| May 2014 |
Judge Judith Hayes protects Stutz Artiano Shinoff & Holtz
law firm in Larkins case, but fails to protect it in San Ysidro case
Judge Judith Hayes was able to shield Stutz law firm from any examination of
evidence and weighing of facts in the Stutz v. Larkins defamation lawsuit
regarding this website.
Judge Hayes allowed the law firm to walk out of one deposition and refuse to
attend another. She allowed them to refuse to produce documents.
Then Hayes threw out all evidence against the law firm and found Maura
Larkins liable for defamation. Hayes made the decision based on the
technicality of a small formatting mistake. Since there was
no showing of damage by the law firm,
only "nominal damages" could be awarded.
Hayes agreed with Stutz law firm that $30,000
was an appropriate "nominal damage" for a
retired school teacher.
To its credit, Stutz Artiano has not made an effort
to collect this money from Larkins.
San Ysidro School District apparently took note of
Judge Hayes' behavior in the Larkins case, and
made a peremptory challenge when, in defiance
of the laws of probability, Judge Judith Hayes
was "randomly" assigned to the San Ysidro
School District v. Stutz Artiano Shinoff & Holtz
malpractice lawsuit.
Stutz law firm paid $2 million to settle the
San Ysidro Schools case.
law firm in Larkins case, but fails to protect it in San Ysidro case
Judge Judith Hayes was able to shield Stutz law firm from any examination of
evidence and weighing of facts in the Stutz v. Larkins defamation lawsuit
regarding this website.
Judge Hayes allowed the law firm to walk out of one deposition and refuse to
attend another. She allowed them to refuse to produce documents.
Then Hayes threw out all evidence against the law firm and found Maura
Larkins liable for defamation. Hayes made the decision based on the
technicality of a small formatting mistake. Since there was
no showing of damage by the law firm,
only "nominal damages" could be awarded.
Hayes agreed with Stutz law firm that $30,000
was an appropriate "nominal damage" for a
retired school teacher.
To its credit, Stutz Artiano has not made an effort
to collect this money from Larkins.
San Ysidro School District apparently took note of
Judge Hayes' behavior in the Larkins case, and
made a peremptory challenge when, in defiance
of the laws of probability, Judge Judith Hayes
was "randomly" assigned to the San Ysidro
School District v. Stutz Artiano Shinoff & Holtz
malpractice lawsuit.
Stutz law firm paid $2 million to settle the
San Ysidro Schools case.
Judge says no [to Bertha Lopez and Jim Cartmill]
Robert Moreno
Chula Vista Star-News
Aug 30 2014
[See blog posts re South Bay Indictments.]
San Diego Superior Court Judge Judith Hayes upheld
her tentative ruling Aug. 19 and granted the Sweetwater
Union High School District a preliminary injunction that
prevents former trustees Bertha Lopez and Jim Cartmill from finishing out their terms on the school
board...
The injunction also allows the five temporary trustees — [who are all SDCOE board members] appointed by the
San Diego County Office of Education — to continue to operate the district...
All five seats of the Sweetwater school board are up for grabs in a November election.
Defense attorneys... argued that the local court did not have the jurisdiction to remove either defendant from
office and that only the attorney general can proceed with the removal of Lopez and Cartmill in a quo
warranto proceeding.
Cartmill said Hayes’ ruling might have implications for future elected officials...“I think voters should decide
elections not lawyers. This court’s ruling opens the door for politically motivated prosecutions all over the state
and, in effect, criminalizing political differences.”
Hayes also cited that Lopez and Cartmill had to forfeit their seats because while the ex-board members did not
commit a felony, their convictions violated their official duties...
Despite their guilty pleas, San Diego Superior Court Judge Ana Espana ruled that Lopez and Cartmill would still
be allowed to sit on the governing board.
Espana’s ruling was questioned by the school district and on May 13 she reversed her decision, after she [and
the school district lawyers, apparently] admittedly learned about California Education Code 1770.2, which
prevented Lopez and Cartmill from holding office upon a guilty plea. Their removal was then left up
to the district.
However, Espana ruled that Government Code 91002 did not apply to either defendant and allowed
them to run for re-election...
Robert Moreno
Chula Vista Star-News
Aug 30 2014
[See blog posts re South Bay Indictments.]
San Diego Superior Court Judge Judith Hayes upheld
her tentative ruling Aug. 19 and granted the Sweetwater
Union High School District a preliminary injunction that
prevents former trustees Bertha Lopez and Jim Cartmill from finishing out their terms on the school
board...
The injunction also allows the five temporary trustees — [who are all SDCOE board members] appointed by the
San Diego County Office of Education — to continue to operate the district...
All five seats of the Sweetwater school board are up for grabs in a November election.
Defense attorneys... argued that the local court did not have the jurisdiction to remove either defendant from
office and that only the attorney general can proceed with the removal of Lopez and Cartmill in a quo
warranto proceeding.
Cartmill said Hayes’ ruling might have implications for future elected officials...“I think voters should decide
elections not lawyers. This court’s ruling opens the door for politically motivated prosecutions all over the state
and, in effect, criminalizing political differences.”
Hayes also cited that Lopez and Cartmill had to forfeit their seats because while the ex-board members did not
commit a felony, their convictions violated their official duties...
Despite their guilty pleas, San Diego Superior Court Judge Ana Espana ruled that Lopez and Cartmill would still
be allowed to sit on the governing board.
Espana’s ruling was questioned by the school district and on May 13 she reversed her decision, after she [and
the school district lawyers, apparently] admittedly learned about California Education Code 1770.2, which
prevented Lopez and Cartmill from holding office upon a guilty plea. Their removal was then left up
to the district.
However, Espana ruled that Government Code 91002 did not apply to either defendant and allowed
them to run for re-election...
Prior restraints on free speech: Judge Judith Hayes
in San Diego behaves much like a judge in Kentucky
The Kentucky case below is somewhat reminiscent of
Judge Judith Hayes' 2009 injunction ordering
Maura Larkins never to mention the names of a
San Diego law firm or any of its attorneys--
not even to discuss with her husband or an attorney
the ongoing defamation lawsuit that those same
attorneys had filed against her.
Judge Hayes threw out all Larkins' evidence as well as Larkins' opposition to summary adjudication.
Then Hayes found in favor of plaintiff based on the technicality that there was "no opposition" to plaintiff's
summary adjudication motion.
Hayes then proceeded to behave as if defamation had been found as a matter of fact even though there had
been no weighing of evidence.
Judge Hayes even refused to allow Larkins to call the police if a crime were committed against her by
the plaintiffs, thus defying the Court of Appeal decision in the famous San Diego case Evans v. Evans.
.
Judge Hayes' injunction against Larkins was ruled unconstitutional by the Fourth District California Court of
Appeal.
Recently San Ysidro School District filed a peremptory challenge against Judge Hayes who was--in a
remarkable coincidence during an apparently random selection process--chosen by San Diego Superior Court
to preside over the malpractice case filed by the school district against the same law firm that Judge Hayes had
wanted so much to protect that she was willing to violate the Constitutions of California and the United States.
See case details below.
‘Thanks for Ruining My Life’
By Abigail Pesta
12/10/12
Savannah Dietrich says she was furious when she blasted out a defiant tweet this summer, naming two boys who
had... assaulted her. “There you go, lock me up. I’m not protecting anyone that made my life a living Hell,” the 16-
year-old high-school student wrote...
When Dietrich pressed charges, the boys pleaded guilty in a deal offered by the prosecutor, but she faced a
new and unexpected problem: the judge ordered her not to talk about what had happened to
her—an apparent infringement of her right to free speech, according to legal experts and
to Dietrich herself.
[The] boys’ lawyers filed a motion to hold Dietrich in contempt of court, arguing
that she had made “contemptuous remarks at this court”...
Dietrich’s family got a pair of public defenders and prepared for battle. “I was boiling in my blood,” says Dietrich’s
mother...
Aden Fine, senior staff attorney at the American Civil Liberties Union, agrees with that assessment, noting,
“Broad orders issued by courts prohibiting speech raise First Amendment
questions. She could never tell her mother what happened?” As for Dietrich’s decision to
tweet, he says, “Speech on social-media tools is entitled to exactly the same protections as other speech. The
Supreme Court has made that clear.”...
Dietrich’s team went after both judges and the prosecutor, requesting that all
three be disqualified from the case. The prosecutor, they charged, was not
objective. Turned out, he had attended the same high school as the boys—
Trinity—and remained an active supporter, serving on a reunion committee and
in an alumni society, according to court filings. The judges and prosecutor declined to comment for this
story, as did Trinity.
As news of the battle leaked out, headlines shot around the city and across the country,
screaming that a sexual-assault victim could go to jail for tweeting about the attack. The
lawyers for the boys dropped the contempt motion.
In the end, no one was disqualified. The court records were unsealed at the request of Dietrich’s
team, despite objections from the boys’ lawyers, who argued that it would spur media attention and hinder
the boys’ rehabilitation. The boys were not invited back to a senior year at Trinity and had to find new schools.
They also got a stiffer sentence. Under their final plea deal, issued in September, the felony crime can’t be
completely expunged, as per the original deal, but can be downgraded to a misdemeanor after three years if
they stay out of trouble...
in San Diego behaves much like a judge in Kentucky
The Kentucky case below is somewhat reminiscent of
Judge Judith Hayes' 2009 injunction ordering
Maura Larkins never to mention the names of a
San Diego law firm or any of its attorneys--
not even to discuss with her husband or an attorney
the ongoing defamation lawsuit that those same
attorneys had filed against her.
Judge Hayes threw out all Larkins' evidence as well as Larkins' opposition to summary adjudication.
Then Hayes found in favor of plaintiff based on the technicality that there was "no opposition" to plaintiff's
summary adjudication motion.
Hayes then proceeded to behave as if defamation had been found as a matter of fact even though there had
been no weighing of evidence.
Judge Hayes even refused to allow Larkins to call the police if a crime were committed against her by
the plaintiffs, thus defying the Court of Appeal decision in the famous San Diego case Evans v. Evans.
.
Judge Hayes' injunction against Larkins was ruled unconstitutional by the Fourth District California Court of
Appeal.
Recently San Ysidro School District filed a peremptory challenge against Judge Hayes who was--in a
remarkable coincidence during an apparently random selection process--chosen by San Diego Superior Court
to preside over the malpractice case filed by the school district against the same law firm that Judge Hayes had
wanted so much to protect that she was willing to violate the Constitutions of California and the United States.
See case details below.
‘Thanks for Ruining My Life’
By Abigail Pesta
12/10/12
Savannah Dietrich says she was furious when she blasted out a defiant tweet this summer, naming two boys who
had... assaulted her. “There you go, lock me up. I’m not protecting anyone that made my life a living Hell,” the 16-
year-old high-school student wrote...
When Dietrich pressed charges, the boys pleaded guilty in a deal offered by the prosecutor, but she faced a
new and unexpected problem: the judge ordered her not to talk about what had happened to
her—an apparent infringement of her right to free speech, according to legal experts and
to Dietrich herself.
[The] boys’ lawyers filed a motion to hold Dietrich in contempt of court, arguing
that she had made “contemptuous remarks at this court”...
Dietrich’s family got a pair of public defenders and prepared for battle. “I was boiling in my blood,” says Dietrich’s
mother...
Aden Fine, senior staff attorney at the American Civil Liberties Union, agrees with that assessment, noting,
“Broad orders issued by courts prohibiting speech raise First Amendment
questions. She could never tell her mother what happened?” As for Dietrich’s decision to
tweet, he says, “Speech on social-media tools is entitled to exactly the same protections as other speech. The
Supreme Court has made that clear.”...
Dietrich’s team went after both judges and the prosecutor, requesting that all
three be disqualified from the case. The prosecutor, they charged, was not
objective. Turned out, he had attended the same high school as the boys—
Trinity—and remained an active supporter, serving on a reunion committee and
in an alumni society, according to court filings. The judges and prosecutor declined to comment for this
story, as did Trinity.
As news of the battle leaked out, headlines shot around the city and across the country,
screaming that a sexual-assault victim could go to jail for tweeting about the attack. The
lawyers for the boys dropped the contempt motion.
In the end, no one was disqualified. The court records were unsealed at the request of Dietrich’s
team, despite objections from the boys’ lawyers, who argued that it would spur media attention and hinder
the boys’ rehabilitation. The boys were not invited back to a senior year at Trinity and had to find new schools.
They also got a stiffer sentence. Under their final plea deal, issued in September, the felony crime can’t be
completely expunged, as per the original deal, but can be downgraded to a misdemeanor after three years if
they stay out of trouble...
| May 2014 |
| March 2014 |
DOUGLAS E. BARNHART, INC. v. CMC FABRICATORS, INC.
APPEAL from an order of the Superior Court of San Diego County, Judith F.
Hayes, Judge.
Reversed.
Maureen Doyle for Plaintiff and Respondent.
Marks, Finch, Thornton & Baird, Jeffrey B. Baird, Christopher R. Sillari and Daniel P. Scholz for Plaintiff
and Respondent.
In this appeal from an order denying a motion for an award of attorney fees, we must decide whether a
defendant who defeats a claim for breach of contract but loses a related claim for promissory estoppel
is entitled to recover attorney fees when the alleged contract provides the prevailing party in any dispute
between the parties shall recover such fees. We hold such a defendant is entitled to recover the attorney
fees reasonably incurred in defeating the breach of contract claim. We therefore reverse the trial court's
order and remand for further proceedings.
I.
BACKGROUND
In preparing a bid for construction of a municipal library, Douglas E Barnhart, Inc. (Barnhart), a general
contractor, solicited bids from subcontractors for certain decorative metal work. CMC Fabricators, Inc.
(CMC) submitted a bid for the metal work dated November 5, 2005. CMC's bid provided it would "remain
in force for thirty days from the above date unless accepted by [Barnhart] or withdrawn by [CMC]," and
contained a space for Barnhart to indicate acceptance by signature. Although Barnhart never signed
CMC's bid, it used CMC's price in preparing its own bid for the library project.
On December 14, 2005, Barnhart sent CMC a letter of intent that included price and scope-of-work terms
that differed from those of CMC's bid. Six days later, Barnhart sent CMC a proposed subcontract
containing these altered terms. CMC did not sign Barnhart's proposed subcontract and, months later,
sent its own proposed subcontract to Barnhart with terms consistent with those of CMC's original bid.
Barnhart never signed CMC's proposed subcontract and, with the municipality's permission, substituted
a new subcontractor to do the decorative metal work for the library.
For the guidance of the trial court on remand, we note that "[a]ttorney's fees need not be apportioned
when incurred for representation on an issue common to both a cause of action in which fees are
proper and one in which they are not allowed." (Reynolds, supra, 25 Cal.3d at pp. 129-130.) ...
Finally, CMC has requested an award of attorney fees incurred on appeal. When a contract or a statute
authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at
trial and on appeal. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272; Frog Creek, supra, 206 Cal.App.4th at
p. 547.) On remand, therefore, the trial court shall determine the amount of attorney fees reasonably
incurred in prosecuting this appeal, and include that amount in its order awarding CMC fees. (Frog
Creek, at p. 547; Dintino, supra, 167 Cal.App.4th at p. 358.)
DISPOSITION
The order denying CMC's motion for an award of attorney fees is
reversed. The matter is remanded to the trial court to conduct further proceedings
consistent with this opinion, to determine the amount of attorney fees CMC reasonably
incurred in defending against Barnhart's contract claims at trial and in prosecuting this
appeal, and to enter an order awarding CMC that amount.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
APPEAL from an order of the Superior Court of San Diego County, Judith F.
Hayes, Judge.
Reversed.
Maureen Doyle for Plaintiff and Respondent.
Marks, Finch, Thornton & Baird, Jeffrey B. Baird, Christopher R. Sillari and Daniel P. Scholz for Plaintiff
and Respondent.
In this appeal from an order denying a motion for an award of attorney fees, we must decide whether a
defendant who defeats a claim for breach of contract but loses a related claim for promissory estoppel
is entitled to recover attorney fees when the alleged contract provides the prevailing party in any dispute
between the parties shall recover such fees. We hold such a defendant is entitled to recover the attorney
fees reasonably incurred in defeating the breach of contract claim. We therefore reverse the trial court's
order and remand for further proceedings.
I.
BACKGROUND
In preparing a bid for construction of a municipal library, Douglas E Barnhart, Inc. (Barnhart), a general
contractor, solicited bids from subcontractors for certain decorative metal work. CMC Fabricators, Inc.
(CMC) submitted a bid for the metal work dated November 5, 2005. CMC's bid provided it would "remain
in force for thirty days from the above date unless accepted by [Barnhart] or withdrawn by [CMC]," and
contained a space for Barnhart to indicate acceptance by signature. Although Barnhart never signed
CMC's bid, it used CMC's price in preparing its own bid for the library project.
On December 14, 2005, Barnhart sent CMC a letter of intent that included price and scope-of-work terms
that differed from those of CMC's bid. Six days later, Barnhart sent CMC a proposed subcontract
containing these altered terms. CMC did not sign Barnhart's proposed subcontract and, months later,
sent its own proposed subcontract to Barnhart with terms consistent with those of CMC's original bid.
Barnhart never signed CMC's proposed subcontract and, with the municipality's permission, substituted
a new subcontractor to do the decorative metal work for the library.
For the guidance of the trial court on remand, we note that "[a]ttorney's fees need not be apportioned
when incurred for representation on an issue common to both a cause of action in which fees are
proper and one in which they are not allowed." (Reynolds, supra, 25 Cal.3d at pp. 129-130.) ...
Finally, CMC has requested an award of attorney fees incurred on appeal. When a contract or a statute
authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at
trial and on appeal. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272; Frog Creek, supra, 206 Cal.App.4th at
p. 547.) On remand, therefore, the trial court shall determine the amount of attorney fees reasonably
incurred in prosecuting this appeal, and include that amount in its order awarding CMC fees. (Frog
Creek, at p. 547; Dintino, supra, 167 Cal.App.4th at p. 358.)
DISPOSITION
The order denying CMC's motion for an award of attorney fees is
reversed. The matter is remanded to the trial court to conduct further proceedings
consistent with this opinion, to determine the amount of attorney fees CMC reasonably
incurred in defending against Barnhart's contract claims at trial and in prosecuting this
appeal, and to enter an order awarding CMC that amount.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
| Dec. 2013 |
| 2013 |
| . |
| .. |
| . |
| . |
| . |
June-July 2012
Judge Hayes court transcripts
regarding Stutz Artiano Shinoff
& Holtz after Court of Appeal
chastised her for a previous
"exceedingly broad" injunction
(see below)
Judge Hayes struck the Answer of Maura
Larkins--nearly five years after Maura
Larkins filed the answer--and after summary
adjudication had taken place!
Judge Hayes court transcripts
regarding Stutz Artiano Shinoff
& Holtz after Court of Appeal
chastised her for a previous
"exceedingly broad" injunction
(see below)
Judge Hayes struck the Answer of Maura
Larkins--nearly five years after Maura
Larkins filed the answer--and after summary
adjudication had taken place!
Irony: Judge Judith
Hayes said Peter James
Longanbach “willfully
violated both the spirit
and the letter” of the law
requiring disclosure of
evidence.
On the other hand, Judge
Hayes allowed Plaintiff
Daniel Shinoff to
completely avoid being
deposed and producing
critical documents in
Stutz v. Larkins. Then
she found in Shinoff's
favor in a summary
judgement based on his
declaration, while at the
same time throwing out
defendant's declaration.
Defendant had sat for a
six-hour deposition and
produced hundreds of
documents.
In January 2013 29 of
Maura Larkins' exhibits
disappeared from the
Stutz v. Larkins case
file. Someone used
court employees to
illegally destroy the
exhibits. Court
employees were also
used in October 2012 to
default Maura Larkins'
appeal in the case. This
certainly appears to be
unlawful use of public
resources for a private
purpose, as I trust Judge
Judith Hayes would
agree.
Peter James Longanbach
P O Box 2020
Pinehurst, NC 28370
Undergraduate School
Univ of Washington; Seattle
WA
Law School
California Western SOL; San
Diego CA
This member is inactive, but
is eligible to become active.
10/20/2004 Active
1/7/2002 Not Eligible
1/18/1971 Admitted
3/4/2004 Discipline
w/actual suspension
01-C-583 Not Eligible To
Practice Law
1/7/2002 Interim
suspension after
conviction
01-C-583 Not Eligible To
Practice Law
10/19/2004 04-V-
12515 Decision
California Bar Journal
Discipline Summaries
March 3, 2004
PETER J. LONGANBACH
[#48988], 59, of Pinehurst, N.
C. was suspended for three
years, stayed, placed on
three years of probation with
an actual two-year
suspension and until he
proves his rehabilitation, and
was ordered to take the
MPRE and comply with rule
955. Credit will be given for
an interim suspension that
began Jan. 7, 2002. The order
took effect March 3, 2004.
Longanbach, a former deputy
district attorney in San Diego
County, was convicted of
grant theft in 2001 after
admitting he worked on
private matters during work
hours and used the DA’s fax,
copy machine and
telephones for personal
purposes.
In mitigation, Longanbach
had no prior discipline
record, he cooperated with
the bar’s investigation and he
presented evidence of his
good character.
January 7, 2002
A former San Diego deputy
district attorney was placed
on interim suspension early
this year after pleading guilty
to one count of grand theft, a
charge that resulted from
conducting his real estate
business out of his office.
PETER JAMES LONGANBACH
[#48988], 56, of Rancho
Santa Fe, who once headed
the DA’s economic fraud unit,
lost his license Jan. 7.
Longanbach quit his job two
years ago after state
investigators searched his
home and office at the San
Diego Hall of Justice as part
of an investigation into his
financial dealings.
Although he could have been
sentenced to three years in
prison, Longanbach was
ordered last month to spend
350 hours teaching
underprivileged children to
play golf and to organize a
charity golf tournament. San
Diego Superior Court Judge
Kenneth So also placed
Longanbach on probation for
three years and ordered him
to spend one day in jail.
After a 17-month
investigation by the attorney
general, Longanbach was
indicted by a grand jury last
year on 12 felony charges
including misuse of public
funds, grand theft and
embezzlement. The
investigation was launched
when two secretaries
complained he was forcing
them to work on his personal
business during work hours.
Transcripts of the grand jury
testimony showed he used
employees to type personal
letters, prepare leases for
rental properties and run
errands. One secretary
testified she sometimes
spent between 50 and 75
percent of her work time on
Longanbach’s personal
business. An avid golfer, he
also was investigated for
playing golf during work
hours, but was never
charged with that offense.
