FROM THE PRESIDENT

By Joseph Fox

The Board of Directors at our last meeting voted to participate in two community literacy programs. The “Children’s Book Drive, which will take place during law week, April 30 through May 6, 2005, and, the second, a “Storm Night for Literacy” will take place on July 23, 2005. Copies of flyers for both programs are contained in the Newsletter.

We are co-sponsors for the Children’s Book Drive with the San Diego County Bar Association. We ask that our members donate new or used books, hard cover or soft cover, baby books, novels, or short stories for children from Kindergarten through 12th. Book donations will be accepted during business hours, April 30 through May 6 (Law Week!) at any of these locations: the San Diego County Bar Center at 1333 Seventh Ave., San Diego 92101, you can bring your book donations to the May 6 Law Week Luncheon; the Vista Courthouse Law Library, 325 S. Melrose Drive, suite 300, Vista; the El Cajon Courthouse Law Library, 250 East Main Street, El Cajon; the South Bay Courthouse Law Library, 500 Third Avenue, Chula Vista; Davies & Rosenberry, 5480 Baltimore Drive, Suite 210, La Mesa; or, Epsten, Grinnell & Howell, 9980 Carroll Canyon Road, Suite 200, San Diego (Scripps Ranch).

We also need volunteers to help collect, promote, sort, or distribute the books. Assignments are flexible. If you want to volunteer or need more information, please contact event chairs: SDCBA Children at Risk Committee Co-chair Dawn E. Davies at dawn929@earthlink.net or San Diego Paralegal Association’s Darlene Braasch at Darlene@sdparalegals.org.

You can also participate on Literacy Day (Thursday, May 12th) by leading a class in reading and discussion at Kennedy Elementary, located at 445 S. 47th Street, San Diego. If you enjoy Literacy Day, join one of the “Kennedy Readers” groups (optional days, times, & classes available).

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FROM THE COURT

by Robert A. Durant

Assistant Executive Officer

Administrative Division

PROHIBITION AGAINST            MALICIOUS

PROSECUTION CLAIMS

California case law precludes the filing of a malicious prosecution claim by a prevailing defendant in a small claims action. Similarly, a defendant who has successfully appealed a small claims judgment may not proceed with a malicious prosecution claim against the small claims plaintiff.

In Pace v. Hillcrest Motor Co., (101 CA3d 476; Cal Rptr. 662; 1980), the California Court of Appeal, Second District, asserted that by allowing a successful small claims defendant to proceed with a malicious prosecution claim against the small claims plaintiff, public policy considerations serving as the basis for having a small claims court would be contravened. The possibility of being subject to a malicious prosecution claim, the court reasoned, would prompt a prudent small claims plaintiff to seek legal consultation prior to filing a small claims action. The Pace court asserted that small claims court was designed to avoid the costs and complexity involved in seeking such legal advice.

Similarly, in Cooper v. Pirelli Cable Corporation (160 Cal App 3d 294; 206 Cal. Rptr. 581; 1984) the court held that a small claims defendant who successfully prevailed in his appeal of a small claims judgment was barred from asserting a malicious prosecution claim. The Cooper court stated that the fact that a small claims defendant appealed the small claims case and won did not make the case distinguishable from Pace. Although the defendant prevailed in a trial de novo hearing upon his appeal to the superior court, the plaintiff's small claims action served as the origin for the defendant's malicious prosecution claim, thereby making the claim indistinguishable from the reasoning for barring malicious prosecution claims as cited in Pace.

These court rulings have received significant criticism. It has been pointed out, for instance, that small claims court is often used for collection of consumer debts. The burden on business plaintiff's in having to consider the possibility of a defendant filing a malicious prosecution suit upon prevailing in the small claims action is arguably minimal, given the fact that many business plaintiff's have preexisting access to legal counsel.

Moreover, it has been argued that the prohibition against malicious prosecution provides legal protection for litigants utilizing the small claims court as a tool for harassment in the assertion of unmeritorious claims. The court rulings have not been subject to review by the California Supreme Court.

