Res Ipsa Loquitur, September/October 2019

RODRIGUEZ & ASSOCIATES 12 Local firm lands Truxtun Avenue location

JIM MALONEY IN MEMORIAM 18 Attorney loses battle with cancer

PHOTOS 32 Tacos and Tequila Tuesday at the Torres Home

RES IPSA LOQUITUR SEPTEMBER/OCTOBER 2019

PUBLISHED BY THE KERN COUNTY BAR ASSOCIATION

KLEIN DENATALE GOLDNER WHY FIRM BECAME A KCBA SUSTAINING SPONSOR PAGE 6

ABOUT THE RES IPSA LOQUITUR DESIGNER Amber M. Chiang rileditor@gmail.com CONTRIBUTORS Jay C. Smith C.M. “Bud” Starr Timothy Swanson

ABOUT THE KERN COUNTY BAR ASSOCIATION

1112 Truxtun Avenue Bakersfield, CA 93301 661-334-4700 info@kernbar.org The Res Ipsa Loquitur is published 6 times per year.

Articles, announcements and advertisements are due by the 5th of the month prior to the publication date. The articles in the Res Ipsa Loquitur are written for general interest and are not meant to be relied upon as a substitute for independent research and independent verification of accuracy.

The articles appearing in the Res Ipsa Loquitur do not necessarily reflect the opinion of the Kern County Bar Association, the committee or the columnists. Acceptance of advertising by the Res Ipsa Loquitur does not constitute endorsement of products or services advertised. The content of ads was not checked by either the Kern County Bar Association employees or members.

No representations are made by the Kern County Bar Association. The Kern County Bar Association reserves the right to refuse any advertising.

The Res Ipsa Loquitur welcomes contributions from legal professionals and representatives from relevant businesses and organizations. All articles will be reviewed for appropriateness and those selected for publishing will be published at the convenience of the Res Ipsa Loquitur editorial committee. To have an article considered for publication, please email rileditor@gmail.com.

WHO’S WHO AT THE BAR

The Kern County Bar Association is led by a volunteer board of directors consisting of five elected executive committee members and ten elected directors.

DOUG GOSLING, PRESIDENT is principal at Braun Gosling, ALC and represents public entities, private companies, and individuals dealing with water rights, water quality, special districts/public agency, land use, and complex business and commercial litigation.

JOSEPH HUGHES, VICE PRESIDENT has been practicing law since 1994 and focuses his practice in the areas of water and public agency law.

ALEKXIA TORRES STALLINGS, TREASURER is a criminal defense attorney in the Law Office of David A. Torres. Ms. Stallings practices state and federal criminal defense.

XOCHITL GARCIA, SECRETARY is a family law attorney and owner of XM Garcia, Attorney at Law.

CHRIS HAGAN, PAST PRESIDENT is a partner with Hagan Law Group, LLP and provides legal services to a diverse client base including litigation services to insurance companies, and public and private business clients. His practices focuses on civil and business litigation, public entity liability, employment litigation, and real estate litigation.

LETTER FROM THE DESIGNER

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M

ORE THAN TEN years ago now, Cathy Bennett connected me to former KCBA executive director Susan Hopper. A small little photocopied newsletter needed a new designer, and Cathy wanted me to help out.

I don’t think any of us dreamed what this magazine became.

From black and white copies I spent hours duplicating in the bar office on Chester, to a beautiful full color magazine under the leadership and guidance of Hon. Susan M. Gill and Carol Bracy, to this current iteration.

This is the first issue of the new Res Ipsa Loquitur. Now published bi-monthly with six issues a year, the magazine is distributed, starting with this issue, via online screen reader to all Kern County Bar Association members.

Along with the change, current KCBA executive director Bonnie Thomson and myself planned out content for the year to keep you up to date with happenings in the legal community. We will reach out to many of you for help with those plans.

I hope you enjoy the new Res Ipsa Loquitur, and happy reading!

Amber M. Chiang, designer

CONTENTS EVENTS AND UPDATES

10 - Memberhip Update New members and renewals for July and August 2019

PEOPLE AND FIRMS

ON THE COVER KCBA Charitable Foundation’s Tacos and Tequila Tuesday Fundraiser Event photos on page 32

COLUMNISTS

6 - Sustaining Sponsor Klein DeNatale Goldner

20 - Timothy Swanson The Renissance Corner

16 - Areas of Practice Guide to local attorneys

12 - Home is Where the Heart Is Noah Moss

25 - Jay C. Smith A View from over the Watershed

28 - CA Supreme Court Fails Bar Examinees Mitchel L. Winick

18 - Remembering Jim Maloney Hon. John Somers

26 - C.M. “Bud” Starr advocatus caecus

32 - Tacos and Tequila Tuesday

27 - Interview with E. Hunter Starr

30 - H. Dennis Beaver You and the Law

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ABOUT THE KERN COUNTY BAR ASSOCIATION EXECUTIVE COMMITTEE Doug Gosling President Joseph Hughes Vice President Alekxia Torres Stallings Treasurer Xochitl Garcia Secretary Chris Hagan Past President

DIRECTORS Bernard Barmann, Jr. Carol Bracy Jeremy Brehmer Gina Cervantes Diane Christian Thomas Feher Gabriel Godinez James Harvey T. Mark Smith Hunter Starr

ABOUT THE KERN COUNTY BAR ASSOCIATION CHARITABLE FOUNDATION EXECUTIVE COMMITTEE Barry L. Goldner President Patrick E. Jennison Vice President Catherine E. Bennett Chief Financial Officer Susan M. Gill Secretary

DIRECTORS Hon. Tom Clark John Stovall Seth O’Dell T. Mark Smith Joe Hughes Alekxia Torres Stallings RES IPSA LOQUITUR

PAROLE HEARING POSITIONS THE BOARD OF PAROLE HEARINGS The Board of Parole Hearings is seeking attorneys to represent inmates throughout the state of California in the parole suitability hearing process.

Compensation up to $9750 for each week of assigned hearings; preparing and representing multiple inmate clients.

For more information regarding the panel attorney appointment program, send an email to: BPH-AttorneyScheduling@cdcr.ca.gov

THE BOARD OF PAROLE HEARINGS

htps://www.cdcr.ca.gov/BOPH

INSURANCE SOLUTIONS

Mercer is working with the Kern County Bar Association to provide direct access to the State Bar Sponsored Lawyers Professional Liability Insurance Program in a way that supports the KCBA and its mission.

For more information please contact: Jack Witherspoon 415-983-5658

Information regarding the State Bar Sponsored Professional Liability, Life Insurance, Accidental Death & Dismemberment and Workers Compensation programs, including easy to complete on-line applications, is available at: www.mybarbenefits.com

PARALEGAL POSITION The Law Office of Timothy G. Scanlon, APLC is seeking a qualified legal secretary or paralegal with 2+ years of civil litigation experience.

Candidates should be familiar with California court rules and Kern county local court rules.

Seeking candidates with strong computer skills and organizational efficiency who are interested in working in a small, positive, office environment.

Competitive salary and benefits with a flexible work schedule.

E-mail resumes to tim@ thescanlonfirm.com.

