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The San Fernando Valley Bar Association celebrates the opening of the Bar’s new offices at 21250 Califa Street,Woodland Hills, with a ribbon cutting ceremony on October 15.

In This IssuePresident’s Message ..........................3

Attorney Referral Service ..................5

We Mean Business ............................7

Settlement Agreement Samba ..........9

Santa Clarita Valley Bar ..................13Association

New Members ..................................14

Valley Community ..........................15Legal Foundation

Classified Ads ..................................19

U.S. Bankruptcy Court ..................20Transcript Fee Increase

A Publication of the San Fernando Valley Bar Association

VOLUME 14 • ISSUE 9 • DECEMBER 2007

Calendar of EventsPage 23

Smaller firms in the San Fernando Valleyare feeling safe and secure knowing they nowhave access to group rates on top qualitymalpractice insurance. The San FernandoValley Bar Association is launching the programfor its members this month.

The insurance line is carried through WellsFargo Insurance Services. This new LawyersProfessional Liability program is geared to lawfirms with 10 or fewer lawyers, although largerfirms can also participate.

“The insurance program was designedspecifically with the needs of the solo and smallfirm practitioners in mind as they make up themajority of the membership of the SFVBA,”Immediate Past President Patricia McCabe says.“This program offers an important option for firms that sometimes had limited choices in the past.”

Plan coverage includes LawyersProfessional Liability insurance, which protectsindividuals, attorneys, employees and lawfirms. Protection covers damages and claims

expenses that the insured is legally obligated topay because of claims arising out of any act,error or omission of the insured in rendering orfailing to render professional service for clients.

“This member benefit is so appreciated bythe smaller firm practice community,” RichardLewis, a past president of the association, says.“This program is reason enough to join ourassociation. It is that much of a benefit.”

The insurance program is a significantaccomplishment for the association, accordingto bar insiders. A survey of local barassociations reveals that only a handful of themoffer professional liability insurance tomembers.

“For many years, I have worked to bringour own insurance lines to our members, andthis is just our first offering,” Ms. McCabe,principal of the Law Offices of Patricia L.McCabe in Van Nuys, says. “Our membersdeserve to have this type of coverage at thesereasonable rates.”

WE’VE GOT YOU COVERED!BAR LAUNCHES MALPRACTICE INSURANCE PROGRAM FORSMALLER FIRMS

WE’VE GOT YOU COVERED!BAR LAUNCHES MALPRACTICE INSURANCE PROGRAM FORSMALLER FIRMS

continued on page 12

2 • Bar Notes www.sfvba.org December 2007

December 2007 www.sfvba.org Bar Notes • 3

SAN FERNANDO VALLEYBAR ASSOCIATION

21250 Califa Street, Suite 113Woodland Hills, CA 91367

Phone (818) 227-0490Fax (818) 227-0499

www.sfvba.org

BOARD OF TRUSTEES

President ..................Sue Bendavid-ArbivPresident-Elect ..................Tamila JensenSecretary ............................Robert FlaggTreasurer ..................Seymour I. AmsterPast President ..............Patricia McCabeExecutive Director ..........Elizabeth Post

TRUSTEES

Chancela Al-Mansour Leonard J. ComdenMatt Crowley Ronald GoldAdam D.H. Grant David GurnickWendy Hartmann Tamiko HerronSteven G. Mehta Everett MeinersSanford L. Michelman Vahid NaziriCaryn Brottman Sanders Jan Frankel SchauAlan J. Sedley

STAFF

Associate Executive Director..........................Michele MorleyReferral Coordinator ..........Gayle LindeReferral Coordinator ..........Lucia SendaReferral Coordinator ............Rosita SotoEvents Coordinator ..........Linda TemkinAdministrative Asst ........Aileen Jimenez

SECTION CHAIRS

ADR ........................................Alan SalerLyle Greenberg

Business Law......................Steven R. Fox Criminal Law ................Seymour Amster

Louisa PensantiFamily Law ............Rhonda Rauch Miller

Ellen Friedman TineroIntellectual Property, Entertainment & Internet Law ..............Mishawn NolanLitigation ........................David GurnickNew Lawyers........................Vahid NaziriProbate & Estate Planning ......................Wendy Hartmann

David ColemanSmall Firm & Sole Practitioner ..........Lisa Lerner MillerWomen Lawyers ............Roxanna B. KazWorkers’ Comp.............William Kropach

Bar Notes is published 11 times a year.Articles, announcements, and advertisementsare due by the first day of the month prior tothe publication date. The articles in Bar Notesare written for general interest and are notmeant to be relied upon as a substitute forindependent research and independentverification of accuracy.

Layout & DesignPre-press & Printing

Master Graphics Printing(818) 343-0500

© 2007 San Fernando Valley Bar Association

EditorLisa Miller

SUE M. BENDAVID-ARBIV, SFVBA PRESIDENT

As we reflect back on Thanksgivingand look forward to the holiday season,we should all take a moment to reflect onour many good fortunes, whatever theymay be . . . health, family, good friends,thriving practices.

But just a few weeks ago, not everyonewas so lucky. Thousands of people wereevacuated from their homes as a result ofthe Southern Californian wildfires.Though it pales in comparison to thedamage wrought by Hurricane Katrina, itwas still one of California’s biggestdisasters. According to news sources, over500,000 acres were burned and over 2,000homes were destroyed. There were sevendeaths and over 140 injured.

The members of our bar associationgenerally fared better than ourcounterparts in San Diego and other areas.Our bar office was fine but membersworking and living in the Santa ClaritaValley and in the Agoura-Malibu areaswere evacuated and unable to get to theiroffices or bar meetings. Luckily, wereceived no reports of any members losinghomes and the only real damage we heardwas that members had to do substantialclean-up of soot and ash.

