FROM THE PRESIDENT

by Edward R. Torrence

Dear friends and colleagues,

With the approach of the fifth anniversary of the September 11, 2001 attacks which killed over 3,000 of our fellow citizens and residents and the debut of the movie “twin towers” we will have many opportunities to reflect on the events of that day, the tragic loss of life, the heroics of first responders, military and ordinary citizens who took action against terrorists and the wisdom of our elected leaders in identifying and responding to the threat. We may also choose to reflect on how these events have changed our lives, our outlook on world events and the impact these events have had on our families and ourselves. Please indulge me in allowing me to share a few salient thoughts.

On September 11, 2001, I was preparing to leave the house to head downtown for an Order to Show Cause hearing in Family Court. The only thing unusual up to that point was that I turned on television to catch some news. This was not my usual habit. My wife, Kathy, was hospitalized for surgery a few days before. I had spent the previous day with her at the Naval Hospital and missed the news that evening. That morning I saw an excited reporter discussing a plane that crashed into the World Trade Center tower. My thoughts ran through stories that I had heard before about a military aircraft which flew into the Empire State Building in effect followed sometime after World War II. The skies that morning were exceedingly clear. How could this happen? I wondered what could have gone so seriously wrong that commercial aircraft could be out of control. While pondering that question and watching the smoke rise from the tower, I imagined that this was going to be a terrible event for those in the building at the point of impact and in the floors above. During this brief period of time I saw the image of the second plane flying into the other tower. In this day of instant replay I could not except the image I had just seen. My first thought was that

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FROM THE COURT

by Robert A. Durant

Assistant Executive Officer

Administrative Division

SMALL CLAIMS STATUTES

IMPACTING FICTITIOUS BUSINESSES

The Small Claims Act includes statutes that significantly impact fictitious businesses when such a business is either a plaintiff or a defendant in a small claims action. Per CCP 116.430, a fictitious business that files a small claims action must submit a declaration to the court stating that the plaintiff has complied with the fictitious business name laws by filing a fictitious business name statement. In the event that the plaintiff fails to comply with such laws, the claim must be dismissed without prejudice.

CCP 116.430 precludes the postponement of the case to allow the fictitious business plaintiff time to provide proof of compliance with the laws. Rather, the code mandates that the claim be dismissed without prejudice, thereby allowing the plaintiff to re-file the claim once he has complied with the fictitious business laws.

Additionally, the Small Claims Act provides a plaintiff with an immediate remedy when the plaintiff incorrectly names a fictitious business as a small claims defendant. Oftentimes, businesses fail to provide patrons with their appropriate legal name. Thereafter, the patron will sue the business under an incorrect fictitious name.

Per CCP 116.560, the court is mandated to inquire into the defendant’s correct legal name when the defendant is a fictitious business. In the event that the defendant is conducting business in a name other than the name stated on the plaintiff’'s claim, CCP 116.560 requires that the court, at the time of the hearing, amend the claim to state the correct legal name of the defendant. Additionally, the court must amend the claim to include any additional names actually used by the defendant.

The CCP 116.560 also allows for the court, at any time, including before or after the judgment has been rendered, to amend the plaintiff’s claim or judgment to include both the correct legal name and the name or names actually used by the defendant..

NEW RULES GOVERNING

TEMPORARY JUDGES

Please see article in this Newsletter if you are interested in volunteering for the court as a pro tem Small Claims Judge.

HOLIDAYS

The San Diego Superior Court, East County Division will be closed Monday, September 4, 2006 for Labor Day.

JUDICIAL CANDIDATES

FORUM

On Wednesday, September 13, 2006, the Foothills Bar Association and the San Diego County Bar Association will co-sponsor a Judicial Candidates Forum between attorneys Larry Kincaid and Roderick Shelton who are running for an open position on the San Diego County Superior Court. The Forum will provide a meaningful opportunity for attorneys and other members of the community to hear from each of the candidates and obtain information on their positions.

It will be held on Wednesday, September 13, 2006 between noon and 1:30 p.m. at BJ's Restaurant at Grossmont Center, 5500 Grossmont Center Drive, La Mesa, CA 91941 in La Mesa.

Please use the enclosed flyer to reserve your space.

FROM THE PRESIDENT

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this was a replay but I could still see the smoke rising from the first tower. This could not be an accident. This could not be an out-of-control aircraft. This was intentional. This was an attack. This was a massacre occurring before my very eyes in real-time. Shocked. I was shocked in a way that I never felt before or since.

