Contra Costa Lawyer - November 2021 Changes in the Law in a Time of Constant Change by CCCBA - Contra Costa Lawyer

Contra Costa

LAWYER VOLUME 34 NUMBER 6

NOVEMBER 2021

Changes in the Law in a Time of Constant Change

Local Solutions. Global Reach.

Contra Costa 2021 BOARD OF DIRECTORS Dorian Peters President Ericka McKenna President-Elect David Erb Secretary David Pearson Treasurer Oliver Greenwood Past President Dean Christopherson Patanisha Davis Pierson Jonathan Lee Terry Leoni Cary McReynolds Craig Nevin

Michael Pierson David Ratner Sutter Selleck Marta Vanegas Andrew Verriere Qiana Washington

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

LAWYER Volume 34, Number 5 |September 2021

The official publication of the

FEATURES INSIDE: Be Water, My Friend, by Alice Cheng and Matt Cody, Guest Editors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 From Low Tech to High Tech: How the Evolution of Technology Can Help the Court System, by Hon. Jennifer Lee. . . . . . . . . . . . . . . . . . 7 Moving Justice Forward at the Trial Courts Under the Cloud of Covid-19, by Patrice Truman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Membership Director Education & Events Director

Emily Day

Systems and Operations Director

CONTRA COSTA LAWYER CO-EDITORS EDITORIAL BOARD Marcus Brown Alice Cheng 925.482.8950 925.233.6222

Ann Battin Matthew Cody

510.210.2755 916.718.8938

Blending Work and Home: Remote Work in this New Era, by Rebecca Jones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Challenges to the Mediation Process in a Time of Constant Change by Hon. Bonnie Sabraw (Ret.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

BOARD LIAISON Perry Novak Marta Vanegas 925.746.7278 925.937.5433 Andrew Verriere COURT LIAISON 925.317.9113 Kate Bieker Lorraine Walsh

Justice Delayed is Justice Denied: Criminal Courts During the Pandemic, by Rachel Margolis Chapman. . . . . . . . . . . . . . . . . . . . . 21

DESIGN Christina Weed Carole Lucido 925.953.2920 925.370.2542 Rachel Margolis ADVERTISING Chapman Carole Lucido 925.837.0585

Contra Costa Court Scholarship’s Swan Song, by Hon. Terri Mockler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

925.957.5600 925.932.7014

925.370.2542

PRINTING Modern Litho 800.456.5867

The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2021 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

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NEWS & UPDATES 17 �� Pro Bono Page 18 �� 2022 Judicial Assignments 20 �� In Memoriam: Commissioner Judith Sanders, by Alice Cheng 28 �� Sustaining Firms 29-31 �� Calendar 31 �� Advertiser Index 31 �� Classified Advertising CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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“

INSIDE Be Water, My Friend

by Alice Cheng and Matt Cody Guest Editors Like a tsunami crashing against a beach, the past nearly two years have shaken the legal field. The institutions and traditions that served as the foundations of the legal community such as paper documents and in-person meetings and trials were suddenly not realistic. No longer could we attend happy hours and get to know our colleagues and judicial officers or negotiate transactions face to face. For some time, the courthouse doors were literally and figuratively closed. With these momentous changes to the legal community, we can look at water – another completely disrupting force – for lessons on how to survive and persevere. Unlike the law, water is the ultimate substance in flux. Depending on the temperature, it can be a solid, a liquid or a gas. It can be calm, but it is easily affected by its surroundings like a pebble in a pond. Water ebbs and flows in a way that allows it to bypass obstacles and wear away at any resistance it faces while providing its own resistance as it adjusts to its environment. Just as water rushes downriver, so has the legal field as it had to rapidly adapt over the past two years. The endorsement of paper

files and letters mailed by the postal service was replaced with electronic trial binders and electronic service. The penchant for in-person discussions to bridge the gap in settling cases was quickly switched to Zoom meetings for hours on end. The speed at which the practice of law and the law itself has evolved over such a short period has jolted practitioners, clients, and the institutions that serve them, seemingly overwhelming those who cannot adapt. In this issue of the Contra Costa Lawyer, see the perspectives of a cross-section of our legal community on the ways we have been swept up by the current of change from traditional practices. • One of the newest judges in Contra Costa County, Hon. Jennifer Lee, writes about how the pandemic has affected litigants in Contra Costa County in positive ways. • Hon. Bonnie Sabraw (Retired) reflects on challenges to mediation that she has encountered during the pandemic. • Patrice Truman, a jury consultant, describes how courts around the country are

managing trials pandemic.

during

the

• Celine Mui Simon, attorney and real estate broker, presents an MCLE self-study opportunity on the new law for disclosures related to structure vulnerability to wildfires. • Rachel Margolis Chapman, a criminal defense attorney, provides insight on the effects the pandemic has had on the criminal courts in Contra Costa. • Rebecca Jones interviews practitioners on how changes to workplace culture have enhanced their practices. • Hon. Terri Mockler wraps up the Contra Costa Court Scholarship Fund. • In Memoriam of Commissioner Judith Sanders. We hope these articles reflect lessons learned from changes in the legal profession over the last two years and how we can adapt to these new circumstances. Despite the deluge of changes, one thing hasn’t changed: like clean water, the legal system is a vital resource. As

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Inside

Continued from page 5 we have seen, when the availability of water changes (a scenario we are very familiar with from the persistent drought conditions), we make changes as a society to safeguard limited resources. Similarly, when there is a lack of access to judges, attorneys, and other legal professionals, we all feel the repercussions. Finally, we note that some changes during the pandemic have felt like crashing waves, causing stress or uncertainty that was already too familiar to lawyers, judges, law students, and others involved in the legal system. For this, we invoke the words of Bruce Lee:

“Be Water, My Friend. Empty your mind. Be formless, shapeless, like water. You put water into a cup, it becomes the cup. You put water into a bottle, it becomes the bottle. You put it into a teapot, it becomes the teapot. Now water can flow or it can crash. Be water, my friend.” –Bruce Lee Alice P. Cheng, Managing Attorney at Candelaria PC, represents clients throughout the Bay Area in family law litigation, mediation, and premarital planning, often working with Ms. Take-

moto to ensure that clients’ premarital agreements and estate plans are completed in step. She currently serves on the CCCBA Family Law Section Board, the Contra Costa Lawyer Editorial Board, and receives court appointments to act as Minor’s Counsel in county family law cases. She is also the Vice President of Alameda County Bar Association and on the Earl Warren American Inn of Court Executive Board. Matt Cody earned his law degree from McGeorge School of Law and an undergraduate degree in political science from UC Berkeley. After practicing civil litigation for several years in Walnut Creek, he recently started as Deputy County Counsel for Sonoma County.

