Attorney Journal, Orange County, Volume 107 by Attorney Journals

ORANGE COUNTY

Volume 107, 2015 • $6.95

Why a QDRO is Needed and Common Pitfalls Awaiting the Unwary Family Law Attorney

Marc S. Schechter Understanding People’s Natural Fears

Tom Hopkins

McIntyre’s Civil Alert

Monty A. McIntyre Understanding and Working with Anxiety

Attract & Retain

Mike O’Horo The President’s Executive Action on Immigration: What Does it Mean?

Mitch Wexler

RISING STAR OF THE MONTH

Anthony Radogna

The Attorney for Attorneys in Trouble with the Bar

Jeena Cho

Attorney of the Month

Ashleigh Aitken LEADERSHIP IN ACTION

Specialization matters. Having represented more law firms over the last 25 years than any other broker in the region, no one understands their real estate needs better than I do. — JASON HUGHES President & CEO, Hughes Marino

ORANGE COUNTY CORPORATE REAL ESTATE ADVISORS

At Hughes Marino we only represent tenants and buyers – never landlords – so we never have a conflict of interest. Our only fiduciary duty is to our client, the tenant, and we are wholly committed to protecting their interests. If you are not happy with your service or results, then we will give you our commission. Guaranteed. (949) 333-3111 | www.hughesmarino.com

IRVINE CENTURY CITY SAN DIEGO DOWNTOWN LA

2015 EDITION—NO.107

TABLE OF CONTENTS features

RISING STAR OF THE MONTH

6 Anthony Radogna

The Attorney for Attorneys in Trouble with the Bar by Karen Gorden

10 COMMUNITYnews 12 Why a QDRO is Needed and Common Pitfalls Awaiting the Unwary Family Law Attorney by Marc S. Schechter EXECUTIVE PUBLISHER Brian Topor

14 Understanding People’s Natural Fears

EDITOR Wendy Price

by Tom Hopkins

CREATIVE SERVICES Skidmutro Creative Partners

ATTORNEY OF THE MONTH

16 Ashleigh Aitken

CIRCULATION Angela Watson

by Jennifer Hadley

PHOTOGRAPHY Chris Griffiths

22 Understanding and Working with Anxiety

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden

by Jeena Cho

CONTRIBUTING EDITORIALISTS Monty A. McIntyre Marc Schechter Mike O’Horo Mitch Wexler Tom Hopkins WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us

Leadership in Action

28 McIntyre’s Civil Alert

26 Attract & Retain by Mike O’Horo

by Monty A. McIntyre

30 The President’s Executive Action on Immigration

What Does it Mean? by Mitch Wexler

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THE ATTORNEY FOR

ATTORNEYS IN TROUBLE WITH THE BAR Legal Ethics Defense Attorney Anthony Radogna Uses His Previous Experience as an Investigator with the State Bar to Help Attorneys through State Bar Complaints, Investigations, Trials and Appeals. Karen Gorden

“Attorneys aren’t always willing to talk to one another when they find out they are being investigated by the State Bar,” says Anthony Radogna Esq., LL.M. “The natural reaction of many attorneys upon receiving notice that a complaint is being investigated, is to handle the issue themselves. But the State Bar is completely different from what attorneys are used to in the criminal or civil setting. It is even vastly different from any other administrative court process as well. The State Bar has its own unique rules, court process and court system,” he adds. While it is understandable that an attorney would feel qualified to handle a problem of this caliber on their own, Radogna has seen too many attorneys suffer consequences from trying to sort out the problem on their own. “Every complaint has the potential to change my clients’ lives. They can lose their license, and their livelihood. Their families are affected,” he says. That, coupled with the fact that “Attorneys don’t have experience being in this situation. It typically only happens once in their career, so it’s impossible to have a lot of experience in dealing with the State Bar.” 6

Attorney Journal Orange County | Volume 107, 2015

For his part, however, Radogna has experience with the State Bar in spades. Indeed, Radogna spent more than five years as an Investigator for the State Bar of California’s Office of Chief Trial Counsel (OCTC) investigating a wide range of ethical complaints brought against attorneys. He also served on specialized task force teams, and gained experience investigating the unauthorized practice of law, abandoned law practices, disbarred and resigned attorneys, and other activities such as drug abuse and physical or mental illness. After he left the State Bar, he decided to make it his mission to defend his fellow attorneys from precisely those types of investigations. “My niche is representing attorneys when there is a State Bar investigation opened based on a complaint made to the State Bar. Complainants usually come from the attorney’s own clients, but sometimes come from opposing counsel. Others may be opened based on referrals from courts or law enforcement agencies,” Radogna explains. In this very unique niche of legal practice Radogna says he’s found his calling, even though he never even intended to work as a practicing attorney.

EARLY INTEREST IN INVESTIGATIONS After earning his undergraduate degree, Radogna pursued a career as an insurance claims adjustor, while deciding whether or not to apply to law school. “As an adjuster you occasionally come across fraudulent claims and that sparked my interest in becoming an investigator,” he recalls.

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Thus, when the time came in law school where Radogna watched his classmates gun for internships with various firms, by contrast he was seeking out investigation jobs with the state and the county. He found precisely what he was looking for at the State Bar. “As an investigator, I reported directly to State Bar prosecutors. I collected witness statements, collected and subpoenaed documents, conducted field interviews, and essentially reported everything to the prosecutors who then determined how to proceed with a complaint,” he says. In time, Radogna was ready for a change, but he admits that even with all of his intimate knowledge of how the State Bar handles complaints, investigations and charges, he had no plans to practice State Bar defense. “I opened a general practice firm but quickly found that helping attorneys was my calling,” he says. It was during the first year of launching his general practice firm that he began to receive calls from friends and colleagues asking him questions about ethical rules, and requesting advice for their own practices. But one specific call would solidify his future path. “I got a call from a colleague asking if their friend could hire me to represent them in a State Bar investigation. It felt natural to me to respond to the allegations, and then enter into negotiation with people from the State Bar who I not only respected, but felt comfortable with. In that first case, I was able to get their complaint closed before the Bar took steps to file charges with the State Bar Court,” Radogna recalls. “That was the start of my niche law practice in State Bar defense,” he explains.

SPECIALIZED SERVICES FOR ATTORNEYS Radogna admits that it was a challenge to grow his business initially, but says that he spent nearly all of his free time reading everything he could about his field, accepting offers to speak at various ethics events, and joining forces with others in the niche area of practice through organizations such as the Association of Discipline Defense Counsel (disciplinedefensecounsel.org) and the Association of Professional Responsibility Lawyers (aprl. net). “This practice area is really small. There are only a handful of attorneys that specialize in this field, and there are even less in Orange County,” he says. “However, it doesn’t matter where my clients reside or what area of the state they practice, I can represent them regardless of where they are based.” During most initial consultations with clients, Radogna explains in complete detail how the complaint, investigation and/or charges will proceed within the State Bar. “I think like an investigator, I know what they need for their investigation and I use that knowledge to defend my clients using a specific strategy to beat the Bar’s case,” he says.

His services include drafting written responses to the analyst or investigator with the goal of having the complaint resolved prior to the filing of charges, and includes all pretrial, trial and appeal work as well. In addition to representing clients with their State Bar complaints, Radogna also provides representations in the areas of moral character/admissions, reinstatements after resignation or disbarment, and tailored counseling in the areas of ethics based on Radogna’s experience and knowledge of both the California Rules of Professional Conduct and the State Bar Act.

