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					February 2010                                                                                                      Volume 41, Issue 2
                                                                The Marin Lawyer




                            An Official Publication of the Marin County Bar Association


                                    GENERAL MEMBERSHIP
                                    MEETING                                                         Calendar of Events
                                    ATTORNEY FOR THREE GUANTANAMO                                      February 24, 2010
                                    BAY DETAINEES TO SPEAK AT GENERAL                                  General Membership Meeting
                                    MEMBERSHIP MEETING                                                 12-1:30 pm

                              Andy Moss, a member of a small team of lawyers                           February 16, 2010
                         representing three men imprisoned at the U.S. Naval                           Family Law Section Meeting
                         Station in Guantanamo Bay, Cuba will address the                              12 – 1:30 pm
                         Marin County Bar Association at its monthly member-
ship meeting at noon on Wednesday, February 24, 2010, at San Rafael Joes,                              February 17, 2010
931 Fourth Street, San Rafael. This is your chance to hear from an attorney                            ADR Section Meeting
who is actively litigating petitions for three Guantanamo Bay detainees from                           12 – 1:30 pm
Tajikistan, Syria and Palestine. The issue of the Guantanamo Bay detainees
is front and center in today’s headlines, and goes to the heart of America’s                           Probate & Estate Section Meeting
legal system and democratic values. This promises to be a very interesting                             12-1:30 pm
and informative talk. Don’t miss it!                                                                   February 22, 2010
                                                                                                       Probate & Trusts Mentor Group
    Andy Moss is an attorney with Reed Smith in Chicago. Andy lived in
                                                                                                       12-1:30 pm
Marin County before attending college at Tufts University, and law school at
DePaul University College of Law, where he received his J.D. with honors,
                                                                                                       February 25, 2010
Order of the Coif. Andy clerked for Circuit Judge Ilana Diamond Rovner, U.S.
                                                                                                       Real Property Section Meeting
Court of Appeals for the Seventh Circuit, before joining Reed Smith.
                                                                                                       12:00 – 2:00 pm
    Please register for this exciting program by completing the reservation
form on page 2.                                                                                      Look for details each month in
                                                                                                     The Marin Lawyer




In This Issue                                              THE CONFRONTATION CLAUSE AND OUT OF
President’s Message .............................. 2       COURT STATEMENTS NOT OFFERED FOR
Spotlight on Randy Wallace .................. 3
Court News ........................................... 4   THE TRUTH OF THE MATTER ASSERTED.
Online Register of Actions .................... 5
Going Green .......................................... 6   By Charlie D. Dresow*
Governor Signs State Bar Fee Bill ........ 6
Marin County Youth Court ................... 7                   The right to confront one’s accuser dates back
Marin County Jury Verdicts .................. 8            to at least Roman law. “The Roman Governor Fes-
Judge Michael Dufficy Retires.............. 9              tus, discussing the proper treatment of his prisoner,
Capitalization Rate .............................. 10      Paul, stated: ‘It is not the manner of the Romans to
Calendar Details .................................. 13
New Members/Change of Scene ......... 14                   deliver any man up to die before the accused has
Marketplace......................................... 15    met his accusers face to face, and has been given
 Otis Bruce, Jr. was Guest Editor of this                  a chance to defend himself against the charges.’
 issue of The Marin Lawyer. Kate Rockas                    Acts 25:16.” (Coy v. Iowa (1988) 487 U.S. 1012,
 is Series Editor for 2010.                                1015–1016). Confrontation is the key to a fair            (Continued on page 11.)
                                                                                                                                           1
                                                    The Marin Lawyer

                              PRESIDENT’S                             ent perspectives makes me a better attorney, and a better
                                                                      person. In addition, I now have a host of specialists in
                              MESSAGE                                 various practice areas to whom I can refer clients when
                              WHY GET INVOLVED                        they need services that are beyond my expertise. And this
                              WITH MCBA?                              works both ways; I also regularly receive referrals from
                              By Beth S. Jordan
                                                                      other MCBA attorneys who are familiar with me and my
                                                                      practice. I have a pool of colleagues that I routinely call to
                                                                      gather information and advice regarding opposing counsel,
                              “Strive not to be a success, but
                                                                      experts, potential clients, judges, and legal issues. Get-
                              rather to be of value.”
                                                                      ting to know other attorneys also helps keep us civil: it’s
                                               Albert Einstein
                                                                      much harder to be a jerk when litigating against someone
                                                                      with whom you’ve had lunch, or that you know you’ll be
                                While recently attending a
                                                                      litigating against again and again.
law-related function, I was taken aback when a colleague
asked me: “Why should one participate in the Bar Associa-                  I’ve also gotten to know and appreciate our judicial
tion? What do you get out of it?” Having been involved                officers in a different way. MCBA has been graced with
with MCBA as a Director for five years now – four of them             the willing and outstanding participation of the Marin
as an officer - as well as having served for three years as           County judges and commissioners in a whole spectrum of
Co-Chair of the MCBA Family Law Section, I was truly                  Bar-sponsored activities. They, too, are busy and dedicated
surprised. I thought the benefits of being involved with              professionals who give of themselves and their time. In
MCBA were obvious; apparently they’re not. So I gave this             fact, a number of our judges formerly served as MCBA
some concerted thought and came up with the following.                Presidents: Hon. Verna Adams; Hon. Michael Dufficy;
                                                                      Hon. Lynn Duryee; Hon. Richard Breiner (Ret.); Hon.
     There’s the fellowship. I get to be part of a community
                                                                      Beverly Savitt (Ret.); and Hon. Peter Allen Smith (Ret.).
of, and interact with, talented, interesting and creative law-
yers in Marin County. Through my service on the MCBA                       Aside from amassing great human resources and
Board, my Section membership, and attendance at MCBA                  comraderie, perhaps most important, there’s that feeling
general membership meetings and other MCBA functions,                 of satisfaction that one gets from being of service – from
I have worked side by side with, socialized with, and got-            giving of oneself. I think we all have the desire, not only to
ten to know a number of such lawyers, in my own practice              be useful and productive, but to “give back” in some way;
area, as well as in others. And I am confident that, but for          to feel we’ve done some “good.” Along the way, we’ve all
my involvement with MCBA, I wouldn’t have met many                    had help and encouragement from others in the profession,
of the attorneys practicing outside the area of family law.           whether it’s in the form of a mentor, referral of that gem of
When I walk down the halls of the courthouse, I greet and             a case or client, or some other unexpected opportunity that
am greeted by those same attorneys. It’s nice to feel like            became a reality because of someone else. Participating in
I belong. When I first moved my practice from San Fran-               MCBA, whether it’s assuming a leadership position as an
cisco to Marin County in 2000 and changed my practice                 officer and/or director, or a committee or section chair, is a
area to family law, I didn’t feel that way; I definitely felt         significant way to ‘give back’. But even if one doesn’t want
like an out-of-towner.                                                to assume a leadership position, MCBA provides innumer-
                                                                      able other opportunities for attorneys to ‘give back.’ Serving
     As a result of having met such a wide variety of at-
                                                                      on any of MCBA’s standing committees is a meaningful
torneys, I’ve also gotten to hear opinions and ideas that
I wouldn’t have otherwise heard. Having heard differ-                                                            (Continued on page 9.)
 RESERVATION FORM                             General Membership Meeting                              Speaker: Andrew Moss
 Please make ____ reservations for me at San Rafael Joe’s at 931 4th Street, San Rafael on Wednesday February 24, 2010, from 12-1:30 pm.
         Please choose one: ___Roast Sirloin of Beef ___ Chicken Caesar Salad ___ Cannelloni Ala Romana
 Name(s) or Firm Name:____________________________________________ Phone:______________________
  Enclosed check for __________($27 members and $37 non members. Walk in $5 more)
  Visa  Mastercard ______________________________________3 digit code_________ Exp _____________
 Address _________________________________________________________________ Zip ________________
                              Please, we must have RSVP’s by Feb. 19, 2010
   Make checks payable to MCBA and mail to: MCBA, 30 North San Pedro Road, Ste. 140, San Rafael 94903.
            Reservations are non-refundable unless the individual provides at least 24 hours cancellation notice to MCBA.