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From Low Tech to High Tech: How the Evolution of Technology Can Help the Court System By Hon. Jennifer Lee

The year was 1997 and I was a newly minted attorney. Growing up, like so many others, I watched legal dramas like “L.A. Law” and “Law & Order,” depicting the courtroom as fast-paced and drama-filled. I imagined in court I would see tempers flare, lawyers hauled off to jail at the drop of a hat for contempt and lastminute witnesses rushing in to save the day for the accused. So, imagine if you will, my surprise when I found the opposite to be true. I often found myself sitting and waiting, having nothing but my imagination to pass the time until my case was called. Surely, I could review my files but as the minutes turned into hours, re-reading the same paperwork repeatedly was not going to make me any more prepared. I had no way of getting a hold of wayward clients except to run back to my office and use a landline or if I was lucky, find a pay phone nearby. Of course, it also required my client to be near a phone. Later, as a young prosecutor, I was assigned a pager so the court could contact me when the jury reached a verdict; otherwise, I was tethered to the courtroom or my desk. While in law school on the East Coast, I followed the trial of O.J. Simpson for the murders of Nicole

Simpson and Ronald Goldman. During the first semester of my 2L year, televisions were wheeled into the classrooms so we could watch as the verdict was read. The notion that information was so readily available was in its early infancy and not in the zeitgeist at the time of the verdict. There are two camps of people reading this article: people who grew up before widespread use of the Internet and people who grew up mostly after. For those of us that find ourselves in the first group, we have watched as advances in technology have unfolded before our very eyes. We went from rotary phones to push button to cordless to huge cellular phones (think Michael Douglas in Wall Street) to phones (some might say, computers) that fit in our pockets. I used to take exhibits to Kinko’s to be enlarged and mounted, then placed them on an easel for the jury to see. Nowadays, exhibits are projected onto a screen right in the courtroom. Courts across California have received large amounts of money to invest in updating technology with flat-screen televisions mounted on the wall facing the jury box, small screens mounted on the witness stand to view exhibits, and a multitude of devices available for counsel to display documents, video and

audio during trial. No more easels, low resolution projectors where the bulb may not work, and spending 30 minutes while the jury is waiting to get everything centered on the pull-up screen. Despite these advances, as the pandemic gripped the world and courts were confronted with new challenges to continue serving the public, there was a time when cases across California came to a grinding halt. Contra Costa County was the first courthouse to shut down, and others shortly followed our lead. Getting courts to a place where we could operate remotely was no easy task. While it may seem that all it should take is a Zoom account, a microphone and a court reporter, it was far more complicated. In the criminal branch, for example, in addition to statutory and constitutional deadlines, there was the additional challenge of a defendant’s Sixth Amendment right to confront and cross-examine a witness. Did a remote hearing, even one on camera comply with the Constitution? How would discovery be exchanged? Would a bench officer be able to assess the credibility of a witness remotely? Even though the Bay Area has many tech companies, many of the litigants and their

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

From Low Tech to High Tech

Continued from page 7 attorneys found using video conferencing platforms to be vexing and unfamiliar. Over time, however, the bumps were smoothed out and the value of remote appearances began to emerge. In family court proceedings, for example, remote hearings could reduce tense, in-person conflicts and arguing in the hallway. Before ‘Zoom,’ although hearings might only last 15 minutes, there was waiting time; travel time; time off work; and the frequent necessity to make childcare arrangements, or to cancel doctor appointments. For parties coming from other cities, say Stockton or Sacramento, more time would be spent in the car than in the courtroom. Utilizing remote hearings resulted in ameliorating a lot of those issues. Moreover, by allowing appearances on Zoom, the show-up rate increased dramatically, resulting in cases moving along toward a resolution. With the greater number of appearances, courts have been able to clear backlogs, helping to keep our courts running more efficiently. Attorneys were no longer at the mercy of traffic but now could make multiple appearances from their office or home, thereby increasing their productivity. The point is that remote hearings should not just be for pandemics. Allowing online court not only cuts down on absenteeism but serves to encourage parties to appear because it sends the message that the courts recognize that a party’s time is valuable and provides access to justice. Remote hearings have made the courtrooms more visible and accessible to the public at large. Some may be here to stay. 8

NOVEMBER 2021

Like anything else, however, technology should still have its limits. A huge part of a court case is the human element. There is a danger of over-reliance on technology in that we can lose the humanity of the process, the pathos and ethos which are a part of each case. While the pandemic has taught us the importance of technology in the courtroom, we have also learned the dangers of social isolation. Interacting with one another, both in and outside of the courtroom, is important for our health as a community and in our justice system. We need to find a balance because one day, this pandemic will be in our rearview mirror but how to best balance the needs of our community while providing access to justice will remain. In the meantime, we will

move further away from paper files to digital files, and e-discovery and court documents will be available in an instant. Yet in the end, technology will never be able to replace the humans who make up our justice system, even if they arrive to court in a car set to auto pilot, or choose to appear remotely from down the street or another state. After a long career in Los Angeles, Hon. Jennifer Lee relocated to the Bay Area and spent a year working at Apple, Inc, before joining the Contra Costa bench. Her time in tech came in handy for navigating the pandemic.

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Moving Justice Forward at the Trial Courts under the Cloud of COVID-19 By Patrice Truman

In 1963, the prescient lyrics penned by Bob Dylan conveyed a universal message of change expressed with his song, “The Times They AreA-Chang’in.” Today, these lyrics could speak to the COVID-19 virus and its extraordinary effects worldwide, and to the future winds of change facing the legal profession, including the role of juries in the justice system. In the article below, I discuss some of my personal experiences as a jury consultant since courts were forced to adapt to the COVID-19 public health orders. Indeed, for the trial courts, the restrictions imposed may be ongoing.

Jury Selection In-Person and All Masked

Throughout the pandemic, in-person jury selections have reflected the challenges attributable to COVID. One such challenge occurred in Napa County. Masks were required inside the courthouse. The hardship reviews took place in the large basement auditorium and were conducted in-person. Although some hardship requests were COVID-related, the majority seemed to be within the typical arsenal of excuses—employment demands, childcare challenges and vacation plans. Out of 200 prospective jurors, 70 survived the hardship stage to proceed to the next step of completing a case-specific supplemental juror questionnaire. [Notably, in a nationwide survey of 73 judges responding, they reported a more forgiving standard in granting hardship excuses because 10

NOVEMBER 2021

of COVID. See NYU Law, Civil Jury Project, Vol. 6, Issue 8, August 2021.] Prior to the widespread vaccine rollout nationwide, older prospective jurors (50+) steered away from jury duty claiming health concerns about contracting the virus. After vaccine availability, this prospective jury pool in Napa did not seem markedly different in age variation from its pre-pandemic juror profiles. The supplemental juror questionnaire, a voir dire tool permitted under CCP §222.5 (f), expedites the jury selection process by eliminating protracted oral questioning in a physically-distanced and masked courtroom. Its benefits include prospective jurors’ responses articulated in writing to case-specific questions, life experiences and reflections, and indications or admissions of cognitive biases. To uncover bias, one cause challenge technique is to ask for a quantified response when probing experience and attitude on the supplemental questionnaire or during voir dire. Going back to the Napa County example, 20 prospective jurors and the two trial teams (of three each at counsel table) were invited into the courtroom. The jurors maintained physical distancing by seating arrangement. Now, with only half of a prospective juror’s face showing, counsel’s close attention to nonverbal communication and microexpressions proved to be important skills: Specifically, interpreting general body language (shoulders and hands denoting signals), as well

as eyelid blinking, eyebrow expressions and head movement. The overflow of prospective jurors sat physically distanced in the courthouse auditorium. There, they watched the voir dire proceeding relayed through Zoom onto large screens. They took direction from the judge remotely, all the while under the watchful eye of the jury commissioner. This overflow group was directed by the judge to jot down their responses to the voir dire inquiries to keep the process moving if called into the box. Only some minor delays occurred here and there due to a smattering of technical glitches. Overall, what was most impressive with this masked and physicallydistanced-selection process was the display of patience and cooperation by all.

The Virtual Jury Selection

Some courts have adopted online jury service. This practice could result in an expanded demographic representation of a jury pool. The issues of broadband inaccessibility and the technological divide that limit virtual jury service should be rectified over time with state and federal investments in infrastructure. Among other benefits, funding for broadband infrastructure to increase affordability of devices and of service to unserved households would expand the availability of virtual participation by jurors.

