The Marin Lawyer The Marin Lawyer - Marin County Bar Association

The Marin
The Marin Lawyer
The Marin Lawyer
An Official Publication of the Marin County Bar Association
An Official Publication of the Marin County Bar Association
December 2008 Volume 39, Issue 12
In This Issue
CLE Fair ................................................ 2
Annual Holiday Party ........................... 3
Spotlight on Houman Chitsaz ............... 4
Save The Date ....................................... 5
Automatic Subordination Clauses ......... 6
MCBA Membership .............................. 8
New Judicial Assignments .................... 9
Marin County Jury Verdicts ................ 10
MCBA Standing Committee ............... 11
New Members ..................................... 14
Change of Scene ................................. 14
The Marketplace ................................. 15
Todd Duplanty was Guest Editor of this
issue of The Marin Lawyer. Philip R.
Diamond is Series Editor for 2008.
PRESIDENT’S MESSAGE
THANk YOU fOR A GREAT YEAR!
By Edward S. Berberian
This is my opportunity to look back over the
past year and appreciate the hard work and dedication
I have witnessed from the members of our
Association. I have had the pleasure and honor to
serve as your President for the past year and it has
been a very rewarding experience. On a number of
occasions I have had the need to call upon members
of the Bar for assistance and without exception the
response has been “What can I do for you?” With this type of support it makes
the role of the President both a pleasurable and easy one.
I have served on the Board of Directors for a number of years and I can
say that your current officers and board members have been among the most
engaged that I have worked with. Our Board meetings have been very well
attended and the members have participated, sometimes in a very spirited fashion,
discussing the business of the Bar and working to improve the Association
to make it truly responsive and meaningful to its membership. I believe we
have taken some very positive steps in meeting these objectives.
Here are the members that deserve recognition and thanks for their time
and efforts: Marlene Getchell, President-Elect; Otis Bruce, Jr., Secretary; Beth
Jordan, Treasurer; Jeff Lerman, Past President; David Feingold, 5-year Past
President. The 2008 Board Members: Renee Giacomini Brewer; Phil Diamond;
Louis Franecke; Andrew McCullough; and Eric Sternberger. The 2009
Board Members: Tim Chambers; Elizabeth Brekhus; Houman Chitsaz; Joel
Gumbiner; and Jordan Lavinsky. The 2010 Board Members: David Brown;
Todd Duplanty; Michael Fish; Jessica Karner; and Dennis Kavanagh.
(Continued on page 12.)
Calendar of Events
Look for details each month in
The Marin Lawyer
ARBITRATION CLAUSES IN INTERNATIONAL
TECHNOLOGY LICENSE AGREEMENTS:
MAkE SURE THE CLAUSE COVERS INTELLECTUAL
PROPERTY RIGHTS DISPUTES
By Sean Hogle*
Mandatory arbitration clauses in technology
license agreements as the exclusive means of resolving
licensor-licensee disputes are becoming more
common. Typically such clauses are phrased in terms
of requiring “any controversy or claim arising out of
or relating to this contract, or breach thereof” to be
settled by binding arbitration. A recent US Court
of Appeals decision, NCR Corporation v. Korala
Associates, Ltd. (6th Cir. 2008) (available at http://
December 12th
HOLIDAY PARTY
The Board Room, 1120 Nye Street,
3rd Floor, San Rafael
5-7 pm
NO COST!
Beverages, Spirits and Appetizers
generously provided by: Law Offices
of Rowland & Chambers, Offices
of Lawrence A. Baskin, Attorney &
Mediator at Law, Rachel Castrejon,
Attorney at Law.
Join us for some holiday cheer!
RSVP to jsalas@30nsp.org or call
499-1314
Please call 459-3100 if you need
directions.
(Continued on page 12.)
1

MCBA’S fIRST ANNUAL CLE fAIR
A SUCCESS
By Marlene Getchell, MCBA President-Elect
What were over 100 lawyers doing at the Four Points
Sheraton in San Rafael on a beautiful day on Saturday, November
15? In addition to earning 5 hours of CLE credit,
including all of those “hard to get” credits in Bias, Ethics
and Substance Abuse, they were experiencing camaraderie,
visiting with long-time friends, making new friends,
networking, exchanging ideas, and debating legal issues.
They also were learning strategies to win cases at trial from
the Marin County Bench.
MCBA’s First Annual CLE Fair was a great success.
Co-sponsored by Marin Women Lawyers, 4 one-hour CLE
seminars were presented simultaneously during the morning,
followed by a luncheon with a panel discussion on
practice pointers from the Bench. The CLE speakers, all
recommended by MCBA Section members, volunteered
their time at the event.
During LUNCH WITH THE JUDGES: Everything
You’ve Always Wanted to Know About the Marin Bench, But
Were Afraid to Ask, pet peeves, and the smartest and dumbest
things attorneys do in Court, were topics of discussion
as four distinguished members of the MCBA Bench (Hon.
Verna Adams, Hon. James Ritchie, Hon. Paul Haakenson,
and Commissioner Roy Chernus) addressed these issues
in what appeared to be the Bench’s intimate conversation
with a large audience in attendance. Additionally, the audience
was entertained with practice pointers presented by
the judges with artful, clever and humorous Power Point
presentations from the Bench.
Commissioner Roy Chernus, Judge James Ritchie, Judge Verna
Adams, and Judge Paul Haakenson present panel discussion.
Showing respect for the Court, opposing counsel,
the witness and jury were among the positive pointers
addressed, like showing up on time for your hearing or
trial (after all, judges, clerks and bailiffs are always on
2
The Marin Lawyer
time, waiting for you.) Moderator Matthew White did an
excellent job asking the panelists questions about subjects
that many attorneys are concerned about, as did members
from the audience. Matt’s first question was whether or
not the judges keep “score cards” and take personal offense
from a motion for removal of the judge from the case. The
response was “no”, the judges acknowledged that they
understand that attorneys are working in the best interests
of their clients and if that is what is in the best interests of
the client, that is the action the attorney should be taking.
