Serving San Luis Obispo County’s Legal Community March–April 2020

Attorney, Arbitrator, Author— Meet the Accomplished David Warren Judge Teresa Estrada-Mullaney Made a Difference in a Career Filled With “Firsts”

ADDRESS SERVICE REQUESTED San Luis Obispo County Bar Association PO Box 585, San Luis Obispo, CA 93406 2 March–April 2020 www.slobar.org SLO County Bar Bulletin SAN LUIS OBISPO COUNTY BAR ASSOCIATION

2020 Board of Directors CONTENTS President Stephanie Barclay President’s Message—Vacations & Memberships Vice President Bring You Benefits 4 Joe Benson Editor’s Message 5 Secretary/Treasurer State of the Courts Reviewed in January 6 Trevor Creel Congratulations to James Murphy, 2019 Trial Lawyer 9 Immediate Past President Michael Pick Saying Yes to Your Heart’s Desires 10

Directors Creative Arbitration—Put These Ideas to Work 12 Ryan Andrews Kevin Elder Secret Lives of Lawyers— Michelle Gearhart David Warren Writes for the Thrill of It 14 James Graff-Radford “Temptation’s Prisoners”—A Book Review 16 Matthew Guerrero Kara Stein-Conaway Have You Met? 18 Lisa Toke Teresa Estrada-Mullaney—Breaking the Mold Bulletin Editor and Making a Difference 20 Raymond Allen U.S. Supreme Court Takes Up the First Ex-Officio 2nd Amendment Case Since Heller in 2008 26 Sheryl Wolcott “The Time Is Now” SLO Women’s March 24 Sections “Taking Up the Cause” of Financial Elder Abuse 26 Bar Bulletin Editorial and Advertisement Policy 30 Alternative Dispute Resolution Ray Mattison (805) 544-1232 Cover – Attorney David Warren. Photo by Christine Joo. Civil Litigation Gordon Bosserman (805) 543-4171 BAR BULLETIN COMMITTEE Criminal Defense Joseph Parker (805) 369-1413 Editor: Raymond Allen — (805) 541-1920 [email protected] Estates and Trusts Herb Stroh (805) 541-2800 Photographer: Christine Joo— [email protected] Family Law Greg Gillett (805) 980-9002 Publisher: Joni Hunt — [email protected]

Labor & Employment Law Advertising: Nicole Johnson — (805) 541-5930 Jane Heath (805) 225-1773 [email protected] The Bar Bulletin, ©2020, is published six times a year by The San Luis Obispo County Bar Real Property Law Association, P.O. Box 585, San Luis Obispo, CA 93406, (805) 541-5930, and subscription is included in the membership dues. The Bar Bulletin welcomes and encourages articles and Kevin D. Elder (805) 541-2800 letters from readers. Please send them to Raymond Allen at the above e-mail address. The San Luis Obispo County Bar Association reserves the right to edit articles and letters for Emerging Lawyers publication. All material herein represents the views of the respective authors and does not Michael Chaloupka (805) 544-0100 necessarily carry the endorsement of the San Luis Obispo County Bar Association, its Board of Directors, its committees, and/or its sponsors and advertisers, unless specifically stated.

SLO County Bar Bulletin www.slobar.org March–April 2020 3 by Stephanie Barclay

Vacations & Membership Bring You Benefits…

am back from Thailand Plan a vacation now. I’m already Tenant Protection Act of 2019. feeling jet lagged but thinking about my next trip. Then, April 16, Ventura- recharged! For the first The monthly bar meetings are based trial attorney Matthew time in more than six years, an essential part of bar participa- Haffner presents “Winning from I completely disconnected while tion. I am very grateful to San the Beginning—Jury Selection on vacation. I had no contact with Luis Obispo Bar Vice President and Opening Statements.” We are work from the moment I left Joe Benson for leading the State lucky to have these out-of-town the airport until the moment of the Courts meeting in January. experts present to us, and I hope I returned to the airport—12 I heard it was an excellent presen- you all can take advantage of glorious days. tation and I am sorry I missed it. these opportunities. I am one of the few fortunate I am really excited about our On January 25, while it was attorneys who actually loves March 19 speaker, Madeline 74 degrees in Avila Beach, your their job, but it is demanding and Howard, who is senior staff attor- board of directors met for our neverending, and I have never ney from the Western Center on annual “retreat” (meeting) at had good work-life boundaries. Law & Poverty, a statewide advo- the lovely conference room of It’s a problem and I know it. I was cacy organization with offices Adamski Moroski Madden & determined to disconnect this trip in Los Angeles, Sacramento and Green, LLP to discuss our plans and I succeeded. I turned off all Oakland. She comes to San Luis and goals for 2020. At the meet- calendar and email notifications, Obispo to discuss changes in ing, a board member shared that did not set up international wifi housing law (and in case you’ve some attorneys had questioned or roaming on my cell phone and been asleep for the past few the benefit of joining the San Luis left my office in the office. I trust- months, there are a lot of changes). Obispo Bar Association. ed my co-workers to handle Howard is the organization’s It took me a few minutes to everything and I knew I would expert on fair housing litigation, understand the question and have a huge stack of work waiting unlawful detainer appeals and articulate the benefits because, for me when I returned, but no issues impacting tenants in fore- for me, it has always been a given one would be harmed by my closed homes. She partners with that I would be a member of the absence. legal services attorneys on impact local bar where I practice law. I highly recommend that litigation to challenge discrimina- I want to work in a community everyone do this. I returned feel- tory housing practices and pre- with a strong active bar associa- ing like I actually had a vacation serve affordable housing. She tion that provides networking and could be a better mom to my travels around the state discussing and continuing education oppor- kids and advocate for my clients. housing law and the California tunities.

4 March–April 2020 www.slobar.org SLO County Bar Bulletin Let’s face it, being a lawyer membership and participation. You can update your member- is a tough job, so it’s nice to see And if that’s not enough of a ship on the bar’s website, sign up friendly faces in our court rooms reason, we also will be increasing for events there, and it’s a great and conference rooms. In order our non-member rates to attend way for future clients to find you. to have those opportunities, it bar events in order to provide I use the extended search feature requires that our bar association further incentive to join. Please on the website all the time when have dues-paying members. If check out our new and greatly making referrals. you want continuing education improved website, www.slobar. In fact, you should sign up for opportunities, summer socials, org, to sign up for events, find our next MCLE now while you’re holiday parties, specialty MCLE attorneys in specialty areas and thinking of it. I look forward sessions and other networking access past issues of our Bar to seeing you March 19 at the opportunities, join the bar asso- Bulletin electronically. Madonna Inn. n ciation because we depend on

Editor’s Message by Raymond Allen FOR YOUR utting pen to paper is prepared within the preceding CALENDAR perhaps the hardest task for five years; (B) taking an open- or Pany lawyer. Oral advocacy closed-book self-test and submit- is a piece of cake once you have ting it to a provider who returns it clearly and concisely articulated with a grade and explanations of your thoughts in a brief or motion. correct answers; or (C) authoring Because writing is admittedly or co-authoring written materials hard work, few members are that (1) have contributed to the eager to spend their precious licensee’s legal education; (2) have Bar Bulletin leisure time toiling at the key- been published or accepted for publi- DEADLINES board. It would not be unreason- cation; and (3) were not prepared in for advertisements, able to weigh the burden of the ordinary course of employment writing against the probable or in connection with an oral pres- payments and articles— benefit and come out on the side entation at an approved MCLE of gardening, hiking or surfing. activity. May/June Issue Many a writer has waxed One MCLE credit requires one March 25 poetic about the intrinsic value of hour of writing. The topic may writing. Clearly, for those writers, be anything that “contributes” July/August Issue writing is an existential endeavor. to your legal education. You are May 25 For others, some real world pay- almost guaranteed publication in off might be needed to motivate. the Bar Bulletin. Although this is In that vein, I remind all members a professional publication with September/October Issue that writing an article is another high standards, I am always July 25 avenue for Minimum Continuing seeking new content. Finally, Legal Education (MCLE) credits. the article you submit cannot November/December Issue Writing is a form of self-study be work product or a rehashed September 25 according to MCLE Rule 2.83: A presentation. licensee may claim up to half the So, if you are tired of buffet January/February 2021 credit hours required in a compli- luncheons and are interested in November 25 ance period for (A) completing garnering up to 12 MCLE credits, MCLE activities for which atten- perhaps it is time to put pen to dance is not verified by a provider paper. Please email your articles March/April Issue and the MCLE activities were to [email protected]. n January 25

SLO County Bar Bulletin www.slobar.org March–April 2020 5 State of the Courts Reviewed in January by Raymond Allen Photos courtesy of Christine Joo

he Honorable Jacquelyn Duffy has succeeded the Honorable Ginger Garrett as Presiding Judge of the San Luis Obispo Superior Court. TOn Thursday, January 16, 2020, Judge Duffy presented the State of the Courts address at the Madonna Inn to the local Bar. A crowded room heard Judge Duffy explain the new court assign- ments for the judges. She also provided some statistical information regarding the operations Honorable Jacquelyn Duffy (left) presents Honorable at the courthouse. Ginger Garrett a plaque in appreciation for her service According to Judge Duffy, criminal filings have as Superior Court Presiding Judge. Below, Michael Pick decreased while jury trials have increased. In 2018, receives thanks for his year as Bar Association President. there were 33 jury trials; in 2019, there were 43 jury trials. This paradox might be explained by the Early Disposition Program (EDP) Court. Judge Duffy speculated that the ability of EDP attorneys to quickly address so many cases gave litigation attorneys more time to focus on difficult, serious and unresolvable cases. Civil filings, domestic violence filings and juvenile filings all increased last year, which kept local attorneys and court staff very busy. Judge Duffy also discussed some budget issues. The governor’s proposed budget contains a 3 per- cent increase in funding for the courts. Also, the loss of funds caused by indigent criminal defen-