FIRM’S FOCUS FOR THE FUTURE Although Radogna may be amongst very few attorneys practicing in this field, he is quick to point out that he is in excellent company, and intends to stay in the field. “The attorneys who work in State Bar defense are amazing. Everyone is so open to helping each other and we talk regularly via email, message board, or by phone. It’s not cut-throat or competitive. It’s a very friendly group, all of whom really want to help their clients through tough situations,” he says. These days, Radogna is enjoying his burgeoning business, and looking forward to putting his LL.M to use teaching in the near future. “I really like this work. I think one of the most important things I can do is use my own strengths when pursuing the job that the client hired me to do. I know one of my main strengths is helping attorneys through the inquiry and investigation process. The process can be stressful and scary for an attorney who, for the first time, has received a letter from the Bar. My priority is to try to get the complaint closed during the investigation stage of the complaint, so that my client can avoid the costs of trial, and the risk of possibly receiving greater discipline,” he says. In addition, Radogna says that he is looking forward to sharing his experience with other attorneys and law students in the coming years. “I expect I’ll take on more trial work, continue to represent attorneys and hopefully dedicate my off time to teaching legal ethics.” n

Contact: Anthony Radogna Law Offices of Anthony Radogna www.statebardefenseattorney.com (909) 622-5049 radognalawoffice@gmail.com 1 Park Plaza Suite 600 Irvine, CA 92614

Attorney Journal Orange County | Volume 107, 2015

COMMUNITY news nBerger Kahn attorney Erin Mindoro was officially sworn in as one of the newest Associate Board members for the Orange County Bar Foundation, a highly esteemed Orange County nonprofit organization committed to keeping at-risk youth out of jail, in school, healthy, and drug free ERIN MINDORO through education, counseling, and mentoring. Shareholder David Ezra was also in attendance. The OCBF is a leader in the field of juvenile crime diversion and citizenship education for over 30 years, consistently achieving positive results in the community served and primarily supported by the O.C. legal and business community including attorneys, judges and those serving the law firms and the courts. Berger Kahn congratulates Erin on her new leadership role serving the community. Having previously hosted legal interns from inner-city Santa Ana through the programs of the Bar Foundation, Berger Kahn looks forward to many great collaborations ahead. nBest Lawyers has named Greg Dillion, 2015 Orange County Real Estate Litigation “Lawyer of the Year.” Only a single lawyer in each practice area in each community is honored as “Lawyer of the Year.” While this honor relates to California, Greg litigates throughout the Western United States. Greg has an active trial GREG DILLION and appellate practice representing developers, institutional lenders, general contractors, and other businesses in complex business, construction, and insurance coverage disputes. Greg Dillion, who has consistently been included in The Best Lawyers in America© list, has also been honored as one of the top 50 Orange County lawyers and one of the top 100 lawyers in Southern California by Super Lawyers. The national Corporate Counsel Almanac named him one of the nation’s top lawyers, and he was selected as a Fellow of the Litigation Counsel of America and as a Fellow of the American College of Coverage and Extra-contractual Counsel.

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us

Attorney Journal Orange County | Volume 107, 2015

nAnna Amarandos, Caroline Djang and Peter Howell have recently been named partners at Rutan & Tucker, LLP, California’s largest full-service business law firm based in Orange County. Amarandos is a member of the firm’s Real Estate Section, where she specializes in Environmental Law and is experienced in regulatory compliance involving land, water and air quality issues, the negotiation of environmental agreements for real estate and corporate transactions, redevelopment of contaminated properties, CEQA compliance, and Prop. 65. She received her Juris Doctor from Loyola Law School, Master of Arts from Southern Illinois University and Bachelor of Science from the University of California, Irvine. Djang is Co-Chair of the Corporate Restructuring and Creditors’ Rights Group and a member of the firm’s Business Litigation Department. Djang’s diverse and comprehensive bankruptcy practice includes the representation of debtors, secured lenders, chapter 11 trustees, landlords, creditors’ committees, and other creditors in bankruptcy cases and adversary proceedings. Prior to joining Rutan & Tucker, Djang was a judicial law clerk at the U.S. Bankruptcy Court for seven years, clerking for U.S. Bankruptcy Judges Ellen Carroll, Vincent P. Zurzolo, Sheri Bluebond and Richard M. Neiter. Djang was selected as a Ninth Circuit Judicial Conference Lawyer Representative and is on the Board of Directors of the Orange County Bankruptcy Forum. She has been honored as a Southern California Super Lawyers Rising Star three times. She received her Juris Doctor from Loyola Law School of Los Angeles and her Bachelor of Arts from the University of Pennsylvania. Howell is a member of the firm’s Government & Regulatory Law Section and Environmental Law and Land Use/Natural Resources Practice Groups. Howell’s practice includes litigation and advisory matters involving governmental agencies, as well as litigation between private parties, and focuses on environmental and land use matters. He has represented a wide variety of private and public-sector clients, including property owners, developers, business owners, cities, water districts, redevelopment agencies, and school districts. He received his Juris Doctor from University of California, Los Angeles in 2003 and his Bachelor of Arts from Bradley University in 1998.

ANNA AMARANDOS

CAROLINE DJANG

PETER HOWELL

COMMUNITY news nTredway Lumsdaine & Doyle LLP (TLD) proudly announced that effective Jan. 1, 2015, attorneys Jennifer A. Lumsdaine and Jennifer N. Sawday became partners of the firm. For more than a decade, Ms. Sawday has focused her practice on estate planning, probate and trust administration. She provides TLD clients with legal support for both routine JENNIFER A. LUMSDAINE and complex matters, including drafting wills, trusts, durable powers of attorney and advance healthcare directives. She also assists with legal issues involving the loss of a loved one. Outside the firm, Sawday is an adjunct professor at Cerritos College. She received her juris doctor from Loyola Law School and is a three-time honoree on the Super Lawyers “Rising Stars” list. Ms. Lumsdaine’s practice centers on trust and estate litigation and family JENNIFER N. SAWDAY law. She primarily assists clients with contested probate and marital dissolution matters, as well as guardianships, conservatorships and general civil litigation. Previously, Lumsdaine taught legal theories and practices as an adjunct professor at Cerritos College. She serves on the board of directors for Downey Family YMCA and South District Bar Association. Lumsdaine received her juris doctor from Loyola Law School and was recognized on the 2013 and 2014 Super Lawyers “Rising Stars” lists.

nArcher Norris is pleased to announce that attorney Miguel P. Prietto will serve as presidentelect of the Associate Board of the Orange County Bar Foundation (OCBF) for 2015. An associate in the Newport Beach office of Archer Norris, Prietto is a member of the firm’s Business and Litigation practice MIGUEL P. PRIETTO groups where he focuses his practice on both the transactional and litigation business needs of his clients. Miguel routinely acts as advisor to the firm’s business clients in various professions and industries. He has experience as a business professional having assisted various companies grow from start-ups to multi-million dollar operations involving business entity selection and formation, intellectual property protection and licensing, fundraising, international expansion, and contract enforcement and collections. Prietto received his J.D. from Arizona State University, Sandra Day O’Connor College of Law, in 2008; his M.B.A. from Arizona State University, W.P. Carey School of Business; and his B.A. and B.S. from the University of California, Santa Barbara in 2003.