With online voir dire, picture a Zoom gallery of prospective jurors. The number of prospective jurors allowed at a time into the gallery room varies from court to court. Some courts operate voir dire where everyone is muted except for the judge and the attorney sharing the stage with the responding juror. Alternatively, other courts keep everyone unmuted for ready participation. Many courts find it useful having prospective jurors complete a supplemental juror questionnaire before voir dire begins. To view a virtual jury selection of a large, unmuted jury pool from Dallas County, Texas go to https://www.youtube.com/ watch?v=ApKcPAOPdFQ

Impressions From a Virtual Juror

“I served as a juror in a virtual mock trial, an all-day event that did not include voir dire. Sitting in

the ‘virtual jury box,’ I could see everything and everyone up close. The judge set forth rules to eliminate distractions by banning mobile phones, pets, email and other common diversions. “A practiced presentation by the lawyers made it easy to follow along with their voice expression, appropriate modulation, and controlled pace. Similarly, the organized and succinct PowerPoint slides seemed easier to absorb because of my close proximity to the presentation. Moreover, an uncluttered virtual background kept my attention from wandering. “Serving as a virtual juror made me feel like a stranger to my fellow jurors. Being dropped into a Zoom breakout room does not present an optimal atmosphere for getting acquainted while the judge and attorneys converse privately. Jurors in the virtual world have less quality

bonding time which could hamper jury deliberations. Indeed, important coalitions may not develop that are useful later for employing persuasive argument. “On the other hand, in the absence of bonding, one can feel less intimidated in deliberations to express an opinion about the evidence with no hesitation or concern about being judged by others. Actively participating in one’s home environment felt empowering especially when talking into a small camera. With civility intact, we arrived at a verdict. “I learned from this virtual trial experience that (1) the lawyers must practice (and practice again) their presentations, and have working knowledge of the technology; (2) the judge must be firm with admonitions, provide clear instructions on procedure, and show patience

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COVID-19 has forced the adoption of moving justice forward in whatever ways that can be achieved with expediency, cooperation, and less reticence from all involved. As Dylan’s lyrics predicted:

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Conclusion

Refer them to the CCCBA’s Lawyer Referral & Information Service!

For information about how various states are conducting trials under the demands of COVID-19, see the National Center for State Courts website: www.ncsc.org for its latest report.

Patrice Truman is a national jury and trial consultant. She is a member of the American Society of Trial Consultants, State Bar of California, San Francisco Trial Lawyers Association, and Contra Costa County Bar Association. She is a trial consultant advisor to the Civil Jury Project of the NYU School of Law. Her online presence can be found at linkedin.com/in/ patrice-truman-esq-21b55b16 or www. trumanjuryandtrial.com. She can be reached at 510-459-5545.

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with technically challenged jurors regarding remote participation; (3) jurors must maintain a respectful demeanor during deliberations, and (4) guard confidentiality to insure a clean and fair result.”

Can’t Help a Client?

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“Come gather ‘round people, wherever you roam And admit that the waters around you have grown… For the times, they are a-chang’in”

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Blending Work and Home:

Remote Work in this New Era By Rebecca Jones We all remember March 2020 – how we were suddenly forced to adjust our work lives for the two-week window, when we thought that we would just need to work from home for a short period of time and get back into our offices by April. That two-week window kept expanding, and soon many firms began looking at how to make remote practice functional until California could fully reopen. Here we are, 20 months later, asking ourselves whether the remote practice is here to stay. What has evolved since that initial time, however, has been the adaptation by many to embrace this remote environment and make it work. In the legal setting, the creative strategies have seen no boundaries. According to a poll conducted by Pew Research in December 2020, 71% of employed adults were working from home, but only 57% of those polled stated that concerns of exposure to the COVID-19 virus were the driving force behind their decision to work remotely. This leads one to wonder what other factors might be keeping workers at home, and the significant factors repeatedly raised are convenience, flexibility, and increased acceptance to break the mold of the traditional office.

At the beginning of this pandemic, firms had to quickly adapt from reliance on in-office computers and hard drives. With the many options available to streamline the firm into a cloud-based setting, firms have been able to pick and choose what might work best for them. The use of an answering service eliminates the need for a person to be present to answer calls each day, and therefore lessens that tie to an office. Others have adapted practice to meeting with clients entirely via video conferencing, which hardly requires the use of the traditional office. In addition, personnel meetings on platforms like Zoom, Google Hangouts, and Microsoft Teams eliminate the requirement of the physical conference room. Many have been able to utilize Dropbox and other cloudbased storage systems to do away with the need for the physical hard drive in the office. While utilizing technology requires additional ethical considerations on the attorney’s part, it is also hard to argue against any model which allows you the opportunity to wear sweatpants all day. (For further information, please visit the State Bar’s Ethics & Technology Resources page: https:// www.calbar.ca.gov/Attorneys/ Conduct-Discipline/Ethics/EthicsTechnology-Resources)

Many firms are choosing a hybrid model, either rotating staff on certain days or allowing employees flexibility to work remotely as it suits them. Cheryl Kozachenko, an attorney practicing in multiple counties, has had the benefit of enjoying a personal choice within her firm as to whether she wants to work at home or in office. To allow all employees to advantage of this, that firm increased their technology, ensuring that all remote workers have computers which have access to programs and servers, and allowing for calls into the office to ring directly through to their cell phones at home. For Cheryl, this has let her maximize her productivity while her children are in school, while making her available for them at the same time. The hybrid firm appears to be the “new normal” for many firms. Other firms have embraced the remote model in full, working hundreds of miles from where the businesses are based. Marta Vanegas shared that she has actually been working towards a cloudbased model for years, with COVID giving her the push to fully integrate this into her practice. In fact, due to this flexibility she has had the opportunity to hire a new senior counsel who can work both in Cali-

Continued on page 16 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Blending Work and Home Continued from page 15

fornia and run her current practice in Ohio, a seemingly impossible feat only a few years ago. For some, the days of brick and mortar are in the past. Patrice Truman, a jury consultant whose practice is based out of Oakland, has been working out of Chicago for years. She has been enjoying the fact that she has a couple hours’ head start to the day, often having completed other tasks by the time her California clientele is starting the workday. On down time she has the opportunity to take up smaller items that could command an evening after a day in the office, such as running a load of laundry or dishes. She was even able to work out of her flat in Paris – the ways of

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tional hours. That attorney also felt that it is easier to overwork given the ease of access to work, adding to feelings of burnout, along with the other emotional effects of the pandemic. The long-term impact of blurring the lines between the office and the home remain to be seen, as many attorneys are now choosing to modify work beyond standard business hours with this increased flexibility. Some use the home office advantage to spend more hours during the day with family and attending to other tasks, choosing night-owl hours to do work which would normally have only been done during the traditional nine to five workday. There are also the new issues of employees working in different time zones, and what that means for their standard workday. Breaking the traditional office model risks further breaking down the work-life balance, but it remains to be seen whether the lure of convenience for clients and attorneys alike, and the court’s use of technology, will permanently change the landscape of law practice. Rebecca Jones is an attorney based in Walnut Creek. She has been active in the Contra Costa legal community since law school, starting her journey with Bay Area Legal Aid and transitioning from there into a practice of family law and assisting survivors of domestic violence. During her moments away from the office, she enjoys time with her husband and daughter (and cats), squeezing in some time on the Peloton, and working on becoming a back-to-back fantasy football champion.