2
                                               The Marin Lawyer

                          MEET YOUR                            song. They fought the hard fight when told they could not
                                                               do something. At a young age saying you could not do
                          DIRECTORS                            something resonated with me.
                          SPOTLIGHT ON RANDY                        1968 was a pretty tumultuous year. I turned 18 and
                          WALLACE                              was a freshman at U.C. Berkeley. The events during those
                                                               years shaped me and pointed me in the direction of law.
                            Among the new attorneys            I always loved a good argument. I had a comfort level
                        selected to the MCBA Board             standing up in front of people and speaking. I had a good
                        of Directors is Randy Wallace.         skill set that lent itself to being a lawyer such as finding
                        Randy is a solo practitioner,          solutions for people’s problems. And, in my own corny
                        mediator, referee, and special         and idealistic way, I thought being a lawyer was a “noble
                        master. His office is located at       calling.” It meant something to me and it still does.
                        1000 Fourth Street Suite 580 San
Rafael, CA 94901 Phone: (415) 456-8400. Fax: (415) 456-              The Marin Lawyer: Why do you live in Marin County?
8484. Email: jrw@jrwallacelaw.com. Website (coming                   Randy Wallace: Living in Marin was an easy choice.
soon): www.jrwallacelaw.com.                                   My parents built their house on Vista Grande in Green-
                                                               brae in July 1950. I was born two months later. I went to
      The Marin Lawyer: What is your practice area?            Greenbrae Elementary School, Kent Junior High School
      Randy Wallace: In thirty two years of practicing         and then Redwood High School. Marin is and always was
law I have had a cornucopia of practice areas. For the past    my home. Since 1977 I have lived in the Gerstle Park
fifteen years those areas involved being a lawyer, media-      District of San Rafael, about a mile as the crow flies from
tor, referee and special master in construction defects and    my childhood home.
contractor/owner disputes, representing fiduciaries and              The Marin Lawyer: What do you love to do when
family members in trust estate and elder abuse matters, and    you’re not busy practicing law?
in real property claims running the gambit from landslides,          Randy Wallace: I ride my mountain bike in the Marin
water diversion issues, disputes with neighbors, bound-        Open Space-Marin Headlands- Mount Tam-MMWD water-
ary line issues, easements, noise, barking dogs, nuisance,     shed or anywhere else there is a good ride so long as it’s up
fences, driveways and trees, representing sellers, buyers,     hill. You might see me on the mound at Albert Park on my
real estate professionals, termite and property inspectors     Giant’s Baseball team in the West Coast Fantasy Baseball
in the purchase and sale of homes, and plaintiff’s personal                                           (Continued on page 12.)
injury cases.
     The Marin Lawyer: Do you have a particular em-                One call gets them out of any jail in the USA
phasis?
     Randy Wallace: Several of my former partners at
Ragghianti Freitas told me that my emphasis was what
                                                                   ALDRIDGE BAIL BONDS
they called “Randy cases.” Any case with difficult facts,                                      JOSEPH ALDRIDGE
difficult lawyers, difficult clients and chaos that required                                         BA # 1840836
order and uber-organization. When any of them said that,                                        ASHLEY ROBLES
it was accompanied by a grin. I guarantee several of them                                            BA # 1844686
are smiling right now as they read this statement.
     The Marin Lawyer: Why did you decide to become                                            (415) 457-2222
a lawyer?                                                                                     www.bailed.com
     Randy Wallace: Leo Miller was a court report in San
Francisco and a friend of my parents. He reported for a
number of Marin County judges, Joe Wilson in particular.
Leo eventually formed Miller and Leedy, a court reporting
service. Leo used to tell me stories about what went on in        ATTENTION MARIN LAWYERS
the courtroom with the judges and famous lawyers in the                 8% for all attorney referred bail
1950’s and 1960’s. I was mesmerized; asking him ques-
tion after question after question until my parents usually           No annual renewal fee on bail bonds
had to get me to stop.
     Then there were the lawyer shows. My favorite was           Aldridge Bail Bonds is a family run business serving Marin
the short lived series called “The Defenders” staring E.G.       and the North Bay. As someone who spent his formative
Marshall and Robert Reed. It was a father and son part-          years attending both grammar school and high school in
nership that took on the legal issues of the time. Unlike        Marin, I am committed to providing you with the most
Perry Mason, they actually lost cases. I can still see the       professional and helpful service possible. – Joe Aldridge
courthouse in the opening credits and hear the trumpet solo
                                                                                                                              3
                                               The Marin Lawyer

COURT NEWS                                                     L       Duryee                             Presiding Judge of Juvenile
JUDICIAL WORKLOAD REASSIGNMENTS                                                                           Court
                                                                                                          Misd. Master Calendar –
      With the impending retirements of Judges Dufficy and                                                Mondays Department M –
Sutro, the Court has authorized an interim judicial assign-                                               Wed p.m. Settlements
ment plan to address judicial vacancies until new judges are                                              T, W, Th a.m. – Civil/Probate
appointed or elected to the vacant seats. We are pleased to                                               T, Th p.m. – Family Law
announce that Retired Judge Lynn O’Malley Taylor will be                                                  Fri. – follow-up STLCs
sitting on assignment in Marin for the foreseeable future.     M     Wood                                 Misdemeanors and Felonies
She will preside over criminal and civil trials and assist                                                Misc. misd. settlements -
with settlement conferences.                                                                              Wed a.m.
      Please note that the Court will reduce the number of                                                Family Law Settlements –
civil departments from three to two, but will pilot a new                                                 Wed p.m.
settlement department for civil, family law and probate        N     Chernus/Hochman                      Traffic
cases. The number of vertical felony panels will remain at                                                Small Claims
four. Some of the collaborative justice court assignments                                                 Adult Drug Court
will also change.                                                                                         Riese Hearings
      Effective March 1, 2010, judicial assignments will be    O     Heubach                              Family Law
as follows.                                                                                               STAR Court
                                                               P     Chernus/Hochman                      Misdemeanor Jury Trials
Dept. Judicial Officer      Assignment                                                                    DCSS
A     Goldfine              Juvenile Dependency
                            Juvenile Delinquency               Please note that this assignment system is subject to change
                            Juvenile Drug Court                as judicial appointments or other workload adjustments
                            Conservatorships                   are made.
                            Guardianships
                            Restraining Orders
B      Vacant                                                            “Providing Complete ADR Services!”
C      Boren                Felonies
D      Sweet                Felonies
                            Prop. 36
                            Appellate Panel
E      Ritchie              Assistant Presiding Judge
                                                                   JUDGE MICHAEL J. BERGER*                     PATRICK M.BRODERICK
                            Supervising Civil Judge
                                                                   JUDGE RICHARD H. BREINER*                    CLAYTON E. CLEMENT
                            Civil                                  HON. JEANNE MARTIN BUCKLEY*                  W. GREGORY ENGEL
                            Juror FTA Calendar                     JUDGE VICTOR M. CAMPILONGO*                  HOWARD M. GARFIELD
                            Appellate Panel                        JUDGE JOHN J. GALLAGHER *                    PERRY D. LITCHFIELD
F      Haakenson            Supervising Criminal Judge             JUDGE ISABELLA H. GRANT*                     GARY T. RAGGHIANTI
                            Presiding Judge                        JUDGE RON GREENBERG *                        PAMELA M. SAYAD
                                                                   JUDGE INA LEVIN GYEMANT*                     MICHAEL D. SENNEFF
                            Appellate Division
                                                                   JUDGE HADDEN ROTH*                           SUSAN E. SPAR
                            Felonies                               JUDGE VERNON F. SMITH*                       MATTHEW N. WHITE
G      Simmons              Felonies                                                                            W. BRUCE WOLD
                            Motions on Wednesdays
                            Appellate Panel (Alternate)            Validated Parking     Famous RESREM Lunches
                                                                                              –
H      Taylor (Retired)     Criminal and Civil Trials              Look for us on the Web-www.resolutionremedies.com
                            Settlement Conferences                 *Retired
J      Adams                Civil
K      D’Opal               Supervising FL Judge
                            Family Law                              Diane Levinson-Fass, President              Diane Story, Vice President