When disasters such as this strike, weoften see people pulling together tosupport others - even strangers. Our barassociation answered a call to duty andwent into action to help where needed.

We contacted the Los Angeles County BarAssociation about mobilizing the DisasterRelief Project. Also, our Attorney ReferralService waived consultation fees for firevictims, so they can get immediatereferrals to lawyers who can help in theirtime of need.

Joining forces with other sponsors,including the State Bar of California, LosAngeles County Bar Association and the Orange County Bar Association, our bar association sponsored theelectronic distribution of the HelpingHandbook: For Individuals and SmallBusinesses Affected by the 2007 SouthernCalifornia Wildfires. The handbook can beaccessed by the public online atwww.mofo.com/about/community/helpinghandbooks.html. Originally produced bythe law firm of Morrison & Foerster, theHelping Handbook provides an overview oflegal issues facing individuals and smallbusinesses as a result of the recent fires.

Our focus on community is not new.In prior years, our bar associationprovided assistance to the victims of otherdisasters, including Hurricane Katrina. In2005, we donated $5,000 to theMississippi Bar Foundation, Habitat forHumanity, New Orleans Bar Associationand Louisiana State Bar Association.

You can be proud of the fact that ourbar association has this proactive


We have all heard the old joke thata camel is a horse designed by acommittee. I have personally satthrough some of those committeemeetings. In those meetings, everyoneis in charge, and every idea is acceptedand adopted, regardless of its merits.

And I have been on othercommittees, ones where ideas arecarefully vetted and actions toaccomplish ideas are part of the process.I recently attended my first meeting ofthe American Bar Association StandingCommittee on Lawyer Referral andInformation Services.

This was a productive meeting. Wefinalized arrangements for the first of aseries of national teleconferencetrainings for referral staff. This is anexcellent idea: the issues and thetraining needs are the same across thecountry. Gayle, Rosie, Lucia and I willparticipate in the training.

The national committee worked onthe agreement between the Departmentof Justice and the American BarAssociation on the representation ofvictims of identity theft. The JusticeDepartment is counting on barassociation referral services to assistwith connecting victims to qualifiedattorneys. To help train attorneys tohandle identity theft, the Department ofJustice and the ABA are developing apractical training desk book.

Another agenda item included theAmerican Bar Association’s focus onInternet marketing for referral services.The ABA has increased this marketingand is considering a special focus on barassociation referral services. We alsoexamined the issue of the impact of barassociation on-line directories ofmembers on bar association referralservices; this issue will be monitored on an on-going basis. The feeling is that referral services that scheduleappointments serve a public that is anxious for complete service. That complete service includesspeaking with a referral consultant who

carefully screens the case and directs theperson to the appropriate attorney.Directories simply cannot substitute fora trained and empathetic referralconsultant.

I attended the National LawyerReferral Workshop held at the sametime as the Standing Committeemeeting, where topics included: how toprovide good customer service;maximizing results from Internetadvertising; referral service strategicand long-range planning; the role of the referral service in disaster recovery; elements of a successfulwebsite; realistically assessing yourreferral program; and expecting theunexpected.

I attended all of these workshopsand each of them provided a useful ideato further improve our operations and

service. For example, I learned that aftera disaster, 60 percent of businesses donot reopen. One speaker noted that asthe court system becomes moretechnologically advanced, it willbecome less sympathetic to lawyerswho are not prepared for a disaster, havenot preserved records, and cannotresume their practices within areasonable time period. You can findgood information on developingpolicies and procedures for disastersand business continuation on theInternet at www.abanet.org andwww.pmatips.com.

I will be asking the A.R.S.Committee and staff to complete thereferral services assessment form that Ireceived at the workshop and willreport on their assessment in a futurecolumn.


MICHELE C. MORLEY, ASSOCIATE EXECUTIVE DIRECTOR FOR PUBLIC SERVICE

7


Dealing with risks in interna-tional transactions. Debt. Bankruptcy.Shareholder lawsuits. These seem likethey might be some heavy topics. Butthat’s not the case at the Business LawSection of the San Fernando Valley BarAssociation.

The Business Law, Real Property& Bankruptcy Section is addressingthese important issues, and more, ininteresting and engrossing ways in itsprogramming. And it’s all thanks tobar members and to Section leaderSteve Fox.

“The section puts on programsaddressing matters of interest foranyone interested in the businessworld,” Mr. Fox, principal of Encino’sLaw Office of Steven R. Fox. “Wefocus our seminars on businesstransaction, business litigation, realproperty and bankruptcy law.”

The Section has become one of thebar’s most active Sections in the pastfew years, after a long period ofminimal programming. A big part ofthat expansion is due to theprogramming ideas and presentations.The Section meets monthly at the bar’soffices in Woodland Hills.

“One of this year's programs willfocus on debt collection issues,” Mr.Fox, the Section chair, says. “Ourspeaker will address how to keep yourattorneys fees from becoming acollections problem, among otherthings.”

“We just delved into an analysis ofrecent decisions by the WoodlandHills bankruptcy judges,” Mr. Foxsays. “It provided coherence and anunderstanding of the big picture forpractitioners, a very valuable thing.”

The program was very popular,according to Mr. Fox. The Section willrepeat it each year, he says.

Mr. Fox is known for his colorfulpersonal style as the long-time chair of

the Section. While he conducts a well-respected bankruptcy law practice, Mr.Fox has another side to him, which hegets to showcase at Section meetings.