nUmberg Zipser LLP is pleased to announce that Gabriel J. Padilla has joined the firm as an associate. Mr. Padilla has more than ten years of complex commercial litigation experience, with special expertise in environmental and land use matters. Mr. Padilla, who was previously a litigation associate with Bingham GABRIEL J. PADILLA McCutchen and Arnold & Porter, has significant experience representing corporate clients and municipalities in environmental litigation matters, including Proposition 65 claims, RCRA, CERCLA, CWA and CAA regulatory matters, and will be assisting the firm’s growing environmental practice led by Kim Bick. Mr. Padilla also has extensive experience in commercial litigation matters, including defense of consumer class actions, products liability, and contract disputes. Mr. Padilla received a J.D. from Loyola Law School in 2003, where he was Articles Editor of the Loyola Law Review, and a B.A. in Geography and Environmental Studies in 1995 from University of California, Los Angeles. During law school he was an extern for the Environmental Section, California Attorney General.

Attorney Journal Orange County | Volume 107, 2015

In most cases, a married couple’s wealth is typically measured by their home, automobile, and pension assets. Because homes and automobiles are generally encumbered, a couple’s pension is often the single most important marital asset. As the divorce rate continues to rise, so does the concern about the proper division of marital property. As a result, family law practitioners should be placing a high priority on pension issues when dividing the marital assets.

WHY A QDRO IS NEEDED AND COMMON PITFALLS AWAITING THE UNWARY FAMILY LAW ATTORNEY by Marc S. Schechter Marc S. Schechter has been an ERISA/employee benefits and business law attorney for thirty years. He has extensive experience in drafting all types of qualified retirement plans, fringe benefit programs, and stock option plans. He has provided counseling to a wide variety of clients and non-benefits law legal counsel relating to employee benefits issues, fiduciary responsibility, prohibited transactions, and, since the passage of the Retirement Equity Act in 1984, QDROs. For more information visit: www.bsllp.com or email: mschechter@bsllp.com.

Attorney Journal Orange County | Volume 107, 2015

The Employee Retirement Income Security Act of 1974 (“ERISA”) was enacted to protect the interests of participants in employer-sponsored pension plans. ERISA and the Internal Revenue Code (“Code”) impose numerous requirements on most pension plans. One such requirement is that a participant’s benefits cannot be assigned or alienated to another person. This antialienation provision and ERISA’s broad preemption provisions often conflicted with state laws designed to ensure that individuals satisfy their family support obligations. In response to this conflict, the Retirement Equity Act of 1984 (“REA”) established the qualified domestic relations order (“QDRO”) exception to the antialienation provisions of ERISA and the Code. The QDRO exception was intended to provide a means of dividing the community property interest in retirement benefits while maintaining a high level of equity regarding pensions for participants, their spouses and, in certain cases, dependents of the plan participant. REA recognized, at the federal level, the status of marriage as an economic partnership whereby the spouse who worked within and/or outside the home was considered to have made substantial contributions to that partnership, resulting in a community property interest in the benefits earned during the marriage. When pensions are part of the marital assets, complex federal laws directly impact upon state court proceedings. Moreover, in addition to substantive state law issues, a QDRO must be prepared to satisfy certain federal requirements as a prerequisite to dividing pension benefits. In addition to being familiar with the federal laws that govern pensions, the family law practitioner must also possess a thorough understanding of both the plan document and the plan’s QDRO procedures to be able to draft an order that the plan administrator will deem to be a “qualified” domestic relations order. For example, family law practitioners often utilize model QDRO language provided by the plan administrator which may expedite the QDRO review process, and yet such boilerplate language may not equitably secure the former spouse’s or dependent’s interest in the participant’s benefits. Under the Code, the former spouse or dependent recovering a portion of the participant’s pension benefits is referred to as the “alternate payee.” Retirement plans covering employees of federal, state, and local governmental entities are exempt from ERISA. Because governmental plans are not subject to ERISA, each governmental entity can establish laws and regulations that govern its pension plan. Additionally, each such plan has procedures that must be followed when pension benefits are assigned pursuant to a divorce. While the ERISA exempt plans are not subject to the

QDRO rules under the Code, most, if not all, such plans still require an order to divide the community property which, in almost all respects, essentially mirrors the provisions that must be contained in a QDRO. Since the enactment of the QDRO rules thirty years ago (yes, thirty years now), there has been a remarkable increase in the complexity of QDROs, both because plan sponsors have become more sophisticated as to what their own procedures require and thirty years of litigation has added to what counsel drafting a QDRO needs to include to protect the client’s interest. Due to the substantial dollar amount often involved, the numerous types of plans covering employees, the ambiguities in the QDRO statute, and the absence of regulatory guidance, it is not surprising that federal and state QDRO litigation have increased dramatically. With careful drafting and an understanding of both how the community property interest is to be determined and the optional forms such benefits can take, much of the litigation could be avoided. Some of the frequent problems we encounter when retained to draft a QDRO post divorce include marital settlement agreements (“MSAs”) which leave open the issue

of whether survivor benefits are to be elected and, if so, who, between the participant and alternate payee, bears the cost to provide the survivor benefit; use of the term “Brown formula” or “time rule” to divide the interest in retirement plans where the benefit is not based upon years of service; attempting to have the plan pay benefits at a time before benefits are actually payable under the terms of the plan; attempting to provide for attorneys’ fees in the dissolution proceeding to be paid directly to family law counsel by the plan; and, in the case of a QDRO, to be drafted to provide dependents support, an improper attempt to transfer the income tax liability on payments received by a non-spouse alternate payee. With the importance that the division of pension-related marital assets plays in most divorce proceedings, we suggest coordinating with benefits counsel at the MSA stage to minimize the post-divorce disputes and a return to court to clarify many of the pension division issues left unresolved by the MSA. While there may be other issues involving postdivorce proceedings to resolve, engagement of competent and experienced benefits counsel can prevent issues relating to retirement benefits from being one of these areas. n

Areas of Expertise Business • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property • Wrongful Death

Past President: San Diego Chapter of ABOTA, San Diego County Bar Association Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 30 Years of Experience as a Mediator and Arbitrator 35 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants

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Attorney Journal Orange County | Volume 107, 2015

Understanding People’s Natural Fears By Tom Hopkins Since 1976, Tom Hopkins International has been dedicated to providing the finest sales training strategies and techniques to individuals and companies alike. Tom Hopkins is world-renowned as The Builder of Sales Champions. His selling skills and sales strategies have helped millions of sales professionals and business owners in industries from A to Z to serve more clients, make more sales and earn millions in income. Think for a moment about what the greatest enemy is to the process of helping people decide to use your legal services. What is it that jumps in and brings presentations that were previously sailing smoothly along to a screeching halt? You may think it’s the financial aspects of your offering. Perhaps you think it’s the prospective client’s inability to make a decision. The bottom line is that they’re afraid. Fear stops more people from getting what they want in life than anything else. Fear is the greatest enemy you’ll ever encounter in your legal career.

