FROM THE PAST PRESIDENT

By Garrison Klueck

As I write this, I am still President of the Foothills/East County Bar. However, ironically by the time that you read this President's Page, I will not be the President, Jerry Carmody will be.

Life is filled with irony. On a recent Friday, the East County Collaborative Law Group was meeting at Por Favor Restaurant in the La Mesa Village part of La Mesa. Then all hell broke loose.

Collaborative Law, as you may know, is a practice designed to make the experience of divorce less painful and destructive of people's lives and family relationships. The practice includes a team approach to "family redesign" that includes, open-book discovery, a written pledge by both attorneys and both parties to NOT go to court, a team approach that includes mental health professionals and a joint financial planner. The practice has been available in the San Diego area since early 2001, when the first group was trained, since migrating here from the Bay Area and before that from the twin cities in Minnesota where it was developed. And now some of us are trying to bring this kinder, gentler method of divorcing to the very stressed divorcing couples in East County.

At the same time we were trying to bring peace to the East County, a block away CHPs and a carjacker were engaging in the fatal gun fight at the Friday Farmer's Market. A volley of gun shots were heard. Sirens wailed, periodically throughout our meeting. A La Mesa policeman interrupted our meeting to determine if any of us were witnesses. It is hard to concentrate on being a peacemaker in the midst of a gun battle.

It is also hard to leave a Bar Presidency without being filled with gratitude for all those who helped and contributed during the last year. The starting point for my gratitude has got to be our Board of Directors. I am so grateful to all of them as all of them have participate throughout the year.

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FROM THE

EDITOR

by Catherine Tancredi

Happy new year everyone! I hope everyone had a great holiday. It has been two years now since I've retired and besides writing this newsletter to keep abreast of the latest happenings, I still volunteer once a month in the Small Claims Department. I enjoy my monthly foray very much, especially because we have consistent clerks and bailiffs.

With Linda and usually bailiff Dave, that those of us who show up once a month are always reminded of the rules that must be followed in the court. These are tricky rules and not easily remembered, especially when some rare motion is filed with specific legal calendaring guidelines. I am so grateful to have Linda there because she always knows what is going on and what needs to be done. She is always courteous to the litigants and that keeps the courtroom under control.

I hope we can continue to have Linda as the court clerk in Small Claims because she makes our job easier and as such, it is as much 'fun' as it is providing a service. Thanks, El Cajon's 'powers that be' for giving us a great clerk (and for great bailiff's too!).

FROM THE

COURT

by Robert A. Durant

Assistant Executive Officer

Administrative Division

The Small Claims Court occasionally entertains claims pertaining to wrongful termination of residential tenancies as defined by Civil Code Section 789.3. Usually, the determination as to whether a violation of the Code has occurred is readily assessed by the court. The imposition of mandatory monetary sanctions under Section 789.3, however, can be more problematic.

Civil Code Section 789.3 prohibits a landlord from willfully interrupting or terminating any utility services with the intent to cause the termination of a tenancy. The code disallows the interruption of any service, including telephone, gas, heat water light elevator and refrigeration. Additionally, the code prohibits the landlord from terminating the occupancy by locking the tenant out of the premises, by removing doors or windows and by removing the tenant’s personal property or furnishings.

Civil Code 789.3 provides for specific and somewhat constitutionally controversial remedies when the landlord acts in violation of the law. The law provides, as one court assessed, the potential for a “veritable financial bonanza…” for a tenant willing to endure for a substantial period of time the termination of his utility services. (Hale v. Morgan (1978) 22 C3d 388, 149 CR 375).

The Section 789.3 states that a landlord shall be liable for $100 for each day the landlord remains in violation of the law, with a mandatory minimum penalty set at $250. The code does not provide for a cap on the number of days calculated in assessing penalties. Moreover, the penalty amounts are mandated for each violation of the law.

In Hale, the court ruled that the Code’s penalty provisions were facially constitutional. The court reasoned that the penalty was based upon sound public policy in attempting to deter landlords from wrongful tenancy terminations.

The Hale court, however, ruled that the penalty could potentially be applied in an unconstitutional manner, in violation of due process. To ensure that such penalties are not unconstitutionally disproportionate, courts must assess the appropriateness of the amount of the punitive assessments on a case-by-case basis. Therefore, although Section 789.3 provides a court no discretion in assessing the statutory penalties, in practicality, courts must use such discretion in order to ensure that the application of Civil Code Section 789.3 is constitutionally sound.