In a plea bargain reached
with the attorney general,
Longanbach wrote, “I used
San Diego district attorney
staff to prepare personal
documents. I used San Diego
district attorney’s office fax,
copy machine and telephone
equipment for personal
purposes, and I worked on
private matters during
district attorney office hours.”
As part of the agreement, he
will pay San Diego County
$25,000 in restitution. The
judge said he opted for
probation rather than prison
because Longanbach had
never before been convicted
of a crime.
Over the course of the
investigation, 34 witnesses
testified before the grand
jury, most of them fellow
employees.
The grand theft plea was the
culmination of Longanbach’s
legal woes, which began
following his successful
prosecution of a 1996 murder
trial. An appeals court
overturned the defendant’s
second-degree murder
conviction two years later,
citing a legal error by the
judge.
A second trial was held amid
allegations by the defense
attorney that Longanbach
coached a key witness to lie.
The witness admitted she
perjured herself and
Longanbach, called as a
witness, took the Fifth
Amendment against self-
incrimination and refused to
answer questions.
The defendant was found
guilty last year of the less
serious charge of involuntary
manslaughter by a second
jury. He subsequently filed a
federal lawsuit against
Longanbach and the district
attorney’s office, charging
that the former prosecutor
engaged in criminal conduct
to win a murder conviction.
As a result of the murder
case, Longanbach became
the subject of a separate
criminal investigation by the
attorney general.
In addition, a San Diego
Superior Court judge ruled in
2000 that Longanbach
committed prosecutorial
misconduct in a 1998 grand
theft and forgery case. Judge
Judith Hayes said he “willfully
violated both the spirit and
the letter” of the law
requiring disclosure of
evidence.
Longanbach’s name is
playing a prominent role in
this month’s primary election
for district attorney in San
Diego, where Paul Pfingst,
seeking a third four-year
term, faces a challenge from
three other candidates.
Pfingst’s opponents say he
failed to discipline
Longanbach properly when
allegations were made
against him in 1998, pointing
to the investigation that
included a raid on the DA’s
downtown offices seeking
evidence. In addition, they
criticize Pfingst for giving
Longanbach a raise when he
knew about the secretaries’
complaints.
Judge:
Hayes, Judith Frances
Ritch
San Diego
Admission Date December
1977
Hayes said Peter James
Longanbach “willfully
violated both the spirit
and the letter” of the law
requiring disclosure of
evidence.
On the other hand, Judge
Hayes allowed Plaintiff
Daniel Shinoff to
completely avoid being
deposed and producing
critical documents in
Stutz v. Larkins. Then
she found in Shinoff's
favor in a summary
judgement based on his
declaration, while at the
same time throwing out
defendant's declaration.
Defendant had sat for a
six-hour deposition and
produced hundreds of
documents.
In January 2013 29 of
Maura Larkins' exhibits
disappeared from the
Stutz v. Larkins case
file. Someone used
court employees to
illegally destroy the
exhibits. Court
employees were also
used in October 2012 to
default Maura Larkins'
appeal in the case. This
certainly appears to be
unlawful use of public
resources for a private
purpose, as I trust Judge
Judith Hayes would
agree.
Peter James Longanbach
P O Box 2020
Pinehurst, NC 28370
Undergraduate School
Univ of Washington; Seattle
WA
Law School
California Western SOL; San
Diego CA
This member is inactive, but
is eligible to become active.
10/20/2004 Active
1/7/2002 Not Eligible
1/18/1971 Admitted
3/4/2004 Discipline
w/actual suspension
01-C-583 Not Eligible To
Practice Law
1/7/2002 Interim
suspension after
conviction
01-C-583 Not Eligible To
Practice Law
10/19/2004 04-V-
12515 Decision
California Bar Journal
Discipline Summaries
March 3, 2004
PETER J. LONGANBACH
[#48988], 59, of Pinehurst, N.
C. was suspended for three
years, stayed, placed on
three years of probation with
an actual two-year
suspension and until he
proves his rehabilitation, and
was ordered to take the
MPRE and comply with rule
955. Credit will be given for
an interim suspension that
began Jan. 7, 2002. The order
took effect March 3, 2004.
Longanbach, a former deputy
district attorney in San Diego
County, was convicted of
grant theft in 2001 after
admitting he worked on
private matters during work
hours and used the DA’s fax,
copy machine and
telephones for personal
purposes.
In mitigation, Longanbach
had no prior discipline
record, he cooperated with
the bar’s investigation and he
presented evidence of his
good character.
January 7, 2002
A former San Diego deputy
district attorney was placed
on interim suspension early
this year after pleading guilty
to one count of grand theft, a
charge that resulted from
conducting his real estate
business out of his office.
PETER JAMES LONGANBACH
[#48988], 56, of Rancho
Santa Fe, who once headed
the DA’s economic fraud unit,
lost his license Jan. 7.
Longanbach quit his job two
years ago after state
investigators searched his
home and office at the San
Diego Hall of Justice as part
of an investigation into his
financial dealings.
Although he could have been
sentenced to three years in
prison, Longanbach was
ordered last month to spend
350 hours teaching
underprivileged children to
play golf and to organize a
charity golf tournament. San
Diego Superior Court Judge
Kenneth So also placed
Longanbach on probation for
three years and ordered him
to spend one day in jail.
After a 17-month
investigation by the attorney
general, Longanbach was
indicted by a grand jury last
year on 12 felony charges
including misuse of public
funds, grand theft and
embezzlement. The
investigation was launched
when two secretaries
complained he was forcing
them to work on his personal
business during work hours.
Transcripts of the grand jury
testimony showed he used
employees to type personal
letters, prepare leases for
rental properties and run
errands. One secretary
testified she sometimes
spent between 50 and 75
percent of her work time on
Longanbach’s personal
business. An avid golfer, he
also was investigated for
playing golf during work
hours, but was never
charged with that offense.
In a plea bargain reached
with the attorney general,
Longanbach wrote, “I used
San Diego district attorney
staff to prepare personal
documents. I used San Diego
district attorney’s office fax,
copy machine and telephone
equipment for personal
purposes, and I worked on
private matters during
district attorney office hours.”
As part of the agreement, he
will pay San Diego County
$25,000 in restitution. The
judge said he opted for
probation rather than prison
because Longanbach had
never before been convicted
of a crime.
Over the course of the
investigation, 34 witnesses
testified before the grand
jury, most of them fellow
employees.
The grand theft plea was the
culmination of Longanbach’s
legal woes, which began
following his successful
prosecution of a 1996 murder
trial. An appeals court
overturned the defendant’s
second-degree murder
conviction two years later,
citing a legal error by the
judge.
A second trial was held amid
allegations by the defense
attorney that Longanbach
coached a key witness to lie.
The witness admitted she
perjured herself and
Longanbach, called as a
witness, took the Fifth
Amendment against self-
incrimination and refused to
answer questions.
The defendant was found
guilty last year of the less
serious charge of involuntary
manslaughter by a second
jury. He subsequently filed a
federal lawsuit against
Longanbach and the district
attorney’s office, charging
that the former prosecutor
engaged in criminal conduct
to win a murder conviction.
As a result of the murder
case, Longanbach became
the subject of a separate
criminal investigation by the
attorney general.
In addition, a San Diego
Superior Court judge ruled in
2000 that Longanbach
committed prosecutorial
misconduct in a 1998 grand
theft and forgery case. Judge
Judith Hayes said he “willfully
violated both the spirit and
the letter” of the law
requiring disclosure of
evidence.
Longanbach’s name is
playing a prominent role in
this month’s primary election
for district attorney in San
Diego, where Paul Pfingst,
seeking a third four-year
term, faces a challenge from
three other candidates.
Pfingst’s opponents say he
failed to discipline
Longanbach properly when
allegations were made
against him in 1998, pointing
to the investigation that
included a raid on the DA’s
downtown offices seeking
evidence. In addition, they
criticize Pfingst for giving
Longanbach a raise when he
knew about the secretaries’
complaints.
Judge:
Hayes, Judith Frances
Ritch
San Diego
Admission Date December
1977
Filed 6/1/06; pub. order 6/26/06
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
JEFF KACHA, Plaintiff and
Appellant, v. ALLSTATE
INSURANCE COMPANY,
Defendant and Respondent.
D046961
(Super. Ct. No. GIC829749)
The attorneys of record are:
Joseph S. Carmellino for Plaintiff
and Appellant.
Berger Kahn and Dale A. Amato
for Defendant and Respondent.
APPEAL from a judgment of the
Superior Court of San Diego
County, Judith F. Hayes,
Judge. Reversed with
directions.
This is an appeal from a
judgment confirming an
insurance appraisal award. It is
settled that "appraisers have the
power only to determine a specific
question of fact, 'namely, the
actual cash value of the insured
[item].' " (Safeco Ins. Co. v.
Sharma (1984) 160 Cal.App.3d
1060, 1063 (Sharma); Ins. Code, §
2071.) Plaintiff Jeff Kacha
contends the award here exceeds
the appraisers' jurisdiction as it
includes determinations of
whether certain damages were
covered by his insurer, defendant
Allstate Insurance Company
(Allstate), and the trial court erred
by finding he waived the
jurisdictional rule of Sharma and
section 2071. Kacha also
contends the court erred by finding
he is precluded from challenging
the appraisal award because he
took possession of, but did not
negotiate, checks Allstate provided
him to cover the award.
We agree with Kacha on
both points. We reverse
the judgment and direct
the trial court on remand
to enter an order vacating
the appraisal award.
FACTUAL AND PROCEDURAL
BACKGROUND
Kacha and his wife Tania Kacha's
custom home in the Scripps
Ranch area of San Diego was
completed in July 2002. In October
2003 the home and personal
property were damaged by heat
and smoke in a wildfire
designated the Cedar Fire.
Homes on three sides of Kacha's
property burned to the ground.
Allstate provided Kacha's
homeowners insurance. Allstate
valued the cost to clean the home
and contents at $25,799.77, and it
paid that amount to Kacha. Kacha
then retained Kevin Dawson, of
Professional Insurance
Evaluations, a licensed public
adjuster, to assist him in the
presentation of his claim. In
December 2003 Kacha
demanded an appraisal, as
provided by Allstate's policy if the
parties could not agree on the
amount of loss. In May 2004
Kacha submitted a sworn
statement claiming $639,688.82
in covered losses, supported by
inventories Dawson prepared. The
claim included the cleaning of
damaged property "when
applicable" and "the repair or
replacement of permanently
damaged property." The same
month, Kacha petitioned the
superior court to compel an
appraisal and appoint an umpire.
Allstate opposed the petition on
the ground of prematurity, arguing
an appraisal was inappropriate
until and unless the extent of
covered loss was established, on
which a value could be
determined. Allstate advised the
court that under Sharma, supra,
160 Cal.App.3d 1060, "an
appraisal panel is empowered to
determine the value of a loss and
not coverage issues, such as the
extent of the loss."
The court granted Kacha's motion
to compel an appraisal and
appointed the Honorable Anthony
Joseph, a retired superior court
judge, as umpire. Each of the
parties was entitled to choose an
arbitrator. Kacha chose Keith
Charleston and Allstate chose
Louis Heilbron. Under the policy, if
the parties' appraisers could not
agree on valuation, a written
award agreed on by Judge Joseph
and one of the appraisers would
determine valuation.
In an August 2004 letter, Judge
Joseph asked the parties to agree
on "a draft form for the award." The
following month Judge Joseph
renewed his request.
In late October 2004 Allstate
provided Kacha's attorney, Peter
Lawrence, and Dawson with a
draft form appraisal award. The
form included several pages of
damaged items Kacha claimed
were covered under the policy,
such as kitchen cabinets and
flooring, garage cabinets and
flooring, and carpet and interior
walls. For each item, the form
provided: "Damage, if any, to the
[e.g., kitchen cabinets] attributable
to the fire of October 26, 2003."
The form included a line for the
entry of a dollar amount for each
item.
The appraisal was held at Kacha's
home, on November 15 and 16,
2004, and January 4, 2005.
Allstate presented an appraisal
brief that stated, "[T]his is not your
standard appraisal where value of
the loss is the only issue; there
are still many issues regarding
the existence and scope of
damage that have not been
resolved between the parties. This
is due in large part to the insureds'
prematurely demanding appraisal
without coming to an agreement
upon a scope of loss or even
providing Allstate with the
specifics of their claim." The brief
asserted that damage to
numerous items was not caused
by smoke or heat from the Cedar
Fire.
DISPOSITION
...We reverse the judgment and
direct the trial court on remand to
enter an order granting Kacha's
petition and vacating the appraisal
award. Kacha is entitled to costs
on appeal.
MCCONNELL, P. J.
WE CONCUR:
MCINTYRE, J.
AARON, J.
Filed 6/26/06
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
JEFF KACHA, Plaintiff and
Appellant, v. ALLSTATE
INSURANCE COMPANY,
Defendant and Respondent.
D046961
(Super. Ct. No. GIC829749)
The attorneys of record are:
Joseph S. Carmellino for Plaintiff
and Appellant.
Berger Kahn and Dale A. Amato
for Defendant and Respondent.
APPEAL from a judgment of the
Superior Court of San Diego
County, Judith F. Hayes,
Judge. Reversed with
directions.
This is an appeal from a
judgment confirming an
insurance appraisal award. It is
settled that "appraisers have the
power only to determine a specific
question of fact, 'namely, the
actual cash value of the insured
[item].' " (Safeco Ins. Co. v.
Sharma (1984) 160 Cal.App.3d
1060, 1063 (Sharma); Ins. Code, §
2071.) Plaintiff Jeff Kacha
contends the award here exceeds
the appraisers' jurisdiction as it
includes determinations of
whether certain damages were
covered by his insurer, defendant
Allstate Insurance Company
(Allstate), and the trial court erred
by finding he waived the
jurisdictional rule of Sharma and
section 2071. Kacha also
contends the court erred by finding
he is precluded from challenging
the appraisal award because he
took possession of, but did not
negotiate, checks Allstate provided
him to cover the award.
We agree with Kacha on
both points. We reverse
the judgment and direct
the trial court on remand
to enter an order vacating
the appraisal award.
FACTUAL AND PROCEDURAL
BACKGROUND
Kacha and his wife Tania Kacha's
custom home in the Scripps
Ranch area of San Diego was
completed in July 2002. In October
2003 the home and personal
property were damaged by heat
and smoke in a wildfire
designated the Cedar Fire.
Homes on three sides of Kacha's
property burned to the ground.
Allstate provided Kacha's
homeowners insurance. Allstate
valued the cost to clean the home
and contents at $25,799.77, and it
paid that amount to Kacha. Kacha
then retained Kevin Dawson, of
Professional Insurance
Evaluations, a licensed public
adjuster, to assist him in the
presentation of his claim. In
December 2003 Kacha
demanded an appraisal, as
provided by Allstate's policy if the
parties could not agree on the
amount of loss. In May 2004
Kacha submitted a sworn
statement claiming $639,688.82
in covered losses, supported by
inventories Dawson prepared. The
claim included the cleaning of
damaged property "when
applicable" and "the repair or
replacement of permanently
damaged property." The same
month, Kacha petitioned the
superior court to compel an
appraisal and appoint an umpire.
Allstate opposed the petition on
the ground of prematurity, arguing
an appraisal was inappropriate
until and unless the extent of
covered loss was established, on
which a value could be
determined. Allstate advised the
court that under Sharma, supra,
160 Cal.App.3d 1060, "an
appraisal panel is empowered to
determine the value of a loss and
not coverage issues, such as the
extent of the loss."
The court granted Kacha's motion
to compel an appraisal and
appointed the Honorable Anthony
Joseph, a retired superior court
judge, as umpire. Each of the
parties was entitled to choose an
arbitrator. Kacha chose Keith
Charleston and Allstate chose
Louis Heilbron. Under the policy, if
the parties' appraisers could not
agree on valuation, a written
award agreed on by Judge Joseph
and one of the appraisers would
determine valuation.
In an August 2004 letter, Judge
Joseph asked the parties to agree
on "a draft form for the award." The
following month Judge Joseph
renewed his request.
In late October 2004 Allstate
provided Kacha's attorney, Peter
Lawrence, and Dawson with a
draft form appraisal award. The
form included several pages of
damaged items Kacha claimed
were covered under the policy,
such as kitchen cabinets and
flooring, garage cabinets and
flooring, and carpet and interior
walls. For each item, the form
provided: "Damage, if any, to the
[e.g., kitchen cabinets] attributable
to the fire of October 26, 2003."
The form included a line for the
entry of a dollar amount for each
item.
The appraisal was held at Kacha's
home, on November 15 and 16,
2004, and January 4, 2005.
Allstate presented an appraisal
brief that stated, "[T]his is not your
standard appraisal where value of
the loss is the only issue; there
are still many issues regarding
the existence and scope of
damage that have not been
resolved between the parties. This
is due in large part to the insureds'
prematurely demanding appraisal
without coming to an agreement
upon a scope of loss or even
providing Allstate with the
specifics of their claim." The brief
asserted that damage to
numerous items was not caused
by smoke or heat from the Cedar
Fire.
DISPOSITION
...We reverse the judgment and
direct the trial court on remand to
enter an order granting Kacha's
petition and vacating the appraisal
award. Kacha is entitled to costs
on appeal.
MCCONNELL, P. J.
WE CONCUR:
MCINTYRE, J.
AARON, J.
Filed 6/26/06
CERTIFIED FOR PUBLICATION
Judge JUDITH F. HAYES
Case Types: Civil
Department SD-68
Location: Hall of Justice
FIFTH FLOOR
330 W. Broadway
San Diego, CA 92101
Research attorney:
Monica Barry
Clerk: Patricia Legler
(formerly CARMEN M.
WALKER)
619-685-6147
(courtroom)
Cal. Clerk: ROSIE
PORTILLO
619-685-6026 (calendar
clerk)
Case Types: Civil
Department SD-68
Location: Hall of Justice
FIFTH FLOOR
330 W. Broadway
San Diego, CA 92101
Research attorney:
Monica Barry
Clerk: Patricia Legler
(formerly CARMEN M.
WALKER)
619-685-6147
(courtroom)
Cal. Clerk: ROSIE
PORTILLO
619-685-6026 (calendar
clerk)
Verdict: Defense verdict for both physicians
Medical Malpractice/Informed Consent - Administra-tion of general anesthesia during KTP turn-
binoplasty/septoplasty
Judge: Honorable Judith Hayes
Plaintiff counsel: David D. Miller
Defendants’ counsel: James D. Boley of Neil Dymott Frank McFall & Trexler and James J. Wallace
(Dr. Fenn)
Case Title: Lindsey Kalal v. Roger A. Barnes, M.D. et al
Case Number: GIC 855813
Settlement demand: $250,000Settlement offer: NoneTrial
Type: Jury trialTrial length: 6 days
Medical Malpractice/Informed Consent - Administra-tion of general anesthesia during KTP turn-
binoplasty/septoplasty
Judge: Honorable Judith Hayes
Plaintiff counsel: David D. Miller
Defendants’ counsel: James D. Boley of Neil Dymott Frank McFall & Trexler and James J. Wallace
(Dr. Fenn)
Case Title: Lindsey Kalal v. Roger A. Barnes, M.D. et al
Case Number: GIC 855813
Settlement demand: $250,000Settlement offer: NoneTrial
Type: Jury trialTrial length: 6 days
Dan Goldstein for
judge
Endorsements
(partial list)
Law Enforcement
San Diego Police Officers
Association
Chula Vista Police Officers
Association
La Mesa Police Officers
Association
Oceanside Police Officers
Association
National City Police Officers
Association
El Cajon Police Officers
Association
Coronado Police Officers
Association
Escondido Police Officers
Association
Peace Officers Research
Association of California
(PORAC)
San Diego Deputy Sheriffs
Association
California Correctional Peace
Officers Association
San Diego Deputy District
Attorneys Association
Women Prosecutors of
California
San Diego County Fraternal
Order of Police
San Diego District Attorney
Investigator’s Association
San Diegans Against Crime
Fire & Safety
San Diego City Firefighters
Chula Vista Firefighters
Association IAFF Local 2180
El Cajon Fire Firefighters
Association
National City Firefighters Local
2744
Oceanside Firefighters
Association
Rick Bury, Chief, Summerland-
Carpenteria Fire Department
Crime Victims Organizations &
Individuals
Crime Victims United
Doris Tate Crime Victims
Bureau
Citizens for Law and Order
Paula Myers, Current President
of the Victim’s Assistance
Coordinating Council and Victim
Services Director of Mothers
Against Drunk Driving San
Diego County
Susan Fisher, Executive
Director, Doris Tate Crime
Victims Bureau
Other Organizations
Republican Party of San Diego
County
San Diego-Imperial Counties
Central Labor Council
Fairbanks Republican Women
Federated
Elected Officials and
Community Leaders
California Assemblyman Jay
LaSuer
San Diego City Attorney Casey
Gwinn
Elmer Heap, San Diego Deputy
City Attorney
Mark Pettine, San Diego County
Deputy District
Attorney
Michael T. Smyth, Assistant to
Chief of Police/Judicial
Candidate
Borton, Petrini & Conron, LLP
Vincent Bartolotta
Rocky Copley
Leslie Devaney
Barry Jantz
Ken Turek
Robert Vaage
Henry Heater
George Kaelin
Jay Harn
Mike Neil
Superior Court Judges
Hon. Frank A. Brown
Hon. William S. Cannon
Hon. Timothy Casserly
Hon. Federico Castro (ret.)
