How deeply into the daily lives of couples should family law judges venture?

That was the ultimate question from a reader in a situation that, despite “living” in divorce court for many years, I had never been asked. For anyone considering law as a career and who cares more about helping than seeing their photo on a billboard and a fat bank balance, then today’s story shows you one of the reasons why becoming a lawyer is a path to understanding the human condition.

Our story began with a phone call from “Sandrine”: “Mr. Beaver, I own an insurance brokerage, and ‘Roy’ is my top producer. His wife, ‘Pam,’ is with me right now, and we are worried. You are on speaker, and she will explain why we are calling and need your help.”

Pam said, “Roy recently began participating in triathlon competitions. He is in his late 40s, and for men in his age bracket and older, there is a much higher risk of sudden cardiac death. I want him to be here for our 11-year-old twin boys! We grew apart, are going through an amicable divorce, and I obviously need him to help support our family. Our boys are just crazy about him. Is it reasonable of me to ask a family law judge to order Roy to give up these triathlons for our sons’ sake?”

The risks of triathlons

Many studies establish that running a triathlon is a severe test of physical fitness. Even if a person is in good shape, there is a small risk of sudden cardiac death, most likely to occur in the swimming portion of the race — usually the first part of the triathlon.

The rate of death is generally agreed to be 1.74 per 100,000 competitors. While that seems like a small number, the overall figure in healthy athletes, for comparison, is 0.5 per 100,000 per year. Stated otherwise, participating in a triathlon raises the risk of death by a factor of more than 1,000.

I wondered how folks from various walks of life would view this situation and framed the question this way: “Given the small but real potential of death in participating in a triathlon, should a family law judge get involved in a parent’s participation in dangerous sporting activities?”

Only one person — a family law attorney’s paralegal — felt that the best interests of the children should encourage a judge to address a parent’s choice of sports if that activity statistically could lead to his death. She also recommended obtaining a large life insurance policy on him.

Comments from family law attorneys/judges

When I ran the question by family law attorneys and judges, their responses were almost identical. Below, I paraphrase three of them — Southern California Certified Family Law Specialists Ed Thomas and Glen Rabenn and the Honorable Scott Gordon, who retired from the Los Angeles Superior Court, spending over 17 years in family court and is now a mediator.

They said that it would be extremely unlikely for a judge to tell the father that he could not participate in a triathlon. This is particularly true if his doctor thinks it is OK, and the request is being made by his soon-to-be ex-wife. Judges will view the request as an attempt to control her former husband’s behavior.

A better case could be made for a court order that prohibits the father from smoking, drinking alcohol or doing drugs. In the right circumstances, courts will give orders prohibiting a parent from doing those things when they are around their children.

Most judges believe that, if you want to kill yourself by living an unhealthy lifestyle, it is your business and not something with which a court should be involved. Does anyone seriously think a judge has the power to order a parent to stop overeating?

Think of hockey, equestrian competitions, scuba diving, even driving a car. Courts cannot get involved in telling a parent what they can or should do unless it poses some risk of harm to the children.

My Zoom session with the family

Sandrine, Pam, Roy and, to my surprise, the boys were all in our Zoom session, which initially was filled with laughter and hugs, making me wonder why this couple wanted to divorce.

I began our discussion: “Roy, you know that everyone here is concerned about your well-being and wants you to quit these triathlons due to the small but real risk of death. A family law judge isn’t likely to tell you to stop. Frankly, I did not expect your sons to be here, but since they are 11 years old, let’s hear from them.”

“Daddy, we love you and are scared when you go to these events.” Their faces instantly transformed from smiles to fear and tears, and then they were enveloped by Roy and Pam in an embrace that left me with a lump in my throat.

“Roy,” I said, “all I ask is that you think it over.” He agreed.

The following day

Roy phoned and said, “Mr. Beaver, not only am I quitting triathlons, but Pam and I made an appointment to see a marriage counselor. Thanks so much.”

I replied, “Thank your boss, Sandrine. Our meeting was her idea.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Can a Judge Tell a Father to Avoid Risky Triathlons for His Sons? appeared first on Dennis Beaver.

If you are headed to court as a witness or a party in a lawsuit, there are a lot of ways you can do real damage to your chances of success, several of which are common sense, but others you don’t want to learn the hard way.

Who better then to speak with for practical advice than Anthony J. Mohr, a Superior Court judge who is a friend of this column and spent over 20 years on the bench in Los Angeles and recently retired.

