Across the Bar

Across the Bar is a publication of the San Joaquin County Bar Association, providing local legal news, educational content, and information about Bar Association events.

California Supreme Court Clarifies "One Day's Rest in Seven"

employee-rights
In Mendoza v. Nordstrom 1 , the California Supreme Court recently provided some guidance on what it means to have a "Seventh Day Violation." 2 Former employees at the retail chain Nordstrom, Inc. alleged that on several occasions during their employment, supervisors asked them to fill in for other employees, which caused them to work more than six consecutive days. During each of these working periods some, but not all, of the employees' shifts lasted six hours or less. The employees sued their ...
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U.S. Supreme Court Upends More than a Century of Restrictions on Disparaging Trademarks

registered-trademark
On June 19, 2017, the United States Supreme Court unanimously affirmed a Federal Circuit ruling that held the "Disparagement Clause" of Section 2(a) of the Lanham Act (15 U.S.C. § 1052(a)) unconstitutional on its face. Under the Supreme Court's decision in Matal v. Tam 1 , the United States Patent and Trademark Office ("PTO") can no longer refuse federal registration to trademarks that "disparage... persons... institutions, beliefs, or national symbols, or bring them into contempt or disrep...
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MCLE Self Study: Legal Tools to Address Diminished Capacity in the Elderly Population

dementia
This activity has been approved for Minimum Continuing Legal Education self-study credit by the State Bar of California in the amount of one (1) hour of General Credit for Attorneys and Paralegal Staff. The San Joaquin County Bar Association certifies that these activities conform to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.  People in the United States are living ...
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Opinion on Copyright Sampling in Madonna's “Vogue” May Change the Music Landscape

music
The U.S. Court of Appeals for the Ninth Circuit ruled in VMG Salsoul, LLC v. Ciccone 1 that a 0.23-second snippet used in Madonna's song "Vogue" was de minimis , or small enough to be trivial. In doing so, that court opened up a split between the Ninth and Sixth Circuits, which may lead the U.S. Supreme Court to weigh in to clear up the subject. Plaintiff VMG Salsoul, LLC owns the rights to the sampled work, 1976's "Ohh, I Love it (Love Break)." The plaintiff alleged that Shep Pettibone, a produ...
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U.S. Supreme Court Adopts a Holistic Approach to Defining "Property" for Regulatory Takings Analysis

supreme-court-property
On June 23, 2017, the U.S. Supreme Court held in Murr v. Wisconsin , 137 S.Ct. 1933 (2017), that an ordinance preventing two contiguous parcels from being sold independently of one another did not result in a compensable regulatory taking of real property. The Court held that the petitioners, the owners of two adjacent lots, were not deprived of all economically beneficial use of their property through the denial of the sale of a single lot. The decision rejected a formalistic approach to t...
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The First Impressions Program Expands

first-impressions-program
The First Impressions program is not only the most unique service opportunity available to legal professionals in San Joaquin County, but perhaps its most rewarding. Spearheaded until this year by Judge Barbara Kronlund, the First Impressions has brought judges, lawyers, and court staff into fifth-grade classrooms at San Joaquin County elementary schools for several years. The professionals identify who's who in the courtroom, explain how the jury system works, distinguish the differences betwee...
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Under Oath: Michael Norton

Norton-Michael
Editor's Note: With Across the Bar's intrepid columnist Grey Galluzi taking a well-deserved break on this issue, San Joaquin County Bar Association Executive Director Rebekah Burr-Siegel stepped in to interview Michael Norton, a certified family law specialist in Stockton, via e-mail. Q. What is your idea of perfect happiness? A. "Creating. Either in the kitchen, cooking up a storm, or at the computer, weaving hilarious stories (written for me)." Q. What is your greatest fear? A. "AI robots run ...
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Law Day Award Recipient Dr. Cynthia Ostberg and the Genesis of the Pacific Legal Scholars Program

cynthia-ostberg
I was sitting at my desk in the District Attorney's Office in 2006 when my phone rang. It was the front desk informing me there was a Dr. Cynthia Ostberg on the phone from the University of the Pacific and she wanted to speak with me. Sometimes in life there are times you wish you did not answer the phone. This was not one of those times. Dr. Ostberg introduced herself and explained she was beginning a program at UOP for undergraduate students to prepare them for law school. She said she wanted ...
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Under Oath: Honorable William Johnson and Cheryl Jacobsen