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Mayra G. Estrada, Associate Makala Reha, KCPA 2019 Paralegal of the Year Vanessa Franco Chavez, Partner

Vincent J. Oddo, Associate Laura Druey, Paralegal

SUSTAINING SPONSOR PROFILE

KLEIN DENATALE GOLDNER K

LEIN DENATALE GOLDNER is proud to be a sustaining sponsor of the Kern County Bar Association, with all its attorneys being members. We are a team­—a team driven to solve complex problems while focusing on the client’s ultimate goal. Our team is passionate about the firm and the clients it serves and here’s why.

Ryan D. Bright, Partner I started my journey in law in 1999 as a teenager just trying to beat the heat of the Bakersfield summer with an indoor job. Back then I spent my days doing practice guide updates in a local firm’s law library and answering the afterhours phone line. A couple of summers later I found myself being interviewed for my second law firm job by a gentleman that was about my age—that felt funny considering I was probably only 20. Little did I know, that gentleman would later become my colleague and partner. Fast forward to 2006 and that gentleman, Dustin Dodgin, and I were first year associates at KDG. Thirteen years later Dustin and I are still going strong with KDG. I’ve spent the last several years based in the firm’s San Diego office working with my partner and mentor, Tony Klein. I’m grateful that KDG has allowed me to help expand the firm’s geographic footprint, while continuing to represent a strong client base in the Central Valley—a place I still call home. This is possible because of the vision of KDG’s management and the technological investments made by the RES IPSA LOQUITUR

partners. These investments also allow KDG employees to work remotely and I’m proud that we have team members and attorneys working remotely as part of our strategy rather than an exception.

As a leader in the firm’s personal injury and contingency practice, I help clients that had their lives interrupted and damaged by the negligence of others. My clients are often facing some of the most difficult times of their lives and I appreciate that they trust me to guide them through their recovery and the legal process.

When I’m not working, I enjoy spending time with my wife, Katie, our two-year-old son, Maddox, and our three-year-old bulldog, Bronx. You’ll often find Bronx sleeping while the rest of us are at the park, the zoo (just to see the gorillas) or Trader Joe’s (Maddox loves that place!).

Laura Druey, Paralegal & Makala Reha, Paralegal Being a paralegal is hard work, but it’s also like working with a family. We love our work family at KDG! We have an amazing team that works hard and plays hard.

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Dustin S. Dodgin, Partner Barry L. Goldner, Partner Ryan D. Bright, Partner Makala says, “I work on a variety of matters, from class action litigation, to general civil litigation, to transactional and real estate matters. I’ve been given an exceptional opportunity to grow - I started at KDG as a file clerk 14 years ago and this year I was recognized as KCPA’s paralegal of the year. I wouldn’t have been able to grow and learn as much as I have without the great attorneys, I’ve worked with over the years.”

Laura says, “I work primarily on estate planning, probate, and trust administration matters. I’ve been with KDG for 20 years, during which I’ve enjoyed a flexible work schedule and many opportunities for improving my skills and expertise. I am given autonomy, yet always feel like I have backup and support when needed. I especially enjoy feeling like I am a valuable resource for others. I work with people who I respect, and I feel confident that we are serving the needs of our clients well.”

While we may work on separate sides of the office, each with its own set of challenges, we both agree that we can always count on our teammates when

needed. That’s always been one of the biggest benefits of working at KDG— the comradeship.

We are both very grateful for the environment at KDG where we feel like we are more than just staff members, but rather integral members of the KDG team.

Mayra G. Estrada, Associate When I was in law school, I had no idea what type of law I wanted to practice. Even after spending my 1L summer at the U.S. Attorney’s Office and my 2L summer at KDG, the only thing I was certain of was that I enjoyed all aspects of litigation. I never imagined that I would eventually focus my practice on employment law and specifically on defending employment class actions.

In the two years that I have been with KDG, I have had the opportunity to be part of the employment class action team and work alongside truly talented attorneys, David Cooper and Vanessa Chavez, and our paralegal, Makala Reha. From a personal development perspective, it is refreshing to be part of a team where the legal opinions and analysis of

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Chris W. Hamilton, Partner | Kurt D. Van Sciver, Partner | R. Scott Kimsey, Partner James R. Harvey, Partner | R. Jeff Warren, Partner complex legal issues of every team member are valued. Additionally, working at full-service law firm allows us to consult with attorneys who specialize in other areas of the law, from Cathy Bennett, our appellate specialist, to Jay Rosenlieb who specializes in employment counseling, and to Dustin Dodgin, who provides keen insights into complex business issues. Our clients can be sure that their case will be handled with the utmost care and attention to their specific needs because we understand that each case and each client is unique and should be treated as such.

James R. Harvey, Partner First, you can always find a competent sounding board for ideas, strategy questions, or basic quality control at KDG. Two heads are better than one, and at least two heads are involved in nearly everything we do. As attorneys, we’ve chosen a difficult career with high performance expectations; the easiest way to manage and exceed them is with the help of talented and driven people. My own practice is certainly better off for being surrounded by such people on a daily basis.

Second, the support resources here are locally unrivaled. Having worked closely with a number of sole practitioners and members of smaller partnerships over the years, I often hear them extol the virtues of the “lower overhead” model—until the eve of trial when we unexpectedly need six binders RES IPSA LOQUITUR

(with four copies each) created over a weekend, or until we need a high-occupancy conference room that can be set up like a full courtroom for an 18-pack focus group, four lawyers, and numerous witnesses.

Can attorneys with leaner support resources work around these limitations? Sure. But I would rather not need to, and at KDG, I don’t have to.

Third, KDG’s extensive involvement in the local legal community creates a natural springboard for individual involvement. As a director of the Kern County Bar Association (and former Chair of the Young Lawyers Section), I am grateful to be part of a firm that is so supportive of these extracurricular endeavors.

At bottom, life at KDG means working with gifted lawyers, on interesting projects, for excellent clients.

R. Scott Kimsey, Partner The breadth of expertise at KDG allows me to provide full service for clients who come to me for my area of expertise. I may be retained to help with intellectual property matters, but there are also tax or employment matters within the scope of what I’m working on, for example. Having attorneys in the office who are knowledgeable in those areas is invaluable. Such access of resources expands the number and type of clients I’m able to work with.

A client may come to the firm because of an issue

unrelated to intellectual property, may not even realize they have intellectual property issues, and I’m able to come into the project and help them.

Without the broad expertise we have at KDG I might never work with that client. This abundance of expertise broadens the areas in which I practice.

Instead of working only on intellectual propertyrelated matters, I’ve had a chance to handle general business transactions and litigation. The broad scope of expertise at KDG provides not only an extensive base of support for my clients but the opportunity to grow my own practice.

Vincent J. Oddo, Associate My journey in becoming an attorney began as a wide-eyed college intern at Klein DeNatale Goldner.

During my three summers as a college intern at the firm, I was exposed to a variety of projects and practice areas and was mentored by KDG attorneys on my path toward law school. As a Pepperdine Law student, those mentorships continued when I returned from the beaches of Malibu to the streets of Bakersfield as a summer law clerk. As a fourth generation Bakersfield native, it was important for me to work in an environment committed to our local community. When deciding where to call home after law school and considering KDG’s footprint in the Bakersfield community coupled with its spirit of collegiality, I did not hesitate in returning to KDG as an associate attorney. As an attorney in the firm’s

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estate planning and transactional departments, I work on a variety of challenging and sophisticated matters with our seasoned attorneys. I am grateful for my experiences at KDG—from college intern to summer law clerk to associate attorney. These experiences have shaped me into the lawyer I am today and continue to shape the lawyer I aspire to be.

