MAG-Riverside Lawyer 0705 300373 - Riverside County Bar ...

July/August 2005 • Volume 55 Number 7MAGAZINEIN THIS ISSUE:Riverside County Sheriff–Homeland Security EffortsPrivacy, Productivity, and theParadigm LOST in CyberspaceJudicial Profile:Hon. Paul DickersonThe official publication of the Riverside County Bar Association

Publications CommitteeRobyn BeilinYoginee BraslawJohn BrownCharlotte ButtMike CappelliDonna HechtJames HeitingAurora HughesGary IlmanenEditors ........................................................... Michael BazzoJacqueline Carey-WilsonDesign and Production ....................... PIP Printing RiversideCover Design ........................................ PIP Printing RiversideOfficers of the Bar AssociationPresidentMichelle Ouellette(951) 686-1450michelle.ouellette@bbklaw.comVice PresidentDavid T. Bristow(951) 682-1771dbristow@rhlaw.comSecretaryE. Aurora Hughes(909) 980-1148ahugheslaw@aol.comJohn E. Brown(951) 686-1450john.brown@bbklaw.comJanet A. Nakada(951) 779-1362jan@nakada-silva.comOfficers of the Barristers AssociationPresidentJeremy K. HansonVice PresidentRobyn A. BeilinTelephone951-682-1015Internetwww.riversidecountybar.comDirector-at-LargeRick LantzMark MellorQueenie NgRichard ReedMichael TrenholmAllen TurnerGlenn WilliamsLisa YangPresident ElectTheresa Han Savage(951) 248-0328theresa.savage@jud.ca.govChief Financial OfficerDaniel Hantman(951) 784-4400dh4mjg@earthlink.netPast PresidentMary Ellen Daniels(951) 684-4444med-atty@pacbell.netHarry J. Histen III(951) 682-4121hhisten@harryhisten.comJay E. Orr(951) 956-5516jayorr@aol.comExecutive DirectorCharlotte Butt(951) 682-1015charlotte@riversidecountybar.comTreasurerJohn D. HigginbothamSecretaryCharles P. BoylstonMember-at-LargeChristopher L. PetersonRiverside County Bar Association4129 Main Street, Suite 100Riverside, California 92501Facsimile951-682-0106E-mailrcba@riversidecountybar.comC O N T E N T SColumns:3 ........ President’s Message by Michelle Ouellette5 ................ Current Affairs by Richard Brent Reed13 ............. Litigation Update by Mark A. MellorCOVER STORIES:12 .... Riverside County Sheriff–HomelandSecurity Effortsby Lieutenant Joe De Armond14 Privacy, Productivity, and the ParadigmLOST in Cyberspaceby Allen C. TurnerFeatures:6 ........................... What Does One Consider Tragedyby Sylvia Chernick7 ............ Judicial Profile: Hon. F. Paul Dickerson IIIby Donna Thierbach8 ........................ Opposing Counsel: Rodric A. Pachecoby Rick Lantz16 ..................................... Admission to the Bar of theUnited States Supreme Courtby Jacqueline Carey-Wilson18 ... VIP Mentors' Fifth Annual Recognition Luncheonby Vicki Broach22 ........................ Defender of the Constitution Award23 .............. Oswald Parada–Recipient of the Defenderof the Constitution Awardby John C. Rayburn, Jr.Departments:Calendar . . . . . . . . . . . . . . 2Bench to Bar . . . . . . . . . . 11Classified Ads . . . . . . . . . 28Membership . . . . . . . . . . 28Riverside Lawyer, July/August 2005 1

MISSION STATEMENTEstablished in 1894The Riverside County Bar Association, established in 1894 to foster socialinteraction between the bench and bar, is a professional organization that providescontinuing education and offers an arena to resolve various problems thatface the justice system and attorneys practicing in Riverside County.RCBA Mission StatementThe mission of the Riverside County Bar Association is to:Serve its members, and indirectly their clients, by implementing programsthat will enhance the professional capabilities and satisfaction of each of itsmembers.Serve its community by implementing programs that will provide opportunitiesfor its members to contribute their unique talents to enhance the qualityof life in the community.Serve the legal system by implementing programs that will improve accessto legal services and the judicial system, and will promote the fair and efficientadministration of justice.Membership BenefitsInvolvement in a variety of legal entities: Lawyer Referral Service (LRS), PublicService Law Corporation (PSLC), Tel-Law, Fee Arbitration, Client Relations,Dispute Resolution Service (DRS), Barristers, Leo A. Deegan Inn of Court, InlandEmpire Chapter of the Federal Bar Association, Mock Trial, State Bar Conferenceof Delegates, and Bridging the Gap.Membership meetings monthly (except July and August) with keynote speakers,and participation in the many committees and sections.Eleven issues of Riverside Lawyer published each year to update you on StateBar matters, ABA issues, local court rules, open forum for communication andtimely business matters.Social gatherings throughout the year: Installation of RCBA and BarristersOfficers dinner, Annual Joint Barristers and Riverside Legal Secretaries dinner,Law Day activities, Good Citizenship Award ceremony for Riverside County highschools, and other special activities.Continuing Legal Education brown bag lunches and section workshops.RCBA is a certified provider for MCLE programs.MBNA Platinum Plus MasterCard, and optional insurance programs.Discounted personal disability income and business overhead protection forthe attorney and long-term care coverage for the attorney and his or her family.Riverside Lawyer is published 11 times per year by the Riverside CountyBar Association (RCBA) and is distributed to RCBA members, RiversideCounty judges and administrative officers of the court, community leadersand others interested in the advancement of law and justice. Advertising andannouncements are due by the 6 th day of the month preceding publications(e.g., October 6 for the November issue). Articles are due no later than 45days preceding publication. All articles are subject to editing. RCBA membersreceive a subscription automatically. Annual subscriptions are $25.00 andsingle copies are $3.50.Submission of articles and photographs to Riverside Lawyer will be deemedto be authorization and license by the author to publish the material inRiverside Lawyer.The material printed in Riverside Lawyer does not necessarily reflect theopinions of the RCBA, the editorial staff, the Publication Committee, or othercolumnists. Legal issues are not discussed for the purpose of answering specificquestions. Independent research of all issues is strongly encouraged.JULY30 Inland Empire Bankruptcy Forum“Highlights of the New Bankruptcy Law”SB Hilton, 8:30 am – NoonMCLEAUGUST10 Bar Publications CommitteeRCBA – Noon17 DRS BoardRCBA – Noon24 Law & Media Steering CommitteeRCBA – NoonSEPTEMBER5 HOLIDAY7 Bar Publications CommitteeRCBA – Noon8 – 11 State Bar Annual Meeting – SanDiegoRCBA Past President, James O. Heitingto be sworn is as State Bar PresidentSept. 10, 10:30 a.m.13 PSLC BoardRCBA – NoonCALENDARRCBA/SBCBA Landlord/Tenant SectionNena’s Restaurant – SB (tentative) – 6:00p.m.14 Mock Trial Steering Committee– Noon22 RCBA/Barristers InstallationMission Inn, Music Room2 Riverside Lawyer, July/August 2005