Justice James J. Marchiano Distinguished Service Award

Ray Robinson, winner of the inaugural Justice James J. Marchiano Distinguished Service Award.

We are thrilled to announce that the inaugural recipient of the Justice James J. Marchiano Distinguished Service Award is Raymond Robinson! Though Ray is a new attorney, his commitment to giving back to community goes back decades. For almost 20 years Ray has volunteered as a mentor for thousands

of inmates preparing for re-entry into society following a term of incarceration as well as the main speaker at inmate graduation ceremonies. The countless hours he has given to encouraging and assisting those who have few other supports in our society is commendable. Justice Marchiano himself

presented the inaugural award to Ray at the 2021 Bar Fund Benefit. Thank you Ray for all that you do for our community!

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300-500 hours

500+ hours

Geoffrey Steele Jonathan Babione Oliver Greenwood Beth Mora Marjorie Wallace Andrea Crider Corrine Bielejeski David Marchiano Andrea Russi Gary Sanders Jaime Herren Julie Ann Giammona Victoria Robinson Smith Renee Livingston David Ratner Mika Domingo Marc Bouret Kathleen Hunt Natasha Chee Ryan Szczepanik Lorraine Walsh Andrea Kelly Smethurst Matthew Toth Andy Verriere Thank you to our Pro Bono Honor Roll recipients for giving of your valuable time Terry Leoni and expertise to benefit our community. Your efforts support our community in David Pearson myriad ways. As attorneys, we have the knowledge, training and skill set to improve the lives of others and make a difference. The Pro Bono Committee would like all members to consider the goal of contributing their many talents by touching the life of at least one person in need. We know there are many more CCCBA members who help out in their communities in many ways. Start tracking your hours for next year’s Pro Bono Honor Roll!

Learn more about Pro Bono opportunities and recognition at www.cccba.org/give-back/ CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Rebecca C. Hardie Presiding Judge

Theresa Canepa

Assistant Presiding Judge

MARTINEZ

PITTSBURG

Criminal

Civil

Supervising Judge: Theresa Canepa

Supervising Judge: Ed Weil (Complex)

Hon. Charles (Ben) Burch Hon. John Cope Hon. Leslie Landau Hon. Mary Ann O’Malley Hon. Terri Mockler [Hon. Jon (Rod) Rolefson (Temp-

Hon. Barry Baskin Hon. Jill Fannin Hon. Clare Maier Hon. John Devine Comm. Gina Dashman

orary via Assigned Judges Program)]

Hon. Laurel Brady (Mental Health)

Misdemeanor Depts. Hon. Joni Hiramoto (Trials & Motions) Hon. Nancy Stark (Trials & Motions) Hon. Jennifer Lee (Misdemeanor & Felony Arraignments, warrants, walk-ins, PXs) Open Judicial Slot

Family Law

RICHMOND Supervising Judge: Christopher Bowen

Hon. Lewis Davis Hon. Wendy Coats Hon. Benjamin Reyes Hon. Leonard Marquez Comm. Christine Donovan

Hon. Patricia Scanlon Comm. Young

Juvenile Supervising Judge: Barbara Hinton Hon. John Kennedy Hon. Wade Rhyne Hon. Anita Santos Vacant Commissioner - Morning

Supervising Judge: Virginia George Hon. Susanne Fenstermacher

NOVEMBER 2021

Hon. Steve Treat Hon. Brian Haynes Hon. Julia Campins Hon. Kirk Athanasiou Comm. Palvir Shoker

Supervising Judge: Danielle Douglas

Probate

Supervising Judge: David Goldstein

Two Open Judicial Slots

Challenges to the Mediation Process

in a Time of Constant Change By Hon. Bonnie Sabraw (Ret.) By now we are all too familiar with many of the pros and cons of conducting mediations remotely. Hopefully by the time you read this article, most, if not all, pandemic restrictions will no longer be required and conducting mediations remotely will be a choice, not a requirement. This, however, results in a new dilemma – how will we conduct mediations going forward – In-person? Remotely? Hybrid? Looking back on how the acceptance of remote hearings came to pass, we remember our initial response to the idea was “Let’s continue hearings for a month until this is over and we are back at the office.” Unfortunately, it became obvious that pandemic restrictions were not going away any time soon. We needed to pivot quickly to technology, conducting our mediations in “virtual rooms” over the internet. This resulted in a new vocabulary such as, “You’re on mute.” “Please turn on your video.” “Can you share your screen?” “Could you stop sharing your screen?” “I can see you, but I can’t hear you.” “I have a problem with the connection.” “You’re frozen.” “Oops, I put you in the wrong room.” There were, however, some enjoyable side effects resulting from remote mediations. Who didn’t enjoy avoiding bumper-to-bumper traffic? The ability to be comfortable and casual (at least from the waist down) during the hearing? Enjoying meeting people’s pets and children as part of the proceeding? While arguably children and pets could be considered distractions to the process, resulting in a lack of focus on the goal of settlement, I personally found that these “distractions” helped to relieve stress and anxiety for litigants. It gave them the ability to share something personal about themselves, allowing them to control their environment. They were listening and being listened to, and not perceiving that the process was a confrontation to force them into a settlement. But there were also challenges, such as poor internet connections, resulting in drop offs or freezing; parties being too close together in the same room, each having their own laptop and internet connection, resulting

in feedback and echoing. And what about those backdrops covering clutter, but fading the participant into backgrounds of the Golden Gate Bridge, a beautiful beach in Hawaii, or even mockup offices? What about having six people in a conference room with only one laptop or computer screen, making it impossible for the mediator to have direct eye contact with any one individual? And what about finalizing the agreement? We all know the importance of getting a signed settlement agreement before the parties go their separate ways. But since the parties are often in different locations, and some are without the ability to print a settlement agreement, sign it and send them back, it can present a problem. There are ways to obtain the needed signatures by adding the ability to sign electronically. Since almost everyone has a smartphone today, it allows the participants to receive a signed copy of the agreement before concluding the mediation. But what about going forward? I believe our future will include both remote mediations and in-person hearings, either being conducted entirely remotely or with everyone returning to the office, or a combination of both. If we do embrace hybrid hearings, what will they look like? Will counsel and their represented parties be present in person while the other side is only remote? Will counsel be present in person, but their clients will be remote? Will this result in insurance adjusters or corporate decision makers continuing to appear remotely, avoiding expensive travel, but allowing a virtual personal appearance? Will the hybrid experience result in its own set of problems, and how can we solve them? We have all arguably mastered the mediation session where everyone is on Zoom, with separate “rooms” for each side, and each participant seen individually in a “box.” If the hybrid mediation is one where a party, counsel, and other participants for one side are all remote, and the other side’s participants are all in person, there is not much of an issue. The mediator can appear on his or her own computer when meeting with those appearing

Continued on page 20

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Challenges to the Mediation Process

Continued from page 19 remotely, and then go into a conference room to meet in person with the other side. But what if it is a combination of in-person and remote appearances for one side, or for each side? For example, what if counsel are present at the mediator’s office, but their clients (or some of them) are remote at different locations? It will be necessary to make sure litigants are each able to speak directly with the mediator while she is on her laptop, and also to have the privacy of speaking with their counsel on a different laptop. Otherwise, when the mediator takes her laptop to the other side’s conference room to talk to any participants who are appearing remotely, counsel will not be able to privately meet with his/her clients or adjusters except by phone until the mediator returns. As before, there will be a learning curve and a time of adjustment for all of us, but it is my belief that the flexibility and resourcefulness of mediators and counsel will again rise to the occasion. I think to help make hybrid mediations successful it would be helpful to have premediation communications between counsel and the mediator, perhaps with the mediator providing a protocol indicating what has, and has not, worked when conducting hybrid mediations. We will all remember 2020 and 2021 as pivotal years in our working and personal lives. For many it has resulted in changes that we thought were fleeting and temporary, only to learn that many of these changes are here to stay in some form or another. Virtual and hybrid mediations are likely two of them. 20

NOVEMBER 2021

In Memoriam Commissioner Judith Sanders

By Alice Cheng

Judith Sanders served as Contra Costa Superior Court’s Discovery Commissioner for 23 years before her retirement in 2012. She also presided over a wide range of other Civil matters, including all Civil ex parte motions, Civil Harassment TROs and many other Civil matters.