DOMESTIC

VIOLENCE CLINIC

Victims of domestic violence may obtain restraining orders at the DV Restraining Order Clinic at the El Cajon Courthouse. In addition, the Clinic prepares elder abuse restraining orders for seniors and disabled adults. Most of the clients are low income and cannot afford legal representation.

The San Diego Volunteer Lawyer Program and Center for Community Solutions staff the clinic. However, we need volunteers as well, as at times we have to turn away victims. All attorneys, paralegals, law students and any other interested individuals are welcome to volunteer. Please contact Jan Maiden, Staff Attorney for San Diego Volunteer Lawyer Program at (619) 533-6043 or jmaiden@sdvlp.org, or Steve Allen at Center for Community Solutions, at (858) 272-5328 or sallen@ccssd.org.

FROM THE

PRESIDENT

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For more information about joining a group, please contact Magistrate Judge Leo Papas at Leo_Papas@casd.uscourts.gov. or Nicole Brown at kbrown2@law.cwsl.edu.

The books will be donated to local San Diego community schools, including Kennedy Elementary, Lafayette Elementary, and the Children’s Waiting room at the Family Justice Center. Book donations will also benefit older children who participate in the San Diego Superior Court’s Juvenile Court Book Club.

The second event is the “Storm Night for Literacy,” a family event fundraiser for the San Diego and Riverside legal communities. We have been asked to sell tickets for the Lake Elsinore Storm vs. Modesto Nuts minor league baseball game at 7:05 pm on July 23, 2005 at the Lake Elsinore Diamond. The price is $50.00 per adult, $35.00 per law student, and $25.00 per child. The fundraiser donations will benefit youth literacy. The price includes: a pre-game tent party and food (BBQ chicken breasts, hamburgers, hot dogs, baked beans, potato salad, cookies, and soft drinks); a Storm logo t-shirt; parking pass; pre-game youth clinic and autograph session; Storm logo baseball for each child attending the clinic; fun zone pass for children; a group representative participating in on-field contests; same section group seating; and, a post-game run the bases for kids of all ages. The enclosed flyer has information for ordering tickets.

I hope each member sees fit to help youth literacy by participating in one of the above events.

Regards,

Joseph Fox, President

FROM THE

EDITOR

by Catherine Tancredi

This column will discuss the initial client consultation and how to make the most of it. When I practiced law, I would take at least 20 minutes on the telephone pre-screening those who contacted me before I even scheduled an initial appointment. I would ask them about the parties involved, counsel already in the case, drug/alcohol/ psychological problems, molest issues, child abuse issues, their property holdings and debts and if they had money for a retainer. Once I decided they were relatively sane and could afford my services, I scheduled a time to meet.

When the potential client was in my office, I limited my time to one hour. I had a pre-printed form that I would use to fill out that followed the Petition/Response, UCCJA , Income & Expense Declaration and Schedule of Assets & Debts. I never filled out these documents in front of the client - just filled out my form. I listened to their story, tried to ferret out possible defenses or problems and then gave them my synopsis and prognosis based on the current law. If all went well, I offered to represent them, discussed the fee agreement and accepted their money. If not, I would state that I was not the best attorney for them and refer them elsewhere.

This strategy always worked out and I rarely had an initial intake interview that did not result in signing on a new client. Effective pre-screening of potential new clients can save everyone time and headaches.

FBA GOLF

TOURNAMENT

Dan Bacal has coordinated another golf tournament aka, the "4-person scramble." The tournament is scheduled for Thursday, September 8, 2005 and begins at 1:00 p.m. at the Cottonwood Golf Course. Tickets are $75.00 (pending notice per Dan) per golfer and include green fees, cart, beer cart, hats and food. Of course, "fabulous prizes" will be awarded to the winners. Additional information will be provided in future newsletters but in the meantime, please contact Dan Bacal at 588-2064 if you have any questions.