I also ran one important issue by California State University, Bakersfield, professor of psychology Luis Vega, whose academic focus is persuasion.

I asked, “What are some of the things that will reduce or harm your chances of success, the things not to do?

(1) Fail to dress appropriately and think “Well, it’s a free country and I should be able to wear anything I want.”

Consequences: “Judges are usually conservative and they will relate better to people who are conservatively dressed than a person full of tattoos, piercings and wild clothing. This is reality. Your appearance matters,” Judge Mohr stressed.

“Regardless of your appearance, we will listen to you, and try to be fair, but you will relate better if you dress in a conservative, modest way. There are studies that prove a witness who fails to dress in an appropriate manner for court harms their credibility.”

Remember Head & Shoulders shampoo ads?

Vega had a take on appearance that was a walk back in time to old television commercials.

“The Head & Shoulders commercial, that ‘the first impression is the last impression,’ needs to be heeded in the settings where we seek a positive outcome for ourselves. And don’t rely on luck. You may only get one chance,” he said.

“So, when going to court, dress like you are applying for an office job. For men, tuck in your shirt and for women, forget the high heels or short skirts. Leave your jewelry at home,” he recommends.

(2) Fail to answer the question. Instead, give a rambling history of all the events leading up to your being in court today.

Consequences: “You will upset the entire courtroom. The jury won’t appreciate this one iota as you are wasting their time.

“So, answer the question. If you need to clarify the context, do so after you respond, and ask the judge or the attorney, “May I please explain?” Generally, you will be allowed if you have answered the question.”

“A good example of rambling and not answering the question can be seen on the Judge Judy television show,” Mohr observes. “This frustrates her to no end and while she may be more transparent in her voicing displeasure, judges and attorneys do not appreciate a witness who gives them a history lesson of their case.”

(3) Lie. Believe that you are the smartest person in the courtroom and twist the facts, certain that no one will ever know.

Consequences: “Knowingly lying in court about a material fact is perjury and carries a possible 5-year prison sentence in most jurisdictions. Never think that you can pull one over on the lawyers or the court, as they have all read the pleadings, declarations, and have a good idea of the facts.

“Juries are told that if they find a witness has testified falsely about one thing, they can, if they choose, disregard all of that witness’ testimony as being unreliable and not credible.

“So, it isn’t worth it.”

(4) Show up late. After all, the judge has lots of other cases that can be heard if you aren’t on time, so no one is harmed.

Consequences: “Court etiquette requires that you show up on time. Nothing shows disrespect more easily than coming into the courtroom late.

Courts – especially family courts – have massive calendars. To function smoothly, parties and their witnesses must be present on time or before. A guaranteed way to lose respect of the judge and courtroom personnel, and even your own lawyer, is to be late to your court date.

“If you will be out of town, let your lawyer or the court clerk know well in advance of the court date. If you were representing yourself and can’t make it on the scheduled date or time, consider hiring a lawyer for the purpose of making the appearance on your behalf.

“Finally, if you do none of those things and just don’t show up, you will probably bed charged criminally with a failure to appear.

(5) Interrupt anyone who is saying things that you disagree with, including the Judge. Don’t let them get away with damaging your case or reputation!

Consequences: “By interrupting the judge, magistrate or anyone that’s talking, you could be held in contempt, fined and even do time in jail! You’ve got to be polite to everyone in the courthouse.

You must wait until it’s your turn.”

Concluding our chat, Judge Mohr said with a broad smile, “And remember, you catch a lot more flies with honey than vinegar”

And for real-life examples of how a judge can react when these rules are not respected, I recommend watching reruns of the court TV show Judge Judy, starring Judge Judy Sheindlin, or watch her new series, Judy Justice.

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We often hear, “Justice is Blind.” The saying refers to the way judges and juries are required to make decisions based only on the information presented to them, rather than on personal experiences, or who they like most.

This expression also means that justice is impartial and objective, and often accompanying this statement is an image of the Greek statue for justice, wearing a blindfold so as not to treat friends differently from strangers, or wealthy people better than the poor.

“Judges aren’t computers into which you pour data and out pops a decision,” observes retired California Superior Court Judge Anthony J. Mohr, author of “Every Other Weekend – Coming of Age with Two Different Dads,” coming Feb. 14.

“Justice is delivered by people whose entire lives impact the way they see the world,” he underscores, adding, “Justice isn’t completely blind, it is human. And, wouldn’t it be helpful to have insight into those aspects of the judge who will be trying your case?