What do your clients and potential clients fear? 1. Your prospective client is initially afraid of you. This is simply because they see you as a salesperson—someone who wants to charge them a fee for information they may not truly understand. Even if you are going to help someone you already know—a friend or acquaintance or even a relative—when you get down to business, certain fears will arise. It’s bound to happen in 99% of your presentations. (I’ll give you a 1% non-fear situation with your parents or grandparents, simply because in most cases they’ll believe in you and trust you no matter what role you play with them.) What do you do about the others? Accept it. There are some people who are going to be afraid of you just as there are patients who are panic-stricken when they have appointments with doctors or dentists. What you need to do to conquer this fear is to master the skill of putting people at ease. Learn to use a relaxed manner and tone of voice. Use rapport-setting comments and questions that show them you are interested in them, not just in closing the sale. 2. They have a fear of making a mistake. We all have that one, don’t we? We’ve all made decisions we’ve later regretted. Perhaps we relied on someone when we weren’t sure of his or her knowledge on the matter. When you are the one asking for the business, your prospective client must recognize you as a legal expert. You know this business. You have knowledge that they haven’t even considered. To help people overcome the fear of making a mistake, you need to lay out all the details they require in an easy-to-understand manner. Once they gain confidence in your knowledge, making a decision will be easy. 3. They fear being lied to. This is where your literature, testimonial letters and referrals come in. People are more likely to believe the written word than the spoken word, so let them read the good news about your firm for themselves. 4. They’re afraid of owing money. Most people have a tremendous fear of debt. Covering the financial details very carefully is critical here. Take as much time as they need to comprehend what they’re agreeing to. Ask them questions to assure you and them that they do understand the benefits of the particular arrangement you’re recommending. Your next move 14

Attorney Journal Orange County | Volume 107, 2015

would be to re-iterate everything you will do for them. Again, sell the value of the service you and your practice provide. 5. Many people are afraid of losing face. Have you ever made a poor decision that was big enough that most of your friends and family members knew about it? If you have, you know exactly what I mean. If not, believe me when I say it can be totally demeaning and embarrassing. Often a situation like that makes you feel like a child again—insecure and powerless. For that reason, many potential clients will stall making the decision to use your services. Knowing that this could be a challenge, your primary goal should be to help them feel secure with you. Let them know they are not relinquishing total power to you. You are simply acting in their behalf, performing a legal service they need. 6. They are afraid of the unknown. A lack of understanding is a reasonable cause for delaying any transaction. If your company has national name recognition, that should help eliminate some of this fear. If you work for a local company, I suggest you work with your fellow associates to earn a great local reputation. It will save you a lot of time over the years. Some of the most common fears may seem irrational to you, but remember, you are an educated, professional expert. You have eliminated the unknown from being a potential fear through your own education and personal experience. You have already been involved in more transactions in your career than the average person will be in his or her entire lifetime (unless they join the ranks of sales professionals themselves). Become an educator and they will respond by becoming clients. 7. Your clients may have had a bad past experience with another firm. Have they ever made a decision like this before? If they have, what kind of experience was it for them? You need to ask the proper questions to get those answers. If they hesitate to tell you, you may assume it was a bad past experience and you’ll have to overcome a lot more fear than if they’ve never hired your type of services before. 8. Their fear may be based on third-party information. Someone they admire or respect may have given them some advice that holds them back from making a decision. That third party will stand between you and them until you convince or persuade them that you can help them more than that person because you are the expert. You’ll have to work hard to earn their trust. You may even have to enlist the aid of some of your past happy clients as references. Form the mindset of constantly asking yourself “What fear is this person demonstrating and how can I address it?” Draw from experience with other clients and be patient in helping potential new clients develop their level of trust in you. n

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DTIGlobal.com Attorney Journal Orange County | Volume 107, 2015

LEADERSHIP in ACTION Natural born leader Ashleigh Aitken, President of the Orange County Bar Association, uses her law degree to serve others in the courtroom and the community by Jennifer Hadley

“My philosophy is that no matter what career path you choose, follow your values and find a way to use your talents to leave others in a better place. While I didn’t always know I wanted to be an attorney, I knew I wanted to be a positive force in my community,” says Ashleigh Aitken, Of Counsel at Aitken*Aitken*Cohn. Today, Aitken serves others in a multitude of capacities. She was recently installed as President of the Orange County Bar Association (OCBA), which boasts a membership of over 9,000 lawyers. But that’s far from the only leadership role she fills. She also serves as a Girls Scouts of Orange County (GSOC) Troop Leader, and was honored by the GSOC with their Celebrate Leadership honors in 2014. She is a past president of Orange County Woman Lawyers, a past chairwoman of Anaheim’s Community Services Board, and Aitken is presently the Chairwoman of the 32nd District Agricultural Association (AKA the OC Fairgrounds), which oversees all activities and policies affecting the 150-acre property and has a $29 million operating budget.

16 Attorney Journal Orange County | Volume 107 2015

All of these responsibilities are in addition to raising three small daughters with her husband and colleague at Aitken*Aitken*Cohn, Michael Penn. To boot, Aitken also works tirelessly as a trial lawyer on high-profile cases such as Vego v. Southern California Edison for the plaintiffs-only trial firm founded by her father Wylie Aitken in 1969. With such an incredibly busy, full life it would be reasonable to expect Aitken to be stressed, exhausted, even cranky. But nothing could be further from the truth. Aitken has an easy laugh, and a playful self-deprecating personality, which is balanced by a deep-seated desire to help others. Though she chose to do so via a career as a trial attorney, she admits that it wasn’t her planned career.

Learning to Lend a Hand “My father is one of the preeminent trial attorneys in the country. I grew up watching him help others in our community, and fight and change the way the law protects and assists consumers and injured victims. Watching him devote his talents to helping others inspired me to make sure that no matter what path I chose, I needed to be fiercely passionate about it,” Aitken says. In addition, she says, “My parents always taught me that it doesn’t cost anything to be kind. If you treat everyone how you want to be treated, you will sleep well at night.”

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OF THE MONTH

2015 2014

The firm of Aitken*Aitken*Cohen (Left to Right): Atticus Wegman, Richard Cohn, Michael Penn, Ashleigh Aitken, Wylie Aitken, Darren Aitken, Chris Aitken and Casey Johnson

After earning her undergrad degree from Boston College, Aitken landed a job with then-Democratic Leader Richard A. Gephardt in Washington D.C. “I loved politics and public service and was inspired to move beyond studying public policy and get real life experience in how laws get made. I was amazed at how

many lawyers were working on The Hill,” she recalls. Chuckling she adds, “Prior to that, my frame of reference for lawyers meant trial lawyers, and all of the sudden I was working with top policy advisors that specialized in environmental law, labor law, healthcare law, elections law, etc. They were using their talents to make laws.”