Hon. Roy B. Cazares
Hon. Peter Deddeh
Hon. Vincent DiFiglia
Hon. H. Ronald Domnitz
Hon. Bonnie Dumanis
Hon. Harry M. Elias
Hon. Jeffrey F. Fraser
Hon. Gerald C. Jessop
Hon. Lisa Guy-Schall
Hon. Albert T. Harutunian III
Hon. Judith F. Hayes
Hon. Thomas C. Hendrix
Hon. K. Michael Kirkman
Hon. William H. Kronberger
Hon. Melinda J. Lasater
Hon. Joan M. Lewis
Hon. Frederic L. Link
Hon. Frederick Maguire
Hon. Runston G. Maino
Hon. Wesley R. Mason III
Hon. Dana M. Sabraw
Hon. Gus James Skropos (San
Bernardino County)
Hon. Michael Tynan (Los
Angeles County)
Hon. Ingrid Uhler (San
Bernardino County)
Hon. Michael D. Wellington
Hon. Browder A. Willis III
judge
Endorsements
(partial list)
Law Enforcement
San Diego Police Officers
Association
Chula Vista Police Officers
Association
La Mesa Police Officers
Association
Oceanside Police Officers
Association
National City Police Officers
Association
El Cajon Police Officers
Association
Coronado Police Officers
Association
Escondido Police Officers
Association
Peace Officers Research
Association of California
(PORAC)
San Diego Deputy Sheriffs
Association
California Correctional Peace
Officers Association
San Diego Deputy District
Attorneys Association
Women Prosecutors of
California
San Diego County Fraternal
Order of Police
San Diego District Attorney
Investigator’s Association
San Diegans Against Crime
Fire & Safety
San Diego City Firefighters
Chula Vista Firefighters
Association IAFF Local 2180
El Cajon Fire Firefighters
Association
National City Firefighters Local
2744
Oceanside Firefighters
Association
Rick Bury, Chief, Summerland-
Carpenteria Fire Department
Crime Victims Organizations &
Individuals
Crime Victims United
Doris Tate Crime Victims
Bureau
Citizens for Law and Order
Paula Myers, Current President
of the Victim’s Assistance
Coordinating Council and Victim
Services Director of Mothers
Against Drunk Driving San
Diego County
Susan Fisher, Executive
Director, Doris Tate Crime
Victims Bureau
Other Organizations
Republican Party of San Diego
County
San Diego-Imperial Counties
Central Labor Council
Fairbanks Republican Women
Federated
Elected Officials and
Community Leaders
California Assemblyman Jay
LaSuer
San Diego City Attorney Casey
Gwinn
Elmer Heap, San Diego Deputy
City Attorney
Mark Pettine, San Diego County
Deputy District
Attorney
Michael T. Smyth, Assistant to
Chief of Police/Judicial
Candidate
Borton, Petrini & Conron, LLP
Vincent Bartolotta
Rocky Copley
Leslie Devaney
Barry Jantz
Ken Turek
Robert Vaage
Henry Heater
George Kaelin
Jay Harn
Mike Neil
Superior Court Judges
Hon. Frank A. Brown
Hon. William S. Cannon
Hon. Timothy Casserly
Hon. Federico Castro (ret.)
Hon. Roy B. Cazares
Hon. Peter Deddeh
Hon. Vincent DiFiglia
Hon. H. Ronald Domnitz
Hon. Bonnie Dumanis
Hon. Harry M. Elias
Hon. Jeffrey F. Fraser
Hon. Gerald C. Jessop
Hon. Lisa Guy-Schall
Hon. Albert T. Harutunian III
Hon. Judith F. Hayes
Hon. Thomas C. Hendrix
Hon. K. Michael Kirkman
Hon. William H. Kronberger
Hon. Melinda J. Lasater
Hon. Joan M. Lewis
Hon. Frederic L. Link
Hon. Frederick Maguire
Hon. Runston G. Maino
Hon. Wesley R. Mason III
Hon. Dana M. Sabraw
Hon. Gus James Skropos (San
Bernardino County)
Hon. Michael Tynan (Los
Angeles County)
Hon. Ingrid Uhler (San
Bernardino County)
Hon. Michael D. Wellington
Hon. Browder A. Willis III
Central
6 week trial during first
3 months of 2009
Judge Judith Hayes
Jeffrey Wade
6 week trial during first
3 months of 2009
Judge Judith Hayes
Jeffrey Wade
Balestreri v. Neighborhood
Healthcare
Case Number: GIC 807852
Judge: Honorable Judith
Hayes
Plaintiff Counsel: Gideon
Sinasohn, Esq. of
Law Offices of Gideon E.
Sinasohn
Defense Counsel: Daniel S.
Belsky, Esq. of
Belsky & Associates
Type of Incident/Causes of
Action: Medical
Malpractice/failure to
diagnose spinal tumor
Settlement Demands:
Settlement Offers: Plaintiff
made CCP 998
offer for $229,999
Trial Type: Jury
Trial Length: 9 days
Verdict: Defens
Healthcare
Case Number: GIC 807852
Judge: Honorable Judith
Hayes
Plaintiff Counsel: Gideon
Sinasohn, Esq. of
Law Offices of Gideon E.
Sinasohn
Defense Counsel: Daniel S.
Belsky, Esq. of
Belsky & Associates
Type of Incident/Causes of
Action: Medical
Malpractice/failure to
diagnose spinal tumor
Settlement Demands:
Settlement Offers: Plaintiff
made CCP 998
offer for $229,999
Trial Type: Jury
Trial Length: 9 days
Verdict: Defens
Parker v. Spievak
Plaintiff: Robert Parker
Defendant: San Diego attorney James R. Spievak, a.k.a. "Jim Spievak" or "Jimmy"
Case number GIC876457 in San Diego Superior Court, filed December, 2006
Judge (original): Hon. Linda B. Quinn
Judge (final): Hon. Judith Hayes
Causes of Action (stated by Parker against Spievak)
* Legal Malpractice
* Fraud
* Breach of Contract
The underlying case: Defendant Spievak represented Parker in the underlying case of Parker v.
Behrouzi, filed May 2004, in which Parker and his wife sued neighboring tenants Behzad Behrouzi,
Kevin Scott Bourne, Don Barks, Benjamin Daggett, and their landlord, SDSU nurse-midwife program
coordinator Lauren Hunter.
Complaint Filed
August 2007
First Amended Complaint filed
November 2007
Settled, Spievak's malpractice insurance carrier paid Parker $20,000
Plaintiff: Robert Parker
Defendant: San Diego attorney James R. Spievak, a.k.a. "Jim Spievak" or "Jimmy"
Case number GIC876457 in San Diego Superior Court, filed December, 2006
Judge (original): Hon. Linda B. Quinn
Judge (final): Hon. Judith Hayes
Causes of Action (stated by Parker against Spievak)
* Legal Malpractice
* Fraud
* Breach of Contract
The underlying case: Defendant Spievak represented Parker in the underlying case of Parker v.
Behrouzi, filed May 2004, in which Parker and his wife sued neighboring tenants Behzad Behrouzi,
Kevin Scott Bourne, Don Barks, Benjamin Daggett, and their landlord, SDSU nurse-midwife program
coordinator Lauren Hunter.
Complaint Filed
August 2007
First Amended Complaint filed
November 2007
Settled, Spievak's malpractice insurance carrier paid Parker $20,000
02/11/10 10:30AM C-68 CV
Hayes, Judith F.
Motion Hearing
37-2007-00074942-CU-OE-CTL
Bruce Borad v. Grossmont
Union High School
Daniel R Shinoff
BRUCE BORAD,
Plaintiff and Respondent,
v.
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Defendant and Appellant.
Nos. D056606, D057142
Court of Appeals of California,
Fourth District, Division One.
Filed March 22, 2011.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
AARON, J.
I.
INTRODUCTION
In Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553 (Graham),
the Supreme Court held
that a plaintiff who causes a
defendant to change its
behavior in a private
attorney general action
pursuant to Code of Civil
Procedure section 1021.51
may be eligible to recover
attorney fees, even absent
a final judgment in favor of
the plaintiff. The Graham court
held that in order for a trial court to
award fees pursuant to the
so-called "catalyst theory" of
attorney fee recovery, the
record must contain
substantial evidence from
which the trial court may
determine that the lawsuit had
merit, which the Graham court
defined as "not `frivolous,
unreasonable or groundless'
[citation] . . . ." (Graham, supra, at
p. 575.) In a companion case,
Tipton-Whittingham v. City of Los
Angeles (2004) 34 Cal.4th 604, 610
(Tipton-Whittingham), the Supreme
Court held that this same
requirement applies to cases in
which a plaintiff seeks to recover
attorney fees pursuant to the
catalyst theory, under the Fair
Employment and Housing Act
(FEHA) (Gov. Code, § 12965, subd.
(b)).2
...In his briefing on appeal, Borad
repeats the same factual assertions
that he made in his brief in the trial
court, with no citation to evidence in
the record that would support such
assertions. Under these
circumstances, we must conclude
that Borad failed to present
substantial evidence that his lawsuit
had merit, as is required in order to
recover attorney fees under FEHA
pursuant to a catalyst theory. (See
Tipton-Whittingham, supra, 34
Cal.4th at p. 608; Graham, supra, 34
Cal.4th at pp. 575-577.) The trial
court thus erred in awarding Borad
attorney fees pursuant to a catalyst
theory.7
At the time Borad filed his motion in
the trial court, the law was clear that
a plaintiff seeking to recover attorney
fees pursuant to section 12965,
subdivision (b) was required to
present substantial evidence that
his lawsuit had merit.8 Borad is
therefore not entitled to attempt to
make such a showing on remand.
(Compare with Graham, supra, 34
Cal.4th at p. 577, fn. 8 [permitting
plaintiff to attempt to demonstrate
that lawsuit had merit on remand
because "previous iterations of the
catalyst theory did not clearly
establish that . . . was at issue"].)
IV.
DISPOSITION
The judgment and the
postjudgment attorney
fee order are reversed. The
matter is remanded to the trial court
with directions to enter a judgment
of dismissal in favor of the District.
The District is entitled to its costs on
appeal in D056606. Each party is to
bear its own costs on appeal in
D057142.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
Hayes, Judith F.
Motion Hearing
37-2007-00074942-CU-OE-CTL
Bruce Borad v. Grossmont
Union High School
Daniel R Shinoff
BRUCE BORAD,
Plaintiff and Respondent,
v.
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Defendant and Appellant.
Nos. D056606, D057142
Court of Appeals of California,
Fourth District, Division One.
Filed March 22, 2011.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
AARON, J.
I.
INTRODUCTION
In Graham v. DaimlerChrysler Corp.
(2004) 34 Cal.4th 553 (Graham),
the Supreme Court held
that a plaintiff who causes a
defendant to change its
behavior in a private
attorney general action
pursuant to Code of Civil
Procedure section 1021.51
may be eligible to recover
attorney fees, even absent
a final judgment in favor of
the plaintiff. The Graham court
held that in order for a trial court to
award fees pursuant to the
so-called "catalyst theory" of
attorney fee recovery, the
record must contain
substantial evidence from
which the trial court may
determine that the lawsuit had
merit, which the Graham court
defined as "not `frivolous,
unreasonable or groundless'
[citation] . . . ." (Graham, supra, at
p. 575.) In a companion case,
Tipton-Whittingham v. City of Los
Angeles (2004) 34 Cal.4th 604, 610
(Tipton-Whittingham), the Supreme
Court held that this same
requirement applies to cases in
which a plaintiff seeks to recover
attorney fees pursuant to the
catalyst theory, under the Fair
Employment and Housing Act
(FEHA) (Gov. Code, § 12965, subd.
(b)).2
...In his briefing on appeal, Borad
repeats the same factual assertions
that he made in his brief in the trial
court, with no citation to evidence in
the record that would support such
assertions. Under these
circumstances, we must conclude
that Borad failed to present
substantial evidence that his lawsuit
had merit, as is required in order to
recover attorney fees under FEHA
pursuant to a catalyst theory. (See
Tipton-Whittingham, supra, 34
Cal.4th at p. 608; Graham, supra, 34
Cal.4th at pp. 575-577.) The trial
court thus erred in awarding Borad
attorney fees pursuant to a catalyst
theory.7
At the time Borad filed his motion in
the trial court, the law was clear that
a plaintiff seeking to recover attorney
fees pursuant to section 12965,
subdivision (b) was required to
present substantial evidence that
his lawsuit had merit.8 Borad is
therefore not entitled to attempt to
make such a showing on remand.
(Compare with Graham, supra, 34
Cal.4th at p. 577, fn. 8 [permitting
plaintiff to attempt to demonstrate
that lawsuit had merit on remand
because "previous iterations of the
catalyst theory did not clearly
establish that . . . was at issue"].)
IV.
DISPOSITION
The judgment and the
postjudgment attorney
fee order are reversed. The
matter is remanded to the trial court
with directions to enter a judgment
of dismissal in favor of the District.
The District is entitled to its costs on
appeal in D056606. Each party is to
bear its own costs on appeal in
D057142.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
Judge Judith F. Hayes
(formerly Judith Frances Ritch) San Diego Superior Court
(formerly Judith Frances Ritch) San Diego Superior Court
What Civil Court Judges Want You to Know | Course Book (CD-
ROM ...
NBI
National Business Institute
Continuing Legal Education for Professionals
Oct 2, 2009 ... JUDITH F. HAYES is a civil trial judge in the Civil Division of the
Superior Court of California in the County of San Diego. Judge Hayes ...
These materials were originally developed to accompany the following event: What Civil Court Judges
Want You to Know, held in May 2008 in San Diego, CA., authored by the faculty.
Program Description
Reaching civil litigation case resolution depends on your ability to present your case in the best
possible light. Order today to receive practical suggestions for enhancing your courtroom
performance - from discovery, to motion hearings, to evidence, to handling juries - and increase your
chances of success in the courtroom!
Course Content
1. Case Management and Pretrial Conferences
2. Scheduling Orders
3. Effective and Ineffective Discovery Practices
4. Motion Hearings – When, Why, and How?
5. Judges' View on Technology in the Court Room
6. Trial Practice Tips In Civil Court
7. Voir Dire: Do's and Don'ts
8. Witnesses and Evidence: Mistakes to Avoid
9. Opening Statements and Closing Arguments
ROM ...
NBI
National Business Institute
Continuing Legal Education for Professionals
Oct 2, 2009 ... JUDITH F. HAYES is a civil trial judge in the Civil Division of the
Superior Court of California in the County of San Diego. Judge Hayes ...
These materials were originally developed to accompany the following event: What Civil Court Judges
Want You to Know, held in May 2008 in San Diego, CA., authored by the faculty.
Program Description
Reaching civil litigation case resolution depends on your ability to present your case in the best
possible light. Order today to receive practical suggestions for enhancing your courtroom
performance - from discovery, to motion hearings, to evidence, to handling juries - and increase your
chances of success in the courtroom!
Course Content
1. Case Management and Pretrial Conferences
2. Scheduling Orders
3. Effective and Ineffective Discovery Practices
4. Motion Hearings – When, Why, and How?
5. Judges' View on Technology in the Court Room
6. Trial Practice Tips In Civil Court
7. Voir Dire: Do's and Don'ts
8. Witnesses and Evidence: Mistakes to Avoid
9. Opening Statements and Closing Arguments
United Press International
12-18-1998
Man to stand trial in boy's killing
SAN DIEGO, Dec. 18 (UPI)
A judge has ruled that a drifter from
Wisconsin who confessed in court
to killing a 9-year-old boy in a
Southern California beach
restroom is competent to stand
trial.
San Diego Superior Court Judge
Judith Hayes ruled today that 20-
year- old Brandon Wilson should
stand trial for the Nov. 14 killing of
Matthew Cecchi (CHECK-ee) in a
beachside restroom at a
recreational vehicle park in
Oceanside, near San Diego.
Another judge had ordered…
12-18-1998
Man to stand trial in boy's killing
SAN DIEGO, Dec. 18 (UPI)
A judge has ruled that a drifter from
Wisconsin who confessed in court
to killing a 9-year-old boy in a
Southern California beach
restroom is competent to stand
trial.
San Diego Superior Court Judge
Judith Hayes ruled today that 20-
year- old Brandon Wilson should
stand trial for the Nov. 14 killing of
Matthew Cecchi (CHECK-ee) in a
beachside restroom at a
recreational vehicle park in
Oceanside, near San Diego.
Another judge had ordered…
Similar case, different
judge:
Pasadena Star-News
Wrong-Way Driver Fit to
Stand Trial
Pasadena Star-News
June 7, 2006 Pasadena Star-
News.
PASADENA -- A man
accused in a deadly wrong-
way collision on the Foothill
(210) Freeway almost six
years ago was declared
mentally competent to
stand trial by a judge
Wednesday.
Charles K. Bandaki, 56,
appeared in Pasadena
Superior Court with
bushy, gray hair fringing
his bald head. He opened
and closed his mouth
repetitively throughout
the short hearing.
Bandaki has been housed at
Patton State Hospital since
he was declared mentally
incapable of standing trial for
charges of second- degree
murder in the death of 22-
year-old Michael John
Sartinsky,…
judge:
Pasadena Star-News
Wrong-Way Driver Fit to
Stand Trial
Pasadena Star-News
June 7, 2006 Pasadena Star-
News.
PASADENA -- A man
accused in a deadly wrong-
way collision on the Foothill
(210) Freeway almost six
years ago was declared
mentally competent to
stand trial by a judge
Wednesday.
Charles K. Bandaki, 56,
appeared in Pasadena
Superior Court with
bushy, gray hair fringing
his bald head. He opened
and closed his mouth
repetitively throughout
the short hearing.
Bandaki has been housed at
Patton State Hospital since
he was declared mentally
incapable of standing trial for
charges of second- degree
murder in the death of 22-
year-old Michael John
Sartinsky,…
"In a decision that surprised some..."
--San Diego Daily Transcript
Court Dismisses Labor Agreement Case
I'm one of those that is surprised that Judge Judith Hayes would rule in favor of labor
unions, but NOT surprised that she would rule in favor of a school district (San Diego
Unified School District). The story involves the PSA (Project Stabilization Agreement)
regarding Proposition S funds.
--San Diego Daily Transcript
Court Dismisses Labor Agreement Case
I'm one of those that is surprised that Judge Judith Hayes would rule in favor of labor
unions, but NOT surprised that she would rule in favor of a school district (San Diego
Unified School District). The story involves the PSA (Project Stabilization Agreement)
regarding Proposition S funds.
Judge rules desal plant decision was appropriate
The Associated Press
Posted: 05/12/2009 07:41:53 PM PDT
SAN DIEGO—A San Diego judge has ruled against environmentalists who sued the California
Coastal Commission for approving construction of the largest desalination plant in the Western
Hemisphere.
The Surfrider Foundation and the Planning and Conservation League had argued the commission
failed to require the developer to reduce the amount of marine life that would be killed in the
desalination process in Carlsbad.
Superior Court Judge Judith Hayes ruled Tuesday that the commission's approval of the project in
2007 did not violate the state water code. The judge noted that the commission required the
developer, Poseidon Resources, to restore 55 acres of wetlands.
Surfrider has two other lawsuits scheduled for trial next month before Judge Hayes regarding the
plant's lease and permit.
The Associated Press
Posted: 05/12/2009 07:41:53 PM PDT
SAN DIEGO—A San Diego judge has ruled against environmentalists who sued the California
Coastal Commission for approving construction of the largest desalination plant in the Western
Hemisphere.
The Surfrider Foundation and the Planning and Conservation League had argued the commission
failed to require the developer to reduce the amount of marine life that would be killed in the
desalination process in Carlsbad.
Superior Court Judge Judith Hayes ruled Tuesday that the commission's approval of the project in
2007 did not violate the state water code. The judge noted that the commission required the
developer, Poseidon Resources, to restore 55 acres of wetlands.
Surfrider has two other lawsuits scheduled for trial next month before Judge Hayes regarding the
plant's lease and permit.
Funeral director admits to embezzlement
2003
SAN DIEGO, California (AP) -- A funeral director was sentenced to three years in prison
for embezzling nearly $400,000 from elderly clients and spending some of the money to
buy gifts for exotic dancers.
Houston Quick Jr., 55, was sentenced Thursday and ordered to never again work in the
funeral business.
Quick stole from clients who paid about $500 each to handle their cremations. He
transferred money from more than 500 families to a private account for his personal use,
prosecutor Tricia Pummill said.
Quick told court officials that he used 75 percent of the money on advertising for his
business, Caring Cremation Services, and 25 percent on "good times" with two strippers.
He never paid them for sex, according to a county probation report.
Defense attorneys said Quick is being treated for bipolar disorder.
"He'd get on these highs, and things went entirely wrong," defense attorney Lynn Ball
told San Diego Superior Court Judge Judith Hayes. "Then he'd get in his lows and
be very regretful."
Pummill said Quick has repaid $125,118 and plans to raise another $105,000 by taking
out a loan on the house he shares with his wife and two teenage children.
Pummill said the families likely will get at least half of their money reimbursed.
Authorities said they have no evidence that Quick lost or mixed up the remains of any
clients.
2003
SAN DIEGO, California (AP) -- A funeral director was sentenced to three years in prison
for embezzling nearly $400,000 from elderly clients and spending some of the money to
buy gifts for exotic dancers.
Houston Quick Jr., 55, was sentenced Thursday and ordered to never again work in the
funeral business.
Quick stole from clients who paid about $500 each to handle their cremations. He
transferred money from more than 500 families to a private account for his personal use,
prosecutor Tricia Pummill said.
Quick told court officials that he used 75 percent of the money on advertising for his
business, Caring Cremation Services, and 25 percent on "good times" with two strippers.
He never paid them for sex, according to a county probation report.
Defense attorneys said Quick is being treated for bipolar disorder.
"He'd get on these highs, and things went entirely wrong," defense attorney Lynn Ball
told San Diego Superior Court Judge Judith Hayes. "Then he'd get in his lows and
be very regretful."
Pummill said Quick has repaid $125,118 and plans to raise another $105,000 by taking
out a loan on the house he shares with his wife and two teenage children.
Pummill said the families likely will get at least half of their money reimbursed.
Authorities said they have no evidence that Quick lost or mixed up the remains of any
clients.
Transient sentenced in
death of elderly California
woman
The Associated Press
SAN DIEGO (AP) - A
transient has been
sentenced to 15 years to life
in prison in the death of an
elderly woman he punched in
the face when she refused to
give him money.
Superior Court Judge
Judith Hayes on Monday
also ordered Eric John
Martin, 34, to pay $12,000
restitution.
Martin was convicted of
punching Eva Lopez, 84, at a
restaurant after she and her
daughter refused to give him
money.
Prosecutors said Martin hit
Lopez, causing her to fall
into a seat. She was
unconscious when an
ambulance arrived and died
at a hospital.
death of elderly California
woman
The Associated Press
SAN DIEGO (AP) - A
transient has been
sentenced to 15 years to life
in prison in the death of an
elderly woman he punched in
the face when she refused to
give him money.
Superior Court Judge
Judith Hayes on Monday
also ordered Eric John
Martin, 34, to pay $12,000
restitution.
Martin was convicted of
punching Eva Lopez, 84, at a
restaurant after she and her
daughter refused to give him
money.
Prosecutors said Martin hit
Lopez, causing her to fall
into a seat. She was
unconscious when an
ambulance arrived and died
at a hospital.