“We try to offer the hard-to-getspecialty CLE credits,” Mr. Fox says.“So to make it more fun to masterelimination of bias, we are putting ona program on December 12 usingrecent law-centric theatrical movies tostudy gender bias.”

The Night at the Movie will includetraditional movie fare, such aspopcorn and hotdogs. The seminar forMCLE Elimination of Bias credit willbe presented by full-time neutral MyerJ. Sankary.

“The program really pulls theaudience in and makes bias feel veryreal,” Mr. Sankary says. “We will be

viewing movie clips that show somesubtle biases as well as some moreegregious examples.”

According to Mr. Sankary, he hascarefully culled through hours ofmovie shorts looking for relevantexamples of bias that attorneys canlearn from. He is hoping that allattendees will come away with avisceral understanding of the corrosiveeffects of bias, on both the practice oflaw and the court system.

“Bias benefits no one and hurtseveryone,” Mr. Sankary says. “Thetime we devote to detecting it andfighting it is time well spent.”

Fox has even more tricks up hissleeve for teaching Section meetingattendees about complex concepts inunderstandable ways. Sometimes, he

BY LISA MILLER, EDITOR

5


even resorts to getting some help from Saturday morningcartoon characters.

“I will be starring in a perennial programming favorite,”Mr. Fox says. “It’s a judgment debtor examination, where Iplay the wily judgment debtor Wile E. Coyote, hiding hisassets from a panel of inquiring attorneys.”

Programming for other upcoming meetings includes anethics program focusing on ethics and asset protection,heading off shareholder disputes, and a real propertyprogram looking at neighbor disputes.

The Business Law Section’s meetings are not all laughsand CLE credits. Sometimes, it’s just about enjoying acollegial environment with the Valley practice community.

Toward that end, Mr. Fox has begun giving away bottlesof fine wine at section meetings. Law firms Loeb, Kosacz &Sundberg, Stone | Rosenblatt | Cha and Ezra | Brutzkus |Gubner have donated bottles of wine to the Section.Attending attorneys must answer offbeat trivial questions towin the bottles.

The Section is dedicated to providing useful anddesirable programming to bar members, Mr. Fox says. He isavailable to hear suggestions about useful programming,upcoming trends, and new ideas. The Section is alwayslooking for member suggestions so that it can expand itsservice to its constituents.

For more information about Section programming or how tojoin the Section, contact Steven R. Fox at [email protected].

Making agreements enforceable is a critical issue that all attorneys should know. The settlement agreementis often one of the most importantdocuments drafted in the litigationcontext. This document governs therelationship of the parties for the future and closes a chapter in the litigation book. A well-draftedsettlement agreement does not need to be long, complex or typed; it simply needs to make sure that itaddresses the material terms and ensuresthat the parties have agreed to thoseterms.

Counsel should ensure that theirsettlement agreements meet therequirements of Code of Civil Proceduresection 664.6. This procedure is themost efficient means to enforce asettlement agreement. But if theagreement’s terms do not meet therequirements of Code of Civil Proceduresection 664.6, counsel must understandwhat is necessary to ensure that thesettlement will be enforceable throughother means.

The most prudent route for counselto take is to make sure that all partiessign the settlement agreement; that itprovides for the material terms that arereally at issue; and that it states on itsface that it is enforceable and admissibleas evidence of the settlement.

Settlement agreements, similar toany other contract, are subject to the lawof contracts. (Nicholson v. Barab (1991)233 Cal.App.3d 1671, 1681; Gopal v.Yoshikawa (1983) 147 Cal.App.3d 128,132; Barndt v. County of Los Angeles(1989) 211 Cal.App.3d 397, 403-406)In addition, regardless of whether thesettlement agreement is oral or written,a court will not enforce a settlementagreement provision that is illegal,contrary to public policy, or unjust.(California State Auto Ass'n Inter-Ins.Bureau v. Superior Court (1990) 50Cal.3d 658, 664; Timney v. Lin (2003)106 Cal.App.4th 1121, 1127).

Settlement documents must beinterpreted in the same manner as allother contracts, and they need not be in

writing to be enforceable. An oralsettlement agreement can be enforceableso long as it does not violate the statuteof frauds. (See, e.g., Ryan v. Garcia(1994) 27 Cal. App.4th 1006, 1009).This oral agreement would beinterpreted in the same manner as anyother contract. The problem, however, isthat oral agreements are not enforceable

under summary and expeditedprocedures under Code of CivilProcedure section 664.6.

Most parties prefer to enforce theterms of the settlement pursuant tosection 664.6, so counsel must masterwhat formalities are necessary to ensurea settlement agreement is enforceableunder that provision. Code of Civil


BY STEVEN G. MEHTA


Procedure section 664.6 provides that“If parties to pending litigation stipulate,in a writing signed by the parties outsidethe presence of the court or orally beforethe court, for settlement of the case”they can summarily seek to enter ajudgment on the terms of the settlement.

To be enforceable under Code of CivilProcedure section 664.6, the materialterms of the settlement must be explicitlydefined in the agreement. (In re Marriage ofAssemi (1994) 7 Cal.4th 896) A settlementagreement, like any other contract, isunenforceable if the parties fail to agree on a material term, or if a material term is not reasonably certain. (WeddingtonProductions v. Flick (1998) 60 Cal.App.4th793, 811; Civ. Code, § 1580; Civ. Code, §3390, subd. 5) The fact that the partiesleave unresolved terms for futureagreement is not invariably fatal, though,because a settlement may be enforceable ifthe parties agree that the remaining issueswill be decided by arbitration. (Lindsay v.Lewandowski, (2006) 139 Cal.App.4th1618, 1622-1623). But where the partiesleft the terms of the payment in dispute,and agreed to a vague term of “bindingmediation” as it related to the terms of

payment, the courts have held that the stipulation for settlement wasunenforceable because a material term wasunclear. (Lindsay v. Lewandowski (2006)139 Cal.App.4th 1618, 1622-1623).