That question leads us to another: What are the factors that go into making a good jurist? What hints should lead a lawyer to disqualify a judge?”

Judge Mohr then set out a by-the-numbers list of what lawyers and clients should do before they step into the courtroom – how to learn as much as possible about that person who could have a major impact on your business, and on your life:

(1) Research the judge to discover their negative aspects.

Google is your best friend. Plug in their name and this should bring up articles written about or by them. Be wary of angry of lawyers who lost. They will say nasty things about the judge because they lost even though they should have lost!

(2) Ask around – your friends who might have appeared before the judge or other lawyers for their opinion.

Call the Bar Association and asks if the judge has a reputation for a good judicial temperament. Is the judge considered to be intelligent? Is the judge lazy and doesn’t keep up with news events?

(3) Does the judge have a bias and a reputation for ruling in favor of one side over the other on a consistent basis?

Does the judge dislike women? Latinos, people of color?

(3) Go on Lexus-Nexus or Westlaw to research written opinions and rulings by the judge. Read them. Do they make sense? Is the writing snarky? Does the judge belittle the parties without apparent justification? Do the cases stand for what the judge claims they do?

The Central Pillars of Being a Judge

Mohr was quick to point out that in California and many other states, the Judicial Council articulates those qualities that a good judge must possess. In California, they are known as the Eight Pillars of Being a Judge.

(1) Being mindful of who you are – that you are a judge.

You are a judge wherever you are 24/7. This means that your behavior must be respectful at all times. Mohr puts it this way, “You can’t walk into a restaurant and say, ‘Give me my table now I’m a judge!’”

(2) Exercise mindfulness in the courtroom and pay attention!

You need to be aware at all times what is happening in the courtroom. Is a lawyer signaling a witness with hand gestures? Are spectators acting up?

“You must address these issues immediately. For example, when I’ve suspected that a juror has fallen asleep, I will drop a book to make noise which usually wakes them up without embarrassment.”

(3) Follow the law. Don’t make up the rules as you go along.

If you are in doubt about what the statute says, open up the appropriate book which should be within arm’s reach and look it up! Don’t assume when you have reason to be unsure.

(4) Be aware of your biases or prejudices which we all have to some extent.

Keep an open mind and never hesitate to disqualify yourself if you know deep down that you just can’t be fair in the case before you.

For example, in criminal case, do not allow the defendant’s appearance to influence your rulings.

(5) Do not get involved in the case.

Do not take things personally. Your only job is to administer justice fairly. So, if you don’t like a particular lawyer or party, stop yourself from acting in an unfair manner. Do not aim for a particular result!

(6) Realize that part of your job is to maintain the public’s belief and trust in the legal system. You’ve got to be polite to all parties and as patient as possible.

(7) Courage!

If the correct decision in the case you are handling will make you unpopular, still, you have a legal and moral duty to make that decision.

As an example, several years ago in a desegregation case, a Los Angeles judge ordered busing to desegregate the city’s schools. This was an important step in furthering civil rights, resulting in the judge being challenged in an election and losing.

But he did the right thing. Our system of justice depends on judges having the courage to do the right things and not succumb to political pressure.

(8) Accept the fact that you will make mistakes and be overruled, your decisions reversed.

But you have to go along with the higher court’s decision.

Exquisitely Aware of Suffering

I could not put judge Mohr’s book down. (I received an advanced copy). It conveys the feelings of someone who has been witness to highly unique emotional experiences that made him exquisitely aware of suffering, unfairness and a desire as a jurist to handle them head-on.

Judge’s Mohr memoir should be required reading of every law student taking a course in Family Law. It provides a unique insight into those factors that have shaped a jurist’s view of the world and why healthy and stable family life is so critical to that adult who, years down the road will put on a black robe and be addressed as “Your Honor.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“I run a property management company in a state that did away with its moratorium on evictions for non-payment of rent. But while it was in effect, the ability to pay our own people was severely limited and I had to let almost everyone go.

“None of my current staff have ever presented an eviction case in court and this scares me. I would appreciate your suggestions that will help us. Do you know of good, on-line resources or videos to watch?”

Back to Normal = Huge Increase in Eviction Lawsuits

As the country slowly gets back to normal and tenants become obligated to pay rent, eviction lawsuits have skyrocketed across the country. But simply because a well-documented eviction lawsuit has been filed does not in of itself mean a successful outcome.