News: Californian
February 26, 2004
Local contractors guilty of tax evasion
By: Staff and wire reports
SAN DIEGO ---- Two San Diego County men who owned several Southern California
construction companies pleaded guilty to tax evasion and agreed to make $1.2
million in restitution.
The men, Robert Covington, 44, of Fallbrook and Donald Huffman, 62, of Del Mar are
scheduled to be sentenced March 25 by Superior Court Judge Judith Hayes.
As a result of a plea bargain, the defendants face up to five years and eight months in
prison.
Covington and Huffman paid restitution of more than $182,000 to the Franchise Tax Board. The
payments include delinquent tax, interest and the cost of the investigation, state officials said.
The defendants will have to pay additional restitution of more than $1 million to the Employment
Development Department and the State Compensation Insurance Fund within 90 days, officials said.
According to court documents, Covington and Huffman indirectly owned and operated C&H Framing,
an area construction company.
Court documents indicate that C&H Framing was involved in a "cash pay" scheme involving
subcontractors James Joseph, doing business as Joseph and Sons Construction, and Frederick
Flores, doing business as Pacific Landmark Framing.
The fraudulent scheme illegally reduced their company payroll taxes and workers' compensation
insurance through cash payments erroneously reported as "cost of goods sold," court documents
stated.
As a result, C&H Framing overstated its expenses by more than $1.8 million for the tax years ending
1999, 2000 and 2001, according to the documents.
Covington and Huffman pleaded guilty to six felony counts, including state income tax evasion,
conspiracy to file false tax returns, payroll tax evasion and insurance fraud.
Joseph and Flores pleaded guilty to similar tax evasion charges and are awaiting sentencing.
---- City News Service
February 26, 2004
Local contractors guilty of tax evasion
By: Staff and wire reports
SAN DIEGO ---- Two San Diego County men who owned several Southern California
construction companies pleaded guilty to tax evasion and agreed to make $1.2
million in restitution.
The men, Robert Covington, 44, of Fallbrook and Donald Huffman, 62, of Del Mar are
scheduled to be sentenced March 25 by Superior Court Judge Judith Hayes.
As a result of a plea bargain, the defendants face up to five years and eight months in
prison.
Covington and Huffman paid restitution of more than $182,000 to the Franchise Tax Board. The
payments include delinquent tax, interest and the cost of the investigation, state officials said.
The defendants will have to pay additional restitution of more than $1 million to the Employment
Development Department and the State Compensation Insurance Fund within 90 days, officials said.
According to court documents, Covington and Huffman indirectly owned and operated C&H Framing,
an area construction company.
Court documents indicate that C&H Framing was involved in a "cash pay" scheme involving
subcontractors James Joseph, doing business as Joseph and Sons Construction, and Frederick
Flores, doing business as Pacific Landmark Framing.
The fraudulent scheme illegally reduced their company payroll taxes and workers' compensation
insurance through cash payments erroneously reported as "cost of goods sold," court documents
stated.
As a result, C&H Framing overstated its expenses by more than $1.8 million for the tax years ending
1999, 2000 and 2001, according to the documents.
Covington and Huffman pleaded guilty to six felony counts, including state income tax evasion,
conspiracy to file false tax returns, payroll tax evasion and insurance fraud.
Joseph and Flores pleaded guilty to similar tax evasion charges and are awaiting sentencing.
---- City News Service
Judge orders jail for teen who threatened Santee, Calif., students
BEN FOX, Associated Press August 24, 2001
SAN DIEGO
A teen-ager was sentenced to six months in jail Friday for sending threatening Internet messages
to San Diego-area students just days after a fatal school shooting there.
Patrick Andrew Smith, 18, pleaded guilty last month to sending violent threats to two teen-age girls
from Santee, Calif., including one that said he would "try to finish what Andy didn't complete."
The message referred to Charles Andrew "Andy" Williams, the 15-year-old charged with killing two
people and wounding 13 at Santana High School in Santee on March 5, prosecutors said.
Smith has said he only sent the messages as a joke.
"The fact is there were people who were very directly harmed by your words," Superior Court Judge
Judith Hayes told Smith before imposing the sentence.
Smith, of Walkersville, Md., had been free on bail. With credit for time served since his arrest, he will
serve 48 more days in county jail.
He also will serve three years probation and is prohibited from using Internet chat rooms during that
time, the judge said.
The prosecutor argued for a one year sentence, saying the threats caused heightened fear
following the shooting.
Defense attorney Stephen Cline said Smith is an emotionally troubled teen with no criminal record
whose threats were "unfathomably stupid" but intended only as a prank.
Smith apologized for his "cruel and insensitive actions" in a statement he read before sentencing.
He said he made the threats because he hadn't taken his medication for depression.
BEN FOX, Associated Press August 24, 2001
SAN DIEGO
A teen-ager was sentenced to six months in jail Friday for sending threatening Internet messages
to San Diego-area students just days after a fatal school shooting there.
Patrick Andrew Smith, 18, pleaded guilty last month to sending violent threats to two teen-age girls
from Santee, Calif., including one that said he would "try to finish what Andy didn't complete."
The message referred to Charles Andrew "Andy" Williams, the 15-year-old charged with killing two
people and wounding 13 at Santana High School in Santee on March 5, prosecutors said.
Smith has said he only sent the messages as a joke.
"The fact is there were people who were very directly harmed by your words," Superior Court Judge
Judith Hayes told Smith before imposing the sentence.
Smith, of Walkersville, Md., had been free on bail. With credit for time served since his arrest, he will
serve 48 more days in county jail.
He also will serve three years probation and is prohibited from using Internet chat rooms during that
time, the judge said.
The prosecutor argued for a one year sentence, saying the threats caused heightened fear
following the shooting.
Defense attorney Stephen Cline said Smith is an emotionally troubled teen with no criminal record
whose threats were "unfathomably stupid" but intended only as a prank.
Smith apologized for his "cruel and insensitive actions" in a statement he read before sentencing.
He said he made the threats because he hadn't taken his medication for depression.
VOICES FROM THE GULAG
ATASCADERO STATE
HOSPRISON SVP
NEWSLETTER ...
May 14, 2000 ... San Diego
Superior Court judge Judith
Hayes denied the dismissal
motion and denied the
motion for a stay. The judge
did transfer venue here ...
detainees.
ATASCADERO STATE
HOSPRISON SVP
NEWSLETTER ...
May 14, 2000 ... San Diego
Superior Court judge Judith
Hayes denied the dismissal
motion and denied the
motion for a stay. The judge
did transfer venue here ...
detainees.
Retirement Group v. Galante (see decision)
Metropolitan News-Enterprise
Friday, August 21, 2009
C.A. Tosses Injunction Against Solicitation of Former Employer’s
Clients
By SHERRI M. OKAMOTO, Staff Writer
The Fourth District Court of Appeal has thrown out the portion of a preliminary injunction preventing five
financial advisors from soliciting their former employer’s customers to transfer their patronage to a
competing brokerage firm.
In a July 30 decision ordered published yesterday, Div. One explained that a trial court cannot
specifically enforce a contractual clause purporting to ban former employees
from soliciting an employer’s customers unless such injunctive relief is based
on the former employees’ independently tortious acts.
The panel then reversed San Diego Superior Court Judge Judith
F. Hayes’ order enjoining James Galante, Michael Lambrix, Tim
Sullivan, Jeremy Laub, and Shawn McElderry from contacting
the former and potential clients of The Retirement Group.
The Retirement Group—which bills itself as “a group of financial professionals who focus entirely on
retirement planning and the design of retirement portfolios for the corporate transitioning employee”—
claimed that it spent substantial resources to develop a customer database through seminars and other
marketing efforts throughout the country.
Before the advisors terminated their independent contractor status with The Retirement Group and
joined Monarch Retirement & Investments in 2008, they had signed a written “Marketing and License
Agreement” in which they promised not to “disclose or use” the confidential database information after
leaving the company.
Alleging that the advisors had misappropriated trade secrets by using contact information from its
confidential database to contact clients and solicit them for the rival company, The Retirement Group
sought and obtained a preliminary injunction that enjoined numerous categories of conduct.
On appeal, the only aspect of the preliminary injunction challenged was a prohibition against the
advisors from “[d]irectly or indirectly soliciting any current TRG [customers] to transfer any securities
account or relationship from TRG to [advisors] or any broker-dealer or registered investment advisor
other than TRG[.]”
Writing for the appellate court, Justice Alex C. McDonald acknowledged
“two competing strands of legal principles in California” were at issue in
this case.
“The first strand, on which Advisors rely, provides that California courts
refuse to enforce most ‘noncompetition’ agreements as violative of a
strong public policy… favoring free competition” he said.
“The competing strand, on which TRG relies, provides that California
courts will protect an employer from the misappropriation of its trade
secrets by anyone, including its former employees.”
Based on these principles, McDonald reasoned that an employee may be barred from soliciting existing
customers to redirect their business away from the former employer and to the employee’s new
business if the employee is utilizing trade secret information to solicit those customers, emphasizing “it
is not the solicitation of the former employer’s customers, but is instead the misuse of trade secret
information, that may be enjoined.”
While client lists can qualify as trade secrets, McDonald added, lists that embody information readily
ascertainable through public sources do not qualify for protection.
As The Retirement Group did not dispute the advisor’s claim that customer information could be
obtained from independent third party sources, McDonald said the client database was not
protectable trade secret information.
The injunctive provision challenged on appeal therefore only served to bar the advisors from engaging in
conduct that was substantively indistinguishable from the contractually proscribed conduct in a
noncompetition agreement, he said. Since such a covenant is void as an unlawful business restraint
unless enforcement is necessary to protect a trade secret, McDonald concluded the challenged
portion of the injunction could not be upheld.
Joined by Justices Gilbert Nares and Terry B. O’Rourke, McDonald said
the trial court must vacate the preliminary injunction and enter a new and
different injunction deleting the language enjoining advisors from “directly
or indirectly soliciting any current TRG customers to transfer any securities account or
relationship from TRG to defendants or any broker-dealer or registered investment advisor other than
TRG.”
The case is The Retirement Group v. Galante, 09 S.O.S. 5079.
Metropolitan News-Enterprise
Friday, August 21, 2009
C.A. Tosses Injunction Against Solicitation of Former Employer’s
Clients
By SHERRI M. OKAMOTO, Staff Writer
The Fourth District Court of Appeal has thrown out the portion of a preliminary injunction preventing five
financial advisors from soliciting their former employer’s customers to transfer their patronage to a
competing brokerage firm.
In a July 30 decision ordered published yesterday, Div. One explained that a trial court cannot
specifically enforce a contractual clause purporting to ban former employees
from soliciting an employer’s customers unless such injunctive relief is based
on the former employees’ independently tortious acts.
The panel then reversed San Diego Superior Court Judge Judith
F. Hayes’ order enjoining James Galante, Michael Lambrix, Tim
Sullivan, Jeremy Laub, and Shawn McElderry from contacting
the former and potential clients of The Retirement Group.
The Retirement Group—which bills itself as “a group of financial professionals who focus entirely on
retirement planning and the design of retirement portfolios for the corporate transitioning employee”—
claimed that it spent substantial resources to develop a customer database through seminars and other
marketing efforts throughout the country.
Before the advisors terminated their independent contractor status with The Retirement Group and
joined Monarch Retirement & Investments in 2008, they had signed a written “Marketing and License
Agreement” in which they promised not to “disclose or use” the confidential database information after
leaving the company.
Alleging that the advisors had misappropriated trade secrets by using contact information from its
confidential database to contact clients and solicit them for the rival company, The Retirement Group
sought and obtained a preliminary injunction that enjoined numerous categories of conduct.
On appeal, the only aspect of the preliminary injunction challenged was a prohibition against the
advisors from “[d]irectly or indirectly soliciting any current TRG [customers] to transfer any securities
account or relationship from TRG to [advisors] or any broker-dealer or registered investment advisor
other than TRG[.]”
Writing for the appellate court, Justice Alex C. McDonald acknowledged
“two competing strands of legal principles in California” were at issue in
this case.
“The first strand, on which Advisors rely, provides that California courts
refuse to enforce most ‘noncompetition’ agreements as violative of a
strong public policy… favoring free competition” he said.
“The competing strand, on which TRG relies, provides that California
courts will protect an employer from the misappropriation of its trade
secrets by anyone, including its former employees.”
Based on these principles, McDonald reasoned that an employee may be barred from soliciting existing
customers to redirect their business away from the former employer and to the employee’s new
business if the employee is utilizing trade secret information to solicit those customers, emphasizing “it
is not the solicitation of the former employer’s customers, but is instead the misuse of trade secret
information, that may be enjoined.”
While client lists can qualify as trade secrets, McDonald added, lists that embody information readily
ascertainable through public sources do not qualify for protection.
As The Retirement Group did not dispute the advisor’s claim that customer information could be
obtained from independent third party sources, McDonald said the client database was not
protectable trade secret information.
The injunctive provision challenged on appeal therefore only served to bar the advisors from engaging in
conduct that was substantively indistinguishable from the contractually proscribed conduct in a
noncompetition agreement, he said. Since such a covenant is void as an unlawful business restraint
unless enforcement is necessary to protect a trade secret, McDonald concluded the challenged
portion of the injunction could not be upheld.
Joined by Justices Gilbert Nares and Terry B. O’Rourke, McDonald said
the trial court must vacate the preliminary injunction and enter a new and
different injunction deleting the language enjoining advisors from “directly
or indirectly soliciting any current TRG customers to transfer any securities account or
relationship from TRG to defendants or any broker-dealer or registered investment advisor other than
TRG.”
The case is The Retirement Group v. Galante, 09 S.O.S. 5079.
Sanchez v. SDCOE
Asthma coronary at camp
Transferred to Judge Judith
Hayes (?!) from Judge Quinn
10/10/08 10:30AM C-68
Hayes, Judith F.
Summary Judgment
GIC880054
D)McCabe Union School Distr
D)San Diego County Office of
Education
Daniel R. Shinoff
12/18/07 01:30PM C-74
Quinn, Linda B.
Demurrer / Moti GIC880054
D)McCabe Union School Distr
DANIEL R. SHINOFF
D)San Diego County Office of
Education
DANIEL R. SHINOFF
Case Title: SANCHEZ VS
SAN DIEGO COUNTY OFFICE
OF EDUCATION
Case Number: GIC880054
Case Location: San Diego
Case Type: Civil
Date Filed: 02/13/2007
Category: CU-PO PI/PD/WD -
Other
Plaintiff/Petitioner
SANCHEZ OCTAVIO P
SANCHEZ VIRGINIA
Defendant/Respondent
SAN DIEGO COUNTY
OFFICE OF EDUCATION
CAMP DENVER C FOX
MCCABE UNION SCHOOL
DISTRICT
Asthma coronary at camp
Transferred to Judge Judith
Hayes (?!) from Judge Quinn
10/10/08 10:30AM C-68
Hayes, Judith F.
Summary Judgment
GIC880054
D)McCabe Union School Distr
D)San Diego County Office of
Education
Daniel R. Shinoff
12/18/07 01:30PM C-74
Quinn, Linda B.
Demurrer / Moti GIC880054
D)McCabe Union School Distr
DANIEL R. SHINOFF
D)San Diego County Office of
Education
DANIEL R. SHINOFF
Case Title: SANCHEZ VS
SAN DIEGO COUNTY OFFICE
OF EDUCATION
Case Number: GIC880054
Case Location: San Diego
Case Type: Civil
Date Filed: 02/13/2007
Category: CU-PO PI/PD/WD -
Other
Plaintiff/Petitioner
SANCHEZ OCTAVIO P
SANCHEZ VIRGINIA
Defendant/Respondent
SAN DIEGO COUNTY
OFFICE OF EDUCATION
CAMP DENVER C FOX
MCCABE UNION SCHOOL
DISTRICT
Daniel Shinoff /Stutz
Artiano Shinoff & Holtz
cases heard by Judge
Hayes
Artiano Shinoff & Holtz
cases heard by Judge
Hayes
continued at: Digital Cornerstone v. Kevin Carmony
Judge Judith Hayes' decision in Carmony case
Judge Judith Hayes' decision in Carmony case
Contrary to what Judge
Hayes claims,
manslaughter does NOT
involve planning.
Manslaughter does NOT involve
going to another location to get
a weapon, and then coming
back to where the two victims
are. Judge Hayes should have
listened to all the evidence
before deciding the killer's state
of mind in this case.
From San Diego
Union Tribune
article about Hayes'
ouster from Criminal
Court:
"...Judge Judith] Hayes was
boycotted just months after
Dumanis took office in 2003.
The former state and federal
prosecutor now hears civil
cases in downtown San Diego.
She was challenged soon after
dismissing murder charges in
the middle of a trial against
Michael Savala, who was
accused of fatally shooting two
bouncers at a Bonita restaurant
after the prosecution had
presented its case. Hayes said
the slayings were not
premeditated murder but were
committed in the heat of passion
— “a classic voluntary
manslaughter,” as she said.
Savala eventually pleaded guilty
to that lesser charge and
received a 13-year
sentence...
The case looked very
different at the start of
the trial, when a life
sentence without
parole was considered
possible:
Hayes claims,
manslaughter does NOT
involve planning.
Manslaughter does NOT involve
going to another location to get
a weapon, and then coming
back to where the two victims
are. Judge Hayes should have
listened to all the evidence
before deciding the killer's state
of mind in this case.
From San Diego
Union Tribune
article about Hayes'
ouster from Criminal
Court:
"...Judge Judith] Hayes was
boycotted just months after
Dumanis took office in 2003.
The former state and federal
prosecutor now hears civil
cases in downtown San Diego.
She was challenged soon after
dismissing murder charges in
the middle of a trial against
Michael Savala, who was
accused of fatally shooting two
bouncers at a Bonita restaurant
after the prosecution had
presented its case. Hayes said
the slayings were not
premeditated murder but were
committed in the heat of passion
— “a classic voluntary
manslaughter,” as she said.
Savala eventually pleaded guilty
to that lesser charge and
received a 13-year
sentence...
The case looked very
different at the start of
the trial, when a life
sentence without
parole was considered
possible:
Judge Judith Hayes' inconsistencies in two cases about
websites and free speech
Stutz v. Larkins (defamation suit) and Digital Cornerstone v. Kevin Carmony
resulted in a shockingly different decisions from Judith Hayes.
Judith Hayes believes in free speech for some people, as shown by this ruling from Judge Hayes in
the Digital Cornerstone v. Kevin Carmony case:
"...the Defendant had a bona fide noncommercial use for the website, the Court finds the general
purpose of the website to be a free speech forum wherein Defendant criticized the management of
Plaintiff...the Defendant at no time harbored a bad faith intent to profit from a registered mark and
that his use of the website undertaken to inform consumers and criticize Plaintiff's management
constituted a lawful use of the site."
But Judge Hayes came to a very different conclusion about free speech in a case where there was
no attempt to fool people about who owned the website, and no profit was made.
websites and free speech
Stutz v. Larkins (defamation suit) and Digital Cornerstone v. Kevin Carmony
resulted in a shockingly different decisions from Judith Hayes.
Judith Hayes believes in free speech for some people, as shown by this ruling from Judge Hayes in
the Digital Cornerstone v. Kevin Carmony case:
"...the Defendant had a bona fide noncommercial use for the website, the Court finds the general
purpose of the website to be a free speech forum wherein Defendant criticized the management of
Plaintiff...the Defendant at no time harbored a bad faith intent to profit from a registered mark and
that his use of the website undertaken to inform consumers and criticize Plaintiff's management
constituted a lawful use of the site."
But Judge Hayes came to a very different conclusion about free speech in a case where there was
no attempt to fool people about who owned the website, and no profit was made.
The possible explanations for her behavior in my case are considerably narrowed by her recent
ruling in Digital Cornerstone v. Kevin Carmony.
One difference between my case and the Kevin Carmony case is that I'm a school teacher, not a
CEO, and I'm representing myself. Judge Hayes apparently sees me as someone whose rights can
be easily violated, and no one will notice.
Clearly, she sees Stutz Artiano Shinoff & Holtz law firm as a group of people whom no schoolteacher
should ever criticize, no matter how much money they charge the public or how many documents
they refuse to produce. The firm walked out of its deposition, and the lawyer most involved in my
case refused to show up for his deposition. This was fine with Judge Hayes. I wonder if Digital
Cornerstone also walked out of its deposition?
I'm sure Carmony's lawyer Gil Cabrera wouldn't let the plaintiff and Judge Hayes get away with such
shenanigans. I'm trusting that in my case, the Court of Appeal will put a stop to the shenanigans of
Stutz law firm and Judge Hayes. The odd thing is that my case is much clearer and simpler than the
Carmony case. My website is a purely public interest website. I never allowed advertisements on it,
much less advertisements from competitors of the people I criticized. I never paid a premium
($6000) to get a domain name that was likely to fool people into thinking my site was owned by the
very people I was criticizing, as Carmony did. My site has my own name: mauralarkins.com. Judge
Hayes and her research attorney Monica Barry should have had no trouble seeing that my case was
completely different from Del Junco v. Hufnagel, particularly since they found a difference between
Freespire.com and the website in the Del Junco case...
ruling in Digital Cornerstone v. Kevin Carmony.
One difference between my case and the Kevin Carmony case is that I'm a school teacher, not a
CEO, and I'm representing myself. Judge Hayes apparently sees me as someone whose rights can
be easily violated, and no one will notice.
Clearly, she sees Stutz Artiano Shinoff & Holtz law firm as a group of people whom no schoolteacher
should ever criticize, no matter how much money they charge the public or how many documents
they refuse to produce. The firm walked out of its deposition, and the lawyer most involved in my
case refused to show up for his deposition. This was fine with Judge Hayes. I wonder if Digital
Cornerstone also walked out of its deposition?
I'm sure Carmony's lawyer Gil Cabrera wouldn't let the plaintiff and Judge Hayes get away with such
shenanigans. I'm trusting that in my case, the Court of Appeal will put a stop to the shenanigans of
Stutz law firm and Judge Hayes. The odd thing is that my case is much clearer and simpler than the
Carmony case. My website is a purely public interest website. I never allowed advertisements on it,
much less advertisements from competitors of the people I criticized. I never paid a premium
($6000) to get a domain name that was likely to fool people into thinking my site was owned by the
very people I was criticizing, as Carmony did. My site has my own name: mauralarkins.com. Judge
Hayes and her research attorney Monica Barry should have had no trouble seeing that my case was
completely different from Del Junco v. Hufnagel, particularly since they found a difference between
Freespire.com and the website in the Del Junco case...