6 March–April 2020 www.slobar.org SLO County Bar Bulletin dants’ inability to pay fines and court fees will be offset in the governor’s budget.1 Before turning the microphone over to Court Administrator Michael Powell, Judge Duffy praised the court staff as “the backbone of the court.” We are grateful, she said “for everything you do…you are valued and appreciated.” Michael Powell also praised the modest and hard-working court staff. He went through the contributions of each staff member so that all the attorneys understood how important these individuals are to the smooth operation of the courthouse—structurally, economically and administratively. Powell then discussed projects that are being pursued by the court. He said the governor’s proposed budget calls for approximately $2 billion in court construction. In the proposed budget, there is $180 million designated for a trial court capital outlay. A new trial court building is being planned for construction with a tentative completion Nicole Norris and John Fricks recruit date for the end of the 2023-2024 fiscal year. Currently, this capital volunteers to be Mock Trial scorers. outlay and construction are in the planning stages. Another project is the digitization of the old microfiche and micro- film documents. This project should take two years. It will be funded by a grant from the judicial commission. In the end, it appears that the State of the Courts is good. The Your Expertise Is judicial officers, the court administration and the entire court team Needed for These seem poised for an amazing new year. n Areas— 1 People v. Duenas 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 held that imposing court assessment fees on indigent defendants under the Government Code 70373 and Penal Code 1465.8, and restitution fines under Penal Code section • Education Law 1202.4(b), is unconstitutional. • SSI Appeals • Workers’ Compensation • North County Family Law

The Lawyer Referral & Information Service (LRIS) has an urgent need for attorneys who practice in the above areas.

We receive many calls from potential (paying) clients but have no one to refer to.

If you are interested in Back rows, from left, some of the San Luis Obispo County Bar Association receiving prescreened, LRIS Committe members: Josh George, Joe Benson, Michael Pick, John quality referrals, please Hosford. Trevor Creel. Foreground, from left, SLO Bar Association Executive call Kerrin, (805) 541-5505. Director Nicole Johnson, LRIS Executive Director Kerrin Hovarter.

SLO County Bar Bulletin www.slobar.org March–April 2020 7 Executive Office Suites Available

8 March–April 2020 www.slobar.org SLO County Bar Bulletin Central Coast Trial Lawyers Association James Murphy Receives 2019 Trial Lawyer of the Year Award by Jacqueline Frederick

t the Tort and Trial Expert Trucking, LLC. In the case, and propelling his body about Annual Review seminar a father and son were driving 40 feet with the force of the February 6, James their separate trucks hauling pressurized water. The plaintiff Murphy received the tractors on Highway 1 near sustained traumatic brain injuries TrialA Lawyer of the Year Award Lompoc. A box truck crossed the and injuries to his back and neck. for his work on the Williams v. yellow lines and sideswiped the Jacqueline Frederick invested Expert Trucking, LLC case. father’s trailer and hit the son’s more than $300,000 in the case. For 2019, three nominations truck head-on, resulting in the Immediately after the verdict was were submitted for the annual cab of the truck being propelled read and the jurors dismissed, award to the Central Coast Trial down a 40-foot ravine. The father Frederick and her associate, Lawyers Association. Case syn- observed this and believed his Sunny Hawks, who ably served opses follow. son had perished in the crash as second chair during the trial, down the ravine. spoke to most of the jurors. Anthony Kastenek and The jury awarded the father During these discussions and Ranger Wiens of the Harris $1,259,650.50 for his back injuries further interviews with jurors Personal Injury Lawyers, Inc. and general damages. The jury by Hawks, it was learned there firm were nominated for their awarded the son $3,272,795.28 for was a rogue juror who had been outstanding verdict in the case of his injuries, economic damages untruthful during voir dire, Shelley v. Ridenour that was tried and general damages. violated his oath and convinced in Santa Barbara Superior Court. James R. Murphy invested the jurors based on his own This case involved a motor more than $250,000 on behalf alleged experience to disregard vehicle accident with a plaintiff of his client and overcame an the expert testimony presented at who had suffered similar injuries extremely strong defense where trial on liability. to her neck and back six months the top pre-trial offer by the Motions for JNOV and a earlier in a slip and fall accident, defendant was a mere $20,000. new trial were denied by Judge had a history of mental and The early Code of Civil Procedure Umhofer, and the case was physical health issues and a section 998 offered to plaintiffs appealed with the assistance of checkered employment history. will yield close to another $1 appellate attorney Neil Tardiff. Despite these obstacles and an million in interest and trial costs. The Appellate Court overturned aggressive defense including four that decision and has granted expert witnesses to contradict Jacqueline Frederick was plaintiff a new trial. the plaintiff’s case, the plaintiff nominated for the case of Nodal v. The decision is a published was awarded a verdict in the Cal West Rain, Inc. for a case she decision Nodal v. Cal West Rain, amount of $264,930.71, which took on appeal and won. The Inc. 37 Cal. App. 5th 607, publish- exceeded Plaintiff’s Code of Civil jury, after a six-week trial, gave ed on July 17, 2019, authored by Procedure section 998 demand in a defense verdict in the Paso Justice Kenneth Yegan. The the amount of $215,000; entitling Robles branch of the San Luis opinion addresses issues invol- plaintiff to an additional $60,000 Obispo Superior Court before ving “rogue jurors,” juror miscon- in costs. The defense settled post- the Honorable Judge Donald duct and the grounds for a new trial for $319,000. Umhofer. trial based on such misconduct. The case involved the pressur- This is the first time since the James R. Murphy and John ized explosion of a large section 1980s that a published decision Barron were nominated for a of irrigation pipe that blew off has come from a San Luis Obispo win at trial in a case tried in Van of a vineyard irrigation system case, and it has already been used Nuys Superior Court, Williams v. striking the plaintiff in the head and cited in other cases. n

SLO County Bar Bulletin www.slobar.org March–April 2020 9 Saying Yes to Your Heart’s Desires— Even When You Cannot Justify Them With Logic by Kara Stein-Conaway

s I write this, I’m having I feared that I wouldn’t give them a “pinch me” moment. enough of myself. I’m flying from Sydney, I asked myself if it was fair to Australia, to Cairns, bring children into the world when I AAustralia, to visit the Great Barrier knew that I didn’t plan or even aspire Reef. On my left, my three-year-old to be a stay-at-home mom. I had a son Cameron is snuggled up, sleep- stay-at-home mom, so I think part of ing soundly and resting his sleepy my fear was that I didn’t know what This was one of the moments head on my left thigh. On my right, having a career while being a mom in my life when I channeled my my seven-year-old son Jackson is would look like. I didn’t have an bravery. I felt the fear, and I chose snuggled up, sleeping soundly and example for that. to do it anyway. I followed my resting his sleepy head on my right I appreciate that there are many heart instead of letting my inability thigh. Their dad (my husband), Jason, women who, like my own mom, to logically solve this problem stop is also napping in his seat across the choose to stay at home with their me from pursuing something that aisle. I am on an amazing adventure children as the next stage of their was so clearly calling on my heart. with my husband and my sons. lives once they had children. But, In 2012, two years after I fell Having this adventure with them that wasn’t what I wanted for myself. backward for the trust fall, and four was a dream that I almost didn’t allow I didn’t want to stop my career as years after becoming a lawyer, I fell myself to turn into a reality. Several a lawyer. The life I envisioned for deeply into motherhood and into years ago, I almost allowed my fear myself involved me having a career love with my first child. to deter me from realizing this beauti- where my professional world would On November 8, 2012, I gave ful dream that I am now living. be constantly evolving, where I birth and gave life to my precious Before I became a mother, I was would be learning new things and baby, Jackson. so scared that I wouldn’t be good at it. facing new challenges, and where I When I met him and Iooked I was scared that my career-focused would be continually growing. into his beautiful eyes, I knew I had nature would lead me to neglect The life I was leading as a Los arrived. My heart expanded, and I the babies that I had not yet even Angeles County Deputy Public felt totally at peace. The anxiety from conceived but that I knew I wanted. Defender during this time was before was no longer with me in that I remember attending a retreat in certainly all of those things. I felt moment. I knew that I was exactly 2010, where one of the activities was fueled and challenged by the work. who he needed. to participate in a trust fall. We climb- It was an honor to serve the clients. I recently reflected on how ed a ladder and stood on top of a New legal issues presented them- motherhood has transformed me platform. Before we fell backward off selves daily. I remember in my first as I snuggled my then six-year-old the platform and into the arms of the year of practice, after talking to jurors Jackson at bedtime on the night people below, we verbalized a fear after a trial, feeling like I just couldn’t before his seventh birthday. I breath- that was holding us back in our lives, believe that I was lucky enough to get ed him in, just as I had done on something that we needed to release. paid to do this work. November 8, 2012, when I had met For me, it was the fear that At the same time, and despite my him for the first time. I wouldn’t be a good mother. palpable fears, there was something Seven years ago, I was me, but Where did this come from? Why huge missing in my life. I knew that there was a part of me that had not was my fear of becoming a mother— I wanted to be a mother. I wanted yet come to life. Seven years ago, I and not excelling at it—so strong? to hold my babies. I wanted to help was not yet a mother. As I celebrated It was the type of fear that I felt them grow. I wanted to share adven- Jackson’s birth and as I said goodbye in my throat but also in my heart. I tures with them. I wanted to see the to my six-year-old, and hello to my worried that since I wanted to have a world through their eyes. seven-year old, I also honored and career and wanted to make my mark My career desires versus my celebrated my own ever-expanding on the world through my work as a motherhood desires were a challenge capacity for love. lawyer and an advocate, my future that I could not work out as an My second son, Cameron, joined babies would suffer from neglect. academic exercise. our family March 28, 2016. Every