Directors-at-Large:Barristers President:Vice-President:Treasurer:Secretary:John BrownHarry Histen, IIIDaniel KatzHarlan KistlerRobyn BeilinJohn HigginbothamCharles BoylstonChristopher Petersonby Michelle OuelletteThe theme of this month’s Riverside Lawyeris security and the loss thereof. In our increasinglycomplicated world, the opportunities for loss ofsecurity, whether it be identity fraud, internet hackingor loss of our civil liberties, have significantlyincreased. As attorneys, we also have seen violencein the courtroom escalate at an alarming rate, asattorneys and clients crowd next to metal detectorsand x-ray machines at the courthouse doors.This era of uncertainty makes me nervous attimes, and sad at others. Too often I see peoplereact to the apparent loss of our protections bywithdrawing, and hiding in what they perceive tobe “safe” havens. Yet running away from insecuritiesand trying to ignore them serves only to allowthem to continue. Perhaps the best way to fortifyourselves against the conflict around us is to reachout to others and lean on those who provide us withconfidence. I turn to my family, my friends, andmy colleagues to give me that sense of stability andsafety that I need in moments of crisis. I try to keepmyself surrounded by people I trust, and I mustadmit that it is partly their support that keeps meworking towards a more secure community and lawsthat give our liberties greater protection.Many of these talented and competent peopleare right here in our legal community, and I ampleased to report that both the RCBA and Barristersremain in “secure” hands. The election results forthe 2005/06 boards are in, and the following are thenew RCBA and Barristers board members:RCBA President:President-Elect:Vice-President:Chief Financial Officer:Secretary:Theresa Han SavageDavid BristowDaniel HantmanE. Aurora HughesJanet NakadaPlease support these vary capable and dedicated individualsin the coming year. We are also thrilled that Jim Heitingwas elected to be State Bar President. He will be sworn in onSeptember 10th. As far as we can tell, Jim is the first State BarPresident from Riverside. Congratulations, Jim!This is my last President’s Message, as my term is now comingto a close. Thank you all for the opportunity to serve as BarPresident this year. Riverside has a wonderful legal community,and it was an honor to be able to participate in so many activities,learn so many new things, and meet so many new people. Ihave appreciated the opportunity to be able to write these messageseach month. Thank you for all of the letters, emails andcomments on my messages – glad people are actually readingthem! I want to be a writer when I grow up, so these messageswere fun and challenging (even with Charlotte hounding meabout constantly missed deadlines). Thanks also to my editors,Megan Starr and Charity Schiller, who not only provided quotesbut worried endlessly about potential libel claims. And thanksto my long-suffering secretary Tammy Valverde for always tryingto herd me to the right place, at the right time, with the rightmaterials and wearing two matching shoes.Compared to prior years, the RCBA is now running like awell-oiled machine. In large part, this is due to our board members– Theresa Han Savage, David Bristow, Daniel Hantman,Aurora Hughes, Harry Histen, Janet Nakada, John Brown, andJay Orr – and our excellent staff, first and foremost our ExecutiveDirector Charlotte Butt.In the Inland Empire, we seem to have a bit of an inferioritycomplex. When we compare ourselves with Los Angeles,Orange County and even San Diego, it seems we often think wedon’t measure up to the “big boys.” Folks, we are now also thebig boys and have a legal community to be very proud of. It’stime to start feeling good about ourselves and the professionalcamaraderie that we enjoy. I hope to see you at the installationdinner of our new board on September 22nd. Have a wonderfulsummer!Michelle Ouellette, President of the Riverside County Bar Association,is a Partner and currently chair of the Natural Resources PracticeGroup of Best Best & Krieger LLP. Ms. Ouellette represents municipal,district and private clients in environmental issues arising underthe California Environmental Quality Act (“CEQA”), the NationalEnvironmental Policy Act (“NEPA”), the state and federal EndangeredSpecies Acts, and wetlands regulations.Riverside Lawyer, July/August 2005 3

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CURRENT AFFAIRSby Richard Brent ReedOn May 9, 2005, Newsweek published an articleentitled “Gitmo Southcom Showdown” that included thefollowing passage:“Investigators probing interrogation abusesat the U.S. detention center at GuantanamoBay have confirmed some infractions alleged ininternal FBI e-mails that surfaced late last year.Among the previously unreported cases, sourcestell NEWSWEEK: interrogators, in an attemptto rattle suspects, flushed a Qur’an down a toiletand led a detainee around with a collar and dogleash.”Predictably, there were riots throughout Islam. OnMay 14, 2005, Newsweek issued a retraction, but notbefore 17 people had perished in the ensuing violence.An investigation by Newsweek editor Mark Whitakerfound that the source relied on by his reporters MichaelIsikoff and John Barry could not be sure where or if hehad read about the incident. Before rushing into print,the authors ran the story past two separate DefenseDepartment officials. One declined to give a response; theother had a problem with another aspect of the story butdid not dispute the Qur’an allegation. The crack journalistsat Newsweek took silence as assent and ran with thestory without further investigation.The credibility of that dubious document, if it exists,depends upon the acceptance of several assumptions: 1)that it is possible to “rattle” someone by flushing a book;2) that a U.S. interrogator would risk looking like anidiot; 3) that an American Standard toilet that won’t evenaccommodate paper towels could successfully pass a book;and 4) the officials at Guantanamo Prison would put theirplumbing at risk. Despite these problematic improbabilities,the editors at Newsweek bought the account. So did alot of hot-heads in the Middle East. The result: 17 dead inIslamic rioting. This would be a high price to pay, even ifthe Gitmo story were true, but this is the way news generatesnews. It sells copy.In 1898, newspaper magnate William Randolph Hearst,the father of yellow journalism, insisted that his correspondentin Cuba cover the war with Spain ensuing fromthe sinking of the battleship Maine in Havana Harbor. Hiscorrespondent wired Hearst that there was, as yet, no warwith Spain. Hearst replied: You supply the pictures, I’llsupply the war. Hearst has been widely condemned for hisuse of the news media to manipulate public opinion andincite violence. Had Hearst written the Newsweek article,he would, at least, have provided pictures of the toilet.The corruption of journalistic standards and theneedless, utterly predictable, loss of life notwithstanding,there is a larger, more troubling issue here. Despite thecomplete debunking of the Qur’an flushing story, there arepeople out there – not just Muslim fanatics in the MiddleEast, but average Americans right here – who will insistthat the story is true, guided by the notion that, becauseone might expect something like this to happen, it musthave happened. This persistent belief, flying in the faceof the facts, is an act of conviction: a leap of faith. Nonrationalor even irrational belief may be appropriate inthe context of theology or religion, but such an approachto geopolitics requires both a suspension of disbelief andthe abandonment of critical thinking skills. In the legalcontext, this has had disastrous results.In 1692, a court was convened in Salem, Massachusettsfor the trying and hanging of witches. Arthur Miller, in hisplay The Crucible, gives us an insight into the mindset ofan ideologue hell-bent to ignore the evidence. In that play,Judge Danforth, the chief magistrate of the proceedings,chides Mr. Hale, the well-meaning prosecutor, for beingnaïve in his approach to the trying of witches. Danforthinstructs him from the bench:“In an ordinary crime, how does one defendthe accused? One calls up witnesses to prove hisinnocence. But witchcraft is ipso facto, on its faceand by its nature, an invisible crime, is it not?… Therefore, we must rely upon her victims…Therefore, what is left for a lawyer to bring out?”In other words, when dealing with an “invisible crime,”the absence of evidence is evidence that an invisible crimewas committed.Those disposed to subscribing to conspiracy theoriesand invisible crimes should go to a used bookstore, buy athrow-away novel, and try flushing the book down a toilet.Or, better yet, try it with a copy of Newsweek.Riverside Lawyer, July/August 2005 5

WHAT DOES ONE CONSIDER A TRAGEDY?By Sylvia ChernickIclamped together. But her mind could not reconcile why,when she looked down at her legs, they were still straight.Tears streamed down many faces as she testified.recently became employed at our local superiorcourt as a judicial secretary, after having worked forThe defense attorney, a very reputable, professionaland kind man, asked her why she didn’t do anything whenattorneys for the past 20 years. The change from privatehis client brandished a gun at her. He stopped in his tracksemploy to public employ is different, to be sure. Whileand had to catch his breath as she responded, “Because Ithere are any number of topics about which I could write,thought he loved me.” The defense attorney paused. Hisa recent event at work so impacted me, I have decided toyoung client began to cry and cry and cry. He used up awrite about my experience.few boxes of tissue, his body heaving with emotion. At theNot long ago our community read newspapers and end of the day, the news reporters would broadcast thatwatched TV news with horror when it was reported that she testified and that he cried. Somehow without evena young man had shot his girlfriend. Both were then and trying to, their reporting of this case was sensationalized.still are minors. She is paralyzed from the chest down and I spoke with the court reporter the next morning andhas limited use of her arms. A jury just convicted him of asked her if she was okay. Terri said she did okay until theattempted murder. As this case unfolded, court employees end of the day, when the victim was leaving the witnesscame to work each day and went about their business with stand. As the defendant, eyes filled with tears, watcheda calm normality that belied the video cameras erected her being wheeled away, he turned toward the audience,outside the courtroom and the news media vans camped in looking for his father. Terri collected her thoughts for athe front of our courthouse. This was all new to me. For moment and said, “When father and son met glances, thethe last 20 years, I have been able to go to and from work father mouthed the words ‘I love you’ to his son.” Terriwithout ever wondering how I would get to the entrance clearly felt sad. We both agreed that this was a very hardor exit without having my likeness on the 5 o’clock news. day to be a parent.The trial went for two weeks. The young woman shot The trial progressed, and two weeks later, as I sat at mywould testify. These were two young kids – boyfriend andgirlfriend – their lives changed forever. You see, she waspregnant and decided to have an abortion. If he agreedwith her in the beginning, boy, oh boy, he changed hismind that day. Neither of their parents knew about thepregnancy. She went to a local clinic and filled out therequired paperwork. He came through the doors of theclinic and told her, “We’re leaving.” Evidently she replied“no” a few times and he countered by telling her a fewtimes to leave . . . . She did not get up to leave, so he shother in the neck.The day she testified, the courtroom was packed. Thiswould be the first time this young couple would see eachother since the incident. The tension in the courtroomdesk, I watched as the courtroom clerk, Martha, anxiouslyoperated a photocopier. I asked her if I could help and shesaid she was fine, yet her demeanor reflected otherwise. Iasked if she was okay and she explained that the jury wentout a few hours earlier and had already returned with theverdicts. I followed her down the hall as she went into thecourtroom. I stood behind Martha in the corner of thecourtroom, my back against the door, and I watched theevents unfold. I had never seen a verdict being read. I hadno idea what happened procedurally. I was excited becauseI was going to learn something new.I looked at the courtroom clock. It was about 4:15 p.m.The judge was seated at the bench, facing forward with athoughtful look on his face. The court reporter was inwas palpable. The audience watched as she described her seat and poised. The defendant and his attorney werehow she was paralyzed. She could raise her arms up fromthe elbows in a bent fashion to reach shoulder high. Herhands were fairly useless and she had no feeling from thechest down. When she cried as she testified, she couldn’twipe her tears. Her mother sat next to her and did that.She described feeling as if her body had curled up intothe fetal position when he shot her – sort of involuntarilyseated at counsel table with two deputies nearby. Threefamily members sat in the audience behind the defendant.The prosecutor was at counsel table and there were onlya few other people in the audience. The attorneys stoodas the jury entered the courtroom and took their seats.My heart sank when I saw the faces of the jurors. Several(continued on page 25)6 Riverside Lawyer, July/August 2005

