FROM THE PRESIDENT

By Jack McCabe

The continued, late breaking news that we may be subjected to random terrorist attacks certainly is unsettling. Municipal water systems, national treasures and historic sights, key bridges are all reputed to be potential targets. Meanwhile, still another suicide bombing in the middle East tragically claims more lives and one wonders if we are going to become so jaded to the recurring tragedies that further changes to the way we live will occur imperceptibly.

Closer to home, we have a tragic situation that calls out for the

collegiality and social awareness of our members to once again respond in the enthusiastic manner that marks our Association. Our "newest member", a lawyer since 1981, has faced personal trials and challenges that would have caused a much less determined person to have succumbed. Initially faced with viral diabetes and denied an experimental treatment that may have resolved the problems for less than $15,000, our colleague has now withstood and survived over $2.3 million worth of medical treatment and procedures.

Five episodes of congestive heart failure, four resuscitation, a stroke, colon cancer, a colostomy, renal failure and thrice-weekly dialysis, 30 days in ICU, a drug induced coma and reconstructive surgery scheduled for May 23, 2002 to rebuild rectal functioning damaged in previous surgeries...and this is not an all inclusive list of the challenges faced and overcome. His home for the last three months has been Alvarado Hospital and the view of the parking lot is not exactly the resplendent environs one would otherwise expect for a lawyer with two decades of experience.

Our colleague is Donald Zaitzow and he has consumed a lot of blood in his surgeries and medical procedures. He will likely be using a great deal more in what he hopes will be his final surgery. And thus the call: for those of you who can, please consider

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FROM THE SMALL

CLAIMS ADVISOR

by Donna Morel

INAPPLICABILITY OF COLLATERAL ESTOPPEL TO SMALL CLAIMS JUDGMENTS

The doctrine of collateral estoppel bars issues from being relitigated if the issue was decided at a prior proceeding where there was a final judgment on the merits. Collateral estoppel may only be used against a party or a party in privity with a party at the prior proceeding.

Although the doctrine was previously applied to small claims appeal judgments, collateral estoppel is no longer applicable to either an original small claims judgment or a small claims judgment rendered on appeal.

In Rosse v. DeSoto Cab Company, (1985) 34 Cal. App. 4rth 104740 Cal. Rptr. 2d 680, the court reiterated the reasoning of the California Supreme Court's decision in Sanderson v. Niemann (1941) 17 Cal. 2d 563. The court stated in Niemann that because small claims functions informally, with significantly limited evidence presented, complex issues might not be fully considered at the hearing. Because the hearing may not present issues that are fully litigated, the Sanderson court reasoned, judgments in small claims court cannot be used to assert collateral estoppel against a party or a party in privity with the a party at the prior proceeding.

The Rosse court rejected as outdated a California Supreme Court decision rendered several years after Sanderson. In Perez v. City of San Bruno (1980) 27 Cal. 3d 875, the court ruled that the doctrine of collateral estoppel could be applied to small claims appeal hearings. The court stated that the reasoning of Sanderson was inapplicable to appeal hearings. The court noted that, in accordance with rule 155 of the California Rules of Court, the de novo hearing was to be conducted under the "same laws and rules in all respects as other trials in the superior court."

Rosse pointed out, however, that Rule 155 was repealed after the legislature amended the Small Claims Act to include the provision that mandates that the de novo hearing "shall be conducted informally." (CCP 116.770, subd. b).

Because the small claims appeal is a de novo hearing that is essentially indistinguishable from the original small claims hearing, with the exception of having representation by attorneys permitted to participate, the Rosse court ruled that collateral estoppel may not be applied to a small claims judgment or a small claims appeal judgment. Additionally, with both a small claims judgment and a small claims appeal there is no record of the court proceeding. It cannot be properly determined, therefore, whether specific issues were actually litigated, as required when applying the doctrine of collateral estoppel.

NEWS FROM THE ACCOUNTING DIVISION, EAST COUNTY COURT

Effective January 1, 2002, the Accounting Division of the Superior Court is no longer accepts and disburses proceeds of the settlement approved by the Court on a minor compromise case. The old Superior Court Form SDSC CIV-96 (Rev 7-00) is no longer in use. It has been replaced by the following forms:

Form MC-350 Petition to Approve Compromise of Claim (7 pages)

Form MC-351 Order Approving Compromise of Claim (3 pages)

Form MC-355 Order To Deposit Money Into Blocked Account (1 page)

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FROM THE PRESIDENT

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donating blood in Don's name. Consider when your tennis elbow flares up, or the lower back is stiff from a long day in the office, the Herculean challenges Don has faced thus far and will be confronting in trying to resume the practice when he is sufficiently ambulatory.

If you cannot donate blood, consider a call or a card or a note with good wishes. When I first heard about Don's condition and went to see him, I was prepared to see the worst. Although punctured with needles and tubes all over his extremities, and an oxygen line in his trachea, you would have thought he just won the lottery from the smile and cheerfulness he flashed when I first entered his room. Indomitable spirit is what came to my mind about how to describe Don.

Let us all join in wishing our colleague a speedy recovery and a complete return to the practice. Keep fighting, Don!!

