) Attorney›s fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law. (11) Court reporter fees as established by statute (12) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 6213 of the Business and Professions Code or a pro bono attorney as defined in Section 8030.4 of the Business and Professions Code. (13) Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact. (14) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. (b) The following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court. (2) Investigation expenses in preparing the case for trial. (3) Postage, telephone, and photocopying charges, except for exhibits.

(4) Costs in investigation of jurors or in preparation for voir dire. (5) Transcripts of court proceedings not ordered by the court. (c) Any award of costs shall be subject to the following: (1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court›s discretion. (5) When any statute of this state refers to the award of «costs and attorney›s fees,» attorney›s fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court›s established schedule of attorney›s fees for actions on a contract shall bear the burden of proof. Attorney›s fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney›s fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties. Attorney›s fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 of this code as authorized by subparagraph (A) of paragraph (10) of subdivision (a). v. § 3291. Personal injury actions In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section. If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment. This section shall not apply to a public entity, or to a public employee for an act or omission within the scope of employment, and neither the public entity nor the public employee shall be liable, directly or indirectly, to any person for any interest imposed by this section.

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

VLSP

Vicki Jacobs is the n California State Bar Trial Lawyer Hall of Fame, 2001

n Fellow, American College of Trial Lawyers, since 1986 n Northern California Super Lawyers since inception n Best Lawyers in America since inception, recently:

The VLSP Advisory Lawyer of theYou year, Real Estate Litigation, Committee Needs by Vicki Jacobs vagaries of litigation Sacramento, 2014

Managing Attorney of the Voluntary Legal Services Program.

u Lawyer of the Year, Commercial Litigation,

r than a trial lawyer?

Sacramento 2010 of Northern ince the Voluntary Legal Services Program visory Committee include Ann Patterson, Mark Eggleston, u Bet the Company Litigation, 2012, 2013, 2014 California (“VLSP”) was established in 1981, there has Yoshinori “Toso” Himel, Jeff Frost, Anthony Musante, Sarah u Commercial Litigation, 2012, 2013, 2014 been an Advisory Committeeu Litigation-Banking of local attorneys who have Scott, Sarah Huchel, James Reinmiller, John DeRosa, Diand Finance, 2012, 2013, 2014 guided and supported the program. All members of the Adanna Cordova, and Scott Taylor. These attorneys come from u Litigation-Real Estate, 2012, 2013, 2014 visory Committee have something in common: they support a variety of professional backgrounds (private practice, state the provision of pro bono work to low income members of our service, and corporate legal departments), and all bring their community and encourage VLSP to create opportunities for legal experience to help VLSP fulfill its mission. attorneys, law students, paralegals, and interpreters to proIf you are interested in learning more about volunteering vide help with such legal issues as debt collection defense, on the VLSP Advisory Committee, VLSP will be holding an inbankruptcy, unemployment insurance denials, labor commisformational lunch-time open house on Thursday, October 2nd sioner claims, guardianships, and estate planning. at noon. For further information, please email vlsp@vlsp.org. There are currently a few openings on VLSP’s AdvisoAdvisory Committee members also help with the annual ry Committee. The Committee meets six times a year with fundraiser for VLSP, the “Phonathon,” which is held each fall. the Managing Attorney of VLSP and considers such issues as This fundraiser is essential to the operations of VLSP, as it pays oe@GenshleaLaw.com funding opportunities, program policies, and how to allocate O/ (916) 525-8444 C/ (916) 825-9952 F/ (916) 525-8446 for those expenses not typically reimbursed by government resources to help address the many legal needs of the low ingrants such as rent, utilities, malpractice insurance, online lecommunity. Periodically throughout the years, the Adgal research services, and books. This year’s Phonathon will be uite 1750come / Sacramento, CA 95814 www.genshlealaw.com visory Committee has engaged in strategic planning to help held on September 23rd at the offices of Orrick, Herrington & direct the future of the organization. The Advisory Committee Sutcliffe. If you would like to help out at this event, where we is not the Board of Directors of VLSP, but the Committee’s contact members of the legal community seeking donations to recommendations have considerable weight in the operation our program, please email us at vlsp@vlsp.org. We typically of VLSP. call prior donors to our program, as many are accustomed to Some of VLSP’s Advisory Committee members are relour annual call. It’s a fun event and given that you are working ediation atively new to the program; others have been on the Advifor a good cause, it’s not as difficult asking for money than you 1/8 Page Ad: issue sory Committee for many years. In fact, Yoshinori “Toso” might think! Buzz Wiesenfeld ad Himel has been on the Committee since its inception. Mark As Managing Attorney of VLSP, I cannot thank the AdviJuly/Aaugust issue during the Eggleston, the current Chair of the Advisory Committee, hasMAGAZINE sory Committee members enough for2014 their support been on the Committee nearly that long. When asked why 13 years I have been at VLSP. Without the efforts of the Advihe is a Committee member, Mark says that he “joined and sory Committee over the 33 years of VLSP’s existence, VLSP has remained for many years on the Advisory Committee bewould not have been able to help as many clients resolve their Approval is needed to run your ad, cause it provides a fun and engaging way to make a contriproblems and protect themselves against future probplease check appropriate boxlegal below. bution toward justice for all.” Current members of the Adlems as it has.

PROOF

Proof OK as is

609 9th Street Sacramento, CA 95814 916-874-6011 www.saclaw.org www.facebook/saclawlib www.twitter/saclawlibrarian

o (916) 564-3787 Mary Burroughs @sacbar.org

you!

Correction needed See a second proof OK with corrections

Need a case or law review article? Want to see if your case is still “good law?” Email the Reference Desk at reference@saclaw. SIGN org or call 916-874-6012 with a complete citation, and a librarian will email you the document within 24 hours.

Limit 5 documents per day, per attorney.

Buzz Wiesenfeld MEDIATOR

Free Service for Attorneys!

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

DATE

20+ Years Experience Proven Record of Success Online Calendar Quick & Easy Scheduling

buzzwiesenfeld.com | (916) 442-1551

UNITY BAR DINNER 2014

Thursday, October 9, 2014 U NITY B AR A SSOCIATION OF S ACRAMENTO Wiley W. Manuel Bar Association Leonard M. Friedman Bar Association Women Lawyers of Sacramento La Raza Lawyers Association of Sacramento

South Asian Bar Association of Sacramento Sacramento Lawyers for the Equality of Gays and Lesbians Asian/Pacific Bar Association of Sacramento

MASTER

CEREMONIES

KEYNOTE SPEAKER

WINDIE O. SCOTT

DR. CLARENCE B. JONES

Former State Bar of California Trustees Board Member

First Diversity Visiting Professor, University of San Francisco

Former President of Sacramento County Bar, Women Lawyers of Sacramento, and Wiley Manuel Bar Association

Scholar Writer in Residence, Martin Luther King, Jr. Research & Education Institute, Stanford University

5:00 p.m. to 6:00 p.m. Registration and cocktails 6:00 p.m. to 8:00 p.m. Dinner and presentations Doubletree Hotel Sacramento, 2001 Point West Way, Sacramento, CA 95815 (916) 929-8855 ******************

*Early-Bird Registration Discount if RSV P received by September 25, 2014

******************

Name: _____________________________________________

____ Dinners @ $65.00* or $75.00 each = ______

Organization: _______________________________________

____ Group Table (10) @ $650.00* or $750.00 = ______

Address: ___________________________________________

____ Students @ $45.00 each = ______

Phone: ____________________________________________

____ Student Ticket Group Table (10) @ $450.00 = ______

E-mail: ____________________________________________

Make checks payable to “Unity Bar Association of Sacramento” and mail to P.O. Box 1407, Davis, CA 95617

Sponsorship packages also available. Contact the Unity Bar Association of Sacramento at UnityBarofSacramento@gmail.com or (530) 757-8490 for information.

or Tickets now available online at Eventbrite.com. Search for “Unity Bar Association of Sacramento Dinner 2014.” Additional Eventbrite charges apply.