To qualify under Code of CivilProcedure section 664.6, the oralagreement must be spoken out loud; a nod of the head by a party is insufficient to qualify as an enforceable oral agreement under Code of CivilProcedures section 664.6. (Conservatorshipof McElroy (2002) 104 Cal.App.4th 536).And an “oral agreement” must be placedon the record before the court. It is notsufficient to have the oral agreementplaced before a court reporter atdeposition. (Datatronic Systems v. Speron(1986) 176 Cal.App.3d 1168, 1174) Theoral agreement by the parties must beplaced on the record during a judiciallysupervised hearing. (Datatronic Systems v.Speron (1986) 176 Cal.App.3d 1168, 1174)An agreement entered into before anarbitrator satisfies the requirement of beinga judicially supervised hearing. (In reMarriage of Assemi, (Cal. 1994) 7 Cal.4th896). The same holds true for a temporaryor private judge. (In re Marriage of Assemi(Cal. 1994) 7 Cal.4th 896).

As to judicially appointed referees,the issue of whether the stipulation isenforceable depends on the type of refereeappointment. If the referee is appointedunder Code of Civil Procedure section638(a), an oral stipulation on the record infront of this type of referee is enforceableunder Code of Civil Procedure section664.6. However, if the referee is appointedunder Code of Civil Procedure section638(b), and is not given the ability to makea final determination, then an oralstipulation on the record in front of suchreferee is not enforceable under Code ofCivil Procedure section 664.6. (Murphy v.Padilla, (1996) 42 Cal.App.4th 707; In reMarriage of Assemi (1994) 7 Cal.4th 896).Finally, for oral agreements before thecourt, the supervising judicial officer musthave questioned the parties regarding theirunderstanding of the material terms, andthe parties must expressly acknowledgetheir understanding of and agreement to bebound by those terms. (In re Marriage ofAssemi, (1994) 7 Cal.4th 896).

On some occasions, the parties enterinto an oral agreement before the court andindicate that they will also execute theterms in writing. Once the parties haveorally agreed to the terms, a party may notescape its obligations by refusing to sign awritten agreement that conforms to theoral terms. The oral settlement, like anyagreement, imposes upon each party a dutyof good faith and fair dealing in itsperformance and its enforcement.(Elyaoudayan v. Hoffman (2003) 104Cal.App.4th 1421).

To meet the requirements of summaryenforcement, an out-of-court writtensettlement agreement must be signed bythe parties themselves and not just theirattorneys. (Levy v. Superior Court (1995) 10Cal.4th 578; Robertson v. Chen (1996) 44Cal.App.4th 1290). In addition, all of theparties to the settlement agreement mustsign the agreement and not just the partyagainst whom enforcement is sought.(Sully-Miller Const. v. Gledson/CashmanConst. (2002) 103 Cal.App.4th 30). Butwhen the defendant is insured under apolicy that allows the insurance companyto settle without the defendant's consent,the defendant's signature is not necessary.(Fiege v. Cooke (2004) 125 Cal.App.4th1350).

Nevertheless, counsel should have theinsurance company representative'ssignature, based on the rationale in Levy v.Superior Court: Namely, the party that is


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Policy coverage features competitive pricing forliability limits of $500,000 minimum to $2,000,000maximum coverage. The policies might also includeoptional defense costs and defendants reimbursementcoverage. Title agency coverage is another option forbuyers. And these policies are offered at some exceptionallyreasonable rates forassociation members.

“It is competitive with other programsoffered by much larger bar associations,” Ms.McCabe says. “I am proudthat we can offer such ahigh quality product that has such a good value to ourmembership.”

Additional benefits of the program are personal injurycoverage, full prior acts coverage, and a deductibleminimum of just $5,000. This includes spousal coverage,including domestic partners, and increased supplementalpayments limits for court-imposed arbitration hearings.Sanford Michelman led the charge in establishing theinsurance partnership that underlies the program.

“We worked hard to obtain such sophisticated, custom-made policy coverage for our members,” says SanfordMichelman, name partner with Encino’s Michelman &

Robinson. “This program isn’t just an aggregator. It coversjust about any eventuality that solo and smaller firmpractitioner might be facing as they practice law.”

According to Terri Peckinpaugh of Wells FargoInsurance Services, important aspects of the programinclude 60 days post-policy reporting, no threshold for new

attorneys, and severabilitycoverage options. These areamong the most popularaspects of the contract,according to associationsources.

While many lawyersfeel forced to insure with

smaller carriers based on low rates for business reasons, Ms.Peckinpaugh says, “Our program is written through anA.M. Best "A" rated Admitted California Carrier who weselected because of their enormous experience in legalmalpractice insurance.”

“We all worked hard to put this program together,” Mr.Michelman says. “I know that having this insurance as oneof our member benefits will pay dividends to our membersfor many years in peace of mind as well as professionalcoverage.”

Traditionally, solo and smaller firm attorneys facedslightly higher premiums and limited coverage optionswhen shopping for professional liability coverage. Theyoften have boutique practices with special needs or otherunique situations that acted as roadblocks to coverage insome instances. And they don’t have the group financialdynamic to help lower their rates.

“This program should be the first place attorneys begintheir comparison shopping efforts,” Ms. Peckinpaugh says.“Wells Fargo's program is competitively priced andincorporates numerous coverage enhancements negotiatedspecifically for the SFVBA membership not routinelyavailable through the open marketplace or other competingprograms.”