Attorney Journal Orange County | Volume 107, 2015

Finding Her Way to the Family Firm Aitken is honest when she says that she felt a need to “make her own way,” in her legal career. “I did want to step out of the shadow of my father, but my last name was a bit of a giveaway,” she laughs. However, she says that the first 10 years of her career allowed her to have experiences she wouldn’t have otherwise had, if she’d immediately gone to work at the 18

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family firm. “I wouldn’t trade my experiences for the world. Working at big firms and being a prosecutor introduced me to so many different personalities. Each boss has different strengths, their writing was unique, and it made me a wellrounded attorney,” she says. Still, there was a lot that appealed to her about joining her father, her two brothers, her husband, and the other highly revered attorneys at Aitken*Aitken*Cohn. “I wanted to join my family firm and practice law with my father—a legend—and my equally distinguished firm family. I wanted to continue to use my law degree to effectuate change and outside of the prosecutor’s office, plaintiff’s law is a great way to do it. You get the joy of working with real people and helping them during the lowest times of their lives.” “We only represent victims, whether it be an injured party, the surviving family of a decedent or a wronged executive, business or business owner who are often victims of their own insurance companies. We are plaintiff-only trial lawyers and battle with the big comfortable corporate entities that far too often take advantage of the average person and each other. We do so on a contingent basis both to be affordable, and to share the risk with our clients.” The cases that Aitken*Aitken*Cohn take on often include high-profile cases, which the firm uses to better protect the average American. A prime example that Aitken worked on includes Vego v. Southern California Edison. “This was the saddest case I’d ever heard of,” Aitken says. “I remember reading about it in the paper on a weekend morning, and an hour later getting a call from my landscaper’s wife. She started telling me about the facts: an electric wire from a big power line fell into the back yard and the father, mother and oldest son die in front of the then 16 and 10 year old children. That kind of horror story is unreal.” Over the next year, Aitken devoted her time and efforts to the family, shepherding them through family law court, juvenile court and the civil lawsuit. “Not only were we able © christopher TODD studios

Aitken admits to enjoying seeing that side of the law at work, but she also found herself with a burgeoning interest in getting into a courtroom. “I wanted to enforce and fight in the courtroom for the ideals behind the laws being crafted and created,” she says. Aitken was soon accepted into the University of Southern California’s Gould School of Law. Aitken’s summer associate stint with Nossaman Guthner Knox & Elliot in Irvine led to an offer of associate position as a litigator upon being admitted to Bar. “I focused on condemnation, land use and employment law issues,” she says. From there she took a position within the litigation department of Morrison & Foerster where she handled all aspects of civil business litigation practice, encompassing complex actions in contracts, business torts and consumer class actions. “I knew I wanted to try cases, and I was lucky to be at firms that had confidence in young attorneys to strike out and get in the courtroom.” But in 2008, an opportunity arose that Aitken couldn’t pass up. “I was approached about joining the US Attorney’s office, and I knew from my first interview that I had to work there. It was the perfect intersection of my love of trial work, and using my law degree for public service. I can’t quantify the lessons and experience I gained from that position. I was able to prosecute those engaged in child sex crimes, armed bank robberies, mail and wire fraud, narcotics and firearm violations and immigration offenses. There was never a dull moment and it was always meaningful,” she says.

Legacy of Leadership With all of the tragedy that the firm deals with, Aitken says that the people who she works with are the reason that she can tolerate the injustice and the suffering she sees her clients go through. “I’m very lucky to work in the firm I work in. The kindness and the compassion of my colleagues is inimitable. They are genuinely nice, funny people. Our business model is also one of giving, which is why people like working with us.” Indeed, Aitken says it is those who she works with who inspire her to lead beyond the walls of the firm or the courtroom. “I am inspired to do good things when I am at work. But inspiration comes from the top and can’t be faked. I sometimes think I am crazy in taking on a new

cause, but when I look at others in my firm, I am humbled by their example. As a firm we all volunteer each year at the Cal State Fullerton Special Olympics in honor of Kathleen Faley. It is so inspiring to have our dedicated staff alongside the attorneys in a day dedicated to such amazing special needs athletes.” Beyond that, Aitken says, “Each attorney gives back in our office. My brother Darren is a former President of OC’s ABTL chapter and is the Vice President of the Public Law Center , and the immediate past president of Constitutional Rights Foundation. Rich Cohn is involved with the United Cerebral Palsy of OC. Chris Aitken is the former Chair of Laura’s House. Casey Johnson is the President of OC trial lawyers. My husband, Michael, is a mock trial coach and is very active in our church … and Wylie volunteers with everything. He is the Chair of the California Arts Council and Vice Chair of the Board of Trustees at Chapman University.” Aitken is also quick to point out that the matriarch of the Aitken family deserves a great deal of credit for her role in inspiring and encouraging Ashleigh, her father and her siblings. “Hands down, I would not be where I am today without the daily love and encouragement my mother has given me. She is my number one fan, thinks every case I am working on is the most interesting case in the world, attends every trial, and has a reassuring and sympathetic presence. She is a model of grace under pressure, plus she tells me I am the prettiest girl in the world, which some days, especially mid-trial with my roots showing, I really need to hear,” she jokes. For all of Aitken’s levity, underneath it lies sheer determination to do well for her clients, and fierce resolve to serve those around her, whether they be victims her firm is helping, attorneys who have referred clients to her, attorneys who have asked for assistance as co-counsel, or even for young, © christopher TODD studios

to secure the confidential settlement, but the PUC later came out and issued a $25 Million fine for Edison’s negligence, the largest single fine for a death in the history of the PUC,” she says. “It reaffirmed the theory we developed and provided to them, that Edison had long-ignored the blatant safety issue in this neighborhood, because it was a working-class, poor neighborhood.” “That is the beauty of what we do. We not only assist families in navigating a complex legal system and fighting for just compensation for their loss, but we force major corporations to re-examine their policies to prevent further victimization of the public. No major tragedy happens in a vacuum. Corporations calculate how much safety is necessary and cost-effective. It isn’t until lawyers start uncovering evidence of intentional wrongdoing and negligence, and involving state and federal authorities, that consumers and victims are properly served. Today the airwaves are flooded with Edison’s warnings shleigh with and instructions on how to her husband, deal with fallen wires, and Michael Penn, and hopefully lives are being daughters Violet, saved,” Aitken says proudly. Simone and Colette

Attorney Journal Orange County | Volume 107, 2015

EXPERIENCE

new attorneys looking to carve a name for themselves in the community. “I encourage everyone to get involved in their community. It is too easy to isolate yourself behind your desk or in the law library and it can create a lonely existence. The benefits of actively using your bar memberships, whether in the OCBA or an affiliate bar, cannot be measured. Relationships with other attorneys have a huge impact on the success of your business. I have always loved meeting lawyers outside my practice area. I never fail to learn something after spending an evening or lunch talking to a lawyer at a community event,” she says. As far as her own future is concerned, Aitken says that she plans to continue in the family tradition of compassion and excellence in advocacy through serving others. “I have been so blessed in my life I cannot claim to have received anything less than the Golden Ticket. I am able to do what I love and practice law with the people that I love, each and every day. People come to us at times of tragedy and loss, and as a team, we are blessed to be able to use our talents to ease their burden. My luck continues to this day, as I am privileged to practice in a county that is home to some of the most intelligent, compassionate and talented attorneys and judges in the nation.” n

» EDUCATION • University of Southern California Law School, Los Angeles, CA • Juris Doctor, May 2002, Admitted: California, December 2002 • Boston College, Boston, MA • Bachelor of Arts (Secondary Education and History), cum laude, June 1997

» PUBLICATIONS AND PRESENTATIONS Presenter: • Chapman University, Issues of Women in the Law, November 2014 • Consumer Attorneys of California, Deposition Skills, November 2014 • Celtic Bar Association, Debunking Myths of Substance Abuse, September 2014 • Hispanic Bar Association, Debunking Myths of Substance Abuse, May 2014 Consumer • Attorneys of California, Elimination of Bias, November 2013 • Consumer Attorneys of California, Tactics in Opening Statements, November 2013 • Whittier Law School, Issues of Women in the Law, October 2012 Publications: • Bringing it Home: Some Strategies for a Successful Mediation Negotiation, by Dean J. Zipser and Ashleigh E. Aitken, Orange County Lawyer, November (2006). • Pre-Trial Motions, California Litigation Review. Co-authored the chapter on pretrial motions in the California State Bar Litigation Section’s yearly update of California law (2005, 2006).