Kurt D. Van Sciver, Partner I love working at KDG because of the collegial atmosphere. Our attorneys and staff enjoy working together as a team to serve our clients. When I started 10 years ago as an associate, I was given opportunities early on to interact with clients and do meaningful work. Working alongside seasoned attorneys allows our associates to grow and mature as members of the legal community. We strive to make a difference in every case.

Julia K. Vlahos, Associate I first began working at KDG in 2006 when I was hired—while still an undergraduate student at CSUB—as a file clerk for the personal injury department. Not long after getting hired in that capacity, I became the department’s medical records clerk and then one of three legal secretaries to Tony Klein and Ryan Bright. I had always planned on attending law school and so left the firm in 2009 to obtain my law degree. I returned to KDG every summer, however, to work as a summer law clerk.

Upon graduating from law school, I returned once again, in my capacity as an associate attorney.

Today, I am so happy and fortunate to once again work with Tony Klein and Ryan Bright in the personal injury department. It is a truly fulfilling experience.

I have been back at KDG as an attorney for seven years now, and I cannot imagine a firm that feels more like home, and colleagues that feel more like family, than KDG. I have experienced tremendous growth in every position I have been in, and especially as an attorney. KDG goes out of its way to be flexible and accommodating to its attorneys and staff. As an example, I am currently working remotely from home as I await the arrival of my third child in just a couple of weeks. The ability to take care of health and family, yet still connect remotely and have access to cases and resources is invaluable.

Jay L. Rosenlieb, Partner Donna Thrasher, Senior HR Consultant

R. Jeff Warren, Partner I did not clerk with KDG before being hired as an associate. I didn’t know many of the staff or attorneys—but, being a Bakersfield native, I recognized the firm through its local reputation and community involvement. I quickly learned that, despite being the largest law firm in Bakersfield, the office environment is that of a close-knit family. I can’t express how meaningful it was to feel embraced by the firm so quickly. It is a joy to practice alongside our team of dedicated and adaptable attorneys. The

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KCBA MEMBERSHIP UPDATE FOR JULY/AUGUST NEW MEMBERS PETER C. CARTON California Education Consultants, Inc. GERALD SERLIN Benedon & Serlin, LLP 22708 Mariano Street Woodland Hills, CA 91367 818-340-1950 gerald@benedonserlin. com KRISTINA FUNDERBURK Kern County District Attorney’s Office 1215 Truxtun Avenue Bakersfield, CA 93301 661-868-3670 ELISA PINOLIAR Spectrum Credit Union 5060 California Avenue, Suite 190 Bakersfield, CA 93309 661-695-4262 ZARI HADJIAN Hadjian Law P.C. 1851 E Street, Suite 900 Santa Ana, CA 92705 714-973-7800 zarihadjian@hadjianlaw. com

RENWALS CHRISTINA MATIAS Kern County Public Defender’s Office 1315 Truxtun Avenue Bakersfield, CA 93301 GEORGE R. HORRIGAN Law Office of George R. Horrigan, A Professional Law Corporation 900 Truxtun Avenue, Suite 310 Bakersfield, CA 93301 661-489-7634 JOHN S. WALL John S. Wall, A Professional Law Corporation 1601 F Street Bakersfield, CA 93301 661-327-8461 LAW STUDENTS JOSHUA MURRILLO ROME S. ENZON

breadth of the firm’s practice areas always keeps work exciting, but what truly sets KDG apart from other firms is the opportunity to work with people who are just as passionate about their clients as they are about the law.

Vanessa Franco Chavez, Partner As the chair of KDG’s class action practice group, the focus of my work is on representing employers and management in wage and hour class actions. I also manage a case load of individual employment actions and appeals of complex DLSE citations and assessments. Although there is usually legal authority on an issue, in wage and hour cases, there is always room to deliberate the fine points about how the law applies to a particular case. It’s in those fine points that I often find creative solutions and leverage in a case. Because nothing is static in employment law, I find practicing in this area of law especially interesting and exciting.

Everything we do at KDG requires a team effort and I can confidently say KDG attorneys and staff provide invaluable collaborative support each and every day.

We often work together, including with KDG attorneys in other practice groups, to develop effective and unique defense strategies based on the facts and circumstances of each client and complexities of each case. Working at a firm this size, I have consistently been able to draw on the expertise of my colleagues, a valuable resource to anyone practicing law. In addition to having wonderful mentors at KDG, I feel valued for my contributions as a team leader and member of the firm. Having so many different styles, perspectives, and personalities in one place,

JAMES GARROR Law Office of Wayne Silva 912 Perdew Avenue, Suite C Ridgecrest, CA 93555 760-446-5300

SEE YOURSELF HERE. THE RES IPSA LOQUITUR PUBLISHES NEW MEMBERS AND RENEWALS FOR THE TWO MONTHS PRIOR TO ISSUE. MAKE SURE TO INCLUDE YOUR FULL CONTACT INFORMATION WITH YOUR RENEWAL SO WE CAN INCLUDE IT HERE.

RES IPSA LOQUITUR

James R. Harvey, Partner

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really adds flavor to what we do and helps maintain a balance in our differing practices—it creates something unique and powerful, which I enjoy being a part of.

Jay L. Rosenlieb, Partner and Donna Thrasher, Senior HR Consultant At KDG, our focus is helping business owners and executives achieve their most important business objectives.

The labor and employment law compliance, litigation, and human resource counseling practice at KDG is singularly directed and dedicated to partnering with management to find solutions to support business goals and manage risks. We understand that a business is in business to succeed. Knowing and sharing that drive makes our team uniquely suited to assist management in navigating and outpacing their peers in the complexities of California employment law and traditional labor relations.

Jay’s daily focus is working with employers on complex labor and employment issues. He enjoys the challenge of being asked how to move a company toward its goals while minimizing its risk of liability to labor and employment claims. Each member of the team works seamlessly to meet these challenges. It is fast paced and exhilarating, never exhausting and incredibly rewarding work.

Ryan D. Bright, Partner Shelly Howlett, Paralegal Julia K. Vlahos, Associate

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HOME IS WHERE THE HEART IS

by Noah Moss

The heart often knows that the eyes cannot see, what the tongue cannot taste, the hands cannot touch. For a flavor of the man’s story, to grasp the meaning of his work, we must look to his origins. Only then can we begin to see what so many already know about Daniel Rodriguez—Home is here the heart is.

Daniel Rodriguez has called Bakersfield home for close to forty years. He has helped shape the community as a trial lawyer, businessman, philanthropist, husband, and father. His roots run deep. And the surprising thing about a man who has been such a pillar of stability to this town is that his childhood was anything but stable.

Born to migrant workers, he spent his childhood on the move. His sense of time ebbed and flowed with the seasons—the November cotton harvest in Texas and back to California in late winter for crop preparation.

There were others in between, countless fruits and vegetables toiled over and tilled by hand. Countless miles on the road.

“Typically, we would be enrolled towards the bottom of the class. By that I mean they put us in classes with the students who were struggling or behind on the fundamentals. Within a week, we’d be moved out of the bottom and put in the advanced classes with the best students in school.”

When asked if this process ever shook his confidence, he said, “No, I got used to being underestimated from an early age. It just motivated me to prove them wrong.”