                            Probate Estates and Trusts                        for more information call   : (800) 778-2823
                            Family Violence Court
4
                                                            The Marin Lawyer

MARIN COUNTY SUPERIOR                                                          ful tool to answer questions and avoid unnecessary trips to
COURT ANNOUNCES ONLINE                                                         the courthouse. Our philosophy is to encourage the public
                                                                               to be on-line, not in line.” The on-line register of actions
REGISTER OF ACTIONS                                                            will go live in February or early March.
       To make it easier for the general public and attorneys to                     For additional information, contact Kim Turner, Court
gain access to information about some court cases, the Marin                   Executive Officer at (415) 444-7020.
County Superior Court will soon provide registers of action
(also sometimes called court dockets) on-line for civil and
probate cases. This new feature will be available on the court’s
website at www.marincourt.org. This innovation marks the
latest in a series of technology enhancements to improve ac-                                   Save the Dates
cess to public court records for parties and attorneys and to
provide reliable alternatives to coming to the courthouse to                                           March 5th
seek information.
                                                                                               Retirement Luncheon
       Presiding Judge Terrence R. Boren highlighted the
benefits of this welcome addition to the court’s website.                                 For Judge Michael Dufficy
He stated, “In this time of diminishing resources and staff-                                             12-2 pm
ing levels, the addition of a web-based register of actions                        Four Points Sheraton, San Rafael
for non-confidential cases will relieve pressure on staff to
provide this information in person and will reduce public
frustration caused by waiting in line for information that
                                                                                                      March 24th
should be readily available electronically.” Former Pre-                                            MCBA & LAM
siding Judge Verna A. Adams added, “Before I became a                                 Pro Bono Appreciation Lunch
judge, this kind of solution would have saved me countless                                            12-1:30 pm
trips to the courthouse just to find out the status of my cases.                        Rickey’s Restaurant, Novato
I am sure litigants and our local attorneys will appreciate
this innovation.”
       Most civil and probate cases are open and available
to the public and will be included at the website. Juvenile
cases and some probate case-types are confidential under                                                                         Depositions
California law, so they will not be available on-line. Cali-                                                                     Trial Preparation
fornia Rules of Court also prohibit the Court from making                                                                        Trial Software Training
available family law, conservatorship, guardianship and
                                                                                                                                 Trial Presentations
civil harassment cases on-line. Likewise, any cases that                                                          Depositions
have been sealed by a judge will not be available. Criminal                                                                      Courtroom Set-up
                                                                                                                  Trial Preparation
and traffic case dockets are not part of this new functional-
ity, as these cases are managed in a legacy computer system      LEGAL                                            Trial Software Mock Trials
                                                                                                                                  Training
                                                                                                                  Trial Presentations
                                                                                                                                 In House Synchronization


                                                                 VIDEOS, LLC
that make the dockets difficult to access in a web-based                                                          Courtroom Set-up
                                                                                                                                 Duplication & Editing
application.
       The public should also note that these registers of
                                                              LEGAL                                               Mock Trials
                                                                                                                                 Day-in-the-Life
                                                                                                                  In House Synchronization

action are not the ‘official’ court record. To get certified
                                                              VIDEOS, LLC
copies of registers of action, a trip to the courthouse or ar- and SonomaRedwood since 1988F #150 Court Reporters Wireless Internet
                                                      Serving Marin
                                                                         Serving Marin and Sonoma Counties since 1988

                                                                        4340 Counties Highway
                                                                                                                  Duplication & Court Reporters
                                                                                                                  Day-in-the-Life
                                                                                                                                  Editing

                                                                                                                                 Free
rangements to prepay and receive documents by mail will                 San Rafael, CA 94903
                                                                                                                                 Video Teleconferencing
                                                                                                                  Free Wireless Internet
                                                      4340 Redwood Highway F #150
still be required. The on-line information can be viewed and                                                      Video Teleconferencing
                                                      San Rafael, CA 94903
printed, but should not be confused with official records,              www.legalvideos.com
obtained from court staff.                                              info@legalvideos.com
                                                      www.legalvideos.com
                                                      info@legalvideos.com
       Court Executive Officer Kim Turner noted, “The brick
                                                     415.459.7672 415.459.7672
and mortar mentality of the court is changing with the times.
                                                     Toll free 866.454.7672 866.454.7672
                                                                        Toll free
                                                       to all who
We want our information to be readily accessibleFax 415.459.1797Fax 415.459.1797
are entitled to view it. We also take our responsibility seri- Depositions Suites with
                                                     Complimentary
ously as custodians of the court record, so we will enforce using our services.
                                                     refreshments when Complimentary Depositions Suites with
                                                                         available when using our services.
strict public access requirements as we go forward. We alsorefreshmentsfor rent. available for rent.
                                                     Deposition Suites
                                                                        Deposition Suites also
hope everyone will find the new register of actions a help-
                                                                                                                                                            5
                                                The Marin Lawyer

GOING GREEN                                                      GOVERNOR SIGNS STATE BAR
By Kate Rockas, MCBA Director                                    FEE BILL
                                                                       On January 25, 2010, Governor Schwarzenegger signed
     Most of us want to be responsible. We want to ensure        the 2010 State Bar fee bill. Fee statements for the $410 yearly
that our planet continues to have clean air to breathe, clean    fees for active members will be sent out immediately with a
water to drink, and an abundance of wildlife and trees.          due date of March 1. Inactive members pay $125.
However, many of us think that it is hard to “go green,”               “We are grateful to the governor for signing the State Bar
especially at the office.                                        2010 fee bill. He has helped us to focus on issues and matters
     One area where you can make a significant impact is         that are important to the State Bar,” said State Bar President
                                                                 Howard Miller. “We also want to thank the legislative leader-
with your consumption of paper. The average American
                                                                 ship that has been so supportive and forthcoming. This entire
office worker throws away about 150 pounds of paper every
                                                                 period has strengthened the State Bar and given us important
year. Some suggestions for using less paper: buy recycled        missions and goals that we now can actively achieve.”
paper, print on both sides of paper, and re-use paper that is          Schwarzenegger vetoed the fee bill in October, citing as
only printed one side as scratch paper. Reduce the number        one reason a leak that one of his judicial nominees, former
of times you print documents by doing your proofreading          State Sen. Chuck Poochigian, was rated “not qualified” by
and editing on the computer. Read your legal research on         the Committee on Judicial Nominees Evaluation (JNE).
the computer rather than printing it out.                        (Poochigan was later confirmed as an appellate court judge.)
     Another easy way to make a difference in your office        Miller created a task force to investigate the leak. The task
is by changing the light bulbs. Incandescent bulbs use four      force, led by William Gailey, a Schwarzenegger appointee to
times more energy than is necessary to produce light and         the State Bar board and head of a private investigation firm,
halogen lights can get as hot as 1,100 degrees Fahrenheit.       issued a report last month saying that despite an extensive in-
The alternative is to use Energy Star certified compact fluo-    vestigation, it could not identify who leaked the information.
rescent bulbs. These lights use 75% less energy to produce       Schwarzenegger also had criticized the bar for a state audit
the same amount of light, last 10 times longer, and produce      that found inefficiencies and the embezzlement of $675,000
less heat than incandescent and halogen bulbs. Turn lights       by a former employee. To deal with these issues, the State Bar
off when they aren’t needed and consider motion sensors          for the first time hired a special audit firm to report directly
that will automatically turn off the lights when everyone        to its Audit Committee, chaired by public board member and
has left the room.                                               Inspector General of California, Laura Chick.
     25% of the electricity used in commercial buildings in
the United States is consumed by office buildings. When                   MEDIATION OFFICES OF
buying new office equipment, Energy Star certified ma-
chines can significantly reduce your energy consumption.
For example, an Energy Star certified computer is 52%                STEVEN ROSENBERG
more efficient that a standard one. Energy Star certified
                                                                     Highly effective and skilled mediation services for
equipment often have stand by options and will power off
                                                                           • Commercial            • Real Estate
or go into sleep mode when not in use. And, at the end of
                                                                           • Employment            • Probate
the day, make sure that all of the equipment is turned off.
                                                                           • Family Law            • Personal Injury
     It really is easy to incorporate these green practices in
our offices. Take baby steps if necessary and start small.                             Mr. Rosenberg has practiced law for over 30
                                                                                       years. He is an Adjunct Professor of Law at
                                                                                       USF, an Approved Consultant for The Acad-
                                                                                       emy of Family Mediators and was chair of
                                                                                       The Marin County Bar ADR Section. He
                                                                                       is a member of the mediation panels for the
                                ♦                                                      U.S. District Court, NASD, and all Bay Area
                                                                                       Trial & Appellate Courts.
                                ♦
                                ♦                                                References available upon request.
                                ♦
                                                                    775 East Blithdale Avenue, #363, Mill Valley, CA 94941
                                                                                  RosenbergMediation.com
                                                                                        415/383-5544