Commissioner Sanders was a valued member of the bench, both for her skill in handling her difficult calendar and for her engaging personality. She was well liked and respected by her colleagues and staff, as well as by the countless attorneys that appeared in her court. Following her retirement, Commissioner Sanders went on to regularly volunteer with the Contra Costa Senior Legal Services Clinic, where she helped vulnerable elders obtain restraining orders against their abusers. She also volunteered for the Contra Costa County Law Library’s Lawyer in the Library clinic. Colleagues at the clinic and Law Library staff remember her enthusiasm, dedication, intelligence, and willingness to take the extra step to ensure a self-represented litigant received the help they needed. The Hon. Judith Sander’s commitment to Contra Costa County will be greatly missed.

During her 20 years on the Bench, Hon. Bonnie Sabraw (Ret.) presided over hundreds of settlement conferences, court and jury trials in all categories of civil litigation. Since joining ADR Services, Inc. in 2008, Judge Sabraw

has successfully mediated, arbitrated, and presided over thousands of disputes. Judge Sabraw can be reached at judgesabraw@adrservices.com

Justice Delayed is Justice Denied: Criminal Courts During the Pandemic by Rachel Margolis Chapman Throughout the pandemic, many employment sectors were – rather surprisingly – easily able to adjust to remote work, with the practice of law being no exception: depositions, mediations, and civil evidentiary hearings, etc. appear to have readily adapted to a virtual platform, and able to proceed “business as usual.” Many attorneys have not stepped foot in a courtroom since March of 2020. However, COVID-19 has not affected all practice areas equally. Enter the criminal court system, and the constitutional rights of criminal defendants. A defendant in a criminal case’s speedy trial rights are guaranteed by the Sixth Amendment of the United States Constitution, and the California Constitution. California Constitution article I, § 15 provides, in relevant part, “[t]he defendant in a criminal cause has the right to a speedy public trial . . . to compel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. . .” These rights have also been codified in California Penal Code § 1382 – a.k.a., a criminal defendant’s “statutory speedy trial rights.” Penal Code § 1382 states: “The court, unless good cause to the contrary is shown, shall order the action dismissed in the following cases . . . in a felony case, when a defendant is not brought to trial

within 60 days of the defendant’s arraignment . . . [or] when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later . . .” Aside from a criminal defendant agreeing to “waive time,” there is one other exception which allows prosecution to proceed in violation of these time requirements - good cause. For purposes of this article, that would be COVID-19. Approximately every 30 days since March 2020, the Presiding Judge of the Superior Court of Contra Costa County has requested – and received – from the Chair of the Judicial Council, an additional 30-day extension of the time periods provided by Penal Code § 1382. With the complete suspension of jury trials from mid-March 2020 through May 2020, and again from December 2020 through February 2021, it is understandable that some emergency relief was necessary, and a backlog of criminal trials was unavoidable. But here we are, more than 18 months past the first request for relief from trial deadlines, and criminal defendant’s constitutionally (and statutorily) protected speedy trial rights continue to be put on the back-burner. In addition, criminal defendants awaiting trial – and, therefore, presumed innocent – have been quarantined in jail, despite testing negative, and thereby missing their court dates. In August 2021, nine out of 10 modules at the West County Detention Facility were placed on a 10-day

Continued on page 22 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Justice Delayed

Continued from page 21 lockdown due to a massive COVID outbreak caused by jailhouse staff. The result? Mistrials, missed court appearances, and continuances beyond the statutory deadlines. Meanwhile, the world watches countless “Karens” spout nonsense about having a constitutional right to shop mask-less at Trader Joe’s. PRACTICE TIP FOR “KARENS:” To prevent an actual violation of your rights, this criminal defense attorney advises avoiding arrest/charges for assaulting greeters at grocery stores for enforcing the mask mandate. Beyond the obvious court closures/ suspension of jury trials and the effects on the continued backlog of criminal trials, this author wishes to be clear that the criminal courts have done everything in their power to safely conduct criminal trials during the pandemic. As of the writing of this article, and according to the most recent Request for Judicial Emergency Order, dated September 7, 2021, between March 1, 2021, and August 27, 2021, the court empaneled jurors in 124 criminal trials. In addition, there has been progress in reducing the backlog – according to the September 7, 2021 request, which sought (and obtained) additional relief for the period covering September 10 – October 7, 2021, 53 cases had their first (i.e., nonextended) last-day trial deadline, and 73 cases had previously extended trial dates. In the previous month’s request, those numbers were 80 and 95, respectively. However, citing significant resource constraints, on September 9, 2021, it was announced that, effective immediately, there would no longer be misdemeanor pretrial conference calendars; absent specially set (at the request of defense counsel) hearings for resolution, all misdemeanors will be set for trial at the outset, with a readiness conference (via email) two weeks prior. While it is unclear 22

NOVEMBER 2021

how this will play out exactly, it is all but guaranteed that more cases will go to trial, thereby increasing – rather than reducing – the already existing backlog and putting further stress on the criminal court system. Absent mechanisms to easily facilitate negotiation/resolution, whether through judicial intervention, or promoting meaningful conferences between the district attorney’s office and defense counsel, it is likely that the incentive to resolve, rather than go to trial, will be reduced. So, who is to blame for the continued backlog? Defense attorneys, for setting cases for trial which technically “should” resolve through reasonable negotiations? Or, the district attorney’s office for failing to make reasonable offers? Or, the courts for continuing to seek extensions of trial deadlines? Perhaps a combination? The stress on the criminal court system, and those who practice within it, cannot be understated. As a private practice criminal defense attorney, this author currently has approximately 130 court-appointed cases through the Conflict Program, in addition to privately retained cases. The backlog, coupled with continuing criminal offenses/ charges being filed by the district attorney’s office, has caused the public defender’s office to “over-

load” massive amounts of cases, where defendants have a constitutionally protected right to counsel and would ordinarily qualify for their services, to the Conflict Program for appointment. Where does the criminal court system go from here? While efforts have been made – with some success – to reduce the backlog of criminal jury trials, if continued relief from Penal Code § 1382 deadlines is sought/granted, coupled with the new misdemeanor trial setting policy, the backlog will not only persist, but likely grow in light of these changes. Unless faced with true Penal Code §1382 deadlines/dismissals, the tension continues with the district attorney’s office having little motivation to make more reasonable offers to resolve, and defense attorneys digging in their heels and pushing for trial. Rachel Margolis Chapman practices criminal defense and is an Associate Attorney at Gagen McCoy. She joined the Gagen McCoy team immediately upon graduating from the University of Southern California Gould School of Law, and is a proud Double Trojan. Rachel is an active member of the Conflict Program, and currently serves on the Contra Costa Lawyer Editorial Board.