Into adolescence, Daniel’s

I got used education gave him a leg up, allowing him to adapt to being quickly to an ever-changing environment. It wasn’t enough, underestimated for example, for Daniel to work on a piece of equipment. from an early age. It just Be it a forklift, a gin stand, or a work-over rig out in the motivated me to prove oil fields, Daniel had to know every nuance of construction them wrong. and operation, down to the last

Daniel’s father was an orphan, found along the side of a South Texas county road at the age of five. Daniel’s father never knew his parents and could neither read nor write.

He had, however, the gift of great storytelling, which allowed him to communicate in a land and among a people that, in those days, pushed him to the margins. This ability also allowed him to impress upon his six children the importance of education, the options that it would create for a better future.

If a growing season fell during a school year, Daniel heeded his father’s advice. Even in the middle of a semester, Daniel would corral his five siblings and march them to the front door of whatever schoolhouse was within shouting distance of the fields where his parents worked. Daniel emerged as the ringleader of his brothers and sisters. He would knock on the school’s front door, fill out the necessary paperwork in English and ensure that they were all enrolled. Daniel recalls these early years: RES IPSA LOQUITUR

bolt.

It was little surprise to his family when Daniel enrolled as an electronic engineering student at Cal Poly San Luis Obispo in the early 1970s. To say the same for his classmates and professors would be to understate the fact that Daniel was the first Latino to graduate from this university’s engineering program.

Being underestimated was not unusual for Daniel. He recalls one professor in particular: “He was French. He couldn’t roll his r’s and instead left them in the back of his throat like he was choking on a frog. During roll call, he went down the list and didn’t call my name.

When the professor asked the class, ‘Did I call everyone’s name?’ I raised my hand. I said, ‘You missed me sir, Daniel Rodriguez.’

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RES IPSA LOQUITUR

The professor looked at his roll call sheet and explained, ‘Daniel Martinez, yes, I called you.’

‘No, my name is Daniel Rodriguez,’ I said as politely as possible.

He shrugged then replied, ‘Martinez, Rodriguez...

What’s the difference?’

The class got a good laugh. I knew where I stood.”

Daniel knew that he wanted to make a living as an attorney from such an early age that he barely remembers a time when he questioned it. To that end, he enrolled as a first-year law student at the University of California, Los Angeles in 1977. As he tells it, that first year was a rude awakening.

“In engineering, there’s a formula and there’s always a right answer. It’s black and white. It took me a whole year to understand that law is different. You have to be able to see both sides of the coin, both viewpoints at stake in a dispute.”

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It was a critical turning point when Daniel learned that resolving disputes requires taking the time to walk in another’s shoes to understand where they are coming from. It was also the time when he started to understand that practicing law can be messy and is often carried out, not in black and white, but in shades of grey.

A new world opened up and academic success quickly followed. Daniel was a quick learner and he’s open about cutting class to work at a law firm instead.

“I would go to the first class of the semester to get the syllabus. Then I would go to the last class to take the test. In between, I would work sixty hours a week at an insurance defense firm in L.A. It felt good to finally make decent money. Then I would cram before the final exam and ask around to see how the professor tested. I don’t recommend this to anyone else but that’s how I did it.”

By the time Daniel graduated, his education was, in some ways, complete. In others, it was only beginning.

Out of law school, Daniel had job offers from every law firm he applied to in Los Angeles. These folks were eager to hire him. When asked why he returned to the Central Valley instead, he says, “My family was living in Arvin. I knew the area, felt comfortable here.

This is where I wanted to be.”

The irony is that Daniel had trouble finding a job back home. He applied to a local insurance defense firm only to be turned away. “I didn’t understand. I was hungry and knew defense work because I’d practiced it my entire time in law school.”

Underestimated but never discouraged, Daniel recalled a bitter experience doing defense work that drove him to adapt and try a different approach.

“It was one of the first assignments I was given at the defense firm I worked at during law school. It was an out-of-state case in Arizona where my assignment was to figure out what law applied to our case. The partner said to me, ‘Figure out the state where the law would award the plaintiff the least amount of money. Then write a brief arguing that’s the law that should apply.’ It was discouraging and was the first time I knew that I wanted to represent individuals, not work for insurance companies.”

Joel Andreesen

Daniel, a creature of habit, sought out opportunity like he had as a kid. He knocked on a door, this time of a prominent law firm in Bakersfield that represented criminal defendants and civil plaintiffs in personal injury cases. He was interviewed that day and hired on the spot. This firm was at 1128 Truxtun Avenue in Bakersfield.

SEPTEMBER/OCTOBER 2019

16 Once hired, he got to work and never looked back.

Things took off when Daniel knocked on the door of the local, Spanish-speaking radio station and talked them into a primetime spot about the law. The calls poured in.

His cases and clients took him far and wide, deeper and deeper into the community that he had always known. Daniel was at an advantage representing people who’d been injured in the same orange groves he grew up working in or on the same cotton gins he and his father had worked on all those years before.

This was his home turf.

About ten years in, Daniel met a young law clerk from Iowa, who also worked at 1128 Truxtun Avenue.

The young man, Joel Andreesen, had a nose for the practice of law. The two found kinship in their competitive spirits and reverence for the law.

It wasn’t long before Daniel approached Joel about working together. A partnership was inevitable and the lasting image of these early moments has now come full circle. After a long tenure at 2020 Eye Street, Rodriguez & Associates has recently opened its doors for business at 1128 Truxtun Avenue, the same building where Daniel and Joel started their careers in the 1980s.

I read somewhere that ambition comes in two forms.

The first kind is driven by the urge to step over others on the path to personal achievement. The second is driven by a desire to invest in work that will raise everyone up around you.

Daniel and Joel have built their firm around the second type and Bakersfield is undoubtedly better for it. Both attorneys have emerged as a voice for those unable to speak for themselves. They take pride in what they do and the fact that people who come to work for them find a challenging and fulfilling environment where they are welcome to stay. They take care of their own.

And now Daniel and Joel are back under the same roof where it all began. A fresh start with renewed energy for their lasting mission. Their practice grows and shows no signs of slowing down.

Too much work to do.

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AREAS OF PRACTICE GUIDE Attorneys and associate members of the Kern County Bar Association may choose to advertise in this area. Contact the KCBA at info@kernbar.org for details.

Scott L. Harper The Law Offices of Scott L. Harper scott@sharperlawyer.net (661) 489-4898 Areas of Practice Mediation Civil Litigation Probate Litigation

Paul Lafranchise The Lafranchise Law Firm plafranchise@gmail.com (661) 549-2737 Areas of Practice Wrongful Termination Employment Discrimination Wage-and-Hour Violations

Board of Parole Hearings State of California Administrative Law Judge I Positions Available Statewide

Monthly Salary Range: $8,984.00-$11,300.00 Benefits: Health Insurance (health, dental, vision) and retirement plan Regional Office Locations: Sacramento, Fresno, Wasco and Chino Job Description & Duties: An Administrative Law Judge I presides over Suitability and Mentally Disordered Offender hearings at prisons statewide, writes decisions on Nonviolent Offender Parole, Administrative Reviews, Petitions to Advance and Parole Discharge.

MQs: 1) Active member in good standing with California State Bar; 2) five years of experience practicing law; 3) two years of experience in judicial capacity (defined as judge pro tem, mediator, arbitrator, hearing officer conducting interrogatories, depositions and other inquiries). Some criminal experience is helpful, but not required.