6
                                               The Marin Lawyer

MARIN COUNTY YOUTH COURT -                                   and parents. They are all lucky to have you doing the work
                                                             you so unselfishly do.”
KEEPING YOUNG PEOPLE OUT OF                                        Intervening with young people when they first exhibit
THE JUVENILE COURT SYSTEM                                    unhealthy behavior is the most cost effective approach to
By Don Carney*
                                                             reducing health related expenses by decreasing alcohol
                                                             and drug related injuries, assaults and deaths. Additionally,
      The YMCA’s Marin County Youth Court program addressing first time offenders saves enormous amounts
helps keep youth ages 10 to 17 out of the juvenile justice of resources by keeping youth out of the juvenile justice
system. It is an early intervention for misdemeanor offend- system and thereby reducing the number of young adults
ers and is designed to give youth who have broken the law entering jails and prisons.
and admitted their guilt a second chance.                          After six years of operation, Youth Court data demon-
      The Youth Court philosophy is based on restorative     strates the success of the program: 95% of offenders have
justice and deploys the best practices of youth development, successfully completed the program and only 5% of pro-
civic engagement and service learning. Across the nation gram graduates have re-offended. Collectively, offenders
Youth Courts are proving effective in significantly reducing have provided over 12,000 community service hours, which
juvenile recidivism. Research shows that teens completing have benefited numerous non-profits and schools. Offend-
sentences handed down by their peers feel more connected ers’ community service hours are focused on developing
to the community and are far less likely to become repeat new skills and competencies rather than punitive tasks.
offenders. Nationally, Youth Courts are the fastest growing        Marin Court Commissioner Roy Chernus is a volun-
diversion programs in the history of juvenile justice. They  teer judge for the Youth Court and has presided over the
provide exceptionally positive outcomes, are highly cost Juvenile Court for the past two years. Comm. Chernus
effective and enjoy strong community support.                reports “there is something very powerful that happens
      The Marin County Youth Court began in 2004 with when you have kids judging kids. Their bull detector is very
four cases. In 2008, we held 176 hearings and in 2009 we sensitive. They can tell when they are being lied to and it
adjudicated 191 cases. In our six years of operation the influences what they decide. In addition, these proceedings
program has provided services to 450 families and in the use the principles of restorative justice, which means that
past two years Youth Court referrals have grown by an everyone is focused on what will repair the damage that has
astonishing 376%.                                            been caused to the community, the victims, the family and
                                                             the teen. Youth who participate in the program rarely come
      Alcohol and drug offenses represent 90% of the cases
                                                             back through the system with more serious offenses.”
adjudicated in Youth Court and the Decisions Under the
Influence (DUI) Alcohol and Drug Safety Training Pre-              The Youth Court also provides an opportunity for
vention Program has experienced considerable success in      understanding among diverse student populations. Marin
supporting youth and their families when early intervention County is economically, racially and culturally diverse,
is necessary.                                                with communities that rarely interact. But, through the
                                                             Youth Court program students from very different back-
      The Youth Court program is mandatory for first time
                                                             grounds learn about each other’s lives and challenges while
offenders; teens and a parent/guardian are required to at-
                                                             providing peer support and mutual respect for working
tend a five-hour Saturday workshop. At the training, parents
                                                             towards positive goals. Structuring a venue where students
are educated on the dangers of minimizing or enabling
                                                             can develop allies across class and race lines provides a
underage drinking or drug use while learning new strate-
                                                             great opportunity in learning how to successfully navigate
gies and skills to reduce teen and adult substance abuse.
                                                             our multicultural society.
Additionally, youth attend three follow-up classes to de-
velop effective refusal skills around underage and binge           The Marin County Youth Court provides services to
drinking, drug use, and driving and/or riding in cars with   all youth regardless of family income. The program fee is
people under the influence.                                  $500 and as customary with all YMCA programs, schol-
                                                             arships are provided to those needing financial support.
      The program has become a model for the State of
                                                             Fifty-five percent of the families accessing Youth Court
California. Karen Vierra, the DUI Prevention Education
                                                             in 2009 qualified for scholarships. The YMCA can only
Curriculum Specialist from the Center for Families and the
                                                             continue to help families in need with your support. Please
Courts reported: “You are definitely the program to emulate.
                                                             consider contributing and/or volunteering. To help, contact
You and your staff are organized and efficient without being
                                                             Don Carney, Youth Court Director at 415-459-9622, 734 A
intimidating. Additionally, you guide the conversation with
                                                             St., San Rafael, CA 94901 or dcarney@ymcasf.org.
skill, knowledge, and understanding. You are obviously a
tremendous asset to your community, court system, youth,           * Don Carney is the Director of the Marin County
                                                             Youth Court program.
                                                                                                                         7
                                             The Marin Lawyer

                                                             Defendant’s Contentions as to Liability: Primary
                 MARIN COUNTY JURY                           implied assumption of risk required plaintiff to prove
                 VERDICTS                                    recklessness, which in sports injury context requires proof
                                                             of conduct totally outside the range of ordinary conduct
                                                             involved in activity. Defendants collectively had about 50
Plaintiff: Yasha Faye                                        years experience teaching gymnastics and several years
                                                             experience teaching Parkour; defendants’ conduct within
Defendants: Crossfit Marin, Andres De La Rosa, Roger         range of ordinary instruction of Parkour wall runs.
Harrell
                                                             Length of Jury Trial: 6 days
Case Number: CIV 08 1686 Insurance Carrier:
Meadowbrook                                                  Jury Deliberated: 2-3 hours

Plaintiff Attorney: Robert Diskint, Esq., 415-925-1000       Plaintiff Attorney asked the Jury to Award: $460,000
                                                             economic damages and past non-economic damages, plus
Defendant Attorney: Clinton Hein, Esq., 415-362-7126         additional future non-economic damages (amount left to
                                                             jury)
Plaintiff Doctor, Field: Arthur Ting, MD, orthopedic
surgeon                                                      Defendant Attorney asked the Jury to Award: Defense
                                                             verdict, or at most 5% fault of defendants.
Defendant Doctors: None
                                                             Injuries/Damages:
Plaintiff Expert, Field: Address: Donald Chu, Ph.D,          Plaintiff Doctor Stated: ruptured patellar tendons, bilateral
sports medicine
                                                             Residuals: Plaintiff claimed life impairment, inability to
Defendant Experts: None                                      run, exercise

                                                             Specials/Damages: $160,000 medical, $50,000 lost wages
Judge: Hon. John A. Sutro, Jr.
                                                             Settlement Talks:
Date of Incident: 4/15/07
                                                             Demand: $450,000
Type of Action: Sports personal injury                       Offer: $0

Location of Accident/Incident:       Novato Gymnastics       Result: Court ruled defendant’s release inadmissible due
Center, Novato, CA                                           to ambiguity. Plaintiff required to prove recklessness.
                                                             Defense verdict.
Plaintiff: Age: 36    Occupation: Weight lifting coach
Residence: San Rafael                                        Poll Result: 10-2                      Verdict Date: 11/17/09