Many traditional policies, because they are not focusedon the smaller firm law practice experience, are unable tomeet some of the important specific needs of this large but unique market segment. Mr. Michelman and theassociation expended many, many hours researching theoptions and weighing the particulars before committing tothis particular carrier.

“We wanted to be prudent, above all,” Mr. Michelmansays. “I feel confident that we did our due diligence onbehalf of our members and are bringing them a top-qualityprogram. It took us 12 months, but we got there.”


For more information about this member benefit, contact Terri Peckinpaugh at (818) 464-9353 or via e-mail at [email protected].

We’ve Got You Covered!, continued from cover

“This program isn’t just an aggregator. It coversjust about any eventuality that solo and smaller firm practitioner might be facing as theypractice law.”

It is with a grateful heart that we pause and give thanksto so many heroes in our community! Trial and tragedytests the metal of our strength, fortitude and bravery. TheSanta Clarita Valley passed this test with flying colors!Everyone in our Valley was in some way impacted by the

recent fires. To some the loss was great - our heart goes outto those who lost their homes to the fire. We are so thankfulto those brave firefighters, law enforcement, and citizenswho were united in our time of need. We are proud to bea part of a community that embraces and meets the needsof its citizens.

As we celebrate the holidays with our colleagues,friends and family, I hope that we will pause to appreciatethe daily gifts and simple pleasures that we so often take forgranted. Having a place to call home, a delicious meal, andthe company of friends and loved ones are incredibleblessings, for which we are truly grateful!

So it is with this gratitude and responsibility to live upto the challenge, that we, the newly appointed board of theSanta Clarita Valley Bar Association begin our tenure.

As the new president of the Association, I would like tocongratulate and welcome the following new officers andboard members: Robert Mansour, President Elect; JaneMcNamara, Treasurer; William R. Lively, Secretary; JohnGrannis, Rand Pinsky and Gary Weinstein, BoardMembers. Many of our current officers are foundingmembers of the association and have demonstrated acommitment to the association over the past four years. Iam excited to work with such an enthusiastic and dynamic group.

Our Installation Ceremony was held November 15,2007 at the Tournament Players Club. It was a lovelyevening of music and celebration. The Dan Hon MemorialAward was presented to Anthony Zinnanti and RichardPatterson, two local attorneys whose commitment tokeeping children safe resulted in a statewide restrainingorder against self proclaimed pedophile Jack McClellan.Their zealous pro bono efforts to obtain a restraining orderand protect the children of Santa Clarita resulted in JudgeMelvin D. Sandvig granting a statewide restraining order.

Mr. Zinnanti has received vile threats against himselfand his family. His diligence to halt injustice has given a

voice to the children of the State of California, yet has comeat a tremendous personal sacrifice. We applaud Mr.Zinnanti and Mr. Patterson for their willingness to seekjustice, defend the defenseless, and to make ourcommunity a safer place to live for all of its citizens. Maytheir efforts challenge us to seek and seize the opportunityto help those less fortunate and in need.

As a bar association we are a powerful and uniquegroup – with immense talent, opportunity andresponsibility to serve our community. We are bipartisanand bilateral. We are as diverse as any group in ourcommunity. We understand the challenges and heartachesof our clients. We represent them through some of theirmost difficult issues and times in their lives. As attorneyswe have our finger on the pulse of the community as wedeal with problems that surface throughout the community.We are sitting in the front row with a view of the needs ofour community. We know the leaders, the victims and theparticipants in the fight, struggling through hardships-sometimes created by mistakes, negligence and theintentional conduct of our adversaries.

As attorneys we are in the best position to evaluate andserve the needs of our community. We are amongst themost highly educated and hardest working professionals.Many of our members are sole practitioners. However,collectively this bar association has the ability to create thesolutions needed within our community. A wise man oncetold me that knowledge and common sense equal wisdom.

While I look forward to continuing the traditions setby our prior leaders, such as finding people who haveexcelled in their area of practice to provide mandatory legaleducation seminars, continuing to honor local heroes atour Law Day program, fund-raising events and providingnetworking opportunities to our members, I would like tomeet and confer with our new officers and brainstormabout the needs of our community that the bar associationcan address. I would like to consider the possibility ofdonating legal services to a non-profit organization that isproviding a worthwhile service to our community, like alegal aid office or implementing a mentor program forstudents interested in practicing law.


TAMIKO B. HERRON, SANTA CLARITA VALLEY BAR ASSOCIATION PRESIDENT

Each of us has cause to think with deep gratitude of those who have lighted

the flame within us.

-Albert Schweitzer

As we express our gratitude, we must never forget that the highest appreciation is not

to utter words, but to live by them.

-John F. Kennedy


Rafik Ayvazi Esq.15915 Ventura Blvd., Penthouse 2Encino, CA 91436 (818) 783-5225 Fax (818) [email protected]

Carrie Lynn CresanteMyCorporation.com26520 Agoura RoadCalabasas, CA 91302(888) 692-6771 Fax (818) [email protected] Law, Intellectual Property

Garrett LilleyMyCorporation.com26520 Agoura Road Calabasas, CA 91302(888) 692-6771 Fax (818) [email protected] Student

Nancy Ellen Nager15233 Ventura Boulevard, Suite 1100Sherman Oaks, CA 91403 (818) 995-7400 [email protected]

Diane Riave6300 Canoga Ave., Suite 670Woodland Hills, CA 91367 (818) 712-0159 [email protected]’ Compensation

Mark Santa-Anna20750 Ventura Blvd., Suite 201Woodland Hills, CA 91364 (818) 348-2896 [email protected], Immigration

Alfred J. Verdi1523 N. San Fernando Blvd.Burbank, CA 91504 (310) 850-6695 Fax (310) [email protected]

Frank Zgrablich6300 Canoga Ave., Suite 670Woodland Hills, CA 91367 (818) 712-0159 [email protected]’ Compensation

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Richard A. Lewis(fifth from left), a pastpresident of the San Fernando ValleyBar Association, was admitted to the United StatesSupreme Court onOctober 15, 2007in Washington D.C.

