Our mission is to promote professional excellence, camaraderie, philanthropy, and community outreach.
NORTH COUNTY LAWYER
CONTENTS
2025 Q1
2025 SUSTAINING MEMBERS
To be a "Gold" or "Silver" Sustaining Member, a member pays the regular dues for the appropriate category, plus an additional $500 or $200 per year. Members are recognized in each North County Lawyer Magazine publishing and on the bar's web page.
5 Editor's Letter
Caron Calabrese, Esq
6 President's Perspective
Suzanne Skolnick, Esq.
8 Women’s History Month 2025
Larry Campitiello, Esq
Edward Burns, James Bush, Darwin Bustarde, Paul Camp, Howard Franco, Michael Friedrichs, Thomas Grimes, Robert Jackson, Michael Klein, Daniel Martin, Jodi Schnoebelen, Debra Streeter
Gold Silver
Lesly Adams, Erica Bloom, Melissa Bustarde, Amber Crothall, Susanne De La Flor, Carline Fonseca, Rich Gaines, Russell Kohn, David Larkin, Gregory Lievers, Sue Loftin, Reid Kelly, Jacqueline Skay, Joseph Stine, Nicole Varela, Herbert Weston, Tanya Weston
Caron Calabrese, Esq., Editor
Camden Retzlaff, Executive Director
Editorial Committee:
Lesly J Adams, Esq , Darwin Bustarde, Esq , Ruth Marvin Webster, Esq., Bill Kamenjarin, Esq., Larry Campitiello , Esq., and Stephanie S. Germani, Esq.
The North County Lawyer Magazine is published quarterly by the North County Bar Association Subscriptions, articles, photos and advertising should be submitted to: North County Bar Association, P O Box 2381, Vista, CA 92085 or info@northcountybar.org, or (760) 758-5833. The subscription rate for non-members is $40 per year. Deadline for submissions is the 10th of the month prior to publication The North County Lawyer reserves the right to edit all submissions
12 A Lawyer’s Musings on Business Structure
Pamela J Brown-McGill, Esq
15 Breaking the Glass Gavel: Female Attorneys Reveal The Persistent Challenges of Gender Bias
Stephanie Germani, Esq
19 New California Employment Laws
Larry Campitiello, Esq.
22 Status of the California Bar Exam: Changes, Challenges, and Tales from the Test Room
Stephanie Germani, Esq.
28 2025 Installation Dinner
30 Civil Law Update - Part 1
Wayne Templin, Esq
36 Volunteers Needed! For Youth in Court and On My Honor
Irene Stewart, Esq
38 2024 Holiday Party photos
41 In Memoriam: David Thompson
E D I T O R ' S
L E T T E R
Caron Calabrese, Editor
(858) 598-5552
caron@cawoodwardlaw.com
I arrived at the San Diego Civic Center just a tad early, a feat for me in 2006. I felt wellprepared for the bar exam, despite my doubts at having forgone any prep classes. I was joined by seemingly thousands of fellow testtakers, and the anxiety was palpable. I went to the ladies’ room to ensure there would be no interruption in the first session, and there I found the true snapshot of taking the bar in California. I saw women crying, I saw women throwing up, and I saw women sitting on the floor meditating. I saw strangers hugging and providing words of comfort and encouragement. At the time, I thought the public displays of fear, nerves, and affection were dramatic Now, I see it as something different - this special comaraderie between women that silently acknowledges our unique challenges and provides support to stay strong and make it through
This memory ties into two themes of this issue: The current status of the CA Bar Exam, including some fun stories of our members’ test-taking experiences, and the history of Women’s History Month, with special input from Judge Kelly Mertsoc and Judge Cynthia Freeland. Breaking the Glass Gavel explores how far (or not far) we have come in treating women in the profession. (I challenge you to find a female attorney who has not been mistaken for the court reporter)
As the first issue of 2025, we have updates on Employment Law, Civil Law, and considerations for forming a legal entity We also say goodbye to colleague David Thompson, with some fond memories.
The 2024 holiday party season is now well in our rear-view mirrors as we jump into the work of 2025 with both feet The North County Bar Association Board of Directors held our annual “retreat” in January shortly after the Installation Dinner Although the term “retreat” conjures up images of relaxing on a chaise lounge in a tropical oasis watching the clouds float by, our NCBA retreat is a time for working. Your Board of Directors reviewed budgets, made planning decisions, and divided members into committees to conquer the year ’ s tasks ahead. Of course, a significant part of the NCBA’s planning for 2025 included developing new events for our members to enjoy when they are not hard at work, as well as bringing back fan favorites from prior years
Last year we had a great turnout for our first Paint and Sip event held in Oceanside This year, we are bringing back the Paint and Sip event in a new North County location in Solana Beach, proving that Solana Beach is also a part of North County! The mass appeal of pickleball has made its way to the NCBA and your Board of Directors is currently organizing our very first summertime pickleball tournament
Our annual Golf Tournament will also be returning later this year, with opportunities to promote your business and support the NCBA by sponsoring one of the golf holes All the NCBA’s upcoming events can be accessed on our website at: https://www.northcountybar.org/?pg=events.
For those members looking to get involved with the organization in other ways, please consider signing up to be a volunteer at our community outreach events “Youth in Court” and “On My Honor” which will be returning to the Vista Courthouse on March 7th. There are many roles in these programs to be filled for 2025. Donating your time and expertise to these vital programs is a rich and rewarding experience Please contact Irene Stewart to sign up at: istewart@istewartlaw.com
I look forward to meeting more of our membership throughout the year and I welcome your suggestions on ways to improve membership engagement and strengthen the community we have built through the North County Bar Association 2025 is off to a great start!
Suzanne Skolnick 2025 NCBA President
WOMEN’S HISTORY MONTH 2025
By: Larry Campitiello, Esq
Women's History Monthis an international annual observanceto highlight thecontributions of women to events in historyand contemporary society. In the United States, Women's History Month traces its beginnings back to the first International Women's Day in 1911 It is celebrated during Marchto correspond withInternational Women's Dayon March 8.
The month-long recognition of women’s accomplishments was triggered by a march conducted on March 8, 1969 in Berkeley, California The march was organized to bring attention to International Women's Day which had been largely forgotten in the United States before then The march led to the creation of The Women's History Research Center, a central archive of the women's movement from 1968 to 1974. The Women's History Research Center collected nearly one million documents on microfilm and provided resources and records of the women's liberation movement that are now available through the National Women's History Alliance
The National Women’s History Alliance (“NWHA”) is an educational nonprofit organization whose mission is to recognize and celebrate the diverse and historic accomplishments of women by providing information and educational materials and programs. In 1980, the NWHA observed that only a small percentage of the content in history texts was devoted to the accomplishments of women As a result, many girls, boys, and adults assumed that women contributed little to the history of our country To address that misconception, the NWHA convinced Congress and the White House of the need for our nation to celebrate and recognize women’s role in history on an annual basis. In 1987 the NWHA successfully petitioned Congress to declare March as Women's History Month.
The NWHA explains its mission this way:
The impact of women ’ s history might seem abstract to some, and less pressing than the immediate struggles of working women today But to ignore the vital role that women ’ s dreams and accomplishments play in our own lives would be a great mistake. We draw strength and inspiration from those who came before us – and those remarkable women working among us today. They are part of our story, and a truly balanced and inclusive history recognizes how important women have always been in American society
Each year since 1987 the NWHA has established a theme for Women’s History Month. The theme for 2025 is "Moving Forward Together! Women Educating & Inspiring Generations." The theme celebrates the collective strength, equality, and influence of women who have dedicated their lives to education, mentorship, and leadership, shaping the minds and futures of all generations Education has always been a powerful catalyst for change, and women have been at the forefront, driving this transformation From classrooms to boardrooms, and from grassroots movements to global initiatives, women educators and leaders have played a pivotal role in nurturing minds and inspiring action. This theme underscores the importance of acknowledging and celebrating those contributions, especially at a time when inclusive and equitable education is more critical than ever
Female mentors and educators have had a significant impact in all aspects of society, including right here in our local legal community. Judge Kelly Mertsoc credits her mother for instilling her with a strong work ethic and the confidence to take on leadership roles. “My mom was an educator, beginning her career as a reading specialist and teaching English as a second language She attended night school to earn a master’s degree, and she became a beloved middle school principal My mother always volunteered to take leadership roles in anything in which she was involved. Her commitment to being a lifelong educator in all roles, and her compassion and unwavering support for those around her, makes my mom one of the most inspiring individuals I have ever met.”