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

THE VIEW FROM THE CIVIL BENCH

Judge David I. Brown, Sacramento County Superior Court

Sealing Records and Documents, a Primer (Part Two) by Judge David I. Brown This article represents thoughts and opinions of the author and should not be considered court policy or the opinion of other judges.

his is part two of the primer on sealing records and documents. In part one, we reviewed what records may and may not be sealed. We began the discussion of the procedure for sealing documents by examining the first step in that process, lodging of records. To refresh, a party seeking a court order sealing a record or document must first lodge it with the Court under California Rules of Court (CRC) 2.551(d).

OBTAINING AN ORDER With the records properly lodged, court approval is required for the records to be sealed. (CRC 2.551(a).) “The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (CRC 2.551(a).) [PRACTICE NOTE: Despite the clear language of the court rule, counsel for both sides persist in the belief that they may merely file a stipulation to seal various documents, and that the Court will sign it. It would be improper for counsel to present such a stipulation to the Court, and improvident for a Court to sign it without the required showing and hearing.] Any party requesting that a record be filed under seal must file a motion or application for an order sealing the record. (CRC 2.551; see also CRC 8.46(e)(1).) May such a motion or application be made ex parte? While a court may shorten time for a hearing on a motion to seal, often such requests to seal are made ex parte. Generally, the word “application” connotes that ex parte relief may be available, but there is no court rule or case specifically addressing the issue. However, a number of appellate decisions have addressed trial court action emanating from ex parte applications to seal, without comment on the practice. For example, in Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, a party filed an ex parte application to seal documents. The trial court denied the application (the procedure of filing ex parte is not addressed in the opinion otherwise). The appellate court reversed, in part, issuing a writ of mandate directing the trial court to grant the motion for a protective order prohibiting the disclosure of mediation briefs, etc. (Id. at p. 165.) [PRACTICE NOTE: While an ex parte application may be available, it is suggested that the practitioner who wishes to proceed ex parte couch his/her application in the alternative—either as an ex parte application, or as a request for an order shortening time for a hearing on the motion to seal.]

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Assuming that counsel is proceeding by duly noticed motion, service of the application or motion must be made on all parties who have appeared in the action. Except as the Court may otherwise order, any party who possesses copies of the matter sought to be placed under seal must be served with both a complete un-redacted version of all papers and a redacted version. (CRC 2.551(b)(2).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest. (CRC 2.550(d)(1)-(5).) The rule requires a memorandum to accompany the motion “and a declaration containing facts sufficient to justify the sealing.” (CRC 2.551(b)(1).) The Advisory Committee Comment to CRC 2.550 states that the rules leave it to the case law to define what might constitute an “overriding interest.” The Advisory Committee Comment also notes that courts have determined that, in the proper circumstances, various statutory privileges, trade secrets, and privacy interests (assuming they are properly asserted and not waived) may constitute “overriding interests.” In NBC Subsidiary (KNBC-TV) (1999) 20 Cal.4th 1178, the Supreme Court provided examples of various interests that courts have acknowledged may constitute “overriding interests.” (Id. at p. 1222, fn. 46.) Courts have recognized trade secrets and intellectual property rights as a potential overriding interest for limiting public access to information. (See, e.g., In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292.) Note, however, that a trade secret may not in itself require confidentiality as required by law unless the action is initiated pursuant to the Uniform Trade Secrets Act. (Id. at p. 298.) Attorney-client privilege may also provide a basis to claim an overriding interest. Evidence Code section 954 provides that one can refuse to disclose information, or prevent another from disclosing communications, meant to be confidential between attorney and client. Even potential embarrassment may constitute an overriding interest. (Universal City Studios, Inc. (2003) 110 Cal.App.4th 1273, 1281.) Preventing a victim of a sex crime from future trauma and embarrassment may be

THE VIEW FROM THE CIVIL BENCH an appropriate basis for asserting an overriding interest. (Ibid.) [PRACTICE NOTE: If the practitioner is addressing an overriding interest, it is essential that an appropriate showing be made. Conclusions are insufficient, and, as noted, a mere stipulation or recitation to a contractual provision of confidentiality will not suffice. Identify the document and demonstrate the overriding interest and attempt to establish that the client’s interests would be prejudiced if the Court failed to seal the record. (CRC 2.550(d)(3).)] The ultimate determination is on a case by case basis, and, as noted above, “overriding interest” is not otherwise defined in the CRC. [PRACTICE NOTE: The Court’s perspective on sealing is not that of counsel. Often both plaintiff and defense agree that certain documents should be sealed. But the Court views such a motion through the prism of the overarching principle—the presumption that court records are open, and the public’s right of access.]

CONTENT AND SCOPE OF THE ORDER The final step in the sealing process is the court order. An order sealing the record must meet the requirements set forth in CRC 2.550(e) and 2.551(e). The order must specifically state the facts that support the findings and direct the sealing of only those documents and pages, or (if practicable) portions thereof, that contain the material that needs to be placed under seal. (CRC 2.550(e)(1)(A)(B).) All other portions of each document or pages must be included in the public file. CRC 2.550(e)(2) provides that, consistent with CCP sections 639 and 645.1, if the records that a party is requesting be placed under seal are voluminous, the Court may appoint a referee and fix and allocate the referee’s fees among the parties. Under CRC 2.551(e)(1), if the Court grants an order sealing a record, “the clerk must substitute on the envelope or container for the label required by (d)(2) a label prominently stating ‘SEALED BY ORDER OF THE COURT ON (DATE),’ and must replace the cover sheet required by (d)(3) with a filed-endorsed copy of the court’s order.” Under CRC 2.551(e) (3), “[t]he order must state whether--in addition to records in the envelope or container--the order itself, the register of actions, any other court records, or any other records relating to the case are to be sealed.” The order must also state “whether any person other than the court is authorized to inspect the sealed record.” (CRC 2.551(e)(3).) Unless otherwise stated, the sealing order prohibits the parties from disclosing the contents of any sealed materials in any subsequently filed records or papers. (CRC 2.551(e)(4).) If the Court mistakenly allows public viewing access to a document subject to a protective order, an attorney who seeks to take advantage of the Court’s mistake may be viewed in bad faith and subject to sanctions under CCP section 128.5. (See, e.g., Wallis v. PHL Assoc., Inc. (2008) 168 Cal.App.4th 882, 898-902.)

SACRAMENTO COUNTY PRACTICE NOTE With computerized case management, paper files are becoming a thing of the past. Most, if not all, courts have a computerized case management system for document filing and viewing on line. In Sacramento, computer filing commenced November 13, 2007. No paper files exist post that date, although “Legacy” paper files exist for pre-November 2007 cases. In Sacramento, it is important to note that, generally, the Court cannot seal pieces or bits of text in an existing filed document without sealing the entire document. The “sealing” simply involves placing the entire document at a security level that prohibits public viewing. Pursuant to the sealing order, the new redacted or changed document must be submitted to the clerk. If the party, for example, merely wishes to delete sensitive identifying information such as social security numbers, which were inadvertently included in a prior filing, the entire “old” document will be sealed and the “new” redacted document will be filed in its place. The Court cannot delete the social security numbers on the old document. Since the author is a Sacramento County Superior Court judge, it is advised that the practitioner check the practices of the court in which a sealing order is sought to be obtained.

GROW YOUR FIRM, NOT YOUR FRUSTRATION FindLaw helps small law firms grow. Our comprehensive portfolio of proven, industryleading business development solutions showcases your expertise and connects you to targeted prospective clients.

Call today to learn how FindLaw can help you get found by the clients you want.