Facts of Case: Plaintiff took defendants’ Parkour (urban
gymnastics) class in gym on pads and spring floor using                  Serving the legal community of Marin since 1965

padded obstacles and wallpads. Plaintiff and other                    MARIN PACIFIC COMPANY.INC.
participants warmed up, stretched and practiced jumps,                    General Insurance Brokers and Agents
falls, vaults and wall runs (running up walls). Plaintiff
injured during wall run.                                            PROBATE BONDING
                                                                                       453-1620
Plaintiff’s Contentions as to Liability: Defendants’
conduct totally outside the range of ordinary conduct          1430 Fourth Street                        Daniel C. Dufficy
of activity; defendants called plaintiff “a pussy” for not     San Rafael, CA 94901                      Gail Anne Geary
trying another repetition while tired, and defendants knew      Representing major surety carriers • fast local service
nothing about teaching Parkour.
8
                                                 The Marin Lawyer
                                                                 (President’s Message, continued from page 2.)
JUDGE MICHAEL B. DUFFICY                                         way of contributing. One can help ensure access to justice
TO RETIRE FROM THE MARIN                                         by participating in MCBA’s invaluable Lawyer Referral
                                                                 Service, which allows Marin County residents to get 30
BENCH                                                            minutes of legal advice for a minimal fee; or through pro
      The Honorable Michael B. Dufficy, the senior judge         bono legal service. This year MCBA is coordinating ef-
on the Marin County Superior Court, has announced that           forts with Legal Aid to help staff the Western Marin free
he will retire on February 18, 2010, after twenty years of       legal advice clinic, and to sponsor an all-day, weekend
service. Judge Dufficy was first appointed to the court in       advice clinic in May. We’ll also be sponsoring community
1990 by Governor George Deukmejian.                              education forums, one for Law Day, and one for domestic
      In a statement announcing his retirement, Judge Duf-       violence awareness month in October.
ficy expressed his appreciation for and support provided              There’s also the benefit of continuing legal education.
by his colleagues and court staff.                               The practice sections, in particular, provide an array of on-
      “I have thoroughly enjoyed my twenty years on the          going continuing legal education programs which include
court. It has been a privilege to work with the judges and       in-depth analysis of issues, discussion of new developments
commissioners of the court, and the court’s loyal and expe-      in the law, and a host of practice pointers. The monthly
rienced staff. Being a Superior Court judge is a challeng-       Marin Lawyer keeps practitioners up to date on what’s
ing as well as rewarding position, and I looked forward to       taking place in the Courthouse, in the law, and in MCBA,
coming to work every day of my career. I will miss the job,      and always welcomes articles by members. Participating
but at age 71 it is time to move on. It has been an honor        in a CLE presentation, or writing an article for the news-
serving the citizens of Marin County.”                           letter are both great ways to tout one’s expertise and share
      Judge Dufficy has lived for more than 40 years in Kent-    important legal developments.
field, with his wife of 52 years, Penny. They have three adult
                                                                      Finally, just showing up and sharing your professional
children, eight grandchildren, and two great-grandchildren.
                                                                 knowledge and experience may make all the difference
      Judge Dufficy was born in Ross in 1938 to a pioneer
                                                                 for some other attorney. Try it. You may be pleasantly
family. His great-grandfather Michael Calhoun Dufficy
                                                                 surprised!
came to California as a boy in 1847, and settled in San Ra-
fael in the 1870’s. Judge Dufficy attended Ross Grammar
School and Sir Francis Drake High School. He received his
Bachelor’s degree from Stanford University in 1960, and
his law degree from the University of California, Hastings               A. MAGGI SAUNDERS & ASSOCIATES
College of the Law, in 1963. He was admitted to the Cali-
fornia Bar in 1964, and practiced law in San Rafael for 26                   Ser ving the E ntire B ay Area s inc e 197 4
years, including serving as a Marin County Deputy District            415-383-6281 (office)             415-823-3790 (mobile)
Attorney in 1965-1966, until he was first appointed to the                           maggisaunderscsr@neteze.com
Marin County Municipal Court in 1990. He was elevated
to the Superior Court in 1992, and thereafter elected to six
                                                                        “In a deposition, the Court Reporter
year terms in 1992, 1998, and 2004.
      During his tenure on the Marin bench, Judge Dufficy
                                                                                is your biggest asset”
was selected by his judicial peers to serve two two-year
terms as Presiding Judge of the Superior Court. He was
the Presiding Judge of the Superior Court when it consoli-
dated with the Municipal Court in 1996. Over the years
Judge Dufficy has presided over all calendar assignments
including, traffic, small claims, criminal, civil, probate,
juvenile, family law, and the court’s Appellate Division.
Judge Dufficy has also participated in the Marin County
Office of Education Mock Trial competition.
      Following his retirement, Judge Dufficy plans to
remain active in the law, doing private mediation and al-
ternative dispute resolution in San Rafael.
                                                                  Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal
      For additional information regarding this press release,        Injury, Construction Defect, Product Liability, Commercial Business
contact the Office of the Court Executive Officer at: (415)
444-7020.                                                              The best court reporter always gets the last word!