JUDICIAL PROFILE: HON. F. PAUL DICKERSON, IIIby Donna ThierbachI first met the recently elevated Judge PaulDickerson when we worked at the office of theRiverside County Public Defender. What I immediatelynoticed was his easy-going style and hisspecial ability to communicate effectively withclients. From back in his public defender days,I recalled the nickname “surfer.” Consequently,I had one burning question to ask him when Iinterviewed him for this article: “Do you reallysurf?” He said he began surfing in junior high,when he moved from Oregon to Newport Beach,California. He continues to love the sport andsurfs most weekends, wind and swell conditionspermitting. He also enjoys hiking and sailing.He took up sailing while in college, and hasowned two sailboats. For the past six years, hehas been on Judge Mager’s sailing crew in theNewport-to-Ensenada yacht race.Just when you think you know someone– I learned from a Daily Journal article thatJudge Dickerson had a Master’s Degree in LatinAmerican Studies. Judge Dickerson explainedthat, as an undergraduate, he participated in astudent exchange program in Costa Rica for ninemonths. The experience piqued his interest, soafter earning his Bachelor’s Degree, he attendedGeorgetown University and earned his Master’s.I give up! How did Judge Dickerson end upin the practice of law in California? He said thatafter earning his Master’s, he worked as a DistrictSales Manager for the Nissan Motor Corporation.His first assignment was at the Norfolk, Virginiaregional office. While there, he lived in a seasiderental in Virginia Beach. Of course, the beachlocation was perfect, but he was later transferredto the Dallas regional office. In Dallas,he became involved as a volunteer for a literacyprogram and the Salvation Army.Judge Dickerson said he had always beeninterested in law and he wanted to have animpact on society. He also wanted to have moreof a choice in where he lived. So he left thecompany, returned to Oregon, and attended theUniversity of Oregon, where he earned his JurisDoctorate. He had determined he only wanted totake the bar once and decided SouthernCalifornia was the place to live. He movedto California and, after passing the bar, heworked for Inland Counties Legal Servicesand then at a private law firm. However,he had clerked for a public defender’soffice while he was in law school, so whenhe learned of an opening in the RiversideCounty Office of the Public Defender, heapplied. From there, he made a transitionto the Riverside County District Attorney’s Judge Paul DickersonOffice. His last assignment with that office, before becoming acommissioner, was in the Environmental Crimes Unit. He said theEnvironmental Crimes Unit was a unique and interesting opportunity,because it was a combination of criminal and civil law.Judge Dickerson said as a commissioner, and now as a judge,he enjoys trying to resolve cases. He is very satisfied with his currentposition and has no aspirations for another office. Surf’s up!Donna Thierbach is formally a deputy public defender with RiversideCounty and is currently the assistance director of the adult division ofthe Riverside County Probation Department.Photograph courtesy of Wayne HoyRiverside Lawyer, July/August 2005 7

OPPOSING COUNSEL: RODRIC A. PACHECOby Rick LantzWriter’s note: Rod Pacheco is an Assistant DistrictAttorney for the Western Division of the Riverside CountyDistrict Attorney’s office. Mr. Pacheco, 47, has been a residentof the Inland Empire for over 39 years. He earnedhis Bachelor of Arts degree in 1980 at the University ofCalifornia, Riverside, and in 1983 earned his law degreeat the University of San Diego Law School. He currentlyresides in Riverside with his wife and their four children.L: In 1984 you went to the D.A.’s office. Why?P: Because I had wanted to be a lawyer since I was in highschool and then somewhere along the line I determinedI wanted to be a prosecutor. I was doing something tohelp the community, a public service kind of thing.L: I notice in your curriculum vitae where you took on afair amount of homicide and death penalty cases. Whywas that?P: Death penalty cases are the ultimate. There’s no casein the law, in any area of the law, that is more significantthan the death penalty cases.L: In 1996 you sought elective office. Why is that?P: Years of frustration with the criminal justice systemand how it worked and how it didn’t work, and just anopportunity that came up, kind of at the last minute, forme to maybe have a larger impact on it, on the criminaljustice system. That’s why I went there. While I wasthere, I did a lot of public things as well. You know,concentrated on public safety, but I also did a lot ofeducational stuff.L: Quite a new challenge for you.P: It was quite a challenge because I didn’t know anythingabout running for office. I had never run for officebefore. Not City Council, not School Board, nothing.Flukes. My life’s a series of flukes.L: On TV I once saw something on Bear Bryant. He hadsomething on his desk that said, “The harder I work, theluckier I get.” So maybe it wasn’t so fluky.P: I think work is part of it but I also think timing.Timing in life is everything.L: What is the major difference in regard to getting thingsdone between being a Deputy D.A. and a member of theAssembly?P: It taught me new skills, being in the Assembly. Inthe prosecutor’s office, while negotiation is part of thelarger job, it’s not required. You don’t have to negotiatewith anybody. When we file charges, we believe wehave evidence to convict this person beyond a reason-able doubt through jury trial.So negotiation really is morenoblesse oblige. As a D.A., youneed to learn how to fight andgo over to the court and fightit out. To slug it out on behalfof the community, the gladiatorfor the community if youwill. And then when I went toLegislature, it’s completely theopposite. It’s all about collaboration,it’s all about working with people, Democrats; I’mRod Pachecoa Republican, but I work very well with Democrats. BillLockyer was a Senator at the time I got there and nowthe Attorney General, we have a great relationship. Soit’s a question of figuring it out, in order to get somethingdone, you have to collaborate, you have to workwith people.L: What did you enjoy the least as an Assemblyman?P: Politics. Politics, it’s like playing video games. Youkill the monster, you make it to the end of the path, butthere’s no real goal. There’s just no substance to it, ismy point. It’s a horrible and tragic waste of virtue andenergy.L: Why did you leave the Legislature?P: I knew it was time. At the end of six years, it was timeto come home. And I’m glad I did. Boy, I take my kidsto school every morning. I was up there yesterday on acouple of projects I’m working on, and just don’t evenlike being up there.L: Is there a chance you’ll be the next D.A. of RiversideCounty?P: If the voters think I should be. I mean, if they hire mefor the job, it’s up to them. I‘m going through the hiringinterview. Wish me luck.L: I do.P: I want the job, I just have to convince them that I’mthe person for the job, that I can do the work they needme to do.L: The fact that you’re a politician helps you in regard tomeeting with people and dealing with people and negotiatingand compromising, which I would assume theDistrict Attorney has to do now and then, because it is apolitical office.P: That’s an absolutely good point. The system I’m in todayrequires collaboration between the District Attorney’soffice, the courts and the defense bar.8 Riverside Lawyer, July/August 2005