A Completely
Different Judge
Hayes: Leigh
Frizzell Hayes in
South Florida
My Life So Far: The honorable
Leigh Frizzell Hayes, county
judge
By VIVEK KEMP
Naples Daily News
February 20, 2007
There are rules you must
follow when you address Leigh
Frizzell Hayes at work: Turn off
your cell phone. Remove your
hat. Always show respect. And
whenever possible, refer to her
as "your honor."
Failure to follow these rules
may result in contempt of court
charges and a night in jail.
Judge Hayes has spent the
past 10 years behind the
bench and says she's seen
the area shift from a fishing
village to a metropolis laced
with all the crime and drama of
a big city.
"We were backwater as a kid,"
she says. "Now Fort Myers has
all the style and bustle of
places like Fort Lauderdale."
The 51-year-old Fort Myers
native grew up near the Edison
Estate. Her grandfather once
owned a hardware store
across from the courthouse
where she now works. The
store has been replaced with a
Wachovia bank building, in
which defendants can pay their
speeding tickets.
Her father, an architect,
designed many buildings
throughout the area, including
the William R. Frizzell Cultural
Center on McGregor and
Colonial Fort Myers.
"I have a strong connection to
this area," she says. "I've spent
my whole life here."
Judge Leigh Frizzell Hayes
swears in a defendant at the
Lee County Courthouse in Fort
Myers on Friday morning.
Hayes was elected as a judge
10 years ago. I've seen a lot of
changes,î she says. In those
10 years Hayes has seen and
heard nearly every kind of court
case. We had a woman on the
criminal docket who would
come to court with different
color hair each time,î she says.
Photo by TRISTAN SPINSKI,
Daily News
Buy this photo »
Judge Leigh Frizzell Hayes
swears in a defendant at the
Lee County Courthouse in Fort
Myers on Friday morning.
Hayes was elected as a judge
10 years ago. I've seen a lot of
changes,î she says. In those
10 years Hayes has seen and
heard nearly every kind of court
case. We had a woman on the
criminal docket who would
come to court with different
color hair each time,î she says.
As a judge, she sees an
average of 700 cases a day
and says the number probably
will increase as Southwest
Florida continues to grow in
popularity.
Hayes has also seen the
language of her court shift from
nearly all English to at least
half-Spanish.
One more change — TV
shows. Programs like "Judge
Judy" and "Boston Legal" effect
how defendants approach the
court, she says. "We have to
remind people this isn't a
television show," she says.
Since the recent death of her
husband, Bill Hayes, the court
has become a place of solace.
"I can change people's lives
with the decisions I make," she
says. "But the bench has also
helped me deal with the
changes in my life. This is a
fascinating job."
For the most part, the people I
see are not bad people. They
make bad decisions, some of
them, but they're usually not
evil. When I read in the paper
that somebody's been arrested
for killing someone, or is the
victim of the murder, I often
know the person from a traffic
case in my court...
Different Judge
Hayes: Leigh
Frizzell Hayes in
South Florida
My Life So Far: The honorable
Leigh Frizzell Hayes, county
judge
By VIVEK KEMP
Naples Daily News
February 20, 2007
There are rules you must
follow when you address Leigh
Frizzell Hayes at work: Turn off
your cell phone. Remove your
hat. Always show respect. And
whenever possible, refer to her
as "your honor."
Failure to follow these rules
may result in contempt of court
charges and a night in jail.
Judge Hayes has spent the
past 10 years behind the
bench and says she's seen
the area shift from a fishing
village to a metropolis laced
with all the crime and drama of
a big city.
"We were backwater as a kid,"
she says. "Now Fort Myers has
all the style and bustle of
places like Fort Lauderdale."
The 51-year-old Fort Myers
native grew up near the Edison
Estate. Her grandfather once
owned a hardware store
across from the courthouse
where she now works. The
store has been replaced with a
Wachovia bank building, in
which defendants can pay their
speeding tickets.
Her father, an architect,
designed many buildings
throughout the area, including
the William R. Frizzell Cultural
Center on McGregor and
Colonial Fort Myers.
"I have a strong connection to
this area," she says. "I've spent
my whole life here."
Judge Leigh Frizzell Hayes
swears in a defendant at the
Lee County Courthouse in Fort
Myers on Friday morning.
Hayes was elected as a judge
10 years ago. I've seen a lot of
changes,î she says. In those
10 years Hayes has seen and
heard nearly every kind of court
case. We had a woman on the
criminal docket who would
come to court with different
color hair each time,î she says.
Photo by TRISTAN SPINSKI,
Daily News
Buy this photo »
Judge Leigh Frizzell Hayes
swears in a defendant at the
Lee County Courthouse in Fort
Myers on Friday morning.
Hayes was elected as a judge
10 years ago. I've seen a lot of
changes,î she says. In those
10 years Hayes has seen and
heard nearly every kind of court
case. We had a woman on the
criminal docket who would
come to court with different
color hair each time,î she says.
As a judge, she sees an
average of 700 cases a day
and says the number probably
will increase as Southwest
Florida continues to grow in
popularity.
Hayes has also seen the
language of her court shift from
nearly all English to at least
half-Spanish.
One more change — TV
shows. Programs like "Judge
Judy" and "Boston Legal" effect
how defendants approach the
court, she says. "We have to
remind people this isn't a
television show," she says.
Since the recent death of her
husband, Bill Hayes, the court
has become a place of solace.
"I can change people's lives
with the decisions I make," she
says. "But the bench has also
helped me deal with the
changes in my life. This is a
fascinating job."
For the most part, the people I
see are not bad people. They
make bad decisions, some of
them, but they're usually not
evil. When I read in the paper
that somebody's been arrested
for killing someone, or is the
victim of the murder, I often
know the person from a traffic
case in my court...
| More criminal cases (contd. from center column) |
Judge Judith Hayes CRIMINAL Cases
(Cases decided before Judge Hayes was forced out of the
criminal court in 2003, and transferred to civil court)
(Cases decided before Judge Hayes was forced out of the
criminal court in 2003, and transferred to civil court)
Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
... a San Diego Superior
Court judge ruled in 2000
that Longanbach committed
prosecutorial misconduct in
a 1998 grand theft and
forgery case. Judge Judith
Hayes said he “willfully
violated both the spirit and
the letter” of the law
requiring disclosure of
evidence.
Court judge ruled in 2000
that Longanbach committed
prosecutorial misconduct in
a 1998 grand theft and
forgery case. Judge Judith
Hayes said he “willfully
violated both the spirit and
the letter” of the law
requiring disclosure of
evidence.
Judge Hayes and
the law requiring
disclosure of
evidence
the law requiring
disclosure of
evidence
Stutz attorney Daniel Shinoff is the favorite attorney of San Diego County Office of Education.
August 5, 2011
Stutz Artiano Shinoff & Holtz v. Maura Larkins (California Court of Appeal)
Judge Judith Hayes' injunction against author of this
website overturned
website overturned
University of San Diego (USD) law professor Shaun Martin represented Maura Larkins pro bono in
the Court of Appeal. He is the author of the blog California Appellate Report.
the Court of Appeal. He is the author of the blog California Appellate Report.
EMERALD OWENS petition
to Court of Appeal granted
Filed 3/20/12 Owens v.
Superior Court
ORIGINAL PROCEEDING in
mandate to challenge
orders of the Superior
Court of San Diego
County, Judith F. Hayes,
Judge. Petition granted.
to Court of Appeal granted
Filed 3/20/12 Owens v.
Superior Court
ORIGINAL PROCEEDING in
mandate to challenge
orders of the Superior
Court of San Diego
County, Judith F. Hayes,
Judge. Petition granted.
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Civil Litigation -
Private
Comment #: CA1115
Rating:7.7
Comments:
Having appeared before Judge
Hayes in several civil matters I
can state that she is a
genuine, concerned
adjudicator. However, I sense a
corporate/insurance company
bias and have repeatedly filed
peremptory challenges against
her because of her
pre-disposition towards a
corporate outcome. Moreover,
the "random" judicial
assignments in San Diego
County ALWAYS dictate an
insurance claim be assigned to
Judge Hayes! If you are trying
a novel argument or novel
COA I would NOT recommend
trying it in front of Judge
Hayes. If you are in
insurance defense, you are
in heaven with Judge
Hayes. A nice person, but
NOT a fair, impartial and
intelligent judge.
Private
Comment #: CA1115
Rating:7.7
Comments:
Having appeared before Judge
Hayes in several civil matters I
can state that she is a
genuine, concerned
adjudicator. However, I sense a
corporate/insurance company
bias and have repeatedly filed
peremptory challenges against
her because of her
pre-disposition towards a
corporate outcome. Moreover,
the "random" judicial
assignments in San Diego
County ALWAYS dictate an
insurance claim be assigned to
Judge Hayes! If you are trying
a novel argument or novel
COA I would NOT recommend
trying it in front of Judge
Hayes. If you are in
insurance defense, you are
in heaven with Judge
Hayes. A nice person, but
NOT a fair, impartial and
intelligent judge.
SUPERIOR COURT OF
CALIFORNIA COUNTY OF
SAN DIEGO
Post Office Box 120128 San
Diego, CA 92112-0128
Release: Immediately
Contact: Karen Dalton
Date: 8/13/10 Phone: (619)
450-5353
Superior Court
Judge Charles R.
Hayes Retires
San Diego Superior Court
Judge Charles R. Hayes will
retire on August 16, 2010
after 24 years on the bench.
Appointed by then-
Governor George
Deukmejian, Judge Hayes
began his judicial career as a
Municipal Court Judge in 1986
and was elevated to Superior
Court by Governor
Deukmejian in 1987.
During his judicial career,
Judge Hayes has served in
numerous assignments within
the Superior Court. Judge
Hayes was a civil trial judge for
over fifteen years in an
independent calendar
department with a caseload of
about 700 civil cases.
He presided over hundreds of
civil court and jury trials
involving complex business
disputes, consumer issues and
personal injury cases.
Prior to his current civil
assignment, he presided over
general civil and criminal
trials including a number of
death penalty cases. Judge
Hayes presided over the
lengthy
capital murder trial of serial
killer Cleophus Prince, the
notorious so-called
“Clairemont Killer” of the
1990s, whose death sentence
was affirmed by the California
Supreme Court.
Before joining the court, Judge
Hayes served as the Chief
Deputy District Attorney for
the County of San Diego
(1985-1986), a Special
Assistant U.S. Attorney for
Southern District of California
and Chief of the District
Attorney’s Fraud Division
(1978-1985). He was
appointed Chief of the Fraud
Division in 1978 after five
years prosecuting civil
consumer fraud cases within
the division and three years
prosecuting street crime.
Superior Court Judge Charles
R. Hayes Retires
www.sdcourt.ca.gov/...
/8DBCAB7B730E00F7E0440003BAF...
Aug 13, 2010 – ... Judge
Hayes is married to the
Honorable Judge Judith F.
Hayes
CALIFORNIA COUNTY OF
SAN DIEGO
Post Office Box 120128 San
Diego, CA 92112-0128
Release: Immediately
Contact: Karen Dalton
Date: 8/13/10 Phone: (619)
450-5353
Superior Court
Judge Charles R.
Hayes Retires
San Diego Superior Court
Judge Charles R. Hayes will
retire on August 16, 2010
after 24 years on the bench.
Appointed by then-
Governor George
Deukmejian, Judge Hayes
began his judicial career as a
Municipal Court Judge in 1986
and was elevated to Superior
Court by Governor
Deukmejian in 1987.
During his judicial career,
Judge Hayes has served in
numerous assignments within
the Superior Court. Judge
Hayes was a civil trial judge for
over fifteen years in an
independent calendar
department with a caseload of
about 700 civil cases.
He presided over hundreds of
civil court and jury trials
involving complex business
disputes, consumer issues and
personal injury cases.
Prior to his current civil
assignment, he presided over
general civil and criminal
trials including a number of
death penalty cases. Judge
Hayes presided over the
lengthy
capital murder trial of serial
killer Cleophus Prince, the
notorious so-called
“Clairemont Killer” of the
1990s, whose death sentence
was affirmed by the California
Supreme Court.
Before joining the court, Judge
Hayes served as the Chief
Deputy District Attorney for
the County of San Diego
(1985-1986), a Special
Assistant U.S. Attorney for
Southern District of California
and Chief of the District
Attorney’s Fraud Division
(1978-1985). He was
appointed Chief of the Fraud
Division in 1978 after five
years prosecuting civil
consumer fraud cases within
the division and three years
prosecuting street crime.
Superior Court Judge Charles
R. Hayes Retires
www.sdcourt.ca.gov/...
/8DBCAB7B730E00F7E0440003BAF...
Aug 13, 2010 – ... Judge
Hayes is married to the
Honorable Judge Judith F.
Hayes
Boycotting of judges nothing new to DA
At least three others targeted since 2003
Greg Moran
Feb. 28, 2010
The San Diego Union-Tribune
When District Attorney Bonnie Dumanis quietly lifted a months-old challenge of
Superior Court Judge John Einhorn late last month, it seemed that an uncommon event
— the wholesale boycott of a veteran judge’s courtroom — had come to an end.
But Einhorn was not the first judge to have been singled out for such treatment by
Dumanis. Since 2003, prosecutors have targeted at least three other Superior Court
judges for whole or partial boycotts.
Sources in the courthouse, the local defense bar and the District Attorney’s Office said
all three were targeted shortly after they made rulings that the District Attorney’s Office
apparently disagreed with. Two of those judges, Judith Hayes and
William McAdam, no longer work in the criminal courts.
Hayes was boycotted just months after Dumanis took office in 2003. The former state
and federal prosecutor now hears civil cases in downtown San Diego.
She was challenged soon after dismissing murder charges in
the middle of a trial against Michael Savala, who was accused of fatally
shooting two bouncers at a Bonita restaurant after the prosecution had
presented its case. Hayes said the slayings were not premeditated murder but were
committed in the heat of passion — “a classic voluntary manslaughter,” as she said.
Savala eventually pleaded guilty to that lesser charge and received a 13-year
sentence...
[Maura Larkins comment: Savala went home and got a weapon and then drove back to
the bar to kill two bouncers. How can Judith Hayes be certain that he was in the heat
of passion? Isn't that for a jury to decide? Savala had to plan; he didn't just use his
fists or pick up a chair that was handy. It's possible he had a belief that he should
eliminate anyone who, in his eyes, disrespected him. It might have been a calculation,
a policy, that he reached long before he met the bouncers at the bar. I can see why
Bonnie Dumanis didn't trust this judge to apply the law appropriately.]
At least three others targeted since 2003
Greg Moran
Feb. 28, 2010
The San Diego Union-Tribune
When District Attorney Bonnie Dumanis quietly lifted a months-old challenge of
Superior Court Judge John Einhorn late last month, it seemed that an uncommon event
— the wholesale boycott of a veteran judge’s courtroom — had come to an end.
But Einhorn was not the first judge to have been singled out for such treatment by
Dumanis. Since 2003, prosecutors have targeted at least three other Superior Court
judges for whole or partial boycotts.
Sources in the courthouse, the local defense bar and the District Attorney’s Office said
all three were targeted shortly after they made rulings that the District Attorney’s Office
apparently disagreed with. Two of those judges, Judith Hayes and
William McAdam, no longer work in the criminal courts.
Hayes was boycotted just months after Dumanis took office in 2003. The former state
and federal prosecutor now hears civil cases in downtown San Diego.
She was challenged soon after dismissing murder charges in
the middle of a trial against Michael Savala, who was accused of fatally
shooting two bouncers at a Bonita restaurant after the prosecution had
presented its case. Hayes said the slayings were not premeditated murder but were
committed in the heat of passion — “a classic voluntary manslaughter,” as she said.
Savala eventually pleaded guilty to that lesser charge and received a 13-year
sentence...
[Maura Larkins comment: Savala went home and got a weapon and then drove back to
the bar to kill two bouncers. How can Judith Hayes be certain that he was in the heat
of passion? Isn't that for a jury to decide? Savala had to plan; he didn't just use his
fists or pick up a chair that was handy. It's possible he had a belief that he should
eliminate anyone who, in his eyes, disrespected him. It might have been a calculation,
a policy, that he reached long before he met the bouncers at the bar. I can see why
Bonnie Dumanis didn't trust this judge to apply the law appropriately.]
Man whose single punch caused death gets 3-year
prison term
He was 'disaster waiting to happen,' judge said
San Diego Union-Tribune
J. Harry Jones
May 23, 2003
A Poway man said in court yesterday that it was his own "stupid drunkenness" that explains what
led to the death of a man outside a bowling alley bar.
Jesse Brick, 21, was sentenced to three years in prison yesterday for involuntary manslaughter --
the result of a single punch that killed David Govito, 31, in February.
Brick pleaded guilty in March to involuntary manslaughter.
The emotionally charged sentencing was held before San Diego...
Man enters guilty plea for fatal punch
San Diego Union-Tribune
Alex Roth
March 12, 2003
A Poway man faces up to three years in prison after pleading guilty yesterday to punching another
man in the face outside a bowling alley, causing the victim to fall down, hit his head and later die.
Jesse Brick, 21, pleaded guilty to involuntary-manslaughter charges yesterday before the start of
his preliminary hearing in San Diego Superior Court.
Under the plea, the judge can impose a maximum sentence of three years in prison but could give
Brick probation
prison term
He was 'disaster waiting to happen,' judge said
San Diego Union-Tribune
J. Harry Jones
May 23, 2003
A Poway man said in court yesterday that it was his own "stupid drunkenness" that explains what
led to the death of a man outside a bowling alley bar.
Jesse Brick, 21, was sentenced to three years in prison yesterday for involuntary manslaughter --
the result of a single punch that killed David Govito, 31, in February.
Brick pleaded guilty in March to involuntary manslaughter.
The emotionally charged sentencing was held before San Diego...
Man enters guilty plea for fatal punch
San Diego Union-Tribune
Alex Roth
March 12, 2003
A Poway man faces up to three years in prison after pleading guilty yesterday to punching another
man in the face outside a bowling alley, causing the victim to fall down, hit his head and later die.
Jesse Brick, 21, pleaded guilty to involuntary-manslaughter charges yesterday before the start of
his preliminary hearing in San Diego Superior Court.
Under the plea, the judge can impose a maximum sentence of three years in prison but could give
Brick probation
Since when do extremely wealthy litigants give
"commendations" to judges who rule in their favor?
Viejas Commends San Diego Superior Court Judge Judith Hayes for Granting
Injunction Halting Further Desecration of Sacred Native American Burial
Ground
Wed Aug 11, 2010
(Business Wire)
The Viejas Band of Kumeyaay Indians today commended San Diego County Superior
Court Judge Judith Hayes for granting a request by the Native American Heritage
Commission for an injunction, stopping the Padre Dam Municipal Water District
from further desecrating a designated sanctified Native American burial ground
and ceremonial site...
[Note: My anti-virus application had to block content from this site. Here is the link if you want to
chance it: http://www.reuters.com/article/2010/08/12/idUS27435+12-Aug-2010+BW20100812]
"commendations" to judges who rule in their favor?
Viejas Commends San Diego Superior Court Judge Judith Hayes for Granting
Injunction Halting Further Desecration of Sacred Native American Burial
Ground
Wed Aug 11, 2010
(Business Wire)
The Viejas Band of Kumeyaay Indians today commended San Diego County Superior
Court Judge Judith Hayes for granting a request by the Native American Heritage
Commission for an injunction, stopping the Padre Dam Municipal Water District
from further desecrating a designated sanctified Native American burial ground
and ceremonial site...
[Note: My anti-virus application had to block content from this site. Here is the link if you want to
chance it: http://www.reuters.com/article/2010/08/12/idUS27435+12-Aug-2010+BW20100812]
Who's the prevailing party? Judge Hayes failed to consider
anti-SLAPP Motion
Filed 11/22/11
Rolla v. Speidel CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
ROBERT ROLLA v. JAMES SPEIDEL et al.,
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes,
Judge. Affirmed in part, reversed in part and remanded with directions.
Robert Rolla appeals from the trial court's order awarding attorney fees to respondents James
Speidel, Eric Thomas and Kearny Mesa Towing, Inc. (KMT), under Code of Civil Procedure[1] section
425.16, subdivision (c), the anti-SLAPP ( strategic lawsuit against public participation) statute, based
on its finding they were the prevailing party on their anti-SLAPP motion.
Rolla contends trial court Judge Judith Hayes lacked jurisdiction to rule in this
matter because he had filed a peremptory challenge against her in an earlier
case
(Rolla v. Cheldin (Aug. 25, 2010, D055614) [nonpub. opn.] (Rolla I)), and the prior disqualification
extends to the present case, which he contends is a continuation of
Rolla I. He further contends the court was required to rule on the merits of the anti-SLAPP motion
before ruling on the attorney fees motion. We conclude Judge Hayes was not disqualified from ruling
on the attorney fees motion; however, before doing so, she was required to rule on the merits of the
anti-SLAPP motion. Accordingly, we affirm in part, reverse in part, and remand with directions. The
plaintiffs appealed, arguing the defendants were not entitled to recover fees because they had not
prevailed on the special motion to strike. (Coltrain, supra, 66 Cal.App.4th at p. 101.)
Based on a review of authorities determining the issue of who is the "prevailing party" in the event of a
voluntary dismissal of the case, the appellate court rejected the plaintiffs' argument. It concluded that,
under section 425.16, subdivision (c), the trial court had the discretion to determine whether the
defendant was the prevailing party and thus entitled to recover fees. (Coltrain, supra, at pp. 101-108.)
The court indicated that, in exercising its discretion, the critical issue for the trial court's determination
was which party realized its objectives in the litigation. (Id. at p. 107.)
Faced with a similar issue, the court in Liu v. Moore (1999) 69 Cal.App.4th 745 analyzed section
425.16, subdivision (c) differently. In that case, the trial court denied the motion for attorney fees,
reasoning that the statute allowed fees only to a party who prevailed on a special motion to strike, but
the alleged SLAPP pleading (in that case a cross-complaint) was dismissed prior to a hearing on the
special motion to strike. The appellate court reversed, holding that the cross-defendant was entitled to
have the merits of her special motion to strike heard as a necessary predicate to a determination of her
request for attorney fees and costs under section 425.16, subdivision (c). (Liu, supra, at pp. 750-753;
see also Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918-919.)