Drawing on her mother’s inspiration, for the past 12 years Judge Mertsoc has been the Head Adult Director of a week-long summer camp through the 4-H program, traditionally the largest 4-H camp in California She describes how the position has given her an amazing opportunity to work with hundreds of teens, teaching them leadership skills and inspiring them to have an impact on their community “It has been my great pleasure to watch youth grow from young campers to teenage staff, taking on leadership positions in which they are responsible to plan, execute and run the camp week. Many of the teenagers come back to camp as adult leaders to teach the next generation ”
Judge Mertsoc also acknowledges the role other female attorneys have played in her career.
“I have had the great pleasure of meeting and being mentored by some of the first North County female attorneys. These wonderful pioneers were always gracious supporters and, in turn, have inspired their mentees to ‘pass it on’ to new generations of female colleagues. Our bar is strong in female leadership, mentorship and camaraderie.We are fortunate to have had these trailblazers, and their stories will continue to inspire many female lawyers in the future.”
Judge Kelly Mertsoc
Judge Cynthia Freeland also recognizes how she was inspired by a local female attorney. “Abby Silverman Weiss, a San Diego attorney, arbitrator, mediator, mentor, mother, and friend embodies the National Women’s History Alliance’s 2025 theme as she has dedicated her life to educating women on how to navigate through a world in which obstacles to forward advancement remain ever present. Abby came to the law as a second career after working as a social worker and raising three children. Abby was admitted to the California Bar in 1979, a time when law firms were comprised of more men than women and when new associates were almost half of Abby’s age As Abby stood poised to enter the legal profession, she had to navigate and overcome societal misconceptions about ‘older’ women in the workforce, which she did with aplomb ”
Judge Freeland describes how Ms Silverman Weiss rose through the ranks at Baker & McKenzie despite the obstacles in her path. “She became an international (equity) partner, and she played in an instrumental role in the management and success of the San Diego office of Baker & McKenzie
During her career with Baker & McKenzie, she was the recipient of several community awards including, but not limited to, the Coalition of Reproductive Choice’s 2013 Defender of Choice Award, the 2000 University of San Diego School of Law Distinguished Alumni Award, the 2000 Tribute to Women in Industry Award, the 2000 Individual Pinnacle Award from UCSD Athena, the 1994 Faye Stender Award from the California Women Lawyers, and the 1992 Recipient of the Community Achievement Award from Lawyers Club.”
“As a young associate at Baker & McKenzie, I had the privilege of working for Abby, although she created an atmosphere in which it more often felt as if I was working with her. Abby, through the way she led her personal life and conducted her professional life, taught me as well as other young female associates that we were capable of achieving great things through perseverance, a commitment to excellence, and a little chutzpah Abby was fiercely protective of those of us in her group, yet she gave us the freedom to take on assignments and roles that would allow us to grow personally and professionally. Abby taught me that the only limits to my growth were those limits that I placed on myself, and she taught me that the only reason to listen to naysayers was to learn what type of people to avoid. Abby continues to be an example of how to live a life of service, how to live a life filled with family and friends, and how to live a life dedicated to the advancement of women in law and society ”
Judge Cynthia Freeland
In an interview with San Diego Super Lawyers magazine in 2021, Ms Silverman Weiss was quoted as saying, “There are still pockets of misogyny We can’t declare victory until we figure out how – either with laws or education or good examples – to get rid of those pockets.” In recognizing the inspiration she has drawn from her colleague, Judge Freeland proudly proclaims, “I, for one, am so grateful that Abby continues her fight to educate and lead by example, and I am so proud to have Abby as a mentor and a friend ”
Judge Freeland also acknowledges the many other examples of female leadership in the San Diego legal community. “In recent times, we have had the distinction of having women hold the positions of United States Attorney, District Attorney, and City Attorney simultaneously. The Chief Justice of the California Supreme Court, the Administrative Presiding Justice of the 4th District Court of Appeal, and the Presiding Judge of the San Diego Superior Court are all women Additionally, the Honorable Cynthia Bashant just recently assumed the position of Chief Judge for United States District Court for the Southern District of California These examples are precisely what Abby Silverman Weiss contemplated as effective tools against pockets of misogyny that continue to exist, and they reflect the progress women continue to make in the legal profession ”
Judge Freeland credits the Lawyers Club of San Diego for its role in promoting the advancement of women in the legal profession “The mission of Lawyers Club of San Diego is to advance the status of women in law and society. It is an organization that offers inspirational and educational opportunities to women in the law, and it serves as a community of supportive colleagues who remain committed to ensuring that women play a starring role in the future of our profession.”
So, as we prepare to celebrate Women’s History Month in 2025, we should all recognize and appreciate the contributions women have made to society and the impact they have had in our personal
ALawyer’sMusingsonBusinessStructures
By:PamelaJ.Brown-McGill,Esq.
Like many of you, I woke up on January 1, 2025, wondering, "What will be different this year?"
Now, I won’t pretend that this was my first thought upon waking (thankfully, I do have somewhat of a life), but somewhere between my first coffee and my second existential crisis of the morning, my mind drifted to my solo practice
The question that has lingered over the years resurfaced: Should I finally form a corporation, or should I continue operating under my own name as a sole practitioner?
If I were to listen to my accountant (and let’s face it, I probably should), the answer would be a resounding "YES form the corporation
truth is that I barely know how to run a business (seriously, does anyone have a P&L statement I can plagiarize?), let alone navigate the nuances of corporate formation Like many bright-eyed law school grads, I assumed my career would consist mostly of “lawyering.” Little did I realize that running a solo practice means wearing all the hats: receptionist, bookkeeper, IT specialist, office administrator, secretary, paralegal, and if I’m lucky attorney for about an hour a day. Who would’ve thought?
The Great Business Entity Debate
Thrown into the deep end of solo practice with zero formal business training, I did what any self-respecting lawyer would do I researched. Not the fun kind (like finding the best happy hour deals for networking events), but the kind that determines how to structure a business
As it turns out, there are several business structures available: sole proprietorships, general partnerships, limited liability companies (LLCs), corporations and the list really does go on Naturally, my first instinct was to form an LLC Why not? An LLC provides liability protection (covering business debts, liabilities and even personal liability for lawsuit damages not that I’m expecting any lawsuits,
against me that is just saying) and is relatively easy to set up However, I soon discovered an inconvenient truth: LLCs are not an option for attorneys in California.
But What About a Regular Corporation?
Next, I considered a standard corporation. While it comes with its fair share of formalities such as articles of incorporation, bylaws, and the all-important rule of not treating the corporate bank account as a personal piggy bank corporate structures do offer tax benefits, particularly if one elects S-Corp or CCorp status.
Alas, yet another roadblock Attorneys in California can’t operate as a traditional corporation either. So, what’s an enterprising lawyer to do?
Enter the APC: The Attorney’s Only Option
California law (Corporations Code section 17701.04(e), for those who enjoy legal citations) explicitly prohibits attorneys from forming LLCs Instead, our one and only corporate structure option is the Professional Corporation (APC).
For the legally curious, Corporations Code sections 13401 and 13401 3 define “professional services” as services that require a license, registration, or certification meaning attorneys, doctors, and other professionals must form professional corporations if they want corporate status. Unlike some states where attorneys can form a Professional Limited Liability Company (PLLC), California is firm on this restriction.
The Pros and Cons of an APC
So, after bemoaning the fact that I couldn't just opt for a simple LLC, I have to admit "Professional Corporation" does have a nice ring to it. A title quite befitting someone who owes another mortgage in student loans and wishes she could protect her meager assets from the student loan police (but, I digress -totally different article). Let’s just say it sounds, well, professional that’s the word I was going for More importantly and on a somewhat serious note, it offers benefits like liability protection and tax advantages (hello, potential S-Corp election) Of course, it also comes with added administrative burdens, such as corporate meeting minutes, maintaining separate accounts, and ensuring compliance with professional responsibility rules
If you ’ re still operating as a sole proprietor, consider this your friendly nudge to start thinking about your options And if you need moral support while navigating the corporate formation process, I’ll be over here, drowning in paperwork but doing it with the liability protections of an APC
Ultimately, my accountant won the argument (as he often does), and I’m officially on the path to forming my APC And since I know I’m not the only attorney out there wading through the murky waters of business structures, I figured I’d share my journey with you
Here’s to 2025: new beginnings, new business structures, and maybe just maybe finally understanding how to read a P&L statement
Next in Series: “Where Did ALL of this Paperwork come from ” Stay tuned
Pamela Brown-McGill rose from legal secretary to practice owner She helps self-represented litigants through workshops and webinars Her practice covers bankruptcy and estate planning. She can be reached at pbrownmcgill@pbmlawoffices.com
BREAKING THE GLASS GAVEL
Female Attorneys Reveal the Persistent Challenges of Gender Bias
By Stephanie S. Germani, Esq.