Apply at: CalCareers https://calcareers.ca.gov. Create an account and complete the test titled “Administrative Law Judge I, Board of Parole Hearings.” Mail Examination Application and Qualification Assessment as indicated in the job posting.

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REMEMBERING JIM MALONEY

by Hon. John Somers The Kern County Superior Court has lost a long time, valued employee with the recent passing of Jim Maloney from cancer. Even more tragically, though, many of us lost a trusted friend.

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IM CAME TO work for the Superior Court in December 2006 after 17 years working for Greater Bakersfield Legal Assistance. Jim and I first met shortly after my assignment as the habeas corpus writ judge. While this is a “secondary” assignment, in my first year alone I issued rulings on over 900 writ petitions.

Though the job is now divided between two judges, it would be an impossible one without the talent and hard work of the Court’s attorneys who work on habeas writs. They process the filings, review supporting documents, and draft tentative rulings before review and final decision by the assigned judge.

This often requires reviewing the entire record of a full trial, when the writ challenges the underlying conviction.

It was through this assignment that I had the pleasure and good fortune of meeting Jim. Jim’s assignment as a research attorney was habeas writs. In this capacity the writ judges worked with him on a daily basis. I have been assigned to habeas, mostly at my own request, for six years. A big part of the reason I requested the assignment was to work with him. Jim was a fine lawyer with a tremendous work ethic. He had a solid knowledge of criminal law and procedure; but he also knew prison regulations and administration – a field almost unknown to most lawyers, but just as detailed and complex.

He had good judgment, and wrote well. Perhaps his strongest quality as a lawyer was his innate sense of justice. He never saw the petitions as merely paperwork to be processed. He always saw the people behind them, both the petitioners and those who had been victimized if there were underlying crimes. It is easy to forget that every court case is really about the people behind it. Jim never forgot this, even though he never met the parties involved.

The greatest loss to all of us from Jim’s passing, however, was our loss of a good friend. In the years that I worked with him, I valued his friendship even more than his legal work. It was a welcome sight to

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see him come into my chambers with his service dog (Castle and Gatsby were the two that I knew) to see me or drop off work. We found that we shared interests in sports, music and ham radio, and this gave us plenty to talk about; but mostly I valued Jim’s good spirits and sense of humor. He never believed that his blindness was a reason to feel sorry for him, and never let it defeat him; when it created hurdles, he simply worked harder to overcome them.

He usually had jokes to tell (the cornier the better), and was always more concerned for others than for himself. When I was preparing the wedding ceremony for my son and daughter-in-law (whose family came to America from Ukraine), he took the time to help me learn phrases for the ceremony in Russian, which he knew well, so that her grandmother, who speaks no English, would understand the most important parts of the ceremony as it happened.

Jim had beaten cancer before, and knew when he began his most recent treatment that it might or might not be successful. But when I last saw him before he left, he talked only of doing everything he could to beat it, and get back to his beloved family and his work. He faced an uncertain future unafraid.

Among radio operators, a ham who has passed away is known as a Silent Key. Jim’s key may be silent, but the memory of his friendship will live on with all of us who knew and worked with him. We are better for having known him.

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SEPTEMBER/OCTOBER 2019

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THE RENAISSANCE CORNER

In this issue’s installment, Timothy Swanson reviews A Gentleman in Moscow by Amor Towles.

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GENTLEMAN IN MOSCOW was one of last year’s book selections for a book club I am in. This book was unique to me in that I kept finding myself letting scenes wash over me and basking in the glow of the language. Towles is just a straight-up good writer.

A number of critics have been less rosy about the book, and, after I finished it, I read a few of the reviews. I think the problem is that critics want the book to be...a different book. They want it to have a deeper, darker theme, be more “realistic” about Soviet Russia, to tackle problems. Or something like that.

This is not what this book is at all, and it doesn’t need to be. And it is not what the author intended. As he put it, in answer to the question, “Does the book have a central theme?”

I certainly hope not. In crafting a novel, I do not have an essential message I am trying to communicate.

Rather, I hope to create a work of art that, while being satisfyingly cohesive, contains such a richness of images, ideas, and personalities that it can prompt varied responses from reader to reader, and from reading to reading.

In essence, I want to gather together a pile of brightly colored shards of glass. But rather than assemble these shards into a mosaic with a fixed image, I want to drop them into the bottom of a kaleidoscope where, thanks to a glint of sunlight and the interplay of mirrors, they render an intricate beauty which the reader can reconfigure by the slightest turn of the wrist.

I think that is a fine description. And a good example of Towles’ way with words.

With a few exceptions, the book takes place in an extremely limited environment. Count Alexander Rostov, a Russian aristocrat, is saved from the firing squad by his reputation as a revolutionary poet.

Given his life, he is deprived of his liberty: he is to spend the rest of his life living in the Metropol hotel in Moscow, and essentially become a “former person,” with no identity. Evicted from his posh lodgings and confined to a former storage room on a top floor, his life changes dramatically. But the 30-year-old Count takes it in stride, and finds a life for himself.

He becomes the head waiter at the ritzy restaurant— after all, his greatest skill is in making seating charts and pairing wines—and forms friendships with staff, visitors, and foreign diplomats. Oh, and a young girl who later leaves her own daughter in the care of the Count.

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The book unfolds over more than three decades: from 1922 through 1954. Towles chose an interesting, symmetric form for the book. In the first half of the book, the timeframe doubles each chapter.

So, the first section is one day after his arrest, the next two days, and so on, eventually giving a 15-year

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gap. At that point in the story, the narrative takes a dramatic turn, when young Sofia is dropped off by her mother—who never returns. From that point on, the reverse applies, with the times shrinking as they approach the final denouement.

The characters are delightful. They are memorable, believable, and human. Count Rostov is, perhaps, a good bit better than the average aristocrat (and particularly than, say, the sort you find in most Russian novels), but he is no saint. He is as suave as they come, though, and is admirable in the way he adapts to dramatically changed circumstances. I found him to be one of the more enjoyable characters I can remember from the last few years of reading.

There are others, too. Rostov’s friend, Mishka, the nervous, obsessive, and literary person never quite at home in the Soviet machine, despite his socialist beliefs. He is Rostov’s one friend from his youth— they were an interesting pair: Rostov the aristocrat, and Mishka the commoner.

The other members of the “Triumvirate”—Andrey, the maître d’ of the restaurant (without whom, the hotel would not run), and Emile, the cantankerous head chef—are also delightful. The whole idea of the behind-the-scenes meetings of Rostov, Andrey, and Emile to plan out the important dinner parties for visiting dignitaries—while sampling the creative

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cooking of Emile—was genius, as was their choice of the name.

The three main female characters are also interesting. Nina first appears as a precocious young girl. She befriends Rostov, and the two of them explore the bowels of the hotel using Nina’s pass key.

Nina is studious and appears to have a bright future, but something goes wrong and her husband is sent to the gulag. She pursues him, leaving her daughter Sofia behind.

Sofia is every bit as smart as her mother, but quieter and less assertive. This makes it easier for her to blend in with Soviet values. It is Sofia, more than Nina, who changes Rostov and gives his life purpose.

The final woman is Anna, the actress. When we first meet her, she is young and at the height of her fame.