Johnson-jacobsen
For a new spin on an old article, we decided to interview Judge Johnson alongside his Wife Cheryl Jacobsen. We met in Department 32 Judge's chambers and enjoyed the view of the new court house as we began. Q. What is your idea of perfect happiness? A. As if on cue, they both rolled their eyes simultaneously. "I told you, Cheryl," Judge Johnson teased, "there are going to be a lot of "gotcha" questions!" Through Cheryl's laughing, he dramatically intoned, "How about walking on the beach…. discuss...
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Public Service Opportunities for Criminal Lawyers

pro-bono
There are many ways that an attorney can volunteer to both grow in his or her career and enhance the profession as well. Within the profession, there is no shortage of opportunities for service and self-improvement. Among them are service on local bar boards, task forces, and committees, which help to foster good methods and ethical practices within the profession, deepen relationship with colleagues, and give valuable MCLE training. The local Inns of Court is another opportunity for bonding and...
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MCLE Self Study: Ethical Considerations of Disclosure of File Material to Clients in Criminal Cases

Self Study
This activity has been approved for Minimum Continuing Legal Education self-study credit by the State Bar of California in the amount of one (1) hour of Ethics Credit for Attorneys and Paralegal Staff. The San Joaquin County Bar Association certifies that these activities conform to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.  In California, client papers and property bel...
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Stockton's New Courthouse: It's Really Happening!

stockton-courthouse
Monday, July 31, 2017, will mark the culmination of more than ten years' work conceptualizing, planning, and building the first new courthouse in Stockton since the early 1960s. Most everything will be new, with the exception of Lady Justice, who stands above and to the right of the main entrance. Here are some of the things you can expect to see: First Floor A traffic counter inside the building, positioned so that people paying fines do not have to go through weapons screening in order to pay ...
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A Primer on the "Going and Coming Rule” and Exceptions to Employer Liability for Commuting Employees

commute
Generally, an employer is not liable for an employee's torts when the worker is going to or coming from his or her place of work because the employee is not regarded as acting within the scope of employment. 1 This is the foundation for the "Going and Coming Rule." In essence, the employment relationship is suspended from the time the employee leaves until she returns; in commuting, the employee is not rendering any service to the employer. 2 Respondeat superior liability does not attach simply ...
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Legal Marketing Do's and Don'ts: Legal Advertising Rules, Negligent Referral, and the SJCBA Lawyer Referral Service

Digital-marketing
​ Legal Advertising Rules Referrals are the cornerstone of any attorney's legal marketing strategy. You might believe that if you do good work, people will automatically come to you. While that can be the case for long-established practitioners with wide word-of-mouth networks, there are plenty of attorneys who advertise themselves through practically every medium, from print media to websites to the sides of buses and billboards. Until the 1977 landmark U.S. Supreme Court decision in Bates v. S...
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Flood Control Matters: Court of Appeal Applies Rule of Interpretation to Protect Funding for San Joaquin Levies

AssessmentDistrictBoundary
Much of San Joaquin County lies at or below sea level. The hundreds of miles of levees maintained by reclamation districts throughout the region provide the protection from flooding that is essential to the continuing health of the local economy and the safety of the citizenry. The levee systems are funded largely by assessments against private and public lands. Private landowners have long subsidized school district property traditionally exempt from such assessments. Are school districts that ...
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Under Oath: Sean Geddes

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"I actually wake up thinking, 'How am I going to make a difference today?' It's wonderful that I can do that." Sean Geddes and I met down town and began discussing the challenges of his work in juvenile court. Q. What is your idea of perfect happiness? A. " I guess it would be… a family, a dog that behaves and seeing more people do good deeds and treat people with respect. I don't see that enough." Q. What is your greatest fear? A. Softly he responded, "Being alone. Old and alone." Q. What is th...
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A Judge's Journey to Cuba