The legal profession has come a long way in terms of gender equality, but discrimination against female attorneys persists in subtle and not-so-subtle ways. From the days when women were barred from entering certain restaurants before 3 pm, to the present where we still face discrimination in various forms, our resilience has been tested time and again. Yet, we persist.
As a female litigator myself, I’ve experienced firsthand how women in law are still fighting an uphill battle for respect and equal treatment, and I’m not alone Many of us have being mistaken for anyone but the attorney, even when our names are on the door. We’ve been subjected to inappropriate comments, unfair compensation, and blatant disrespect.
One colleague recounted being physically cornered in a conference room by an opposing male counselor, who yelled in her face about alleged unprofessional behavior. Another shared how she was fired for complaining about unfair compensation when she was paid less than her male colleagues.
Attorney Jessica N Marshall shared a story that exemplifies the casual sexism many women face: “I was waiting for a deposition to start in my office conference room. The defense counsel saw me but didn’t enter. When I asked why, he said he didn’t want to be with my client without his attorney present I had to inform him that I was the attorney” She added, “He didn’t apologize for the mistake.”
This type of assumption - that a woman couldn’t possibly be the lawyer in charge - is frustratingly common As attorney Kane Handel put it, “I can’t
tell you how often the phone rings and people ask for Mr. Handel. I say ‘This is Mr. Handel’ which alwaysgetsthem.”
Some encounters go beyond mere assumptions to outright hostility. Attorney Cassandra C. Thorson recounted a harrowing experience during a deposition: “The defense counsel cornered me in a small conference room and started yelling down into my face about how unprofessional I was. I was truly scared and only escaped by slipping around the table and running out.” She said took a few minutes to regroup, and “then we finished the depoandkickedhisassattrial.”
While these aggressive tactics are meant to intimidate, many women, including Ms. Marshall, have developed strategies to stand their ground. “I’ve learned to stay calm and state my points,” Ms. Marshall said. “I now have a binder for anticipated arguments at deposition. It’s full of code and case law on deposition topics to counter attorneys that incorrectlycitethelaw.”
Attorney Rebecca D. Lack Marvin demonstrated her resilience in a case against Lloyd’s of London. “There were two male (of course) attorneys from WestCovinarepresentingthedefendant,”Attorney Lack Marvin said. “Every time I filed a motion, one of them would call me screaming at me that if I didn't immediately withdraw my motion, he would seek sanctions against me and my client. Every time.” Despite the intimidation tactics, Attorney Lack Marvin persevered and won every motion she filed.Intheend,notonlydidtheopposingcounsel fail to secure any sanctions, but the court awarded her$10,000indiscoverysanctionsagainstthem.
“Look them dead in the eye and say, ‘I am the attorney. Who did you think I was? Why did you think that?’”
Sometimes,awell-timedquipcandefusetension and reassert control. Attorney Suzanne Mindlin described shutting down an overly aggressive opposing counsel by simply asking, “Hey man, are you ok? You seem wound kind of tight today.”
Attorney Mindlin reported that the opposing counsellookedlikehe’dbeenkickedinthegutand thecourtreportergaveherathumbsup.
As for me, I’ve had my fair share of encounters. Early in my career, one male attorney called me and my client “dirtbags” in an email. Another refused to shake my outstretched hand in the courthouse hallway before Imoppedthefloor with himincourt.
And it’s not just opposing counsel who can be problematic. Attorney Handel shared that when she first started practicing in the late 1980s, her male bosses “told me I was not allowed to wear pantstowork,ever.”
This kind of thinking wasn’t left in the last millennium.In2015,ajudgeinLosAngelesaskeda
female attorney why she was wearing a pantsuit instead of a skirt.Herresponse?“Ohsorry,judge,allmyskirtsareatthedry cleaners.” She then made sure to wear a pantsuit every time she appearedinhiscourt.
These experiences are not isolated incidents. They represent a systemic issue that continues to plague our profession. However,it’scrucialtorecognizethatthesechallengeshavenot defeated us. Instead, they have forged us into stronger, more determinedadvocates.
The path forward requires continued vigilance and a refusal to accept discriminatory treatment. As one seasoned litigator advised, “Don't make THEM feel more comfortable by joking. This isn’t funny. Look them dead in the eye and say, ‘I am the attorney.WhodidyouthinkIwas?Whydidyouthinkthat?’”
While these stories paint a discouraging picture, there is hope and progress. Attorney Emily Ruby shared an inspiring account of trying a major case that resulted in a $7,385,000 verdictforherclientjustfourmonthsaftergivingbirth:“Myson wasjustfourmonthsoldwhenwestartedtrial,andI’mproudto say that I breastfed and pumped for the entire five-week trial.” She credits becoming a mother with giving her “a new confidence, and allowed me to connect with my client and the jurorsonanewlevel.”
And it was experiences like these that led to the formation of LawyersClubofSanDiegoin1972.Agroupofwomenattorneys, recognizing the need for mutual support and advocacy, came together to create an organization that would fight for equality in the legal profession. As one of the founders, Hon. Janet Ide Kinter,wrotein2000,“Werealizedwecouldbemoreeffectiveas anorganizationthanwehadbeenasindividuals.”
ButbeforeLawyersClubcametofruition,therewasthebattle of Grant’s Grill. It’s the 1960s, and San Diego’s power brokers are enjoying their three-martini lunches at this bastion of masculinity.Women?Notalloweduntil3p.m.becausenothing
California’s attorney demographics show a gradual shift away from male dominance in the legal field: Male attorneys dropped from 57% in 2019 to 55% in 2023, while female representation grew to 44% and nonbinary attorneys reached 1% White men, still the largest demographic group at 39% of attorneys, have seen their share decrease alongside white women. The trend aligns with increased diversity: 33% of newly admitted attorneys in 2023 were women of color, outpacing men of color (21%).
This shift reflects broader generational changes and efforts to improve equity in law schools and hiring practices.
Stats from California Bar and Bloomberg News
says “equality” like being permitted to enter a restaurant after the men have finished their importantbusinessoftheday.
It took a group of gutsy women, attorneys Judy McConnell, Lynn Schenk, and Elaine Alexander, to stage a sit-in and finally break the “men only” barrier in 1971. I can only imagine the conversation:
“Excuse me, miss, but women aren’t allowed in hereuntil3p.m.”
“Oh,Ididn’trealizemyovarieshadacurfew.”
The fight is far from over, but with each small victory, we move closer to a level playing field and it’s crucial to recognize that these challenges have not defeated us. Instead, they have forged us into stronger,moredeterminedadvocates.
Attorney Andrea M. Nichols articulated this beautifully:“Wehaveauniqueopportunitytowork with the trailblazers who have set the path for us and to work and train our newer female attorneys. We have our own unique brilliance in our femininityandithaspowerinit.”
This perspective goes beyond mere optimism. It represents a nuanced understanding that women’s experiences in law are not just about surviving discrimination, but about transforming the profession through their distinctive approaches, empathy, and resilience. By embracing their authenticselvesratherthanmimickingmasculine
professional stereotypes, these attorneys are quietly but powerfully reshaping the legal landscape.
To the young women entering this profession, I say this: You are standing on the shoulders of giants. Women who fought for the right to practice law, to wear pants in the courtroom, to be addressedas“counselor”insteadof“honey.”Honor their legacybycontinuing to push boundaries and challengethestatusquo.
Toourmalecolleagues,weaskforyourallyship.
Recognize the unconscious biases that may influence your actions and work actively to counteract them. Your support can make a significant difference in creating a more equitable legal landscape and there are many examplesparticularly in San Diego County – of male attorneys who consistently demonstrate professional respect and collegiality in and out of thecourtroom.
IntheimmortalwordsofClaraShortridgeFoltz, California’s first female lawyer: “They called me the lady lawyer. A dainty soubriquet that enabled me to maintain a dainty manner as I browbeat my way through the marshes of ignorance and prejudice.”
Today, we continue to navigate these marshes, not with daintiness, but with determination, skill, andanunwaveringcommitmenttojustice.
Stephanie S. Germani, Esq., a former journalist turned landlord-tenant litigator, has yet to face another female attorney in court, underscoring the ongoing gender disparity She extends gratitude to all the attorneys who contributed their stories and insight.
NEW CALIFORNIA EMPLOYMENT LAWS
By: Larry Campitiello, Esq.
The California legislature enacted a wide array of labor and employment laws in the 2024 legislative session. Discussed below are some of the more notable bills signed into law by Gov. Gavin Newsom that became effective on Jan. 1, 2025.