As you will see, today, winning your case has become much more difficult, as the property owner or representative will often need to address defenses to the eviction that tenants will raise – “defenses” that are often pure fabrications.

Rogue Tenant Lawyers Extort Property Owners

Across the country there is a cottage industry of rogue law firms that specialize in representing tenants who haven’t paid rent, are sued for eviction, then falsely claim landlord violations of health and safety codes, harassment, and on it goes, in an effort to stop the eviction and get a payday for the deadbeat tenant.

These lawyers are an embarrassment to the legal profession, and I’ve had the most interesting conversations with several who, like one from San Diego, admits their Bar membership is “A license to legally extort money from landlords and obtain months of rent-free occupancy.”

He added, “My ex-wife lectured me about right and wrong and that’s why she is my ex! I don’t care what you or anyone thinks. For me it’s all about winning, getting well paid for it and morality – helping deadbeat tenants steal – doesn’t matter.”

One “tenant” firm advertises three packages:

– Basic “We get you 1 to 2 ½ month delay in being evicted.”

– Standard “Provides a 4 month delay.”

– Premium gives you a 4 to 12 months delay!

I tried reaching them for comment and was unable.

So, when faced with an industry dedicated to ripping off property owners, when you finally get to court, being well prepared is critical.

State Court Resources, You Tube, Observe in Court, Judge Judy

Just about every state has a great deal of information online about its court system – including small claims, landlord/tenant, mediation and enforcement of judgments. There are dozens of excellent YouTube videos presented by lawyers, explaining how Small Claims Court functions. Additionally, you’ll find highly educational podcasts produced by attorneys that walk you through all the steps of eviction trials.

Just Google: YouTube Small Claims Instructional Videos. Or try, “Landlord/Tenant, What to do in Court.”

Also, just spend time in court, observing, and study how people testify – what they do that builds credibility or what hurts it.

Why Judge Judy is so valuable

The Judge Judy Show, now called “Judy Justice” is one of the greatest resources for anyone going to court. Her program is educational, entertaining, and more than that; it can help you win your case by learning what not to do!

By not doing the things that annoy a judge, your chances for success are increased. For example:

1 – Being unprepared – failing to bring documentary proof – the lease, contract, invoices, bank statements, canceled checks – can result in your case being dismissed.

“Sorry Your Honor I forgot it,” gets you no favors from any judge.

2 – Failing to listen – not paying attention to questions the judge asks. With a question that calls for a yes or no, when litigants refuse to answer, but instead, begin a lengthy explanation, this frustrates the judge and harms their credibility.

Judges are swamped these days and most have little tolerance for litigants like this who often wind up cooking their own goose!

3 – Have your evidence – photos, invoices, relevant documents – in order and numbered, prepared to hand to the bailiff or shown to the other side.

If the judge asks you to produce some element of proof, fumbling through a stack of papers makes you look like a chicken with its head cut off, and can create a negative impression.

4 – The courtroom is no place for eyes-rolled, hands raised, interrupting the judge or anyone testifying.

A great asset is patience, politeness, and giving good eye contact to the judge. By being as mature and adult-like as possible, you are more believable.

I know many lawyers who assign watching Judge Judy shows to their clients in preparation for testifying. Also, a number of judges have told me, “She reveals what we think and feel, want to but cannot say publicly – unless we want to risk being sanctioned by our state’s Judicial Council or voted off the bench.”

And that is what makes her show so valuable. She dares to talk about right and wrong, about ethics and morality. What makes her so different from most other judges is her transparency. While most generally remain poker-faced and their judgment is sent by mail, Judge Judy tells is like it is, right now.

If her show was required viewing by high school students about to graduate, fewer people would wind up in small claims court!

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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The closest thing that most of us will ever come to meeting a Judge Judy is by suing or being sued in Small Claims Court.

Having served as a pro tem judge in Small Claims Court, I learned that, next to being stopped by a traffic officer and getting a ticket, this is the typical way most people see our legal system in action. Plaintiffs and Defendants both hope for a judge who knows the law, listens, and that the other will badly screw up their presentation in court.

Unfortunately, in the case that I will now describe, from reviewing the exhibits and listening to the entire proceedings, an ill-informed judge and scatterbrained defendant led to an unjust verdict.

“They Just Showed Up Without Any Notice”

“Summer” had a small water leak in the toilet shut-off valve in one of her bathrooms, turned it off, called a plumber to repair it–who in turn–without her permission–had a mold remediation specialist come to the home. The only problem was that the area had been dry for weeks and Summer could neither smell nor see evidence of mold anywhere.