RECRUITING

VOLUNTEERS

FOR LAW DAY

LEGAL CLINIC

By Carolyn Dulude

The East County Branch of the San Diego County Law Library will be hosting an Open House and Free Legal Clinic to celebrate “The American Jury WE THE PEOPLE IN ACTION” Law Day 2005. It will be held on Monday, May 2, 2005 from 10 a.m. to 2 p.m. The Foothills bar Association has agreed to sponsor the Legal Clinic. Members should consider participating in this worthwhile event as practitioners in all legal areas are needed. Please consider helping your own local community. Your may sign up for times that meet your schedule.

Please contact Jerry L. Carmody, Esq. at (619) 667-9600, on or before April 25th, 2005. If you have any questions, please call Carolyn Dulude, Branch Librarian at (619) 441-4451.

We look forward to seeing you at Law Day!

REMEMBERING

PEGGY DOLAN

Peggy Dolan, a family law attorney, died unexpectedly on March 18, 2005. She is survived by two teenage children. The Peggy Dolan Memorial Fund will be established to benefit her children. Contact Donna Eyman, Esq. at (619) 224-5081 if interested.

A memorial service will be held in the amphitheater at Harry Griffin Park in La Mesa on April 8, 2005 at 2:00 p.m.

Peggy became licensed in 1996 and did more in the next nine years than most attorneys achieve in a lifelong career. She was motivated to become an attorney after leaving an abusive marriage wherein she was lucky to be alive. Her goal was to repay her debts she felt she owed to the shelters, counselors and friends who helped her and to other women in domestic violence situations. She achieved her goal.

Peggy's first job was as the first Legal Services Director for Interval House, the same nationally recognized domestic violence shelter in Orange County that had assisted her years before.

Peggy became involved in the East County Domestic Violence clinic and even secured monies from Diane Jacobs to continue its mission. In 1998, she received the Pro Bono Attorney of the Year award from the San Diego Volunteer Lawyer Program and the President's Pro Bono Service Award from the State Bar of California for our district.

In the most recent past, Peggy had become a Certified Family Law Specialist and has put her efforts towards the Collaborative Law effort and ran the East County Family Law Collaborative Group. The goal of this group was to provide people with an alternative to litigation - one that included counsel, accountants and therapists all working together to achieve a desired result - a less stressful dissolution.

Peggy distinguished herself among family law attorneys by staying true to herself - her goals as a lawyer - and why she wanted to be a lawyer in the first place. Peggy did not become a lawyer for fame or money and did not flaunt her numerous awards and accolades. Rather, she was a shining example of what can be accomplished when one sets their mind to something. Peggy represented her clients with a unique blend of compassion and advocacy.

She will be greatly missed by the members of the Family Law Section of the Foothills Bar Association, those involved with the Domestic Violence Clinic along with Judges and court personnel.

MY TRIBUTE TO

PEGGY DOLAN

by Ellen Swaim

I met Peggy when she was running the domestic violence clinic in El Cajon and I was volunteering there. Peggy became a mentor and friend, because she and I were both running our practices out of our homes, in order to be home with our children. We used to laugh about working in our PJ's in the morning, and the barefoot “commute” from room to room.. Peggy told me that all of her clients knew that if they were on the phone with her at 2:00 p.m., they were likely to hear doors slamming and kids coming home from school. Peggy was the most honest, open, down-to-earth, practical lawyer I ever met.

 After a few years of litigating family law cases, Peggy began telling people in the courthouse hallways "I'm not going to litigate anymore." She told me people looked at her as though she were crazy. Peggy always accomplished what she set her mind to do, however, and she drew her own blueprints for everything. Peggy began concentrating on mediation and collaborative law, and working in conjunction with therapists. Whenever Peggy asked me to attend a group meeting, I would tell her " I will only come because it is you." Peggy was strong, funny and kind. If I had to describe her with one word, it would be “real.”. She wanted all of her clients to end up dancing with their ex's at their grandchildren's wedding. Peggy did not just espouse conflict resolution, she lived it and brought it to others who were deep in conflict.

