FROM THE PRESIDENT

By Jerry Carmody

Dear Members:,

I was pleased to learn that my friend and colleague Wells Lyman, had been elected President of the San Diego County Bar Association. Following the election, I spoke with Mr. Lyman about what he hoped to

accomplish during his term in office. He indicated that he hopes to get regional and specialty bar associations to increase their participation in the SDCBA during his term in office. He will host quarterly luncheons where members of these associations will have an opportunity to share their thoughts, ideas, and leadership with the members of the SDCBA. Wells will be sworn into office on December 3, 2004, at the SDCBA building located at 1333 Seventh Avenue, San Diego, California. He hopes to see many of his east county friends and colleagues at the induction ceremony. The FBA sends out its best wishes to Wells for a successful term in office.

By way of an update on the California Bar Association’s Pro Bono Service Awards, I was pleased to learn that the San Diego Disaster Relief Coalition will receive the 2004 President’s Pro Bono Service Award at the State Bar Annual Meeting in Monterey, California on Friday, October 8, 2004, at 6:00 p.m. I would like to personally thank all of the members of the FBA who participated in the disaster relief program. The State Bar has arranged to take a group photo of the persons who participated in the disaster relief program for publication in their awards brochure. The group photo will be taken on August 9, 2004, at 12:00 p.m., at the SDCBA building and I encourage all of you that participated in the program to be present for the group photo and be recognized for your humanitarian effort. Again, I hope to see you at the Annual Meeting.

Attendance at the Civil Litigation MCLE seminars in the Jury Lounge has dropped off significantly. It is difficult for us to schedule speakers when we know that only a few persons will attend. Sam Parise and I

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FROM THE COURT

by Robert A. Durant

Assistant Executive Officer

Administrative Division

Correction

to Article Regarding Tentative Rulings

We apologize, but numerous mistakes regarding Tentative Rulings were printed in the July newsletter. The telephone number for tentative rulings is not 441-2027. The correct number is (619) 441-4027.

Also, the Court no longer requires Notice of Intent to Appear at Oral Argument and no longer calendars oral arguments based on request as indicated in the article. In actuality, the tentative ruling appears at 4:00 p.m. the day before the law and motion calendar and appearances are required the next morning at 9:00 a.m. or oral argument is deemed waived.

We are sorry for any inconvenience caused by the erroneous information.

Filing Limitations Imposed Upon Small Claims Litigants

The Small Claims Act limits the number of lawsuits a litigant may file within a calendar year. CCP 116.231 permits individuals to file a maximum of two claims anywhere in the state during any calendar year for which the amount demanded exceeds $2,500. The small claims complaint forms require both the plaintiff and the defendant filing a cross-claim to declare under penalty of perjury that he has filed no more than two claims exceeding $2,500 within the calendar year.

A small claims litigant having two claims exceeding $2,500 may pursue his additional claims in small claims court by waiving the excess amount of his claims in order to comply with the $2,500 jurisdictional amount limitation.

Alternatively, the litigant may choose to initiate his small claims action in the following calendar year, assuming his particular action would not be barred by the statute of limitations governing his specific claim. The litigant may also choose to pursue his claim in civil court.

It is important to note that various governmental entities are exempted from the limitations imposed by CCP 116.235, including but not limited to cities, counties, and school districts. Such governmental entities however, remain bound to the small claims jurisdictional limit of $5,000.

FBA MEMBERSHIP

RENEWAL DUE

Not only has summer arrived and the children are out of school, but it is that time again to renew your FBA membership and pay your $45.00 annual dues.

Benefits include this informative newsletter keeping you up to date on the happenings of East County, free monthly section meetings which earn MCLE credit, MCLE seminars, and an annual directory.

The FBA does not send out a separate billing for dues. Your only reminder is in this Newsletter. Please complete the application included in this newsletter and mail with your check today!

FBA GOLF

TOURNAMENT

Dan Bacal has coordinated another golf tournament aka, the "4-person scramble." The tournament is scheduled for Thursday, September 9, 2004 and begins at 1:00 p.m. at the Cottonwood Golf Course. Tickets are $75.00 per golfer and include green fees, cart, beer cart, hats and food. Of course, "fabulous prizes" will be awarded to the winners. Checks must be received no later than August 30, 2004. For more information, please contact Dan Bacal at 588-2064 or via email at dan@bacallaw.com.