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BENCH TO BARThe Honorable Sharon Waters, Presiding Judge, Riverside Superior CourtSWJC FAMILY LAW COURTROOM TO MOVETO HEMETThe mid-county region of the RiversideSuperior Court, which extends from Banningto Temecula, is the fastest growing area in thecounty. As the court anticipated, since the openingof the Southwest Justice Center (SWJC),there has been increasing and unprecedentedhigh usage of the facility by the general public.The high volume has taxed the ability of theRiverside Superior Court to provide professional,expeditious services to the general public.The SWJC criminal law departments arein critical need of further judicial assistance.Those departments have the highest ratio ofpending felony trials to trial departments in thecounty. There is no available courtroom at thatfacility for any additional criminal law judicialresources.Even more significant are the increased filingsin the family law departments in the midcountyregion. At this time there is only onefamily law department at SWJC and one familylaw department in Hemet. The family law judicialofficer in SWJC carries the highest case loadamong the family law judicial officers countywideand the Hemet family law judicial officercarries the second highest. Both judicial officersare in critical need of assistance.Therefore, effective September 6, 2005, theSWJC family law courtroom will be temporarilymoved to the Hemet courthouse, which currentlyhas vacant courtrooms. Family law will thenbe consolidated under one judge and two commissionersworking together. The court believesthat temporarily moving the SWJC family lawmatters to Hemet and adding an additional judicialofficer to that facility will help to insure thatall family law cases are brought to a prompt andfair conclusion. The temporary move of familylaw matters will also open an additional courtroomfor criminal trials at SWJC to the extentthe court is able to obtain an additional assignedjudge.The decision to move the SWJC family lawcourtroom to Hemet, even on a temporary basis,was not easily reached. The court is mindful of the inconvenience,and, in some instances, the hardship, this will cause to the residentsin the communities. To lessen the impact, the Family LawAssistance Center and family law mediation services will remain atthe SWJC and the clerk’s office there will continue to accept familylaw documents for filing. Also, the Family Preservation Courtand the self-represented litigant calendar, commonly known as ProPer Day, will continue to be held at SWJC. The court anticipateschanges with respect to the hearings on domestic violence mattersemanating from the Lake Elsinore area and will be providing furtherinformation on that in the near future.It bears repeating that the court intends this to be a temporarymeasure. It is contemplated that, with the construction ofa new office building for county departments currently located inthe Southwest Justice Center, space may become available in thatfacility for additional courtrooms. With the passage of SB 395, thecourthouse construction bond, and SB 56, which would provide 19additional judges in Riverside County, the court would be able tomove the family law department back to SWJC and add at least oneadditional family law judicial officer to that facility.Riverside Lawyer, July/August 2005 11

RIVERSIDE COUNTY SHERIFF–HOMELAND SECURITY EFFORTSby Lieutenant Joe De ArmondOn October 30, 2001, the Boardof Supervisors approved a lieutenant, fourinvestigators and two deputy sheriffs toenhance disaster planning and coordinationas it relates to terrorist events. Thesepositions were used to coordinate at aregional level the Sheriff’s Department’scoordinated responses, criminal intelligence,hazardous device team and a coordinator.This funding was a priority establishedby the Board of Supervisors beforethere was homeland security funding.Sheriff Bob Doyle has supported theneed to better prepare our law enforcementpersonnel and other staff to respondto a terrorist incident/event. In September2003, the Board of Supervisors approvedthe acceptance of a COPS Universal HiringGrant (22 deputies), the formation of theDepartment’s Homeland Security Team,and the use of $306,000 of state homelandsecurity grant funding for specializedequipment. In May 2004, the SpecialEnforcement Bureau (SEB) began the processof identifying, recruiting, and trainingstaff. The team is comprised of a captain, alieutenant, four sergeants and 28 deputies.SEB’s focus was county homeland security,critical infrastructure protection, and ahighly visible law enforcement presence inthe County of Riverside. The Departmenthas one of the very few full-time homelandsecurity teams in the nation and the onlyteam in the state.Since 9/11, the Department hasreceived five grants totaling approximately$2,052,969 in homeland security grantfunding. These funds are being used ina regional approach to prepare, train andequip our personnel in the event of a terroristincident. Equipment and trainingwere identified for various projects thathave included:1. Level A & B personal protection equipment for SEB.2. Level C personal protection equipment for field-level personnel.3. Portable detection devices.4. Communications interoperability within Riverside County.5. A state-of-the-art mobile command post with broadband satellitecapabilities.6. Cyber-terrorism specialized equipment (computers, sniffer, thermalimagers).7. Training concerning weapons of mass destruction (WMD), terrorismand cyber-terrorism. This training is offered at our regional trainingcenter, Ben Clark Training Center, to all law enforcement agencies.8. Armored personnel transport with portable CBRNE (chemical, biological,radiological, nuclear and explosive) facilities.9. Training computer lab for WMD, plume modeling and other terrorist-relatedtraining.Lieutenant Joe De Armond has served with the Riverside CountySheriff’s Department for over 26 years in a multitude of assignments.After the terrorist attacks on September 11, 2001, the Riverside CountyBoard of Supervisors created several new positions with an emphasison disaster preparedness and anti-terrorism, including a position inthe Sheriff’s Department to coordinate preparedness and responses toa potential terrorist event in Riverside County. Sheriff Larry D. Smithcharged Lt. De Armond with the responsibility of coordinating, preparingand equipping emergency “first responders” who would respondto incidents involving weapons of mass destruction or terrorism. Hewas also tasked with coordinating emergency response capabilitieswith other agencies, including county public health and county fire.He is the Co-Chair for the Riverside/San Bernardino Counties TEWG(Terrorist Early Warning Group) and the Co-Chair for the RiversideCounty Bio-Terrorism Advisory Committee on Planning and Detection.ASSOCIATE ATTORNEY –REDLANDSImmediate full-time positionfor associate attorney with2+ years experience in estateplanning, probate, corporateand tranactional law, with somelitigation. AV rated firm withdiverse practice. Competitivesalary and benefits. Send resumeto: Brunick McElhaney & Beckett,P.O. Box 6425, San Bernardino,CA 92412,or fax to (909) 388-1889.12 Riverside Lawyer, July/August 2005

LITIGATION UPDATEby Mark A. MellorHospital may not assert a lien fordifference between agreed charges and“usual and customary charges.”Hospitals that contract with health insurers to acceptless than their usual charges as “payment in full” haveasserted lien claims under the Hospital Lien Act (Civ.Code, §§ 3045.1-3045.6) in personal injury actions forthe difference between the payments received and the“usual and customary charges” for the services rendered.They can do so no longer. (Parnell v. Adventist HealthSystem/West (2005) 35 Cal.4th 595 [26 Cal.Rptr.3d 569,109 P.3d 69].)Failure to read arbitration clause incontract does not excuse compliance.Following California precedent in Brookwood v. Bankof America (1996) 45 Cal.App.4th 1667 [53 Cal.Rptr.2d515], the Ninth Circuit concluded that arbitration maybe compelled even if the party preparing the contractfails to call the other party’s attention to an arbitrationclause and even if that party was unaware of the clausewhen signing the contract. (Nagrampa v. Mailcoups,Inc. (9th Cir. 2005) 401 F.3d 1024.) The court quotedBrookwood for the proposition that the contracting party“‘was bound by the provisions of the [arbitration] agreementregardless of whether [she] read it or [was] aware ofthe arbitration clause when [she] signed the document.’”The court also held that any claim that the arbitrationclause should not be enforced because it was contained ina contract of adhesion must be decided by the arbitratorand not by the court.Voluntary payments made after expirationof section 998 offer are treated as part ofthe judgment.Where defendant made a voluntary payment to plaintiff,after plaintiff’s offer under Code of Civil Proceduresection 998 expired, the amount of the payment mustbe added to the amount of the judgment to determinewhether plaintiff obtained a result more favorable thanthe offer. (Arias v. Katella Townhouse Homeowners Ass’n,Inc. (2005) 127 Cal.App.4th 847 [26 Cal.Rptr.3d 113][Fourth Dist., Div. Three].)Under federal rule, defendant who causesunnecessary service of process costs mustreimburse plaintiff, regardless of whoprevails in the action.Federal Rule of Civil Procedure 4(d)(2) imposes aduty on parties to avoid making service of process unnecessarilyexpensive. In Estate of Darulis v. Garate (9th Cir.2005) 401 F.3d 1060, defendant refused to waive serviceof process. The court held that this imposed unnecessarycosts on plaintiff and plaintiff could recover these costs,even though he lost the case. California would probablyapply a similar rule. Code of Civil Procedure section415.30, subdivision (d) entitles a plaintiff to recoverexpenses incurred in serving and attempting to serve thedefendant if the defendant fails to return an acknowledgementof service within 20 days after service by mail.Whether acts by disqualified judge arevoid is before the Supreme Court.In December, in Hartford Cas. Ins. Co. v. SuperiorCourt (2004) 125 Cal.App.4th 250 [22 Cal.Rptr.3d 507],the Second District Court of Appeal, Division Five heldthat, where a judge discovered, after denying a motion forsummary adjudication, that he was disqualified becauseof prior contacts with an ADR provider, the order wasvoid. The California Supreme Court has granted review(Case No. S131554), so the case may no longer be cited.Under Code of Civil Procedure section998, successful plaintiff may recoverexpert witness fees even though these feeswere paid by an insurer.Code of Civil Procedure section 998 provides that thecourt may award expert witness fees incurred by a partywhen the judgment is less favorable than an offer madeunder the statute. In Skistimas v. Old World OwnersAss’n (2005) 127 Cal.App.4th 948 [26 Cal.Rptr.3d 319][Fourth Dist., Div. Three], the trial court had held that,where defendants’ insurer, rather than defendants personally,had paid such fees, defendants did not “incur”the expenses and thus were not entitled to recover them.Relying on cases holding that parties may recover attor-(continued on page 21)Riverside Lawyer, July/August 2005 13