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On December 3, 2016, I flew with forty other judges, commissioners and their guests from Miami to Havana, Cuba for a weeklong stay in this beautiful and complicated island nation. Their former prime minister, Fidel Alejandro Castro Ruz, had passed away on November 25, 2016 and the nation was officially in mourning. As we set out to our hotel from the tiny, decaying airport, Ernesto, our tour guide, included a short history of the revolution from the perspective of a Cuban thirty-something. Our f...
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New Laws Affecting Civil Litigation Practice

news
Changes to the laws affecting civil litigation practice or procedure going into effect in 2017 appear in general to be less sweeping and of less significance than in recent years. The most significant changes for most local civil litigators may be the recent changes to local policy concerning the civil clerk's drop box and the hearing of discovery motions. This article summarizes many, but by no means all, of the recent changes likely to affect civil litigation practice in San Joaquin County. Ch...
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A Call to Action: Threats to Judicial Independence Place Judicial Fairness and Impartiality at Risk

scales
The United States Constitution and California Constitution establish three separate-but-equal branches of government, which make up America's democracy. The legislative branch makes laws, the executive branch enforces the law, and the judicial branch interprets the law. The point of creating three separate-but-equal branches is a separation of powers, so one branch does not get too powerful and become oppressive. Judges are under a legal duty to follow the rule of law. A judge must be free from ...
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California Bar Proposes to Ban Sex with Clients

caged-heart
Lawyers in California may face disciplinary measures for having sex with their clients if a new revision to the State Bar's ethics rules passes. California lawyers are split over these proposed revisions. Those supporting the blanket ban said that any sexual contact between an attorney and a client is potentially coercive due to the inherently unequal nature of relations between the two. However, opponents of the initiative say it is uncalled-for and an unconstitutional invasion of their privacy...
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The Honorable Judge Franklin Stephenson Scholarship 2016 Recipient, Penni McConnell

The Honorable Judge Franklin Stephenson Scholarship 2016 Recipient, Penni McConnell
In 2016, the Young Lawyers Section of the San Joaquin County Bar Association created The Honorable Judge Franklin Stephenson Scholarship to honor the late Judge Franklin Stevenson, a longtime San Joaquin Superior Court judge and popular adjunct professor at Humphreys College Laurence Drivon School of Law. In creating this scholarship, the goal was to honor Judge Stephenson's good work by providing a scholarship to an ambitious local college student who strives to study law and use his or her leg...
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Under Oath: Lisa Blanco Jimenez

Under Oath: Lisa Blanco Jimenez
"Though she be but little, she is fierce." Q. What is your idea of perfect happiness? A. She put her drink down and shook her head." I knew I should have prepared!" she laughed. "Well, I would say that 'most happy' is when it's me, [husband] Tony, and the three kids just enjoying each other. Nothing fancy. Whether we are all lying in bed watching videos or letting the kids make their own videos. The funniest part is watching their reaction to their videos, they think they are so funny!" Q. What ...
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Proposition 64: What Every Lawyer Needs to Know About the Adult Use of Marijuana Act

Proposition 64: What Every Lawyer Needs to Know About the Adult Use of Marijuana Act
The passage of California's Proposition 64, also known as the Adult Use of Marijuana Act or "AUMA," legalizing the adult recreational use of marijuana under California law makes this state the most populous state in the nation to do so. It comes six years after California voters narrowly rejected a similar measure, and it expands on Proposition 215, the law that twenty years ago made California the first state to legalize cannabis for medical use. Proposition 64 sets up a broad range of marijuan...
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President-Elect’s Message

President-Elect’s Message
"Time is your most precious gift because you only have a set amount of it. You can make more money, but you can't make more time. When you give someone your time, you are giving them a portion of your life that you'll never get back. Your time is your life. That is why the greatest gift you can give someone is your time. It is not enough to just say relationships are important; we must prove it by investing in them. Words alone are worthless. Relationships take time and effort, and the best way ...
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Stockton’s Measure “P” Medical Marijuana Dispensaries & Cultivation Ordinance

Stockton’s Measure “P” Medical Marijuana Dispensaries & Cultivation Ordinance
Measure P, Stockton's newly enacted cannabis ordinance, was borne out of a privately-funded local ballot initiative supported by a signature gathering campaign which garnered the signatures of 12,000 Stocktonians open to the prospect of two additional cannabis dispensary storefronts and four legally-permitted indoor cultivation facilities in the City of Stockton. Before its passage, two dispensaries were operating and a total of three were allowed within the city, while commercial cannabis culti...
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Legal Education and the Legal Profession in China: An Interview with Professor Su Xinjian