FROM THE

PRESIDENT

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have decided to bring back the Lunch and Learn format for our civil litigation seminars and to hold the seminars at area restaurants. In the past, our Lunch and Learn Seminars were well attended when they were held at area restaurants and were especially well attended when they included the participation of our local judges. We will host a seminar on the topic “Common Reasons For Kickbacks” in civil and domestic cases on September 20, 2004, at 12:00 p.m. The Clerks of the Superior Court will be presenting the seminar and we hope to have Judge Sturgeon and/or Judge Lim in attendance to answer substantive and procedural questions.

The Common Reasons For Kickbacks seminar is tentatively scheduled for the Jury Lounge, at the El Cajon Courthouse. I will be trying to find a local restaurant for the seminar and will keep you advised of the location in the September newsletter.

Regards,

Jerry L. Carmody, President

QUOTABLE QUOTES

by Randall "Rex" Erickson

"[T]hose engaged in political debate are entitled not only to speak responsibly but to '... speak foolishly and without moderation.' (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950.)

"Judges should be more learned than witty." (Etzel v. Rosenbloom (1948) 83 Cal.App.2d 758, 765; but see People v. Melton (1988) 44 Cal. 3d 713, 753 ("Well-conceived judicial humor can be a welcome relief during a long, tense trial.")

CONGRATS TO PATRICK O'CONNOR!

After becoming the third attorney in four years to represent the Plaintiff in the matter of Raml v. Humpal, Patrick F. O'Connor obtained a $ 1.38 million verdict on June 28, 2004, from the Honorable Eddie C. Sturgeon. The action included claims of fraud, negligence, breach of fiduciary duty, and conversion. Defendant had a law degree but failed the bar exam in 1989. During the 90's he became involved in a movement to create so-called "pure business trusts", designed to avoid reporting income to the I.R.S. He advised his clients that the trusts were legal and that there were no reporting requirements. Plaintiff, a machine shop owner, was pressured into placing his two properties into the trusts by his wife, whose mother worked with Defendant Humpal, who was trustee on over four hundred of these instruments. After Plaintiff and his wife divorced, Humpal as trustee, and without Plaintiff's permission, deeded one of the properties to the ex-wife who encumbered it with a $243,000 loan. She then deeded the property back to the trust. Later, after the lawsuit had been filed against Humpal and the ex-wife, Humpal deliberately encumbered both of Plaintiff's properties with deeds of trust in the amount of $150,000, admittedly without Plaintiff's knowledge or approval.

Plaintiff's expert concluded that Humpal had engaged in fraud, had violated his fiduciary duties as a trustee, acted as an attorney and, while doing so, committed malpractice in the areas of trust and taxation.

Humpal, who claims to be a "lawyer of the common law", refused to attend his trial and the matter was tried to the court after a jury waiver. Judge Sturgeon delivered the verdict in Plaintiff's favor on all counts in the Complaint, including $750,000 in punitive damages, and quieted title to the properties in Plaintiff.

SUPREME COURT

ADOPTS RULE ON

ATTORNEY

DISCLOSURE OF

CLIENT

INFORMATION

The California Supreme Court adopted a rule of professional conduct that provides guidance to attorneys concerning the disclosure of confidential client information relating to criminal acts likely to cause substantial bodily harm.

The justices adopted Rule 3-100 of the Rules of Professional Conduct, as proposed by the State Bar of California, with minor modifications to the rule’s proposed discussion section. The rule takes effect on July 1, 2004.

Under the rule adopted, an attorney is allowed to make a disclosure of confidential information under the circumstances described in the relevant statutes and the rule, but is not required to make such a disclosure.

Last year, the Legislature modified the statutory duty requiring attorneys to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,” contained in Business and Professions Code section 6068. (Assembly Bill No. 1101[AB 1101].)

The Legislature added paragraph (2) to section 6068, stating that “notwithstanding paragraph (1) [quoted above], an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”

The amendment to section 6068 is operative on July 1, 2004. The Legislature also amended Evidence Code section 956.6 to make the evidentiary standard parallel to the amended statutory duty of confidentiality.