The panelists also assured the audience that they each
read every file that comes before them. MCBA thanks our
distinguished judicial officers who shared their apparent
passion for serving on the Bench.
I took 2 hours of the “Power Point in the Courtroom”
presentation and a seminar on Ethics. While I didn’t feel I
learned enough to actually prepare a Power Point presentation
for trial, I did learn enough to obtain confidence to start
playing around with Power Point so that I’ll be prepared
for an advanced seminar on the subject. As for the Ethics
seminar, I learned that I had better change my fee agreement
to reflect current changes in the law. A valuable piece of
advice to learn in a
1 hour seminar.
Eight local
vendors were present
and brought
information about
their products and
gifts for attendees.
Rick Riede and Terry Mason peruse vendors’
materials.
MCBA
thanks the speak-
ers who donated their time and shared their knowledge.
The speakers included Susan Kaye, Clay Clement, Edwin
Caldwell, Russell Jackman, Alma Soongi Beck, Alice Tanner,
Peter Weber, Tim Halloran, Commissioner Beverly
Wood, Malcolm Sher, and Michael Roosevelt. MCBA also
thanks the Marin Women Lawyers for their help in running
the event on Saturday.
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The Marin Lawyer
ANNUAL
HOLIDAY PARTY
THE MARIN COUNTY
BAR ASSOCIATION
Cordially invites you to attend our Holiday Party
Friday, December 12th
5:00 – 7:00 pm
The Board Room, 1120 Nye Street, Third Floor, San Rafael
(Please Call (415) 459-3100 if you need directions)
With Beverages, Spirits and Appetizers generously provided by:
Law Offices of Rowland & Chambers
Offices of Lawrence A. Baskin, Attorney & Mediator at Law
Rachel Castrejon, Attorney at Law
Join us for some holiday cheer!
No Cost
Please RSVP via email to:
jsalas@30nsp.org
See You There!
3

4
MEET YOUR DIRECTORS
SPOTLIGHT ON
HOUMAN CHITSAZ
The Marin Lawyer decided
that it would be a good idea to
let the MCBA membership get
to know a little more about the
MCBA Directors whom they
elected, and who give so much to
make the MCBA a great, vibrant, organization. To that end,
The Marin Lawyer will run a series of articles, each focusing
on a different MCBA Director or Officer. This month,
our spotlight is on Board Member Houman Chitsaz.
The Marin Lawyer: What is your practice area?
Houman Chitsaz: Real Estate and Business litigation.
TML: Do you have a particular niche?
HC: Well I’m a litigator and I’ve litigated various issues
including personal injury, employment related disputes
and various commercial disputes including for instance,
intellectual property disputes. However, if I were to pick
the kinds of cases I do most, I would have to say, boundary
disputes, construction defect, partnership dissolution and
residential disclosure cases.
TML: Why did you decide to become a lawyer?
HC: You know, I really don’t know. My dad always
wanted me to be a lawyer or a doctor. I can’t stand the sight
of blood. I was always interested in questioning everything
around me and standing up for people and things that I
believed in. So going to law school was a natural fit.
TML: Why do you live in Marin?
HC: I have lived in Marin since I was in the fourth
grade. Once I graduated from law school, I got married and
quickly moved back to Marin to raise my family here. Marin
is where my parents and my friends live. It’s home.
TML: What do you love to do when you’re not busy
practicing law?
HC: Play tennis. Although you wouldn’t know it if
you saw me play.
TML: Tell us about your family.
HC: I’m married with two infant daughters. My
wife, Jen, is a third grade teacher at Coleman Elementary
School in San Rafael. My daughters Arianna (4 ½) and
Ellie (6 months) are the center of my life and one of the
main reasons I chose to work in Marin and try to live a
balanced lifestyle.
The Marin Lawyer
TML: If you could pursue any other career besides
law, what would it be and why?
HC: I would love to work in politics. I have worked
on campaigns before and I’ve really enjoyed it. I would
never like to be the candidate, but working on campaigns
or supporting a public official in office would be something
I would like to do. I worked in politics briefly before becoming
a lawyer and I really found it satisfying. It’s a fun
and dynamic work environment and the things you do are
relevant to peoples’ everyday lives.
TML: Why did you join MCBA?
HC: Because I work in Marin. The Marin County
Bar Association provides a link between individual lawyers
and the community. Honestly I have never thought
about not being a member. I enjoy going to the events,
meeting other lawyers and learning about what’s happening
locally.
TML: Why did you become a Director?
HC: I joined the Board because I wanted to be more
involved in the MCBA and have more opportunity to work
with other local attorneys to strengthen the association. I
also wanted to have a say in the benefits and programs
offered by the MCBA, especially for the younger attorneys.
TML: If you had to pick a single highlight of your
career, what would it be?
HC: Winning my first jury trial.
TML: What was the best, worst, or strangest experience
in your career?
HC: I was representing a client who was being frivolously
(I believed) sued by a vengeful former friend who
had unlimited financial resources. My client did not have
the money to defend herself and she ultimately had to settle
the case and pay Plaintiff simply because she could not
afford the legal fees to defend herself. I felt completely
helpless and it was a real lesson on how the merits of a case
aren’t the only thing to consider in evaluating cases.
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The Marin Lawyer
2009
The Marin County Bar
A s s o c i a t i o n
Save the date
Saturday, January 24th, 2009
for the
Marin County Bar Association
Installation Dinner and Silent Auction
SAVE THE DATE fOR RUTTER
MCLE DVD PROGRAMS
Civil Procedure 2009 January 14, 2009
5-8:30pm
3 HOURS MCLE CREDIT
(Including 0.5 Hour Legal Ethics)
The Rutter Group certifies that this activity has been approved for MCLE
credit by The State Bar of California in the amount of 3 hours, of which 0.5
hour applies toward Legal Ethics.