1-855-281-8859 lawyermarketing.com

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

COVER STORY

umerous photographs adorn the furnishings in the ornate chambers of the Honorable Vance W. Raye, administrative presiding justice of the Court of Appeal, Third Appellate District. Situated in a spacious corner on the second floor in the renovated Library & Courts Building, Justice Raye’s chambers are warm and welcoming and filled with all manner of photographs of family, friends, and colleagues—photos which he has taken. He disclaims his aptitude (and there are those who might agree), but Justice Raye is an enthusiastic amateur photographer at family weddings and court outreach programs. Personal Background Born in Hugo, Oklahoma in 1946, Vance was raised by his mother—“a person of fierce determination and great focus” in Muskogee. She had dreams for her five children and encouraged Vance, her youngest, to aspire to great things. Life was not always great in Muskogee. He worked throughout his years as a student at the Manual Training High School, the school set aside in Muskogee for African-American students. He went to college “on a shoestring,” attending the University of Oklahoma for his bachelor’s degree in political science and continued at the University of Oklahoma for law school, the only African-American student in the school at the time. Justice Raye credits his mother and the other great woman in his life, his wife Sandra, for caring and believing that he could succeed under the circumstances of those years in

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Justice Kathleen Butz, Court of Appeal, Third Appellate District

segregated Oklahoma. He met Sandra in their 9th grade English class and they were on a debate team together. Married for 46 years, Sandra is a retired social worker, and they have one adult daughter who lives in Georgia. Legal & Judicial Career For a brief time after law school, Justice Raye was in private practice in Oklahoma City. In 1970, he entered the United States Air Force and served as an Assistant Staff Judge Advocate and reached the rank of captain at Beale Air Force Base, near Marysville. This was during the Vietnam War and he prosecuted cases of desertion, absence without leave, and drug possession. He was also liaison to the U.S. Attorney for civil litigation involving Beale, finishing his military career as Chief of Military Justice at the Yuba County base in 1974. After his military service concluded, Justice Raye served nearly a decade with the California Attorney General’s Office, as Deputy Attorney General and later as a Senior Assistant Attorney General in charge of legislative affairs. When Governor George Deukmejian was elected in 1982, he appointed Justice Raye as his Deputy Legislative Secretary and a year later selected him as his Legal Affairs Secretary, a post Justice Raye held for seven years. In 1989, Justice Raye was appointed to the Sacramento County Superior Court where he was the supervising judge for family law. He maintains a special interest in this area of the law (e.g., as chair of the Judicial Council Committee on

COVER STORY Family Law in 1992-1993 and a member of the Elkins FamPresiding Justice Raye brings to his administrative duties. In ily Court Reform Task Force). With his intellectual strength, his unassuming and thoughtful way, he immersed himself in thoughtful and concise writing, and sense of justice and fairthe additional “PJ” responsibilities with characteristic calm, ness, Justice Raye was an easy choice for Governor Deukmededication, and his dry, but quite infectious, sense of hujian to nominate to the Court of Appeal as an associate justice mor. He is an innovative and consummate leader who enin 1991. In December 2010, Governor Arnold Schwarzenegjoys the trust and confidence of colleagues and court staff. ger nominated him to serve as Presiding Justice (which is also From his regular “Fireside Chats”—an e-mail chat with court the district’s administrative justice) when the Honorable Arstaff “when breaking news or rumors of impending doom thur G. Scotland rearise”—to judges’ tired from the court. meetings, he has Justice Raye was shared the derated “exceptionally tails of the state’s well qualified” by the budget impact on state’s vetting comthe court, offermission and coning explanations firmed unanimously of how we must by the Commission make do with on Judicial Appointless. He was the ments. vision behind the In his 23 years Inaugural Third on the Court of ApAppellate District peal, Justice Raye Conference and has authored nearly Reception held in 3,000 majority opinSeptember 2013 ions, and served on (see March/April Justices Arthur Scotland (ret.), William Murray, Andrea Hoch, Elena Duarte the Judicial Council 2014 edition of Vance Raye, and Kathlen Butz in the foyer of the Library & Courts Building Committee on the Sacramento LawFuture of the Courts, the Trial Court Unification Work Group, yer) and as a result of his efforts and foresight, the Third Apthe Appellate Courts Advisory Committee, and the American pellate District Historical Society will safeguard the history Bar Association Criminal Justice Standards Committee. Other and memorabilia related to the Court and its majestic home law related activities include service as chair of the National well into the future. Governors Association Staff Advisory Committee on CrimiEach justice on the court works directly with just three nal Justice and Public Safety and chair of the Judicial Council staff: two chambers attorneys and a judicial assistant. Justice Committee on Family Law. He is the co-author of a three-volRaye’s staff have been with him for years; his two attorneys— ume treatise on California family law, California Civil Practice: Stella Ruiz and Linda Feltham—for nearly 24 years and his Family Law Litigation (Bancroft-Whitney 1993). He served a judicial assistant, Kris Harper, for 14 years. They uniformly number of years on the California Commission on Judicial express gratitude both professionally and personally, for the Performance including as its chair. He taught at Lincoln Law sense of fairness and humanity he brings to each case, always School and has been an instructor at various educational inexamining a variety of perspectives and encouraging them to stitutes for judges. He is President Emeritus and a founding express themselves freely. He is considerate, open-minded member of the Milton Schwartz/David Levi Inn of Court and and willing to hash out the difficult, perplexing issues. Co-Chair of the California Child Welfare Council. He will be His respectful, sincere, and generous nature is recoginstalled as president of the Council of Chief Judges, a nationnized by his colleagues as well. Justice Cole Blease describes al organization of state appellate court presiding judges, in Vance as a “treasured colleague for a quarter of a century” November 2014, and he is the 2014 recipient of the Robert T. beneath whose reserved demeanor “lies a strong character, a Matsui Community Service Award. profound commitment to the law, an inquisitive mind, and a deeply thoughtful approach to the law.” His former colleague Administrative Leadership Chief Justice Tani Cantil-Sakauye noted recently that JusWhat these accolades and contributions to the develtice Raye’s devotion to the rule of law is “informed by his life opment of the law do not reveal is the natural leadership experiences. . . . His early roots have never left him, and in www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

COVER STORY a program developed for students at Mark Hopkins Elementary School in Sacramento, to improve the literacy of African-American boys. The idea is to help young children create and operate a radio station, requiring them to read, write and speak, thus conferring an educational benefit akin to classroom reading instruction. Recently, Justice Raye authored a proposal for a “100 Black Scholars” program to assist high school students in applying Alana Mathews, Sandra Raye, and Justice Vance Raye Justice Raye and Mediation for college. attend the 2011 event celebrating Justice Raye’s elevation Program Administrator René The Links is a service organizato Presiding Justice Ackerman at a 2013 SCBA tion that showcases talented young Appellate Law Section event African-American male high school fact . . . they have inspired [his] active engagement in diverse students of accomplishment. They participate in a year-long and influential organizations.” schedule of cultural and educational activities. For over 20 years, Justice Raye has administered the oath the young men Community Leadership take at the end of their activities’ year. In their many years in Sacramento, the Rayes have de In his fifth decade of public service, Justice Raye veloped many communities of interest. One interest is health models civility, professionalism, and the highest ethical care and the UC Davis Medical School Leadership Council. standards in all he does. Politically savvy, his ingenuity Another longstanding interest is mentoring African-Ameriand perspective on community issues have contributed can boys and young men. Justice Raye does this regularly, but to programs and opportunities to inspire and encourage without fanfare, behind the scenes. young people and attorneys. He is an extraordinary perHe is one of the founding members of the Sacramento son of quiet strength and unsung efforts, hardworking, Chapter of 100 Black Men and, in 2011, he helped develop modest, generous, keenly intelligent, and certainly a man a program called “Real Men Can Read” that addresses the who never seeks to bring unnecessary attention to himproblem of literacy through mentoring and tutoring by male self. It is a measure of his impact on all who have come role models. The group has mentoring and reading programs within his orbit that he is—quite rightly—recognized as a at various elementary schools. Another mentoring program most worthy recipient of the 2014 Distinguished Judge of developed by 100 Black Men was the KHOP Radio Station, the Year Award.