FROM THE PAST

PRESIDENT

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Several of the Directors did double duty as both a Director and a co-chair of a section or leader on a project. Our big project, every year, is our "Hard-to-Get" MCLE credits seminar in the fall. We picked November 1, 2003 as our date this year not knowing that the area would be hit with the worst brush fire emergency in our lifetimes and that the courts would be closed for three days during the prior week. Somehow our Board members, lead by Judy Marolt, our event chair, pulled it off and the seminar was a success.

Our sections remained vibrant thanks to the hard work of the co-chairs–Sam Parise and Joe Fox for the Civil Section, Nancy Ewin and Jocelyn Medrano for Probate/Estate Planning, Dan Cohen and Andrea Schneider for the Criminal Law Section and my co-chairs for the Family Law Section Ed Torrence and Judy Klein.

I am grateful to Jack McCabe for staying on the Board and contributing during the year after his Presidency. I am grateful to past Presidents Tom Buchenau and Clayton Anderson, as well as our Vice President Jerry Carmody, for their efforts during the fire emergency.

Besides the great volunteer efforts, I am also so grateful for the efforts of the people we pay. Rita Drouin keeps our office running, answers our mail and telephone. An organization whose President and leadership changes every year needs paid staff who can provide some continuity. Rita is ours and, despite suffering health problems earlier in the year, Rita stayed as our rock. Brian Legged, our web master, got our web site up and running and the Foothills/East County Bar is back in cyber space. Our snail mail communications was again handled by our Newsletter Editor, Cathy Tancredi. She did a great job, as usual.

I am grateful also for all out members who showed up at various events and participated. An organization like ours IS our membership and all of your efforts are appreciated.

I am so grateful because we accomplished some things this year. I set four goals for the organization this year and we accomplished them all. The goals were: 1) get back into cyber space with a web site launch; 2) have higher profile by participating in State Bar activities including the Conference of Delegates at the State Bar Convention; 3) include reference to our East County focus by having us refer to ourselves as the Foothills/East County Bar; and 4) make the "Hard-to-Get" MCLE credit seminar be an annual

event.

Lastly, I am grateful for our tradition of keeping the Immediate Past President on the Board for a year after his/her Presidency. Among other benefits, it allows the Past President an opportunity to follow through and help see that some of the projects and changes implemented during the individual's Presidency "stick" and become a permanent part of the organization. So I leave your Presidency with a lot of good memories and a heart filled with thanks. Good luck to all of you and particularly to our new President, Jerry.

HOLIDAY

The San Diego Superior Court, East County Division will be closed Thursday, February 12, 2004 for Lincoln's Birthday and Monday, February 16, 2004 for President's Day.

FROM THE NEW

PRESIDENT

by Jerry Carmody

In the months preceding my induction as President of the Foothills Bar Association, I was preoccupied with planning for the annual dinner. For those of you that attended the dinner, it was a great time to socialize with the Judges, El Cajon Court Administrative staff, and attorneys from the different bar associations. For those of you that did not attend, I will use this opportunity to thank the members for their trust and confidence in electing me to act as your President and lead your association in 2004. We have a great Board of Directors for the 2004 term and I look forward to working with them during my term in office.

During my 20 years of practice in the east county, I have seen the work of the FBA increase substantially. We have regular monthly MCLE seminars in the areas of Criminal Law, Civil Litigation, Family Law, Estate Planning, Trusts and Probate. I will work to keep our MCLE accreditation and work to keep our seminars free to our members. The free seminars have relieved the burden on many of our members of meeting their MCLE requirements. It is always a challenge to the section leaders to come up with new ideas and speakers for the monthly seminars. If you have a topic or a speaker that you would like us to offer at one of our seminars, please provide me with that information and I will do my best to arrange the seminar. Civil Litigation is an especially difficult area and I would like the bench and our members to contribute new ideas in this area.

In speaking with the Executive Officer of the East County Superior Court, Robert Durant, I became aware of his need to reduce the cost of administration of cases. The Pro Tem Judges do a great deal to reduce the cost as do the Pro Tem Settlement Judges in the Family Law department. I think the civil department could implement a telephonic appearance system where appearance at Status Conferences and Case Management Conferences could be made telephonically which would greatly reduce the cost of litigation for our clients. I will work with Robert Durant and the Judges to try to implement a telephonic appearance system during my term in office.