Family Law Update 2009 January 22, 2009
5-8:30pm
3 HOURS MCLE CREDIT
(Including 0.5 Hour Legal Ethics)
The Rutter Group certifies that this activity has been approved for MCLE
credit by The State Bar of California in the amount of 3 hours, of which 0.5
hour applies toward Legal Ethics. This program has also been approved for 3
hours Family Law Specialization credit by the Board of Legal Specialization.
Personal Injury 2009 Update January 28, 2009
5-8:30pm
3 HOURS MCLE CREDIT
(Including 0.5 Hour Legal Ethics)
The Rutter Group certifies that this activity has been approved for MCLE
credit by The State Bar of California in the amount of 3 hours, of which 0.5
hour applies toward Legal Ethics.
honoring
President Marlene P. Getchell
January 14th, 2009
and the Officers and Directors for 2009
invitation and more information to follow.
•
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•
PhiliP R. DiamonD
mEDiaToR
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Commercial and Residential
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Business Disputes and Litigation
Employment
Personal Injury
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to shepherding all matters through to
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Wills and Trusts
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5

6
AUTOMATIC
SUBORDINATION
CLAUSES IN
LEASES:
NOT A SURE THING
By Scott D. Rogers*
Although enforced in several
cases over the years, the
validity of “automatic subordination
clauses” in the leasing context has never been squarely
addressed by the courts in California. In today’s troubled
economy, the potential impact of such provisions will become
increasingly important as more and more properties
are foreclosed and either the tenants or the new owners seek
to avoid pre-foreclosure leases in reliance upon the inclusion
in the lease of an automatic subordination provision.
What is an “Automatic Subordination Clause”?
In its classic form, an “automatic subordination
clause” is a sentence or a paragraph in a lease which
specifically recites that the subject lease, and the tenant’s
right of occupancy under the lease, is and shall be subject
and subordinate in all respects to the lien or charge of any
mortgage or deed of trust subsequently recorded against the
premises. The provision is self-operative and is effective
with respect to any subsequent mortgage or deed of trust
without the execution of any further documents or taking
of further action on the part of the tenant. The effect of
the provision is to reverse the otherwise applicable first
in time, first in right priority as between the lease and the
mortgage/deed of trust.
Presumed Validity
In an established line of cases extending back to Dover
Mobile Estates v. Fiber Form Prods., Inc. (1990) 220 Cal.
App.3 rd 1494, California courts have enforced “automatic
subordination clauses” in leases without any real analysis of
the validity of such provisions. In Dover, the court without
analysis (presumably because no challenge was made to
the automatic nature of the subordination provision) held
that the lease was extinguished as a result of the lender’s
foreclosure sale because landlord and tenant had agreed in
the lease that any subsequent mortgage would be superior
in priority over the previously existing lease. Similarly, in
Principal Mutual Life Insurance Company v. Vars, Pave,
McCord & Freedman (1998) 65 Cal.App.4 th 1469, the court
described the operative lease provision as an “automatic
The Marin Lawyer
subordination clause” and, again without analysis of its
automatic nature, held the same to be effective to extinguish
an otherwise senior lease (although it should be noted
that the court did find a way to bind the tenant to the lease
by holding the lender to be a third party beneficiary of a
separate attornment provision). And most recently, in Aviel
v. Ng (2008) 161 Cal.App.4 th 809, the court upheld a classic
“automatic subordination provision” in circumstances
where the only challenge was whether the automatic subordination
provision’s reference to “mortgages” included
“deeds of trust.” Yet again, there was no discussion of the
automatic nature of the subordination provision.
Potential Impact
Automatic subordination can be a powerful tool or
a fearful weapon depending upon your perspective. The
extinguishment of an otherwise senior lease will give a
foreclosing lender substantial leverage against a tenant
which has an under-market lease or a use incompatible
with the foreclosing lender’s or new owner’s plans for the
property. Conversely, extinguishment of the lease may
allow a struggling tenant to vacate the property without
ongoing liability or to empower a desirable tenant to materially
and advantageously renegotiate the terms of its
occupancy. Whichever side one is on, lease extinguishment
can come as an enormous surprise and will often be a total
game changer.
Cautionary Note
Based upon the case law, it appears likely that “automatic
subordination clauses” will be upheld in California.
As we all have heard, however, bad facts make for bad
law, and it would therefore not be completely unexpected
for a contrary decision to be rendered on an extreme fact
pattern. This is particularly true given that the automatic
nature of such provisions has not been squarely addressed
and there has been no California Supreme Court case dealing
with the issue.
*Scott Rogers is a senior partner in the Real Estate,
Development, Land Use and Finance Group of Holme
Roberts & Owen LLP (scott.rogers@hro.com). Resident
in the firm’s San Francisco office, his practice focuses on
the representation of institutional and private real estate
investors in all aspects of real estate equity and finance
transactions. Mr. Rogers obtained his BA in Economics
from U.C. Irvine and his J.D. and M.B.A. from UCLA. He
is the chair of the Executive Committee of the Real Property
Section of the State Bar of California. © 2008

The Marin Lawyer
Along with the ADR Section
Mediation Confidentiality
What you don’t know about it will hurt you.
Presenters:
Hon. William Bettinelli & David W. Berry
In an hour and a half lunch presentation, the Honorable William Bettinelli (Ret.) and David W.
Berry will teach you the good, the bad, and the ugly of mediation confidentiality and Evidence
Code section 1119. Attendees will learn the power and significance of the following thirty-one
words in section 1119:
“No evidence of anything said or any admission made for the
purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation is admissible or subject to discovery….”