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Justice Raye having conversation with Abraham Lincoln at the 2013 State Fair

ABAS 26th Annual

Golf Invitational

Sunday, September 14, 2014

turkey Creek Golf Club 8:00 a.m. Shotgun Start

for more information Jerilyn Paik 916.568.1222 or golf@abaslawfoundation.org

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

NEWS FROM THE LIBRARY OF CONGRESS

“Magna Carta: Muse and Mentor” Exhibition at the Library of Congress to Display the 1215 Lincoln Cathedral Magna Carta from England*

or 10 weeks—from Nov. 6, 2014 through Jan. 19, 2015—the Library of Congress will display one of only four surviving copies of Magna Carta from 1215, the great charter of rights and liberties, which will be the centerpiece of the Library’s exhibition “Magna Carta: Muse and Mentor.” The exhibition, which celebrates the 800th anniversary of Magna Carta, will tell the story of the charter’s creation in England, reinterpretation through the centuries, and emergence as an enduring document of constitutional law in the United States. The 1215 Lincoln Cathedral Magna Carta will be on loan from the Lincoln Cathedral in England. The document … will be on display [at] … the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts from Sept. 6 through Nov. 2. Its final stop in America will be the Library of Congress. The Library’s 10-week exhibition will feature medieval manuscripts, published works, prints, photographs, maps, posters and annotated draft opinions by justices of the U.S. Supreme Court. [ In addition to the 800th anniversary, the exhibition marks the 75th anniversary of Lincoln Cathedral Magna Carta’s first visit to the Library of Congress. … On Nov. 28, 1939, the British Ambassador to the United States, in an official cere-

mony, handed Magna Carta over to Librarian of Congress Archibald MacLeish for safekeeping during World War II. The Library placed the document on exhibition until the U.S. entry into the war, when the Library sent Magna Carta to Fort Knox, Ky. The document returned to England in 1946. The Library’s exhibition will show how the interpretation of Magna Carta through the centuries led to the constitutional guarantees of individual liberty brought forth by the Founding Fathers of the United States. It will describe how a number of the most basic principles of the U.S. Constitution— consent of the governed, the right to a trial by jury, the right to due process of law, freedom from unlawful imprisonment and limited government under the law—can be traced to Magna Carta. Also, liberties associated with Magna Carta are not just for the history books; many of those liberties are still being litigated in U.S. courts today. The exhibit’s narrative will start with the creation of Magna Carta (“Great Charter”), which was sealed in 1215 in a grassy meadow at Runnymede, by the Thames, when barons coerced King John into granting a number of rights and liberties. It will cover this conflict, the contents and purpose of Magna Carta and the great

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

*This is an abridged version of a July 1, 2014 press release from the Library of Congress.

charter’s re-issue by subsequent kings and Parliament. As the storyline continues, the exhibition will focus on Magna Carta’s rediscovery in the 17th century, when English jurists, especially Sir Edward Coke, made Magna Carta into the fundamental source of constitutional guarantees of individual liberties; Magna Carta’s adoption and interpretation in Colonial America; and Magna Carta’s influence on the creation of American written constitutions. The exhibition will show the relevance of Magna Carta by tracing four important areas of constitutional jurisprudence from their medieval origins through present-day litigation in the U.S. Supreme Court. A small section will highlight the interpretation of Magna Carta in art, music, drama and cultural commemorations. The Law Library of Congress was established in 1832 with the mission to make its resources available to members of Congress, the Supreme Court, other branches of the U.S. government and the global legal community and to sustain and preserve a universal collection of law for future generations. … [it] provides online databases and guides to legal information worldwide through its website at www.loc.gov/law/.

SECTION NEWS

Andrea Hsu is an associate at Radoslovich | Krogh, PC and a speaker chair of the SCBA’s Business Law Section.

Recent Developments in California Online Privacy Law

May 14, 2014, the SCBA’s Business Law Section hosted an MCLE luncheon at The Firehouse Restaurant in Old Sacramento. Speakers Wayne Chang and Vivian Lei, technology transactions and privacy attorneys from the Palo Alto office of Gibson, Dunn & Crutcher LLP, discussed California’s recent legislative developments protecting online privacy and the impact of California’s online privacy laws on businesses. “Because of the reach and ubiquity of the Internet, California’s online privacy laws affect all online businesses in the U.S., whether or not such businesses are based in California. With a flurry of new online privacy laws enacted last fall and proposed updates to existing online privacy laws introduced this past spring, businesses dealing with California residents must keep a close eye on the developments in privacy law from the California state legislature and on privacy initiatives from the California Office of the Attorney General,” observed Chang. Lei added, “California has always been on the forefront of online privacy legislation. Given the recent abundance of large-scale consumer data breaches and the growing practice by businesses of tracking consumers’ online activities and behavior, privacy concerns will be increasingly critical as larger amounts of electronic devices are used to collect more personal information than ever before.” The online privacy law landscape has been changing rapidly in California, a state known for pioneering the adoption of consumer-protecting privacy laws. The national impact of California’s online privacy laws is pervasive and

by Andrea Hsu

evidenced by California’s Online Privacy Protection Act (“CalOPPA”), Bus. & Prof. Code §§ 22575-22579. Effective since July 2004 and the first of its kind in the United States, CalOPPA requires website operators having access to California residents’ personal information to post a privacy policy. This particular CalOPPA mandate has become the de facto national standard for website operators throughout the United States. Other key topics mentioned in Chang’s and Lei’s presentation included: AB 1844, which governs employer/employee social media usage (codified as Lab. Code § 980); People v. Delta Air Lines, Inc. (San Francisco County Sup. Ct., No. CGC 12-526741); the Do Not Track disclosure law under the recently enacted AB 370 (Bus. & Prof. Code §§ 22575(b)(5)-(7)); the California Minor’s “Delete Button” law (Bus. & Prof. Code § 22580); proposed changes to California’s data security and breach notification laws under AB 1710 (a proposed act to amend Civ. Code §§ 1798.81.5, 1798.82, and 1798.85); and recent case law under California’s Shine the Light law (Civ. Code § 1798.83). Beyond attorneys, the presentation attracted CPAs, private investigators, and other members of the business community. The audience contributed to an extensive and lively question and answer session revealing the diversity of privacy concerns across multiple industries. The SCBA’S Business Law Section hosts MCLE luncheons at The Firehouse the second Wednesday of seven months out of the year. To attend the luncheons, sign up through the SCBA website’s event calendar.

SCBA Business Law Section MCLE luncheon on May 14, 2014 www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

SECTION NEWS

Susan C. Hill is the Chair of the Probate & Estate Planning Section, and a Member at Large on the SCBA Board of Directors.

The Probate and Estate Planning Section’s 2014 Jean C. McEvoy Public Service Award Goes to Borden D. Webb by Susan C. Hill

he Jean C. McEvoy Public Service Award began in 2012 as the “Court Service Award,” with Jean McEvoy as the first recipient. Everyone agreed that Jean was the perfect candidate for the first service award, given by the Probate and Estate Planning Section of the SCBA. In 2014, the award was renamed the Jean C. McEvoy Public Service Award in honor of Jean and because the new name better reflects the criteria for the award, which include all types of public service, not only to the court, but also to the legal community and the population at large. This year’s honoree is Borden D. Webb. All those in attendance (at the House Kitchen and Bar) agreed that Borden is the perfect candidate for this year’s award, certain that our dear Jean would fully endorse Borden as well. Jean had nothing but wonderful things to say about Borden. To her, he was the expert. The Probate and Estate Planning Section provided a number of delicious appetizers, and everyone received a drink on the house. Just like Jean, the written words on this award fit Borden perfectly. The award states that it is being given “in recogni-

tion and appreciation of his dedicated service to the court, to legal services, and to the public interest.” Borden exemplifies the traits of a model attorney, and in fact, goes well above and beyond the expectations for public service in the profession of law. Borden also has personal qualities indicative of a model attorney and human being, above and beyond his high level of service. Comments received when colleagues were asked about Borden included that he is extremely ethical, always good natured and very humble; that he is one of the best estate planning attorneys in town; that he loves the law; and that he has integrity beyond compare. Borden’s partner, Carlena Tapella, told of the time that Borden’s love of both the law and helping others resulted in his bringing a pro per client back from court with him to help that person out, pro bono. Speaking at the event, Jerilyn Paik reflected on Borden helping her out of a tough spot, and Tac Craven said he admired the way that Borden always prefers to work together to solve a problem rather than to work against each other.