Legal Education and the Legal Profession in China: An Interview with Professor Su Xinjian
Su Xinjian is a professor and an associate dean at Zhejiang Gongshang University School of Law in Hangzhou, China. He began his teaching career in 2006 after earning a Ph.D. in constitutional and administrative law. In 2011 he entered the LL.M. program at the University of the Pacific McGeorge School of Law in Sacramento and in May 2012 he was awarded an LL.M. degree. He is currently a visiting scholar studying social science research methods at the University of the Pacific in Stockton. During ...
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An Interview with 2016 Law Day Award Winner John Harris

An Interview with 2016 Law Day Award Winner John Harris
"I told you, Hemmingway stressed simplicity." That is what John Harris, the 2016 Law Day Award recipient, explained when discussing this article. Ever so humble, he was not quite sure why people would want to hear more about him after having celebrating his Law Day Award. It was evident from the size of the crowd that attended the presentation of his award at Stockton Golf and Country Club in April that he is very admired by his peers. Between the tables for his family and friends who also joine...
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California Criminal Law after the 2016 Election

California Criminal Law after the 2016 Election
Among other items of interest in the dramatic 2016 election, three ballot measures passed that will significantly affect the way we do business in California criminal courts. Proposition 57 made significant changes to parole eligibility and juvenile cases handled in adult court. Proposition 64 significantly changes the way marijuana is treated in the criminal law. Proposition 66 changes many post-trial procedures in death-penalty cases with an aim to speeding up executions. These changes follow ...
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Erin Guy Castillo Awarded the 2016 Athena Young Professional Leadership Award

Erin Guy Castillo Awarded the 2016 Athena Young Professional Leadership Award
On November 17, 2016 the Greater Stockton Chamber of Commerce presented its annual Athena awards at a luncheon held at the Stockton Golf and Country Club. This was the Chamber's thirtieth year handing out the awards, which recognize and honor outstanding business and professional women for their excellence. This year's honorees were Carol J. Ornelas, the CEO of Visionary Home Builders of California, and Erin Guy Castillo, partner at Parish Guy Castillo, PLC. Ms. Guy Castillo received the Athena ...
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Summary of 76th Annual SJCBA Meeting

Summary of 76th Annual SJCBA Meeting
The 2017 Board of Governors Executive Committee: James M. Morris, past president; Michael R. Norton, president-elect; Erin Guy Castillo, president; Heather Rubino,  secretary;  and Nelson Bahler, treasurer. The San Joaquin County Bar Association met on November 2 at the Stockton Hilton for its 76th annual meeting. James M. Morris, the 2016 president of the Association, delivered the State of the Bar Address. Mr. Morris recounted highlights of the Association's activities through this y...
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Five Graduate from Veterans Treatment Court

Five Graduate from Veterans Treatment Court
On a usual Monday, the calendar of the Honorable Barbara A. Kronlund will be smattered with the settlement conferences and status hearings typical of a civil judge. October 3, 2016, however, was different. That morning, a small crowd of gathered in her courtroom to await her rulings in five proceedings falling under section 1170.9 of the Penal Code. This hearing was unusual from the start, beginning as it did with a recitation of the Pledge of Allegiance. Then, a moment of silence for a fallen c...
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Under Oath: Stephen Rosenbaum

Under Oath: Stephen Rosenbaum
​ Stephen Rosenbaum, J.D., M.P.P. is the new Directing Attorney for California Rural Legal Assistance (CRLA) office in Stockton. Before joining CRLA, Stephen taught courses in social justice, civil rights litigation, and mental health law and policy at his alma mater, the University of California, Berkeley's Boalt School of Law. Stephen has had appointments at U.C. Berkeley's Goldman School of Public Policy, Stanford Law School and Golden Gate University.  Stephen and I met at French 25 to ...
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Civil Judges' Panel Brown Bag

Civil Judges' Panel Brown Bag
​Those who missed the Civil Litigation Civil Judges' Panel Brown Bag in Department 13, on June 28, 2016 should mark their calendars to attend the next one. The title of the event might sound boring, but perhaps it should have read, "everything you wanted to know about judges' decisions but were afraid to ask." The Civil Litigation Section and the civil judges of the San Joaquin County Superior Court are working together to host a panel approximately every four months, and attendees stand to be r...
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San Joaquin County's Veterans Treatment Court