» AFFILIATIONS • Orange County Women Lawyers, Past President and Board Member (2002-present); • Orange County Bar Association President (2015) • Orange County Bar Association, Board Member (2004-2010); • Celtic Bar Association, Vice-President and Member (2002-present); • Association of Business Trial Lawyers, Member;

Contact: Ashleigh E. Aitken Aitken*Aitken*Cohen www.aitkenlaw.com Ashleigh@aitkenlaw.com 3 MacArthur Place, Suite 800 Santa Ana, CA 92707 (866) 434-1424

• Hispanic Bar Association, former Vice-President and Board Member, Member (2002-present); • Orange County Bar Foundation, Board Member (2004-2007); • Member, Central District of California, Pro Bono Panel; • South Coast Repertory Theatre, Gala Committee Member (2005-present); • MOMS Club, Anaheim Hills West, Vice-President (2007-present). • Consumer Attorneys of California (CAOC)-Board of Governors at Large (2012) • Appointed by Gov. Jerry Brown to the 32nd District Agricultural Association, Orange County Fair Board (2012)

» HONORS AND AWARDS • Attorney of the Year, Orange County Women Lawyers, 2013 • Super Lawyer, Super Lawyers magazine, 2013, 2014 20 Attorney Journal Orange County | Volume 107, 2015

• Rising Star, Super Lawyers magazine, 2005-2007, 2012

UNDERSTANDING & WORKING WITH

ANXIETY by Jeena Cho This was originally published on Lawyerist on July 29, 2014.

ace it: anxiety is a part of your life. As lawyers, we are constantly pressured to deliver results for our boss, opposing counsel, the court, and most importantly, our clients. Regardless what can be controlled, we are expected to foresee what could go wrong with every correspondence, motion, hearing, email, settlement agreement, and contract. It is no wonder that so many lawyers suffer from anxiety, among other illnesses. For most lawyers, anxiety is just another facet of life. In our do more culture, this means billing as many 0.1 increments as possible. Often, we do not realize how much stress we are under until we go on vacation—assuming we left our computers and phones behind. Despite the prevalence of anxiety among lawyers, we rarely discuss healthy ways of managing it. To learn more about anxiety, I reached out to Joe Gilbert, a Licensed Professional Counselor in Raleigh, NC. Gilbert says: Our brains are hardwired to scan our environment for potential threats. This served a purpose when our cavemen/ cavewoman ancestors faced legitimate threats of starvation, attack by another tribe, or being an appetizer to a large animal. “Fight or flight” was necessary to stay alive. Thinking about anxiety as an evolutionary response is helpful, as we often try to understand our anxiety from a logical place. According to Gilbert: Most of us don’t face matters of life or death on a regular basis, [yet our] brain still tries to justify why we are feeling anxious. We may wake up feeling restless, irritable, or worried, and then our brain tells us “there must be a reason for this!” and works hard to find an answer to justify these 22

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feelings. In our culture of “knowing,” we believe that if we can find the logical answer, then we’ll feel better. Unfortunately, logic and analytics don’t always apply to human behavior. Often, stress and anxiety fuels our motivation and drive. As a caffeine-fueled insomniac, I was certainly no exception. I would suffer from stomachaches starting on Sunday evening, which mysteriously subsided in time for Friday happy hour. However, I did not see this as a problem, as many lawyers I knew also lived this way. Our anxiety gives us a feeling of purpose and meaning; after all, the work must be important if it is making us miserable. After nearly a decade of living with persistent anxiety, I finally took action, and found healthier ways of working with anxiety. I started practicing mindfulness and meditation daily, and went through cognitive behavior therapy. What I know now is that debilitating anxiety does not have to be a part of law practice.

TIPS FOR HEALTHY WAYS OF RELATING TO ANXIETY Breathe. Breathe. And Breathe: This is Gilbert’s first piece of advice, and has consistently worked for me. Our breath is a gift that is always under our nose. It is an anchor in stressful situations, and reminds us that we are living beings, not machines that are supposed to run perfectly. Reciting a mantra or prayer can help as well. Two of Gilbert’s favorites are: “This too shall pass” and “Easy does it.” Smile: Smiling loosens up the facial muscles and helps us relax. Focus on where the tension is in your body. Many of us carry anxiety in our forehead, throat, shoulders, chest, abdomen, and

hands. If we can relax those parts of our body, it might help relax our mind as well. Honesty: One of the most powerful—and paradoxical—tools we have at our disposal is being honest, and naming what we feel. A surefire way to diffuse anxiety is to name it. Change Your Behavior: Gilbert offers the following mantra to his clients suffering from anxiety, “Move a muscle, change a thought.” If you are having an anxious thought, chances are that further rumination is unnecessary. Go for a walk or a run. Talk to a friend. Pick up a pen and journal. Toughing it out or fighting through anxiety may be a way to avoid the underlying issue. He encourages people to “put down the boxing gloves, and learn to dance with anxiety.” Write Your Worries: Slow your thoughts down to the speed of writing by journaling (with pen and paper, not on a computer). Ask for help, even though this can be hard. Talk with a trusted friend. Everybody experiences anxiety, even if they have a different word or definition for it. Good vs. Bad: According to Gilbert, labeling anxiety as bad can actually make it worse. In the field of mental health, there is a saying that may help explain this: “It’s not important how you feel, but how you feel about the way that you feel.” So when I feel anxious do I add a layer of judgment to this feeling? Am I mad at myself for feeling anxious? Do I believe I shouldn’t feel anxious? Rather than thinking about anxiety in terms of “good vs. bad,” I suggest focusing on healthy or unhealthy ways of relating to our inevitable anxiety.

Back to Basics: It is important to maintain adequate sleep (typically 8 hours a night), exercise regularly, eat healthy foods, drink plenty of water, and cut out vices such as sugar and tobacco. Try meditation, yoga, or another form of mind-body awareness practice.

KNOWING WHEN TO GET HELP How do you know when it is time to get help for your anxiety? “If you’ve been using the tools mentioned above for 90 days, and you still feel that anxiety is causing significant problems in your life domains [family, work, social, physical], seek professional help,” says Gilbert. I was not aware of how anxious I was until I learned to stop living with it. Today, I feel grounded, happier, and at ease. It was not an easy process. Having spent over a decade with anxiety, it was a part of my life and identity. However, the payoff from getting help was immense. I no longer suffer from insomnia, headaches, backaches, or stomachaches. Additionally, I am a better lawyer because I can stay calm and present in difficult situations. Start addressing your own anxiety with these tips from Dr. Gilbert, and seek help if you need to. n Jeena Cho is a partner at JC Law Group PC, a bankruptcy law firm in San Francisco, CA. In addition to her legal practice, Jeena teaches mindfulness and meditation to lawyers. Her second book, The Anxious Lawyer (ABA), will be released in 2015. You can find her on Twitter @jeena_cho.