She was at work when the “specialist” showed up, and her Vietnamese speaking uncle–having virtually non-existent English language skills–let him in. The chap gets her on the phone, explains that his sniffer found moisture in the wall, and that any work accomplished would be entirely paid for by her homeowners insurance. “You will have no out of pocket expense,” he assured her, but did not put that in writing. He also needed a signature to place a dehumidifier.

Instead of saying, “Wait a minute! Let’s schedule this so that I can be there and go over everything,” Summer tells her uncle to sign the authorization. In reality, it was a contract for emergency repairs waiving the three-day cooling off period for at home sales. (In case of true emergency, that protection can be waived in California and some other states.)

Thus began, in my legal opinion, a classic rip off of a naive, trusting homeowner lacking common sense who proves the saying, “Why don’t doctors ask lawyers for advice before signing contracts? It is because they think they know more than their lawyer.”

Yes, Summer is a physician, and earns over $200,000 a year!

Bathroom Torn Apart – Sued in Small Claims Court

Other customers of this water-damage firm had complained online of almost identical business practices, experiencing as Summer did, having bathrooms gutted and unusable. As her insurance had a large deductible, she was billed over three thousand dollars, refused to pay and was sued in Small Claims Court.

Files Cross Complaint Against the Company

Instead of narrowing down her defense to a clear violation of both Federal and California law which would have established fraud and a void contract, Summer additionally asked the judge for:

(1) $1,500 which is what she paid another relative to take uncle in, as his bathroom was unusable “and it was difficult for him to use the stairs to mine,” and;

(2) Going out to restaurants with the family as she was unable to properly host them at her house due to the bathroom being unusable.

(3) Her time lost.

Her claim totaled close to $6,000.

Judge Missed the Point

Summer attempted to introduce into evidence on line posts almost identical to her experience, but the judge–in my opinion incorrectly–rejected that evidence. The judge felt that as Summer authorized uncle to sign the contract, she was obligated.

Obviously, Summer lost and is appealing the court’s decision, and this isn’t the first time I’ve seen a Small Claims Court judge reward dishonest behavior. Several years ago I wrote about a grossly incompetent pro tem judge in Kings County, California who found in favor of an auto mechanic who violated the written estimate law – which meant he legally could collect nothing.

Months later she was appointed to the Kings County Superior Court Bench! It was an example of you-know-what rising to the top.

What the Business Rep Did Correctly in this Case

The representative from the remediation company did everything correctly in court. He was polite, had his documents neatly in order, did not interrupt Summer, and denied any fraud or having violated California or federal law.

Most important of all, he listened and responded only to those elements of her case that required him to comment. In short, he looked the part of an ethical, honest employee from a credible business.
He allowed Summer to make a fool of herself, and the judge rewarded him for it by failing–or refusing–to see the enormity of this rip off.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Is it possible to prevent a certain judge from hearing my case, or, am I stuck with whatever courtroom I’m assigned to? Is there a way to reduce the chances of having a judge who has a reputation for being a ‘loose cannon,’ not following the law, unfair and nasty to the people who come to their courtroom seeking justice?

“I have a case in the Kings County Superior Court coming up, but live in Los Angeles, and really appreciate your advice. Thanks. Benjamin.”

We’ll answer those questions in a moment, but first, step with me into H.G.Well’s Time Machine as we begin our legal education at Loyola University School of Law, downtown Los Angeles. First day, first class, Contracts, Professor Smith: formal, a reputation for being tough, and a member of the California Bar.

“Talk about brain power,” you whisper. “Lawyer, law professor and practices law. All our teachers are LAWYERS! I just hope to pass the first year exams.” I agree, in awe of these brilliant people who, in our minds, are like deities.

Smith says, “One day, some of you will become judges.” “Judges? That’s like being a God. Some of us?” you mumble.

By the second and third year of law school, we accept the fact there is one God and it isn’t any of our professors. Fast forward a few years in law practice, and we wonder, “How did some of these people pass the bar exam, and how could the governor appoint the class idiot as a Superior Court judge?”

So, if you are headed to court and believe that a courthouse is a place where fairness rules, that the people wearing black robes see the world free of bias and prejudice, answers to our reader’s questions can mean the difference between getting a fair shake or losing before stating a single word.

Lawyers call it “papering a judge.”

Attorneys who appear in court on a regular basis get an idea of which judge is better for a particular type of case and those who reek of bias against certain lawyers or classes of parties.