My goal this year for the SCVBA isto elevate our profession in the eyes of the community. We do that bybeing honorable, productive andeffective attorneys at law, practicingour profession in our community with integrity and with an eye tocharity. I am honored to be thepresident of this association and seekto earn and maintain your supportand confidence. I look forward to working with each of you to thebetterment of ourselves, our chosenprofession, and our community.

This past month, I attended the SanFernando Valley Bar Association Boardof Trustees retreat. As part of theagenda, each trustee was asked to makea presentation on one aspect of the barassociation and its programs, servicesand auxiliary organizations. The onecaveat was that the trustee choose anaspect of the association with which heor she was least familiar.

I chose to explore the history,accomplishments and mission of theValley Community Legal Foundation.Despite my active involvement innumerous valley boards andorganizations throughout the years, I was uncomfortable with therealization that I knew precious littleabout the Foundation. I discovered that the Foundation is one laudableorganization, serving an important, if not indispensable, role in ourcommunity.

The Foundation was formed someyears back to allow and encouragemembers of the bar to perform certainduties that they were not necessarilyencouraged to perform as member ofthe bar. A growing number of interestedbar members came forward to serve asvolunteers.

Initially, the small group gatheredto raise funds to purchase a buildingthat would house the bar association.The bar association would pay the rentand the community would benefitbecause there would be additionalfacilities to serve community-wideorganizations.

Soon thereafter, a Valley courtcommissioner became seriously ill anddesperately needed a heart transplant.

The group began raising funds to helppay for the commissioner’s highmedical costs. This philanthropicexperience lead to further fund-raisingefforts that would help defray medicalcosts for members of the bar associationwho were victims of catastrophicillness.

The group continued to grow insize and stature, officially forming theValley Community Legal Foundation,and extending its reach to other

noteworthy Valley organizations. Forinstance, in recognition of the criticalrole filled by the valley’s public safetyagencies, the Foundation began issuingawards for outstanding service todeserving members of the police, fireand sheriff’s departments.

Through my research, I wasimpressed to learn that the Foundationhas reached out to offer aid to suchindispensable Valley programs as theAlliance for Children’s Rights, Comfortfor Court Kids, and Haven Hills Inc. By doing so, the Foundationhas insured that the rights of childrenare appropriately protected throughcourt proceedings, that the children ofcourt litigants are carefully watchedover and kept busy while their parentsare in the courtroom, and that victims


MARCIA L. KRAFT, VCLF PRESIDENT

I have invited Alan Sedley, a trustee of the San Fernando Valley BarAssociation, to write a guest column this month. It is refreshing to hear theperspective of someone outside of the Foundation and how he views our work. I hope you enjoy a different voice and appreciate his viewpoint.

Have a healthy and happy holiday season. Remember you can still make acharitable donation before the end of this tax year.

Generosity counts!


of domestic violence receive the critical legal attention theyrequire through the Foundation’s funding to the courtadvocacy program.

The Foundation provides the necessary funding tosupport those with dreams of pursuing careers in law andlaw-related vocations who would otherwise fall through thecracks created by a lack of funding. From high schools to lawschools, the Foundation has and continues to supportstudents throughout the San Fernando Valley studying in thelegal field, including students at Pierce College andCalifornia State University at Northridge.

By virtue of collaborative efforts between the Foundationand various high schools, needed financial support has beendirected to law-focused magnet programs, such as the policeacademy program and the law and government programs.Students gain immeasurable insight and experience throughparticipation in mock trials and debates.

The Foundation has generously supported the endeavorsof high school students by awarding scholarships that enablestudents who may not otherwise be financially able, tocontinue their post-secondary education and pursue lawschool degrees and degrees in law-related fields.

The Foundation supports the Drug Court Program,which has been so very instrumental in getting troubledindividuals off the streets, keeping them out of jail, andhelping them become productive members of society.

The Foundation has planned to do even more for thecommunity which, in order to fulfill those goals, requires thegenerous contributions, both financially and professionally,of those in our legal and business communities. Please joinme in supporting this essential endeavor.

Alan Sedley practices employment law and health law inWoodland Hills. He can be reached at (818) 716-6800 or viae-mail at [email protected].

The Foundation has been hard at work raising fundsto build Children's Waiting Rooms at the Van Nuys andSan Fernando courthouses. These rooms are badlyneeded so litigants and others utilizing court serviceswill be able to leave their children in a safe, secure andhappy environment.

The Foundation has raised $50,000 towards theVan Nuys Children's Waiting Room and is committed toraising $35,000 towards the San Fernando facility. Thefunds must be raised before approval is granted by theLos Angeles County Board of Supervisors.

Please lend your support to this worthy project andmake a tax-deductible, charitable donation before theend of 2007. Mail your donations to the SFVBA offices,designated “Children's Waiting Room,” at 21250Califa Street, Ste. 113, Woodland Hills, CA 91367.

being bound by the settlement agreementmust be the one that signed the document.Therefore, because the insurance companyis the one being bound by the settlementagreement, the adjustor’s signature or theinsurance company’s representative’ssignature is necessary.