She is also overbearing and arrogant, and doesn’t come off well. Nonetheless, she decides to have a fling with the Count, only to get completely pissed off when he picks up the clothes she has flung on the floor. (Apparently, Towles based part of this on an incident involving his own parents…) She comes around, however, and the two of them have an ongoing affair (if that is what you call a relationship between two unmarried people) for the rest of the book. Although first impressions are negative, she grows as a character, just like the Count. In fact, the

two of them essentially grow together, losing their egos and adapting to the changes of life. (Let’s just say that it isn’t easy going from beautiful starlet to senior citizen actress—few have done it well.)

I should also mention the villain of the book: “The Bishop.” This is the nickname given to a Bolshevik who starts out as a waiter, before being promoted all the way to hotel manager, despite his lack of ability. Towles shows a deft touch here, because one comes to loathe The Bishop before one even realizes he is a Bolshevik stooge. He embodies all the annoying qualities of bad waiting—he is there when you don’t want him, isn’t there when you want him, pushes expensive wines and entrees despite their unsuitability together, misses social cues, and makes a blundering nuisance of himself. One or two of these are excusable in a basic restaurant—and I don’t nitpick college students trying to pay their way, or friendly diner waitresses who face rather different expectations. But all of these, in a waiter in a fine restaurant? From a person who exudes arrogance and refuses to learn? That’s unforgivable. This is why you know what kind of a person The Bishop is right from the start. That he turns out to be the worst kind of Soviet stool pigeon can be inferred from his character.

The minor characters fill things out well. The seamstress Marina, who becomes Rostov’s confidant and co-conspirator. Osip, the mucky-muck in the secret police (which changes names throughout the book, of course) who forms a bond with Rostov after he asks Rostov to tutor him in French. Richard Vanderwhile, the American diplomat. Abram, the handyman and beekeeper. And others.

I decided to include one scene from the book in this column, just because I think it is outstanding. Sofia has become a concert pianist, and will be performing.

Marina has made her a dress which Rostov, being old school, doesn’t particularly approve—it is backless. He figures Anna is to blame.

“This dressless dress. No doubt it was drawn from one of your convenient magazines.”

Before Anna could respond, Marina stomped her foot.

“This was my doing!”

Startled by the seamstress’s tone, the Count saw with some trepidation that while one of her eyes had rolled toward the ceiling in exasperation, the other was bearing down on him like a cannonball.

“It is a dress of my design,” she said, “fashioned from my handiwork for my Sofia.”

Recognizing that he may have unintentionally insulted an artist, the Count adopted a more conciliatory tone.

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“It is unquestionably a beautiful dress, Marina.

One of the finest I have ever seen; and I have seen many find dresses in my time.” Here the Count gave an awkward little laugh in the hopes of clearing the air and then continued in a tone of fellowship and common sense. “But after months of preparation, Sofia will be performing Rachmaninov at the Palais Garnier. Wouldn’t it be a pity if, instead of listening to her play, the audience was staring at her back?”

“Perhaps we should drape her in sackcloth,” suggested the seamstress. “To ensure that the audience is not distracted.”

“I would never counsel sackcloth,” protested the Count. “But there is such a thing as moderation, even within the bounds of glamour.”

Marina stomped her foot again.

“Enough! We have no interest in your scruples, Alexander Ilyich. Just because you witnessed the Comet of 1812, does not mean that Sofia must wear a petticoat and a bustle.”

Later, Anna can’t resist rubbing it in.

“Is it true?” asked Anna, as she and the Count walked down the hallway after the fitting.

“Is what true?”

“Did you really see the Comet of 1812?”

This is just one of many well-conceived scenes, and one which fits in with the characterization.

These are exactly the lines which Marina, Anna, and Rostov would have said, and by the time they appear in the book, they form additional examples of the characterization already apparent. I think this is one sign of good artistry: the characters aren’t there to do the motions of the plot. Rather, they act in accordance with who they are, in the world the author creates for them to act.

I greatly enjoyed this book, and strongly recommend it. No, it isn’t intended to have a deep message. But it is a literary work—a work of art, beautiful for what it is, not for its lack of a message. And really, there are themes in this book. Themes like loyalty, friendship, mutual compromise, adaptation, and so on. As Towles puts it, each reader may discover different ideas and gems in the book. And that is what good art does.

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THE VIEW FROM OVER THE WATERSHED “I’ll be merciful—as soon as I get even.”

by Jay C. Smith I hope this finds you refreshed by your summertime experiences, whether you had a vacation or not. Admittedly, I know full well that some vacations are more exhausting than work is. I’ve had a few.

In the law business, as in most parts of the service sector, the work isn’t usually the real difficulty, the customers (or as we call them, clients) are. Some lawyers get cynical enough about their clients to distrust them all and say things like “Don’t expect to meet nice people in your practice. Nice people don’t get sued—and they don’t sue anyone, either.”

Like most hostile generalizations, there is a grain of truth in it. Probably more than a grain; but I have had clients who were nice people and I hope you have too. It’s so much easier to be nice to nice people than the non-nice ones, but the un-nice people seem to demand it more. Certainly, more than they’ve earned.

It’s a relief when the not-nice ones are the other side’s clients, so that you can get fully into the “comfort the afflicted, afflict the comfortable” mode against folks who seem to deserve it. Family law lets you be angry with both your opposing counsel and your client’s ex or soon to be spouse or significant other. In criminal law defense your anger will usually be against the self-righteous, sneaky prosecutor or the lying cops. Criminal defendants may be bad people, but they are usually nice to their counsel.

(Not always; Mike Dellostritto got stabbed by one of his clients, I recall. I’m sure it was nothing personal, though.)

It’s more of a problem if the not-nice person is your client. Fi you’ve agreed to take the case you have an obligation to do the best you can for the client, even if you begin to dislike them. Sometimes it becomes a sticky bit of pride to do a good job in spite of your dislike of your client.

When you have nice people for clients it heightens the hurt if you lose. (Worse yet, several times I’ve had nice clients who tried to comfort me when we lost. “It’ll be okay,” they told me. Made me feel better and worse at the same time.)

I had one client who flat-out surprised me. It was a relatively small dispute over some sort of business or sales transaction—I don’t recall exactly. My client was the plaintiff, and the defendant was someone who had once gone to the same church as my client. My client was a regular church goer who identified himself as a Christian. Shortly after the lawsuit had begun he attended a sermon covering I Corinthians 6, which condemns the practice of Christians taking other Christians to courts to settle disputes.

There are many easy ways to evade the burden of the teaching and proceed with the lawsuit. Times have changed—the judges in New Testament times would have been heathens, whereas there is a reasonable chance a judge here and now would be a Christian, or at least a churchgoer. Going to court back then implied support for the blasphemous Roman emperor. Totally different now. If the defendant gets away he may cheat others.

Nonetheless, my client instructed me to dismiss the action and I did. He said he was ah happy to have the matter over, even if he was out a sum of money.

He seemed happy and may well have made the better choice. To quote Voltaire: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.”

Jay C. Smith is a Bakersfield attorney who retired from the Department of Child Support Services after working there for 15 years. He was in private practice for 25 years before joining DCSS. SEPTEMBER/OCTOBER 2019

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ADVOCATUS CAECUS I recently listened to an interview of sports commentator Clay Travis. While the interview featured discussion of his 2018 book, Republicans Buy Sneakers Too: How the Left is Ruining Sports with Politics, 2018 ISBN 0062878530, he also discussed his J.D. from Vanderbilt School of Law and his decision to leave the practice of law and make a living in sports. The interviewer asked Travis about the furor over his greatly criticized remarks on CNNs afternoon Headline News on September 15, 2017.