The Liu court concluded that under section 425.16, subdivision (c), the requesting party's entitlement to
fees turns on the merits of the defendant's motion to strike. "An award of [fees and costs] under section
425.16 is only justified when a defendant demonstrates that plaintiff's action falls within the provisions
of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success. [Citation.]
Until a court determines that these circumstances exist, a moving defendant is not entitled to its fees
and costs under section 425.16. If such a judicial determination were not first required, and a fair
procedural opportunity to obtain it allowed, then a plaintiff's voluntary dismissal of the action could have
the effect of (1) depriving a true SLAPP defendant of statutorily authorized fees, or ( 2) entitling a
defendant to such relief in a non-SLAPP action [that] was dismissed by the plaintiff for entirely
legitimate reasons. In both situations, the purpose of the statute's remedial provisions would be
frustrated." (Liu, supra, 69 Cal.App.4th at pp. 752-753.)
We agree with the Liu court's reasoning, and apply it here. The trial court did not
analyze the merits of respondents' anti-SLAPP motion, but instead concluded,
based on Rolla's dismissal of his complaint and the analysis in Coltrain, that
respondents were the prevailing party. However, the trial court still was
required to rule on the merits of the anti-SLAPP motion as a prerequisite to
determining the prevailing party and granting attorney fees.
We remand the case for a hearing on the anti-SLAPP motion. If respondents prevail on
that motion, the trial court shall award reasonable attorney fees to them for their trial
court efforts (both before and after this appeal), and their efforts in this appeal.
DISPOSITION
The order awarding attorney fees to respondents is reversed. In all other
respects the judgment is affirmed. The matter is remanded to the superior
court for proceedings consistent with this opinion. Rolla is awarded costs on
appeal.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
anti-SLAPP Motion
Filed 11/22/11
Rolla v. Speidel CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
ROBERT ROLLA v. JAMES SPEIDEL et al.,
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes,
Judge. Affirmed in part, reversed in part and remanded with directions.
Robert Rolla appeals from the trial court's order awarding attorney fees to respondents James
Speidel, Eric Thomas and Kearny Mesa Towing, Inc. (KMT), under Code of Civil Procedure[1] section
425.16, subdivision (c), the anti-SLAPP ( strategic lawsuit against public participation) statute, based
on its finding they were the prevailing party on their anti-SLAPP motion.
Rolla contends trial court Judge Judith Hayes lacked jurisdiction to rule in this
matter because he had filed a peremptory challenge against her in an earlier
case
(Rolla v. Cheldin (Aug. 25, 2010, D055614) [nonpub. opn.] (Rolla I)), and the prior disqualification
extends to the present case, which he contends is a continuation of
Rolla I. He further contends the court was required to rule on the merits of the anti-SLAPP motion
before ruling on the attorney fees motion. We conclude Judge Hayes was not disqualified from ruling
on the attorney fees motion; however, before doing so, she was required to rule on the merits of the
anti-SLAPP motion. Accordingly, we affirm in part, reverse in part, and remand with directions. The
plaintiffs appealed, arguing the defendants were not entitled to recover fees because they had not
prevailed on the special motion to strike. (Coltrain, supra, 66 Cal.App.4th at p. 101.)
Based on a review of authorities determining the issue of who is the "prevailing party" in the event of a
voluntary dismissal of the case, the appellate court rejected the plaintiffs' argument. It concluded that,
under section 425.16, subdivision (c), the trial court had the discretion to determine whether the
defendant was the prevailing party and thus entitled to recover fees. (Coltrain, supra, at pp. 101-108.)
The court indicated that, in exercising its discretion, the critical issue for the trial court's determination
was which party realized its objectives in the litigation. (Id. at p. 107.)
Faced with a similar issue, the court in Liu v. Moore (1999) 69 Cal.App.4th 745 analyzed section
425.16, subdivision (c) differently. In that case, the trial court denied the motion for attorney fees,
reasoning that the statute allowed fees only to a party who prevailed on a special motion to strike, but
the alleged SLAPP pleading (in that case a cross-complaint) was dismissed prior to a hearing on the
special motion to strike. The appellate court reversed, holding that the cross-defendant was entitled to
have the merits of her special motion to strike heard as a necessary predicate to a determination of her
request for attorney fees and costs under section 425.16, subdivision (c). (Liu, supra, at pp. 750-753;
see also Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918-919.)
The Liu court concluded that under section 425.16, subdivision (c), the requesting party's entitlement to
fees turns on the merits of the defendant's motion to strike. "An award of [fees and costs] under section
425.16 is only justified when a defendant demonstrates that plaintiff's action falls within the provisions
of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success. [Citation.]
Until a court determines that these circumstances exist, a moving defendant is not entitled to its fees
and costs under section 425.16. If such a judicial determination were not first required, and a fair
procedural opportunity to obtain it allowed, then a plaintiff's voluntary dismissal of the action could have
the effect of (1) depriving a true SLAPP defendant of statutorily authorized fees, or ( 2) entitling a
defendant to such relief in a non-SLAPP action [that] was dismissed by the plaintiff for entirely
legitimate reasons. In both situations, the purpose of the statute's remedial provisions would be
frustrated." (Liu, supra, 69 Cal.App.4th at pp. 752-753.)
We agree with the Liu court's reasoning, and apply it here. The trial court did not
analyze the merits of respondents' anti-SLAPP motion, but instead concluded,
based on Rolla's dismissal of his complaint and the analysis in Coltrain, that
respondents were the prevailing party. However, the trial court still was
required to rule on the merits of the anti-SLAPP motion as a prerequisite to
determining the prevailing party and granting attorney fees.
We remand the case for a hearing on the anti-SLAPP motion. If respondents prevail on
that motion, the trial court shall award reasonable attorney fees to them for their trial
court efforts (both before and after this appeal), and their efforts in this appeal.
DISPOSITION
The order awarding attorney fees to respondents is reversed. In all other
respects the judgment is affirmed. The matter is remanded to the superior
court for proceedings consistent with this opinion. Rolla is awarded costs on
appeal.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Judge Hayes refused to consider evidence; decision reversed
Filed 12/4/02
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR MORALES CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Reversed.
Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Ronda L. Cartwright-Ladendorf and
Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Morales Cervantes pled guilty to transportation of methamphetamine and
admitted a prior prison term. He was sentenced to a term of five years. Cervantes
appeals, arguing the trial court erred in denying his motion to suppress evidence
pursuant to Penal Code section 1538.5.
FACTS AND BACKGROUND
Appellant was stopped by police officers for failing to signal a right turn. A records
check showed he was subject to a probation condition allowing a search of his person
and vehicle at any time. Pursuant to that waiver the officers searched the car and
found a gun, methamphetamine and scales. A related search of appellant's residence
revealed additional methamphetamine.
Appellant moved for suppression of the items seized, arguing evidence would show he
committed no turn signal violation and there was, therefore, no legitimate basis for his
stop, detention and search. Appellant acknowledged the existence of his probation
search condition and the general rule that such condition saves from exclusion
evidence otherwise illegally seized even when an officer making the stop or search was
unaware of the Fourth Amendment waiver. Appellant argued, however, the general
rule did not apply when the stop or search was arbitrary, capricious and was not
motivated by the legitimate needs of probation.
In reply the prosecution asserted appellant failed to signal a right turn and was lawfully
stopped. It argued in the alternative that appellant was subject to a probation search
condition, had no reasonable expectation of privacy and any alleged illegality in
stopping him was constitutionally irrelevant.
At the section 1538.5 hearing, appellant made an offer of proof that he would, through
the testimony of three witnesses, prove there was no turn signal violation and that the
officers were not telling the truth when they stated there was. The prosecution replied
that, even assuming no violation, exclusion was not proper since appellant was subject
to search as a condition of his probation.
The trial court declined to hear appellant's evidence, holding that the search condition
made irrelevant any illegality in the stop and detention.
Filed 12/4/02
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR MORALES CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Reversed.
Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Ronda L. Cartwright-Ladendorf and
Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Morales Cervantes pled guilty to transportation of methamphetamine and
admitted a prior prison term. He was sentenced to a term of five years. Cervantes
appeals, arguing the trial court erred in denying his motion to suppress evidence
pursuant to Penal Code section 1538.5.
FACTS AND BACKGROUND
Appellant was stopped by police officers for failing to signal a right turn. A records
check showed he was subject to a probation condition allowing a search of his person
and vehicle at any time. Pursuant to that waiver the officers searched the car and
found a gun, methamphetamine and scales. A related search of appellant's residence
revealed additional methamphetamine.
Appellant moved for suppression of the items seized, arguing evidence would show he
committed no turn signal violation and there was, therefore, no legitimate basis for his
stop, detention and search. Appellant acknowledged the existence of his probation
search condition and the general rule that such condition saves from exclusion
evidence otherwise illegally seized even when an officer making the stop or search was
unaware of the Fourth Amendment waiver. Appellant argued, however, the general
rule did not apply when the stop or search was arbitrary, capricious and was not
motivated by the legitimate needs of probation.
In reply the prosecution asserted appellant failed to signal a right turn and was lawfully
stopped. It argued in the alternative that appellant was subject to a probation search
condition, had no reasonable expectation of privacy and any alleged illegality in
stopping him was constitutionally irrelevant.
At the section 1538.5 hearing, appellant made an offer of proof that he would, through
the testimony of three witnesses, prove there was no turn signal violation and that the
officers were not telling the truth when they stated there was. The prosecution replied
that, even assuming no violation, exclusion was not proper since appellant was subject
to search as a condition of his probation.
The trial court declined to hear appellant's evidence, holding that the search condition
made irrelevant any illegality in the stop and detention.
| More civil cases Judge Hayes |
Only void judgments can be set aside, the court's equity power to grant relief
differs from its power under section 473
null [Perhaps the federal decision took precedence?]
Cite as 10 C.D.O.S. 15919
BRUCE R. TALLEY, Plaintiff, Respondent and Appellant,
v.
VALUATION COUNSELORS GROUP, INC. et al., Defendants and Appellants,
JOHN M. CLAREY et al., Defendants and Respondents.
In the Court of Appeal of the State of California
Fourth Appellate District
Division One (Super. Ct. No. GIC836807)
APPEAL and cross-appeal from postjudgment orders of the Superior Court of San Diego
County, Judith F. Hayes, Judge. Reversed in part with directions; affirmed
as to the balance of the orders.
Filed December 22, 2010
COUNSEL
Irell & Manella, Keith R. Heitz, Craig I. Varnen, Garland A. Kelley, and Christopher Cowan, attorneys for
Defendant and Appellant Valuation Counselors Group, Inc.
Hill, Farrer & Burrill and Steven W. Bacon, attorneys for Defendant and Appellant Bank of America
Corporation.
Dion-Kindem & Crockett, William E. Crockett and Steven R. Skirvin, attorneys for Defendant and
Appellant Jerold V. Goldstein.
David A. Hahn Law Offices and G. Patrick Connors III, attorneys for Defendant and Appellant Victor P.
Dhooge.
Gary A. Kurtz, attorney for Defendants and Appellants Robert Kasirer, Debra Kasirer and Leo
Dierckman.
Dreher Law Firm, Robert Scott Dreher and Matthew R. Miller, attorneys for Plaintiff, Respondent and
Appellant Bruce R. Talley.
Gordon & Rees, Kevin W. Alexander and Kimberly D. Howatt, attorneys for Defendants and
Respondents John M. Clarey, Kenneth E. Dawkins, Paul R. Ekholm and James E. Iverson.
OPINION
Since 2001, this long running dispute has traveled back and forth between state and
federal courts at the respective trial and appellate levels. We now have before us the trial
court's appealable orders vacating certain judgments of dismissal of an action, in which
plaintiff, respondent and cross-appellant, Bruce R. Talley (Talley) asserted tort
claims (fraud and related theories), based upon the different roles of several
sets of defendants in alleged securities fraud activities in the 1990's, that
allegedly ruined his career by drawing him into the schemes, in the role of a
salesman of worthless bonds to private clients, who then sued him and the
others.
We have previously visited these circumstances and related issues at the pleadings
stage in this court's prior opinion in Talley v. Miller & Schroeder (Sept. 12, 2007,
D048438 [nonpub. opn.]); our prior opinion). There, we reviewed three separate 2005
and 2006 demurrer dismissals with prejudice that were granted in favor of three sets of
individual defendants who were involved in various ways in the securities transactions
(here, sometimes the individual appellants).FN:1
We upheld those dismissals with prejudice as proper, based upon the
existence of certain binding good faith settlement approvals that
included Bar orders against further litigation, issued by the federal
district court in Talley's related cross-action.FN:2
In conclusion, as to the Group of Five Appellants, the ruling states: "The Court is
mindful of the public policy regarding finality of judgments. However, this case
is that rare but 'appropriate proceeding' for the relief requested. As noted, the
Court of Appeal was aware of the pending appeal in the 9th Circuit. The purpose of the
Federal Court appeal was to modify the bar orders so that this lawsuit could proceed.
The issue of whether [Talley's] State claims could be revived following the 9th Circuit
decision was briefed and discussed by the 9th Circuit. [¶] Therefore, as to those
judgments/orders of dismissal that were based on the bar orders, those
judgments/orders of dismissal shall be set aside [regarding the Group of Five
Appellants]."
The court separately addressed the issues concerning the Clarey Respondents, as
follows: "It is undisputed that the demurrer brought by the Clarey [Respondents] was
sustained on the ground of res judicata/primary rights. It was not sustained on
grounds relating to the bar orders. ["...based upon the existence of
certain binding good faith settlement approvals that included Bar
orders against further litigation, issued by the federal district court in
Talley's related cross-action.FN:2"]
It is further undisputed that the appeal to the order sustaining the demurrer of the Clarey
[Respondents] was dismissed because the appeal was not timely. Although the Court of
Appeal reversed the ruling on the demurrers brought by Valuation and U.S. Trust on the
ground of res judicata/primary rights, the ruling on behalf of the Clarey [Respondents]
was not reversed. [¶] In light of the fact that the ruling on the demurrers as to the Clarey
[Respondents] was not based on the bar orders, there is no basis to set aside the final
judgments entered in their favor."
In conclusion, the court granted Talley leave to file his SAC against each of the Group of
Five Appellants, with any pleadings challenges to be handled later by demurrer...
Next, Talley filed a motion requesting that this court dismiss the appeals, claiming they
had been taken from nonappealable orders.
The Group of Five Appellants opposed the motion to dismiss, successfully
arguing the special orders made after judgment were
appealable under section 904.1, subdivision (a)(2). In our order,
we granted judicial notice requests by Talley and one of the Group of Five Appellants,
Valuation, regarding orders in connection with the federal court proceedings and appeal,
including the modified Bar orders and other history. We then issued an order denying the
motion, and now reach the merits...
III
PRINCIPLES FOR REVIEW
A. Statutory and Inherent Powers of Court
We first limit the scope of the issues before us. We agree with the reasoning of
the trial court, insofar as it concluded that the dismissal orders were neither
void nor voidable, under section 473, subdivision (d). The court went on,
however, to attempt to justify vacating the dismissals on other grounds, based
on Restatement analysis. (Grain Dealers, supra, 200 Cal.App.3d at pp. 1088–
1089.)
Whatever the basis for the ruling, our standard of review for examining the
validity of the trial court's procedural analysis is clearly de novo. Even though
"[t]he inclusion of the word 'may' in the language of section 473, subdivision (d)
makes it clear that a trial court retains discretion to grant or deny a motion to
set aside a void judgment," the foundational question remains on whether the
dismissals were in some other respect void or voidable. (Cruz v. Fagor America,
Inc. (2007) 146 Cal.App.4th 488, 495–496.) "A trial court has no statutory
power under section 473, subdivision (d) to set aside a
judgment that is not void: Once six months have elapsed since
the entry of a judgment, 'a trial court may grant a motion to set
aside that judgment as void only if the judgment is void on its
face.' [Citation.] We review de novo a trial court's determination that a judgment is
void." (Cruz, supra, at pp. 495–496; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
We therefore reject Talley's claim that a pure abuse of discretion standard somehow
applies, under which the trial court was free to interpret our prior opinion, or evaluate the
effect of the federal appellate proceedings, without regard to the current procedural
posture of the case as of the time of the ruling.
Rather, to the extent that Talley seeks equitable relief from judgment, such a basis for
vacating a dismissal is more restrictive than the statutory grounds of section 473. In
Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 901, footnote 8 (Carroll), the
Supreme Court relied on Weitz v. Yankosky (1966) 63 Cal.2d 849, 857, to say, " 'To the
extent that the court's equity power to grant relief differs from its power under section
473, the equity power must be considered narrower, not wider.' "
For example, a stronger showing of the excusable nature of
neglect is required to obtain relief under a court's equity power,
than would be necessary for relief under section 473. (Carroll,
supra, at p. 901, fn. 8.)
To use a common expression, Talley cannot expect "to make bricks without straw."
(Oxford English Dictionary Online (2d ed. 1989), Straw, n. 1, <http://www.oed.com> [as of
Dec. 15, 2010] ["phrase… commonly means '(to be required) to produce results without
the means usually considered necessary' "].) In other words, his case is over and the trial
court did not have the inherent power to "manage" proceedings that were no longer
properly before it, nor may equitable relief be issued to bring this case file back from the
dead.
In light of the entire history of the case, the important policy of promoting resolution of
cases on the merits had to yield to the natural consequences of Talley's litigation choices
in pursuing his actions in different forums, while failing to seek appropriate orders to
safeguard their viability.
D. Cross-Appeal: Application
For the same reasons outlined above, Talley's arguments in his cross-appeal must fail.
He cannot show that the trial court erroneously failed to grant his motion as to the Clarey
Respondents, who were previously dismissed at both the trial and appellate levels.
Rather, the trial court correctly observed that the demurrers as to those defendants were
previously sustained on other grounds that did not relate to the Bar orders. The court
also observed that the Clarey Respondents had obtained dismissal from the proceedings
leading to our prior opinion, and no rulings pertaining to the Clarey Respondents were
reversed at that time. There was and is no basis to set aside the final judgments of
dismissal entered in their favor, which are not void on the face of the record.
DISPOSITION
The order granting Talley's motion to set aside judgments and orders of dismissal and to
file a second amended complaint is reversed in part with directions to enter a new order
denying the motion; affirmed as to the balance of the order denying the motion.
Each party shall bear its own ordinary costs of appeal, except Talley shall pay the costs
of the Clarey Respondents.
FN:1. The individual appellants group here is made up of (a) Robert Kasirer and his
affiliated companies, and his wife Debra Kasirer, who were promoters of Heritage health
care facilities and the recipients of investors' funds in the securities scheme, and their
officer and affiliate Leo Dierckman (together, Kasirer); (b) Jerold Goldstein, another
officer and affiliate of the Kasirer group that was attempting to develop the Heritage
facilities; and (c) Victor Dhooge, an officer and key employee at Miller & Schroeder
Financial, Inc. (Miller & Schroeder) where he and Talley formerly worked together.
FN:2. The Bar orders stemmed from federal litigation, Betker Partners One et al. v. U.S.
Trust Corporation, N.A. et al. (C.D. Cal. 2001) No. CV 01–5752-DT-RCx (Betker) (the
"underlying federal action"). As a defendant in that action, Talley filed a cross-complaint
for indemnity and contribution, which he later dismissed as part of facilitating client
settlements with other parties. The federal district court good faith settlement and Bar
orders reflected the settlements between the Betker plaintiffs (nonparties here) and
numerous of these defendants during 2004 and 2005, as we later outline.
FN:3. The Clarey Respondents formerly worked for Miller & Schroeder, and they are
defendants and cross-respondents John M. Clarey, Kenneth E. Dawkins, Paul R. Ekholm
and James E. Iverson. They obtained dismissals from the trial court and are cross-
respondents here. Another such person, Edward J. Hentges, is referred to in the briefs
but he has not been represented by counsel for the Clarey Respondents for many years,
and he does not appear to be a party here.
FN:4. The party formerly known as U.S. Trust is now designated as Bank of America
Corporation, its successor by merger with U.S. Trust Corporation and U.S. Trust
Company, N.A.
FN:5. Miller & Schroeder filed for bankruptcy in Minnesota in January 2002 under its then-
current name, Securities Resolution Corporation (SRC), and it allegedly transferred any
other assets to the Marshall Group, before going out of business. No issues are raised
here about either Miller & Schroeder or the Marshall Group, which are not parties here,
although some of their former employees are in the Clarey group of respondents.
FN:6. While the state court proceedings leading to the September 2007 issuance of our
prior opinion were pending, that underlying federal case was also pending, including
Talley's two appeals to the Ninth Circuit Court of Appeals, contending that the Bar orders
issued as to various of these defendants were overbroad. These appeals were related to
a third such appeal in the underlying federal case. (Ninth Circuit case Nos. 05–55072,
05?55371, 05–56621.) Ultimately, the Ninth Circuit Court of Appeals issued its resolution
of the Bar order issues in October 2008, and the district court implemented it in February
2009, to modify the Bar orders to reduce their breadth, as will later be discussed. (In re
Heritage Bond Litig. v. U.S. Trust Corp. (2008) 546 F.3d 667 (In re Heritage Bond).)
FN:7. The Bar orders applied because the trial court found as to the individual
defendants that the current state pleading related to the same primary rights against
fraud that were allegedly violated and contested in the Betker case, or by parties in
privity with them, in the context of Talley's dismissed federal cross-complaint for
indemnity. (Evid. Code, §§ 452, 459.)
differs from its power under section 473
null [Perhaps the federal decision took precedence?]
Cite as 10 C.D.O.S. 15919
BRUCE R. TALLEY, Plaintiff, Respondent and Appellant,
v.
VALUATION COUNSELORS GROUP, INC. et al., Defendants and Appellants,
JOHN M. CLAREY et al., Defendants and Respondents.
In the Court of Appeal of the State of California
Fourth Appellate District
Division One (Super. Ct. No. GIC836807)
APPEAL and cross-appeal from postjudgment orders of the Superior Court of San Diego
County, Judith F. Hayes, Judge. Reversed in part with directions; affirmed
as to the balance of the orders.
Filed December 22, 2010
COUNSEL
Irell & Manella, Keith R. Heitz, Craig I. Varnen, Garland A. Kelley, and Christopher Cowan, attorneys for
Defendant and Appellant Valuation Counselors Group, Inc.
Hill, Farrer & Burrill and Steven W. Bacon, attorneys for Defendant and Appellant Bank of America
Corporation.
Dion-Kindem & Crockett, William E. Crockett and Steven R. Skirvin, attorneys for Defendant and
Appellant Jerold V. Goldstein.