Members of the Probate and Estate Planning Section at the PSA event

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Susan C. Hill, Pamela Jones, and B.J. Susich

Judge Christopher Krueger regretted that he could not attend the event, but sent a letter, read by Julia Kaufman, Court Staff Attorney, reflecting his support of Borden as this year’s award recipient and sharing Borden Webb and Tac Craven some of his thoughts on Borden’s service. Other special attendees at the event from the Sacramento County Superior Court included Sharon Kubochi, Candice Chung, and former Court Staff Attorney, Evelyn Skall. Following is a list of accomplishments, commitments, and organizations Borden has participated in over the years. I’m not sure that it is a complete list, but it certainly is a long and notable one. • Graduated #1 in his class at Pacific McGeorge School of Law • Certified Specialist in Estate Planning, Probate and Trust Law • Member of SCBA for over 40 years • Co-founded (with Tac Craven) the Probate & Estate Planning Section of SCBA in 1970’s • Chair of Probate & Estate Planning Section, 1979 • Member of SCBA Bar Council • LRIS Committee • Chair of the Long Range Planning and Bylaws Committee for many years • Member of SCBA Strategic Planning Committee • Probate Mediator Panel • Consistent supporter of the Voluntary Legal Services Program, taking many pro bono cases • Conference of Delegates, now the Conference of California Bar Associations • Past President of Barristers’ Club, 1978 • Super Lawyer, 2012 – 2014 • AV Preeminent rating on Martindale Hubbell (5.0) And finally, one lesser known fact about Borden is that before law school, he served in Vietnam as a Captain in the US Army, Military Intelligence, which is one more service to thank him for! I am sure I have missed other services Borden has provided, but what a list, and a truly upstanding attorney! Congratulations, Borden.

Sacramento County Bar Association Golf Tournament

EVENT

Monday, June 16, 2014

FINAL RESULTS Gross Scramble Results 1st 55 James Schiavenza & Lisa Ventura Kellen Mayberry & Karl Engeman Blind Bogey Scramble Results 1st 65 Norm Prior & Jon Corr Sherry Grob & Judy Radovich 2nd 66 Stephen Derdowski & Jenea Derdowski Robert Miller & Russell Carlson

Special Events Closest-to-Hole #12 6’3” Brian Charter Long Drive #4 Cory Kelly Long Drive #13 Lisa Ventura

THANK YOU TO OUR SPONSORS Shirt Sponsor Phillips Building Consultants Par Sponsor Sacramento River Cats Water Bottle Sponsor Andrew Lundholm, CPA a Professional Corporation Driving Range Sponsor River City Bank Wiley Manuel Bar Association Hat Sponsor Crowe Horwath LLP US Legal Support Lunch Sponsor FindLaw, a Thomson Reuters Business Putting Green Sponsors Blue Prynt Restaurant & Bar Capitol City Trial Lawyers Association FindLaw, a Thomson Reuters Business Hill Law Offices

Hole Sponsors B.J. Susich, SCBA President Caltronics Business Systems Capitol Digital Document Solutions Carroll Burdick & McDonough Cogent Legal Dan Yamshon, Alternative Dispute Resolution Dixon Challenge Dunnigan Realtors Esquire Deposition Solutions FindLaw, a Thomson Reuters Business First Legal Network Heather Hoganson, SCBA 2nd Vice-President Jacobsen McElroy June Powells-Mays, Office of County Counsel Kaizuka & Valcarenghi Law Offices of Frank D. Penney Law Practice of David Graulich Lawyer Referral Information Service Leonard M. Friedman Bar Association Lincoln Law School Littler Mendelson, P.C. On Demand Legal, Inc. Ray Morgan Company Sabrina Thomas, SCBA Secretary/Treasurer Sacramento Valley Affiliate of Susan G. Komen Voluntary Legal Services Xerox

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

Mary Burroughs,

TIPS AND TRICKS

Executive Director Sacramento County Bar Association

Better Photos

Betsy S. Kimball, Editor-In-Chief, Sacramento Lawyer

by Mary Burroughs and Betsy Kimball

BAD Interior - subject in front of source of light.

GOOD Interior - subject is facing source of light.

BAD Exterior - subject in full sunlight.

ould you like to take photographs that are as wonderful as Mary Burroughs takes (see, e.g., SCBA Spring Mixer and Broderick Roadhouse review in the July/ August issue of this magazine)? Forget it; she’s a real pro with decades of experience. But you can take photos of your section’s or affiliate’s event, meeting, etc. that will be so good that the any Editor of this fine publication will want to publish them. Good photos = more photos published. As the current Editor, I am going to start by mentioning several problems and then turn this article over to Mary to provide solutions. Three things that make me not want to publish photographs: (1) Subjects are backlit, (2) photo file size is too small, and (3) photos are out of focus. Running a distant fourth and fifth are photos taken with almost any smartphone and photos with boring or bad composition (please do not submit 10 photos, all of which have the same person – however luminary – in them). And now, here’s Mary to tell you how avoid these problems.

Key tips • Firmly hold the camera. Shaky hands or holding by your fingertips adds noticeable blur to photographs. • If your camera has a zoom, zoom in to your subjects. This helps crop out distractions in the background. If possible have a plain background. • Be mindful of where your camera is focusing. With touchscreen cameras, be sure to select the subject before hitting the shutter button. • Have people squeeze in together standing with their bodies at a 45 degree angle but heads facing the camera. Although this is not a natural stance, in photography space tends to be exaggerated. Plus by squeezing and standing this way tends to make the subjects look thinner. • Ideal group shots are taken as full body or from waist and above.

BAD

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Exterior - subject in partial shade.

GOOD Exterior - subject in full shade.

Tricks • On bright sunny days have your subjects move to the shade. This helps with reducing unattractive harsh shadows and sun flares. • Have people stand/sit in well-lighted settings when inside, preferably near a main light source. Cameras today are fairly sophisticated and will set the color balance based on the predominate quality of light. When using a flash, especially on smaller cameras, the flash is limited. Usually you want to be two or three steps away from the subject.

File Size - Smaller file size compression equals lower quality On your cameras you can adjust size, quality, and format in which your photos will be saved. Most of the today’s cameras give you choice between JPG, TIF, and Raw file format. Raw is the highest quality file format and needs largest amount of memory to be stored. It is used by professional photographers and would require advanced user to use this file. TIF is also high quality format and requires less memory space than RAW but more than JPG. JPG is file format that allow us to manipulate the quality of the image. The way “compression” works: in order to produce smaller file, a lot of information from your image is removed. The result is that you lose mid-tones, and shadows and images will look blurry and blocky. This option is not recommended at all. High quality and largest image size in the JPG format is what you want. This setting is recommended if you are planning to print your images, e.g., have them published in this magazine. If you quickly run out of space on the memory card in your camera, you need to invest in larger memory card. If you use a smart phone to take pictures and then want

to send someone a good quality image, you will be asked to select the size you wish image to be sent. On an IPhone 5, the message asks you to select from “small,” “medium,” “large” and “actual size” and gives you the size of each in KB or MB. Select “original size” or “actual size” file. It will take more time for file to be delivered, but your image will not be compressed or resized and it will look the best possible.

Smartphone Tips Avoid any bright object in your photo when using smartphone cameras. If you are in auto mode your smartphone camera will auto adjust and your image will look dark. If you don’t have any choice and must take photo with bright light behind subject, here is one tip for smartphone photos: if your preview looks too dark, touch parts of the image that are darker, preview will become lighter and you will see more mid-tones; if image become too bright try touching until you are satisfied. While your camera application is working, you can snap a picture by pressing the “+ = volume” button on the side of your smartphone. This allows you to take picture with one hand. This can be handy if you want to take a picture above the crowd or for taking a “selfie.”