As many of you know I was active in the recent Fire Storm Disaster Relief Coalition in organizing the volunteer lawyer program. I had been somewhat of a dinosaur in recognizing the need for everyone to have an e-mail address for communicating with our members between news letters. I used the traditional facsimile method of communicating fire relief information together with e-mail. There were many documents and disaster relief manuals that I could not get to the members using the fax machine. I ask the members to update their e-mail addresses and, if it’s not too inconvenient, get an e-mail address so I can periodically get you information about various issues as I get the information.

I am grateful for the opportunity to serve you during my term in office. I would like to especially thank all the new and returning members of the Board of Directors for working with me in 2004.

2004 ATTORNEY

DIRECTORY NOW

AVAILABLE

The 2004 FBA Annual Attorney Directory is now available. If you did not attend the FBA Annual Dinner on January 30, 2004, one will be mailed to you automatically. If you do 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, February 17, 2004, from 12:15 p.m to 1:00 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 Vickie M. Wolf, CPA, ABV, CFE of the accounting firm of Brodshatzer, Wallace, Spoon and Yip. She will discuss how to best us an economic expert. 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 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 Sam or Joe.

The next meeting of the Criminal Law section will be on Thursday, March 25, 2004, from 12:15 p.m to 1:00 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 Executive Coach Christine Elliot. The topic will be announced in next month's Newsletter.

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 Dan or Andrea.

The next meeting of the Estate Planning, Trust and Probate Section was originally scheduled to be held on Thursday, February 12, 2004, 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 speaker and topic will be an Ethics panel. Because February 12, 2004 is Lincoln's Birthday (and a holiday) the meeting may be moved to the next week (unable to be confirmed at press time.) Nancy Ewin will contact members in advance to advise of the exact date of the meting.

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.

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.

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, February 10, 2004, 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 Julie Knotzman, Esq. a Certified Divorce Planner who will discuss how to analyze tax forms.

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.

SMALL CLAIMS COURT

Please be prepared to take the

bench at 8:15 a.m. and 1:15 p.m.

February, 2004

3          AM     Tom Castonguay

            PM      Joseph Sciarretta

4          AM     Charles Scott, Jr.

            PM      Frank Puglia, Jr.

5          AM     Conrad Walker

            PM      Blaine Phipps

6          AM     Dan Bacal

            PM      Thomas Buchenau

10        AM     Timothy Cohelan

            PM      Ed Castro

11        AM     Kenyon Young

            PM      Peter Singer

12                    HOLIDAY

13        AM     David Egan

            PM      Dave Demergian

17        AM     Joseph Fox

            PM      Miranda Franks

18        AM     Elliott Kanter

            PM      Larry Kincaid

19        AM     Garrison Klueck

            PM      Wells Lyman

20        AM     Leroy Knutson

            PM      Thomas Marshall

24        AM     Clare Maudsley

            PM      Jon F. McKinley

25        AM     Blaine Phipps 

            PM      Ron Oberndorfer

26        AM     Frank Puglia, Jr.

            PM      Catherine Tancredi

27        AM     Charles Scott, Jr.

            PM      Tom Castonguay

            FAMILY LAW SETTLEMENT

CONFERENCE JUDGE

Please arrive at Department 5

by 8:30 a.m.

February, 2004

2-4-04             Garrison Klueck

                        S. Michael Love

                        Barton Noone

2-11-04           Robert Bowers

                        Peggy Moore

                        Gerald Mulder

2-18-04           Larry Kincaid

                        Wells Lyman

                        Thomas Marshall

2-25-04           Marilyn Bierer

                        Thomas Buchenau

                        Michael Has-Ellison

SECTIONS:

CIVIL LITIGATION

Joseph Fox (858) 527-0111

Sam Parise (858) 674-6660

CRIMINAL LAW

Daniel Cohen 697-0333

Andrea Schneider 337-1384

ESTATE PLANNING

Nancy Ewin 698-1788

Joselina Medrano 562-9999

FAMILY LAW

Judith Klein 698-1882

Bud Klueck 448-6500

Edward Torrence 698-6059

COMMITTEES:

ANNUAL DINNER

Virginia Johnson 441-4801

Wells Lyman 589-9984

COMMUNITY SERVICE

Joselina Medrano 562-9999

COURT LIAISON

Bud Klueck 448-6500

GOLF TOURNAMENT

Dan Bacal 588-2064

LAW DAY

Jerry Carmody 667-9600

MCLE

Joselina Medrano 562-9999

MEMBERSHIP

Edward Torrence 698-6059

PUBLICATION

Catherine Tancredi 579-7876

SPECIAL EVENTS

Wells Lyman 589-9984

WEBSITE

Foothills Bar Association

P.O. Box 1077

El Cajon, CA 92022