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 30 years

Contra Costa Court Scholarship’s Swan Song By Hon. Terri Mockler Nearly 30 years ago, members of the Contra Costa bench sought a way to honor Judge Richard E. Arnason on his retirement from the bench after 30 years and decided that establishing a scholarship program for former criminal offenders was a fitting tribute. Since Judge Arnason continued to serve as a judicial officer, any scholarship could not be in his name so the local bar (both public and private) came to the aid of the bench and thus was born the Contra Costa Court Scholarship program. During much of its lifespan, the Contra Costa County Bar Association administered the scholarships and spearheaded fund raising. Contra Costa law firms made up the bulk of the donations and the firm of Gagen McCoy in Danville for years endowed a scholarship. In 2004, the Court Scholarship program expanded to include the Tom Oehrlein Memorial Fund in memory of a long-time Court Scholarship board member and public defender who died prematurely from cancer. This fund was largely sponsored by the Contra Costa County Public Defender’s Office. The Court Scholarship eventually incorporated in 2008 as a 501(c)(3) under the name of the Contra Costa Court Scholarship Fund. The scholarship program offered scholarships ranging from $500$4000 to applicants who suffered from a criminal (or juvenile) record to enable them to attend academic or vocational schools and thereby break the cycle of poverty, addiction, and crime. The scholarships supplemented traditional financial aid so were often granted to

cover child care, gas/transportation, Internet service, computers, etc. which traditional aid did not cover. For those of you who did not know Judge Arnason, he handled primarily criminal matters during his tenure as a judicial officer and made every person who came through his courtroom feel like they mattered. He always had a kind word for people, even when he sentenced them to prison. His kindness and civility extended to the many scholarship recipients over the years as he usually presented the scholarships at a lunchtime ceremony in his courtroom. In 2002, the Court Scholarship program held a moving tribute to Judge Arnason modeled on the then-popular program “This is Your Life.” The tribute took the audience on the journey from Judge Arnason’s humble origins in rural North Dakota to his status as the longest sitting Superior Court judge in California at the time. That tribute attracted over 180 members of the Contra Costa legal community and all proceeds went to benefit the Scholarship program. Judge Arnason finally served his last day on the bench on January 13, 2012, at the age of 90, after serving 49 years on the bench. He left in style as he walked in front of a large crowd of well-wishers who lined both sides of a city block in downtown Martinez. In August 2012, at an honorary lunch for current and past scholarship recipients, the Fund changed its name to the Richard E. Arnason Court Scholarship.

In the nine years since 2012, many of the judicial officers and lawyers who knew Richard Arnason retired and have been replaced by people who never knew Judge Arnason. It became more and more difficult to sustain interest in continuing this legacy. The scholarship Board continued to meet, interview applicants, and grant scholarships through 2019. However, due to lagging interest from both the legal community and the Bench (now composed of so many judicial officers who never knew Judge Arnason), the Board made the decision to dissolve the non-profit corporation and donate the Scholarship’s remaining funds to the Kennedy-King Memorial College Scholarship Fund, Ltd—founded in 1968 and based right here in Contra Costa County. Judge Richard E. Arnason passed away on December 3, 2015, at the age of 94. The Contra Costa Court Scholarship Fund, aka The Richard E. Arnason Court Scholarship, for nearly 30 years, helped more than 104 former offenders change their lives and stay out of the criminal justice system. Not a bad legacy. Contra Costa Court Scholarship— we bid you adieu.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

MCLE SELF STUDY

Ever-Changing Fire Hardening Laws

Affect California Property Owners, Keep Buyers at Bay, and Open Up to Potential Lawsuits By Celine Mui Simon As Californians face larger and more intense wildfires, the laws have adapted in response. In the 2021 updates, the California state legislature enacted more proactive measures to combat the growing wildfire threat. This will impact more than two million California households and a quarter of residential structures that are located within or near a “high” or “very high” fire hazard severity zone. Understanding these changes will help inform and advise clients on how to comply and mitigate the risk of losing their home or investment and of incurring liability from fines or lawsuits.

Photo credit: Cal Fire, more information at https://www.fire.ca.gov/DSpace

NOVEMBER 2021

What changed?

Prior to 2021, it was already a crime for a person who owns, leases, manages, controls, operates or maintains an occupied dwelling or structure to fail to maintain a 100 feet defensible space on all sides of the structure.1 Insurance companies also have a right to require a greater distance than the State Board of Forestry and Fire Protection (“State Board”).2 Since 2010, California building codes required all new home construction to incorporate fire hardening features in high or very high fire severity zones. The Department of Forestry and Fire Protection (“Department”) was also tasked with providing an online guidance on fuel management.3 But these regulations did not go far enough. AB3074 was passed in late 2020 to require more intense fuel reductions within five to 30 feet around the structure, also known as the “emberresistant zone requirements,” and it put into place a notice and enforcement mechanism.4 The bill also requires the State Board to provide suggestions for creating an emberresistant zone within five feet of a structure.5 It may just be a matter of time before these mere suggestions or recommendations become expensive retrofit mandates, and so it is imperative that we keep an eye on these legal developments.

AB38 further requires all sellers of dwellings located in the very high fire hazard severity zone to complete a Fire Hardening Disclosure. Such sellers must disclose whether the home has fire hardening features such as fire-retardant roof shingles, roof vents, rain gutters with metal coverings and tempered glass windows among other things. Seller must also obtain documentation that they have maintained fire hardening features.6 If such documentation doesn’t currently exist, then the burden is on the buyer to obtain such documentation within one year of the close of escrow.7 Sellers must also disclose whether the property is constructed before January 1, 2020, whether they are aware of any property features that increase the risk of fire, and whether they received a home fire hardening final inspection report.8 The everchanging nature of these fire hardening regulations and reforms could detract buyers. But these costs may be a small price to pay to reduce the risk of wildfire damage.

Who is affected?

Owners of “occupied” dwellings or structures in a “very high fire hazard severity zone”9 must comply with the ember-resistant zone requirement.10 This would include landlords, property managers, and business owners; and it may apply to tenants if the lease puts the burden on them to maintain the structure and landscaping.11 This new law also applies to any “structure,” such as commercial buildings, hotels, barns and stables, just as long as they are not vacant. Most recently, the definition of a structure was expanded to include decks.12

When do these regulations take affect?

The ember-resistant zone requirement took effect January 1, 2021, and it will continue as long as the State Board promulgates the requirement, and the Legislature appropriates funding in its annual

budget.13 The fire hardening disclosure requirement also took effect on January 1, 2021. No later than January 1, 2023, the State Board will issue further guidance on how to create an ember-resistant zone within five feet of a structure.

What are the consequences for non-compliance?