10 March–April 2020 www.slobar.org SLO County Bar Bulletin morning, he nestles his sweet little I’m a lucky mama that I get to see body against me for a morning snug- your picture at my office and come gle. I feel his precious three-year-old home after work and snuggle with chest rise and fall, and with each you, too.” breath, love fills me and breathes Cameron: “I’m a lucky Cameron out of me. that you’re my mama.” Recently, when I got home from Even though on this night the work one night, dinner was over, time I shared with Cameron at bed- teeth were brushed, and my big kid, time was short, it was precious and Jackson, had already fallen asleep. the words he spoke to me were the I don’t like to miss sharing the kindest words he could have used. bedtime ritual with my children. The I was feeling inadequate and he bedtime ritual involves me getting reminded me of something that I to hear about their days and getting knew but had momentarily forgotten to nurture them with stories and —I am enough. snuggles. It’s a time of re-connection Becoming Jackson and Camer- and it feels sacred. on’s mother expanded my heart in Staying organized, completing a way that not only increases my work ahead of the deadlines, and capacity for loving my children but maintaining focus are some of the also increases my capacity for loving measures I put in place to help me others and for loving myself. avoid missing bedtime with my Becoming their mother inspired Cameron (3), Jackson (7), Jason and Kara children. Even with all of my best me to open my own law firm, which Stein-Conaway on their recent trip to planning, I sometimes miss the bed- allows me to design a work schedule Australia. time rituals and I sometimes arrive so that I can be there for my clients home after one or both of my children and also be there for my children. Imagine the beauty in the world, are already asleep. Since becoming a mother, I have in ourselves and in others that is When I arrive home from work become a more compassionate available to be awakened by follow- after one or both of my children are human being. As a business owner, ing our hearts, and by taking the already asleep, those fears I had from I get to create a culture of kindness leap even when it cannot always be before having children resurface. I and empathy for my clients that justified by logic. feel like I am neglecting my children. I know serves them well during Is there something calling on I feel like I’m not giving them enough difficult times in their lives. your heart that you can say yes to, of me. I try to ignore those feelings This doesn’t mean that there even if you can’t justify or figure it and distract myself from those won’t be some late nights at the out with logic? I challenge you to feelings, but honestly, those are the office. There will be those nights. take a step toward it and see where feelings that come up for me. Knowing that I get to contribute to that takes you. You can probably find So, on this particular night, after the world in a way that fuels my a way to make it work in conjunction being with those feelings of inade- heart is also something special that with your career, like I did. quacy, having arrived home after I get to model for my boys. Showing I fully believe that as lawyers, Jackson was already asleep, I turned them that I can be their mother and when we are taking care of our- my focus to my baby, Cameron, who be present in their lives while also selves, our families, and those we was awake and eager for my attention. having a career that gives me purpose love, it’s from that space that we Cameron picked out his book and in a different way is important to me. contribute most meaningfully to the curled up next to me on the couch in I see myself as a multi-dimensional world and to the lives of our clients. his room. We read the book, and when woman, and I want them to see all It’s a win-win. n it was done, the following conversa- the possibilities that they have in tion took place: their lives, too. Editor’s Note: Kara Stein-Conaway Cameron: “Mama, you at work As I celebrate the kind and and Jeff Stein practice criminal defense all day?” joyful human beings I am privileged together at the Stein-Conaway Law Firm, Me: “Yes.” to mother, I also honor and celebrate P.C. in San Luis Obispo; visit www. Cameron: “You looking at me my own ever-expanding capacity for steinconawaylaw.com. This is the second and my pony picture at your office?” love and kindness. in a series of articles designed to explore Me: “Of course. I love the pony Sometimes we just need to take the the intersection of women, business, law picture of you at my office, Cameron. leap and trust that we’ll figure it out. and family.

SLO County Bar Bulletin www.slobar.org March–April 2020 11 Creative Arbitration— Put These Ideas to Work for Your Clients by David P. Warren

s an attorney In either case, the parties representing parties for and their counsel control who the bulk of my career, will arbitrate the matter. If there I arbitrated many is an organizational provider or Amatters as an advocate for both specific arbitrator designated plaintiffs and defendants. Three that counsel do not favor, they arbitration is that, while judges years ago, I stopped representing can agree to make a change. The have a number of matters to clients and have been exclusively parties can select an arbitrator handle each day, at the time working as an Alternative Dis- who is right for their matter and of the arbitration hearing, the pute Resolution (ADR) provider. whom they believe will give both parties get the arbitrator’s full There have been numerous sides a fair shot. Likewise, the attention for consecutive days, articles written about the parties can determine the location start to finish. But from the outset advantages and disadvantages for the hearing and can select the of the arbitration proceeding, of arbitration in various contexts, rules that will govern the process consideration should be given to but for purposes of this article, we (e.g. Warren Mediation, Arbitra- the structure of the proceeding assume that you are proceeding to tion and Investigation Arbitration based on the unique issues pre- arbitrate, either because there is a Rules, AAA Rules or JAMS Rules). sented and how they can be best pre-dispute arbitration agreement In the process of moving the resolved. or based upon an election to arbi- case toward hearing, the nature So, once the parties have trate once the dispute arises. and extent of permissible discov- resolved disputes, conducted My experience over the years ery can be specified by agreement discovery and are prepared to has provided tools for conducting or, if it remains to be determined, put on the case, what can be arbitrations in a streamlined and structured in the first scheduling done with the actual arbitration often creative manner. What do conference with the arbitrator. hearing and the award? Here are I mean by creative? I mean it is The arbitrator’s goal in conduct- some ideas. often overlooked that the proceed- ing such a call is to define discov- • The normal arbitration is ing can be tailored to specific ery parameters that are consistent similar to any bench trial. The issues and needs of a case. with allowing the parties what arbitrator conducts the hearing Arbitration is a creature of they need to properly prepare for and considers the evidence, its contract. In some instances there the hearing, while expediting the admissibility and the weight it is a pre-dispute agreement that process as much as possible. should be given. calls for arbitration of disputes. As the parties prepare for the • By agreement of the parties, These days, such provisions are hearing, when a discovery dis- the way in which the award is common in employment matters, pute arises, telephonic or in-person determined can be modified business, and commercial disputes hearings can be promptly sched- in creative ways that serve the and real estate and construction uled, argued and the dispute unique issues of the case. matters. If there is such a pre- resolved. Ultimately, if the case • Mini-maxi arbitrations dispute agreement, the parties does not settle, most arbitrations contemplate that the award will sometimes forget that they still are set for somewhere between not fall below a minimum agreed control with whom and in what one day and two weeks, depend- amount to protect the claimant’s manner the arbitration is carried ing on the issues to be addressed ability to recover some amount, out. If there is no pre-dispute and the extent of percipient and the award may not exceed agreement, the parties have a and expert testimony and other an agreed amount to limit the blank canvass and can design the evidence to be introduced. respondent’s exposure. The proceeding to meet their needs. One of the advantages of arbitrator can be made aware of