Two years ago, Travis was working for Fox Sports and was noted for criticizing the copious amount of political commentary on ESPN. CNN invited him to appear on Brooke Baldwin’s afternoon program to comment on Jemele Hill’s statement that Donald Trump was a white supremacist.

Travis began by saying that he was a First Amendment absolutist and then said, “I believe in only two things completely, the First Amendment and boobs.”

Baldwin became apoplectic. Seeming shocked, the host asked him to repeat it and confirm the spelling of boobs. Also appearing on the program was former ESPN Senior Editor, Keith Reed who began complaining about the fact that Hill was often subject to sexism and racism, and decrying Travis’s comment.

Baldwin cut the interview short and immediately tweeted out “Note to men–that is never okay. #smh.” Others in the press chimed in. CNNs, Chief Washington Correspondent, Jake Tapper, tweeted, “Incredibly juvenile, unprofessional, and sexist.”

Baldwin was not near so sensitive in her prior New Year’s Eve broadcast when her open discussions with co-host Don Lemon about whether he should get a tattoo or a piercing were interrupted by disgraced comedian Kathy Griffin who chanted, “Nipple, nipple, nipple, nipple.” Baldwin remarked in response that she loved Griffin.

If that was not enough, the CNN team showed more hypocrisy twelve days after Travis’s comment.

On September 27, 2017, Hugh M. Hefner passed away at the age of 91. In a Business report by CNN, the network published laudatory quotes from Hefner’s son and Playboy magazine’s creative editor, Cooper RES IPSA LOQUITUR

Hefner: “My father lived an exceptional and impactful life as a media and cultural pioneer and a leading voice behind some of the most significant social and cultural movements of our time in advocating free speech, civil rights and sexual freedom.

He defined a lifestyle and ethos that lie at the heart of the Playboy brand, one of the most recognizable and enduring in history.”

Later, CNNMoney program quoted USC’s Gender Studies professor, Lois Banner, “He was very bold.

Much of his brilliance is as a marketer. A lot of his brilliance is not necessarily as the creator of a cultural icon, because that cultural icon is women ...

He simply raised it up to a kind of epic phenomenon in culture.” Everyone from the New York Times to Fox News treated the loss of the creator of Playboy Magazine as the loss of a great American figure.

Hugh Hefner began his multi-million-dollar empire with a few dollars when he published his first issue in December, 1953, which included nude photographs of Marilyn Monroe. He took the U.S. Post Office all the way to the Supreme Court to get his magazines delivered by mail. Perhaps I am oversimplifying his essence. It seems to me that Hugh M. Hefner believed in two things completely, the First Amendment and boobs; although in his mind the order may have been reversed.

About the author: C. M. Starr II is an attorney retired from the District Attorney’s Office. He spends much of his time listening to audiobooks and is currently helping to establish the Kern County College of Law. He writes for Res Ipsa Loquitur as an outlet for his need to pose questions beyond those raised by his former legal work.

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INTERVIEW WITH HUNTER E. STARR

WHAT DREW YOU TO LAW AS A PROFESSION? STARR: The money! Not really. I was drawn to the profession when I was working at the crime lab. I found that being around the courts and law enforcement always gave me a sense of pride. I had initially intended to go for a Ph.D. in History, but ended up taking the LSAT instead.

HOW DID YOU COME TO SELECT YOUR LEGAL SPECIALTY? STARR: I shied away from prosecution to begin with. After a taste of 1L, I really wanted to experience all the sides of law I had never seen before. But advocacy became my love, and I also wanted to protect my community. So prosecution it was.

IF YOU DIDN’T BECOME A LAWYER, WHAT WOULD YOU HAVE DONE PROFESSIONALLY? STARR: I had my entire application for the Ph.D. program at UC Davis all put together until my computer—and all my materials—got fried in a surge. (Invest in a good surge protector, people). I wanted to be a professor.

Luckily for me, Kern County College of Law opened, so I get to achieve both dreams in one lifetime.

WHAT IS THE MOST REWARDING PART OF YOUR CAREER? STARR: The most rewarding part of my career is watching the relief on the faces of the victims when they know they will have peace.

WHAT IS ONE THING YOU DEAL WITH REGULARLY IN LAW WHERE YOU HAVE TO TAKE A DEEP BREATH AND STEEL YOURSELF TO START WORKING? STARR: There are some pretty serious things in prosecution. But on the lighter side, my answer would be walking into court everyday wondering if either elevator will be working.

IF YOU WERE TO SPEAK AT A HIGH SCHOOL ABOUT ENTERING LAW AS A CAREER, WHAT WOULD YOU SAY? STARR: It is worth it. Students fear years in school, but the reality is that they can be 7 years older practicing law, or 7 years older not practicing law. And there is a niche in the law for everyone.

WHAT IS YOUR FAVORITE KCBA EVENT OR ACTIVITY, AND WHY? STARR: Up until recently, my favorite event has been the Installation Dinner. I love getting to hear from the KCBA incoming president. It gives a sense of cntinuity and pride in what we do, and a personal relationship with the new president. But recently, I attended Tacos and Tequila at David Torres’ house for the Charitable Foundation. I may have a new favorite.

SEPTEMBER/OCTOBER 2019

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CA SUPREME COURT FAILS BAR EXAMINEES

by Mitchel L. Winick, President and Dean, Monterey College of Law It is July, and that means another bar exam is looming large for recent law school graduates.

In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates.

However, I would like to offer some facts that better frame the importance of this issue to the profession.

First let me say that recently released bar data provides the best response for the second most common question that I get... “why am I arguing for dumbing down the bar exam?” I’ll let the data speak for itself...

February 2019 - MBE Scores – First time takers 1340 National mean score 1371 California mean score 1374 Monterey College of Law mean score The results...California examinees outscored the nation...and our Monterey College of Law examinees outscored California.

Despite these high-performance scoring results, because California RES IPSA LOQUITUR

uses an artificially inflated minimum passing score of 1440, the California first-time pass rate in February 2019 was 41% and the MCL first-time pass rate was 40% (the 1% statistical difference is due to MCL’s small cohort). In comparison, based on a national mean passing score of 1350, the national first-time passing rate was over 60%.

California examinees outscored the nation...and our Monterey College of Law examinees outscored California.

What is frequently overlooked in news headlines and articles is that California and MCL examinees do not have a 20% lower bar pass rate because they performed poorly. As the results indicate, California examinees outperform national examinees by more than 30 points. The pass rates are 20% lower because the California minimum passing score is artificially set 110 points higher than New York and 80-90 points higher than the other top five jurisdictions. According to the bar’s data, requiring a minimum passing score of 1440 means that a California examinee must score in the top 26% in the nation in order to get licensed in California.

Comparatively, the national mean passing score of 1350 requires scoring better than 50% of all examinees.

Under what legal or public policy rationale can anyone argue that requiring a minimum passing score in the top 26% of all examinees is a fair measure of “the minimum competency for the first-year practice of law,”the legal

standard that is supposed to be used for scoring the bar exam.

The “human cost” of this cut score disparity is reflected in recently released California bar exam statistics. From 2011-2018 more than 7,400 competent law school graduates who scored above the national standard of 1350—almost 1,000 per year—were denied licensure in California solely because of the arbitrary use of 1440 as the California cut score.