The Honorable William Bettinelli (Ret.) followed his fourteen
year judicial career by joining JAMS in 1991. He is a well know
mediator and arbitrator with extensive experience in complex
multi-party construction, insurance, environmental, real estate,
catastrophic personal injury, wrongful death, and employment
cases. He is chairman of the Board of Directors of JAMS. He can
be reached at 415-982-5267.
Please sign me up for Mediation Confidentiality
David W. Berry is a shareholder at Abbey, Weitzenberg,
Warren & Emery, P.C. He is an experienced lawyer with
extensive successful trial experience. Many of his cases are
complex and involve multiple parties. He represents individuals
and companies in business, real property, construction defect,
banking and other disputes. He has mediated numerous cases.
He can be reached at 707-542-5050 or dberry@abbeylaw.com
Date: Thursday, February 26, 2009
Time: 11:30am check in 12:00pm -1:15pm Lunch and Presentation
Place: FountainGrove Inn – 101 Fountaingrove Parkway, Santa Rosa
Cost: $50 ADR Members, $65 SCBA Members, $90 Non-Members
MCLE Credit: 1 Unit General MCLE Credit*
Name: _____________________________ Firm: _______________________Phone: _______________
Food Choice: Tri-Tip ____________ Salmon ____________ Vegetarian Lasagna _____________
CHECK ENCLOSED: _______ CREDIT CARD: Visa _______ MasterCard _______ Amount: $____________
Card Number #: _______________________________ Exp:_______ CVV: _______ ZipCode:__________
Signature: _________________________ ____ I would like to join SCBA, please contact me!
Pay via phone, fax, mail or website. PHONE: call 707-542-1190 x18 • FAX this form to: 707-542-1195
(credit card payments only) • MAIL this form to: Sonoma County Bar Association, 37 Old Courthouse Square, Ste.
100, Santa Rosa, CA 95404 • WEB: go to www.sonomacountybar.org and click “events” tab; follow instructions.
The Sonoma County Bar Association was established in 1921. SCBA’s mission is to maintain the honor and dignity of the legal
profession, provide educational opportunities to enhance the practice of law, serve the Sonoma County Community, and support and
improve the justice system.
*This activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one unit of
General Law. The Sonoma County Bar Association certifies that this activity conforms to the standards for approved education activities
prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.
7

MCBA MEMBERSHIP:
WE ARE MAkING MEMBERSHIP WORk fOR
YOU
By Joel Gumbiner, MCBA Membership Chair
The Marin County Bar Association has always excelled
at creating collegial opportunities for members to
meet and network, such as our section meetings and general
membership lunches which continue to be a huge success.
We have also been pretty good at creating fun events that
allow members of the Marin Bar and members of the
outstanding Marin Bench to interact, such as our annual
Judges’ Lunch, installation dinner, and mixers.
When I became Membership Chair of the MCBA in
2007, there were a couple of concepts I thought would
improve the Association and greatly benefit our members.
I thought that if we could make joining the MCBA or renewing
membership really easy, if we could make MCBA
membership more valuable, and if we could provide our
members with benefits that saved them more money than the
cost of their membership...we could increase membership
and have happier members. We have done these things.
Now it is time for members to take advantage.
Here are three programs MCBA members need to
know about and start using:
1. NEW MEMBER INCENTIVE PROGRAM:
The MCBA Board has just approved an incentive program
that will allow renewing members and new members to
save money now. When an MCBA member brings in a
new member, both the member and new member will
EACH receive $25 off their yearly dues. If you are a
regular member at $175 per year, you would pay $150 and
so would your new member(s). If you are a member who
has been practicing for less than five years and pay $120,
you will pay only $95 this year and your new member
receive $25 off their dues. Please contact the MCBA office
at 415-499-1314 for specific details. Help yourself and the
MCBA and bring a new member in for 2009.
2. ON LINE REGISTRATION: This year, in conjunction
with the new and improved MCBA website, you
can now register or renew your membership ON LINE.
You do not need to wait for your snail mail renewal package.
Go to www.marinbar.org and hit the “JOIN MCBA”
or the “DUES RENEWAL” buttons. Renew your membership
on line with your credit card in just minutes. If you
are sick of getting those calls early in the year reminding
8
The Marin Lawyer
you that you forgot to renew (and we are sick of making
them), then take advantage of this new on line option and
RENEW YOUR MEMBERSHIP TODAY.
3. MEMBER BENEFITS: Last year, we instituted
a host of brand new member benefits tailored specifically
for lawyers. MCBA members are now saving hundreds or
thousands of dollars a year on many support services and
products for which they used to pay much higher prices.
For example, MCBA members who move their stored
documents to Info Stor receive a 20% savings for the
first two years off the actual amount they were already
paying for off-site document storage with free pick up
and archiving of all boxes. We all pay to store clients’
documents. Why not cut that yearly cost by 20% immediately,
saving probably hundreds of dollars a year,
with one phone call. Just go to www.mcba.org and click
on the “MEMBERSHIP BENEFITS” button.
Use West Coast Reporters for your depositions and
reduce your per diem fee by $60, and pay less than $4 per
page—over $100 savings per daily deposition taken
compared with what non MCBA members pay. Just go to
www.mcba.org and click on the “MEMBERSHIP BEN-
EFITS” button.
MCBA members pay just $.03 per black and white
copy, on all outside copy jobs at Office Depot in San
Rafael. Non-members pay $.09 or $.10 per copy at most
commercial copy shops such as Kinkos. MCBA members
who are litigators save over $140 on a 2,000 page document
production. Just go to www.mcba.org and click on
the “MEMBERSHIP BENEFITS” button.
While on the MCBA website, you can find many
other deals on parking, the on line Recorder newspaper
and advance sheets, Lexis and Westlaw, office products,
insurance, delivery services, and more. If you have not
been to the new website, or to the new MEMBERSHIP
BENEFITS page, it is worth a few minutes of your time.
So check it out as there is certainly something there for
you to save you money.