12 March–April 2020 www.slobar.org SLO County Bar Bulletin the mini-maxi amounts or not, as ment that contemplates settling One other thought I will the parties choose. the case with two settlement leave you with pertains to the For instance, the agreement numbers. One number becomes rights of the parties to challenge might provide that notwithstand- the settlement amount if the arbi- an arbitration award. One of the ing the award of the arbitrator, trator rules for claimant on the basis for such challenges comes the award shall not exceed issue in question and the other from Code of Civil Procedure $150,000 nor be less than $20,000. amount becomes the basis for Section 1286.2(a)(4), providing Claimant is assured some recovery settlement if the arbitrator rules that an award is subject to attack and respondent has a cap. Attor- for respondent on the critical when an arbitrator exceeds his neys’ fees can be included in lim- issues. The arbitration hearing or her powers. One way that can itations or left to the arbitrator to can then be limited to a specific happen is when an arbitrator determine. period of time, or specific witnes- issues an award that violates a • One process that many are ses and documentary evidence, party’s unwaivable statutory familiar with is “baseball arbitra- and the arbitrator asked to make rights or that contravenes an tion,” in which each side picks a findings only on the specific explicit legislative expression of number and the arbitrator must issues involved. public policy. Richey v. AutoNation, select one of those numbers. The arbitrator need not know Inc., 60 Cal.4th 909, 916 (2015). • An alternative process invol- the settlement numbers; only what It is frequently postulated ves each party selecting an out- he or she is being called upon to that additional rights to challenge come and providing it sealed. The determine. The process can reduce an arbitration award can be arbitrator reaches an award, and a three- or four-day arbitration to obtained by provisions in the the number submitted by the a single day and fill in the missing arbitration agreement requiring party that is closest to the arbitra- piece in the settlement agreement. that arbitrator “follow the law.” tor’s award becomes the award. This process gets the parties what When the arbitrator blatantly • One more variation--using they need and substantially limits departs from prevailing law, there one of the above processes, the time and expense involved. is then a significant argument allowing the parties the ability to • Whichever process you that the arbitrator’s powers were submit their proposed numbers employ, I recommend that you exceeded. at the close of the presentation of ask that the arbitrator provide a I hope the foregoing ideas the evidence, rather than at the reasoned opinion so that you and will be of assistance to you in outset, so that they can consider your client can determine how determining a creative means how the evidence came in before the arbitrator reached his or her of dispute resolution, and I wish committing to a number. conclusions. you the best in obtaining favor- • Another creative procedure able results in arbitration for allows the parties to use the NOTE—AB 51 your clients! n arbitration hearing and award Of import is that that AB 51 to facilitate a settlement along has been signed into law effective Editor’s Note: David P. Warren lines they define by agreement in January 1, 2020, adding new LC has been an attorney for 41 years. advance. While many cases settle Section 432.6, precluding employ- He is an ADR professional at prior to hearing (the numbers are ers from compelling mandatory Warren Mediation, Arbitration and similar to those in civil actions arbitration of FEHA and Labor Investigation. Warren arbitrates and in the court, often in excess of 90 Code claims in California. In mediates business and commercial, percent), in a number of instances employment litigation based on partnership, employment, real estate, there is one or two significant FEHA or Labor Code claims, it professional liability, personal injury issues that seriously affect case means that employers will have and other matters. He also serves as valuation and thereby prevent to decide whether to step back a discovery referee and undertakes settlement; the parties simply do from such requirements or take workplace investigations. His full not agree on the interpretation or on the new law. Challenges to biography and information about the impact of a significant issue(s). the new law are expected based business is available at his website, In those circumstances, con- upon the policies underlying the warrenarb.com. sider a creative settlement agree- Federal Arbitration Act.

SLO County Bar Bulletin www.slobar.org March–April 2020 13 Secret Lives of Lawyers David Warren Writes for the Thrill of It by Raymond Allen Photo courtesy of Christine Joo Editor’s Note: “Secret Lives of Lawyers” is a recurring column. The goal is to highlight interesting things lawyers do to find balance or achieve fulfillment. If you would like to be included, or know of a lawyer that has an interesting side, please contact the Bar Bulletin editor.

avid Warren is a local lawyer. resolution. He reviews internal Writing Thrillers and Mysteries DHe received his undergraduate investigations to make sure they “I write mystery/thriller and degree from California State Univer- have been thorough and appropriate. legal thriller genre books, with twists sity Fullerton. He then walked across He also provides training to reduce and turns and the unexpected, and the street and attended Western State work-related liability. plots driven by real world characters University law school. In 1978, he Separate from his tremendous —real people facing what seems like passed the California State Bar exam- work as a lawyer, mediator and arbi- more than they can handle.” ination. For perspective, in 1978 trator, Warren has a not-so-secret Like a veritable yin and yang Jimmy Carter was President of the passion—writing. symbol, Warren seeks to develop United States. complete characters with both good and bad qualities. He writes about “characters that are in situations over their heads and beyond their control, Early in his career, Warren Warren Writes Because He Must often related to character flaws and served as in-house counsel for Sears, Warren has just completed his human mistakes that drive their Roebuck and Co. There he litigated sixth novel. He has been writing since decisions. But the flaws are only part a variety of matters throughout at least junior high school. “I knew at of the character and the same person California and oversaw litigation in an early age two things: I wanted to can sometimes find extraordinary nine states. Thereafter, he formed be a lawyer and I loved to write.” courage in the worst of situations. a partnership in the Pasadena law Growing up, Warren was captiva- “In my opinion,” says Warren, firm Smith and Warren. For 15 years ted by the first-person narrative of “one of the biggest mistakes writers he litigated and counseled for that J.D. Salinger’s “Catcher in the Rye.” often make, is painting characters firm. His emphasis was employment He also loved the novels of Charles as perpetually good guys or bad law, business law and real estate law. Dickens. In different ways, and for guys with no socially redeeming He has represented employees and different audiences, both Salinger and qualities—but one-dimensional employers in connection with private Dickens explored the complexities characters aren’t compelling because industry and public employment of social interactions. Warren began humanity doesn’t work that way. matters including discrimination, to appreciate the creative aspect of Real people have many positive retaliation, whistle-blowing and writing. attributes, but make mistakes public policy claims, and wage and “Creating a story with believable and bad decisions along the way; hour matters. characters that moves the reader, and sometimes serious ones. We are not Currently, Warren provides convincing a judge that my client’s all white hats or black hats, and we mediation, arbitration, investigation position is the right one, have both are more than the sum total of our and training services to clients. In remained my passions ever since. misjudgments.” mediation he helps parties find their After 40 years of lawyering, a career His most recent book, way without recourse to litigation. that I love, I am also still obsessed “Temptation’s Prisoners,” is about As part of his arbitration practice, with writing.” yielding to temptation and how it he provides discovery dispute affects the intertwined characters.1

14 March–April 2020 www.slobar.org SLO County Bar Bulletin “Temptation’s Prisoners” is Warren’s The novel, says Warren, “starts hours a week as an attorney and sixth book. Prior books include with a premise and some idea about wrote in his spare time. “Imploded Lives,” “The Whistle- characters. I build on that.” Although he could probably blower Onslaught,” “Altering He typically has one book that he retire from the law and write full Destiny” and “Sealing Fate.” All of is writing and another behind it that time, he does not. “I still like being his novels are available at Amazon he is outlining. “I will work for over a lawyer,” he says. and Audible.com. All can be seen a year on each book. It only becomes and are described at his author stressful when it nears publication The Denouement website, DavidPWarrenbooks.com. and I want it to be exactly right in “I think every author has a all respects before it is published. desire to make a lasting impact on Writers With Influence Then I obsess about making the his or her readers—and yes, find Warren’s writing has been final product the best it can possibly some immortality with their work. influenced by a wide variety of be—even though by that point I have I certainly do feel that way. A good reading, from non-fiction and already done about fifteen rewrites.” deal of what I write is about the biography to other mystery/thriller When he edits, he asks himself human condition and struggle— writers. He enjoys the historical two questions: “Is it necessary; does it weakness, character flaws, as well and biographical work of David add anything.” If not, it gets redlined. as the strength and courage we find McCullough (John Adams, 1776, Warren is a tough critic. He dis- within us when we need it most. All The Wright Brothers, etc.), Walter carded his entire first novel. “I did the qualities that make us vulnerable, Isaacson (Einstein, Steve Jobs, not like it, so I scrapped it strong, determined and capable of Da Vinci, The Innovators), and in its entirety.” His first undermining ourselves along the way. fiction writers like Nelson published novel, “Sealing “I want the reader to identify DeMille, Scott Turow and Fate” (2004) took two and a with and feel close to the protagon- some John Grisham. half years to write. He ists; to be rooting for the character(s) “I also like Stephen was working 100 and feel delighted when some King. He is a writer who inspirational resolution results, in provides good descrip- part from the amalgam of strengths tions and has a natural and weaknesses that comprise the flow, particularly character. We all want something to when his focus is less on horror and more on mystery and believe in and we all root for those intrigue. I have we identify with and care about.” enjoyed some of Warren is another great example Gillian Flynn’s within our legal community of a work. I also still complex and interesting lawyer. enjoy reading From the outside, a mild-mannered arbitration and mediator doing his best to help you mediation briefs!” and your client settle a civil case. Inside, however, beats the roaring The Writing Process heart of an author. He is the creator “For me,” he says, of fictional worlds. Creators possess “writing is therapeutic. divinity by their very nature. When I start to write and three we read fiction we enter their world. hours will disappear in a Fiction is not false. Fiction is simply heartbeat. When I am not beyond the empirical. It is allegory. arbitrating, mediating, It is illustrative. It is archetypal. As working as a discovery a result, fiction reveals the deeper referee or engaged in work- truths about us. Fiction is forever. n place investigation, I am creating characters, plots and 1Please see a review of “Temptation’s Prison- working on the next book.” ers” by Heather Sutton Buckley on page 16.