San Joaquin County's Veterans Treatment Court
San Joaquin County opened its doors to its newly-minted Veterans Treatment Court on February 2, 2015, becoming one of approximately 200 such courts across the United States. Since that time, the Court has had three veterans graduate, one of whom is now a successful law student, and another who is now a valued, salaried employee of the Veterans Administration in Palo Alto. The program presently has five veterans on track to graduate on October 3, 2016.  Veterans are treated a little differen...
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Business Methods Patents: Still Searching for a Simple Test

Business Methods Patents: Still Searching for a Simple Test
Ever since the 1998 decision of the Federal Circuit in State Street Bank , 1 the question of whether business methods and related software are eligible for patent protection has bedeviled the courts. Although the United States Patent Office has granted thousands of patents in the field since then and the courts have issued numerous decisions on the validity of those patents, clear guidance remains elusive.  Section 101 of the Patent Act provides that a patent may be issued for any "new and ...
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Why I Mentor

"We make a living by what we get, we make a life by what we give." – Winston Churchill Why don't more experienced lawyers volunteer to mentor young attorneys? The San Joaquin County Bar Association has an excellent program, as does the Consuelo M. Callahan American Inn of Court. You don't need a formal organization if the mentor and protégé have found one another. But those organizations can help you find people willing to mentor in your particular field of practice and find new lawyers looking ...
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Be Mentored

Be Mentored
It's hard out there for a new lawyer. It takes approximately one day to realize that, while law school taught you to pass the Bar Exam, you know nothing about how to actually practice law, how to work with a secretary, how to dress for Court, how to interact with clients, how to…. Nope, let's not go down the rabbit hole. We all know what I'm talking about.  Although my experience in the legal field is limited, I feel comfortable making the following observation: this profession is hard. The...
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Apply Now: The Invaluable Benefits of the Bar's Mentorship Program

Apply Now: The Invaluable Benefits of the Bar's Mentorship Program
In 2012, the San Joaquin County Bar Association established a mentorship program. The program's purpose is to elevate the competence, professionalism, and success of the local Bar through engagement with each other. Mentoring is a two-way street: it allows the experienced attorney to provide professional guidance and share practical knowledge, and it provides the newer attorney with someone to ask questions of and learn from during a particularly vulnerable time in his or her career.  The w...
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President's Message

President's Message
"Why can't they be like we were, perfect in every way?" --Bye Bye Birdie (1960) Lawyers should write like Ernest Hemingway.  Pick up one of his books; open to a page at random; choose any paragraph; read it. See for yourself:  "We packed the lunch and two bottles of wine in  the rucksack, and Bill put it on. I carried the rodcase and the landing nets slung over my back. We  started up the road and then went across a meadow and found a path that crossed the fields and went tow...
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How to do Marketing, without Doing Marketing

How to do Marketing, without Doing Marketing
​ T he problem of regulations As a Digital Marketing manager, I deal with clients every day in professions that are heavily regulated. Accountants, investment advisors, medical professionals, and attorneys are a few of the businesses which must be very careful to ensure that their marketing campaigns conform to the rules. Unfortunately, rather than studying and following the regulations, many attorneys give up on the idea and decide not to do any marketing at all. The marketing efforts of attorn...
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We’re All Going to Die (and Other Happy Thoughts of an Estate Planner Turning 50)

We’re All Going to Die (and Other Happy Thoughts of an Estate Planner Turning 50)
​ Used with permission from the April 2016 Tennessee Bar Journal, a publication of the Tennessee Bar Association First you forget names; then you forget faces; then you forget to zip up your fly; and then you forget to unzip your fly. — Attributed to Branch Rickey Death is the destiny of everyone; the living should take this to heart. — Ecclesiastes 7:2 No one here gets out alive. — The Doors An Uncomfortable Truth I think the paradigm shift started the time I realized that my teenage son l...
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Under Oath: Archie Bakerink