Orrick is pleased to support

Sacramento County Bar’s

bench bar reception

united states |

europe | asia

beijing berlin brussels düsseldorf frankfurt hong kong london los angeles milan moscow munich new york orange county paris portland rome sacramento san francisco seattle shanghai silicon valley taipei tokyo washington dc

www.orrick.com

One Last Tip Fill flash (from Betsy). A really long time ago, I was in New Guinea to SCUBA dive. But first we went up to the highlands to visit to Huli tribespeople. They are quite dark skinned and renowned for their body painting; but they are not keen to stand squinting into the midday equatorial sun. My attempt to expose my photos properly for their painted bodies did not yield good results because I did not have a good flash. One photo comes readily to mind: the elders and me. They were gorgeous, but what stands out in the photo is my white face. I needed a fill flash or other light source to capture what I wanted: their dark and beautifully decorated faces and bodies. Joyfully, we are a multi-racial and ethnic group of lawyers here in Sacramento. All colors of people are beautiful. Use plenty of light (flash or natural) for good results.

CERTIFIED PUBLIC ACCOUNTANTS

Consultants and Accountants to Management and Counsel

Proven Expertise Forensic Accounting Fraud Investigations Economic Damages Business Valuation Tax and Accounting Visit us at www.ueltzen.com Contact - Ramona R. Farrell, AVA, CFE 3600 American River Dr., Suite 150 Sacramento, California 95864

(916) 563-7790

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

SECTION NEWS

Heather Cline Hoganson, officer

The Public Law Section Looks at Public Records Act Law by Heather Cline Hoganson

a Public Law Section meeting earlier this year, over 60 attendees heard actual instances of public records requests which validate many agency attorneys’ belief that public records requestors are often nuts. However, the attendees also heard of many instances in which an agency acted out of spite or paranoia, to its ultimate detriment. Thanks go to attorney Paul Boylan, who has spoken at a number of Administrative Law Section events, for sharing his insights into the trending of law in this area. Boylan started his presentation with an older case, Mushet v. Department of Pub. Service (1917) 35 Cal.App. 630, where the City of Los Angeles used public funds and thus the records were held to be public. From Mushet, Boylan moved to discuss a number of cases decided over the past year, both published and unpublished. One new case he mentioned was Sander v. State Bar (2013) 58 Cal.4th 300, in which a unanimous California Supreme Court found a common law right of access (and under Proposition 59) even for those records held by public entities not governed by the California Public Records Act, Gov. Code, § 6250 et seq., when there is a legitimate public interest, and if that interest is not outweighed by other interests. In that case, bar passage rates and LSAT scores were being sought from the State Bar (a “public corporation”) for an academic study. The court held that “there is a sufficient public interest in the information contained in the ad-

missions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure” (id. at p. 304) and ordered a remand so that certain redactions for privacy could be worked out. This case has some great historical analysis of common law understanding of public access to documents. Another important case Boylan discussed was Sierra Club v. Superior Court (2013) 57 Cal.4th 157, which reviewed a claim of propriety computer software file formats and applied the California Constitution to public records, finding that some data was releasable as data without violating the proprietary nature of the program. This case will be very helpful for anyone struggling with the “computer system” exemption of section 6254.9(b) vis-à-vis section 6253.9(a)(1)’s general mandate to make information available, as a legislative history of 6254.9 (enacted in 1988) is discussed. Finally, Boylan cited to Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, from the Third District Court of Appeal, which was a fight about attorney fees stemming from a public records act request, where a city’s claim that a citizen’s request was frivolous was rejected because the issues presented required judicial review. The court found a distinction between “lacking merit” and “frivolous,” holding that plaintiffs

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

of the Administrative Law Section and board member-at-large of the Public Law Section, is an attorney with the Department of Alcoholic Beverage Control and SCBA 2nd Vice-President.

have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win. However, from this writer’s personal perspective, the best part is the court addressing redundancy of the statutory language of 6259, subdivision (d). “The addition of the adverb ‘clearly’ to frivolous does not change the test for purposes of section 6259, subdivision (d). Since a frivolous action is one entirely lacking in merit, there can be no lower standard for a ‘clearly frivolous’ action.” (Id. at p. 1381.) Since this luncheon, a new case has come out, regarding whether the names of police officers involved in on-duty shooting incidents are subject to disclosure: Long Beach Police Officers Assn v. City of Long Beach (Los Angeles Times Communications LLC, Real Party in Interest) (2014) 59 Cal.4th 59, filed May 29, 2014. Along with a discussion of the Pitchess case and subsequently-enacted statutes (Pitchess v. Superior Court (1974) 11 Cal.3d 531; Penal Code §§ 832.7 and 832.8), the court examined the interest to the public in disclosing the names and the potential harm to named officers. The court found that the Pitchess statutes are silent as to whether the names of officers involved in shootings qualify as “personnel records” and thus, unless a specific threat of actual harm is shown (such as if the officer is an undercover operative or a particular gang had made viable threats against the officer involved

in the subject shooting), the public’s right to know is paramount. (Justice Chin, in dissent, would consider names to be “personnel records” and argued that officers have a heightened privacy and safety interest in nondisclosure.) Whether this case brings about a change to the Penal Code may be the subject at a future meeting. Sacramento County Bar Association

Public LAWSECTION UPCOMING EVENTS (reserve a spot through the SCBA office) Joint Administrative Law and Public Law Sections event on September 9, from 12-1 p.m. at Lucca: “Bid Protests: The Good, the Bad and the Ugly” with speakers Glare Gibson, partner at Jarvis, Fay, Doporto & Gibson, LLP in Oakland, and current Editor of the “Public Contracting” chapter of the California Municipal Law Handbook; Erin Holbrook, Deputy Attorney IV with the California Department of Transportation; and Garret Murai, shareholder at Kronick, Moskovitz, Tiedemann & Girard and author of the renowned “California Construction Law Blog.” Public Law Section meeting on Wednesday, October 29 at the Firehouse Restaurant, 12-1:15 p.m., with newly appointed FPPC Chair Jodi Remke Administrative Law Section on October 16, 3:30-5:30 p.m. at the Blue Prynt, “An afternoon of Writs” with Sacramento Superior Court Judges Chang, Frawley, Kenny, and Sumner.

ADVERTISE in

2015 LEGAL DIRECTORY

phone: (916) 564-3780 • email: sales@sacbar.org • www.sacbar.org www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

EVENTS

Maureen C. Onyeagbako is a Deputy Attorney General with the California Department of Justice and a Staff Editor of the Sacramento Lawyer.

California Women Lawyers Hosts Its Annual Forum on the Judicial Appointments Process by Maureen C. Onyeagbako

June 6, 2014, attorneys from around the state convened at Pacific McGeorge School of Law to attend the California Women Lawyers (CWL) “So You Think You Want to Be a Judge?” program. The event, which rotates annually between Northern and Southern California venues, offered viewpoints on the judicial appointments process to novice and seasoned attorneys alike. The program kicked off with a welcome from CWL President Neda Mansoorian and an introduction from CWL Judicial Committee Chair Toni Mims-Cochran. Moderator Lara Krieger then led panelists through a substantive discussion of the appointments process. Responding to hypothetical questions posed by Krieger, Chair of the Commission on Judicial Nominees Evaluation (JNE) Jason Lee, JNE member

Some things are timeless, and our style of doing business at Boutin Jones is one of them. Clients should take center stage—not their lawyers. Talking too much about the work we do is wasting time better spent doing the work. Law firm growth should come from client growth. Three classic principles that never go out of style.