In the uncodified portion of AB 1101, section 3, the Legislature invited the State Bar, in consultation with the Supreme Court, to create an advisory task force to study and formulate recommendations for a rule of professional conduct concerning specified issues relating to the implementation of the amended provisions.

The task force appointed by the State Bar complied with the legislative direction and the expedited time frame, and presented to the State Bar Board of Governors a proposed rule for its consideration. After circulation for comment, a few modifications were made to the discussion sections, and the rule was approved and transmitted by the State Bar to the Supreme Court.

The Supreme Court made minor modifications to two discussion sections relating to the rule, and selected the July 1, 2004, effective date to coincide with the effective date of the relevant legislation. The rule sets forth various considerations for an attorney who is considering making a disclosure of otherwise confidential information.

For the Supreme Court's order, with full text of the new rule, go to http://www.courtinfo.ca.gov/presscenter/documents/rule3-100.pdf .

The next meeting of the Estate Planning, Trust and Probate Section will be on Thursday, August 12, 2004 from 12:15 p.m to 1:15 p.m. at 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 (or pick it up prior to the meeting at any one of several sandwich shops in the center), enjoy the meeting and earn one hour of MCLE.

The speaker and topic will be announced. For more information, please contact Nancy Ewin.

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 of the Family Law Section will be on Tuesday, August 10, 2004 from 11:50 a.m. 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 will be William Eddy, CFLS, LCSW, who will discuss "high conflict personalities."

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.

For a six month trial period from August through January, 2005, all small claims hearings at the East County Superior Court will be scheduled exclusively for the court’s morning calendar. Small claims litigants will be scheduled for 8:00 a.m. and 10:00 a.m. sessions. Small claims hearings are held from Tuesday through Friday at the East County Superior Court.

August, 2004

3        Garrison Klueck

4        Clare Maudsley

5        Clare Maudsley

6        Catherine Tancredi

10      Elliott Kanter

11      Timothy Cohelan

12      Kenyon Young

13      Thomas Buchenau

17      Clare Maudsley

18      Dave Demergian

19      David Egan

20      Joseph Fox

24      Elliott Kanter

25      Leroy Knutson

26      Charles Scott, Jr.

27      James Mietzel

31      Ron Oberndorfer

            FAMILY LAW SETTLEMENT

CONFERENCE JUDGE

Please arrive at Department 5

by 8:30 a.m.

August, 2004

8-4-04          Anthony Beccarelli

                    Gordon Cruse

                    Lorraine Purviance

8-18-04        Richard Feuerstein

                    Richard Freed

                    Garrison Klueck

8-25-04        Brian Cochran

                    Cheryl Daily

                    Charles Fougeron

2004 SECTIONS:

CIVIL LITIGATION

Jerry L. Carmody 667-9600

Sam Parise (858) 674-6660

Mark R. Raftery 589-8800

CRIMINAL LAW

Daniel Cohen 697-0333

Andrea Schneider 337-1384

ESTATE PLANNING

Scott Cole 460-2080

Nancy Ewin 698-1788

Joselina Medrano 562-9999

FAMILY LAW

Judith Klein 698-1882

Bud Klueck 448-6500

Edward Torrence 698-6059

2004 COMMITTEES:

ANNUAL DINNER

Joseph Fox (858) 527-0111

Mark R. Raftery 589-8800

COMMUNITY SERVICE

Joselina Medrano 562-9999

COURT LIAISON

Jerry L. Carmody 667-9600

GOLF TOURNAMENT

Dan Bacal 588-2064

HARD-TO-GET CREDITS

SEMINAR

Judith Klein 698-1882

Bud Klueck 448-6500

Judy Marolt 442-1857

LAW DAY

Jerry L. Carmody 667-9600

MCLE

Daniel Cohen 697-0333

Joselina Medrano 562-9999

MEMBERSHIP

Edward R. Torrence 698-6059

PUBLICATION

Catherine Tancredi 579-7876

SPECIAL EVENTS

Judith Klein 698-1882

Jerry L. Carmody 667-9600

Foothills Bar Association

P.O. Box 1077

El Cajon, CA 92022