A Ban on Mandatory EmployerSponsored Meetings
Captive audience meetings are mandatory meetings held by employers to discourage employees from unionizing. Senate Bill 399, known as the California Worker Freedom from Employer Intimidation Act, generally prohibits an employer from discriminating or retaliating against an employee who declines to attend a captive audience meeting where the purpose of the meeting is to communicate the employer’s opinion about religious or political matters The bill requires that employers pay employees who refuse to attend and who work during the meeting
The bill defines “political matters” as matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization. “Religious matters” are defined as matters relating to religious affiliation and practice, and the decision to join or support any religious organization or association
An employer who violates this law is subject to a civil penalty of $500 per employee for each violation The Labor Commissioner is authorized to enforce the law, including conducting investigations into any alleged violations It is likely that opponents of this law will challenge its enforceability on the ground that it is pre-empted by the federal National Labor Relations Act
Discrimination
Intersectionality of characteristics is now enshrined in the California Fair Employment and Housing Act (“FEHA”).Senate Bill 1137 clarifies that protected characteristics under FEHA include any combination of otherwise protected characteristics, as well as the perception that a person has one or more such characteristics. This bill is declaratory of existing law and simply enshrines the intersectionality concept in FEHA.
Assembly Bill 1815, known as the CROWN (Creating a Respectful and Open World for Natural Hair) Act defines “race’ to include traits associated with race, including but not limited to, hair texture and hairstyles. The legislation was amended to remove the phrase “historically associated with race” from the coverage definition. This change may impact employers’ dress code and grooming policies, so a review of employee handbooks and policies may be in order
Senate Bill 1100amends FEHA to prohibit employers from including a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless the employer “reasonably” anticipates driving to be an essential job function that cannot be comparably performed by alternative means. A review of job descriptions across the board may be in order for 2025.
Workers’ Compensation
Assembly Bill 1870 expands what is required on workers’ compensation posters, including a new requirement to disclose the right of employees to consult with an attorney. Failure to properly post and maintain the notice constitutes a misdemeanor and “shall be prima facie evidence” of noninsurance by the employer.
Expanded Protections for Use of Paid Sick Leave and Paid Family Leave
Assembly Bill 2499 amends FEHA to allow leave when an employee or an employee’s family member is a victim of an act of violence, and it expands the reasons an employee can use paid sick leave for “safe” time purposes. This law requires employers to provide reasonable accommodations for an employee, such as implementing safety measures, when an employee or an employee’s family member is a victim of an act of violence
Specifically, the bill does away with the “crime or abuse” language and instead refers to “qualifying acts of violence ” A qualifying act of violence is defined as any of the following, regardless of whether anyone is arrested for, prosecuted for, or convicted of committing a crime: domestic violence; sexual assault; stalking; or an act, conduct, or pattern of conduct where an individual causes bodily injury or death to another; exhibits, draws, brandishes, or uses a firearm, or other dangerous weapon, with respect to another individual, or in which an individual uses, or makes a reasonably perceived or actual threat to use, force against another to cause physical injury or death.
AB 2499 requires that employers with twenty-five (25) or more employees provide job-protected, unpaid time off for employees to:
Obtain or attempt to obtain relief for a family member, including a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of a family member of the victim;
Seek, obtain, or assist a family member to seek or obtain medical attention for or to recover from injuries caused by a qualifying act of violence;
Seek, obtain, or assist a family member to seek or obtain services from a domestic violence shelter or program, rape crisis center, or victim services organization or agency as a result of a qualifying act of violence;
Seek, obtain, or assist a family member to seek or obtain psychological counseling or mental health services related to an experience of a qualifying act of violence; Participate in safety planning or take other actions to increase safety from future qualifying acts of violence;
Relocate or engage in the process of securing a new residence due to a qualifying act of violence, including, but not limited to, securing temporary or permanent housing or enrolling children in a new school or childcare;
Provide care to a family member who is recovering from injuries caused by a qualifying act of violence;
Seek, obtain, or assist a family member to seek or obtain civil or criminal legal services in relation to a qualifying act of violence;
Prepare for, participate in, or attend any civil, administrative, or criminal legal proceeding related to a qualifying act of violence; or
Seek, obtain, or provide childcare or care to a caredependent adult if the childcare or care is necessary to ensure the safety of the child or dependent adult as a result of a qualifying act of violence
An employer may limit the total leave time taken by an employee who is a victim of a qualifying act of violence to twelve (12) weeks However, if an employee’s family member is a victim who is not deceased as a result of a crime and the employee is not a victim, the employer may limit the leave taken for the purpose of relocation or securing temporary housing to five (5) days If an employee’s family member is a victim who is not deceased as a result of a crime and the employee is not a victim, the employer may limit the total leave taken for any other covered reason to ten (10) days Leave taken under AB2499 runs concurrently with leave taken under the Family and Medical Leave Act and/or the California Family Rights Act, assuming the employee also qualifies for leave under one of those statutes
Assembly Bill 2123 removes the provision that allowed employers to require employees to use two weeks of vacation prior to using paid family leave insurance benefits. Again, a review of employee handbooks and policies may be in order.
Senate Bill 1090 allows employees to file a claim for State Disability Insurance and Paid Family Leave benefits up to 30 days in advance of the first compensable day for benefits. Accordingly, the amendment allows workers to apply before anticipated leave rather than completing the process after they have begun leave.
Whistleblower Protections
Assembly Bill 2299 enacts changes to the California Whistleblower Protection Act, requiring employers to prominently display a list of employees’ rights and responsibilities under the state’s whistleblower laws, including the telephone number of the whistleblower hotline The notice must be displayed in lettering larger than size 14-point type This amendment requires the labor commissioner to develop a model list of employees’ rights and responsibilities, accessible on the labor commissioner’s website, which must be included in the employer’s posting
Assembly Bill 2455 expands whistleblower protections to reports of “improper governmental activity” undertaken by contractors providing services to local governments. Previously, the standard of reporting was based on “fraud, waste or abuse,” so the new legislation opens up a wide array of additional types of reports depending on what may be deemed to constitute improper governmental activity.
Independent Contractors
Senate Bill 988 creates the Freelance Worker Protection Act (“FWPA”) to impose minimum requirements for freelance contracts This bill requires a hiring entity to pay an independent contractor the compensation specified by the contract for professional services on or before the date specified in the contract If the contract between the hiring entity and the independent contractor does not specify a date, then the hiring entity must pay for services no later than thirty (30) days after completion of the contractor’s services This bill also requires that the contract be in writing and that the hiring entity retain the contract for no less than four (4) years. An aggrieved independent contractor can bring a civil action against the hiring entity to enforce their rights.
The California Bar Exam has long been considered one of the most challenging licensing tests in the United States As thousands of aspiring attorneys prepare to face this formidable challenge each year, we look back at the exam's history, recount some memorable moments, and examine recent trends in this rite of passage for legal professionals
A Brief History
The California Bar Exam has evolved significantly since its inception. In 1885, Massachusetts became the first state to implement a written bar exam, but it wasn't until 1927 that California officially established its State Bar and formalized its examination process. Over the decades, the exam has undergone numerous changes in format, duration, and content
Tales from the Test
Throughout its history, the California Bar Exam has seen its share of unusual events Perhaps most notably, during the July 1952 exam, a 7.5 magnitude earthquake struck Kern County, rattling testtakers in Los Angeles. Despite the tremors, the exam continued, with proctors instructing examinees to take cover under their desks before resuming the test.
Recent Trends
In recent years, the California Bar Exam has continued to challenge aspiring lawyers The February 2024 exam saw 3,944 applicants complete the General Bar Exam, with an overall pass rate of 33 9% This represents a slight increase from the February 2023 pass rate of 32 5% First-time test-takers fared better, with a 44.8% pass rate, while repeat applicants passed at a rate of 29.2%.
The number of examinees fluctuates between the February and July administrations, with July typically seeing higher numbers. In July 2023, 7,555 candidates took the exam, compared to the 3,944 in February 2024
As we delve into the personal stories of local attorneys who have conquered the California Bar Exam, we'll explore the challenges they faced, the strategies they employed, and the lessons they learned along the way From late-night study sessions to unexpected hurdles on exam day, these tales from the trenches offer insight and inspiration for future test-takers and a nostalgic look back for those who have already earned their stripes in the legal profession.
CONQUERING THE CALIFORNIA BAR: TALES FROM THE TRENCHES
2004, 2009, 2017 bar exams
THE BAR EXAM THROUGH THE DECADES
From Tracey Piepenbrink, Esq.