PRIVACY, PRODUCTIVITY, AND THE PARADIGMby Allen C. TurnerNailing the wind to the wall is easier than writinganything current about the constantly evolving issueof internet security. Furthermore, the reader either knowsa great deal more than the writer or a great deal less.Procrustes, of the legendary Bed, cut off the legs of gueststoo tall, and stretched those too small. Confounding bedfables, I hope here to reach the Goldilocks Compromise– not too technical—not too patronizing, but (oh my)just right.You know that the practice of law requires specialattention to issues of privacy and productivity. Privacyissues include protecting your client files, your work products,and your business files from unauthorized access toor disclosure of their contents. This would include theft ofcredit card numbers, bank accounts, and other elementsof your modern electronic identity. Productivity issuesinclude preempting nuisance and deliberate interferencewith your capacity to deliver services to your clients. Yourelectronic premises must be protected at least as well asare your physical premises.Here is a security checklist:YesNo❏ ❏ Post your burglar alarm code on the door?❏ ❏ Post your computer passwords on yourmonitor?❏ ❏ Leave the door unlocked when you leave theoffice?❏ ❏ Connect to the internet without a firewall?❏ ❏ Let strangers wander around your office andread over your shoulder?❏ ❏ Download free screensavers and toolbars?❏ ❏ Reply to all the junk mail you receive?❏ ❏ Open email attachments from strangers,especially dot-exe and dot-zip files❏ ❏ Send money to chain-letter strangers?❏ ❏ Send, reply to, or forward emails with longlists of cc: recipients?If you checked Yes to any of these questions, you area victim-in-waiting.Law office security means denying access to anyonewho is not authorized to enter. It means denying exit toanything that should not go out. It means preventingharm to property in the event that unauthorized accessdoes occur. Law Office Security Technology (LOST)includes everything between the front door and thedumpster out back – not just the computers.The Law Office Security Technology (LOST) Paradigmshows the character of threats to your privacy and productivity.Law Office Security Technology ParadigmAdd “pharming” to the litany of online threats.Ordinarily, when you enter a URL, say www.riversidecountybar.com,your browser translates it to a numericaddress IP address like, 012.34.456.89. The pharmingscam sends you to a different IP address, in fact a fakelookalike website. Watch for the lock and key symbolfor Security Socket Layer Certificate (SSL) for legitimatesecure online transactions. (Law Technology News. May2005 p. 46).Computer Security Self Defense:1. Don’t send, forward, or reply to multiple “cc:” jokeemail; you are creating a windfall of addresses for spammers.2. Delete--before opening--unsolicited email from strangers,particularly if it contains attachments – especiallydot-exe and dot-zip. They frequently contain viruses.3. Windows users keep your updates current. InstallService Pack 2 and block internet categories that do notwork within your business model, e.g. adult, sex, shopping,games, etc.4. Avoid “phishing” requests ostensibly from banks, creditcards, etc to update your banking information. Theylook like the real thing but the “legits” will never ask foryour personal identification or account numbers.5. Do not download free screen savers, toolbars, weatherthingies, etc. They contain spyware, trackers, etc. andslow down your computers and your productivity.6. Switch from automatic to manual updates for varioussoftware programs. Many of them are always on andalways tapping your computer resources.7. Be a smaller target; consider changing from yourbrowser from Internet Explorer to Firefox; your email14 Riverside Lawyer, July/August 2005

LOST IN CYBERSPACEserver from Outlook to Eudora or webmail,your operating system from Windows to Linuxor Mac. You may lose some functionality butgain much in operability.8. Do not respond to those wiggly popups thattell you that your computer is running slow.Looks real but it is a clickable image. Rightclick on it and you will see that it is a fake.9. Install a hardware firewall and a softwarefirewall, e.g. ZoneAlarm; I prefer the free version.10. Update your anti-virus & anti-spy programsfrequently.11. Change automatic software updates to manual.Automatics constantly tap your computerresources.12. Take a lesson from Justice Learned Hand.Reasonable people adopt cost-effective lossprevention technology, whether shipboardradios (T.J. Hooper. 60 F 2d. 737 (2d Cir.1932), United States v. Carroll Towing, 159F.2d 169 (2d Cir. 1947)), or a lock on the frontdoor, or computer anti-virus software.There are numerous resources availableonline. Google (yes, it’s a verb now) or yahooto < ethics AND “law office technology” > to stay up-to-date onissues and solutions to your internet security.Allen C. Turner, Esq., is the webmaster for the RCBA website, www.riversidecountybar.com.Riverside Lawyer, July/August 2005 15

ADMISSION TO THE BAR OF THE UNITED STATES SUPREME COURTby Jacqueline Carey-WilsonOn May 31, 2005, I was one of 15 members ofthe Federal Bar Association (FBA) to be admitted to theBar of the United States Supreme Court. The admissionsceremony is sponsored by the Younger Lawyers Divisionof the FBA and traditionally held the day after MemorialDay.On the morning of the swearing-in, the attorneys fromthe FBA entered the Supreme Court by the side entranceat 8:30 a.m. and signed in. Soon after our arrival, we wereescorted into a beautiful room where we were given anoverview of the morning events. At approximately 9:30a.m., the FBA members and their guests were usheredinto the courtroom. Inside the impressive courtroom,the attorneys were seated in the front row and our guestswere seated in the back rows. William K. Suter, the Clerkof the Supreme Court, went over the morning calendarand we were instructed that the appropriate response followingthe oath was “I do.” Promptly at 10:00 a.m., allnine Supreme Court justices entered the courtroom andbegan the morning calendar.Three new Supreme Court decisions were announcedprior to the admissions ceremony. Associate JusticeStephen G. Breyer delivered the opinion of the court inTory v. Cochran (2005) ___ U.S. ___ [125 S.Ct. 2108];Associate Justice Ruth Bader Ginsburg delivered the opinionof the court in Cutter v. Wilkinson (2005) ___ U.S. ___[125 S.Ct. 2113]; and Chief Justice William H. Rehnquistdelivered the opinion of the court in Arthur Andersen LLPv. United States (2005) ___ U.S. ___ [125 S.Ct. 2129].Upon the conclusion of the morning calendar, theclerk requested the motions for admission to the Bar ofthe United States Supreme Court. James S. Richardson,Sr., Treasurer of the FBA, stepped up to the podium,called each attorney by name and made a motion tothe high court for our admission. An attorney with theDepartment of Veterans Affairs made a similar motion forseveral of its attorneys to be admitted to the Bar, and thena few attorneys made separate motions to have individualattorneys they were sponsoring be admitted. The attorneysseeking admission to the Bar of the Supreme Courtwere asked to stand, and when the oath was read, we gavethe appropriate response.Justices Sandra Day O’Connor and Ginsburg joinedthe newest members of the Bar at the reception sponsoredby the FBA. Neither could stay for long because they werescheduled to meet with members of the Iraqi governmentdrafting a new constitution for Iraq.I attended with my husband, Douglas Wilson, mythree daughters, Katie, Julia, and Grace, my parents, JohnJohn and Dorothy Carey, Katie, Julia and Grace Wilson,Jacqueline Carey Wilson and Douglas WilsonSupreme Court Justice Ginsburg andJacqueline Carey Wilson16 Riverside Lawyer, July/August 2005

Supreme Court Justice O'Connor andJacqueline Carey Wilsonand Dorothy Carey, and my good friend, Allen Hopper. Myguests were allowed to join me in the courtroom and duringthe reception. Normally, only one guest per attorney ispermitted. However, this year the FBA made an exceptionbecause they were admitting only 15 members to the Bar ofthe Supreme Court, as opposed to the 50 that the high courtcan accommodate.This was truly an extraordinary experience and the highlightof our seven-day stay in the nation’s capital. Attorneyswho have practiced at least three years and have not been subjectof disciplinary action within the last three yearsare eligible for admission to the Bar of the SupremeCourt. Your admission entitles you to practice in thehigh court, sit in reserved seating in the courtroomduring oral argument, and use the public areas of thecourt’s extensive law library.For information on bar membership, visit theSupreme Court website at www.supremecourtus.gov.The admissions ceremony sponsored by the YoungerLawyers Division of the FBA is a unique way for FBAmembers to be admitted to the bar of the highestcourt in the land. The program is open to all FBAmembers, no matter what age. For information onmembership in the FBA and on the annual SupremeCourt admissions ceremony, visit the website of theYounger Lawyers Division of the FBA at www.fba-yld.org.The FBA will begin to accept applications foradmission to the Bar of the United States SupremeCourt after January 1, 2006. Remember to applyearly to insure that you can have a place at the nextadmissions ceremony, which will be take place, iftradition holds, on May 30, 2006.Jacqueline Carey-Wilson is a Deputy County Counsel withSan Bernardino and Editor of the Riverside Lawyer.Riverside Lawyer, July/August 2005 17