                                                                                                                                            9
                                                   The Marin Lawyer

CAPITALIZATION RATE                                               without the expectation of improved profit. Profitability
                                                                  is never found without the attendant risk that comes with
By James Lee, CPA*                                                it. This is axiomatic, a fundamental economic theory. In
                                                                  Economics it is referred to as entrepreneurial risk.
     The fair market value of a business has been defined
as, “… the price at which the property would change hands               In order to identify the range of entrepreneurial risk
between a willing buyer and a willing seller when the             associated with any given business, the capitalization rate
former is not under any compulsion to buy and the latter          build-up process begins with the long term twenty year rate
is not under any compulsion to sell, both parties having          that is currently earned on U.S. Treasury bonds. Treasury
reasonable knowledge of relevant facts.” 1 Using the              bonds are deemed to be risk free. This therefore represents
Capitalization of Earnings method, the value of a business        the absolute risk threshold for all investing. Accordingly,
can be calculated by dividing its current annual income           no prudent investor will accept any risk in an investment
by the capitalization rate. Its valuation is predicated upon      where the rate to be earned is less than the risk free long
the assumption that current annual income will continue           term Treasury rate.
uninterrupted. See Figure 1.                                           The business is worth whatever it will pay in future
      The capitalization rate is the interest rate that rep-      returns to its owner at or above the interest rate the owner
resents two aspects of valuing a business. First, it is the       requires. It is based upon the assumption that current earn-
minimum rate of return that is acceptable to a business           ings will continue into the future. By dividing the current
owner for the risks known to exist in the business. When          annual income by the capitalization rate we can get a “short
viewed this way it is sometimes referred to as the cost of        hand” calculation that serves our purpose for estimating
capital. Second, this same minimum rate of return is also         the value of a business. This process is called capitalizing
used to capitalize current annual income to arrive at the         the current annual income. It becomes a simple algebraic
current value of the business. This calculation is based upon     equation to divide the current annual income by the “cap”
the projection of current annual income into the future. It       rate to find the value:
tells the business owner the value of the business based                Figure 1
upon the expectation that current profitability will go on
                                                                       Current Annual Income
in future time periods.
                                                                   -------------(Divided by)--------------   (Equals) = Value of Business
      In performing business valuations we create what is                 Capitalization Rate
called the build up of the capitalization rate. This is the
systematic bringing together, and combining, of all of the             Remember, it is an estimate because the income that
known components of risk associated with a particular busi-       will flow from the business in the future it is not really
ness enterprise. It is an effort to account for the added risk    known. Additionally, only known entrepreneurial risks
that the prospective owner of a business assumes over the         have been factored into the capitalization rate.
reduced risk associated with a purely financial investment.            * James Lee is a certified public accountant who has
Its purpose is to account for the components of risk that         trained in business valuation and forensic accounting relat-
arise from being in the subject business as distinguished         ing to family law. He has practiced public accounting for
from simply owning it. The investor who buys shares of a          over thirty years in Marin County California. Interested
publicly traded company owns part of the business, albeit         persons are invited to call Mr. Lee at his office in Mill Val-
probably a small part. That investor is not in business in        ley at (415)389-1040.
the sense that they would be if they owned and ran their
own business. Publically traded companies have profes-
sional management to watch over their businesses. Small
businesses usually have the owner as management. The                PLACE YOUR AD HERE
business and financial risk of losing an investment by fail-
ing in business is greater than the simple financial risk of
                                                                               Super Business Card Ad
making a passive investment into an outside enterprise that                      Only $60 per month
is run by paid professionals. The capitalization process
seeks to account for this difference by identifying and ap-                    with a 6 month contract.
plying known risk factors.                                                          Call Pat Stone
     Where potential for great return is found, risk is always                     (707) 585-3248
elevated. Whether it is known or unknown, this risk exists.
Investors will accept increased risks in business, but not                      for more information
1
    United States Department of Treasury, Revenue Ruling 59-60.
10
                                                 The Marin Lawyer
(Confrontation Clause, continued from page 1.)
trial. “The perception that confrontation is essential to       v. Whittier (1892) 95 Cal. 279, 293.) Hearsay is inadmis-
fairness has persisted over the centuries because there is      sible because hearsay cannot be cross-examined. In Cali-
much truth to it. A witness ‘may feel quite differently when    fornia hearsay is inadmissible unless the offered statement
he has to repeat his story looking at the man whom he will      falls into an exception. (California Evidence Code Section
harm greatly by distorting or mistaking the facts. He can       1200, 1201.) Where the value of out-of-court statements
now understand what sort of human being that man is.’”          rests upon the credibility of the out-of-court asserter the
(Z. Chafee, The Blessings of Liberty 35 (1956), quoted in       statements should be considered as hearsay. (See Ohio v.
Jay v. Boyd, 351 U.S. 345, 375-376). The right to confront      Roberts(1980) 448 U.S. 56, 62, fn. 4.)
one’s accuser is guaranteed by the Sixth Amendment of the
                                                                   Certain out of court statements are not considered
United States Constitution.
                                                              hearsay because they are not offered for the truth of the
      The primary mechanism by which the accused con- matter asserted. “Such evidence is admitted for the pur-
fronts his or her accuser is through cross-examination. “The pose of establishing merely the utterance of the words, and
Sixth Amendment’s Confrontation Clause provides that, not their truth; but the admission in evidence of the words
‘[i]n all criminal prosecutions, the accused shall enjoy the spoken is not to be used in determining the issue of their
right ... to be confronted with the witnesses against him.’ truth. Necessarily the words so spoken are brought before
We have held that this bedrock procedural guarantee ap- the jury, but the jury can readily be instructed by the court
plies to both federal and state prosecutions.” (Crawford that they are not to regard them as proof of the facts that are
v. Washington (2004) 541 U.S. 36, 42). In Crawford the stated. “ (Smith v. Whittier (1892) 95 Cal. 279, 294.)
Court held that, “[w]here testimonial evidence is at issue,
                                                                   Out of court statements not offered for the truth of the
however, the Sixth Amendment demands what the common
                                                              matter asserted are not subject to the Confrontation Clause
law required: unavailability and a prior opportunity for
                                                              and therefore the Crawford rule does not apply. (See People
cross-examination.” (Id. at p. 68.) The difference between
                                                              v Ervine (2009) 47 Cal.4th 745.) These statements are
testimonial evidence and non testimonial evidence was later
                                                              offered to show the effect of the statement on the listener
explained as “[s]tatements are non-testimonial when made
                                                              rather than the truth of the actual statement or some other
in the course of police interrogation under circumstances
                                                              non-hearsay purpose. The jury is instructed not to consider
objectively indicating that the primary purpose of the inter-
                                                              the truth of the actual statement.
rogation is to enable police assistance to meet an ongoing
                                                                                                      (Continued on page 12.)
emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emer-
gency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to                             Drunk Driving
later criminal prosecution (Davis v. Washington (2006)
547 U.S. 813, 822.)
                                                                                             and
     The functional purpose of the confrontation clause is
to ensure a criminal defendant the opportunity for cross ex-
amination. “The Confrontation Clause provides two types
                                                                                         DMV Matters
of protections for a criminal defendant: the right physi-
cally to face those who testify against him, and the right
to conduct cross-examination.” (Coy v. Iowa (1988) 487                          Paul Burglin
U.S. 1012, 1017.) Edward Bennett William’s stated “[o]ne          Mitchell, Hedin, Breiner, Ehlenbach & Burglin
of the oldest and most important rights which Americans             Courthouse Square, 1000 Fourth St., Suite 570
have is the right to confront one’s accusers and to ques-
                                                                               San Rafael, CA 94901
tion them.” In every trial certain statements are offered
into evidence which run afoul of the confrontation clause.
These statements are known as hearsay.                                          (415) 453-0534
     Hearsay is defined as an out of court statement offered
for the truth of the matter asserted. One of the major evils                  DUIandDMV.com
of hearsay is the inability to cross examine the declarant of
the offered statement. “Hearsay is a species of derivative             Author: Calif. Drunk Driving Law
evidence which is offered for the purpose of establishing
some specific fact in a case, and rests on the veracity and
                                                                       A-V Rated - Martindale Hubbell TM
competency of some other person than the witness.” (Smith
                                                                                                                          11
                                                  The Marin Lawyer
(Confrontation Clause, continued from page 11.)                 (Spotlight, continued from page 3.)
      The admission of out of court statements not offered      League pitching to Scott Lueders. I try not to give him too
for the truth of the matter asserted is troubling because       much to hit. Or on weekends my tool belt will be strapped
the declarant is not subject to confrontation. The accused      on my hips doing construction work around my house.
is denied the ability to physicaly face the declarant and       Clay Greene once told me my aim in life was to replace
to cross-examine the declarant. The declarant’s veracity,       every piece of wood in my house at least once. I have not
accuracy of perception, and recollection cannot be tested.      accomplished that task Clay, but I am working on it.
Although out of court statements not offered for the truth of
the matter asserted are immune from Confrontation Clause             The Marin Lawyer: Tell us about your family.
                                                                     Randy Wallace: I am married to Deborah Meltzer.
challenges they are vulnerable to several other objections.
                                                                We met while taking the bar exam in 1977. She practiced
They are still subject to the California Evidence Code and      law for several years until our first daughter was born
do not get a free pass to admission simply because they do      and then stayed home to raise our two daughters, Amy
not qualify as hearsay. The out of court statement offered      and Julia. For the past nine years Deborah has worked at
for a non hearsay purpose still must be relevant. Such a        Manor Elementary School in Fairfax with developmentally
statement is inadmissible if its probative value is substan-    disabled children. Amy lives in Bolinas and works at the
tially outweighed by the probability that its admission will    Cavallo Point Inn. Jules lives in Santa Rosa and is senior
necessitate undue consumption of time or create substantial     at Sonoma State.
danger of undue prejudice. (See California Evidence Code
Section 352.)                                                        The Marin Lawyer: If you could pursue any other
                                                                career besides law, what would it be and why?
     When defending a criminal case in California a simple           Randy Wallace: Another career hummmm….
“objection hearsay” when faced with an offered out of court     Change my name to Sidd Finch, short for Siddhartha,
statement is not enough to properly challenge the offered       master George Leonard’s Twelve Principles of the Modern
evidence and preserve all issues for appeal. There are three    Samurai, learn how to throw a 162 mile per hour fastball
stages to the proper objection and each should be consid-       with movement, become the highest paid closer in baseball,
ered and used as circumstances dictate. The first stage is      give away all of my salary, and when asked how much
“objection hearsay.” The second stage is “objection, the        pressure I feel when pitching, respond “about 32 pounds
offered statement denies my client the right to confront        per square inch, unless I am at Coors Field in Denver”.
his or her accuser as guaranteed by the Sixth Amendment              Seriously… okay, not necessarily in this order… a
of the United States Constitution.” The third stage is to       novelist (I have written my first, yet unpublished novel,
object to the offered statement on whatever grounds in the      and am working on the second of three in the series), an
evidence code, California Constitution, or United States        investigative reporter or apprentice myself to Taliesin West,
                                                                the Frank Lloyd Wright school of architecture in Arizona,
Constitution the statement offends. These grounds can
                                                                to learn the art and science of creating sustainable homes
range from relevancy to denial of due process.                  with recycled materials on a limited budget. The reason
      The Confrontation Clause is a vital part of the bundle    why I would choose these careers is that they speak to the
of rights which work together to ensure each person accused     creative side of me that likes to “make” things.
of a crime receives a fair trial. The Confrontation Clause
                                                                     The Marin Lawyer: Why did you join MCBA?
has been reinvigorated in recent years but its protection
                                                                     Randy Wallace: In 1978 Isidoor Bornstein told me to
only extends to statements which fall into the definition of    join and said to get involved. Izzie always gave me great
hearsay. The Confrontation Clause does not apply to out         advice (which I carry with me today) so I joined and never
of court statements not offered for the truth of the matter     looked back. Thank you again Isidoor.
asserted. In order to successfully exclude statements not            Some advice…If you want to practice law in Marin
offered for the truth of the matter asserted an attorney must   County and want other lawyers to know who you are, if
evaluate the underlying admissibility of the offered state-     you want to be able to do the business of the law with other
ment and then come up with an appropriate objection.            lawyers, if you want to have an opportunity to do some real
                                                                and permanent good outside your practice, if you want to
     * Charlie D. Dresow focuses on criminal defense            develop the necessary relationships with other lawyers and
and motion practice. Mr. Dresow is a proud member of            the bench, then the local bar association is the place to start.
the Richard M. Sangster Inn of Court. In his spare time,        Had it not been for joining the Marin County Bar Associa-
Mr. Dresow enjoys coaching youth football and reading           tion, I would have the career that I have, and I would not
history. He can be reached at cdresow@gmail.com or              have had the opportunity to do “real and permanent good”
(415) 300-7753.                                                 in our profession.