Many settlement agreements providethat the action will be dismissed “withprejudice.” Counsel should note that forpurposes of summary enforcementpursuant to Code of Civil Proceduresection 664.6, this type of dismissal maycause problems with the court’s ability toretain subject matter jurisdiction. Once aparty has dismissed its action, thedismissal terminates the action. Asuperior court thereafter has no subjectmatter jurisdiction to grant relief under Code of Civil Procedure section664.6 other than awarding costs and fees as appropriate. (Hagan Engineering v. Mills (2003)115 Cal.App.4th 1004, 1007-1008).

Even if the parties insert language in the settlement agreement that purports to confer jurisdiction on thecourt, such language is a nullity, because subject matter jurisdiction is notsomething that can be conferred bystipulation or agreement of the parties.(Hagan Engineering v. Mills (2003)115Cal.App.4th 1004, 1007-1008). As aresult, a motion to enforce a settlementpursuant to Code of Civil Proceduresection 664.6 is not allowed when the parties have dismissed the lawsuit.(Hagan Engineering v. Mills (2003)115Cal.App.4th 1004, 1007-1008).

One alternative potentially availableto the parties if the action is dismissed isto first seek a motion to set aside thedismissal pursuant to Code of CivilProcedure section 473, and then seek toenforce under Code of Civil Proceduresection 664.6. Another option would be tomake sure that the case has not beendismissed until all of the terms of theagreement are met.

The courts have not decided whetherCode of Civil Procedure section 664.6applies to settlements that becomeeffective during the pendency of anappeal. Under that circumstance, thecourts have indicated that if a case issettled while an appeal is pending, thejudgment that is the basis of the appeal isvacated, and the settlement agreementsupersedes the judgment. (Ebensteiner Co.

v. Chadmar Group (2006) 143 Cal.App.4th1174, 1181). Any dispute regarding thesettlement agreement must be enforced bymeans outside of Code of Civil Proceduresection 664.6. (Ebensteiner Co. v. ChadmarGroup (2006) 143 Cal.App.4th 1174).

While Code of Civil Proceduresection 664.6 is not the exclusive meansof enforcing a settlement agreement, it is the preferred means to enforce a settlement once the foregoingprerequisites are satisfied. Even when thesummary procedures of section 664.6 arenot available, a settlement agreement

might be enforceable by summaryjudgment, a suit for breach of contract, ora suit in equity. ( Robertson v. Chen (1996)44 Cal.App.4th 1290). It may even beraised as an affirmative defense.(Thompson v. Williams (1989) 211Cal.App.3d 566, 571)

The fact that many cases are beingsettled at mediation also complicates the issue of whether a settlementagreement is enforceable. The reason forthis complication is the issue ofconfidentiality, which is integral to themediation process and the documents


Settlement Agreement Samba, continued from page 10


associated with it. Indeed, the confidentiality aspect of themediation process can create a major obstacle to enforcing thesettlement agreement because the settlement agreement may notbe admissible to prove the settlement. Evidence Code section1119 expressly provides that subject to exceptions "allcommunications, negotiations or settlement discussions by andbetween participants in the course of the mediation or mediationconsultation shall remain confidential.” (Evid.Code, §1119, subd.(c)). Often, this Evidence Code prohibition is called the"mediation privilege.” (See, e.g., Foxgate Homeowners’ Ass’n v.Bramalea California (2001) 26 Cal. 4th 1).

However, Evidence Code section 1123 provides exceptionsto the confidentiality of mediation. A written settlementagreement prepared in the course of, during, or pursuant tomediation is admissible if the agreement is signed by the settlingparties and any of the following conditions are satisfied:

1. The agreement provides that it is admissible or subject to disclosure or words to that effect (Evid. Code §1123, subd.(a));

2. The agreement provides that it is enforceable or binding orwords to that effect (Evid. Code §1123, subd. (b));

3. All parties to the agreement expressly agree in writing or orally in accordance with Evidence Code section 1118 to the disclosure of the settlement agreement (Evid. Code §1123, subd. (c)); or

4. That the agreement is used to show fraud, duress, or illegality that is relevant to the issue in dispute (Evid. Code §1123, subd. (d)).

Oral agreements arising from mediation are admissible incourt under certain conditions. The following conditions must bemet to have an enforceable oral agreement in mediation:

1. The oral agreement has to be recorded by a court reporter, tape recorder, or other reliable means of sound recording (Evid. Code §1118, subd. (a));

2. The terms of the oral agreement must be recited on the record in the presence of the parties and the mediator, andthe parties must express on the record that they agree to the terms recited (Evid. Code §1118, subd. (b));

3. The parties to the oral agreement must expressly state on the record that the agreement is enforceable or binding orwords to that effect (Evid. Code §1118, subd. (c)); and

4. The recording must be reduced to writing and the writing must be signed by the parties within 72 hours after it is recorded (Evid. Code §1118, subd. (d)).

If the oral agreement does not meet all the requirements ofEvidence Code section 1118, it can still be admissible and subjectto disclosure if it has been recorded, the parties have stated theiragreement on the record, the agreement is reduced to writingwithin 72 hours and the parties expressly agree in another writingor oral agreement in accordance with Evidence Code section 1118to disclosure of the agreement. (Evid. Code § 1124, subd. (c)).

Counsel should be cognizant of other issues regardingsettlement agreements arising from mediation as well. Forexample, where the parties have signed two different versions ofthe document and counterparts, the courts have held that thecontract was uncertain because the parties could not agree uponwhich term of payment was the appropriate term. (Lindsay v.Lewandowski (2006) 139 Cal.App.4th 1618, 1623-1624.).