FROM THE COURT

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Form MC-356 Receipt & Acknowledgment of Order For The Deposit of Money into Blocked Account (1 page)

Form MC-357 Petition For Withdrawal of Funds From Blocked Account (2 pages)

Form MC-358 Order For Withdrawal of Funds From Blocked Account (1 page)

All of these forms are available at the Business Office counter or at the San Diego Superior Court Web site under Judicial Council forms.

ABSENCES OF FAMILY LAW JUDGES:

Dept. 5 - Commissioner Clements - June 14 through June 21

Dept. 6 - Judge Goldsmith - June 7 through June 17

Dept. 7 - Judge Halgren - June 10 through June 21

EX PARTE HEARINGS:

Check in with the Family Law Business Office to determine where ex parte hearings have been reassigned.

FBA MEMBERSHIP

RENEWAL DUE

It is time again to renew your FBA membership and pay your low $45.00 annual dues. Benefits include free monthly section MCLE seminars, Lunch & Learn luncheons and an annual directory. The FBA does not send out a separate billing for dues. Your only reminder is in this Newsletter. Don't be the last lawyer in your office to renew! If you have not already done so, complete the enclosed application and mail with your check today!

QUOTABLE QUOTES

by Rex Randall Erickson

"'What is happening to our young people? They disrespect their elders, they disobey their parents. They ignore the laws. They riot in the streets inflamed with wild notions. Their morals are decaying.' [Citation omitted.] Voiced by Plato (The Laws I) some 2,300 years ago, these words remind us that youthful rebellion is not peculiar to recent years." (Braxton v. Municipal Court (1973) 10 Cal.3d 138, 155.)

A joint meeting of the Criminal Law and Civil Litigation Sections (together with the East County Lawyer's Club) will be held on Thursday, June 27, 2002 from 12:00 noon to 1:00 p.m. in Department 6 of the El Cajon Superior Court (second floor). Food is allowed and you may bring your brown bag lunch.

The speaker will be Marcus Ambrose, Esq. Mr. Ambrose is an experienced trial attorney who previously practiced law for 25 years before becoming a full time trial consultant. His topic is "Courtroom Persuasion Tactics" and he will present useful and insightful tips. This program should be of interest and equally valuable to seasoned litigators and apprentices alike. Written materials will be provided. Please see enclosed flyer for additional information.

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 (Ethics) 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.

The next meeting of the Estate Planning, Trust and Probate Section of the Foothills Bar will be held on Thursday, June 13, 2002 from 12:15 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 (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 topic is not yet determined but we will call those who regularly attend the section meetings. If you are interested in attending, please call Nancy's office for further information.

This activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour Ethics or 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.

These Section meetings are free for all FBA members, and $10.00 for non-members. Applications for FBA membership will be available at the door.

The next meeting of the Family Law Section will be on Tuesday, June 11, 2002 from 12:00 p.m. to 1:15 p.m. in Department 6 of the El Cajon Superior Court (second floor). Food is allowed and you are invited to bring your brown bag lunch.

The speaker will be Dr. Noll Evans who will discuss parental alienation and how it impacts family law cases.

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 Ed, Judi or Dana.

MCLE credits available for the Paralegal: On June 12, the San Diego Paralegal Association in conjunction with Cuyamaca College will be hosting a Bridging the Gap, half day forum. Practicing paralegals can earn 2 hours MCLE credits in Legal Research. The forum runs from 8:30 until 1:30 at Cuyamaca College. For more information call Mary Sessom at (619) 697-4141. Students, lawyers, and other law office personnel are invited to attend.

2002 OFFICERS

John McCabe, Jr.          President           619-692-3136

Garrison Klueck             Vice-President   619-448-6500

Jerry Carmody             Secretary           619-667-9600

Joseph Fox                    Treasurer           619-466-9091

2002 DIRECTORS

Daniel Cohen                                            619-697-0333

Sheryl Graf                                               619-440-5716

Judy Klein                                                 619-698-1882

Wells Lyman                             619-589-9984

Jocelyn Medrano                                      619-562-9999

Angelo Parise                                           858-674-6660

Ed Torrence                                              619-698-6059

Dana Wynn                                               858-485-5518

REPRESENTATIVES

Wells Lyman, San Diego County Bar       619-589-9984

Sheryl Graf, East County Lawyers Club   619-440-5716

Foothills Bar Association

P.O. Box 1077

El Cajon, CA 92022

FBA NEWSLETTER

PRODUCTION

Editor in Chief/Layout & Design . . . . . .Catherine Tancredi

ADVERTISING RATES

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$250.00/one year (includes publication in annual attorney directory)

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(Checks must accompany ad request before publication)

EAST COUNTY LAWYERING

AND OTHER SUBMISSIONS

Send submissions to Catherine Tancredi by mail to 275 E. Douglas Ave., Suite 115, El Cajon CA 92020, fax to 619- 579-2574 or email to cathyesq@adnc.com. If submission is lengthy, please send on a disk or by email in WordPerfect format.

ADDRESS CHANGES

Please send your change of address/telephone to Rita Drouin at 275 E. Douglas Ave., Suite 104, El Cajon, CA 92020-4545 (telephone 588-1936) or fax to Rita at 442-8060