I took the CA State Bar three times in a span of 15 years and had three different experiences each time. The first time I took the CA Bar was in July 2004. Like a majority of candidates at the time, I hand wrote the exam. Unlike my classmates, however, I didn't have pressure to pass the Bar exam or I would be out of a job. I was working full time at a corporate in-house legal department negotiating contracts, so, taking the Bar was more of the "next steps" for me after law school and I really only did it because my classmates were doing it. Thus, I didn't have the pressures my friends did where they needed to pass the bar or else lose their current clerking jobs. I was pretty chill during my first Bar exam but handwriting was a pain, by the end of day 3, my fingers were swollen and callused from all that hand writing.
My second time taking the CA Bar 5 years later, it seemed like handwriting was out and taking it on your laptop was in. It did make a world of adifference to type the Bar exam rather than handwriting. I was able to immediately type out the elements of a valid trust as soon as I spotted the issue and then went back to re-read the fact pattern carefully to fill in the facts with the analysis. I felt good walking out of my second attempt at the Bar. When I got my results back I was so close I was upset. I was only 0.05 points away from passing! That's not even the legal limit of blood alcoholcontent! I was so upset by this that I didn't want to take the Bar ever again. I loved my career and my current job and didn't really need it.
The February 2024 California bar exam pass rate of 33.9% represents a slight increase from recent years but remains significantly lower than historical averages. Here's a comparison across decades:
Historical Trends
- 1920s-1950s: Pass rates often exceeded 70%
- 1960s-1970s: Pass rates typically ranged from 60-70%
- 1980s-1990s: Pass rates generally fell between 5060%
- 2000s-2010s: Pass rates declined further, often falling below 50%
- 2020s: Pass rates have hovered around 30-40% for February exams
My third and final time I took the CA Bar that I eventually provisionally passed was when my husband convinced me to just take it one more time and not do any studying or prep in 2017. This was yet another different experience where the CA Bar had recently changed from a 3day exam to a 2-day exam. The one day shorter definitely made it less tiring. I didn't pass out and take a 5-hour nap on the evening of day 3 like I did the other 3 times. This was the Bar that I eventually provisionally passed, but even this is another strange story for another day. The reason why I "provisionally" passed and not just straight forward passed is because this fell under the CA Bar Provisionally Licensed Lawyer Program. In a nutshell, this means that my score met the threshold to provisionally pass and I will fully pass after practicing under a supervised attorney for 300 hours.
I'm so grateful to my husband for talking me into taking that final Bar exam that I "passed."
From William Kamenjarin, Esq.
1. A story from San Diego
A friend of mine actually fell asleep taking the multi state exam during the afternoon session. She claimed she fell asleep because rather than her normal tuna sandwich, she had a turkey sandwich for lunch that day.
During the exam, she did eventually wake up, went to the restroom to douse herself with cold water, walked back to her seat and finished the multi state exam.
An example of grace under real pressure.
Even with the unexpected interruption, she passed the bar exam!
2. The Horror Story from Los Angeles
A husband and wife, UCLA graduates, took the bar exam. She passed, but he failed the exam.
For a next bar exam - the wife took the bar exam again - this time posing as her husband..
7 months pregnant and seriously ill, the wife cut her hair, dressed in men's clothes, had a bar identification photo taken, signed her husband's name and deliberately smudged her thumbprint.
Immediately after the exam, she was admitted to a hospital, where she fortunately gave birth to a premature healthy daughter.
But - she aka he then did far too well on the exam- and passed with the ninth highest score in the state.
An anonymous phone call, and his/her very high new exam score triggered an investigation..
Ultimately, the state Supreme Court disbarred her for 5 years.
The husband was never licensed in California, and the couple divorced.
From Richard Hicks, Esq.
It was August 1962, in a long-since forgotten Los Angeles venue, when I showed up, along with hundreds of recent law school graduates, to take the much-feared California Bar Examination. Never mind that my school had a 95 percent pass rate. My palms were sweaty, my heart pounding, and my head overflowing with soon-to-be forgotten legal rules. The examination was three days long and consisted of all essay questions. No multiple choice questions. I had what was then, and still is, considered the worst handwriting to ever cross a secretary's desk. Common sense suggested I had no prayer of passing this test. Except for one fact. One secret weapon. My portable electric Smith Corona typewriter! And yes, I was in the 95 percent of Boalt Hall graduates to pass the first time around. Technology ... you gotta love it.
From Ruth Marvin-Webster, Esq.
Less than two months after graduation, my friend Michelle and I drove down from Malibu to Shelter Island to take the dreaded three-day California Bar Exam. I was naively confident with a pass rate of about 50 percent and having diligently studied my BarBri materials. But when the results arrived by snail mail -- just before Thanksgiving -- and I learned I had failed, I was devastated. I couldn’t pull myself out of bed for days and I clearly remember considering it my life’s greatest failure at the time In fact, I was so despondent I didn’t retake the Bar Exam for nearly two years, applying instead to Cambridge’s LLM program and resigning myself to becoming a real estate agent if it all didn’t work out.
But in February 1986, with the urging of my new husband I decided to give it another try in Oakland this time. There were so many reasons I should have failed that time, too There wasthe annoying guy seated next to me who nervously shook the table with his knee for three solid days More weight than ever was given to the dreaded multistate portion of exam. A new Performance Test was added for which we had no context. And, of course, the fact that I was completely intimidated to be in the company of so many exceptional Berkeley and Stanford grads. But miraculously, I passed. Even though the pass rate that week was only a meager 27 percent -- the lowest since 1951.
From Alan Mansfield, Esq.
1986 Bar Exam
My bar exam memory is not my own personal experience, but rather who I sat across from at our very long tables at the Oakland Convention Center. Twentieth Century Fox (as it was then known) had decided to move its corporate headquarters from New York to California. It wanted its general counsel to be a member of the California State Bar in case of emergency court applications or other necessary in-house requirements. Sitting across from me was the general counsel for Fox, a gentleman in his mid-50s who, he said, was having to sit for a Bar exam for the second time in his career.
As we talked during breaks I asked him what was his most difficult subject in terms of preparation He responded Constitutional Law, which seemed surprising being that he was the general counsel for a multi-national entertainment company. When I asked why he said, “Constitutional Law now is very different than when I went to law school.” When I looked at him curiously, he explained, “Back when I was in law school, Brown v. Board of Education was a new decision and we were not sure if it would have a significant impact. Think of the other decisions that you had to learn about that came out since then.” Turns out he had graduated from law school in 1956 – 30 years earlier! A lot had changed.
I hope he passed…
From Stephanie S Germani, Esq
The Pandemic Exam: Home Court Advantage
In the annals of legal education, few rites of passage loom as large as the bar exam. For generations, aspiring attorneys have gathered in cavernous convention centers, armed with No. 2 pencils, to face this professional gauntlet. But in 2020, as with so much else, the pandemic upended tradition.
As I logged into my laptop in October 2020 to take the California bar exam, I couldn't help but marvel at the surreal nature of the moment. Here I was, poised to tackle one of the most challenging tests of my life, not in some sterile exam hall but from the cozy confines of a bedroom. The contrast was jarring, to say the least.
There were no nervous whispers of fellow test-takers. In their place, the gentle hum of my air conditioner. The exam proctors, once flesh-and-blood enforcers, had been replaced by watchful webcams and sophisticated anticheating software.
The State Bar's requirements for our home testing environments bordered on the comical. Nothing in the room, they decreed, leading me to briefly contemplate setting up shop in my shower. Ultimately, I opted for the more conventional (and less damp) option of spare bedroom.
Between sessions, I indulged in luxuries unthinkable in the traditional exam setting: a power nap, a hug from my dog, emailing my law school professors whenever their subject appeared in an essay question. I'm sure Professor Lee was thrilled to receive my mid-exam update: "Business Associations essay! Thinking of you!"
Yet for all its peculiarities, this virtual bar exam retained the essence of its in-person predecessor: the stress, the high stakes, the sense of embarking on a professional rite of passage. And when it was over, the relief was just as palpable, even if celebrated in solitude rather than among a sea of equally exhausted peers.
As we slowly emerge from the pandemic's shadow, it's worth pondering which of these adaptations might endure. Will future lawyers look back on in-person bar exams as quaint relics of a bygone era? Or will the profession's traditionalist streak reassert itself?
Whatever the future holds, I'll always have my story of conquering the California bar exam from the comfort of home, surrounded by the familiar chaos of family life. It may not have been the experience I expected, but it's one I'll never forget.
2020 Covid Bar Exam!
From Nicole Varela, Esq.