David A. Hahn Law Offices and G. Patrick Connors III, attorneys for Defendant and Appellant Victor P.
Dhooge.
Gary A. Kurtz, attorney for Defendants and Appellants Robert Kasirer, Debra Kasirer and Leo
Dierckman.
Dreher Law Firm, Robert Scott Dreher and Matthew R. Miller, attorneys for Plaintiff, Respondent and
Appellant Bruce R. Talley.
Gordon & Rees, Kevin W. Alexander and Kimberly D. Howatt, attorneys for Defendants and
Respondents John M. Clarey, Kenneth E. Dawkins, Paul R. Ekholm and James E. Iverson.
OPINION
Since 2001, this long running dispute has traveled back and forth between state and
federal courts at the respective trial and appellate levels. We now have before us the trial
court's appealable orders vacating certain judgments of dismissal of an action, in which
plaintiff, respondent and cross-appellant, Bruce R. Talley (Talley) asserted tort
claims (fraud and related theories), based upon the different roles of several
sets of defendants in alleged securities fraud activities in the 1990's, that
allegedly ruined his career by drawing him into the schemes, in the role of a
salesman of worthless bonds to private clients, who then sued him and the
others.
We have previously visited these circumstances and related issues at the pleadings
stage in this court's prior opinion in Talley v. Miller & Schroeder (Sept. 12, 2007,
D048438 [nonpub. opn.]); our prior opinion). There, we reviewed three separate 2005
and 2006 demurrer dismissals with prejudice that were granted in favor of three sets of
individual defendants who were involved in various ways in the securities transactions
(here, sometimes the individual appellants).FN:1
We upheld those dismissals with prejudice as proper, based upon the
existence of certain binding good faith settlement approvals that
included Bar orders against further litigation, issued by the federal
district court in Talley's related cross-action.FN:2
In conclusion, as to the Group of Five Appellants, the ruling states: "The Court is
mindful of the public policy regarding finality of judgments. However, this case
is that rare but 'appropriate proceeding' for the relief requested. As noted, the
Court of Appeal was aware of the pending appeal in the 9th Circuit. The purpose of the
Federal Court appeal was to modify the bar orders so that this lawsuit could proceed.
The issue of whether [Talley's] State claims could be revived following the 9th Circuit
decision was briefed and discussed by the 9th Circuit. [¶] Therefore, as to those
judgments/orders of dismissal that were based on the bar orders, those
judgments/orders of dismissal shall be set aside [regarding the Group of Five
Appellants]."
The court separately addressed the issues concerning the Clarey Respondents, as
follows: "It is undisputed that the demurrer brought by the Clarey [Respondents] was
sustained on the ground of res judicata/primary rights. It was not sustained on
grounds relating to the bar orders. ["...based upon the existence of
certain binding good faith settlement approvals that included Bar
orders against further litigation, issued by the federal district court in
Talley's related cross-action.FN:2"]
It is further undisputed that the appeal to the order sustaining the demurrer of the Clarey
[Respondents] was dismissed because the appeal was not timely. Although the Court of
Appeal reversed the ruling on the demurrers brought by Valuation and U.S. Trust on the
ground of res judicata/primary rights, the ruling on behalf of the Clarey [Respondents]
was not reversed. [¶] In light of the fact that the ruling on the demurrers as to the Clarey
[Respondents] was not based on the bar orders, there is no basis to set aside the final
judgments entered in their favor."
In conclusion, the court granted Talley leave to file his SAC against each of the Group of
Five Appellants, with any pleadings challenges to be handled later by demurrer...
Next, Talley filed a motion requesting that this court dismiss the appeals, claiming they
had been taken from nonappealable orders.
The Group of Five Appellants opposed the motion to dismiss, successfully
arguing the special orders made after judgment were
appealable under section 904.1, subdivision (a)(2). In our order,
we granted judicial notice requests by Talley and one of the Group of Five Appellants,
Valuation, regarding orders in connection with the federal court proceedings and appeal,
including the modified Bar orders and other history. We then issued an order denying the
motion, and now reach the merits...
III
PRINCIPLES FOR REVIEW
A. Statutory and Inherent Powers of Court
We first limit the scope of the issues before us. We agree with the reasoning of
the trial court, insofar as it concluded that the dismissal orders were neither
void nor voidable, under section 473, subdivision (d). The court went on,
however, to attempt to justify vacating the dismissals on other grounds, based
on Restatement analysis. (Grain Dealers, supra, 200 Cal.App.3d at pp. 1088–
1089.)
Whatever the basis for the ruling, our standard of review for examining the
validity of the trial court's procedural analysis is clearly de novo. Even though
"[t]he inclusion of the word 'may' in the language of section 473, subdivision (d)
makes it clear that a trial court retains discretion to grant or deny a motion to
set aside a void judgment," the foundational question remains on whether the
dismissals were in some other respect void or voidable. (Cruz v. Fagor America,
Inc. (2007) 146 Cal.App.4th 488, 495–496.) "A trial court has no statutory
power under section 473, subdivision (d) to set aside a
judgment that is not void: Once six months have elapsed since
the entry of a judgment, 'a trial court may grant a motion to set
aside that judgment as void only if the judgment is void on its
face.' [Citation.] We review de novo a trial court's determination that a judgment is
void." (Cruz, supra, at pp. 495–496; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
We therefore reject Talley's claim that a pure abuse of discretion standard somehow
applies, under which the trial court was free to interpret our prior opinion, or evaluate the
effect of the federal appellate proceedings, without regard to the current procedural
posture of the case as of the time of the ruling.
Rather, to the extent that Talley seeks equitable relief from judgment, such a basis for
vacating a dismissal is more restrictive than the statutory grounds of section 473. In
Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 901, footnote 8 (Carroll), the
Supreme Court relied on Weitz v. Yankosky (1966) 63 Cal.2d 849, 857, to say, " 'To the
extent that the court's equity power to grant relief differs from its power under section
473, the equity power must be considered narrower, not wider.' "
For example, a stronger showing of the excusable nature of
neglect is required to obtain relief under a court's equity power,
than would be necessary for relief under section 473. (Carroll,
supra, at p. 901, fn. 8.)
To use a common expression, Talley cannot expect "to make bricks without straw."
(Oxford English Dictionary Online (2d ed. 1989), Straw, n. 1, <http://www.oed.com> [as of
Dec. 15, 2010] ["phrase… commonly means '(to be required) to produce results without
the means usually considered necessary' "].) In other words, his case is over and the trial
court did not have the inherent power to "manage" proceedings that were no longer
properly before it, nor may equitable relief be issued to bring this case file back from the
dead.
In light of the entire history of the case, the important policy of promoting resolution of
cases on the merits had to yield to the natural consequences of Talley's litigation choices
in pursuing his actions in different forums, while failing to seek appropriate orders to
safeguard their viability.
D. Cross-Appeal: Application
For the same reasons outlined above, Talley's arguments in his cross-appeal must fail.
He cannot show that the trial court erroneously failed to grant his motion as to the Clarey
Respondents, who were previously dismissed at both the trial and appellate levels.
Rather, the trial court correctly observed that the demurrers as to those defendants were
previously sustained on other grounds that did not relate to the Bar orders. The court
also observed that the Clarey Respondents had obtained dismissal from the proceedings
leading to our prior opinion, and no rulings pertaining to the Clarey Respondents were
reversed at that time. There was and is no basis to set aside the final judgments of
dismissal entered in their favor, which are not void on the face of the record.
DISPOSITION
The order granting Talley's motion to set aside judgments and orders of dismissal and to
file a second amended complaint is reversed in part with directions to enter a new order
denying the motion; affirmed as to the balance of the order denying the motion.
Each party shall bear its own ordinary costs of appeal, except Talley shall pay the costs
of the Clarey Respondents.
FN:1. The individual appellants group here is made up of (a) Robert Kasirer and his
affiliated companies, and his wife Debra Kasirer, who were promoters of Heritage health
care facilities and the recipients of investors' funds in the securities scheme, and their
officer and affiliate Leo Dierckman (together, Kasirer); (b) Jerold Goldstein, another
officer and affiliate of the Kasirer group that was attempting to develop the Heritage
facilities; and (c) Victor Dhooge, an officer and key employee at Miller & Schroeder
Financial, Inc. (Miller & Schroeder) where he and Talley formerly worked together.
FN:2. The Bar orders stemmed from federal litigation, Betker Partners One et al. v. U.S.
Trust Corporation, N.A. et al. (C.D. Cal. 2001) No. CV 01–5752-DT-RCx (Betker) (the
"underlying federal action"). As a defendant in that action, Talley filed a cross-complaint
for indemnity and contribution, which he later dismissed as part of facilitating client
settlements with other parties. The federal district court good faith settlement and Bar
orders reflected the settlements between the Betker plaintiffs (nonparties here) and
numerous of these defendants during 2004 and 2005, as we later outline.
FN:3. The Clarey Respondents formerly worked for Miller & Schroeder, and they are
defendants and cross-respondents John M. Clarey, Kenneth E. Dawkins, Paul R. Ekholm
and James E. Iverson. They obtained dismissals from the trial court and are cross-
respondents here. Another such person, Edward J. Hentges, is referred to in the briefs
but he has not been represented by counsel for the Clarey Respondents for many years,
and he does not appear to be a party here.
FN:4. The party formerly known as U.S. Trust is now designated as Bank of America
Corporation, its successor by merger with U.S. Trust Corporation and U.S. Trust
Company, N.A.
FN:5. Miller & Schroeder filed for bankruptcy in Minnesota in January 2002 under its then-
current name, Securities Resolution Corporation (SRC), and it allegedly transferred any
other assets to the Marshall Group, before going out of business. No issues are raised
here about either Miller & Schroeder or the Marshall Group, which are not parties here,
although some of their former employees are in the Clarey group of respondents.
FN:6. While the state court proceedings leading to the September 2007 issuance of our
prior opinion were pending, that underlying federal case was also pending, including
Talley's two appeals to the Ninth Circuit Court of Appeals, contending that the Bar orders
issued as to various of these defendants were overbroad. These appeals were related to
a third such appeal in the underlying federal case. (Ninth Circuit case Nos. 05–55072,
05?55371, 05–56621.) Ultimately, the Ninth Circuit Court of Appeals issued its resolution
of the Bar order issues in October 2008, and the district court implemented it in February
2009, to modify the Bar orders to reduce their breadth, as will later be discussed. (In re
Heritage Bond Litig. v. U.S. Trust Corp. (2008) 546 F.3d 667 (In re Heritage Bond).)
FN:7. The Bar orders applied because the trial court found as to the individual
defendants that the current state pleading related to the same primary rights against
fraud that were allegedly violated and contested in the Betker case, or by parties in
privity with them, in the context of Talley's dismissed federal cross-complaint for
indemnity. (Evid. Code, §§ 452, 459.)
Kacha vs. Allstate -
Professional
Insurance Evaluations
www.proadjuster.com/resources/case-studies/kacha-vs-allstate/
Jun 1, 2006
APPEAL from a judgment of
the Superior Court of San
Diego County, Judith F.
Hayes, Judge. ... We
reverse the
judgment and direct
the trial court on
remand to enter an
order vacating the
appraisal award. ....
cannot be corrected without
affecting the merits of the
decision upon the
controversy submitted.
Professional
Insurance Evaluations
www.proadjuster.com/resources/case-studies/kacha-vs-allstate/
Jun 1, 2006
APPEAL from a judgment of
the Superior Court of San
Diego County, Judith F.
Hayes, Judge. ... We
reverse the
judgment and direct
the trial court on
remand to enter an
order vacating the
appraisal award. ....
cannot be corrected without
affecting the merits of the
decision upon the
controversy submitted.
Trial court ignored the directive of the Court of
Appeal, exactly as happened in Stutz v. Larkins.
NACIF v. WHITE-SORENSON | CA 4DCA Div.1 REVERSED ...
stopforeclosurefraud.com/...reversedremand.../comment-page-1/Aug 12, 2011 – APPEAL
from a judgment of the Superior Court of San Diego County,
Linda B. Quinn and Judith F. Hayes, Judges
Reversed and remanded ..
See more information in right column.
Appeal, exactly as happened in Stutz v. Larkins.
NACIF v. WHITE-SORENSON | CA 4DCA Div.1 REVERSED ...
stopforeclosurefraud.com/...reversedremand.../comment-page-1/Aug 12, 2011 – APPEAL
from a judgment of the Superior Court of San Diego County,
Linda B. Quinn and Judith F. Hayes, Judges
Reversed and remanded ..
See more information in right column.
When a judge has a passionate
personal interest in the outcome
of a case, and she gets that case
put on her calendar by simply
asking a friend at the courthouse,
she has clearly subverted the
impartiality of the justice system.
This is exactly what happened in Stutz v.
Larkins, the defamation suit against this
author.
San Diego Superior Court claims that
cases are randomly assigned to judges,
but there have been some troubling
exceptions to this rule.
When cases are assigned to Judge
Linda Quinn, she has repeatedly passed
them directly to Judge Judith Hayes
rather than sending them "back to the
wheel" for a random assignment.
In a way, it's sort of sweet. They have a
case-sharing arrangement like two
kindergarten teachers sharing art
projects.
In the Stutz Artiano Shinoff & Holtz v.
Maura Larkins defamation case
regarding this website, Hayes took over
the case from Quinn.
My suspicions about how this might have
happened were confirmed on
personal interest in the outcome
of a case, and she gets that case
put on her calendar by simply
asking a friend at the courthouse,
she has clearly subverted the
impartiality of the justice system.
This is exactly what happened in Stutz v.
Larkins, the defamation suit against this
author.
San Diego Superior Court claims that
cases are randomly assigned to judges,
but there have been some troubling
exceptions to this rule.
When cases are assigned to Judge
Linda Quinn, she has repeatedly passed
them directly to Judge Judith Hayes
rather than sending them "back to the
wheel" for a random assignment.
In a way, it's sort of sweet. They have a
case-sharing arrangement like two
kindergarten teachers sharing art
projects.
In the Stutz Artiano Shinoff & Holtz v.
Maura Larkins defamation case
regarding this website, Hayes took over
the case from Quinn.
My suspicions about how this might have
happened were confirmed on
Judge Linda
Quinn
Quinn
Judge, San Diego
Superior Court
(1989-2012), Municipal
Court (1987-89), Civil
Independent Calendar for
10 years, Supervisor Civil
Division (2005-07)
Partner, Platt, Tebbets &
Baelhauf, (1983-1987) full
service commercial
business law firm with
emphasis on real estate
litigation
Superior Court
(1989-2012), Municipal
Court (1987-89), Civil
Independent Calendar for
10 years, Supervisor Civil
Division (2005-07)
Partner, Platt, Tebbets &
Baelhauf, (1983-1987) full
service commercial
business law firm with
emphasis on real estate
litigation
Associate, Platt, Tebbets &
Peterson, (1978-1983) full
service commercial
business law firm with
emphasis on real estate
litigation
EDUCATION &
PROFESSIONAL
AFFILIATIONS
J.D., California Western
School of Law, San Diego
(1977)
B.A., University of
California, San Diego
(1973)
Peterson, (1978-1983) full
service commercial
business law firm with
emphasis on real estate
litigation
EDUCATION &
PROFESSIONAL
AFFILIATIONS
J.D., California Western
School of Law, San Diego
(1977)
B.A., University of
California, San Diego
(1973)
Cases passed directly between Judge Hayes and
Judge Linda B. Quinn
(some involving Daniel Shinoff)
Judge Linda B. Quinn
(some involving Daniel Shinoff)
Judge Judith Hayes
Education: Catholic
University of America
...a private university
located in
Washington, D.C.
Acceptance rate:
87% (2010)
University of America
...a private university
located in
Washington, D.C.
Acceptance rate:
87% (2010)
Sept. 18, 2009 when Judge Hayes was very late in arriving, and the substitute bailiff
got into a long, meandering conversation with some of the lawyers sitting in the gallery.
I happened to be sitting behind the attorneys.
Eventually one lawyer asked about bailiff about how cases ended up with Judge Hayes
when they had been assigned to Judge Quinn. Officer P. said that the judges handled
"overflow" cases for each other. He justified Hayes' acquisition of Quinn's cases by
saying "Quinn does overflow" for Hayes, although I am not aware of any cases that
were transferred from Judge Hayes to Judge Quinn.
Judge Quinn presided at one of the hearings in my case after she transferred the case
to Hayes, when Hayes was apparently unable to make it to the courthouse.
It all sounds pretty "fluffy" to me, to use a term favored by Judge Quinn (see right
column). Judge Quinn was worried about city officials having "too much discretion", but
she has taken an unseemly amount of discretion upon herself.
I wish Marco Gonzalez were concerned with whether or not the court follows court rules.
It's not enough to demand that only the city follow court rules.
got into a long, meandering conversation with some of the lawyers sitting in the gallery.
I happened to be sitting behind the attorneys.
Eventually one lawyer asked about bailiff about how cases ended up with Judge Hayes
when they had been assigned to Judge Quinn. Officer P. said that the judges handled
"overflow" cases for each other. He justified Hayes' acquisition of Quinn's cases by
saying "Quinn does overflow" for Hayes, although I am not aware of any cases that
were transferred from Judge Hayes to Judge Quinn.
Judge Quinn presided at one of the hearings in my case after she transferred the case
to Hayes, when Hayes was apparently unable to make it to the courthouse.
It all sounds pretty "fluffy" to me, to use a term favored by Judge Quinn (see right
column). Judge Quinn was worried about city officials having "too much discretion", but
she has taken an unseemly amount of discretion upon herself.
I wish Marco Gonzalez were concerned with whether or not the court follows court rules.
It's not enough to demand that only the city follow court rules.
Judge Sharon Armstrong (a
graduate of Catholic University like
Judge Judith Hayes)
graduate of Catholic University like
Judge Judith Hayes)
Judges from everywhere
Marcia Kagnoff,
Jeffrey Essakow,
Daniel Shinoff
and
Judge Judith Hayes
04/01/09 08:45AM C-68 CV
Hayes, Judith F.
Ex Parte 37-2007-00065902-CL-BC-CTL
C)Jeffery Essakow
Daniel R. Shinoff
ANTHONY T DITTY VS. GEORGE HUNT
37-2007-00065902-CL-BC-CTL San
Diego
Case Type: Civil
Date Filed: 05/01/2007
Category: CL-BCW
Breach of Contract/Warranty
Plaintiff/Petitioner
DITTY ANTHONY T
[lawyer, "intervener" in case at
left]
ESSAKOW
JEFFERY
KAGNOFF
MARCIA
MOYHI DARUSH
RAGHAVEN SREEN
Defendant/Respondent
HUNT GEORGE
PROPTECH INC
KAGNOFF MARCIA
C
[It looks like either or both
George Hunt and Proptech,
Inc. felt that Marcia Kagnoff
was particularly responsible for
problems, so they countersued
her. But that shouldn't be a
problem for Marcia, since her
pal Shinoff is the attorney for
the plaintiffs--and Shinoff owes
her a favor (see next
article).]
Marcia Kagnoff illegally
turned over Kaiser Medical
records to her friend Dan
Shinoff in 2003. I don't know
what Mr. Shinoff was hoping to
find, but he didn't find it. the
records did him no good at all.
When Maura Larkins asked
Ms. Kagnoff why she had done
it, she said, "We have to do
what the lawyers tell us."
Apparently she meant, "I
always do what family friend
Dan Shinoff wants."
Jeffrey Essakow,
Daniel Shinoff
and
Judge Judith Hayes
04/01/09 08:45AM C-68 CV
Hayes, Judith F.
Ex Parte 37-2007-00065902-CL-BC-CTL
C)Jeffery Essakow
Daniel R. Shinoff
ANTHONY T DITTY VS. GEORGE HUNT
37-2007-00065902-CL-BC-CTL San
Diego
Case Type: Civil
Date Filed: 05/01/2007
Category: CL-BCW
Breach of Contract/Warranty
Plaintiff/Petitioner
DITTY ANTHONY T
[lawyer, "intervener" in case at
left]
ESSAKOW
JEFFERY
KAGNOFF
MARCIA
MOYHI DARUSH
RAGHAVEN SREEN
Defendant/Respondent
HUNT GEORGE
PROPTECH INC
KAGNOFF MARCIA
C
[It looks like either or both
George Hunt and Proptech,
Inc. felt that Marcia Kagnoff
was particularly responsible for
problems, so they countersued
her. But that shouldn't be a
problem for Marcia, since her
pal Shinoff is the attorney for
the plaintiffs--and Shinoff owes
her a favor (see next
article).]
Marcia Kagnoff illegally
turned over Kaiser Medical
records to her friend Dan
Shinoff in 2003. I don't know
what Mr. Shinoff was hoping to
find, but he didn't find it. the
records did him no good at all.
When Maura Larkins asked
Ms. Kagnoff why she had done
it, she said, "We have to do
what the lawyers tell us."
Apparently she meant, "I
always do what family friend
Dan Shinoff wants."
Judith Hayes' ironic decision in R. K. Butterfield v.
Will Lightbourne (Director of CA Dept of Social Services
by Maura Larkins Aug. 6, 2013
Judith Hayes was right to open up the records of the DSS to
public scrutiny. But why does she insist that public schools
be wrapped in secrecy?
Perhaps because she liked the Plaintiff in this case, a co-founder of the Child
Abuse Prevention Foundation of San Diego County (now known as
Promises2Kids), the organization that brought us the horrific Dale Akiki case
(see box below).
Hayes has been known to rule based on her personal feelings (see "Judge Judith
Hayes' inconsistencies in two cases about websites and free speech" below).
Will Lightbourne (Director of CA Dept of Social Services
by Maura Larkins Aug. 6, 2013
Judith Hayes was right to open up the records of the DSS to
public scrutiny. But why does she insist that public schools
be wrapped in secrecy?
Perhaps because she liked the Plaintiff in this case, a co-founder of the Child
Abuse Prevention Foundation of San Diego County (now known as
Promises2Kids), the organization that brought us the horrific Dale Akiki case
(see box below).
Hayes has been known to rule based on her personal feelings (see "Judge Judith
Hayes' inconsistencies in two cases about websites and free speech" below).
Dale Akiki was born with Noonan syndrome, a rare genetic disorder which left him
with a concave chest, club feet, drooping eyelids and ears.