Attorney Journal Orange County | Volume 107, 2015

It wasn’t all that long ago that lawyers’ concept of turnover was limited to showing empathy when their corporate clients bemoaned its disruptive effect and insidious cost. A client moving down the street was rare. Like other symbols of the cherished days of expanding demand, what the American lawyer called the Golden Age of law firms, client turnover is now a daily threat. These days, the name of the game is attract and retain. Each year, roughly 20 percent of successful firms’ clients disappear. This means that 20 percent of your hard-earned marketing and sales success is consumed simply staying even. There are many reasons for this. Some have nothing to do with how well you served those clients and aren’t controllable, e.g., consolidation, failure, relocation, etc. It is said that ours is an 80-20 world, meaning 80 percent of any effect is from 20 percent of the causes. Law firms’ difficulty in getting and keeping clients stems from the following causal factors.

DON’T UNDERSTAND CLIENT’S BUSINESS This is the biggie. In survey after survey, and GC panel after GC panel, clients consistently bemoan their primary outside law firms’ lack of knowledge about their business. This frustrates clients because they expect these firms to bring fresh thinking and creative ideas to the table; that’s hard to do when you don’t understand the game the client is trying to win. That also translates into direct overhead, as clients must pay those lawyers by the hour to learn how to be relevant.

NO DIFFERENTIATION

Attract & Retain by Mike O’Horo Mike O’Horo is a “serial innovator” in the law business. His current venture, RainmakerVT (www.rainmakervt.com), is the world’s first interactive online rainmaking training for lawyers, by which lawyers learn how to attract the right kind of clients without leaving their desks. For 20 years, Mike has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com.

Most firms’ messages are variations on the “Quality Legal Services/We’re Great Lawyers” theme, and too many firms assiduously avoid attracting attention, preferring to look just like the other “quality” firms. Research indicates that corporate buyers think all established firms are of relatively equal quality, and can’t appreciate the minor distinctions that lawyers cite in intramural discussions.

TOO FEW LAWYERS SELLING A small group of rainmakers brings in most of the business. Most everyone else services those clients and assumes that enough business will continue to show up somehow – after all, it always has. This “rainmaker,” “rain-catcher,” “mistmaker” culture is costly, especially now that rainmakers are demonstrating their willingness to move to greener pastures where their book will yield them a bigger piece of the profit pie.

CHASING FOOL’S GOLD All sales opportunities are not created equal. In fact, research reveals that, in 30 percent of selling situations, nothing is purchased, no decision is made. No law firm has a 30 percent market share, so we lose to competitors far less frequently than we lose to “No Decision.” Few lawyers know how to qualify and avoid investing precious time on a stillborn sales initiative. Fewer still have much of an appreciation for the concept of cost-of-sales.

PITCHING Pitching is telling a prospect all about your firm, your services and yourself, and hoping that the innate attractiveness of your firm and its services will motivate the prospect to go through the cost and dislocation of replacing an incumbent. Selling means using the questioning and listening skills that made you a great lawyer, in a disciplined way, to learn which of this prospect’s many problems and challenges are not being solved satisfactorily. Learn which problem this prospect already wants to say “Yes” to having help with.

TUNNEL VISION This means looking for business only in your own practice area, e.g., tax lawyers looking only for tax work, employment lawyers seeking only employment work, etc. 26

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One corporate lawyer, seeking to groom biotech startups, had begun a relationship with a university’s business incubator. During a coaching session, he complained of a recent meeting at which the department heads kept steering the discussion back to a technology transfer problem. Exasperated, this lawyer told me: “But I wanted to talk about getting into the incubator’s startup stream.” Accepting technology transfer as the easy entry point and bringing in his IP colleagues didn’t occur to him.

FAILURE TO CROSS-SELL Studies show that, on average, firms’ Top 100 clients buy only a handful of the two dozen services typically offered. Tunnel vision is a major cause of this failure, but so is the productorientation that prevents lawyers from seeing that demand for their services is based on the importance of the underlying business problem that the client must overcome or control, not on how skilled they are as lawyers.

NEW PARTNER SHOCK Even today, despite a decade of evidence of the criticality of business acquisition, some newly-minted partners still awaken belatedly to the harsh reality that partnership includes developing business, whether the firm and they have prepared for it or not.

PRODUCT CYCLE BLINDERS Law firms are premium-priced manufacturers of custom products tailored to client needs. But needs change. Nothing 2014 Fragomen Attorney Journal OC - 5th Proof.pdf 1 1/7/2015 3:25:28 PM

is in demand or commands a premium price forever. Lawyers must learn how to recognize emerging needs that yield great value and command premium prices.

WINNING IS A GREAT LEARNING TOOL Despite two decades of marketing evolution, some law firms still fear that bold, assertive sales and marketing will alienate their clients. But, those same corporate clients invest billions in sales and marketing. They know it’s critical, and they know it works. Law firms have always sought the best people. Now, the definition of “best” has changed. Besides top legal work, the best need marketing and sales skills that once were a luxury, found only in what were (falsely) perceived as “natural” rainmakers. What was once the ceiling is now the floor. Lawyers know the importance of these skills, and they know they must acquire them—either at their current firm or at another one. Progressive law firms are overcoming obstacles to attracting and retaining clients through proper business development education, training and guidance. Education provides the knowledge and a common language with which to propagate it. Skill building requires coaching and continuous guidance while the skill is practiced. Ideally, lawyers apply sales and marketing lessons in real situations, guided by the unseen hand of their coach. Today, marketing, sales and client service training is a strategic tool that, used consistently, delivers dramatic results. And, winning is a great learning tool. Learn now. The first-est get the most-est. n

Attorney Journal Orange County | Volume 107 2015

McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq. Monty A. McIntyre has over 29 years of experience as a mediator and arbitrator. More than 34 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at (619) 233-1323 or kelsey@adrservices.org

CALIFORNIA COURTS OF APPEAL Arbitration Ruiz v. Moss Bros. Auto Group, Inc. (2014) _ Cal.App.4th_ , 2014 WL 7335221: The Court of Appeal affirmed the trial court’s denial of a petition to compel arbitration. The Court of Appeal concluded that Moss Bros. did not present sufficient evidence to support a finding that an electronic signature on its proffered arbitration agreement was the act of Ruiz. (See Civil Code section 1633.9; Evidence Code section 1400.) (C.A.4th, December 23, 2014.) Bower v. Inter-Con Security Systems, Inc. (2014) _ Cal.App.4th_ , 2014 WL 7447677: The Court of Appeal affirmed the trial court’s denial of a petition to compel arbitration of a putative class action alleging failure to provide meal and rest breaks and other claims. The Court of Appeal observed that the rules regarding waiver of arbitration are similar under both Federal law and California law. The trial court properly ruled that Inter-Con waived its right to compel arbitration by engaging in class-wide discovery, and properly inferred from Inter-Con’s actions that it made a tactical decision to resolve the matter on a class-wide basis in the judicial forum when the class size appeared to be small. (C.A. 1st, December 31, 2014.) Montano v. The Wet Seal Retail, Inc. (2015) _ Cal.App.4th _ , 2015 WL 84677: The Court of Appeal affirmed the trial court rulings denying defendant’s petition to compel arbitration and granting plaintiff’s motion to compel discovery responses. The trial court properly ruled that plaintiff could not waive her PAGA claims (see Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348), and therefore the arbitration agreement’s nonseverability provision made the entire agreement void and unenforceable. The trial court was not barred by Code of Civil Procedure section 1281.4 from ruling on the discovery motion, because that motion was decided after the petition to compel arbitration was denied. (C.A.2nd, January 7, 2015.) 28 Attorney Journal Orange County | Volume 107, 2015