Aside from possibly losing one’s property, failure to comply with a notice of abatement could result in a government priority lien, making it difficult for owners to sell or refinance their property.14 In addition, the first infraction is punishable by a fine of $100 to $500.15 If another violation occurs within five years, the fine increases to a range of $250 to $500. If convicted of a third violation, then a misdemeanor could result which is punishable by a fine of not less than $500, in addition to being billed for the costs incurred by the local agency to perform the necessary work.16 Insurance companies could cancel their policy or deny claims upon learning that the owner failed to act upon a notice of abatement, making it more difficult for the owner to rebuild in the event of a total loss due to fires. Failure to comply could also lead to negligence claims, if the cause or spread of the wildfire is attributed to the failure to create an ember-resistant zone around a given property. The fact that PG&E has an easement on the property and a duty to maintain the utility lines on such properties does not absolve the property owners from these statutory violations.17 These statutes work in tandem to make sure that if either owner or PG&E fails to maintain the trees or shrub around the utility lines, then the other is responsible for performing the work.18

Photo credit: Office of the State Fire Marshall. For an interactive map, see https://egis.fire.ca.gov/FHSZ/. More information https://osfm.fire.ca.gov/divisions/wildfire-planning-engineering/wildland-hazards-building-codes/fire-hazard-severity-zones-maps/

Continued on page 27

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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NOVEMBER 2021

Fire Hardening Laws Continued from page 25

Exemptions from fire hardening mandates

An exemption may be granted if owners retrofit their property to make them more fire resistant. Dwellings and structures that are entirely constructed on the exterior of nonflammable materials, which was required for homes built since 2010, may be exempt from the ember resistant zone requirement, but the owner must first file an application with the Department and get its written consent for the exemption.19 Another option is to keep the property vacant. It will be interesting to see if these more aggressive mandates will reduce property damage and deaths due to wildfires each year. 1. Government Code Section 51182(a)(1)(A); Public Resources Code Section 4291(a)(1)(A). 2. Public Resources Code Section 4291(a)(1)(A) (C). 3. Government Code Section 51182(c)(1). 4. Government Code Sections 51182(a)(1)(A), 51186(b)(1); Public Resources Code Section 4291(a)(1)(A), (f)(1)(B). 5. Government Code Section 51182(c)(2). The following list of features have been codified to put property owners on notice of what fire hazard vulnerabilities exist in a home:

(A) Eave, soffit, and roof ventilation where the vents have openings in excess of one-eighth of an inch or are not flame and ember resistant. (B) Roof coverings made of untreated wood shingles or shakes. (C) Combustible landscaping or other materials within five feet of the home and under the footprint of any attached deck. (D) Single pane or nontempered glass windows. (E) Loose or missing bird stopping or roof flashing. (F) Rain gutters without metal or noncombustible gutter covers. Civil Code Section 1102.6f(a)(3). 6. Public Resources Code Section 4291. 7. Civil Code Section 1102.19. 8. Civil Code Section 1102.6f. 9. To find out if a particular property is located in a high or very high fire hazard severity zone (pictured above in red for Contra Costa County), visit the following website: osfm.fire.ca.gov. 10. Government Code Section 51182(a). 11. Government Code Section 51182(b) specifically states that a person is not required to manage fuels on land if they don’t have a legal right to, or consent from the owner. This would give some statutory protections to tenants and adjoining landowners who may have been given notice of a fire prone hazardous condition, but could not and did not act due to lack of consent from the property owner. 12. Government Code Section 51182(d). 13. Government Code Section 51182(a), Public Resources Code Section 4292(a)(1)(A). 14. Government Code Sections 51186 and 51189(d)(2). 15. Public Resources Code Section 4291. 16. Public Resources Code Section 4291.1. 17. Public Resources Code Sections 4291-4293.

18. Public Resources Code Sections 4291, 4295.5. 19. Public Resources Code Section 4291(c)(1).

Building on over a decade of experience as a commercial real estate litigation and transactional attorney, Celine Mui Simon obtained her real estate broker’s license to diversify her services as she continues to work tirelessly to serve her clients. Born in Hong Kong, Simon earned her JD from the University of San Francisco School of Law. Special assets, foreclosures, and bankruptcies were ubiquitous at the time of her 2009 graduation and admission to the State Bar of California, so she specialized in those areas involving commercial real estate before eventually transitioning into general real estate litigation and transactions. Since then, Simon has become well-versed in commercial and residential purchases and sales and handles the leasing of industrial, retail, and office properties, as well as issues involving loans and homeowners associations. Simon is an attorney and founder of Strata Legal, and is the 2021 President of the Women’s Section of the Contra Costa County Bar Association, and the 2021 Vice President of Diversity of CREW East Bay.

MCLE SELF STUDY

ANNUAL OFFICER INSTALLATION & DIVERSITY AWARDS EVENT Friday, January 28, 11:45 am - 1:15 pm In Person and on Zoom

Speakers: Presiding Judge Rebecca Hardie 2022 CCCBA President: Ericka McKenna 2021 CCCBA President: Dorian Peters

In Person $55 members/guests on Zoom $25 members/guests Walnut Creek Marriott, 2355 N. Main Street, Walnut Creek

Earn one hour of MCLE credit by answering the questions on the Self Study MCLE test available on our website: www.cccba.org/for-attorneys-mcle-overview/mcle-self-study. Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within two weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

gratefully acknowledges its

2021 SUSTAINING LAW FIRMS Firms with 30+ attorneys: Miller Starr Regalia

Firms with 20-29 attorneys: Bowles & Verna, LLP Littler Mendelson PC McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP

Firms with 11-19 attorneys:

Brothers Smith LLP Brown, Gee & Wenger, LLP Clapp Moroney Vucinich Beeman Scheley Doyle Quane Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Greenan, Peffer, Sallander & Lally, LLP Hartog Baer & Hand APC Kilpatrick Townsend & Stockton Whiting, Ross, Abel & Campbell, LLP

Firms with 5-10 attorneys: Acuna Regli

Barr & Young Attorneys

Casper, Meadows, Schwartz & Cook Craddick, Candland & Conti

Edrington, Schirmer & Murphy Ferber Law APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey Livingston Law Firm, P.C. Morrill Law

Seto Wood Schweickert, LLP

NOVEMBER 2021

What Is a Sustaining Law Firm? Sustaining Law Firms of the Contra Costa County Bar Association have a minimum of five Contra Costa-based attorneys and maintain current CCCBA membership for all attorneys practicing under the same firm name in the local office. There is no fee to become a sustaining firm. These firms receive additional administrative support services and are recognized in the following ways: • On the CCCBA website at www.cccba.org/ sustaining-law-firms/ • In Contra Costa Lawyer magazine (in print and online) • Displays at the CCCBA office and at all CCCBA-sponsored events For more information, contact Jennifer Comages, CCCBA Membership Director at (925) 370-2543 or jcomages@cccba.org. CORRECTION: Our apologies to the firm Whiting, Ross, Abel & Campbell, LLP for our error on their name in the September issue.

CALENDAR UPCOMING EVENTS | OVERVIEW November 14 | Wellness Committee

January 12 | Employment Section

Hike or Ride Your Mountain Bike - Your Choice

Employment Law Update

November 15 | Senior Section

January 13 | ADR Section

more details on page 30

Monday Night Football at Back Forty more details on page 30

November 17, 18, 19 28 | CCCBA 27th Annual MCLE Spectacular more details on page 31

December 12 | Wellness Committee Fun Run/Walk

more details on page 30

Black Stories: How Implicit Bias Serves to Impede Black Advancement in the Law and Enterprise more details on page 30

January 20 | Women’s Section Women’s Section Book Club more details on page 30.

January 28 | CCCBA 2022 Officer Installation a nd Diversity Awards Event more details on pages 27 and 31.

The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 29-31 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

CCCBA Education Committee and the CCCBA Litigation and Barristers Sections present

The 2022 Basic Trial Skills Series Time:

4:30 pm - 6:00 pm

Per Session MCLE:

1 to 1.5 hours General MCLE credit

Per Session Cost:

$25 for members of the Litigation Section | $15 for members of the Barristers Section | $35 CCCBA members | $45 non members

Online at www.cccba.org/attorney-events Please register for each session separately.