MARIN COUNTY SUPERIOR
COURT ANNOUNCES
NEW JUDICIAL ASSIGNMENTS
fOR 2009
At the annual Marin County Bar Association Judges’
Luncheon on October 22nd, Presiding Judge Verna Adams
announced the judicial department assignments that will
become effective on January 1, 2009. The new assignments
are below. Please note that, not only are most Judges taking
on new assignments, many of them are moving to new
courtrooms.
Judges Adams, Dufficy and Sutro will be assigned to
Civil departments. Judge Sutro will be the Supervising
Civil Judge. Also, please note that Judge Adams will retain
her Probate assignment.
JUDGE NEW ASSIGNMENT DEPT.
Adams Judge Boren’s former cases J
Dufficy Judge Duryee’s former cases B
Sutro Judge Ritchie’s former cases H
Judges Boren, Duryee, Haakenson, Ritchie and Simmons
will be assigned to Criminal departments. Judge
Duryee will be the Supervising Criminal Judge and will
continue to be Presiding Judge of the Juvenile Court. She
will assume the misdemeanor master calendar assignment
vacated by Judge Dufficy.
JUDGE NEW ASSIGNMENT DEPT.
Boren Judge Sutro’s former cases C
Duryee Judge Dufficy’s former assignment K
Haakenson No change F
Ritchie Judge D’Opal’s former cases D
Simmons No change G
Judge D’Opal will be moving to the Family Law assignment,
assuming Judge Adams’ cases. She will be the Supervising
Family Law Judge, assigned in Department L.
With Judge Graham’s retirement, the Court is pleased
to announce that Judge Lynn O’Malley Taylor will be sitting
on assignment for the foreseeable future. She will be
presiding over the trial department and will be in Department
E.
Please note that there are no changes to judicial assignments
for Juvenile Drug Court, STAR Court, Family
Violence Court and the Juror Failure to Appear Calendar.
The Marin Lawyer
The assignments for Commissioners remain unchanged
in 2009 and are as follows:
COMM’R ASSIGNMENT DEPT.
Chernus Juvenile, Probate and Adult Drug
Court A
Goldfine Misdemeanor Jury Trials, Traffic,
Small Claims N and P
Heubach Criminal M
Hochman Traffic, Small Claims and DCSS N and P
Wood Family Law and Proposition 36 O
“Providing Complete ADR Services!”
JUDGE MICHAEL J. BERGER* PATRICK M. BRODERICK
JUDGE RICHARD H. BREINER* CLAYTON E. CLEMENT
HON. JEANNE M. BUCKLEY* W. GREGORY ENGEL
JUDGE VICTOR M. CAMPILONGO* HOWARD M. GARFIELD
JUDGE THOMAS DANDURAND* PERRY D. LITCHFIELD
JUDGE JOHN J. GALLAGHER* GARY T. RAGGHIANTI
JUDGE ISABELLA H. GRANT* PAMELA M. SAYAD
JUDGE RON GREENBERG* MICHAEL D. SENNEFF
JUDGE INA LEVIN GYEMANT* ERIC STERNBERGER
JUDGE HADDEN ROTH* GARY A. WEINER
JUDGE VERNON F. SMITH* MATTHEW N. WHITE
W. BRUCE WOLD
Look for us on the Web-www.resolutionremedies.com
*Retired
Diane Levinson-Fass, President Diane Story, Vice Pres.
For more information call: (800) 778-2823
9

10
MARIN COUNTY JURY
VERDICTS
The Marin Lawyer will periodically report
on jury verdicts from the Marin County Superior Court.
We welcome reports from trial attorneys involved in Marin
County verdicts; please contact Steven Perl (SPerl@
co.marin.ca.us) with your information.
Judge: Hon. Terrence R. Boren
Plaintiff Attorney: Christopher Wood (Dreyer, Babich,
Buccola & Callaham, LLP, Sacramento)
Defense Attorney: Martin Ambacher (McNamara,
Dodge, Walnut Creek)
Facts: Plaintiff, Maria Bodeman, was rear-ended on October
18, 2004, on northbound Highway 101 near Lucas
Valley Road. Defendant Carson was traveling northbound
when she hit a pick-up truck driven by Mr. Martinez and
forced Mr. Martinez into the rear of Ms. Bodeman’s vehicle.
Ms. Bodeman did not report any injuries at the scene and
continued on home to Sacramento. Ms. Bodeman went
to the emergency room the following day and reported
back and arm symptoms. In the weeks that followed, she
reported cervical pain and low back pain.
Two years following the injury, Ms. Bodeman underwent
a two-level cervical fusion at C4-5 and C5-6 at Kaiser
Permanente. Her symptoms continued and she is currently
continuing to treat with her physician for pain.
Damages: Plaintiff claimed $115,000 in past medical
expenses. Plaintiff claimed approximately $60,000 in past
wage loss. Future medical expenses and wage loss were
contested between the parties. Plaintiff claimed a lifetime
of future medical expenses and Defendant argued for expenses
not exceeding $100,000.
Settlement Discussions: Plaintiff offered to resolve the
case via C.C.P. § 998 for $750,000. Defendant offered
$290,000 via C.C.P. § 998.
Length of Trial: 9 days
Verdict: $1,237,485.46. Since Plaintiff beat her C.C.P. §
998 for $750,000, the total judgment will be approximately
$1,370,000.
Verdict Date: October 30, 2008
The Marin Lawyer
LAW LIBRARY SAYS “THANk
YOU ALL!”
The Marin County Law Library extends its deepest
appreciation to the Marin County Bar Association and
Marin County Women Lawyers for their timely donations
to the Library of a total of $2,200 that have made possible
a major purchase of legal research and practice materials
that had become available following closure of the New
College of California School of Law.
Inspired by this strong local support, New College
chose to make an additional gift of treatises, action guides
and other resources that the Law Library would not otherwise
have been able to procure.