VIP MENTORS’ FIFTH ANNUAL RECOGNITION LUNCHEONPhotographs courtesy of Jacqueline Carey-Wilsonby Vicki BroachForest Wright and James Heiting were honored in Aprilat the annual lunch of VIP Mentors for their volunteer efforts asmentors to parolees re-entering society. Wright received an awardfor “Outstanding Attorney Volunteer.” Heiting was honored jointlywith his mentee, Alfredo Tafoya, as the “Outstanding Match.”VIP Mentors, formerly Volunteers in Parole, Inc., is a groupof attorney volunteers who serve as mentors for men and womencurrently on parole from the state Department of Corrections.The attorney-mentor offers advice, friendship, and encouragementto his or her mentee. The statewide program began inRiverside County in 2000 and is now in its fifth year of operation.The annual awards lunch recognizes the contributions of everyoneinvolved in the program.This year’s event was conducted by Magistrate Judge StephenLarson. Assemblyman John Benoit and Larry Grable of the Officeof the Governor attended to recognize the award recipients.Also honored was Bentley Wilson, the “Outstanding Parolee.”He spoke movingly about a long history of struggling with substanceabuse and AIDS and his present successes educationallyand in achieving his career goals.Dawn Kuster was named “Outstanding Parole Agent.” Threefinancial awards were presented, to Rasheed Bismillah, MichelPierre, and Bentley Wilson, all of whom credited the program withfacilitating their accomplishments on parole. All of the awardrecipients commented on the mutual benefits of the relationshipbetween the attorneys and their matches.During lunch, Joe Loya, the author of the recently publishedmemoir, The Man Who Outgrew his Prison Cell, Confessions of aBank Robber, gave the keynote address, in which he identified thetwo themes of “peril and heroism.” He told about an early experiencewhile on parole. One day, while eating at a Pasadena café, hewas verbally abused by a mentally disturbed man:“I was transformed immediately from compassionate manto that man’s antagonist. After his hot barrage of unadulteratedinsult, something primal was sparked in me and my temper flaredand my old ethic of responding to insult with violence seized me.In two seconds my fantasies about what I should do to that manturned frantic and bloody.”He contemplated violent action: “It was easy for me to thinkabout picking up my restaurant knife and going over there to stabthe man. I was tempted to revert to my jungle self. I was on thebrink of ruining my life, and I realized that this is the place thatForest Wright (center) with mentees Robert Rios andMario BecerraJames Heiting, Cindy Heiting and mentee Alfredo TafoyaJohn Vineyard (right) and mentee Michel Pierreevery parolee gets to where they have to decide ifthey stay out or if they go back. The moment offatal peril.”Instead, he resisted: “But I didn’t act. InsteadI sat there and talked myself down. I remindedmyself that I wanted to be a new man; that theviolent ethic of retaliation wasn’t what I sub-18 Riverside Lawyer, July/August 2005

scribed to anymore. I told myself that the man hadn’t touched me, andI didn’t perceive him as a physical threat.“I’m not going to lie and tell you that I didn’t feel the sting ofhumiliation. All the customers looked at me as if they expected me toact. I put my head down and waited for my food to arrive. I told mygirlfriend that it was extremely difficult to sit there and do nothing, butnothing is what I intended to do…“And that is the rub. I was committing the bravest act of my newfree life, but because it was an absence of action, occurring in my interiorworld, nobody could witness it.“When we are little boys and girls, we develop our understanding ofheroism by the deeds that heroes do. First as young children, we watchcartoon superheroes on Saturday morning TV. Our superheroes act.They crush meteors headed for earth. They defeat space armies. Evenbiblical heroes like Samson slay armies with one big bone.“As we grow older, we perceive the firemen who run into burningbuildings as heroes because they act to save lives. Heroism is equatedwith action.“But for the parolee, our measure of heroism is different. We areheroic when we don’t act. When we don’t pick up the needle again.When we don’t pick up the bottle. When we don’t commit domesticviolence. When we don’t pick up a gun. Or when I didn’t act to stabthat mentally ill man who disrespected me with the most vile, racistterms.“We are heroes because we are acting against every instinct in ourbodies telling us to do what we have always done, and that is give up.It takes great courage to act against our biography. The story we havealways told ourselves about our lives. That we are losers. That lifehasn’t given us the breaks. That hope is for weak people.“We are heroes because we have altered our imaginations of whatcan be. You can’t see the moment when I tell myself that I want to havehope. You can’t notice the minute when I choose to believe that effortwill pay off. You can’t witness the instant when I decide that I want tocontemplate my own posterity. All this occurs in the landscape of thesoul. And so our heroism is silent and without pomp and pageantry.That is the beauty of today. We acknowledge that time has revealedwhat couldn’t be known in the beginning.“I am a believer in change. Remarkable change. Miraculouschange. I am a believer in compassion for the struggle that one mustgo through in order to achieve change. In my memoir, I chronicle howhard it was for me to change. There was in my mind a belief that I hadlived for too long on the other side of taboo. And that this disqualifiedme from ever being able to live on the side of beauty and virtue. Ithought that my crimes would be a permanent stigma on me, like thestain of Cain.“But what I found was a willingness on the part of many people toaccept me as a new man, worthy of acceptance on today’s terms. Inactuality, I was my own worst critic. People were treating me wonderfullyeverywhere I turned, but sometimes, and mostly rarely, at night Ifelt like a fraud for wanting to give up and lurch back to crime.“The philosopher Wittgenstein wrote about spiritual struggle thatsometimes he felt like a man glimpsed through a window in an unseenDavid Philips and mentee Bentley WilsonJoe Loya, Lynn Mawhorter and Vicki BroachYoginee Braslaw and mentee Dorenda WilliamsCarol Greene and mentee Shelena Harrisstorm, appearing to walk quite normally,but in fact keeping his balance only withthe greatest exertion. I felt like that. Likethe achievement of turning around my lifewould be hard-won. That didn’t stop thedoubting, though . . . .Riverside Lawyer, July/August 2005 19

“What I couldn’t imagine was how much good willthere is in the world. People were willing to give meanother chance. Family embraced me when they saw memaking an effort. My new friends confided in me to showme that they trusted me. My wife opened her heart to me.I was dealt with as if I’d always been in the company ofgood folks. I was given a chance to belong to community.Me, who had always been anti-social, raging against theworld. Now the world opened their arms to me and it feltgood to be received.“I tell you that the parolee’s heroism is sometimesdefined by inaction. But I’m not saying that action isn’theroism. In fact, both are true. When the parolee doesn’tact to pick up a needle or gun, they are being heroic. Andwhen the mentor to the parolee picked up their phone andgot in contact with VIP, I’m here to say that their actionwas equally heroic.“You humble mentors may think you are merely takingthe parolee out to dinner, or to a movie, or helpingthem get their driver’s license, or whatever. But what youare really doing is creating an occasion for the paroleeto live another moment on this side of taboo. You arecreating the occasion for the notions of decency and communityto take hold of the parolee’s imagination. You arecreating the occasion for both sides of that new friendshipto be heroic in a world that doesn’t always seem heroic inthis modern age.“ . . . the human heart is resilient. We can forgiveothers and we can forgive ourselves. And this is how communityis formed. By seeing ourselves in the other. If Iwant to be treated good then I should treat you good. Andthat seems to be the ethic of VIP. That the community isbetter served when we serve the community. And servingthe community is knowing that there is a vulnerablepopulation on the margins of society and you move toincorporate them into the center of things. And the centercan hold us all.”If you would like to serve the community as a VIPmentor, please call the program director, Judy Davis, at(951) 782-4814 for information.Joe Loya is an essayist, playwright, andcontributing editor at the Pacific NewsService. His opinion pieces have appearedin the Los Angeles Times, Newsday, theWashington Post, and other national newspapers.He frequently comments on politics,religion, criminal justice issues, andother cultural events.For more information about Mr. Loya or his book, goto www.joeloya.com.Vicki Broach is a Riverside attorney and chair of the Riversideadvisory board for VIP Mentors.20 Riverside Lawyer, July/August 2005

Litigation Update (continued from page 13)ney fees even though they do not have a personal obligation to paythem, the Court of Appeal disagreed, holding that the statute does notspecify “that any particular person must have incurred the expert witnessfees, just that the fees must have been actually incurred.”Statute mandating relief from default based onlawyer fault applies, even though the lawyer islicensed only in another jurisdiction.Code of Civil Procedure section 473, subdivision (b) mandatesthat the trial court grant relief from default where the lawyer for thedefaulting party files an affidavit statingthe default resulted from her or his mistake,inadvertence, surprise, or neglect. InRodrigues v. Superior Court (2005) 127 Cal.App.4th 1027 [26 Cal.Rptr.3d 194] [SixthDist.], the court held that this requirementapplies even where the lawyer is admitted topractice only in another jurisdiction.Criminal case regardingappellate jurisdiction may haveimplications for civil cases.In People v. Nickerson (2005) 128 Cal.App.4th 33 [26 Cal.Rptr.3d 563] [Third Dist.],the Court of Appeal held that where a defendantis charged with both a misdemeanorand a felony, and after the preliminary hearingthe magistrate strikes the felony, anappeal from a subsequent conviction of themisdemeanor lies to the Appellate Divisionof the Superior Court and not to the Courtof Appeal.This case might implicate appellatejurisdiction in a civil case that starts out asan unlimited jurisdiction case, but, becauseof pretrial rulings (e.g., reducing damageswhich may be claimed to less than $25,000),becomes a limited jurisdiction case. Doesthis mean that an appeal from the resultingjudgment should be filed in the AppellateDivision of the Superior Court? Until thisissue is clarified, it might be wise to filenotices of appeal directed to both courtswhen confronted with this situation.Mark A. Mellor, Esq., is a partner of The MellorLaw Firm specializing in Real Estate and BusinessLitigation in the Inland Empire.Republished with the permission of the State Barof California Litigation Section.Riverside Lawyer, July/August 2005 21