For example, should a client with the “wrong” lawyer appear in their court, they will routinely find for the other side in custody cases, regardless of recommendations made by county personnel who evaluate where the children should remain.

You’re thinking, “But aren’t judges supposed to separate personal feelings and emotions from their rulings?” That day may arrive when we address emotionless, Artificially Intelligent robots as “Your Honor,” but until then, judges are human, some better able to see and quash their own bias, or remove themselves from a case, and others with an agenda.

When it comes to competent legal representation, this can be the moment of truth; will your lawyer speak up and disqualify the judge, or, wimp out, afraid of creating a bad image of themselves in the court’s eyes?

The procedure

The law provides two ways, of “papering the judge,” as lawyers call it, by filing:

1. (A Peremptory Challenge of a trial judge under Code of Civil Procedure (CCP) section 170.6. A party or attorney may disqualify a judge based on a sworn statement of belief that the judge is prejudiced against that party or the party’s attorney. The results in an automatic disqualification of one judge without proving prejudice or bias.

2. A Challenge for Cause. CCP 170.1 requires specific grounds and proof, such as the judge has a personal relationship with some of the parties, has a financial interest in the case, personal knowledge of the facts, and so on. If your challenge is denied, the case remains with the judge.

If you file a Challenge for Cause, better have your ducks lined up in a row or prepare to have your case as the main ingredient in duck soup.

When must you file your challenge?

There are specific time periods in which to seek disqualification of a trial judge. The general rule is that disqualification is permitted any time prior to the commencement of trial, but there are exceptions. If the time periods are not met, the motion to disqualify will be denied, so find out what applies in your county. If it looks likely, be on top of this yourself.

How else can I know to keep or disqualify a judge?

The quicker you know as much as possible about the judge assigned to your case, the better, so use Google. Look for newspaper articles which reveal bias, prejudice or outright incompetence. If the story was written by a reporter who you know, give them a call.

Remember, the most dangerous person in the courthouse can hide beneath a black robe.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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If you’ve been denied unemployment insurance benefits because your employer claimed that you were guilty of “misconduct,” then today’s story will be of special interest, for that’s what happened to “Carmen,” the 32-year-old daughter of an old friend.

She was employed as a veterinary technician at a Central California veterinary hospital since February 2015. Her performance reviews were all excellent. Yet, on October 13, 2016, the office manager forced her to sign a written warning for excessive absences.

However, based on documents my office staff reviewed, all the dates listed were either for approved vacation days, no work to do and Carmen was sent home for that reason, one was for an on-the-job injury, days she was not scheduled to work, and two days due to illness supported by a doctor’s note.

She was fired on November 28, 2016, and told it was because she missed too much work. At the beginning of December, Carmen filed for unemployment on the EDD’s website, received a claim number, and then nothing, no contact from anyone until April 2017.

“Your file was lost in cyberspace,” an uncaring interviewer told her.

A family business with one outsider

As Carmen explained, “This was a small animal hospital and everyone but me were all family. The doctor is in his late 80s and seldom came in. I was fired so they could save money, a former co-worker told me after I was let go.”

Don’t confuse me with the facts, my mind is made up

In late April, an EDD interviewer phoned Carmen, told her that the employer had fired her for misconduct, missing too many work days. “But the guy from EDD refused to listen to my explanation and twisted everything I said. They lost my file for months, and now he is making me out to be a monster!”

A few days later the decision arrived, stating, “Employee misconduct due to excessive absences and therefore no right to benefits.”

Carmen challenged the decision by submitting a detailed 5 page letter with attachments, showing that her time off work was proper. That didn’t phase EDD and she was again denied for the same reason.

Much like her father, she didn’t give up and filed for a hearing before an Administrative Law Judge.

Careful preparation includes your appearance

It doesn’t matter where or what type of legal matter is involved, before we say a word our appearance has already done a lot of talking. Research studies show that employers routinely refuse to hire anyone with piercings or head and neck tattoos, so to avoid bias or prejudice in a courtroom setting, most lawyers insist they be removed or covered. Carmen removed her nose piercing.

Super client – poker-faced judge

Following my advice to wear light colored clothing, hair done in a manner to reveal her lovely face, to listen and answer only those questions the judge asks, Carmen testified credibly, and was simply the best client I have ever had at an EDD hearing, and I’ve had hundreds. She was well prepared, knew the dates that were questioned, and had all the documentary evidence necessary to prove her case.