Peggy told me a story one time about a mediation she did with a couple in the courthouse cafeteria, which finally convinced her she needed to rent a more private space for her mediations. She was calmly trying to mediate a property settlement between this couple, when the woman began yelling loudly “you f—d me like you f– all your whores!” This was a hilarious story when Peggy told it. She ended by ruefully stating “I guess no more cafeteria mediations.”

Peggy's main focus was conflict resolution, not winning. Peggy represented the mother, and I represented the father in a custody case in which their teenage son was brain damaged. Minor's counsel wanted to judge the case based on which parent “deserved” more and which parent “deserved” less time with the boy. Although Peggy's client would have "won" under this scenario, Peggy insisted that the boy needed as much help as he could get from any adult willing to help him. Peggy managed to convince her client that it would be best not to “win” this custody battle, but to accept help from my client and his mother, who were willing to do much of the physical caretaking. It was quite clear that caring for this young child was going to be too much for one person. Minor’s counsel was set on recommending limited visitation for my client, however. Peggy and I circumvented this tragedy by ducking out with both mom and dad to the cafeteria and negotiating a more practical settlement, while minor's counsel interviewed a witness near the courtroom, trying to get more “dirt” on my client. When we told minor's counsel we had settled the case, she berated us and threatened to report us to the judge. She didn't, and the boy had three adults caring for him (including my client’s mother, the child’s grandmother), instead of one. Peggy and I acted dutifully meek until we left the courthouse and got clear of minor's counsel. Then we both started laughing. We high-fived each other, and Peggy said “wasn’t that a great end run we did?”

Peggy Dolan cared about the results of her work in a genuine, practical and generous way. Though her career has been cut short, I believe she did more good for people in that brief time than many do in a lifetime. I remember Peggy as strong, warm, funny and endlessly energetic. Peggy is very much alive to me, and always will be.

QUOTABLE QUOTES

by Randall "Rex" Erickson

"...[C]ourtesy is not only a privilege which a judge may extend to counsel, witnesses, jurors and litigants, but it is a duty which he owes to the humblest member of the public." (Etzel v. Rosenbloom (1948) 83 Cal.App.2d 758, 765.)

"Appellant's brief is not brief. It is prolix, rambling and repetitive. [Citations.] This style of writing is unfortunate. Brevity is not only the soul of wit, it is the essence of effective appellate advocacy and a desirable object in appellate opinions as well." (Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection (2004) 123 Cal.App.4th 1331, 1338-1339.)

2005 ATTORNEY

DIRECTORY NOW

AVAILABLE

The 2005 FBA Annual Attorney Directory is now available. One was mailed to each member in February, 2005. If you did not receive your copy, please call Rita at 619-588-1936 and she will send one to you.

The Directory includes much useful information pertinent to East San Diego County attorneys such as your FBA officers and directors, areas of practice (good for referring clients to appropriate counsel), bilingual lawyers and telephone numbers to the courts, district attorneys and defense counsel.

The next meeting of the Civil Litigation Section will be on Thursday, April 7, 2005 from 12:00 noon p.m to 1:15 p.m. at BJ's Bar & Grill at Grossmont Center in La Mesa. Please use the enclosed flyer to reserve your space.

The speaker will be the Honorable Eddie C. Sturgeon who will discuss " Courtroom Evidence for Lawyers." The cost of buffet lunch (pizza, salad and drink) will be $15.00 if more than 20 people attend. If less than 20, persons attending will order off the menu and be responsible for the cost of their meal.

The meeting is free to members of the FBA. The cost is $10.00 for non members. Applications for FBA membership will be available at the door.

This activity has been approved for 1.0 hour of MCLE credit by the State Bar of California. The FBA certifies this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing mandatory minimum continuing legal education.

If you have any suggestions for speakers or upcoming meetings, please contact Jerry, Sam or Mark.

The next meeting will be held on Thursday, April 14, 2005 from 12:15 p.m to 1:15 p.m. , at the Law Office of Nancy Ewin, 8166 La Mesa Boulevard, La Mesa, CA 91941. The office is in the La Mesa Plaza retail/office complex on the corner of Spring Street and La Mesa Boulevard. Bring your lunch, enjoy the meeting and earn one hour of MCLE.