DEFENDER OF THE CONSTITUTION AWARDThe Inland Empire Chapter of the FederalBar Association presented its 2005 Defenderof the Constitution Award to Oswald Parada,Directing Attorney of the Office of FederalPublic Defender for the Central District ofCalifornia’s Eastern Division (which includesboth Riverside and San Bernardino Counties).John Rayburn, the Chief of the United StatesAttorney’s Office for the Eastern Division, presentedMr. Parada with the award at a May 5luncheon held in the Mission Inn Music Roomand attended by over 80 members of the InlandEmpire legal community. Mr. Parada, a highlyregarded criminal defense attorney, establishedthe Eastern Division’s Federal Public DefenderOffice ten years ago and was one of thefounding members of our local Federal BarAssociation.The Defender of the Constitution Awardhonors an individual whose work clearly reflectshis or her sworn commitment, as a member ofthe bar, to support and defend the Constitutionof the United States. Anyone may nominatea candidate for consideration by the Board ofDirectors of our local chapter of the FederalBar Association, which selects the recipient.A nominee must be a member in good standingof both the State Bar of California and thebar of the United States District Court for theCentral District of California, and practice orwork primarily in the Inland Empire. Thenominee may be a judge or a lawyer, includinga public attorney, government official, lawenforcement official, law professor, or communityactivist.The award, initiated last year when it waspresented to United States District Judge RobertTimlin, is named in honor of Professor ErwinChemerinsky, the long-time USC Law Schoolprofessor who last year left Southern Californiafor Duke Law School. For each of the past sixyears, Professor Chemerinsky has graciouslypresented his popular Constitutional Law lectureto lawyers of the Inland Empire, alternatingbetween San Bernardino and RiversideCounties. Without notes or ever missing abeat, Professor Chemerinsky provides a briefbut insightful and balanced summary of high-lights of numerous cases from the Supreme Court’s previous year’sdocket, as well as a preview of significant pending appeals.A plaque containing a description of the award and a list of itspast recipients is located in the Attorney Workroom at the GeorgeE. Brown, Jr., United States District Courthouse (Room 360) inRiverside. If you would like to nominate someone for the 2006award, please submit the name of the nominee and a brief explanationof why he or she deserves the recognition to: Allena Johnson,United States District Court, 3470 12th Street, Riverside, California,92501.22 Riverside Lawyer, July/August 2005

OSWALD PARADA – RECIPIENT OF THE DEFENDER OFTHE CONSTITUTION AWARDBy John C. Rayburn, Jr.Photographs courtesy of Jacqueline Carey-WilsonI am a federal prosecutor, and I take immensepride in announcing my courtroom appearance by stating,“John C. Rayburn, Jr., for the United States of America.”I also fervently believe that my goal, and that of everyother Assistant United States Attorney, is to do justice.Put another way, I strongly believe that our role in thecriminal justice system is to defend the Constitution ofthe United States.During my 14-year career as a prosecutor, I have hadnumerous battles with defense attorneys in and outsideof the courtroom. And some of the most heated of thosebattles have occurred at the dinner table with my brother,who is a Public Defender and who, like me, believes thatthe best way to resolve legal disputes is to wrestle on thekitchen floor until someone cries “uncle.” From thesenumerous interactions over the years, I have learned thatdefense attorneys share an almost identical belief that itis their role in the criminal justice system to defend theConstitution.So if you are asking why I – the Chief of the RiversideOffice of the U.S. Attorney’s Office and a career prosecutor– was chosen to present the Defender of the ConstitutionAward to Oswald Parada – the Directing Attorney for theMagistrate Judge Stephen Larson, Judge Robert Timlinand Oswald ParadaOswald ParadaFederal Public Defender’s Office and a career defenseattorney – you are not alone. The request seems akin toasking George Steinbrenner to present the 2004 WorldSeries trophy to the Boston Red Sox. The answer to thisquestion may lie in the fact that one’s most meaningfulcompliments are often paid by one’s adversaries.After innumerable courtroom contests with Ozzie overthe past decade, I feel I have gained invaluable insight intowho my opponent across the courtroom truly is. Fromthis vantage point, I have learned first-hand that Ozzie isan extremely talented lawyer. In trial, he has an uncannyand, from a prosecutor’s perspective, devastating abilityto connect with each member of the jury while simplydominating the courtroom setting. Ozzie is blessed withthe rare gift of being able to think incredibly fast on hisfeet; he likewise possesses an even rarer ability – seen inpreciously few lawyers – to know precisely when it is timeto get off his feet because the point has been made. Ozzieis also a tremendously gifted writer who presents his writtenthoughts in a clear, concise, articulate, and respectfulmanner.Riverside Lawyer, July/August 2005 23

Edwin Cherminsky reviews importantConstitutional cases 2004-2005While Ozzie’s advocacy skills are rarelyseen in other lawyers, what sets him apartfrom other outstanding advocates is hisunmatched dedication and commitment tohis craft and his client. When the clientdecides to go to trial, Ozzie doggedlyemploys every ounce of his energy and skillto prepare, then present, the best possibledefense. When the client decides to pleadguilty, Ozzie employs a like level of tenacityin pursuing the most favorable plea dealavailable.However, what makes Ozzie a trulydeserving recipient of this year’s award isthe unparalleled level of dignity and class hebrings to bear in carrying out his role in thecriminal justice system. This is not simplymy humble opinion; rather, Ozzie’s outstandinglegal skills, dedication to his clients, andimpeccable ethical standards are universallyrecognized by the esteemed judges on thefederal bench, his colleagues in the defensebar, and his adversaries in the U.S. Attorney’sOffice. From my vantage point across thecourtroom, I have gained the utmost respectfor my worthy and honorable opponent, andI believe he richly deserves to be the 2005recipient of the Defender of the ConstitutionAward.24 Riverside Lawyer, July/August 2005

What Does One Consider Tragedy? (continued from page 6)held tissues in their hands and werewiping tears from their faces. All ofthem had a coloring that was pale,the kind of pale that comes just asnausea sets in.I felt like a fly on the wall as Iwatched everyone and everything.After reviewing the verdict formshe had just received, the judgeasked the clerk to read the verdicts.Martha read and read and read verdictforms, her voice professionaland unwavering, each time askingthe jury, “Members of the jury, isthis your verdict?” After the verdictwas read, the defense attorney askedthat the jurors each be polled togive their individual verdicts. Thatmeant Martha had to re-read each ofthe forms. She did, and after readingeach verdict form, she asked, “Jurornumber 1, is this your verdict? . . .Juror number 2? . . . Juror number3?” My mind raced. I wondered:They are saying he is guilty. What isthat young man thinking? To someextent it couldn’t be any surprise tohim, could it? Did he hold out hope?He must have.At some point as Martha readthe verdict, the defendant’s motherbolted out of the courtroom, overcomewith emotion. Many of thejurors turned in her direction andwatched her leave. When she collectedherself, she returned to thecourtroom and took her seat. Andwhen she returned, the courtroomdoors became revolving doors, openingrepeatedly to let in members ofthe media, as well as members ofthe public. Suddenly, the audiencewas full. “ . . . Juror number 4, isthis your verdict? Juror number 5?Juror number 6?” She kept reading.The jurors responded, the pronunciationof their responses growingshorter, their voices sounding deepand solemn. They were still dabbingtheir eyes. They were regular people,the jurors. I could infer them to beteachers, grandparents, sisters, dads,friends. What were they feeling?Were they angry? Were they sad? Afew of the jurors looked over at thedefendant. What were they lookingfor? I looked at the defendant. Washe smiling? That couldn’t be a smile.Was he smirking? No way! He wasjust stressed out beyond belief andcoping with terrible news.I looked at the deputies’ faces tosee their reaction. By now a thirddeputy had arrived. They showed noemotion on their faces as they didtheir job, watching over the crowdand the defendant. As my eyes sweptover the courtroom, I glanced backto Martha. I was looking at herhands as she held the papers she wasreading. Her hands were shaking abit; she was probably nervous. Shehad been reading for what seemedlike half an hour by now. She haddeveloped a rhythm, she spoke clearlyand she hadn’t stammered once.Her voice was strong. I looked upto see Terri, the court reporter. Herfingers were bouncing all over hermachine as she easily kept pace withthe words being spoken. I searchedher face for emotion. Her face wasblank. I looked at the judge. Hewas so focused on the defendant andon the jury as they responded toMartha’s questions. It occurred tome as I watched the judge, his clerkand reporter – they are professionalsin every sense of the word.Finally – finally! – the verdicthad been read, the jurors had allbeen polled. The judge spoke to thejurors and thanked them profuselyfor doing a fantastic job on this verydifficult assignment. He explainedthat they were now free to speak toreporters, family and friends aboutthe case, or they could choose not tospeak with anyone – their choice. Asthe judge spoke to them, their eyeswere fully locked on the judge’s face.Their eyes told everything. TheyRiverside Lawyer, July/August 2005 25