SLO County Bar Bulletin www.slobar.org March–April 2020 15 “Temptation’s Prisoners” — A Book Review by Heather Sutton-Buckley Author photo courtesy of Christine Joo; book cover photos courtesy of David Warren

“ emptation’s Prisoners” “To entertain,” he said simply. by David Warren immed- “With characters and a story line iately captivates as two that is believable and unpredict- entrepreneurial law part- able.” He thinks about tension nersT­—Paul Braddock and Adam and surprises, twists and turns, Mason—contemplate their respec- as he writes. I particularly liked tive workloads and the challenges the way Warren wrote action they face connecting with their scenes and artfully raised the spouses. Flash forward three stakes for each character as the months and Paul Braddock is novel progressed. After reading planning an escape from immin- “Temptation’s,” a line from Walter ent death at the hands of unknown Scott’s “Marmion” comes to mind: bad guys with his wife, Beth Brad- “O what a tangled web we weave dock. I began reading “Tempta- when first we practice to deceive!” tion’s” on a cold morning in Jan- In “Temptation’s,” Warren uary and finished by dinnertime. aimed to show “how temptation I have not read a book in one day can manifest—how mistakes can since Gillian Flynn’s “Gone Girl.” be compounded.” His characters “Temptation’s” follows the are multi-dimensional; their moti- criminal shenanigans of two vations somewhat far-fetched. couples, Paul and Beth Braddock As a former Special Agent with In Warren’s words, he does not and Adam and Chris Mason, Army CID and detective with the like characters “that are all bad as they make one insanely life- San Francisco Police Department, or all good.” He likes real people, threatening decision after the Shepard is well-equipped for the no super-heroes. “I wanted the other, and then the other—until task. He’s tall, dark and handsome reader to despise the bad guy you want them all to meet their with an air of mystery. Early in [Alexandros],” Warren said with demise behind bars or worse. the novel, Shepard appears emo- a smile. I told him I eventually Adam Mason is a gambling tional and vulnerable during his despised all of the characters and addict who embezzles from his first grief counseling session with wished they’d all gone to prison. wealthy, trusting, elderly client his new therapist, Chris Mason. Warren chuckled, “That’s the and becomes embroiled in a Shortly thereafter, we learn that former prosecutor in you.” money-laundering scheme master- Shepard has been hired to investi- I followed up on my character minded by an elusive antagonist, gate Chris’ husband, Adam, for flaw assessments in an email to Alexandros. Adam’s wife, Chris, embezzlement. Paul, Beth and Warren after our lunch meeting. is a therapist who gives in to Shepard unwittingly unite in their Shepard was the most likely char- temptation by sleeping with her quest to bail Adam and Chris out acter to emerge from the tangled dangerously manipulative patient. of trouble, no matter the cost. web with his moral compass Paul and Beth Braddock seem to I had lunch with David intact, but even he made prepos- naively and selflessly support Warren about a week after I fin- terous and reprehensible decisions their troubled friends without ished “Temptation’s.” Warren is in the end; decisions to benefit his much deep thought. The novel’s living my dream and I was hungry newfound, despicable friends. hero, Jason Shepard, is motivated for insight. I also wanted to know Warren wrote, “I like the fact throughout “Temptation’s” by his what motivated him to write this that you were disturbed by the desire to avenge his wife’s murder. story. characters’ behavior—emotional

16 March–April 2020 www.slobar.org SLO County Bar Bulletin involvement in the story is the government violates the Fourth on every page. “Temptation’s other reaction I want. Deciding Amendment to the United States Prisoners” soon will be who you like, who you don’t and Constitution by accessing histor- re-released without the frequent who is getting away with some- ical records containing the and somewhat distracting typo- thing (as well as who is competent physical locations of cell phones graphical errors present in the and who is naïve) gives the reader without a search warrant. current version. The audio book an emotional stake in the story.” In “Temptation’s,” Beth Brad- of “Temptation’s Prisoners” David P. Warren, Esq., is dock and Chris Mason consent should be available by the an experienced trial attorney, to Detective Marshall Jennings’ time this review is published. advocate and negotiator, bringing search and seizure of their cell Warren’s books are all avail- 41 years of experience and dedica- phones without a warrant. They able in audio format at Audible. tion to his Arbitration, Mediation, are dumbstruck when Jennings com. Visit DavidPWarrenbooks. Investigation and Training ADR debunks their alibi for the murder com for more information about practice in San Luis Obispo. Nat- of Chris’ jilted lover with cell amazing stories by attorney, urally, Warren enjoys weaving phone location data. investigator, arbitrator and current legal issues into his work. I really enjoyed “Temptation’s mediator David P. Warren n He was fascinated by Carpen- Prisoners” and intend to read ter v. United States, a landmark David Warren’s other titles. He Heather Sutton-Buckley is the United States Supreme Court case is our small town’s master of managing attorney at the Buckley concerning the privacy of histor- suspense! I admire his ability Law Firm. She practices in the areas ical cell phone location records. In to plan and execute a novel with of criminal and family law. She is Carpenter, the Court held that the confidence and create tension also a fiction writer.

SLO County Bar Bulletin www.slobar.org March–April 2020 17 Have you met…?

William Frederick Kennedy and his wife, Brooke (Cal Poly Class of After graduating from 2012), are excited to be back living and raising a family in UC Irvine, William the town where they met because of the close-knit com- Frederick volunteered munity and beauty that this special town on the Central as a teacher through Coast provides. When not in the office, Kennedy enjoys World Teach for a year spending time with his family, traveling and being out- in a small pueblo, Pasa- side playing beach volleyball or hiking the many beauti- caballos, Colombia. ful trails in the county. Colombia is where his grandmother was from. Alex Newsum While in Colombia, An attorney at McCormick Frederick applied to Barstow LLP, Alex Newsum law schools. He entered and graduated from Boston practices primarily in the areas University School of Law in May, 2018, and passed the of family law, real estate and July 2018 Bar exam. Upon passing the Bar, he worked employment litigation. He at the Santa Barbara County District Attorney’s office in was admitted to the California Santa Maria. State Bar in 2016 and worked in Recently, he joined his mother in the family firm—the McCormick Barstow’s Fresno Frederick Law Firm. Frederick looks forward to bringing office for three years prior his experiences to his practice for the betterment of the to relocating to San Luis Obispo. In Fresno, Newsum community he loves. represented a diverse range of clients including insurance companies, physicians and farmers. Shane R. Kennedy Newsum is an avid outdoorsman and enjoys hiking, kayaking and fishing. Most of all, he enjoys spending Born and raised in San quality time with his wife, Candice, his daughter, Raya (3 Luis Obispo, Shane years old), and son Silas (1 year old). He is pleased to be Kennedy graduated in the SLO area and looks forward to getting involved in from San Luis Obispo the local community, including the Bar Association. High School in 2009, where he played center Amy Schroder on the 2009 PAC 7 league championship After graduating from the basketball team and University of California winning volleyball team. Irvine magna cum laude He played basketball with a B.A. in political for San Francisco State University and Hancock College science, Amy Schroder before graduating in 2014 from Cal Poly with a B.A. in attended Chapman philosophy and a minor in law and society. University School of Law Kennedy graduated from Western State College of in Orange. At Chapman, Law (2019) in Irvine. He then returned to San Luis Obispo she earned her JD and in August 2019 with the professional experience he gain- then LL.M. in trial advocacy. ed while living in Southern California and working at Following law school, Schroder worked as a prose- several business, corporate, civil litigation and real estate cutor for the Orange County District Attorney and an law firms during his law school career. attorney in private practice. In addition to volunteering He is currently working with his father, Matthew S. as an attorney-coach for her local CRF Mock Trial team, Kennedy, a business, banking, corporate and real estate she has been an active member and on the board of attorney in San Luis Obispo, gaining experience to numerous Bar Associations, including the Orange counsel clients and provide the best possible solution County Bar Association, West Orange County Bar to their legal issues. Association (Secretary), North Orange County

18 March–April 2020 www.slobar.org SLO County Bar Bulletin Bar Association, Orange County Women Lawyers Weiss earned his undergraduate degree at Cal State Association, and The William P. Gray Legion Lex Fullerton in 1977 and is a 1980 graduate of the UC Davis American Inn of Court (Secretary). King Hall School of Law. He had formal mediation Schroder now resides in San Luis Obispo with her training at Pepperdine in 2015. He is a Fellow of the “Cal Poly alum” husband. She’s looking forward to American College of Trial Lawyers and a longstanding getting to know and working with the members of the member of ABOTA. He served as President of the Fresno San Luis Obispo Bar. County Bar Association in 2009, the Association of De- fense Counsel of Northern California and Nevada in Andrew Weiss 2011, and the San Joaquin Valley Chapter of ABOTA in 2018. For 38 years, Andrew He and Lauri love to take long road trips, which Weiss practiced civil include a month-long drive across America this March. litigation in Fresno and He enjoys gardening and playing ukulele—he plays the Central Valley, but with SLO Strummers, a local ukulele group. He has two in 2019 he retired and children, one stepson who is a local pharmacist, and two moved to the Central grandchildren. Coast. Specializing Weiss is pleased with the mix of legal involvement and board-certified in and leisure time he has in retirement and is grateful for medical malpractice the warm reception he has received from the SLO legal defense, Weiss always community. seemed to have a case or “SLOLAF is thrilled to have Andy join our team two going on in the Central Coast counties. In 2011, he of attorney volunteers,” said Stephanie Barclay, Legal and his wife, Lauri, bought a small home in Shell Beach, Director for SLOLAF. “Although he cannot represent our and the more time they spent there the more they wanted clients in SLO Superior Court because he is volunteering to retire there. as a settlement conference judge, Andy has helped so To ease the transition from full-time trial attorney many of our clients by advising them about the litigation to idle retiree, Weiss began volunteering at the San Luis process and the merits of their claims so they can make Obispo Legal Assistance Foundation (SLOLAF), where informed decision about how to proceed. We have he continues to work one half-day a week counseling received so many thank you letters from clients who senior citizens on a wide range of issues. He finds it Andy has helped.” rewarding to be able to use his experience to help others who are often in very difficult situations and cannot afford an attorney. Shortly after moving here, he also Note–If you are a new member of the San Luis Obispo got the opportunity to volunteer as a civil settlement County Bar Association and would like to be introduced conference judge and has been handling a steady flow of to others in the organization, please contact the Bar cases in the SLO and Paso Robles courthouses. Bulletin editor, [email protected], for inclusion Born in Los Angeles and raised in Orange County, in an upcoming issue.