Under Oath: Archie Bakerink
Gail Archer Bakerink ("Archie" to friends and colleagues) and I met at Yasoo Yani after his morning court calendar in the collaborative courts program. After catching up and congratulating him on his recent nomination to the Laurence Drivon School of Law Hall of Fame, we began the questions. Q. What is your idea of perfect happiness? A. "Attending my family reunion with my kids, grandkids and great grandkids; that is the closest to perfect happiness I have ever been." Q. What is your greate...
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Title Review Basics for Litigators

Title Review Basics for Litigators
For most real property transactions, at least one party will care about the status of the title to be conveyed or affected and will want a detailed review of the title's current status and advice about what title insurance policy will be appropriate to protect their interests. Attorneys assist with this work by examining recorded liens and easements, resolving issues with insuring title, determining which title risks are acceptable to the client, and advising on what types of affirmative co...
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MCLE Self Study: Servicemembers Civil Relief Act and the Family Court: The Basics

MCLE Self Study: Servicemembers Civil Relief Act and the Family Court: The Basics
​This activity has been approved for Minimum Continuing Legal Education self-study credit by the State Bar of California in the amount of one (1) hour of General Credit for Attorneys and Paralegal Staff. The San Joaquin County Bar Association certifies that these activities conform to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. The Servicemembers Civil Relief Act of 2003 ("SCR...
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President’s Message

President’s Message
Relevance.  A word that Merriam-Webster defines as "relation to the matter at hand; practical and especially social applicability; pertinence; the ability (as of an information retrieval system) to retrieve material that satisfies the needs of the user." What are we to make of the word? How shall we apply it in the context of the San Joaquin County Bar Association? More specifically, does "relevance" apply? Are we relevant? As I began my tenure as president I set as a goal ma...
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SJCBA Membership and Guests Gather on Law Day 2016 to Honor John Harris

SJCBA Membership and Guests Gather on Law Day 2016 to Honor John Harris
The membership of the San Joaquin County Bar Association convened at noon on April 26, 2016 at the annual Law Day Luncheon to bestow the 2016 Law Day Award upon John Harris. A near-capacity crowd, including many of Mr. Harris' friends and family, enjoyed the beautiful spring sunshine that flooded into the large banquet room at the Stockton Golf and Country Club. San Joaquin County Bar Association President James Morris served as Master of Ceremonies for the event and opened with a brief wel...
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San Joaquin County Homeless Veteran Resource Faire: 2016 “Stand Down”

San Joaquin County Homeless Veteran Resource Faire: 2016 “Stand Down”
​ San Joaquin County's Homeless Veteran Stand Down—a biannual "benefit faire" for homeless veterans—was last held on September 26, 2014. The military term "Stand Down" stands for a grass-roots, community-based intervention program designed to help homeless veterans "combat" life on the streets. Like the first four events before it, the last Stand Down was a one-day event held in Stockton. The sixth, however, will be a three-day event beginning September 16, 2016 and ending Septemb...
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Andy Pinasco Joins Neumiller & Beardslee

Andy Pinasco Joins Neumiller & Beardslee
The Stockton law firm of Neumiller & Beardslee is pleased to announce the addition of Andy J. Pinasco as an associate attorney of the firm. Mr. Pinasco's areas of practice will concentrate in public works construction, employment, labor, and public agency law. Mr. Pinasco joined the firm in 2016 upon earning his Juris Doctor with Distinction from University of the Pacific McGeorge School of Law. While at McGeorge, Mr. Pinasco wrote for the McGeorge Law Review and was an editor for ...
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New Laws and Rules for 2016

New Laws and Rules for 2016
N umerous changes in California statutes, statewide rules of court, and local court rules have recently gone into effect or soon will. This article summarizes several (but by no means all) of the changes likely to affect civil practitioners in San Joaquin County. Statewide Laws and Rules 1.  Demurrers .  Prior to filing a demurrer, the demurring party must meet and confer with the plaintiff in person or by telephone. As part of that process, the demurring party must identify ...
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Under Oath: Gene Eacret

Under Oath: Gene Eacret
G ene and I met shortly after his morning calendar. He came prepared; had read the previous interviews and was ready to fire with his answers. Q. What is your idea of perfect happiness? A. "What do you call it when you are out in the sticks? A rural, remote location with a rocking chair, fishing pole and a glass of wine. Now this place MUST be somewhere near the water, a river, stream or lake, but preferably all three." However, "living on a private island with an air strip f...
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