Sitting for the California Bar Exam this past July was the most challenging and rewarding experience, yet I’m glad I never have to do it again. I spent all summer studying and attending my Barbri prep course. I felt prepared, but at the same time unsure of what to expect.
Those two exam days were exhausting to say the least. Running on 3-4 hours of sleep each day, I endured because my adrenaline was on overdrive and I was hyper focused on answering every question and using every minute available which I needed because it felt like at least half of the 200 multiple choice questions were testing abstract constitutional law issues. I appreciated that I was able to take the exam in the same facility as many of my classmates from California Western School of Law, and we supported each other through it. My law school faculty members were also there at lunchtime with sandwiches for us, which was so thoughtful because it allowed me to focus on taking the exam instead of packing a lunch
I felt incredibly accomplished after completing the exam, but waiting more than three months for the results was absolute torture. I started working again and tried to avoid thinking about it, but every time someone asked about my pending results, I felt an overwhelming wave of anxiety. Taking the exam again was not an option, and I’m glad I approached it that way. When I finally saw that I passed, I felt shocked, proud, and most of all, relieved. That exam felt like an insurmountable hurdle for so many years; now it’s over and I can look forward to growing as an attorney and learning more advanced concepts in estate planning, real estate, and business law.
The Future of the Bar Exam....
KAPLAN PARTNERS WITH CALIFORNIA STATE BAR TO REVOLUTIONIZE BAR EXAM
The California State Bar has entered into a partnership with Kaplan Exam Services to develop and administer a new California-specific bar exam. This five-year, $8.25 million agreement marks a significant shift in how future lawyers will be tested in the Golden State.
Key Details of the Partnership :
- Kaplan will create multiple-choice, essay, and performance test questions for the California Bar Exam
- The new multiple-choice section will replace the National Conference of Bar Examiners' Multistate Bar Examination (MBE) starting with the February 2025 exam
- Kaplan-developed essay and performance test questions are expected to debut in 2026
- As part of the deal, Kaplan will provide faculty and student study guides at no cost to examinees.
- Kaplan will exit the retail bar prep business in California but continue serving other jurisdictions
Suzanne Skolnick, sworn in as 2025 NCBA President by Justice William Dato.
On January 19th, 2025 the NCBA hosted its annual Installation Dinner where the 2025 President, Suzanne Skolnick, as well as the incoming Board Members were sworn in. We celebrated the achievements of our outgoing board members, honored our Magazine Committee, and much more.
January 19th,
2025
North County Bar Association Installation Dinner
Alan Mansfield, Gary Cunneen, Avneet Sidhu, Reid Chambers, Hon. Harry Powazek (Ret.), sworn in by Justice William Dato.
Saying goodbye to our outgoing board members!
Irene Stewart is presented with the “President’s Award” from outgoing NCBA President Dawn Hall Cunneen.
Alan Mansfield, Sean Mansfield, Hon. Robert Dahlquist (Ret.), Hon. Margo Lewis Hoy, Hon. Harry Powazek (Ret.), Justice William Dato, Hon. Patti Ratekin, Dawn Hall Cunneen, Comm. Donald Armento, Emma Mansfield.
By Wayne Templin, Esq.
CIVIL LAW UPDATE FOR 2025
The legislature gave us 1,017 regular sessions statutes and along with case law development, plenty of material is available to consider in the ever-evolving legal profession. Some of the changes include expert witness testimony issues (again), creation of a new type of tenancy – “qualified commercial tenant,” changes to CCP 664 6, new summary judgment motion timelines, incivility can cost you attorney fees, recording a tangible copy of an electronic record, regulation of corn masa flour, and an official state crustacean.
Due to space limitations, the information below is a brief and limited summary of selected statutes and cases. Read the full statute or case. The information below is taken from Rutter Group updates and the Bills Enacted Report-2024 on the California Legislative Information website at https://leginfo.legislature.ca.gov/faces/publications. This is Part 1 of a series - look for more in the next issue!
GENERAL APPLICATION
CCP § 664.6 Retention of jurisdiction to enforce settlement upon parties' “request”; operative until 1/1/25: Until January 1, 2025, notwithstanding entry of judgment, a court retains jurisdiction over the parties and the litigation to enforce a settlement pursuant to § 664.6 until it is fully performed provided the parties requested continuing jurisdiction before the case was dismissed. [Amended CCP § 664.6(a) (1/1/25 “sunset date”).]
CCP § 664.6 Dismissal of case and retention of jurisdiction subject to written or oral stipulation in court; operative 1/1/25: Commencing January 1, 2025, a court may dismiss a case as to the settling parties without prejudice and retain jurisdiction over the parties to enforce a settlement until it is fully performed only if the parties stipulate in writing or orally before the court. [New CCP § 664.6(a); operative 1/1/25.]
Mandatory dismissal for five-year delay; former Emergency rule 10(a) exception: Generally, courts must dismiss actions if they are not brought to trial within five years. However, one case has upheld the validity of former Emergency rule 10(a), which extended § 583.310's 5-year limitations period by 6 months during the COVID-19 pandemic [Barron v Santa Clara County Valley Transp Auth (2023) 97 CA5th 1115, 1124-1125.]
CCP § 473(b) Set Aside Motions / Time limits: CCP § 473(b)'s 6-month limitations period for discretionary or mandatory relief from judgment is the longer of 182 days (a “half year”) or 6 calendar months (which varies from 181 days to 184 days) [Jimenez v Chavez (2023) 97 CA5th 50, 54]
PROBATE
AB 2016, Maienschein. Decedents’ estates. An act to amend Sections 13100, 13101, 13150, 13151, 13152, and 13154 of, and to repeal Section 13158 of, the Probate Code, relating to estates.
This bill would exclude real property that was included in a petition to the superior court from the affidavit procedures. The bill would change the petition procedures to apply only to real property that was the decedent’s primary residence in this state and has a gross value that does not exceed $750,000 or the amount specified by Judicial Counsel after review, etc.
SB 1127, Niello. Trust Termination. An Act To Amend Section 15408 Of The Probate Code, Relating To Trusts.
This bill would grant a trustee the power to terminate a trust if the fair market value of its principal does not exceed $100,000 in value
Unauthorized actions invalid: A principal's oral consent or an alleged after-the-fact oral ratification does not validate an attorney-in-fact's actions exceeding the authority granted in the power of attorney An attorney-in-fact who has “special skills or expertise” must observe the standard of care that would be exercised by one with those skills or expertise. [Pool-O'Connor v. Guadarrama (2023) 90 CA5th 1014]
Health Care Decisions Law
A “health care decision” does not include a decision made by a patient's agent, conservator, or surrogate to consent to commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization, or abortion. [Prob.C. §§ 4617(b) & 4652(b)]
Nor does it include the power to enter optional, separate dispute resolution agreements in the absence of a catchall provision or express delegation of that power. [Harrod v. Country Oaks Partners, LLC (2024) 15 C5th 939, 952-953, 966 power of attorney pertaining to who provides health care and what may be done to a principal's body in health, sickness, or death did not authorize attorney-in-fact to waive access to the courts, agree to arbitration or to otherwise negotiate about or accept any dispute resolution method]
Power of attorney for health care: The principal named in a power of attorney for health care may grant authority to make decisions relating to the principal's personal care including, but not limited to, determining where the principal lives, providing meals, hiring household employees, providing transportation, handling mail and arranging recreation and entertainment. [Prob.C. § 4671(b); see Harrod v. Country Oaks Partners, LLC (2024) 15 C5th 939, 954]
Authority as to matters not covered by HCDL: To the extent the HCDL does not provide a rule governing agents under powers of attorney, the agent's authority to act is determined under the general law of agency. [Prob.C. § 4688; See Harrod v. Country Oaks Partners, LLC (2024) 15 C5th 939, 960]
“Gravely disabled” prerequisite to LPS conservatorship: The proposed conservatee must be “gravely disabled.” Adjudication of “gravely disabled” status must be based on findings proved beyond a reasonable doubt. [Amended Welf. & Inst.C. § 5008(h)]
Conservator's care plan: Effective January 1, 2025, a conservator must, within 120 calendar days of their appointment, file a confidential “care plan” regarding the care, custody and control of the conservatee [New Prob.C. § 2351.2(a), (g)] The plan “shall” include enumerated descriptions. (New Prob.C. § 2351.2(b)). The failure to file a care plan may result in a civil penalty in any amount up to $500, payable to the estate of the conservatee or removal as conservator. [New Prob.C. § 2351.2(d)(1), (3)] If the conservator is a professional fiduciary, the court may find the failure to file a care plan to be a separate and independent reason to refer the conservator to the Professional Fiduciaries Bureau for investigation [New Prob.C. § 2351.2(d)(2)]