The generosity shown all around has helped the Law
Library to significantly stem a growing decline in its holdings
resulting from difficulties in maintaining its collection
in the face of continuing inflationary pressures. The Law
Library’s Board of Trustees and staff members are deeply
grateful for this support. We thank you.
A. MAGGI SAUNDERS & ASSOCIATES
CERTIFIED SHORTHAND REPORTERS
Serving the Entire Bay Area since 1974
415-383-6281 (office) 415-823-3790 (mobile)
maggisaunderscsr@neteze.com
“In a deposition, the Court Reporter
is your biggest asset”
Lowest Per Page Rate - Delivered in One Week
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Multiple References upon request, UCLA Graduate with Honors
And Mom to a talented young actor
Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal
Injury, Construction Defect, Product Liability, Commercial Business
The best court reporter always gets the last word!

The Marin Lawyer
SIGN UP NOW TO SERVE ON AN MCBA STANDING COMMITTEE
To: Members of the Marin County Bar Association
From: President-elect Marlene P. Getchell
Re: The year 2009 Standing Committees
Each year the Marin County Bar Association seeks members to serve on its Standing Committees. In order to
maintain continuity on our committees, the president is allowed to make one appointment for a three-year term to each
Committee, and to name the chairperson of each Committee for a one-year term.
With this in mind, we ask you to volunteer to assist in the operation of the Marin County Bar Association. Listed
below are the Standing Committees of the Association. Please mark three committees in your order of preference. If
you have no preference but are willing to volunteer your services, please state so.
I would particularly like to encourage anyone with an interest in bringing program speakers before the Bar membership
who will engage us all in a discourse on topics that will challenge us in our professional lives. I believe it vital
to have engaging public figures that will bring issues of interest to our region and local membership. The Program
Committee has this opportunity and challenge so I encourage those who want to contribute to this year’s program events
to step forward and meet the challenge.
It is my hope to make appointments to the Committee by the end of the year. Therefore, please return this form to
MCBA, 30 North San Pedro Rd., Ste. 140, San Rafael, CA 94903, or for your convenience you may FAX it to MCBA
at (415) 499-1614 no later than December 26, 2008.
If you have any comments or suggestions regarding Bar activities, please do not hesitate to contact me personally or
use the comment lines below to express your thoughts. I thank all our members for their continued support and service.
___ Membership ___ Administration of Justice
___ Program/Entertainment ___ Insurance
___ Lawyer Referral Service ___ Continuing Legal Education
___ Legislation ___ Public Information
___ Library ___ Client Relations
___ Bylaws ___ Law Day/Public Education
___ Marin Justice Center ___ Judicial Liaison (must be a Past President of MCBA)
___ Ethics/Unauthorized Practice
Name:____________________________________________________________________________________
Comments: _______________________________________________________________________________
_________________________________________________________________________________________
__________________________________________________________________________________________
11

(President’s Message, continued from page 1.)
It goes without saying that none of us can get our work
accomplished without the assistance and support of the Bar
Association staff. I want to thank Robynn Gaspar and Jan
Salas for all their work and service to the Association.
Over the past year we have provided support both from
a program standpoint and by way of financial support to the
residents of Marin through our Lawyer Referral services,
education programs targeted to the youth in the community,
endowments and contributions to the Marin County Law Library,
the Jeannette Prandi Children’s Center, and Guide Dogs
for the Blind. During the past year we have also seen a very
positive connection and dialogue with our local judiciary. We
have given both support and I believe positive, constructive
feedback to the members of our local bench. I know they have
appreciated our outreach and openness. It is very important to
have the ability in a positive way to discuss areas of concern
and interest with the judiciary as the needs arise.
I am particularly proud of the programs we provided our
membership over the past year. Jessica Karner spearheaded
that effort and brought to us a variety of speakers and presenters.
We had thoughtful discussions, political debates, and
journalistic commentary from well recognized figures from
this region.
One of the challenges for any bar association is to provide
meaningful services and relevancy to the legal community
it serves. Joel Gumbiner has single-handedly picked up the
challenge of developing approaches and programs to attract
new members to the association and has worked tirelessly
over the past couple of years to achieve these goals. I want
to thank him for those efforts.
I must also acknowledge Phil Diamond and his work
on the Bar Association Newsletter. He has coordinated and
edited the production of the newsletter. He has gotten some
very interesting, informative and timely articles into print and
distributed to the membership. Handling this assignment is
not without its challenges, particularly in getting the President
to provide his monthly message in a timely fashion. I have
challenged Phil in this regard and he has always been very
gracious.
Jeff Lerman as your past President needs to be given
recognition for taking a long range view on moving this Association
forward. He developed a strategic plan targeted to
move the Bar forward in a very progressive fashion over a
three year period, and without his considerable efforts much
of the accomplishments now being realized would not have
happened.
Last but definitely not least is my appreciation to your
incoming President, Marlene Getchell. Marlene is extremely
bright and a hard worker who has thought about what she
wants to put in place over the next year and has already demonstrated
that she will move our Association forwarded in a very
professional fashion. As her project for this past year, Marlene
put in place the 1
12
st Annual Continuing Legal Education (CLE)
Fair, and this very successful program brought both “quality
and class” to our legal community’s membership.
Thank you for the opportunity to serve; I intend to
continue to support and serve this Association in the coming
years.
The Marin Lawyer
(Arbitration, continued from page 1.)
www.ca6.uscourts.gov/opinions.pdf/08a0029p-06.pdf), has
revealed that this language can in certain situations be insufficient
to bring intellectual property-related disputes that
may arise between the parties into the arbitration obligation’s
scope. The Sixth Circuit held that resolution of plaintiff’s
copyright infringement claim was not dependent on reference
to or interpretation of the license agreement at issue,
and therefore such claim was deemed not arbitrable under an
arbitration clause requiring arbitration of “any controversy
or claim arising out of or related to this contract”.