Additionally, the issue of who is authorized to waive theconfidentiality of the mediation privilege is a procedural one.Signature by counsel waiving the mediation privilege is enough tocomply with the requirement of Code of Civil Procedure section1123 for the admissibility of a mediation agreement. ( Evid. Code§ 1123, subd. (a)). Stewart v. Preston Pipeline illustrates the subtledifference between settlement enforcement under Code of CivilProcedure section 664.6 vs. other procedures.

The plaintiff in Stewart was an injured motorist whoattended a mediation. The plaintiff ultimately signed a documentthat indicated that the settlement agreement was intended to beenforceable. However, the defendant did not sign the settlementagreement itself, which was signed only by counsel. Thereafter,the defendant sought to enforce the settlement by way of a motionfor summary judgment.

The plaintiff contended that the agreement was notadmissible because neither the defendant nor the insurer, as“settling parties,” had signed the settlement agreement. Theplaintiff’s argument was based on the fact that the parties arerequired to sign the settlement agreement in order to beenforceable under Code of Civil Procedure section 664.6. Thecourt held that the requirement of Evidence Code section 1123that the written settlement agreement be “signed by the settlingparties” does not require that a waiver of mediation confidentiality“be signed by each of the parties litigant, so long as that writtenwaiver is signed by each of the settling parties or their respectivecounsel." (Stewart v. Preston Pipeline (2005) 134 Cal.App.4th1565, 1579-1584). The court further explained that waiving themediation privilege was a procedural issue, not a substantiveright, and that was something an attorney could do. (Stewart v.Preston Pipeline (2005) 134 Cal.App.4th 1565, 1579-1584.).

The plaintiff contended that the settlement was notenforceable because both parties had not signed the agreement.The court held that the requirement of the party specificallysigning the settlement agreement is only necessary for Code ofCivil Procedure section 664.6. The court further held that thesettlement agreement could be enforced in alternative proceduresto the expedited procedure of Code of Civil Procedure section664.6 such as by motion for summary judgment, a separate suit inequity, or an amendment of the pleadings. (Stewart v. PrestonPipeline (2005) 134 Cal.App.4th 1565, 1584). The court alsoexplained that just because the party had not signed thesettlement agreement did not mean that it was not an enforceablesettlement document. The insurance company, which was notopposing the settlement, had authorized its attorney to sign asettlement agreement and therefore the settlement wasenforceable. (Stewart v. Preston Pipeline (2005) 134 Cal.App.4th1565, 1584). Counsel should note that had the insurer specificallysigned the settlement agreement, and not just the attorney, thenthe summary procedures of section 664.6 of the Code of CivilProcedure would have been available as a method of enforcing thesettlement.

The specific terms of settlement agreements are oftenoverlooked by attorneys. Attorneys take it for granted that thesettlement terms will be sufficient. Unfortunately, thoseoverlooked terms could be the ticket to a potential malpracticesuit if the settlement falls apart. Making sure that the settlementsticks is just as important as making sure that the settlementoccurs.

Steven G. Mehta is a full-time neutral who resolves complex legaldisputes. He can be reached at www.stevemehta.com.

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President’s Message, continued from page 3

For more information on how you can participate in one ofour community programs, contact Liz Post at (818) 227-0490, ext. 101.

community focus. We are lucky enough to be in aprofession that provides us the opportunity to constantlylearn and grow, as laws change and develop. For many ofus, we also get the added benefit of earning an income thatallows for a comfortable lifestyle. Giving back to thecommunity not only increases the public’s respect forlawyers in general, it is also the right thing to do.

Soon, you will receive a solicitation to donate to Blanketthe Homeless. Established by our bar association in 1995,Blanket the Homeless distributes blankets every year to adozen homeless and battered women shelters, forthousands of individuals. For only $25, you can help theless fortunate by giving a blanket that allows someone tostay warm at night. The blankets are distributed to variousshelters throughout the Valley, including Haven Hills, LosAngeles Family Housing and the San Fernando ValleyMental Health Center. Having a warm place to sleep at nightcan mean a world of difference to someone living in ashelter or on the streets.

Tonight, as you lay your head down to sleep, thinkabout those who lost their homes in the fires or who arewithout a home at all. Do the right thing: Give back.

• Member of the SFVBA Board of Trustees since 2002

• Experienced in handling Appellate, Federal and State Criminal Cases

• Certified Criminal Law Specialist, Certified by the Board of LegalSpecialization of the State Bar of California

SEYMOUR I. AMSTER

6320 Van Nuys Boulevard, Suite 300

Van Nuys, CA 91401

(818) 947-0104 Fax: (818) [email protected]

Attorney at Law

U.S. Bankruptcy Court Central District ofCalifornia Office of the ClerkPublic Notice Re: Transcript Fee Increase

Effective immediately, the Court has approved theschedule of transcript fees and the addition of a new 14-daytranscript delivery category shown below. The new rates andnew transcript delivery category were approved by the JudicialConference of the United States. Transcripts ordered prior tothe effective date will be billed at the rates in effect on the dateof the request.

All other fees will remain the same until further notice.

PER PAGE MAXIMUM TRANSCRIPT RATES (ALL PARTIES)

Type of Transcript Request

Ordinary Transcript (30 days)

14-Day Transcript

Expedited Transcript (7 day)

Daily Transcript (1 day)

$3.65 $0.90 $0.60

$4.25 $0.90 $0.60

$4.85 $0.90 $0.60

$6.05 $1.20 $0.90

OriginalTranscript

First Copyto EachParty

EachAdditional

Copy to theSame Party


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