Finally, let me address the first most common response that I get from currently licensed California lawyers and judges... “I passed at 1440, so why shouldn’t everyone else have to as well?”

I’ll again let the data speak for itself...

The California bar is 85% white, 65% male with an average age of 51. The diversity of the bar has changed very little over the past 20 years. It does not reflect the communities

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that we serve as officers of the court or the demographic and socioeconomic richness of California. The majority of California bar examinees are now minorities (52% in February 2019), so the problem is not in the diversity of successful law school graduates. The problem is that using a standardized test along with an unvalidated artificially high passing score has a disparate impact on minorities... as indicated by the State Bar’s own statistics. It perpetuates the same type of barriers to entry into the legal profession that have been repeatedly struck down as unconstitutional in most other licensed professions.

The California Constitution prohibits the use of a preemployment state licensing exam

that has a disparate impact on the basis of race, gender, or age.

Recently released State Bar statistics reflect that by using the national standard of 1350, the number of successful white examinees since 2011 would have increased by 12.6%, but the number of successful minority examinees would have increased by 20.0%. If the diversity of the bench and bar is a priority, why are we not challenging the continued use of an unvalidated scoring system that systematically bars competent minority candidates from licensure?

At the end of this month another cohort of successful law school graduates will sit for the California bar exam. Before we unjustly deny licensure to another 1,000 qualified law school graduates,

the California Supreme Court should take the necessary steps to adjust the minimum passing score for the California bar exam from 1440 to the national mean passing score of 1350.

Mitchel L. Winick is President and Dean of a non-profit, California accredited, law school system that includes Monterey College of Law, San Luis Obispo College of Law, and Kern County College of Law. He is the former chair of the State Bar Law School Council and a former member of the Committee of Bar Examiners Rules Advisory Committee.

Dean Winick invites comments to this article in the comments section, or you may email him personally at mwinick@ montereylaw.edu.

SEPTEMBER/OCTOBER 2019

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WANT TO QUIT DRINKING? DUMP YOUR FRIENDS

by H. Dennis Beaver, Attorney At Law

“Dennis, I’ve read your column since it first appeared in my town’s newspaper, over twenty years ago. In one of your articles, the person interviewed made so much sense about why alcoholics must get away from their drinking friends.

“My husband read that article, followed the advice and quit drinking. Now our adult son has become or is becoming an alcoholic, constantly out with his drinking buddies, making us terrified that we will get a call from the Police that he was arrested, or killed in an auto accident.

“Please, could you revisit this subject, for our son? He reads your column, and if he’s is like his dad, it will help him as well.

Thanks, Elaine.”

There is only one possible response to that kind of request: We located “Dr. Ken.” As an Educational Psychologist, he strives to keep kids in school and has been a member of Alcoholics Anonymous for 34 years.

Alcohol—a Key Part of Their Social Scene “One of the difficulties in giving up alcohol is that for many people it is a key part of their world,” he explained. “It’s often central to their social circle, cultural and family history.

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“So, drinking is deeply ingrained, the alcoholic seeing it as normal.

But alcoholics generally do not know when to quit. They will continue to drink until drunk, pass out, black out or run out of money.

“Worse yet, giving up drinking seems like an impossibility. ‘How can I be with family and friends, with the people I deal, without alcohol being part of it?’ That’s the first hurdle to overcome— understanding what ties them to alcohol.

Do You Really Want to Stop the Cycle Of Madness and Insanity?

“To stop the cycle of life destroying madness and the insanity that alcoholism is, then Elaine’s son must give up a lot of his old life. He has to be able to say; I’ve got to find something new.

“This can be accomplished by establishing new relationships with people in Alcoholics Anonymous, also through church, school—simply being around people who don’t drink.

“At AA meetings we hear so often, ‘All the people I was such good friends with? When I stopped drinking they stopped calling!

They weren’t there to say, “Gee, what happened to you?’

“However, your new circle of friends in AA are always concerned about you. You realize that here is a different kind of friendship, because a friendship based on a mutual dependence

on alcohol is not friendship.

“Dennis, to the alcoholics who read your article, if you want proof that your drinking friends are not friends at all, just try this: Go out with them and have no money.

Just see how long that social contact lasts!

Jail Makes Sense—Especially for Younger People Dr. Ken points out that younger people face a greater challenge, because: • Drugs are often involved.

• They have a much stronger connection to “friends” than older folks; • They are in continuous electronic contact; • Drug use tends to be more communal, while many alcoholics become isolated.

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“A few days in jail can make sense, especially with young people—say, a first time DUI. The benefit of spending time behind bars is a clear message: ‘If you don’t stop now, these negative consequences only get worse.’

“When younger people spend those couple of weekends in jail they have an easier time in quitting. Sadly, for some reason, older people can’t seem to do that, rationalizing, ‘I will be more careful, next time I drive.’

Grow Up, Deal With Life as It Is “The challenge facing every alcoholic is learning to grow up and deal with life as it is—not covering up feelings and pain with alcohol.

“At 36 years of age I couldn’t go on. My second marriage was failing. I lost every job I had. My wife said that she was going to leave me. I was afraid to be alone and so, in desperation, I made a deal. “If I go to AA will you stay?” I asked my wife. She said yes!

“I didn’t think I could get sober. I thought that I must be insane, that I was the only one like this. So, I went to an AA meeting to get the heat off at the moment. I found people just like me and they had gotten better! And it worked right away!

“I remember that night I promised to do whatever they told me to do. That was in 1980. There has never been a relapse. If I am able to stay sober until tomorrow, that makes 34 years.

“It’s one day at a time. You are never cured.”

Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be emailed to Lagombeaver1@gmail.com or faxed to (661) 323-7993.

KCBA SECTION LEADERSHIP CRIMINAL DEFENSE SECTION Elliott Magnus, President Mai Shawwa, Vice President Timothy Hennessy, Treasurer Emily de Leon, Secretary ESTATE PLANNING AND PROBATE Anton H. Labrentz, President Joshua G. Wilson, Vice President Anton H. Labrentz, Treasurer Stevie Jo McDonald, Secretary WOMEN LAWYERS SECTION Stephanie Gutcher, President Tara Deal, Vice President Mayra Estrada, Treasurer Julia Vlahos, Secretary Leanne Wilder, Stephanie Bouey, Alisyn Palla, Vanessa Sanchez, Emily Stearwalt MULTI-CULTURAL BAR ALLIANCE Pinky Ghuman, Co-Chairs Claudia Lopez, Secretary Esther Schlareth, Treasurer Marcos Rodriguez, Past Chair Yinka Glover, Board Member YOUNG LAWYERS SECTION Hunter Starr, Chair Sam Van Eerden, Vice Chair Alekxia Torres-Stallings, Immediate Past Chair IN-HOUSE COUNSEL Nicholas Ashley, President Melissa Frank, Vice President Michael Abril, Treasurer Alyssa Reed, Secretary FAMILY LAW SECTION Jeremy Swanson, President Jeffrey Travis, Vice President Edward Thomas, Treasurer Anthony Azemika, Secretary Board Members Nicholas P. Azemika, Stephanie Childers, Keith Cramer, Diana Christian

SEPTEMBER/OCTOBER 2019

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TACOS AND TEQUILA TUESDAY

RES IPSA LOQUITUR