Our judge was Thomas S. Pavone, who fits the definition of being poker-faced, which is a good thing as these types of hearings are often highly emotional, especially when both employer and terminated employee appear. But it was just the three of us.

Pavone went through the file, reviewed those days Carmen was absent, and indicated that we would receive his decision shortly.

He remained unreadable until the very end when I noticed, just for a second, a smile. I felt that we had won and Carmen would receive her unemployment insurance benefits because she was not guilty of misconduct.

Discharged for misconduct means no benefits

If you are fired due to misconduct, then don’t expect to get unemployment insurance benefits. Right now you are probably thinking, “So what is the definition of misconduct?”

In his decision, Judge Pavone answered that question by stating, “Misconduct connected with work is a substantial breach of an important duty or obligation owed the employer, willful or wanton in character, and tending to injure the employer.”

Of interest is the fact that this definition has appeared in EDD training manuals since 1960. Also, EDD personnel have been taught, “Absence caused by illness does not constitute misconduct.”

The judge found that Carmen “Was discharged for reasons other than misconduct connected with her employment. She is qualified for benefits.”

What happened to Carmen was no accident. EDD revealed bad faith by willfully denying her unemployment insurance benefits for months. And she can’t their only victim.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Picture yourself going to court. It could be for a traffic ticket, a civil lawsuit over money, divorce, or you are in criminal court facing years in prison. You are worried and have many questions about the judge hearing your case or ruling on a motion your attorney has filed.

• Will the judge be fair?
• Will the judge know the law?
• If the law is squarely on my side, will the judge follow it or without legal justification, find against me?

For the residents of Kings County, and anyone who has a case in its Superior Court, this syndicated newspaper columnist firmly believes that if your case has been touched by Research Attorney Valerie R. Chissakis–who is also a small claims court Judge Pro Tem – then you’ve got good reason to worry.

In January of this year, in a column titled, “Small claims judge got it so wrong,” we asked:

“If it becomes clear that a county has a renegade small claims court judge who rewards the illegal conduct of a business owner, and reveals at the least gross incompetence, should that person be permitted to continue hearing cases?”

We told you about Susan Stewart who took her car to Hanford-based Performance Automotive and never received a written estimate before owner Martin Reyes worked on the vehicle. She was unaware of her right to a written estimate, and more importantly, that without that estimate, she was not obligated to pay a cent for anything done to the car.

To protect car owners from mechanics who quote one price orally and then more when it’s time to pick up the vehicle – the car held hostage – California law says “No compensation without a written estimate.” Susan – like many people – was unaware of that legal protection and paid, getting her car back in worse shape than when it was brought in.

Reyes admitted in writing there was no written estimate, and knew that California law prevented him from collecting money for the repairs, yet refused to refund Susan, and both wound up in Small Claims Court in front of Valerie Chassikas.

Should have been a slam dunk

As Reyes violated the law, the result was an illegal contract from which, by law, he could not benefit. When these types of cases reach a court, the judge asks, “Show me the written estimate.” If there is none, it’s all over, judgment for the customer. The shop automatically loses. That’s what should have happened in Susan’s case.

A spokesperson for the California Bureau of Automotive repair stated, “I have never heard of a case where the judge refused to order a refund. You can’t keep money illegally obtained.”

But he had never met Research Attorney/Judge Pro Tem Chissakis.

Blames the victim

Using Alice in Wonderland reasoning, where black is white and up is down, Chissakis blamed the victim for not knowing her rights and then paying Reyes. Her reasoning goes this way: “You didn’t have to pay him, but because you did, he gets to keep the money.”

This is like saying, “Bank robbery is illegal, but if a teller hands over the money, the thief can keep it!”

Deeply flawed legal opinions

In deeply flawed legal opinions which have been ridiculed by numerous experienced attorneys, her legal analysis reveals either a failure to understand basic legal concepts, or worse, intentionally misstating the law to reward Reyes, who knowingly broke the law.

What amounts to an appeal was filed but instead of it going to another judge, it was sent back to her! In reading her two decisions, Loyola Law School (Los Angeles) Professor Bryan Hull observes, “It isn’t practical to expect that consumers will know that they have a right to a written estimate. They will unwittingly pay the bill, and only find out later that there was a right to a written estimate. This judge’s decision undermines the whole point of the law.”