Proven strategies and steady growth for nearly 30 years

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Justice Arthur Scotland (ret.), and Governor Brown’s Senior Advisor in the Judicial Appointments Unit, Joshua Groban, addressed various facets of the appointments process. The hypotheticals covered how the Governor’s Office evaluates applications and makes referrals to JNE; completing the basic application known as the Professional Data Questionnaire; the JNE investigation and interview process; addressing flags or concerns; garnering support and recommendations; and the role of bar associations that conduct independent candidate evaluations. On the issue of politics, Groban maintained that Governor Brown does not consider a candidate’s political affiliation and that recommendations from politicians or celebrities who do not know the candidate will not influence the decision-making process. Additionally, Lee and Krieger simulated a JNE interview in order to highlight and contrast strong and weak responses. The second half of the program consisted of smaller workshops hosted by three to four judge panels. This structure gave attendees an opportunity to speak directly with those who had successfully navigated the appointments process. In the workshop led by U.S. District Judges Kimberly Mueller (Eastern District of California) and Yvonne Gonzalez Rogers (Northern District of California), together with Sacramento County Superior Court Judges Judy Holzer Hersher and Tami Bogert, each judge shared a unique story about her path to the bench. These stories highlighted the fact that there is no single approach to becoming a judge. Common to all for judges’ stories, however, was that each judge had a reputation for excellence in the profession and engagement with the community before joining the bench. The judges also emphasized that both the appointments process and work as a judge require a thick skin and the respect of one’s colleagues. In addition to the aforementioned judges, other workshop panelists included Justices Adrienne Grover and Elena Duarte of the Court of Appeal, Judges Emily Vasquez, Thadd A. Blizzard, and Laurie Earl of the Sacramento County Superior Court, Judge Kimberly Colwell of the Alameda County Superior Court, and Judge Linda McFadden of the Stanislaus County Superior Court. Note: Additional information about the JNE process may be found in Ken Malovos’s articles, “If You Ever Thought of Applying to be a Judge,” in the March/April 2014 and June/ July 2014 editions of Sacramento Lawyer.

Jeffrey R. A. Edwards is a member of the SCBA Board of Directors and an associate at Mastagni, Holstedt, Amick, Miller & Johnsen.

AFFILIATES NEWS

SacLEGAL Celebrates LGBT Pride Month by Jeffrey R. A. Edwards

SacLEGAL members and allies at the Sacramento LGBT Pride Parade

Jo Michael, Sacramento LGBT Community Center Board President David Heitstuman, and Amy Williams

ment. Sacramento’s pride parade and festival benefits the Sacramento LGBT Community Center in midtown. SacLEGAL also had reason to celebrate as two of its members received awards at the Sacramento LGBT Community Center’s PRIDE Awards on June 24th at the Hyatt Regency. Amy Williams and Jo Michael received the awards to recognize their leadership, service, and commitment to the LGBT

community. Williams is the Managing Attorney of LSNC-Health, part of the Legal Services Corporation of Northern California. Michael is a Legislative Associate with Equality California and Co-Chair of SacLEGAL. The PRIDE Awards were organized by LGBT Community Center Board member Robb Layne, husband of SacLEGAL member Marc Koenigsberg, Of Counsel at Greenberg Traurig, LLP.

acLEGAL, Sacramento’s LGBT bar association, celebrated LGBT Pride Month on June 14, 2014 with a spirited contribution to the 30th annual Sacramento LGBT Pride parade. SacLEGAL members and allies dressed as their favorite super heroes in a funfilled float in the parade. LGBT pride parades happen worldwide every June to commemorate the June 1969 Stonewall Riots, one of the most important early events in the LGBT rights movewww.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

AFFILIATES NEWS

Heather Thomas is the 2nd Vice President of the Wiley Manuel Bar Association and an attorney with Legislative Intent Service, Inc.

Mayor Kevin Johnson Attends the Successful Wiley Manuel Bar Association Law Day Mixer. by Heather Thomas

Judge James L. Long (ret.), Dr. Abe McIntosh, and Justice William Murray enjoy the gathering while Bob Buccola looks on.

a throng of judges, attorneys, and law students looked on, Mayor Kevin Johnson recalled how, as a child growing up in Sacramento, retired Sacramento County Superior Court Judge James L. Long and prominent Sacramento physician Abe McIntosh served as mentors to him and his parents. Calling Judge Long a pioneer, the mayor noted that Judge Long had either ruled upon, or had been involved in, several cases and events that advanced the cause of civil rights. “Thank you and congratulations for your leadership,” the mayor said to Judge Long. Mayor Johnson spoke during the Wiley Manuel Bar Association Law Day Mixer in May. The mixer is an annual event at which judges, attorneys, and law students can get to know one another in a casual environment. Students can ask all the questions they want and seek all the help they need. And sometimes, students and professionals make connections that influ-

Sacramento Mayor Kevin Johnson addresses the crowd.

Judge Kevin Culhane and student Kaliah Kirkland

ence the development of the students’ careers. About 85 people attended this year’s event. WMBA thanks Judge Long for opening his home for the event. WMBA also thanks Mayor Johnson, Dr. McIntosh, attorney Robert Buccola (who helped sponsor the event), California State Board of Equalization Executive Director Cynthia Bridges, Sacramento County Superior Court Executive Officer Tim Ainsworth, retired Alameda County Superior Court Judge Horace Wheatley, Sacramento County Public Defender Paulino Durán, Charles Houston Bar Association President Cometria Cooper, Assistant Sacramento City Attorney Sandra Talbott, and everyone who attended and who contributed to the scholarship fund. WMBA Past President Renee Carter, along with President Shanae Buffington, 1st Vice President Carlton Davis, 2nd Vice President Heather Thomas, Secretary Carmen-Nicole

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Lincoln Law School student Jody Johnson and Sacramento Public Defender Paulino Durán

Cox, Treasurer Gary Lindsey, Financial Secretary Audreyell Anderson, Sergeant-at-Arms Keith Staten, Parliamentarian Cathy Ongiri, and Member-at-Large Maureen Onyeagbako helped plan and execute the affair. The Wiley Manuel Bar Association is an association of African-American attorneys whose stated purpose is “to provide an organized bar affiliation to represent the professional interests of the legal community in Sacramento, with special emphasis on Black attorneys; to promote the administration of justice; and to make use of legal tools and Legal discipline for the advancement of the economic, political, educational, and social interest of Sacramento, especially the Black community.” WMBA is open to any interested student or legal professional in the Sacramento region. For more information, visit the organization online at http://wileymanuelbarassociation.com or contact it at sacwmba@gmail.com.

AFFILIATES NEWS

Tej Grewal is President of SABA Sacramento.

Sonia Fernandes is Member at Large of SABA.

SABA Sacramento Celebrates Its Sixth Year by Sonia Fernandes and Tej Grewal

outh Asian Bar Association of Sacramento (“SABA Sacramento”) held its annual reception on June 6, 2014. SABA Sacramento was honored to have U.S. District Judge Vince Chhabria of the Northern District of California as the keynote speaker at this intimate reception. Judge Chhabria delivered his keynote address almost three months after receiving his commission. He is the first federal Article III judge of South Asian descent in California.

Judge Chhabria shared with the crowd his career path leading to his recent appointment to the bench. He spoke fondly of experiences throughout his entire career, including his time as a law clerk to Judge Charles R. Breyer, U.S. District Court, Northern District of California, and law clerk to Associate Justice Stephen G. Breyer, Supreme Court of the United States, as well as years as a litigator in private law firms. He also expressed the impact his

experience as a Deputy City Attorney, and most recently, Chief of Appellate Litigation, in the San Francisco City Attorney’s Office, will have on his role on the bench. He offered inspirational advice to young attorneys to follow the path they enjoy the most. SABA Sacramento extends special thanks to the sponsors of this event: Downey Brand, LLP, Radoslovich | Krogh, PC, Shergill Law Firm, Porter Scott, and Wilke Fleury.