From the licensor’s perspective, expressly capturing
intellectual property disputes in the operative license
agreement has some inherent advantages. First, because
arbitration as a general matter affects only the immediate
parties to the dispute, an arbitrator’s intellectual property
invalidity ruling would apply only as between the parties,
and would not serve to invalidate the licensor’s intellectual
property generally or render it unenforceable as against all
other parties. This is, at least, the rule in the US, UK and
Germany. (It’s worth noting however, that some jurisdictions,
such as Japan, France, Italy and Spain, permit parties
to arbitrate issues of infringement but not to arbitrate
the validity of registrations; and Switzerland goes in the
complete opposite direction and enforces arbitral rulings
invalidating patents, trademarks and designs, as a general
matter.) Second, arbitration enables the parties to select
a subject-matter expert with relevant experience and
(Continued on page 13.)
MILLSAP, DEGNAN & ASSOCIATES, INC.
Cost Consulting
Line Item Cost Break Downs
Engineered Designs
Expert Witness Testimony
We provide design insights to meet your needs.
4280 Redwood Hwy. San Rafael, CA 94903
415.472.4244 office 415.472.4258 fax
ddegnan@millsapdegnan.com

(Arbitration, continued from page 12.)
knowledge of not only the technology at issue but also the
operative rules of law of the controlling jurisdiction, thus
potentially enhancing the quality of the final decision and
reducing or eliminating the need to retain experts. Third,
arbitration proceedings can usually be conducted under
strict obligations of confidentiality. The licensor may have
a strong interest in avoiding the negative publicity that
could be engendered by a noisy and protracted court case
with one of the licensor’s customers. Trade secrets and
other confidential or sensitive matters can be more readily
protected from disclosure in an arbitration as opposed
to a court case, where all documents and proceedings are
required to be open and publicly available (absent a courtissued
protective order, which requires time and resources
to secure). Finally, the 1959 New York Convention, a treaty
ratified by over 140 countries, provides for the recognition
and enforcement of foreign arbitral awards. No similar
treaty or convention providing for similar recognition of
foreign court judgments exists, and the US, importantly,
is not a party to any such convention or treaty for foreign
judgments.
In order ensure the arbitrability of intellectual property
disputes and avoid the result of the Korala Associates decision,
licensors should consider language along the lines of
the following (with capitalized terms referring to specially
defined terms in the license agreement):
“Any controversy, claim or dispute between the parties
arising out of or relating to this Agreement, the Licensed
Technology, Support Services, or Intellectual Property
Rights, including controversies, claims or disputes involving
the validity or infringement of Intellectual Property
Rights, shall be resolved by binding arbitration conducted
in accordance with the rules of the World Intellectual Property
Organization’s Arbitration Rules ….”
Also, licensors should make sure they preserve the
ability to pursue injunctive relief at any time in any court
of competent jurisdiction, in order to have the right, notwithstanding
the obligation to arbitrate disputes, to seek
an emergency order preventing incipient or ongoing acts
of infringement. For example: “Nothing in this [arbitration
section] shall be construed to preclude the ability of
either party to pursue injunctive or provisional relief at
any time.”
*Sean Hogle is a founding member of Hogle Visani
LLC, a law firm specializing in technology, intellectual
property, and commercial law for high technology clients
worldwide. Sean specializes in open source licensing and is a
frequent lecturer and writer on the topic. Sean’s fifteen years
of experience in technology enables him to act as a “virtual
general counsel” to his venture clients around the globe. Sean
is based in the firm’s San Rafael office. The firm’s website is
at http://www.hovilaw.com. His blog can be found at http://
hoviblog.blogspot.com.
The Marin Lawyer
MCLE COMPLIANCE DEADLINE COMING UP
GROUP 2 (H-M)
Deadline: 2/1/09
MCLE “Regular Requirement”
Total hours required every three years: 25 hours
•
•
•
•
•
•
Maximum “self-study” hours: 12.5 hours
Members must fulfill at least one-half of their MCLE
requirement with activities approved for “participatory”
MCLE credit. (For additional information
contact The State Bar of California at 538-2130, or
visit the website at http://www.calbar.ca.gov.)
Special Requirements within the total hours required
(may be taken as participatory or self-study)
Legal Ethics: 4 hours (required)
Detection/Prevention of Substance Abuse: 1 hour
(required)
Elimination of Bias in the Legal Profession: 1 hour
(required)
Drunk Driving
and
DMV Matters
Paul Burglin
Mitchell, Hedin, Breiner, Ehlenbach & Burglin
Courthouse Square, 1000 Fourth St., Suite 570
San Rafael, CA 94901
(415) 453-0534
DUIandDMV.com
Author: Calif. Drunk Driving Law
A-V Rated - Martindale Hubbell TM
13