Free confidential assistance to lawyers, judges, paralegals THE and law students with substance abuse problems. Weekly Other Bar 12-Step Meetings are held in many areas, OTHER and others are being established. For times and locations, or to start a meeting in your area, contact the number or website below. BAR Provider of Certified MCLE Instructors Confidential Hotline 24 Hours a Day: (800) 222-0767 www.otherbar.org

SLO County Bar Bulletin www.slobar.org March–April 2020 19 Teresa Estrada-Mullaney— Breaking the Mold & Making a Difference by Dean Jan Howell Marx

Dean Marx photo courtesy of Renoda Campbell; additional photos courtesy of Teresa Estrada-Mullaney

ho was the only minority was supposed to do. District Attorney judge in San Luis Obispo Christopher Money instructed me through World War II service in the County during the 20th to just follow DDA Teresa Estrada- Army. She credits her parents for century? Who was the Mullaney around, copying what she instilling a strong work ethic and firstW local woman judge? First Latino did and how she did it. That was a deep appreciation of education. Low- judge since Romualdo Pacheco was phenomenal experience for me. She income neighborhoods in Southern appointed in 1853? First woman was calm, skilled, diligent, tenacious, California were where she grew up. Deputy District Attorney? First hardworking, assertive and courageous. She developed self-confidence at an woman to prosecute a local murder I remember her maintaining her early age, due in part to participation case? First DA to get DNA evidence concentration and avoiding distrac- in the Girl Scouts and being mentored admitted at trial locally? Was it pos- tion during the preliminary hearing by a kindly troop leader, who gave sible for only one person to have of an accused multiple rapist, whom her a uniform. done all that? she later convicted with then-rare During her sophomore year The answer is yes, and that DNA evidence that she fought to get at Mount St. Mary’s College (now person is the Honorable Superior admitted. When the defendant tried University), she married Loyola Court Judge Teresa Estrada-Mullaney. to intimidate her by giving her the University grad student and future Perhaps, if you are a new attorney or “evil eye” on the stand, she exhibited teacher, then administrator, John F. newcomer since 2012, you may not such cool by simply taking a step Mullaney, Jr. She took a break from have had the opportunity to meet or back, thus blocking his line of vision school after their son, John III, was appear before this extraordinary trail- with her investigator. Facing up born. It was at Loyola Marymount blazer for women and Latinos courageously to evil like that, while University where she finished under- in our legal community. insulating yourself…a lasting graduate work, making the Dean’s Let me introduce my friend to example for me ever since. list. you. It may be hard, especially for Reflecting on how the legal pro- Her immediate goal was to join young women attorneys with so fession has changed since she first her husband as a school teacher of many female colleagues, to imagine started practicing, she is pleased how Spanish. A hiring freeze derailed that the challenges she faced as the first much it has changed for women idea. Instead, her younger brother and only woman and/or Latino in attorneys and judges. Now, locally, having started law school, “sibling our District Attorney’s Office and nearly half of practicing attorneys are rivalry” motivated her new career later in the judiciary. This modest, women and many are Latinas. It is path. She told me she could not have petite and soft-spoken woman’s especially gratifying to see how the followed through with this decision success in meeting all of these ground- local bench has transitioned from just without the full support and encour- breaking challenges was way beyond one woman for 10 years, when she agement of her husband and son. what the dominant culture in that was appointed in 1992, to an equal Waiting four years before day thought was possible for women, number of women and men today. starting law school, she worked as let alone mothers or Mexican- Here is a bit of how her story a waitress then as a caseworker for Americans. has unfolded, told to me one day the Department of Social Services Her breakthrough example is an over lunch. to earn money to cover expenses. It abiding inspiration for our region. I Teresa Estrada-Mullaney was was thrilling to be accepted to attend deem myself very lucky to have had born in Los Angeles, the daughter UCLA, though the commute would a chance to work with her and to of Mexican immigrants with be another challenge—a 100-mile have gotten to know her personally. Spanish as her first language. She round trip from home in Huntington On my first day as a new Deputy learned English in the first grade. Beach to Westwood during her three District Attorney, I had no clue what I Her father earned U.S. citizenship years in law school.

20 March–April 2020 www.slobar.org SLO County Bar Bulletin In her second year at UCLA she with respect and admiration. established the first Quarter-Away In 1992, well-known and distin- internship at the Orange County guished Deputy District Attorney Public Defender’s Office. Ironically, Teresa Estrada-Mullaney made local she worked with a deputy Public headlines when she, a Democrat, was Defender named Frances Munoz. appointed to the Municipal Court Estrada-Mullaney greatly admired bench by Republican Governor Pete her, as did the Governor; she would Wilson. Judge Fredman had promised be appointed to the Orange County to swear her in, but sadly died one bench as the first Latina judge in the week before the Governor announced history of California. The year was her appointment. Estrada-Mullaney 1978 and the Munoz appointment thus became not only our county’s awoke a new dream for Estrada- first female judge, but also the first Mullaney. local Latino judge in nearly 140 years After law school and passing the and the first minority judge in the bar, she applied at both the Public 20th century. Defender’s and District Attorney’s At the enrobing, she started off offices and was hired by the Orange by welcoming everyone in her first County District Attorney as the first language, Spanish. It was thrilling Latina attorney in that office. Her first Honorable Superior Court Judge to be able to make a difference for day on the job she was told by a recep- Teresa Estrada-Mullaney women and Latinos, but this was tionist to sit in the corner and wait tempered by the awareness of the for her supervisor. After a while, she Estrada-Mullaney was assigned challenges a woman might face noticed other new hires congregating difficult, emotional cases, such as breaking into the judicial “Men’s in another part of the lobby. When domestic violence, rape, sexual Club.” One of her fellow judges told she went back to the reception desk assault and child victimization. In her she was not a Latina because she to inquire why she was in a separate 1984 she was assigned to the DA’s “was assimilated.” Her response was area, the answer was, “Because Molestation Prosecution Team telling him that he did not think of you’re a secretary and those are new and prosecuted roughly 50 cases. her as a Latina because she did not fit lawyers.” Interviewing the children about his stereotype of one. In 1981 she and her family moved their cases—wherever they felt most Through her hard work, high to San Luis Obispo County because comfortable—drew upon her ability ethical and intellectual standards, John’s family lived in the Bay Area to communicate well with them. compassion, and balanced, common- and because this was “such a beauti- Her calm, reassuring manner and sense perspective, she overcame any ful place.” District Attorney Chris- compassion for the victims enabled initial awkwardness, winning her topher Money hired her to become her to gain their trust, unearth the colleagues’ and the community’s the first woman Deputy District facts and successfully prosecute the respect. She became known for her Attorney in our county. She soon perpetrators. She prosecuted three command of the courtroom, proced- distinguished herself as a prosecutor, murder cases in 1988-89. ural acumen and insistence on civility not only for her legal expertise, In 1991, during a six-month and decorum. diligent preparation and zealous trial before the late Judge William In 1996, she was (and still is) the advocacy, but also for her compassion Fredman, she argued extensively only woman in this county to win and determination to see justice done. and successfully for the admission of a contested election to a vacant Although she was the lone woman then-novel DNA evidence (Kelly Frye Superior Court seat. I was honored attorney in the office for four years, hearing now Daubert with witnesses to work on her campaign with her there were a few women in the legal from the FBI for the hearing) in a campaign manager/husband, John, community who offered support, multiple rape and sexual assault case. and many supporters. It was a especially defense attorneys Patricia This first local reliance upon DNA challenging campaign between two Ashbaugh and Suzan Boatman, as evidence to prove connection of the very qualified candidates. She attrib- well as civil attorney Barbara McCal- defendant to the rapes and assaults uted some of the success to precinct lum. She recalled that an unnamed was later upheld on appeal. The walking as well as endorsement by male judge, seeing her against Suzan defendant was sentenced to 72 years elected officials of both parties. Boatman, said he was looking forward to life, again upheld on appeal. Judge It has become a matter of pride to a “cat fight.” The women remained Fredman was her role model and for her that she has served on all dignified, ignoring the insult. mentor. She thought the world of him Continued on page 22