Civil Procedure Hardy v. America’s Best Home Loans (2014) _ Cal.App.4th _ , 2014 WL 7247385: The Court of Appeal reversed the trial court’s order granting a motion for judgment on the pleadings. Because only California law claims were alleged in the current state court action, California law applied when ruling on the effect of a prior federal court dismissal of an action alleging both federal and state law claims. Under California law, collateral estoppel did not bar the state court action because the prior dismissal for failure to prosecute was not a final decision on the merits. (C.A. 5th, December 22, 2014.) J.B.B. Investment Partners, Ltd. v. Fair (2014) _ Cal.App.4th _ , 2014 WL 7421609: The Court of Appeal reversed the trial court’s ruling granting a motion for a judgment under Code of Civil Procedure section 664.6. A settlement agreement cannot be enforced under section 664.6 unless it is signed by all of the parties. Defendant Fair’s printed name at the end of an email, on the document sought to be enforced as a settlement, was neither an electric signature as required the California Uniform Electronic Transactions Act (Civ.Code, § 1633.1 et seq.), nor did it constitute a signature under contract law. (C.A.1st, filed December 5, 2014, published December 30, 2014.) Mesa Shopping Center-East, LLC v. O Hill (2014) _ Cal. App.4th _ , 2014 WL 7335226: The Court of Appeal reversed the trial court’s order denying defendant’s motion to vacate the plaintiff’s dismissal of the action without prejudice. Because the court action and an arbitration proceeding were not separate proceedings, Code of Civil Procedure section 581 did not allow plaintiffs to dismiss the court action after the arbitrator had issued a interim award in favor of the defendants. The case was remanded for the trial court to rule on attorney fees. (C.A. 4th, December 23, 2014.)

Construction Pittsburg Unified School District v. S.J. Amoroso Construction Co., Inc. (2014) _ Cal. App.4th _ , 2014 WL 7250115: The Court of Appeal affirmed the trial court’s denial of the contractor’s motion for preliminary injunction regarding retention funds.

A public entity owner that has entered into an agreement providing for a retention may unilaterally determine, before any judicial determination has been made, that a contractor has defaulted on its obligations under the construction agreement and draw on funds or securities held in a retention account. (C.A. 1st, December 22, 2014.)

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Settlement J.B.B. Investment Partners, Ltd. v. Fair (2014) _ Cal.App.4th _ , 2014 WL 7421609: See summary above under Civil Procedure.

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State Ready Mix, Inc. v. Moffatt & Nichol (2015) _ Cal.App.4th _ , 2015 WL 109869: The Court of Appeal upheld the trial court’s order sustaining a demurrer, without leave to amend, to a crosscomplaint for indemnity and contribution. State was sued for preparing a bad batch of concrete used to construct a pier. State cross-complained against the civil engineer. The cross-complaint was barred by the economic loss rule. (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) State could not seek equitable indemnity or contribution for damages caused by the breach of its own contract. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041-1044.) (C.A. 2nd, January 8, 2015.) n

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The President’s Executive Action on Immigration What Does it Mean? by Mitch Wexler Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy, LLP. He manages the firm’s Irvine & Los Angeles offices. He has been practicing immigration law for over 29 years and is a Specialist in Immigration & Nationality Law, certified by the State Bar of California, Board of Legal Specialization. He welcomes all queries to mwexler@fragomen.com or (949) 660-3531.

On November 20, 2014, President Barack Obama announced a number of administrative fixes to the enforcement and process of US immigration law that could positively affect noncitizen family members who do not have lawful immigration status. There are also numerous employment-related provisions that are not the subject of this article. On the family-based front, the President’s message was that the US government was going to use its resources to deport “felons, not families.” After these changes in enforcement priorities, there are three programs that could greatly benefit undocumented immigrants who have significant ties in the US: (1) Deferred Action for Parental Accountability (DAPA); (2) an expansion of Deferred Action for Childhood Arrivals (DACA); and (3) an expansion of a “stateside Provisional Waiver.” If you are no longer in lawful immigration status or never had lawful immigration status, depending on your circumstances, you may qualify for one or more of these programs. Both DACA and DAPA are nearly identical in terms of the benefits derived from these programs. Successful applicants for both programs will receive relief from deportation and a work permit for three years. If DAPA is like DACA, it will be renewable after the initial approval period. Additionally, there is a possibility that DACA and DAPA recipients can receive permission from the Department of Homeland Security (DHS) to return home and reenter the US without forfeiting their newly acquired legal status. To qualify for DAPA, the foreign national must have (1) a US Citizen or lawful permanent resident (LPR) child; (2) five years of physical presence in the US; (3) not be deportation priority (including not having certain criminal convictions); and (4) have paid taxes. DACA requires a similar set of considerations, except the noncitizen must have been physically present in the US since before the age of 16 and have graduated or be currently enrolled in high school at the time the application is filed. Fortunately, DACA expanded its eligibility from people who were 31 and younger at the time of the initial announcement to anyone at any age, so long as they entered

30 Attorney Journal Orange County | Volume 107, 2015

before turning 16. Additionally, the DACA validity period was expanded from two to three years. It is important to note, however, receiving relief under DACA or DAPA is not the same as having a green card and, though unlikely, the programs could be cancelled by future presidents. President Obama also expanded the class of eligible people for the stateside waiver program. Under some circumstances, marriage to an LPR or US citizen will not enable the foreign national to apply for a green card in the US. If the noncitizen does not qualify to receive their green card in the US, foreign nationals will need to return to their home country and apply at the consulate. Unfortunately, depending on the circumstances of entering the US and of the amount of time resided in the US without permission, a noncitizen may be subject to a 3/10 bar upon exit of the US. There is a waiver for the 3/10 bar, but that process can be lengthy and in some cases take up to 18 months. The significant amount of time being separated from many foreign nationals’ loved ones served as a deterrent to applying for this waiver. Thus, in January 2013, President Obama announced a provisional waiver that would allow qualified applicants to wait for their consular interviews inside the US. One of the biggest criticisms of the initial program was that only foreign nationals with US Citizen Spouses could request the waiver, though green card holders could also request a waiver for their spouse, if the undocumented spouse without status was willing to wait outside the country. Fortunately, the Obama Administration changed the rules on who can apply to be in line with the consulate rules. Now, a US Citizen Spouse or an LPR Spouse, whose visa is immediately available, can file for a waiver of the 3/10 year bar and the undocumented spouse can remain in the US while waiting for the green card interview at the US consulate abroad. Although highly controversial, through these programs President Obama is making strides to create an immigration system that tries to keep families together and to give people with deep roots in the US an opportunity to stay. n

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