14
NEW MEMBERS
Sally J. Bolger
P O Box 2250
Mill Valley, CA 94942
218-9818
sj.bolger@sbcglobal.net
Lawrence J. Brock
Law Office of Lawrence J. Brock
1299 Fourth St, Ste. 505
San Rafael, CA 94901
459-3500 Fax: 453-0292
larry@brocklawfirm.com
Clyde Charlton
Attorney at Law
15 Heartwood Ct
San Rafael, CA 94901
706-2345
c.charlton@comcast.net
Justine Durrell
Ramsey & Durrell, LLP
535 Pacific Ave.
San Francisco, CA 94133
421-9292 Fax: 403-0202
jdurrell@ramseyanddurrell.com
Laura Kristy
Law Offices of Rodney N. Johnson
633 Fifth Ave
San Rafael, CA 94901
457-9870 Fax: 454-8990
lkristy@pacbell.net
Elizabeth C. Krivatsy
Attorney at Law
P O Box 1990
Sausalito, CA 94966
307-4353 Fax: 887-5255
ekrivatsy@krivatsy.com
Kirsten Kwasneski
Kwasneski & Davis PC
950 Northgate Dr, Ste 307
San Rafael, CA 94903
499-1230 Fax: 707-586-4183
kirsten@kwasneski.com
The Marin Lawyer
Sheryl Land
Bradley, Curley, Asiano, Barrabee & Gale PC
1100 Larkspur Landing Cir, Suite 200
Larkspur, CA 94939
464-8888 Fax: 464-8887
sland@professionals-law.com
Glenn W. Rhodes
Howrey LLP
24 De Silva Island Dr
Mill Valley, CA 94941
381-6999 Fax: 381-6996
RhodesG@Howrey.com
Cheryl Konell Ruggiero
Konell Ruggiero & Konell
P O Box 708
Bolinas, CA 94924
971-2862 Fax 868-9468
crkr@krklawyers.com
CHANGE Of SCENE
David W. Greenthal
Law Offices of David W. Greenthal
50 Osgood Place, Suite 110
San Francisco, CA 94133
921-4449 Fax: 929-9555
greenthal@pacbell.net
Jennifer Schwartz
Law Office of Jennifer Schwartz
1299 Fourth Street, Suite 307
San Rafael, CA 94901
460-2888 Fax: 460-2730
jenniferschwartz@sbcglobal.net
Medical
Dental - Vision - Life - Disability
For Quotes call (800) 862-4243
Insurance License# 0F04106
Specialist
Since 1946
San Bruno, CA 94066 www.myersstevens.com

THE MARkETPLACE
Anyone wishing to advertise in the Marketplace should
send their text ad to MCBA, 30 N. San Pedro Rd, Ste. 140,
San Rafael, CA 94903 with payment of $25 per month, or
you may email to: rgaspar@30nsp.org . The ad should be no
longer than 25 words and paid in advance.
LEGAL ASSISTANT - Barbara Plaut - 515-2400,
email: browneyedbarbara@gmail.com. Need help with
filings, complaints, interrogs? Available for temp, vacation
fill-in, sick leave, or long-term assignment.
LEGAL SECRETARY seeks F/T position in Marin.
Experienced typing pleadings and preparing court forms
using WordPerfect and HotDocs. Able to work independently;
can multi-task. Call Christina 898-7184.
PROFESSIONAL OFFICE SPACE AVAILABLE
IN THE CORTE MADERA TOWN CENTER: One
to two offices with family law, civil litigation and estate
planning attorneys. For more information, please contact
Judy at 924-8870 x 21.
SHARED PROFESSIONAL OFFICE SPACE
in north San Rafael/Smith Ranch area. Executive office
available now. Large shared conference room, some reception,
ample parking and janitorial services included. Call
Judith Austin Brown or Jan Mitsch at 507-1400 OR BOB
BRUSATI at American Investors at 491-2275 ext. 13. to
discuss availability and rent.
LEGAL SECRETARY – LEGAL ASSISTANT
Flexible. Justin Soderberg Tel: 892-8920 Email: bfhwater@yahoo.com
EXPERIENCED CONTRACT ATTORNEY – civil
litigation (motions, appearances, depositions, discovery, appeals,
etc.); business and real estate transactions; estate planning.
Local references. 22 years exp. Clyde: 706-2345.
Deadline for submission of articles,
ads, inserts, and announcements
is the 15th of each month.
Thank you.
The Marin Lawyer
David Hellman Marin Bar ad 2008
Use the 1031 Exchange
Intermediary Other Intermediaries
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David Hellman, 1031 Exchange Expert at
MARIN COUNTY EXCHANGE COR PORATION
A Qualified Intermediary Providing
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with over 3,000 Exchanges facilitated since 1984
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David M. Hellman, President TEL: (415) 457-4411
Attorney & CPA FAX: (415) 457-0356
More Merchants, More Restaurants, More Savings!
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MISSION STATEMENT Of THE MARIN
COUNTY BAR ASSOCIATION
To involve, encourage, and support
bar association members,
to serve as a liaison to the Marin County courts,
and to educate the community and
enhance access to legal services.
15

Marin County Bar Association
30 North San Pedro Road, Ste. 140
San Rafael, CA 94903
MCBA Officers
Edward S. Berberian President
Marlene P. Getchell President Elect
Beth S. Jordan Treasurer
Otis Bruce Jr. Secretary
Jeffrey H. Lerman Past President
David Feingold 5 Year Past President
Board of Directors
Elizabeth Brekhus Renee Giacomini Brewer
David I. Brown Timothy J. Chambers
Houman Chitsaz Philip R. Diamond
Todd Duplanty Michael Fish
Louis S. Franecke Joel Gumbiner
Jessica Karner Dennis Kavanagh
Jordan A. Lavinsky Andrew C. McCullough
Eric Sternberger
Executive Director
Robynn Gaspar
Production Express Printing
Advertising Pat Stone
MCBA encourages submission of articles that may interest the legal
community. Letters to the Editor are also welcome and may be
published if space permits. Submissions will not be returned. The
Editor reserves the right to publish, decline to publish, edit or otherwise
modify any submission. Editorial material should be sent to the Marin
County Bar Association at the above address.
16
The Marin Lawyer
Have your client's lawyer
call our lawyer
You want your clients to have
the best advice possible. When it
comes to charitable planning, a
great place to start your research
is with our resident attorney, Aviva
Shiff Boedecker, who is a specialist
in planned giving.
If your clients are considering
a bequest, a donor-advised fund,
published by
The Marin County Bar Association
415-499-1314 Fax 415-499-1614
www.marinbar.org
a charitable remainder trust, or
anything else related to charitable
giving, Aviva is a go-to resource
She’s a nationally known expert
and can help them, and you, meet
their needs.
Think of us as your partner in
philanthropy. To learn more, call
Aviva at 415.464.2516.
We make giving easy, effective, and enduring.
www.marincf.org | 415.464.2500
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