SLO County Bar Bulletin www.slobar.org March–April 2020 21 Teresa Estrada-Mullaney continued judicial assignments available—criminal, civil, family and juvenile—a rare accomplishment. Also, she has been upheld on appeal on every jury trial throughout her career. Her most important civil case was the Paso Robles earthquake wrongful death jury case in 2008. For three years, she presided over Juvenile Court, finding it very rewarding to help children overcome their problems and situations. Each of those years, she joined the wards for Christmas dinner at Juvenile Hall. In 2006, she was asked to serve on the California Supreme Court’s committee on judicial ethics, continu- ing to serve until her retirement. It was a “fantastic experience” being part of the team proposing changes to improve the code of judicial ethics. On her retirement in 2012, District Attorney Gerry Shea issued the following statement. “Judge Estrada- Mullaney has been a trailblazer and a role model for so many people in our community. Our office has great appreciation for her service to the county, first as a John F. Mullaney, Jr. and Teresa Estrada-Mullaney dedicated prosecutor for 11 years and then for the past 20 years, as a thoughtful, no-nonsense and even-handed judicial officer.” As criminal defense attorney Jeff Stein wrote in the SLO County Bar Bulletin in 2012, “One of the abiding qualities that is desperately needed for public prosecutors and judges is the gift of reflection and judgment, allowing the selective use of the powers of the state, insisting not just on what can be imposed but what is just and equitable. As an observer present in these days, I can attest to the willingness Terry showed, when evidence could be mustered, to allow defendants a chance to work out of the troubles they had encountered. It served the goal we now think of as restorative justice, reintegrating defendants into the fabric of the community. It felt like Justice was being served.” Judge Estrada- Since retirement she continues to work in the Mullaney Assigned Judges Program, handling hearings and trials visits Egypt in around the state, including her “home court” San Luis December 2019. Obispo County. In 2013, I nominated her, and she won the California Women Lawyers Association Joan Dempsey Klein Our community owes a debt of deep gratitude to Distinguished Jurist Award. This statewide award this remarkable woman, not only for her professional recognizes a woman who has achieved excellence as achievements in the legal arena, but also for offering a jurist, has a longstanding record of vigorous service inspiration to everyone who struggles to overcome and is an inspiration to women lawyers of California. barriers on the path to fulfilling their highest potential. Throughout her fulfilling, but high-stress career, she Thank you, trailblazer, Honorable Teresa Estrada- has sought life/work balance by devotion to family and Mullaney! n pursuing her hobbies of ballroom dancing, gardening and traveling, more so during retirement. Her most This is the second in a series of articles by Jan Marx that will recent trip was to Egypt in December 2019. For 2020 she focus on the achievements of women in the legal profession. You and John have trips plannedto the Caribbean, Alaska, will recall her last article was a review of Barbara Babcock’s Europe, Tahiti and Texas, where they will visit their son, book “Woman Lawyer: The Trials of Clara Foltz.” Jan Marx is who is a financial advisor. the Campus Dean at San Luis Obispo College of Law.

22 March–April 2020 www.slobar.org SLO County Bar Bulletin U.S. Supreme Court Takes Up the First nd Amendment Case Since Heller in 2008 2 by Allan J. Mayer The New York Statute December 2, 2019. If the Supreme Court Justices thought and the Procedural History To ascertain whether a government the lower federal courts were correct in New York State Rifle and Pistol Associ- action (often a law or a regulation) violates applying intermediate scrutiny, they could ation vs. the City of New York may change the U.S. Constitution, a federal court first have [1] denied certiorari, or [2] accepted the law with regard to the 2nd Amend- chooses the appropriate level of scrutiny. the party’s agreement and dismissed on ment in many states, including California. The three levels of scrutiny are strict grounds of mootness. Instead, the Court The United States Supreme Court is cur- scrutiny, intermediate scrutiny and heard the case after a full briefing. This rently considering a New York statute that rational basis. action created more work for the court. prohibits possession of a handgun absent In American constitutional law, strict Since Heller, the Court composition a license. An individual with a premises scrutiny is the highest and most stringent has changed. The Court is now composed license for a handgun may not remove the standard of judicial review, and results of a majority of conservative justices. handgun from the address specified on in a judge striking down a law unless the Justice Brett M. Kavanaugh wrote a 50- the license, except he or she may transport government can demonstrate in court plus page dissenting decision wherein he the handgun directly to and from an that a law or regulation uses the “least argued the 2nd Amendment permitted authorized small arms range or shooting restrictive means” to achieve the purpose. open carry of an AR14 assault rifle on the club within the city of New York. The Lower levels of scrutiny, such as streets of Washington, D.C. Justice Neil ammunition is to be carried separately. “intermediate scrutiny” (the law must Gorsuch said during argument that he Plaintiffs sought to remove their advance an important government was skeptical of the City’s “herculean, handguns from the licensed premises to interest and must do so “by means that late-breaking efforts to moot the case.” travel to shooting ranges outside of the are substantially related to that interest”) Justice Samuel Alito Jr. and Gorsuch were City of New York (City). One plaintiff have generally been applied by lower “ready to decide the case saying that wanted to transport the handgun to a courts to uphold gun-control restrictions, the repeal of the law did not settle every second home outside the City. Plaintiffs on large-capacity magazines. question before the Court.” are seeking a declaration that the restric- tions imposed by the laws, rules and reg- ulations of New York are unconstitutional. Will This City of New York Case Set a Conclusion The case was argued and submitted 2nd Amendment Strict Scrutiny Test? I believe the Court intends to change before the nine justices of the U.S. Strict scrutiny is the most worrisome the level of scrutiny on 2nd Amendment Supreme Court on December 2, 2019. option for states whose laws uphold gun cases from intermediate to strict. If the It is the history and machinations of control restrictions. Ever since District of U.S. Supreme Court applies strict scrutiny this case as well as the present conserva- Columbia v. Heller, litigants have battled to New York City’s gun-control law, it will tive majority of this Supreme Court that over the appropriate level of scrutiny to have enormous implications. makes a prediction of the final outcome apply to regulations affecting 2nd Amend- For example, there are two gun-control difficult and important. ment rights. cases in the Ninth Circuit Federal Court of The case started in the U.S. District Applying “strict scrutiny” means the Appeals which are stayed by order of the Court for the Southern District of New law must use “narrowly tailored” means court, pending the outcome of this case. York. The judge ruled for the defendant, to advance a “compelling governmental If the U.S. Supreme Court holds that City of New York. Plaintiff appealed. The interest.” If that level of scrutiny is strict scrutiny applies to the 2nd Amend- Second Circuit ruled unanimously for applied, most gun-control laws would no ment, then the Ninth Circuit Court of the City. Both decisions were based upon longer be valid. However, silencers would Appeals will have to rule for less restric- intermediate scrutiny. still be excluded under strict scrutiny tive gun-control laws and, most impor- The plaintiffs moved and obtained by because silencers do not add to the tantly, almost all of the California laws writ of certiorari, the right to be heard in functionality of the gun and would often and regulations concerning guns may be the Supreme Court. Soon after, the City be used for criminal activity. unconstitutional. n agreed to repeal the law and moved to Some federal courts have allowed dismiss plaintiff’s case. The issue, they several states, such as California, to uphold Editor’s Note: Opinions and conclusions argued, should be deemed moot. gun control by applying the intermediate in this article do not necessarily reflect the The U.S. Supreme Court, however, scrutiny test. The two federal courts (U.S. opinions of the San Luis Obispo County Bar denied the motion to dismiss on the District Court for the Southern District of Association, its Board of Directors, or the grounds of mootness after a full briefing New York and the Second Circuit Court editor and staff of the Bar Bulletin. Opposing and hearing oral arguments. The case of Appeals) that heard this case applied thoughts regarding this or any opinion was marked submitted for decision on intermediate scrutiny. contained within any article are welcome.

SLO County Bar Bulletin www.slobar.org March–April 2020 23 “The Time Is Now” SLO Women’s March Held January 18, 2020

Photos courtesy of Brittany App

or the fourth year, thousands of Central Coast women assembled at Mitchell Park to hear speakers and performers and to walk through downtown San Luis Obispo in support of women’s rights, Fhuman rights, civic engagement and social and environmental justice. This year also marks the centennial anniversary of the 19th Amendment giving women the right to vote. n

24 March–April 2020 www.slobar.org SLO County Bar Bulletin SLO County Bar Bulletin www.slobar.org March–April 2020 25 “Taking Up the Cause” of Financial Elder Abuse Improving Access to Justice— A Policy & Practice Perspective by Todd A. Porter, J.D., M.P.P.

hose engaged in advocacy on behalf of elders Age Group 1960 2000 2010 2050 (est.) and dependent adults have certain immutable 65+ (% of 16.6 35 40.3 88.5 qualities. As a group we are fiercely indepen- population) million million million million dent. We advocate for the rights and indepen- (9.2%) (12.4%) (13%) (19.8%) denceT of others as a reflection of our core cultural 85+ (% of 929,000 4.2 5.5 19 values. Our liberty is precious. Predators seeking population) (0.5%) million million million financial gain target elders as a profitable class of (1.5%) (1.7%) (4.2%) persons to abuse. To deprive an individual of their economic independence is the theft of their personal legislature has incentivized the civil prosecution of dignity. Such acts are an affront to our sensibilities and financial elder abuse through WIC §15657.5. a threat to our communities. The demand for action to address financial elder California Welfare and Institutions Code (WIC) has abuse is fueled by an exploding increase in the size incentivized interested persons to engage civil practi- of our elder population. Advances in medicine and tioners to “take up the cause” of our abused and nutrition have resulted in an increase in life expectancy neglected elder and dependent adult population in the United States. The growth of the U.S. elderly through the Elder Abuse Dependent Adult Civil population is illustrated by the table above. Protection Act (EADACPA). One distinct aspect of Over the course of 90 years the population of EADACPA is financial elder abuse. This article seeks persons 85 years or older will increase from less than to begin a dialogue within our legal community 1 million to 19 million, while the population of those in order to expand access to justice for the elder over 65 years (the statutory age for an elder) will population as to the problem of financial elder abuse. increase from over 16 million to over 88 million. The demographic expansion of the elderly population is A. Financial Elder Abuse—A Policy Perspective a primary driver of financial elder abuse. Elders are Public policy may be defined as the vision of a growing “target rich” environment for financial government officials in response to a condition predators. considered to be a public problem. The identified The opportunity to financially abuse elders is a public problem creates a demand for formal policy separate and challenging issue. Along with an increase statements in varied forms including legislation in life expectancy came the gradual decline of the and executive orders. Legislative policy statements multi-generational home in the United States. Elderly such EADACPA are implemented and subsequently persons often live alone or have very small groups with measured by the policy outcomes generated. whom they interact. Relative isolation is a primary EADACPA has declared elders an identifiable risk factor for financial elder abuse. A fact difficult to disadvantaged class whose cases of abuse are seldom accept is an inevitable cognitive and physical decline prosecuted as criminal matters and where too few as we age. Cognitive decline creates challenges for civil cases are brought due to problems of proof and estate planning practitioners in balancing the free lack of incentives. (WIC § 15600(h)). The intent of the will and liberty of individuals against the reality of legislature is to enable interested persons to engage predators exerting undue influence upon a vulnerable attorneys to “take up the cause” of abused elders. (WIC population. § 15600(j)). EADACPA addresses varied forms of abuse and neglect of both dependent adults and elders. One aspect of EADACPA is financial elder abuse. The