Bakersfield attorney Catherine E. Bennett, a Certified Appellate Specialist, agrees, stating, “The statute is for the protection of the public. The repair person knew the law; the customer did not. She was blameless; he was not. Restitution to the victim was the appropriate remedy, which the judge refused. As the Court’s Research Attorney, her decision makes no sense and is deeply disturbing.”

Fortunately, when asked by a bailiff to sign the form allowing a Judge Pro Tem to hear your case, you have the right to refuse and to be assigned to a real Superior Court judge.

Research attorneys provide legal advice and counsel to the Judge

The Orange County Superior Court describes Research Attorneys as “Responsible for performing high quality legal research on behalf of judicial officers; examining, analyzing, and interpreting available information and submitting recommendations in matters before the Court.

Research Attorneys provide legal advice and counsel to the Court on various matters, and may serve as temporary judge.”

All those who want Valerie Chissakis working on their cases, please raise your hands.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Today’s story will be of special interest to anyone headed to Small Claims Court, and we begin with this question:

“When the judge’s decision is 100 percent wrong — totally and completely wrong on the law — so as to make you wonder if her law decree came from a box of Cheerios, what can you do?”

“Appeal!” is what you’re probably thinking, and yes, the defendant can file an appeal which typically results in a new trial with a different judge. But in many states including California, if the plaintiff loses, it’s generally all over.

But under very narrow circumstances there is a way for a plaintiff to file what would act much like an appeal, and because it is in small claims court, most lawyers have never heard of it. We will tell you what it is in a moment, but right now, one more question:

“If it becomes clear that a county has a renegade small claims court judge who rewards the illegal conduct of a business owner, and reveals at the least gross incompetence, should that person be permitted to continue hearing cases?”

As you will see, that’s exactly what Kings County Small Claims Pro Tem Judge Valerie Chrissakis did, by rewarding Martin Reyes, owner of Hanford-based Automotive Performance, refusing to order him to return $2,300 he took from customer Susan Stewart in April of 2016 by knowingly and willfully violating California’s Written Estimate Law.

The 1975 California case of Bennett v. Hayes forced repair shops to comply with the written estimate law. No written estimate means no valid contract and the shop is not entitled to be paid no matter what they do to your vehicle. No compensation — period.

“This is still the law today. Countless consumers have prevailed in small claims matters as a result of shops failing to provide an estimate. Additionally, the Bureau of Automotive Repair annually secures nearly $5 million in restitution to consumers, in many cases because there was no estimate,” Bill Thomas, program manager with California’s Bureau of Automotive Repair told us.

He added, “I have never heard of a case where the judge refused to order a refund. You can’t keep money illegally obtained.”

When contacted by our reader, we spoke with Reyes who admitted — on a recorded line — there was no estimate, yet refused to refund the money. He stated the same thing in a letter, and then Susan went to Small Claims Court. Our office submitted a “Friend of the Court” brief to Judge Pro Tem Chrissakis with legal authority establishing that Reyes had engaged in an illegal contract and was not entitled to anything.

But it was a very strange hearing indeed. Obviously ignoring the law, she was looking for some way to compensate Reyes! Then came her decision, which is a slap in the face of justice and forces you to wonder about where she is coming from. Paraphrasing, her opinion cites all the cases which say the shop can’t be paid, but then she states, “But since you’ve paid the shop, I can’t help you. There is no legal remedy.”

“This was obviously a void, unenforceable contract,” appellate attorney Catherine Bennet of Bakersfield stated. “The mechanic clearly can’t keep the money. The judge is obviously way off base.”

Los Angeles-based consumer protection attorney Bob Brennan put it this way: “This is insane. You’ve got to give the money back! The judge is absolutely wrong.”

Contracts Professor Bryan Hull at Loyola Law School in Los Angeles stated, “This is an injustice by allowing the repair facility to get away with violation of a statute that is designed to protect the consumer.”

While Pro Tem Judge Valerie Chrissakis purposefully ignored the law to benefit someone not entitled to one cent — and why is anyone’s guess — Susan is has one remaining hope and that is to file form SC 108 with the Kings County Superior Court. It is called “Request to Cancel or Correct a Judgment.” Section 3 states, “I ask the court to cancel the judgment because the court applied the wrong law.”

If reviewed by Judge Chrissikis personally, she has the ability to correct the judgment, or she could refer it to some other judicial officer who, we assume, will get it right.

The Kings County Superior Court has some highly qualified judges who I’ve met and respect. It now has a hot potato on its hands and needs to restore faith in the public that they will be treated fairly by its Small Claims Court.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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