My life has included a few moments of shocking personal news. The call for my brother to tell me that our father had died suddenly. A wife who told me that she did not want to be married any longer. A call from our son at school who had learned about an airplane crashing into our home. My doctor telling me that the lab test results indicated a malignant cancer. Our youngest son advising me that he decided to join the Army. Each of these events was shocking, startling, disturbing and even earth shaking in its own way. But none of these experiences was like the shot of September 11, 2001.

When I arrived at Court, naturally everyone was anxious. Folks were speculating as to the significance of the events of that morning and who was responsible. Many shared bits and pieces of news stories that they had heard so far that morning. We were trying to make sense of what we were hearing and learning. We were wondering if Court hearings would proceed as planned. As I was leaving a restroom a metal trash bin fell from it’s place on the wall and struck the floor with a loud bang. We all jumped and a bailiff ran into the room to respond. We were all jumpy. So were the folks at the Naval Hospital when I arrived to visit my wife. Kathy was really out of it due to medications when I called her earlier in the morning to tell her the news. Now it was about 10:00 and she was aware of what had happened. She was telling me that all of the Corpsmen and nurses were focused on the prospect of mobilizing. They knew that this was the beginning of something much larger which would involve all of them.

Our youngest son, Scott, turned 18 years of age a few months later and graduated the following June. Not long after that he was telling me that he was talking to the Army recruiter and was interested in the Army Reserves. Then it was the regular Army.

Despite, or perhaps because of my own career in the Navy, I never intentionally guided any of our sons toward a military career or experience. I felt an obligation to make sure that Scott saw the big picture, understood the risks and realized that circumstances could change beyond his wildest expectations in the next four years. He went in anyway. Basic training at Fort Benning was followed by advanced training at Fort Huachuca, language School at the Army Presidio of Monterey and finally assignment to Fort Bragg. Next thing was deployment to Iraq for one year of boots on the ground. Of course, I’m proud of Scott for his service, for his dedication, for making a decision and seeing it through and for accomplishing success at each step of the way. It didn’t stop me from worrying. I prayed and worried each day. One day while I was in the orthopedic ward at the naval hospital with a broken right hand, I was a few beds away from a young sailor or marine who left most of his right hand in Afghanistan. Of course I worried.

Now on this anniversary of 9-11, after a year in Iraq and two bad knees, Scott is getting out of the Army and I have a chance to breathe again. We always worry about our kids because we know that we cannot keep them safe once we let them out into the “real world” but I never expected anything like this. In our microcosm of life, I would like to dedicate this column to our son Scott and in the larger view of the world to all those whose lives will never quite be the same because of what happened in New York, Washington D.C. and a plane over Pennsylvania.

- THINGS TO DO TODAY -

RENEW FBA MEMBERSHIP

Is your name on the membership roster included in this Newsletter? What about your colleagues name? If not, then you have not renewed your FBA membership.

Your $45.00 annual dues provides you with many benefits, including this informative newsletter keeping you up to date on the happenings of East County lawyers and the courts, free monthly section meetings which earn MCLE credit, MCLE seminars, and an annual attorney directory (a good referral source).

If your name is not on the membership list at the end of this Newsletter, you will not receive future newsletters unless you renew now! 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 7, 2006 and further information about tee off time, cost of tickets and prizes is contained in the flyer included in last months'. Contact Dan Bacal at 588-2064 if you need another sign up flyer or have any questions.

Join Lawyers Club Friends for the

EAST COUNTY LAWYER'S

CLUB CHAPTER MIXER

September 21, 5:15 to 7:15 p.m.

Casa de Pico, Grossmont Center

SAVE THE (NEW) DATE!!

Blood Drive for the San Diego Blood Bank

September 21, 2006

Co-sponsored by the Foothills Bar Association and

the San Diego Superior Court/ East County Division

QUOTABLE QUOTES

by Randall "Rex" Erickson

The judiciary has been ever mindful of Thomas Jefferson's aphorism that ‘error of opinion may be tolerated when reason is free to combat it.’ " (Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1145.)