26 March–April 2020 www.slobar.org SLO County Bar Bulletin B. Civil Litigation—A Practice Perspective fearful of moving forward. Often the sums of money Penal Code § 368 makes elder abuse a crime. Yet involved are modest when considering the cost and the legislature has declared criminal prosecutions time commitment of litigation. Indeed, all my own insufficient to remediate the harm of financial elder experience practicing under EADACPA has come abuse and had provided for civil actions as a further after the death of an elder or dependent adult and has deterrent to abuse. WIC § 15610.30(1) defines financial involved substantial damages. An elder abuse practice, elder abuse to include a person who takes, secrets, like family law, can be emotionally challenging and appropriates, obtains or retains real or personal draining for a practitioner. property of an elder for a wrongful use or with intent to defraud, or both. WIC § 15610.30(a)(2) has extended C. Third Party Liability for Financial Abuse liability to those who assist perpetrators in such acts. & Institutional Mandatory Reporters WIC § 15610.30(a)(3) has recognized undue influence When considering whether an instance of financial as a basis for financial elder abuse. elder abuse is economically viable, a practitioner Undue influence is statutorily defined by WIC should evaluate the potential liability of third persons § 15610.70. Undue influence includes the concept of or entities who may have “assisted” in the abuse. excessive persuasion that overcomes free will and Financial abuse of an elder included the circumstance results in inequity. In examining undue influence, the where a person or entity has assisted in the taking, court may consider issues related to the vulnerability secreting, appropriating, obtaining or retaining real or of the victim, the influencer’s apparent authority and personal property of an elder for a wrongful use OR the actions or tactics used by the influencer and the with intent to defraud, OR both. (WIC § 15610.30(a) inequity of the result. (WIC § 15610.70(a)(1)-(4)). (2)). In addition, a person who assists another in such EADACPA has provided a set of litigation tools prohibited acts through undue influence is also liable designed to assist civil litigants to redress financial for financial abuse (WIC § 15610.30(a)(3)). elder abuse. These include the following. An evolving legal issue is the extent of institutional • A preponderance of the evidence standard of liability for financial elder abuse. Mandatory reporters proof along together with the recovery of attorney’s of financial elder abuse include all officers and fees and costs (WIC §15657.5(a)). employees of financial institutions as defined in WIC § • Where it is proven by a preponderance of the 15630.1 (effective January 1, 2018). Civil penalties may evidence the defendant is liable for financial abuse, be imposed, but only if a civil action is brought by the AND where it is proven by clear and convincing Attorney General, district attorney or county counsel. evidence that the defendant is guilty of fraud, Anne Marie Murphy has authored an excellent oppression, malice OR recklessness, the additional article which appears in the May/June edition of recovery of other compensatory damages and all other Forum Magazine, Volume 49, Number 3, at pages 34-36, remedies at law which includes the survival of general entitled “Financial elder abuse: Holding institutions damages such that the limitations of Code of Civil liable for aiding and abetting abuse.” Murphy Procedure § 377.34 do not apply (WIC §15657.5(b)). highlights the case of Das v Bank of America (2010) 186 • A four-year statute of limitation which accrues Cal. App. 4th 727, and notes that the defenses used to based upon the date of discovery of the facts consti- avoid institutional liability may not be available due tuting the financial abuse (WIC §15657.7). to certain amendments to EADACPA not in effect at • A writ of attachment as a statutory tool to pre- the time of the acts described in Das. Thus, a financial serve assets for a potential recovery (WIC §15657.01). institution may be liable where the institution should • An expansive list of persons who may assert have known of suspected financial abuse of an elder. standing after an elder’s death, which may include Impact litigation against financial institutions a successor in interest (CCP §§377.30-377.32) or could be warranted under the right set of facts, potentially other “interested persons” (CCP § but a more impactful course of action would be to 15657.3(d); Prob. C. §48). proactively engage institutions in the form of public Despite these litigation tools and incentives speaking engagements to further inform them of their available to litigants and attorneys, too few take up the reporting obligations as well as their potential liability cause of financial elder abuse and actively engage in under the act. this area of practice. Why? Elders often have a difficult time articulating their abuse and are conflicted or Continued on page 29

SLO County Bar Bulletin www.slobar.org March–April 2020 27 28 March–April 2020 www.slobar.org SLO County Bar Bulletin “Taking Up the Cause” continued D. Suggestions for an Economically Viable Model or a combination of both); model screening forms; for Civil Practitioners model pleadings, includ-ing complaints, discovery; If I suggest a proposed model for the civil prosecu- various motions including motions for provisional tion of financial elder abuse cases, it comes from some relief as well as post-trial motions for attorney fees limited litigation experience in addition to my own and costs. observation, reflection and a desire to build out a • Utilization of the law to streamline litigation. financially viable and sustainable model with others in A practitioner may file an action as a limited civil case, our legal community. The desire is to expand access to which provides for streamlined discovery including justice to elders in our community and redress a public a one deposition rule and a limit of no more than 35 harm. I suggest and observe the following. of any combination of interrogatories, request for • Screening elder abuse cases has standalone admission or demands for inspection. These limits are value. Financial elder abuse is grossly underreported. designed to reduce litigation and expense and delay. There is value in screening financial abuse cases even (Code of Civil Procedure §§90-98). if representation is declined. Part of a perpetrator’s San Luis Obispo Superior Court local rule of cover is the knowledge that a very small percentage of court, Rule 26.00 recently amended, effective January cases are reported and investigated. A robust financial 1, 2020, has extended the use of the uniform system elder abuse practice, where a larger volume of cases are of [nonbinding] arbitration to include all unlimited screened in our community will provide disincentive civil actions where the amount in controversy does to the perpetrators of such abuse. As time goes by our not exceed $50,000 as to any plaintiff. The cost of culture may shift. As more cases are screened, financial arbitration is in the amount of $250 (Local Rule 26.02), predators will be put on notice that their actions will be which could be an effective means of obtaining an scrutinized. early, inexpensive, albeit not binding, ruling on a • A thoughtful screening form and a method for contested matter. declining representation. One of the benefits of this area of practice is the breadth of standing to bring such E. Conclusion: A Call to Take Up the Cause an action. Broad standing makes conflicts of interest I further suggest the following. more problematic. Transmission of letters of declining • A coordinated effort by civil litigation representation present a challenge where an elder’s practitioners, law enforcement, interested outside mail and email may be monitored and/or intercepted. agencies, mandatory reporters and other interested • Certain types of financial elder abuse may be persons and entities to use the civil litigation tools better suited toward an economically viable civil of EADACPA to better address the scourge of elder litigation practice. I generalize the types of financial financial abuse. elder abuse as follows: • A community-wide collaboration to create an (1) Consumer fraud cases which include the open source “litigation tool kit” available to interested purchase of annuities, reverse mortgages, and the practitioners, which would include screening forms, fee gouging of elders with respect to goods and services agreements, various pleadings, etc., to be shared and including such things as home improvement contracts; updated based upon changes in the law and real-world (2) Persons outside the context of family whose litigation experience. actions and motives are unquestionably improper and • The formation of an informal professional self-evident; and support group amongst interested practitioners, (3) Family and friends, whose motives may be to meet at designated times and places, in order to mixed. This may be a strange intersection between real provide resources and support one another in our caring and devotion along with questionable financial litigation efforts. activity. This last type of case may prove the most difficult to manage as the defendant is more likely To those that may be interested in collaborating to be emotionally ardent in their position. to build out a private sector civil litigation model to • An open source of forms to be shared between address financial elder abuse, please contact me at practitioners. To be commercially viable a practice [email protected]. n would need to be economically efficient. A good practice would require a set of thoughtful forms, including model fee agreements (hourly and contingent

SLO County Bar Bulletin www.slobar.org March–April 2020 29 Bar Bulletin Editorial Policy

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32 March–April 2020 www.slobar.org SLO County Bar Bulletin