                                                                     The Marin Lawyer: Why did you become a Director?
                                                                                                       (Continued on page 13.)
12
                                                  The Marin Lawyer
(Spotlight, continued from page 12.)
     Randy Wallace: This is my third term on the Board.            ward and forward that he made no such calls. I believed
I reapplied because I thought the institutional knowledge          him. So we went to hearing and the other side got him
I have would benefit the Board and the Bar Association.            to admit what his telephone numbers were under oath. I
Also the make-up of the Board intrigued me because there           thought “this is not good”. Then the next witness testified
were board members and officers, I wanted to get to know           that a telephone trap was put on the telephone. I thought
and work with because they are quality practitioners and           “oh no…” Then the witness testified that he installed the
people.                                                            trap and collected all the numbers of which 55 were the
                                                                   telephone numbers my client just admitted to… You have to
     The Marin Lawyer: If you had to pick a single high-           remember there was no discovery in these cases… Over my
light of your career, what would it be?                            strenuous objection Judge McGuire let in all the evidence.
      Randy Wallace: I have to say the highlight of my             From the bench he looked at me and he said “Mr. Wallace
legal career is the volunteer work I have done in the bar          I find your client in substantial contempt.” Have you ever
association that has had unforeseen consequences. There            wanted to crawl under the counsel table?
are two examples that come to mind. The first was co-
writing the Bar Association Mission Statement, and second          DETAILS FOR EVENTS CALENDAR
was being honored at a MCBA dinner when I received the
Lawyer of the Year Award.                                             February 16, 2010
                                                                      Family Law Section Meeting, 12 – 1:30 pm
     The Marin Lawyer: What was the best/worst/strangest              Business Valuations of Professional Practices and Small
experience in your career? Please describe.                           Businesses with Ken Frank, CPA, and Ted Israel, CPA
     Randy Wallace: There have been many Mastercard                   Marin County Superior Court, Dept L
moments over the years. I came up with these three which
I call The Case That You Do Not Take, The Case of Don’t               February 17, 2010
Lie to Your Lawyer and The Case of the Crystal Ball. Each             ADR Section Meeting, 12 – 1:30 pm
of these cases gave me things that I carried forward in my            Elizabeth Bader, of Bader Conflict Resolution Services
practice.                                                             The Psychology of Mediation:
     The Case That You Do Not Take is what my father told
                                                                      Issues of Self & Identity & the IDR Cycle
me about practicing law. He told me that the quality of my
practice would be determined not by the cases I took, but             Please RSVP to Michael Malone at
by the cases I did not take. A gentleman from another part            mgmalone@comcast.net or call 472-2091
of the world wanted me to sue his fellow countryman for
slander because of what he said. The precise words were “I            February 17, 2010
give it to you Hot, Hot!!! Hot!!” I did not take the case, nor        Probate & Estate Section Meeting, 12 – 1:30 pm
did I inquire about the meaning of those words. Somehow,              Special Needs Trusts & Medi-Cal Planning
I did not want to know if or whether they lowered anyone’s            with Kevin Urbatsch & Stacy Turner
reputation to a substantial and respectable group.                    Tamalpais Room, San Rafael Conference Center,
     The Case of the Crystal Ball was a construction defect           750 Lindaro Street, San Rafael
and leaking roof case. My clients did a substantial remodel
and when it was almost done, the roofers tore off the roof in         February 22, 2010
November. A rain storm hit like the one we had in January             Probate & Trusts Mentor Group, 12 – 1:30 pm
of this year and the entire remodel was destroyed. Between            Estate Planning in 2010
the remodel, the lawsuit, and the re-remodel, the clients             802 B Street, San Rafael
were out of their home for three years. During the course             Please RSVP to Michelle Lerman,
of the case, I would preface my remarks by saying “if I had           Michelle@lermanlaw.com
a crystal ball this is what I predict will happen”. Either
through serendipity, luck, brains or little of all of the above,
                                                                      February 25, 2010
I was correct in every prediction. When the case was over
the clients came to my office with a present. They handed             Real Property Section Meeting, 12:00 – 2:00
me a box and insisted I open it. I opened the box and inside          Seafood Peddler, 100 Yacht Club Drive, San Rafael
was… you guessed it… a crystal ball. They said, “Randy                2009 - Significant Developments in California Real Estate
you can never tell clients that you do not have a crystal             Law – Legislation, Decisions & Form Changes
ball.” To this day that crystal ball sits on my desk.                 A panel discussion of the significant developments in real
     The Case of Don’t Lie to Your Lawyer was a harass-               property law occurring in 2009, including legislative devel-
ment TRO case between two wealthy individuals living                  opments, judicial decisions and changes to the standardized
together who were 65 years plus. My client moved from                 real estate form contracts. For more information and to
the residence was restrained from making any telephone                sign up, please contact section co-chair Derek Weller at
calls to the other party. He swore up and down and back-              derek@derekwellerlaw.com or call (415) 453-1375.
                                                                                                                               13
                                      The Marin Lawyer

