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.

2018 Law Day Award Recipient, The Honorable Robin Appel

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Were I limited to a single word to describe Robin, it would be "remarkable." It represents the essence of what defines her and is based on the comments received from her colleagues, attorneys, children, mother, siblings, and friends. The most difficult aspect of writing this article was reducing it to a manageable size, considering the accolades bestowed on Robin upon her receipt of the 2018 Law Day Award. As a single mother for most of her daughters' lives, Robin was a chauffer, nurse, teacher,...
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ABLE Accounts: Five Things You Need to Know

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President Obama signed the ABLE (Achieving a Better Life Experience) Act into law on December 19, 2014, yet ABLE accounts remain unknown and underutilized. An ABLE account is a tax-advantaged savings account for individuals with disabilities under Internal Revenue Code section 529A. Millions of individuals with disabilities and their families depend on a wide variety of public benefits for income, health care, and food and housing assistance. Eligibility for these public benefits (e.g., SSI, Med...
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Flying Solo

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I opened my private practice after graduating law school and passing the California bar exam. I made a conscious decision to go solo at the time, and I was going to make it work no matter what. With support of my husband and family, I plunged into the world of a solo practitioner. I learned and grew a lot since that time and would like to provide some advice about choosing to go and remain solo. T he Practice of Law As a solo practitioner, you do not have a senior partner or a colleague next doo...
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People v. Sanchez and Family Court

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One of the most landmark cases related to evidence to come down in years, People v. Sanchez (2016) 63 Cal.4th 665 established new limits on an expert's ability to testify as to hearsay statements relied on in forming his opinion. How does this affect a family law case? Many family law cases involve the use of experts, such as financial experts, pension experts, etc. This article will focus primarily, however, on how Sanchez could affect the manner in which testimony is received from a Child Cust...
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Civility in Your Law Practice

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Many staff and some attorneys may not be aware of the California Bar Association's Guidelines of Civility and Professionalism, which were adopted in 2009. The Guidelines are intended "to protect the public and promote respect and confidence in the legal profession." While they are directed to attorneys, it is good practice for office staff to be mindful of these standas as well. The Guidelines' goal is to foster a level of civility and professionalism that exceeds the minimum requirements of the...
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Under Oath: John Soldati

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John Soldati is a commissioner of the Superior Court of California, San Joaquin County. As of press time, Commissioner Soldati is awaiting certification of the results of the June 5, 2018 election in which he is the apparent victor of the race to become the newest judge of that court. John and I met for coffee near the courthouse following his morning calendar. He was punctual, cheerful and ready for the questions! Q. What is your idea of perfect happiness? A. "Do I have to answer these really q...
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2017 Outstanding New Lawyer Heather Rubino

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When Heather Rubino was 14 years old, she was featured in an article with accompanying photos in the Stockton Record sports page. She had bowled a perfect 300 game, for which she was honored with a special ring and a patch. Fast forward to 2018 and Heather is again being honored, but this time as the San Joaquin County Bar Association Outstanding New Lawyer. There is a common thread between these two events. Both honors are the result of Heather's skill, strength and focus. And it is those attri...
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Transfer on Death Deeds in California

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The most common means of transferring real property upon death of the owner are three well-known methods: (1) holding property in joint tenancy or as community property with right of survivorship, (2) a living trust, or (3) a will. However, in 2016, a lesser-known alternative to keep a decedent's home out of probate became available to Californians: the revocable transfer on death or "TOD" deed, a simple and inexpensive way to transfer real property to a beneficiary in California. Including Cali...
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New Employment Laws for 2018

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A new year brings new legislation. Below are some of the new employment laws in California that attorneys, employers, and employees may find particularly interesting. All of the laws described below went into effect January 1, 2018. S.B. 63 – California New Parent Leave Act Employers that have at least 20 employees within 75 miles of a worksite must provide eligible employees with up to 12 weeks of job-protected parental leave in order to bond with a new child within one year of the child's birt...
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New Laws Affecting Civil Procedure in San Joaquin County

The Legislature and the courts introduced numerous statutes and rules affecting civil practice that went into effect at the beginning of this year. While the volume of changes is much too large to cover comprehensively in a single article, the following are eight of the most significant ones governing civil procedure in this county. 1. Scheduling ex parte hearings Civil ex parte hearings are again being scheduled through the clerk for the department in which the matter will be heard, rather than...
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Under Oath: Jayne Lee

Superior-Court
Q. What is your idea of perfect happiness?  A. "Spending time with family and appreciating what I have as opposed to longing for that 'thing' in the future. Tomorrow is elusive, appreciate today." Q. What is your greatest fear?  A. "Well, I have two fears," she admitted. "The first is if something terrible happened to my family." "And the second?" I inquired. "I'm also afraid of the zombie apocalypse. So my greatest fear would be something terrible happening to my family during the zom...
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A Much-Appreciated Opportunity

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I have been accused by family and friends of not being serious every time I tell them I am going to retire. Since I have retired several times, perhaps they are right. I've been very fortunate in my lifetime to do a wide variety of positive and exciting things. However, I say sincerely that being asked to head the San Joaquin County Bar Association and Foundation as interim director ranks way up there on top of that list. I'm thankful and humbled for the opportunity. I had been retired the most ...
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Homeless Court in San Joaquin County

homeless-court
Since its inception in January 2006, Judge Barbara Kronlund has had the honor of presiding over San Joaquin County's Homeless Court. Homeless Court is truly a collaborative court, as the offices of San Joaquin County's Public Defender, District Attorney, and SJCBA attorneys together with Stockton's City Attorney's Office, the Stockton Shelter for the Homeless, and St. Mary's Dining Room have worked together cooperatively to set forth criteria for cases to be heard in the specialty court. The rea...
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The Outstanding Jamie Bossuat

Bossuat-Jamie
Among the highlights of 2017 was the opportunity to recognize an outstanding local attorney, Jamie Bossuat, who received the San Joaquin County Bar Association's 2016 Outstanding New Lawyer Award at the New Lawyers' Reception in February. Ms. Bossuat is the fourth recipient of the annual award, which honors an attorney who has actively practiced for seven years or less at the time of nomination and has a distinguished record of service to the legal profession, the SJCBA, and the greater communit...
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Under Oath: Gregg Meath and Fernanda Pereira

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I met with the husband-and-wife team of Gregg Meath (full-time intellectual property lawyer, part-time rock band drummer) and Fernanda Pereira (full-time immigration lawyer, part-time beekeeper) at their office in downtown Stockton's Kress Building—the same building that houses the San Joaquin County Bar Association's office. We all sat down to interview over coffee and croissants. Q. What is your idea of perfect happiness? A. Right out the gate Gregg yelled, "No!" jokingly suggesting it was his...
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2017 Annual Meeting Recap

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On November 1, 2017, members of the legal community gathered at the University Plaza Waterfront Hotel for the San Joaquin County Bar Association's 77th Annual Meeting and Luncheon. Outgoing SJCBA President Erin Guy Castillo welcomed everyone to the event and, as they ate lunch, the audience enjoyed a slideshow memorializing many of the events the Bar Association sponsored during the year. During the lunch, members were able to vote for candidates for four vacant positions on the Board of Governo...
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California Supreme Court Clarifies "One Day's Rest in Seven"

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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

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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

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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

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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

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Daniella Green, Amy Burns, Dr. Cynthia Ostberg, Anastaysa Uskov, and Kelly Volkar 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 U...
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Under Oath: Honorable William Johnson and Cheryl Jacobsen

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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

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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!

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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

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​ 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

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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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New Laws Affecting Civil Litigation Practice

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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

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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

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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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