Claims procedure optional; effect of failure to pursue: Trustees are not required to use the Code's creditor claims procedure However, the failure to do so forfeits protection of the nonclaim statute (bar to creditor claims and actions against trust assets absent timely filing of creditor's claim in decedent's probate or trust proceedings, Prob.C. §§ 9002(b), 19004(c)). [See Spears v. Spears (2023) 97 CA5th 1294, 1303-1304]
“Legal barrier” to adoption requirement for step/foster children: At least one Court of Appeal has held that Prob.C. § 6454 does not foreclose statutory methods other than § 6454 for a stepchild to establish a parent-child relationship [See Estate of Martino (2023) 96 CA5th 596, 601]
Wrongful Death Claim / Foster children: It is unclear whether a foster child has standing as a child under CCP § 377.60(a) or instead is an eligible wrongful death claimant only if “dependent” on decedent pursuant to CCP § 377.60(b) or (c). See Estate of Martino (2023) 96 CA5th 596, 601]
Elder abuse claims may be subject to arbitration agreement: See Haydon v. Elegance at Dublin (2023) 97 CA5th 1280, 1287-1292 - EADACPA action]
Double penalty for financial elder abuse: In appropriate cases of financial elder abuse, a penalty of twice the value of the property recovered under Prob.C. § 850 and Prob.C. § 859; may also be awarded. [Prob.C. § 859; Asaro v. Maniscalco (2024) 103 CA5th 717]
Restraining orders: In an appropriate case, a restraining order against an abuser is also available under the Act. [Welf. & Inst.C. § 15657.03; see Newman v. Casey (2024) 99 CA5th 359, 375]
Proceeding to Determine Distribution Rights (Prob.C. § 11700) Effect of failure to timely file: Persons who have not timely filed may not participate in the Prob.C. § 11700 proceeding, but their interests in the estate are “not otherwise affected.” [Prob.C. § 11702(b)(2); see Estate of Flores (2024) 98 CA5th 619, 632-633]
Scope of objections to petition for distribution: Objections (or responses) to the petition for distribution may be an alternative to filing a will contest or a petition to determine distribution rights. However, objections at this stage may not be raised for the purpose of relitigating issues that were already decided by a final order. But see Estate of Flores (2024) 98 CA5th 619, 626]
FAMILY LAW
Illegal eavesdropping concerns: A husband's attorney was not immunized from federal and state wiretapping claims where the husband secretly recorded his wife's conversations with the parties' child and then had his attorney file edited transcripts on the public family docket. [Pyankovska v. Abid (9th Cir. 2023) 65 F4th 1067, 1077]
Protected persons; dating/engagement relationships: Relationships characterized as “friends with benefits” do not necessarily constitute dating relationships as defined by the DVPA. [M.A. v. B.F. (2024) 99 CA5th 559, 562, 570-571]
Responsive declaration filed; no continuance “as a matter of course”: Once a DVPO petition has been responded to, courts do not have a mandatory duty “as a matter of course” to grant the respondent a continuance of the hearing. [N.M. v. W.K. (2024) 100 CA5th 978, 979-980]
DVPA proceedings: Family Code § 6344's current version applies retroactively to all cases pending on its effective date per Fam C § 4 and a “long line” of cases so holding [Dragones v Calkins (2024) 98 CA5th 1075, 1082-1085]
Temporary judge as hearing officer: In a case of “first impression,” a privately compensated temporary judge stipulated to by the parties lacked jurisdiction to restore and rule on a former wife's withdrawn Request for Order (RFO). [Marriage of DeWolfe (2023) 93 CA5th 906, 912-913]
Mandatory considerations: If a Fam.C. § 6218 protective order or Pen.C. § 136.2 protective order has been issued restraining a parent, the court “shall consider” whether the child's best interest requires that any visitation with that parent (including virtual visitation) be limited to situations in which a third person specified by the court is present. [Amended Fam.C. § 3100]
Litigation Initial disclosures: Until January 1, 2027, the current version of CCP § 2016.090 regarding initial disclosures no longer applies to “an action or proceeding commenced in whole in part under the Family Code.” [Amended CCP § 2016.090(b)(3)(e)]
Monetary sanctions incident to court order on motion to compel: The imposition of sanctions on a plaintiff was an abuse of discretion even though the plaintiff's anticipatory production of documents initially failed to identify the documents with the specific requests to which they applied. [Pollock v. Sup.Ct. (Schuster) (2023) 93 CA5th 1348, 1359]
CIVIL PROCEDURE BEFORE TRIAL HIGHLIGHTS
“Advocate-witness rule” (CRPC 3.7(a)): Disqualifying a testifying lawyer despite client consent “must be based on a convincing showing of prejudice to the opposing party or the potential for palpable injury to the judicial process.” [Geringer v. Blue Rider Finance (2023) 94 CA5th 813, 822-823]
Amount recoverable; lodestar approach—downward adjustment due to counsel's incivility: The trial court did not abuse its discretion in applying a 40% downward adjustment to the lodestar based on counsel's incivility in handling the case [Snoeck v ExakTime Innovations, Inc. (2023) 96 CA5th 908, 931-9331
Determining the amount recoverable where plaintiff succeeds on only some claims: If a lawsuit consists of related claims, the attorney fee awarded to a plaintiff who has obtained “substantial relief” should not be reduced merely because plaintiff did not succeed on each contention raised. Vines v. O'Reilly Auto Enterprises, Inc. (2023) 74 CA5th 174, 182-183, 186 (FEHA case)]
Duty to preserve relevant documents: A party has a prelitigation duty to preserve material evidence if litigation is “reasonably foreseeable.”, “and not merely when litigation [is] a remote possibility.” [Victor Valley Union High School Dist. v. Sup.Ct. (Doe) (2023) 91 CA5th 1121, 1138, 1144]
Demand letters, improper threats may not qualify as protected prelitigation communications: In the context of an anti-SLAPP motion, a threatening letter from a lawyer with alleged misrepresentations that was not written in good faith and serious contemplation of litigation did not constitute protected prelitigation activity and was not protected by the litigation privilege Medallion Film LLC v Loeb & Loeb LLP (2024) 100 CA5th 1272]
Estoppel against public entity effect of changed circumstances: A plaintiff cannot rely on estoppel if there is still ample time to take action within the statutory period after the circumstances inducing delay have ceased to operate. [A.S. v. Palmdale School Dist. (2023) 94 CA5th 1091, 1101-1102]
Actions under Private Attorneys General Act (PAGA): A representative “aggrieved employee” who is compelled by agreement to arbitrate that employee's individual claims against the employer maintains standing to pursue civil penalties for Labor Code violations the other employees have sustained. [Adolph v Uber Technologies, Inc (2023) 14 C5th 1104, 1113-1114, 1126-1127; Johnson v Lowe's Home Ctrs , LLC (2024) 93 F4th 459, 464 (applying Calif. law)]
Stay tuned for Part 2 of the Civil Update in the next issue!
volunteers needed!
On March 7th, 2025, the Vista branch of the San Diego Superior Court will host the annual On My Honor and Youth in Court events. If you would like to volunteer to assist for a two-hour window that morning, for either the 8:30 to 10:30 session, or the 10:30 to noon session, please contact NCBA Pro Bono Committee co-chair Irene Stewart at istewart@istewartlaw.com.
On My Honor
Volunteer attorneys are needed in the morning of March 7, 2025 to shepherd the large number of (very excited) 5th through 8th graders from the jury lounge to their assigned courtrooms. There, the students will present a mock trial before one of the many San Diego Superior Court bench officers who have volunteered to preside. The North County Bar Association assists the court in putting on this program in a joint effort to help local students learn about the judicial system. The students study then put on a criminal trial based upon age-appropriate facts, in a real courtroom, before a real bench officer. The students come from schools all over North County. These young students are invited to “dress for court” and present opening statements, testimony, then closing arguments. A student jury will deliberate and render a verdict. This is all based on a fact pattern and class exercises the students study in their classroom before the visit. Our volunteers are invited to stay and watch the trial and answer questions afterwards.
On My Honor is designed to address the shared desire of the courts and educators to teach our youth about the legal system, the courts, and the administration of justice. The mock trials concern such things as bullying and petty theft at school to buy a Nintendo Switch. The program is designed to give the students an age-appropriate realistic courtroom experience. Time permitting, afterwards they can ask questions of the Judge and explore the behind-the-scenes parts of the courtroom. Both the schools and court personnel volunteer for this program and year after year They truly enjoy the experience
Past visiting classes have sometimes made large “thank you” posters for the court and for NCBA. As one class teacher wrote: “Thank you for helping me give these students the experience. I know it opens doors for students who may not know what they want to do in the future. I have heard from past students that it is their favorite trip One high school-aged sibling even asked his younger brother if he could come with us!”