                                              ChANge OF SCeNe CON’t.
      NEW MEMBERS
                                                Walt Cook
                                                27 Woodbridge Wy
     Sarah Haselup                              Novato, CA 94949
     Family & Children’s Law Center             415-506-4057 Fax: 415-506-4058
     30 N San Pedro Rd, Ste 245                 waltcook@comcast.net
     San Rafael, CA 94903
     415-492-9230 Fax: 415-479-2553             Michael Dietrick
     shaselup@faclc.org                         Law Offices Of Michael Dietrick
                                                10 Keller, Ste 275
     Margaret Petersen                          Petaluma, CA 94952
     903 Pine, Unit 44                          707-765-5019
     San Francisco, CA 94108                    dietrick@pacbell.net
     317-501-9145
     xpmags50@yahoo.com                         James B. McKenney
                                                250 Bel Marin Keys Bl, Suite B-6
     Sara M. Purcell                            Novato, CA 94949
     30 Summit Ave.                             415-884-2164 Fax: 415-884-2261
     Mill Valley, CA 94941                      Jim@profpub.com
     415-383-2462
     sarampurcell@yahoo.com                     Chanler M. Sparler
                                                Sparler Law Office
     Richard R. Rudnansky                       5 Bon Air Rd, #223
     Meyers Nave                                Larkspur, CA 94939
     401 Mendocino Ave., Ste. 100               415-927-7300 Fax: 415-927-7333
     Santa Rosa, CA 95401                       chanler@sparler.com
     707-545-8009 Fax: 707-45-6617
     rrudnansky@meyersnave.com                  Pauline H. Tesler
                                                Tesler, Sandmann & Fishman
                                                38 Miller Ave, Box 128
                                                Mill Valley, CA 94941
                                                415-383-5600 Fax: 415-383-5675
                                                teslercollaboration@lawtsf.com
 CHANGE OF SCENE
                                                Samuel G. Ware
     Heather L. Campopiano                      Law Office
     The Campopiano Law Offices, PC             700 Larkspur Landing Circle, #A9
     999 Fifth Ave, Suite 350                   Larkspur, CA 94939
     San Rafael, CA 94901                       415-328-6452 Fax: 415-435-2078
     415-388-1552 Fax: 415-453-2690
     hcampo@elderplanners.com

     Thomas A. Cohen
     555 Montgomery, #820
     San Francisco, CA 94111                    Deadline for submission of articles,
     415-777-1997 Fax: 415-777-1990              ads, inserts, and announcements
     tomcohen@ionix.net                             is the 15th of each month.
                                                            Thank you.
14
                                                       The Marin Lawyer David Hellman Marin Bar ad 2008


THE MARKETPLACE                                                                           Use the 1031 Exchange
                                                                                     Intermediary Other Intermediaries
                                                                                              Call for Advice!
 Anyone wishing to advertise in the Marketplace should send                         David Hellman, 1031 Exchange Expert at
                                                                                    MARIN COUNTY EXCHANGE COR PORATION
 their text ad to MCBA, 30 N. San Pedro Rd, Ste. 140, San Rafael,
 CA 94903 with payment of $35 per month, or you may email to:                        A Qualified Intermediary Providing
 rgaspar@30nsp.org . The ad should be no longer than 25 words                   Real Estate Exchange Services and Expertise
                                                                              with over 3,000 Exchanges facilitated since 1984
 and paid in advance. For each additional word add $1.
                                                                                      www.marin1031exchange.com
                                                                      David M. Hellman, President                                  TEL: (415) 457-4411
GET WORK AND PRIME EXECUTIVE SUITE IN                                 Attorney & CPA                                               FAX: (415) 457-0356
LAW OFFICE- Overload work/referrals and elegant
building in Downtown SR. Receptionist, conference
room (with wi-fi), kitchen, breakroom, storage area for
your files. Lisa 415-454-0455.
                                                                      THE ROBIN ERDMANN GROUP
                                                                       Real Estate & Land Use Economic Consultants & Appraisers

         To increase sales,
     announce a new partner                                           ROBIN J. ERDMANN, MAI                                  1885 Falcon Ridge Drive
                                                                       Principal                                             Petaluma, California 94954
    or advertise a new business:                                                                                             Telephone: (707) 766-8313
                                                                                                                             Fax:        (707) 766-8343
         place your ad in                                                                                                    Robin Erdmann @ comcast.net


      “The Marin Lawyer”                                              Appraisal/Evaluation & Review Market Feasibility Financial & Economic Analysis
                                                                      Litigation Support       Strategic Planning
                                                                      Redevelopment & Economic Development Analysis
                                                                                                                      Condemnation & Eminent Domain
                                                                                                                          Highest & Best Use Analysis
    contact: Pat Stone, Express Printing
Phone: (707) 585-3248 Fax: (707) 585-0844
         E-mail: express@sonic.net

         PHILIP R. DIAMOND                                                           PHILIP R. DIAMOND
                        MEDIATOR                                                                            MEDIATOR
        EXPERIENCED • EFFECTIVE • DEDICATED                                         EXPERIENCED • EFFECTIVE • DEDICATED
                                                                             Philip R. Diamond is a talented, hard working mediator,
                         Philip R. Diamond is a talented, hard               who is committed to shepherding all matters through to
                         working mediator, who is committed                  resolution. His wideranging mediation and civil litigation
                         to shepherding all matters through to               experience includes:
                         resolution. His wide-ranging media-
                         tion and civil litigation experience                      • Construction and Real Estate
                         includes:                                                 • Commercial and Residential
                                                                                       Landlord/Tenant
                                                                                   • Business Disputes and Litigation
                                                                                   • Employment
   • Construction and Real Estate       •   Professional Liability                 • Personal Injury
   • Commercial and Residential         •   Insurance                              • Professional Liability
     Landlord/Tenant                    •   Product Liability                      • Insurance
   • Business Disputes and Litigation   •   Wills and Trusts          MISSION STATEMENT OF THE MARIN
                                                                                   • Product Liability
   • Employment                         •   General and Toxic Torts
   • Personal Injury
                                                                                   •
                                                                         COUNTY BAR Wills and Trusts Torts
                                                                                      ASSOCIATION
                                                                                   • General and Toxic
                                                                             To involve, encourage, and support
      LAW & MEDIATION OFFICES OF PHILIP R. DIAMOND                            LAW bar association members, R. DIAMOND
                                                                                   & MEDIATION OFFICES OF PHILIP
               4040 CIVIC CENTER DRIVE, SUITE 200
                  SAN RAFAEL, CALIFORNIA 94903
                                                                                       4040 Cto CENTER DRIVE SUITE 200
                                                                      to serve as a liaison IVIC the Marin ,County courts,
                                                                                          SAN RAFAEL, CALIFORNIA 94903
       TELEPHONE (415) 492-4500 • FACSIMILE (415) 388-8257                     TELEPHONE (415) 492-4500 • FACSIMILE and
                                                                             and to educate the community(415) 388-8257
               email: philipdiamond@comcast.net                               enhance access to legal services.
                                                                                       email: philipdiamond@comcast.net

                                                                                                                                                         15
                                                                              The Marin Lawyer                    FIRST CLASS
Marin County Bar Association                                                                                      U.S.POSTAGE
30 North San Pedro Road, Ste. 140                                                                                     PAID
                                                                                                                   PERmIT #51
San Rafael, CA 94903                                                                                             ROhnERT PARk
                      published by                                                                                 CALIFORnIA
            The Marin County Bar Association                                                                     DATED MATERIAL
            415-499-1314 Fax 415-499-1614
                   www.marinbar.org
                 MCBA Officers
 Beth S. Jordan          President
 Otis Bruce Jr.          President Elect
 Jessica Karner          Treasurer
 Timothy J. Chambers Secretary
 Marlene P. Getchell     Past President
 Lawrence A. Baskin      5 Year Past President
                Board of Directors
 Sara Allman             Elizabeth Brekhus
 David I. Brown          Philip R. Diamond
 Todd Duplanty           Michael Fish
 Louis S. Franecke       Joel Gumbiner
 Riley Hurd              Dennis Kavanagh
 Lisa Maslow             Andrew C. McCullough
 Kate Rockas             Eric Sternberger
 J. Randolph Wallace
 Executive Director      Robynn Gaspar
 Production              Express Printing
 Advertising             Pat Stone
 Printed on recycled paper with vegetable oil based inks.
MCBA encourages submission of articles that may interest the legal
community. Letters to the Editor are also welcome and may be
published if space permits. Submissions will not be returned. The
Editor reserves the right to publish, decline to publish, edit or otherwise
modify any submission. Editorial material should be sent to the Marin
County Bar Association at the above address.




            How saving a park happens.
            How sustainable farming happens.
            How redefining “return on investment” happens.


            Your clients want to make a bigger difference in the world.
            Show them how. The Marin Community Foundation gives
            people smarter, more effective ways to create change. Our
            philanthropic advisors are experts at helping craft personal
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            www.marincf.org

                                                                                                 HOW CHANGE HAPPENS




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