This meeting is tentatively scheduled pending contact with Nancy Ewin. The, speaker and topic will be determined. Please contact Nancy Ewin's office at 619-698-1788 to confirm these meetings.

The meeting is free to members of the FBA. The cost is $10.00 for non members. Applications for FBA membership will be available at the door. This activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour General Participatory. The FBA certifies this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing mandatory minimum continuing legal education.

If you have any suggestions for speakers or upcoming meetings, please contact Nancy, Scott or Jocelyn.

The next meeting is tentatively scheduled for Tuesday, April 12, 2005 from 12:00 noon. to 1:15 p.m. in the Jury Lounge on the ground floor of the El Cajon Superior Court. Food is allowed and you are invited to bring your brown bag lunch.

The speaker and topic were not determined at press time. Please look for flyers and information in the Family Law Departments of the East County Superior Court to confirm this meeting will be held.

The meeting is free to members of the FBA. The cost is $10.00 for non members. Applications for FBA membership will be available at the door. This activity has been approved for 1.0 hour of MCLE credit by the State Bar of California. The FBA certifies this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing mandatory minimum continuing legal education.

If you have any suggestions for speakers or upcoming meetings, please contact Bud, Ed or Judi.

SMALL CLAIMS COURT

Please be prepared to take the

bench at 8:15 a.m.

April, 2005

1        Jon McKinley

5        Clare Maudsley

6        James Mietzel

7        Kristine Nesthus

8        Ron Oberndorfer

12      Blaine Phipps

13      Barry Pasternack

14      Charles Scott

15      Catherine Tancredi

19      Kenyon Young

20      Dan Bacal

21      Tom Buchenau

26      Ed Castro

27      Timothy Cohelan

28      David Demergian

29      David Egan

          FAMILY LAW SETTLEMENT

CONFERENCE JUDGE

Please arrive at Department 5

by 8:30 a.m.

April, 2005

4-6-05             Robert Bowers

                        Gordon Cruse

                        Russ Robinson

                        Joseph Russo

4-13-05           Peter Aex

                        Wells Lyman

                        Eric Moore

                        Kathy Recordon

4-20-05           Brian Burkett

                        Brian Hockvert

                        Thomas Marshall

                        Peggy Moore

4-27-05           Tom Buchenau

                        Michael Has-Ellison

                        Leigh Kretzschmar

                        Iris Mann McKay

2005 SECTIONS:

CIVIL LITIGATION

Chair: Mark R. Raftery 589-8800

Members: Jerry L. Carmody, Sam Parise

CRIMINAL LAW

Chair: Daniel Cohen 697-0333

Member: Andrea Schneider

ESTATE PLANNING

Chair: Nancy Ewin 698-1788

Members: Miranda Franks, Joselina Medrano

FAMILY LAW

Chair: Edward Torrence 698-6059

Members: Judith Klein, Bud Klueck

2005 COMMITTEES:

ANNUAL DINNER

Chair: Joseph Fox (858) 527-0111

Members: Jerry Carmody, Edward Torrence, Wells Lyman

COMMUNITY SERVICE

Chair: Joselina Medrano 562-9999

COURT LIAISON

Chair: Joseph Fox (858) 527-0111

Member: Miranda Franks

GOLF TOURNAMENT

Chair: Dan Bacal 588-2064

LAW DAY

Chair: Jerry L. Carmody 667-9600

HARD-TO-GET CREDITS

SEMINAR

Chair: Judy Marolt 442-1857

Members: Judith Klein, Joselina Medrano

MCLE

Chair: Daniel Cohen 697-0333

Member: Joselina Medrano

MEMBERSHIP

Chair: Edward R. Torrence 698-6059

PUBLICATION

Catherine Tancredi 579-7876

SPECIAL EVENTS

Chair: Judith Klein 698-1882

Member: Jerry L. Carmody

Foothills Bar Association

P.O. Box 1077

El Cajon, CA 92022