Robin Basra, Judge Emily Vasquez, and Paloma Velez

Judge Troy Nunley, Judge Vince Chhabria, and Judge Kimberly Mueller

Alana Mathews, Megan Lewis, Steven Williamson, and Harjit Kaur

Katie Nystrom is an associate at Kronick Moskovitz Tiedemann & Girard and the Barristers’ Media Chair.

BARRISTERS’ NEWS

Barristers’ Club Update by Katie Nystrom

Barristers’ Club Hosts an Educational and Informative Mediation Seminar.

ver lunch on June 12, 2014, Barristers’ Club members gathered at Kronick Moskovitz Tiedemann & Girard for some great advice from the pros regarding the benefits of alternative dispute resolution. Judge Judy Holzer Hersher, Justice Fred Morrison (ret.), and Bay Area mediator Duf Sundheim presented “Succeeding at Mediation,”

a practicum on how to get clients and opposing counsel to say “OK, fine.” The trio advised Barristers’ members on the benefits and costs of three forums: mediation, arbitration, and the courtroom. Members were reminded that mediation is always an option, and to think of what is best for their clients’ cases when considering arbitration or taking the case all the way to court. The Barristers’ Club extends its gratitude to these three fantastic presenters for offering Continued on page 34 www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

SACRAMENTO COUNTY BAR ASSOCIATION

100% Club Abbott & Kindermann LLP

Klinedinst, PC

Archer Norris

Knox Lemmon & Anapolsky

Bartholomew & Wasznicky, LLP

Kronick Moskovitz Tiedemann & Girard

Bartkiewicz Kronick & Shanahan

Langenkamp Curtis & Price, LLP

Boutin Jones, Inc.

Lauria Tokunaga Gates & Linn, LLP

Carroll Burdick & McDonough LLP

Legacy Law Group

CA Dept. of Veterans Affairs

Littler Mendelson PC

CAL HR

Locke Lord, LLP

CA Medical Association

Longyear O’Dea & Lavra LLP

Chang Ruthenberg & Long PC

Mastagni, Holstedt, Amick, Miller & Johnsen, A Prof. Corp.

Cook Brown, LLP Cuneo Black Ward & Missler Day Carter & Murphy LLP Desmond Nolan Livaich & Cunningham Diepenbrock Elkin, LLP Downey Brand, LLP Dreyer Babich Buccola Wood Campora, LLP

Matheny Sears Linkert & Jaime LLP Meegan Hanschu Kassenbrock

Nossaman LLP Olson Hagel & Fishburn LLP Palmer Kazanjian Wohl Hodson, LLP Porter Scott Radoslovich | Krogh, PC

Fagen Friedman & Fulfrost LLP

Rediger McHugh & Owensby LLP

Farmer Smith & Lane LLP

Remy Moose Manley, LLP

Felderstein Fitzgerald Willoughby & Pascuzzi, LLP

Renne Sloan Holtzman Sakai LLP

Gurnee Mason & Forestiere, LLP Hackard Law Corporation Hanson Bridgett LLP Hansen Kohls Sommer & Jacob LLP Hardy Erich Brown & Wilson Hefner Stark & Marois, LLP

Rothschild Wishek & Sands, LLP Schuering Zimmerman & Doyle LLP Smith McDowell & Powell Somach Simmons & Dunn Stoel Rives, LLP Thomas Law Group Timmons Owen & Owen Inc.

Hiroshima Lewis & Daggett

Wagner Kirkman Blaine Klomparens & Youmans, LLP

Jacobsen & McElroy, PC

Weintraub Tobin

Johnson Schachter & Lewis, A Prof. Law Corp.

Wilke Fleury Hoffelt Gould & Birney LLP

their unique perspectives and delivering such an interesting and informative seminar. Justice Rick Sims (ret.) Presents a Motion for Summary Judgment Seminar. The Barristers’ Club warmly welcomed back Justice Rick Sims (ret.) for another highly educational motion for summary judgment seminar on June 17, 2014, at Downey Brand. Prior to the seminar, Justice Sims provided attendees with valuable resource materials for review before, during, and after the presentation. The materials, along with Justice Sims’s presentation, provided an extensive look at the practice and procedure of summary judgment. Justice Sims spoke primarily about defense motions for summary judgment, as he only heard two motions from the plaintiff side during his tenure on the bench for the Third District Court of Appeal. Whether for plaintiffs or defendants, however, the presentation served as an excellent introduction to motions for summary judgment for new attorneys, as well as a fantastic refresher for those with more experience. Justice Sims reminded attendees to hold on to the materials he provided, as they will be very useful resources for future motion writing. The Barristers’ Club would like to thank Justice Sims for yet another enlightening presentation.

Murphy Austin Adams Schoenfeld LLP

Ellison Schneider & Harris LLP

Greenberg Traurig

BARRISTERS’ NEWS Continued from page 33

SACRAMENTO LAWYER | September/October 2014 | www.sacbar.org

Index of Advertisers ABAS Golf Invitational. . . . . . . . . . . . . . . . . . . . . . page 21 ADR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 29 ASA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 31 Attorney Shield. . . . . . . . . . . . . . . . . . . . . . . . . . . page 35 Boutin Jones Inc. . . . . . . . . . . . . . . . . . . . . . . . . . page 30 Eleakis & Elder Photography. . . . . . . . . . . . . . . . . page 9 FindLaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 17 Hon. Darrel Lewis. . . . . . . . . . . . . . . . . . . . . . . . . page 3 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3 Jay-Allen Eisen Law Corporation. . . . . . . . . . . . . . page 6 Ken Malovos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9 Locke Lord LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9 Matheny Sears Linkert & Jaime LLP. . . . . . . . . . . . page 21 Mastagni, Holstedt, Amick, Miller & Johnsen, A Prof. Corp.. page 21 Northern California Collections. . . . . . . . . . . . . . . page 7 Orrick. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 27 Ramirez Arbitration. . . . . . . . . . . . . . . . . . . . . . . . page 12 Rulands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9 Sacramento County Public Law Library. . . . . . . . . page 14 SCBA 100% Firms . . . . . . . . . . . . . . . . . . . . . . . . page 34 SCBA Legal Directory . . . . . . . . . . . . . . . . . . . . . . page 29 SCBA Annual Bench Bar Reception. . . . . . . . . . . . back cover The Ridge Golf Course & Events Center . . . . . . . . page 35 Thomson Reuters . . . . . . . . . . . . . . . . . . . . . . . . . page 2 Ueltzen & Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . page 27 Buzz Wiesenfeld. . . . . . . . . . . . . . . . . . . . . . . . . . page 14 Unity Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15

MAKE SURE YOUR REPUTATION IS PROTECTED WITH MALPRACTICE INSURANCE FROM ATTORNEY SHIELD. Scan or visit www.attorneyshield.com to learn more about Attorney Shield.

Call 1-800-510-8240

•

www.attorneyshield.com

www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

1329 Howe Ave., #100 • Sacramento, CA 95825

ship r o s Spon tunities: or Opp or pons

S Shirt ponsor S or Hat pons r S e l o Eag pons S e i Bird Sponsor Par Sponsor r er Dinn h Sponso nsor Lunc ange Spo sor n ing R reen Spo v i r D nsor ing G Putt ole Spo H

Space is limited CALL TODAY!

Individual Golfer $150 Golf Foursome $600

Announcing FIRST ANNUAL

Sacramento County Bar Association Golf Tournament Monday, June 17, 2013 Del Paso Country Club

Site of the 2015 Senior US Open

Lunch and Awards Dinner with Silent Auction 12:30pm Shotgun Start Four-Person Team Format / Scramble Festivities include: Silent Auction • Lunch on the course • Driving Range Putting Contest • Raffle • Tee Prizes • Awards Dinner

Call or Email TODAY for a Registration Packet Sacramento County Bar Association

1329 Howe Ave., Suite 100, Sacramento, CA 95825 ForLAWYER more| September/October information2014 call 916-564-3780 x200 • Email: reception@sacbar.org | www.sacbar.org 36 SACRAMENTO