Youth In Court
In the afternoon of March 7th, the Court will host a program called Youth in Court which invites high school classes from the North County area to have lunch in the jury room then attend presentations about various legal issues high schoolers would find pertinent to their lives We do not need volunteer attorneys for this. Instead, the NCBA’s Pro Bono Committee works throughout the year with the Judge’s Youth In Court committee to assist in securing speakers for the programs presented to the high schoolers.
The Youth in Court program is designed to address the shared concern of both the courts and the educators to teach our young adults about the legal system, the courts and the administration of justice. These shared concerns are met through presentations designed to address subjects the students too often encounter, such as drugs, bullying and various forms of dating abuse. The presenters are people within the court system who deal frequently with these issues: Judges, Prosecutors, and Public Defenders; and others who provide support to victims.
HolidayParty 2024 Recap
The 2024 NCBA Holiday Party was a spectacular event filled with unforgettable moments! Attendees were treated to an incredible dinner that delighted the senses, followed by a special guest performance that added a touch of excitement to the evening. The night was capped off by a fantastic DJ who kept the energy high and the dance floor packed all night long. It was a wonderful celebration full of great food, music, and memories, making it a holiday party to remember!
NCBA Executive Director, Camden Retzlaff, at the 2025 Holiday Party.
Katharine Tremblay, Alan Mansfield, Caroline Zimmer, Susanne De La Flor enjoying the holiday festivities.
Beatriz Olivas from the Lawyer Referral Service and Husband, Jesse Olivas, pose for a photo.
David Daftary, Nitela Daftary, Alexandria
Dave, Katharine Tremblay, Beatriz Olivas smile on the dance floor.
in memoriam David Thompson
Everyone has a story. No group knows this better than lawyers. Dave always felt his oath taken at his swearing in ceremony was to “defend the defenseless” and that was his duty
As a child, Dave thought he wanted to be a rock star, with Elvis being his idol When he discovered he couldn’t sing and being a Yankee Doodle Dandy, he thought he would be President of the US one day. School wasn’t his favorite activity, and after just 2 1/2 years of college, he joined the Army Intelligence Agency. He was sent to Tokyo, Japan with his 20-yearold bride and high school sweetheart. He went to an evening international school taught by Jesuit Priests. Dave received his undergraduate degree in political science from Sophia University, the sister school of Georgetown University in Washington, D.C.
David had two young daughters and the family had discovered San Diego when he applied to Cal Western Law School Dave hadn’t been in school for years, and Dean Robert K Castetter told him that he hadn’t done well on his law entrance exam, but graciously decided that Dave
would become a good lawyer and admitted him. Dave graduated second in his class as a main contributor to the 1972 Law Review
Dave was hired by the Law Firm of Andreasen, Gore, Gross, and Thompson (no relationship) in Oceanside, CA. Shortly after being sworn in, one of Dave first client’s cases ended up before the California Supreme Court. David succeeded in bringing a new law to the judge’s attention, and the client was able to get into a drug rehabilitation program instead of a jail sentence. Dave later decided to become a sole practitioner, and he moved his office to Carlsbad. During his time as an attorney Dave had many friends from the legal community including colleagues, judges, opposing counsel, and court employees who loved to exchange their stories and jokes. He belonged to the National Association of Criminal Defense Lawyers, the S D Bar Association, the Lopardo Inn of Court, and the North County Bar Association Dave served as Judge Pro Tem in North County, and as a board member of various organizations such as the N. C. Bar and Pilgrim Congregation Church.
For leisure, Dave took each of his 3 children separately on adventures around the world, often with little more than backpacks. These places included jungles, animals, and water. Dave’s friend and colleague, Bill Christoph, taught him how to help man Bill’s sailboat for adventuresome diving experiences
David looked for quite a few years to find an art outlet. It turned out to be creating rock sculptures. He joined a group that met at an outdoor studio at the home of Tony and Lucille Amato in Vista. He enjoyed the time spent with his fellow carvers, instructor, and giving his creations to friends and family over the years.
David R Thompson passed on January 6, 2025 His remembrance will be to value humor, hard work, adventure, fairness, love of democracy, and the natural world - making our time meaningful in a positive way.
Bill Kamenjarin:
“Dave Thompson was one of the most interesting and creative lawyers I ever met in our work. My practice has only been civil, and Dave's was primarily criminal, but we hadassorted shared experiences.
I clearly remember the first day I met Dave in the early 1990s. He and I were opposing counsel in a multiparty case in a day of depositions. He persuaded me that the day would bemore tolerable, if not exactly fun, if we had margaritas for lunch andafter the depositions. In turn, I agreed, and persuaded him to drop his plaintiff client, as he was unworthy of our time.
Over the years, I would refer criminal cases to Dave. He would joke that the accused were usually stupid and/or guilty, and tell me I needed a better class of criminal acquaintances if I wanted Dave to take any of my referrals.
I had heard Dave was quick and spontaneous, and I saw this ability when he asked me to be the arbitrator in a binding arbitration Before the hearing, defense counsel had been bragging that Dave would surely lose, as he had done nothing on the case Having done no discovery, Dave's cross examination was stunning, one of the best I have ever seen After the arbitration, the defense counsel called and pleaded with me to delay my award, as he then wanted to settle the case before my decision was published
Dave drove a baby blue 1957 two seater Thunderbird, his "concession" to advertising and a retainer from a former client We used that car as a prop in one of our Lopardo Inns of court's MCLE presentations Riding in thatconvertible was like beingthe king of the homecoming court, riding in the homecoming parade. People would wave, and children would run toward the car.
And then there were his sculptures - larger than life representational rock sculptures. He is missed.”
Judge Harry Elias (ret.)
“I mostly remember as a young DDA in 1978 meeting Dave in Vista and our discussions about being from Detroit, He was very friendly and to a certain extent acted as a mentor as he bounced me off the walls of the courtroom He would be very polite and explain to me afterwards what he was doing and how I should learn to anticipate ”
Herb Weston
“Dave was a fantastic lawyer. He was one of the defense lawyers I aspiredto be. He will be missed as a friend and colleague.”
Richard Muir
“Here’s one of my fondest memories of Dave: Dave represented a man from Oceanside who had a running feud with the Oceanside police. In retaliation, the police would regularly fly their helicopter low over the man’s house and shine a bright searchlight on his back yard. One night in frustration, the man aimed a flashlight on the helicopter, and he was criminally charged with hazarding a law enforcement aircraft
After obtaining an acquittal on that charge, Dave then sued the City of Oceanside on the basis of harassment and invasion of privacy by their police department At the settlement conference, the City Attorney laughed at Dave, claimed his case had no merit, and he would never get it to a jury Not only did Dave get the case to a jury, they hit the City with a half a million dollar judgment This was a lawsuit that few attorneys would have taken on but was typical of Dave’s willingness to handle challenging cases Dave was an innovative attorney with lots of guts; he will be sorely missed ”
Bill Christoph
“Dave loved the ocean and was a great swimmer and skin diver - nicknamed the "Bugmeister" because of his ability as a lobster hunter and eater on opening weekend. His dry humor and love of the ocean was always appreciated. He even helped crew for a couple weeks down Mexico to Cabo San Jose and Puerto Vallarta. During one of those voyages we were surrounded by what seemed like 20-30blue whales west of Cedros Island. Dave made rock sculptures and was so awe struck by those whales that he carved a beautiful blue whale sculpture after that trip. He was a great attorney and friend and will be missed.”
Rafael Acosta Jr
“ He will be greatly missed ”
Brad Patton
“David was a great resource and a go to person concerning the complicated North County legal system. We continued to be friends as the years went by. ”
Ray Gomez
“Dave was always a rascal and loved being so! Fifty years ago I was waiting for paperwork in the Oceanside Municipal Courthouse. David had a preliminaryhearing on a drug possession charge withthe infamous O.P.D undercover officersDave La Porta and Mike Bookman - the local version of "Stansky & Hutch."
During his cross examination of the officers - in an effort to exclude the drugs found at the house during its search - David had "suggested" he had a video tape of the incident taken by a neighbor across the street which would impeachthe officer’stestimony. Proceedings were suspended and the lawyersand Judge went into chambers for an in-camera proceeding. We could hear loud voices from the back room. After several minutes the proceedings were resumed. The case was bound over for trial. By the way, the videotape that Dave had held up in his hand for all to see during his cross examination was a cartoon!”