November 19, 2021

Developing The Theory of Your Case (MCLE Spectacular Program)

January 11, 2022

Discovery & Depositions

February 8, 2022

Framing Issues and Drafting Pleadings

March 8, 2022

Jury Selection, Opening Statements and Closing Statements

April 12, 2022

Direct Examination, Cross-Examination and Objections

May 10, 2022

Effective Uses of Alternative Dispute Resolution

June 7, 2022

Trial Presentation Software

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

November 14

Wellness | Committee

November 15

| Senior Section

December 12

Wellness | Committee

Hike or Ride Your Mountain Bike – Your Choice

Monday Night Football at Back Forty Texas BBQ

CCCBA Fun Run/Walk at the Lafayette Reservoir

Hikers will gather at 9:00 am at the picnic tables near the parking lot for a meet and greet and to enjoy some coffee and snacks, the hike starts at 9:30. Families and dogs (on leash) are welcome. Dress in layers and bring water.

Join the CCCBA Senior Section at Back Forty for an in-person dinner and football watching party. This is open to all CCCBA Members and adult guests

The route is approximately 2.75 miles and paved with moderately undulating elevation. We will gather for coffee and conversation at 9:00 am at the picnic tables on the hilltop overlooking the water station/plumbed restrooms.

Parking: Hikers park in the parking lot on Sanborn Rd, just off Joaquin Miller Rd. Mountain bikers park in the parking lot on Skyline Blvd across from the start of the Sequoia-Bayview trail. Time: 9:00 am - Noon

San Francisco 49ers @ Los Angeles Rams. Time: 5:00 pm - 9:00 pm Location: Back Forty Texas BBQ, 100 Coggins Drive, Pleasant Hill Cost:

$60 Senior Section members, $65 others

Location: Joaquin Miller Park, 3300 Joaquin Miller Rd,Oakland

Our run/walk will begin at 9:30 am. Kids, dogs and friends welcome! Please register so we know about how many to expect! Time: 9:00 am - Noon Location: Lafayette Reservoir, 3849 Mt. Diablo Blvd., Lafayette Cost: Free Register: Online at www.cccba.org/attorney-events

Cost: Free Register: Online at www.cccba.org/attorney-events

January 12 | Employment Section

January 13 | ADR Section

January 20 |

Employment Law Update

Black Stories: How Implicit Bias Serves to Impede Black Advancement in Law and Enterprise

Women’s Section Book Club

Speakers: Anjuli Cargain | Margaret Grover | Marta Vanegas Learn about new California legislation and recent judicial decisions affecting employers and employees. The employment law landscape changes regularly in California. If you practice employment law, you won’t want to miss this timely presentation. Time: Noon - 1:15 pm, Webinar MCLE: 1 hour General credit Cost: Free members of the Employment Law Section | $30 CCCBA members | $45 non members Register: Online at www.cccba.org/attorney-events

Speakers: TBA Hear personal stories from a panel of Black lawyers, scholars and educators and gain their unique perspective of the day-today grind of the criminal justice system, academics and corporate life. Their stories will demonstrate how implicit bias maintains and propagates the existing power structure and social imbalance which marganalizes black, brown and low-income communities.

Women’s Section

As we strive to educate ourselves on the systemic racism that exists in our country, its origins, and what we can do to end it, please join the Women’s Section as we discuss... Book: One Life, by Megan Rapinoe Time: 5:30 pm - 7:00 pm, Zoom Meeting Cost: Free for all Sign Up: Online at www.cccba.org/attorney-events

Time: 5:00 pm - 6:30 pm, Webinar MCLE: 1.5 hours Elimination of Bias credit Cost: TBA Register: Online at www.cccba.org/attorney-events

For more information on these events: Unless noted otherwise, please contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org 30

NOVEMBER 2021

January 28 | CCCBA 2022 Officer Installation and Diversity Awards Event In Person or Zoom Speakers: Hon. Rebecca Hardie | Ericka McKenna | Dorian Peters Please join the leadership of the Contra Costa County Bar Association and many of our local current and retired Judges for this annual event which celebrates all CCCBA members! Hear from incoming CCCBA President Ericka McKenna about what is coming up in 2022. Contra Costa County Superior Court Presiding Judge Rebecca Hardie will give a State of the Court address before swearing in the 2022 CCCBA Board of Directors and Section Leaders. We will also be presenting the 5th Annual CCCBA Diversity Award to qualifying law firms. Don’t miss this very special annual CCCBA event! Time: 11:45 am - 1:15 pm

November 17, 18, 19

Advertiser 2021 MCLE Index spectacular 27th Annual

ADR Services . . . . . . . . . . . . . . . . . . . . 9 Barr & Young Attorneys . . . . . . . . . . . 13 The Bray Law Firm. . . . . . . . . . . . . . . . 8 Casper Meadows, Schwartz & Cook. 32 First Republic Bank. . . . . . . . . . . . . . . 14 JAMS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Judicate West . . . . . . . . . . . . . . . . . . . 12 LawPay . . . . . . . . . . . . . . . . . . . . . . . . 26 Lawyers Mutual. . . . . . . . . . . . . . . . . . . 4 Minchen Team. . . . . . . . . . . . . . . . . . . . 6

Location: Walnut Creek Marriott, 2355 N. Main St., Walnut Creek

Morrill Law Firm. . . . . . . . . . . . . . . . . 11

Cost: In Person: $55 CCCBA members/guests Zoom: $25 CCCBA members/guests

Candice Stoddard. . . . . . . . . . . . . . . . 22

The Law Offices of Michael J. Young Inc . . . . . . . . . . . . . . 16

onli

Up Up9level! lift! Earndate! more than hours of Up MCLE in threeYour half-days full of programs Update Knowledge including: Uplevel Your Skill

9 am -

Novem

Wednesday, November 17Another Keynote: Uplift One

17, 18

Tackling the Rise of Hate: How California’s New Justice Bureau Aims to Protect our Diverse Communities

Speaker: Robert Andres Bonta, Attorney General of the State of California

Thursday, November 18 Keynote:

The Internet and its Relationship to Democracy

Speaker: Erwin Chemerinsky, Dean, Jesse H. Choper Distinguished Professor of Law

Friday, November 19 Keynote:

Lessons Learned from the Bench and Beyond Speaker: Hon. Elizabeth Laporte (Ret.) Cost:

$150 CCCBA members | $200 non members

MCLE: Earn 9+ hours MCLE credit Location: Online

CLASSIFIEDS

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

PROBATE PARALEGAL TO ATTORNEYS

Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507. Call (925) 689-9244.

WALNUT CREEK, FOR ATTORNEYS ONLY

Beautiful offices w/ 11 solos. Networking. Single story building remodeled for lawyers. Built in’s, fireplace, molding, kit., conf rm, windows that open, etc. Very congenial. Rent varies. Paul 925/938-8990/pbelaw@pacbell.net

2 OFFICE SPACES AVAILABLE

THANK YOU TO OUR SPONSORS: Event Benefactor: JAMS

Where: 3445 Golden Gate Way, Lafayette Law firm since 1955. 1) Single Office Space Details: Creekside setting with ample free parking, excellent law library, easy access to intercity jogging trail. Rent is $1,000/month. 2) Retired Senior Partner Office Space Details: Large finished, wood panel office with private full bath and separate room for secretary or assistant. $1,850/month.

Interested? Call Stan Pedder at (925) 283-6816. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Contra Costa Lawyer - November 2021 Changes in the Law in a Time of Constant Change

Articles inside

Blending Work and Home: Remote Work in this New Era

Moving Justice Forward at the Trial Courts Under the Cloud of Covid 19

From Low Tech to High Tech: How the Evolution of Technology Can Help the Court System

INSIDE