26 Riverside Lawyer, July/August 2005

were tired. They wanted to leave. And they did. I lookedat the wall clock; it was 4:45 p.m. The attorneys stood tohonor the jurors and, one by one, they got up and filedout of the courtroom. Some of the jurors looked at thedefendant as they left. The audience emptied. The attorneysaddressed a few legal formalities with the judge andthen the courtroom went quiet. The prosecutor left. Thedefense attorney put his arm around his client and spokesoftly into his ear. His words seemed somehow reassuringand the defendant, his head down, nodded, affirminghe understood what he heard. The attorney squeezed hisclient’s shoulder in a sort of “hang in there” gesture andhe gathered his belongings and prepared to leave.Then, like a firecracker exploding on a quiet night, adeputy called the defendant’s last name and said, “Rise!”His voice pierced the silent air. He directed the defendantto turn and put his hands high against the wall. Thedefendant complied; he was thoroughly frisked and thenshackled at the waist and at the feet. This was a first forme. I had never seen anyone frisked or shackled and therewas enormous shock value in what my eyes were takingin. Somehow I felt uneasy. I couldn’t imagine myself ina situation where I would be shackled and deposited intoa cell. As my mind raced, I watched as the judge, Marthaand Terri busied themselves shuffling paper at their workspaces. The deputies calmly went about their businessand the defendant was led out of the courtroom down asecured hallway. I pushed my back into the door to openit and I peered down the secured hallway. He walked somberly,head down, with a deputy before him, two deputiesbehind him. What a tragedy . . . how sad.I looked back into the courtroom, not at all preparedfor what I saw next. I saw an empty courtroom. It wasquiet, yet strangely filled with the sound of voices. OnceI tuned out the mental noise, I realized that the judge,Martha and Terri were sitting silently, their bodies a bitslumped, their shoulders a bit rounded. They sat lookingat nothing in particular, clearly spent of all emotion andenergy. I stood there and looked at them for a few minutes.I had an urge to run into the hallway to get help,to say, “Hey, someone come in here! Something isn’tright.” I don’t think they even knew I was there. I touchedMartha’s arm. No reaction. This was incredible to me.What was going on? It never occurred to me that I wouldsee this particular scene. Goosebumps crawled all over myarms as I realized the impact – the deep, deep impact – thistrial had on my colleagues. The judge left the bench to goto his chambers. I left the courtroom and met him in thesecured hallway. I asked if he was okay. He said, “Todaywas a hard day . . . a very hard day.”I walked to my desk feeling totally numb. That 45minute “learning exercise” felt more like it was three dayslong. My mind was flooded with thoughts. I needed timeto assimilate what just happened.As I thought about this the next day, I realized I hada unique perspective in the courtroom that day. I saweveryone’s faces. I saw “behind the scenes” and I saw thepublic perspective. That morning I asked Martha if shewas okay. She had prayed and cried, she said. She stillwasn’t feeling entirely peaceful inside. Terri said she feltbetter than she did yesterday, but that she was very sad.The judge was just quiet.I realized I witnessed three tragedies: two expected,and one totally unexpected. The victim and her family’slife will forever be changed, physically and emotionally,and the defendant and his family’s life will forever bechanged – both obvious and painful tragedies. The unexpectedtragedy is that those people in the courtroom whoworked during this highly emotional trial were physicallyand emotionally impacted and they, too, will forever bechanged.Everyone went home after the trial with a heavyheart. The news media broadcast the verdict and, again,without trying, the story came across as sensationalized.The newspaper the next morning recapped how the casebegan, recited the verdict and told a bit about the familiesinvolved. I thought to myself, though it is not unexpected,no one gave a second thought about how this trial affectedthose at the court who worked so hard. They did their jobsquietly, professionally and without flash. While they mayhave had a personal opinion about the events that unfolded,and while they may have felt extreme emotions duringthe trial, they kept all of that to themselves. At the endof the day, they went home and somehow dealt internallywith the dramatic descriptions brought into their courtroom.They did their best to insulate themselves from thepain they heard described. They came back to work thenext day, smiled, said good morning and went about theirbusiness. What more can be said about them? Wow! I amso proud to work with such fine people.It has been several weeks since this trial concludedand I am still not sure how I feel. That particular courtroomhas since conducted two more murder trials. Twoother courtrooms have held trials for child molestation,child torture and murder. Another courtroom conducteda trial concerning a terrible auto accident that left peoplecritically wounded. Life at our court continues and newcases come in all the time. While many are quick to criticize– either in earnest or in jest – those who work for thecourt, I hope this article will alter your view. This is anexperience that has truly changed me.Sylvia Chernick, Governor, Desert Palm Legal ProfessionalsAssociationRiverside Lawyer, July/August 2005 27

CLASSIFIED ADSFree West’s California ReporterI will donate West’s California Reporter, Vols. 70 through 244, to the first privatepractitioner who contacts me and removes them from my space in a RiversidePublic Storage facility within seven days of contacting me. The books are containedin 9 large size Banker’s boxes (12”h x 15.5”w x 24”). If they are not removedwithin seven days, I’ll donate them to the next person on my list of contacts andso on until taken. Thomas V. Flaherty, Attorney at Law, (951) 683-3078.For Sale – Professional BuildingRiverside tri-level professional building with private offices and receptionarea on the main floor. Conference room, eating area, storage space. Good parking.Within walking distance to the Court House. Call for appointment: RealtyExecutives – Agents Michelle Larsen (951) 897-5790 or Jerry Rachman (951) 779-8444.Office Space AvailableApproximately 1460 sq. ft. of office space in a one story law office building nearthe Fairmount Park area in Riverside. Space consists of 4 contiguous offices 16x 14 feet plus adjoining secretarial area. Building has ample parking. Lease priceand terms are negotiable and would be full service. Contact Mr. Matheson or KathyHedges at (951) 684-2520.Attorneys NeededCorona firm needs Civil Litigation, Family Law and Criminal Law Attorneys.Please fax resume and salary history to (951) 734-8832 or email sherri@coronalaw.com.1 Attorney NeededAV-rated Riverside law firm seeks one attorney with 1-3 years experience inbankruptcy, business and commercial litigation. Salary is commensurate withexperience. Send resumes to: Thompson & Colegate LLP, Attn: GTM, P. O. Box1299, Riverside, CA 92502.Law Firm Seeks AttorneyEstablished Riverside, CA law firm seeking an attorney, admitted in California,with 8 to 11 years civil/litigation experience. Salary negotiable. Submit resume toRedwine & Sherrill, 1950 Market Street, Riverside, CA 92501, or call (951) 684-2520 for Mr. Eagans or Mr. Matheson.Legal SecretaryRiverside 3-attorney law firm seeking self-motivated person with 1-2 yearsexperience in civil practice. Send resume and salary history in strict confidence to:Hiring Partner, 6183 Magnolia Avenue, Suite 336, Riverside, CA 92506.Conference Rooms AvailableConference rooms, small offices and the third floor meeting room at the RCBAbuilding are available for rent on a half-day or full-day basis. Please call for pricinginformation, and reserve rooms in advance by contacting Charlotte at the RCBA,(951) 682-1015 or charlotte@riversidecountybar.com.MEMBERSHIPThe following persons haveapplied for membership in theRiverside County Bar Association.If there are no objections, theywill become members effectiveAugust 30, 2005.Kristina M. Beavers –Sole Practitioner, Newport BeachBrian L. Boles –Office of the Public Defender,RiversideCosmos E. Eubany –Graves & King LLP, RiversideJason D. Feld –Ulich & Terry, IrvineJoseph W. Galasso, III –Sole Practitioner, RiversideSandra Goern –Inland Empire Latino LawyersAssociation, RiversideDavid M. Grey –David M. Grey & Associates,Indian WellsAndrew H. Lund –Lund Law Firm, RiversideLinda B. Martin –Rinos & Martin LLP, RiversideCarrie O’Connor –Serembe Bakke & Seaman,San BernardinoDarla J. Sanderson (S) –Law Student, San Diego28 Riverside Lawyer, July/August 2005