Only a couple of decades ago pilots often heard the statement (which almost became an adage) that ‘One doesn't have to be crazy to fly but it helps.’ There are people who still believe this. But the magnificent records of safe, speedy and comfortable transportation through the use of airplanes, made by both airline companies and conservative private owners, have disproved the ‘adage.' (Anderson v. Souza (1952) 38 Cal.2d 825, 847.)

The Estate Planning Section meetings are held on the second Thursday of every month from 12:15 to 1:15, at the Law Offices of Nancy Kaupp 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. Topics covered are those relative the fields of estate planning and administration as well as Elder Law issues. If you have not given us your email address and/or fax number, please call 619-698-1788 and add your information to the list. We send out the current topic in advance of the meeting to those for whom we have the information. Bring your lunch, enjoy the meeting, and earn one hour of MCLE.

This month’s meeting will be held on September 14, 2006. The speaker and the topic will be TBA. The meetings are free to members of the Foothills Bar Association. The cost is $10.00 for those who are not members of the Foothills Bar. Applications for membership are available on the website and at the meeting.

The meetings are structured to provide MCLE credit and have been approved by the State Bar of California to provide one hour, general. The Foothills Bar Association 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 section chairs are Nancy Kaupp Ewin, Miranda C. Franks and Carolyn Brock. If you have any suggestions, speakers or topics for upcoming meetings, please contact one of the chair persons.

The next meeting will be held Tuesday, September 19, 2006 from 11:45 a.m. (presentation starts at 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 lunch.

The speaker will be David Cameron Carr, Esq. and the topic is "The Top Ten Ethics Pitfalls" for solo practitioners and small firms. Please see the enclosed flyer for additional information about the topic and speaker.

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 Edward R. Torrence or Judith Klein.

SMALL CLAIMS COURT

Please be prepared to take the bench at 8:15 a.m.

September, 2006

1          Wells Lyman

5          John Martin

6          Thomas Marshall

7          Clare Maudsley

8          Catherine Tancredi

12        James Mietzel

13        Ron Orberndorfer

14        Kenyon Young

15        Barry Pasternack

19        Blaine Phipps

20        Wells Lyman

21        Kristine Nesthus

22        Catherine Tancredi

26        Dan Bacal

27        Thomas Buchenau

28        Thomas Castonguay

29        Ed Castro

            FAMILY LAW SETTLEMENT

CONFERENCE JUDGE

Please arrive at Department 5 by 8:30 a.m.

September, 2006

9-6-06             Daniel Grunbaum

                        Michael Has-Ellison

                        Glen Honig

                        Kindra Willey

9-13-06           Brian Hockvert

                        Robert Krysak

                        Daniel Larkin

                        Iris McKay

9-20-06           Karen Chettle

                        Charles Fougeron

                        Lee Lawless

                        Edward Torrence

9-27-06           Debra Collicott

                        Sheryl Graf

                        Carl Sizemore

                        Lauri Stocks

2006 SECTIONS:

CIVIL LITIGATION

Chair: Mark R. Raftery 589-8800

Members: Jerry L. Carmody, Joselina L. Medrano

CRIMINAL LAW

Chair: Daniel W. Cohen 697-0333

Member: Andrea Schneider

ESTATE PLANNING

Chair: Nancy Kaupp Ewin 698-1788

Members: Miranda C. Franks, Joselina L. Medrano

FAMILY LAW

Chair: Edward R. Torrence 698-6059

Members: Judith Klein

2006 COMMITTEES:

ANNUAL DINNER

Chair: Joseph Fox (858) 527-0111

Members: Edward R. Torrence, Miranda C. Franks

COMMUNITY SERVICE

Chair: Joselina L. Medrano 562-9999

COURT LIAISON

Chair: Dan Bacal 588-2064

GOLF TOURNAMENT

Chair: Dan Bacal 588-2064

LAW DAY

Chair: Jerry L. Carmody 667-9600

HARD-TO-GET CREDITS

SEMINAR

Chair: Judy M. Marolt 442-1857

Members: Judith Klein, Joselina L. Medrano

MCLE

Chair: Daniel W. Cohen 697-0333

Member: Joselina L. Medrano

MEMBERSHIP

Chair: Edward R. Torrence 698-6059

PUBLICATION/NEWSLETTER

Catherine Tancredi

SPECIAL EVENTS

Chair: Judith Klein 698-1882

WEBSITE:

Chair: Daniel W. Cohen 697-0333

Foothills Bar Association

P.O. Box 1077

El Cajon, CA 92022