Akiki served with his wife as a volunteer baby-sitter with the Faith Chapel church in
Spring Valley, California. He was arrested and charged with 35 counts of child abuse
and kidnapping in 1991, and held without bail for 30 months before trial.[2] The
government filed its first case against Akiki on May 10, 1991, in San Diego Superior
Court.[3] A second case was prosecuted against him on February 20, 1992.[4]
The campaign against him was initiated by Jack and Mary Goodall, the former
being the CEO of Jack in the Box, who stated that they found his physical
appearance, coupled with his working contact with the children of the church
in his capacity as a volunteer, "disturbing".
Mary Avery was the founder of the San Diego Child Abuse Prevention
Foundation, to which Goodall was the largest financial contributor.
During the investigations, few records were kept of the interviews with children
and Avery tried to ban the use of the term "ritual abuse" (a synonym for satanic ritual
abuse), techniques which were useful in obtaining prosecutions in an environment
that was increasingly skeptical of allegations of satanic ritual abuse.
His trial started in the spring of 1993. The cases against him included no physical
evidence, but allegations of satanic ritual abuse including testimony that he
killed a giraffe and an elephant in front of the children, drank human blood in
satanic rituals, and had abducted the children away from the church despite
being unable to drive.
His trial of 9 months (including 6 weeks of jury selection and 7 and a half weeks
of evidence) was the longest in San Diego County history. The jury took seven
hours to reach its "not guilty" verdict in November 1993.[7] Afterwards, the
members of the jury would complain about the "overzealous prosecutors", "child
sexual abuse syndrome", and "therapists on a witch-hunt."[8] Despite his acquittal,
some of the parents involved remained convinced that he was guilty.[6] The deputy
district attorney and lead prosecutor Mary Avery disputed the claims that the nine
children were systematically brainwashed by parents and therapists...
On August 25, 1994, Akiki filed a suit against the County of San Diego, Faith
Chapel Church, and many others which was settled for $2 million.
with a concave chest, club feet, drooping eyelids and ears.
Akiki served with his wife as a volunteer baby-sitter with the Faith Chapel church in
Spring Valley, California. He was arrested and charged with 35 counts of child abuse
and kidnapping in 1991, and held without bail for 30 months before trial.[2] The
government filed its first case against Akiki on May 10, 1991, in San Diego Superior
Court.[3] A second case was prosecuted against him on February 20, 1992.[4]
The campaign against him was initiated by Jack and Mary Goodall, the former
being the CEO of Jack in the Box, who stated that they found his physical
appearance, coupled with his working contact with the children of the church
in his capacity as a volunteer, "disturbing".
Mary Avery was the founder of the San Diego Child Abuse Prevention
Foundation, to which Goodall was the largest financial contributor.
During the investigations, few records were kept of the interviews with children
and Avery tried to ban the use of the term "ritual abuse" (a synonym for satanic ritual
abuse), techniques which were useful in obtaining prosecutions in an environment
that was increasingly skeptical of allegations of satanic ritual abuse.
His trial started in the spring of 1993. The cases against him included no physical
evidence, but allegations of satanic ritual abuse including testimony that he
killed a giraffe and an elephant in front of the children, drank human blood in
satanic rituals, and had abducted the children away from the church despite
being unable to drive.
His trial of 9 months (including 6 weeks of jury selection and 7 and a half weeks
of evidence) was the longest in San Diego County history. The jury took seven
hours to reach its "not guilty" verdict in November 1993.[7] Afterwards, the
members of the jury would complain about the "overzealous prosecutors", "child
sexual abuse syndrome", and "therapists on a witch-hunt."[8] Despite his acquittal,
some of the parents involved remained convinced that he was guilty.[6] The deputy
district attorney and lead prosecutor Mary Avery disputed the claims that the nine
children were systematically brainwashed by parents and therapists...
On August 25, 1994, Akiki filed a suit against the County of San Diego, Faith
Chapel Church, and many others which was settled for $2 million.
(contd from above) The public has a right to investigate agency
failures, and this right should apply to all public agencies, including
schools, that are charged with helping children.
Hayes herself is just as "inconsistent" as the DSS. Many children's lives are
permanently damaged by the failures of our education system, but Judge
Hayes' rulings protected Dan Shinoff from turning over documents he collected
at Chula Vista Elementary School District and from being deposed in a lawsuit
he himself brought against this website in order to silence this author. These
decisions of Judge Hayes were in conflict with the law and the right of the
public to know what's going on when schools violate the law and want to keep
it secret.
CAI Executive Director, Prof. Robert Fellmeth Leads Victory for
Children in SB 39 Litigation
Torero Life Events USD
January 3, 2013
Handing child advocates a sweeping victory in their effort to prevent child deaths, a San
Diego superior court judge has struck down regulations issued by the state Department
of Social Services that blocked the press and the public’s ability to discover why local
child welfare agencies failed to act to prevent a child from being fatally abused or
neglected.
Judge Judith F. Hayes ruled that the department’s regulations
were “inconsistent and in conflict with” Senate Bill 39 (Migden)...
“The judge ruled correctly that the regulations impeded the Legislature’s aim
of encouraging public analysis and discussion of local child welfare practices in
order to prevent child deaths,” said Steve Keane, an attorney at Morrison & Foerster
LLP who argued the case on behalf of the plaintiff.
...Executive Director of the Children’s Advocacy Institute (CAI) and University of
San Diego School of Law Professor Robert Fellmeth, who was co-counsel in the
lawsuit...[said]
“Everyone — including the public ultimately responsible for the running of
government programs —has a moral obligation to prevent children from needlessly
dying.”
... Ed Howard, legislative advocate for the Children's Advocacy Institute, remarked that "it
is understandable that social workers and others do not want to be unfairly blamed for a
death they failed to prevent, and we know that hindsight is always 20-20, but all
concerned need to give way to the public's right to know
because sometimes that hindsight allows us to improve
decisions to remove or to leave in place — and to prevent future deaths."...
Rob Butterfield, the plaintiff and a co-founder of the Child
Abuse Prevention Foundation of San Diego County (now known
as Promises2Kids), noted that "the state still has not adopted law and regulations
to address properly the 'near deaths' from abuse reporting requirement of federal law.
After compliance here, that is properly next on the list."
failures, and this right should apply to all public agencies, including
schools, that are charged with helping children.
Hayes herself is just as "inconsistent" as the DSS. Many children's lives are
permanently damaged by the failures of our education system, but Judge
Hayes' rulings protected Dan Shinoff from turning over documents he collected
at Chula Vista Elementary School District and from being deposed in a lawsuit
he himself brought against this website in order to silence this author. These
decisions of Judge Hayes were in conflict with the law and the right of the
public to know what's going on when schools violate the law and want to keep
it secret.
CAI Executive Director, Prof. Robert Fellmeth Leads Victory for
Children in SB 39 Litigation
Torero Life Events USD
January 3, 2013
Handing child advocates a sweeping victory in their effort to prevent child deaths, a San
Diego superior court judge has struck down regulations issued by the state Department
of Social Services that blocked the press and the public’s ability to discover why local
child welfare agencies failed to act to prevent a child from being fatally abused or
neglected.
Judge Judith F. Hayes ruled that the department’s regulations
were “inconsistent and in conflict with” Senate Bill 39 (Migden)...
“The judge ruled correctly that the regulations impeded the Legislature’s aim
of encouraging public analysis and discussion of local child welfare practices in
order to prevent child deaths,” said Steve Keane, an attorney at Morrison & Foerster
LLP who argued the case on behalf of the plaintiff.
...Executive Director of the Children’s Advocacy Institute (CAI) and University of
San Diego School of Law Professor Robert Fellmeth, who was co-counsel in the
lawsuit...[said]
“Everyone — including the public ultimately responsible for the running of
government programs —has a moral obligation to prevent children from needlessly
dying.”
... Ed Howard, legislative advocate for the Children's Advocacy Institute, remarked that "it
is understandable that social workers and others do not want to be unfairly blamed for a
death they failed to prevent, and we know that hindsight is always 20-20, but all
concerned need to give way to the public's right to know
because sometimes that hindsight allows us to improve
decisions to remove or to leave in place — and to prevent future deaths."...
Rob Butterfield, the plaintiff and a co-founder of the Child
Abuse Prevention Foundation of San Diego County (now known
as Promises2Kids), noted that "the state still has not adopted law and regulations
to address properly the 'near deaths' from abuse reporting requirement of federal law.
After compliance here, that is properly next on the list."
Man's trial starts in
bouncers' deaths
Life-without-parole
sentence possible
By Leslie Wolf Branscomb
UNION-TRIBUNE STAFF WRITER
February 14, 2003
The murder trial of a Chula Vista man
accused of gunning down two
bouncers at the Bonita Store began
yesterday in San Diego Superior Court.
Prosecutor Doug Rose detailed in his
opening statement how Michael
Savala went to the restaurant for a
Cinco de Mayo party, but was thrown
out. Savala got a gun from his car and
killed both men, Rose said.
There could have been a third victim,
Rose said. A customer at the bar was
hit by a a stray bullet, but it ricocheted
off a rivet on the man's bluejeans,
leaving him unharmed.
Nearly two years have passed since
Basilio Beltran, 39, and Jesse
Vasquez, 22, were slain. Savala fled
after the shooting, but was soon
identified as a suspect.
He was caught in Tijuana a year ago
and returned to U.S. authorities on
their promise that he would not face
the death penalty.
Savala, 23, is charged with two counts
of murder, carrying a loaded firearm
and firing into an inhabited dwelling. If
convicted, he could be sentenced to
life in prison without parole.
A third bouncer at the bar that night,
Jorge Ibarra, testified yesterday that
Savala came in with three friends, one
of whom was drunk and obnoxious.
Ibarra said he warned the intoxicated
man to stop drinking, but he continued
to drink beer. Vasquez told the group
to leave several times, but Savala
refused, he said.
Ibarra said Savala jumped to his feet
and wrestled with Vasquez before they
fell to the floor, where Vasquez
punched Savala repeatedly. Savala
was dragged outside by Beltran and
Vasquez. Moments later, there were
gunshots.
Beltran was shot outside the bar.
Ibarra said he saw Savala shoot
Vasquez as Vasquez ran back inside.
Rose said Vasquez was killed by the
first shot to his head, but that Savala
shot him twice more in the torso.
Savala's attorney, Thomas
Warwick, did not give an
opening statement and
declined to say what his
defense will be.
While questioning Ibarra,
Warwick focused on his lack of
professional training as a
bouncer and on the bloody
beating Savala took at the hands
of Vasquez.
Savala filed suit last year against
the Bonita Store, claiming the
two bouncers beat him
excessively. In the suit, Savala
claimed he was playing the role
of peacemaker that night, but
was "kicked senseless." The
lawsuit, which has been
dismissed, did not mention that
Savala was charged with
murdering the men.
Because the defense
waived a jury trial,
Superior Court Judge
Judith Hayes will
determine Savala's
guilt or innocence.
bouncers' deaths
Life-without-parole
sentence possible
By Leslie Wolf Branscomb
UNION-TRIBUNE STAFF WRITER
February 14, 2003
The murder trial of a Chula Vista man
accused of gunning down two
bouncers at the Bonita Store began
yesterday in San Diego Superior Court.
Prosecutor Doug Rose detailed in his
opening statement how Michael
Savala went to the restaurant for a
Cinco de Mayo party, but was thrown
out. Savala got a gun from his car and
killed both men, Rose said.
There could have been a third victim,
Rose said. A customer at the bar was
hit by a a stray bullet, but it ricocheted
off a rivet on the man's bluejeans,
leaving him unharmed.
Nearly two years have passed since
Basilio Beltran, 39, and Jesse
Vasquez, 22, were slain. Savala fled
after the shooting, but was soon
identified as a suspect.
He was caught in Tijuana a year ago
and returned to U.S. authorities on
their promise that he would not face
the death penalty.
Savala, 23, is charged with two counts
of murder, carrying a loaded firearm
and firing into an inhabited dwelling. If
convicted, he could be sentenced to
life in prison without parole.
A third bouncer at the bar that night,
Jorge Ibarra, testified yesterday that
Savala came in with three friends, one
of whom was drunk and obnoxious.
Ibarra said he warned the intoxicated
man to stop drinking, but he continued
to drink beer. Vasquez told the group
to leave several times, but Savala
refused, he said.
Ibarra said Savala jumped to his feet
and wrestled with Vasquez before they
fell to the floor, where Vasquez
punched Savala repeatedly. Savala
was dragged outside by Beltran and
Vasquez. Moments later, there were
gunshots.
Beltran was shot outside the bar.
Ibarra said he saw Savala shoot
Vasquez as Vasquez ran back inside.
Rose said Vasquez was killed by the
first shot to his head, but that Savala
shot him twice more in the torso.
Savala's attorney, Thomas
Warwick, did not give an
opening statement and
declined to say what his
defense will be.
While questioning Ibarra,
Warwick focused on his lack of
professional training as a
bouncer and on the bloody
beating Savala took at the hands
of Vasquez.
Savala filed suit last year against
the Bonita Store, claiming the
two bouncers beat him
excessively. In the suit, Savala
claimed he was playing the role
of peacemaker that night, but
was "kicked senseless." The
lawsuit, which has been
dismissed, did not mention that
Savala was charged with
murdering the men.
Because the defense
waived a jury trial,
Superior Court Judge
Judith Hayes will
determine Savala's
guilt or innocence.
Robles case: Judge Hayes was first reversed, then affirmed after a jury trial.
Why didn't she allow a jury trial on punitive damages?
Court of Appeal, Fourth District, Division 1, California.
Joaquin B. ROBLES, Plaintiff, Appellant and Respondent,
v.
AUTOZONE, INC., Defendant, Respondent and Appellant.
No. D049259. (Super.Ct.No. GIS006945). July 22, 2008.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Judith F. Hayes and William S. Cannon, Judges. Affirmed.
Charles Moore, Simpson & Moore, San Diego, CA, for Plaintiff, Appellant and Respondent.
Gregg C. Sindici, Littler Mendelson, San Diego, CA, for Defendant, Respondent and Appellant.
HUFFMAN, Acting P.J.
This appeal is another phase of the effort by Joaquin B. Robles, plaintiff, appellant
and respondent, to obtain an award of punitive damages in this false imprisonment
action against his former employer, defend
ant, respondent and appellant, AutoZone, Inc. (AutoZone).
In the first trial in this action, Robles obtained a jury verdict in his favor for
compensatory damages for false imprisonment. That jury found AutoZone's employee,
Octavio Jara (Jara), acting within the course and scope of his employment, had falsely
imprisoned Robles in the course of an internal company loss prevention investigation,
and it awarded Robles $73,150. However, the trial court granted a nonsuit on the
request for punitive damages, and Robles appealed.
In the prior opinion issued by this court, we upheld the compensatory damage
award but reversed the order granting nonsuit. (Robles v.
AutoZone (Nov. 2, 2004, D041499) [nonpub. opn.] (our prior
opinion).)
We determined that sufficient evidence had been presented to
go to a jury on whether, under Civil Code section 3294, subdivision (b), it would be
permissible to impose punitive damages on AutoZone if it, as an employer, maintained
corporate policies that were followed consistently over time in corporate operations, that
effectively authorized conduct by employees, carried out in the course of their duties,
that was oppressive, fraudulent or malicious.
See more HERE.
Why didn't she allow a jury trial on punitive damages?
Court of Appeal, Fourth District, Division 1, California.
Joaquin B. ROBLES, Plaintiff, Appellant and Respondent,
v.
AUTOZONE, INC., Defendant, Respondent and Appellant.
No. D049259. (Super.Ct.No. GIS006945). July 22, 2008.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Judith F. Hayes and William S. Cannon, Judges. Affirmed.
Charles Moore, Simpson & Moore, San Diego, CA, for Plaintiff, Appellant and Respondent.
Gregg C. Sindici, Littler Mendelson, San Diego, CA, for Defendant, Respondent and Appellant.
HUFFMAN, Acting P.J.
This appeal is another phase of the effort by Joaquin B. Robles, plaintiff, appellant
and respondent, to obtain an award of punitive damages in this false imprisonment
action against his former employer, defend
ant, respondent and appellant, AutoZone, Inc. (AutoZone).
In the first trial in this action, Robles obtained a jury verdict in his favor for
compensatory damages for false imprisonment. That jury found AutoZone's employee,
Octavio Jara (Jara), acting within the course and scope of his employment, had falsely
imprisoned Robles in the course of an internal company loss prevention investigation,
and it awarded Robles $73,150. However, the trial court granted a nonsuit on the
request for punitive damages, and Robles appealed.
In the prior opinion issued by this court, we upheld the compensatory damage
award but reversed the order granting nonsuit. (Robles v.
AutoZone (Nov. 2, 2004, D041499) [nonpub. opn.] (our prior
opinion).)
We determined that sufficient evidence had been presented to
go to a jury on whether, under Civil Code section 3294, subdivision (b), it would be
permissible to impose punitive damages on AutoZone if it, as an employer, maintained
corporate policies that were followed consistently over time in corporate operations, that
effectively authorized conduct by employees, carried out in the course of their duties,
that was oppressive, fraudulent or malicious.
See more HERE.
Judge Hayes denies jury trials for punitive damages
Stutz, Artiano Shinoff & Holtz v. Larkins
Judge Hayes refused to allow a jury trial on damages after throwing
out all the evidence of Defendant Maura Larkins (author of this website) and throwing
out Larkins' opposition to summary adjudication. Then, without setting aside the
summary adjudication, Judge Hayes granted a DEFAULT judgment to
Stutz law firm, including $10,000 punitive damages, but the
punitive damages were overturned. Stutz did not show Larkins'
ability to pay, and therefore no punitive damages were
allowable. Surely Judge Hayes knew this.
Judge Hayes refused to allow a jury trial on damages after throwing
out all the evidence of Defendant Maura Larkins (author of this website) and throwing
out Larkins' opposition to summary adjudication. Then, without setting aside the
summary adjudication, Judge Hayes granted a DEFAULT judgment to
Stutz law firm, including $10,000 punitive damages, but the
punitive damages were overturned. Stutz did not show Larkins'
ability to pay, and therefore no punitive damages were
allowable. Surely Judge Hayes knew this.
Man Gets 6 Years for Attacks on Women
SAN DIEGO
LA Times
March 31, 2000
In one of the state's first hate-crime convictions for attacks on
women, an ex-convict Thursday was sentenced to six years in prison. "A woman should
not walk in fear of unprovoked attacks," Superior Court Judge Judith Hayes told Billy
Dean McCall, 29, in sentencing him for attacks on four women, including the
daughter of Police Chief David Bejarano.
McCall was also fined $1,200. McCall was convicted of one hate-crime felony for attacking
a woman outside a bar after he had just been rebuffed by another woman. McCall was also
sentenced on four misdemeanor assault counts, including the attack on Yvonne
Bejarano. McCall violently pushed the 18-year-old, an assault captured by a
department store security camera.
SAN DIEGO
LA Times
March 31, 2000
In one of the state's first hate-crime convictions for attacks on
women, an ex-convict Thursday was sentenced to six years in prison. "A woman should
not walk in fear of unprovoked attacks," Superior Court Judge Judith Hayes told Billy
Dean McCall, 29, in sentencing him for attacks on four women, including the
daughter of Police Chief David Bejarano.
McCall was also fined $1,200. McCall was convicted of one hate-crime felony for attacking
a woman outside a bar after he had just been rebuffed by another woman. McCall was also
sentenced on four misdemeanor assault counts, including the attack on Yvonne
Bejarano. McCall violently pushed the 18-year-old, an assault captured by a
department store security camera.
Catholic University is
the alma mater of
Judge Judith Hayes.
The university has
produced judges
whose behavior is
considerably outside
the norm.
the alma mater of
Judge Judith Hayes.
The university has
produced judges
whose behavior is
considerably outside
the norm.
Charles Koch
Professors like Jerry Z. Muller make it
clear why Mr. Koch loves Catholic
University of America. Mr. Muller might
look like Albert Einstein, but he doesn't
think like Albert Einstein.
clear why Mr. Koch loves Catholic
University of America. Mr. Muller might
look like Albert Einstein, but he doesn't
think like Albert Einstein.
Compare the Zavala case to this
startlingly similar brawler-gets-
gun-from-car-and-kills-two-
men case from Florida
After Bar Brawl
Escalates Into A Deadly
Shooting, Court Lets
Shooter Off Thanks To
Stand Your Ground
By Nicole Flatow
Think Progress
January 6, 2014
"After Bar Brawl Escalates Into A
Deadly Shooting, Court Lets
Shooter Off Thanks To Stand
Your Ground"
In 2008, what started as a
confrontation in a South Florida
Chili’s restaurant ended with a
shooting that left two 24-year-old
men dead, after Gabriel Mobley
went to his car and retrieve a
gun. While the trial judge
found that Mobley was not
immune from prosecution
using the state’s Stand Your
Ground law, a 2-1 appeals
court overturned that
finding last week,
holding that Mobley
was justified in using
deadly force.
If the ruling stands, Mobley will
be immune from all criminal and
civil charges, thanks to the
Stand Your Ground law that
gained notoriety after the
shooting of Trayvon Martin.
The incident started, when two
men approached Mobley’s
female coworkers sitting at the
restaurant bar. Mobley’s friend
asked the men to leave, but
Mobley later approached them
to make peace and explain that
there had been a
misunderstanding. Later, Mobley
became worried when he saw
them staring with what he
thought was a “mean, cold [look]
on his face” and then later
banging on the window while
standing outside the restaurant.
Mobley told his friend he thought
they should leave the
restaurant. At this point video
surveillance footage shows that
he went to his car, retrieved his
gun, and returned to the front of
the restaurant to smoke a
cigarette.
A few seconds later, one of the
two men, Jason Jesus Gonzalez,
approached and punched
Mobley’s friend, although the
details of the scenario are in
dispute. Then his friend Rolando
Carrazana approached. Mobley
said he saw Carrazana reach
under his shirt and believed he
was pulling out a gun. He began
firing shots, delivering critical
injuries to both men, who later
died. No guns or weapons
were found on either man,
although two knives were
found on the ground nearby.
Mobley was later charged with
second-degree murder, but
requested a hearing under the
Stand Your Ground law to argue
that he was entitled to immunity.
The trial judge found that he was
not, in part because he had
returned to his car to get a gun,
and fired without issuing any
warning that he had a gun or
attempting to mitigate the
situation first.
But on appeal, two judges
disagreed with this finding. “It
may have been more prudent for
Mobley and Chico to skitter to
their cars and hightail it out of
there when they had the chance;
however, as even the State
concedes and the court below
recognized, Mobley and Chico
had every right to be where they
were, doing what they were
doing and they did nothing to
precipitate this violent attack,”
the judges wrote.
The dissenting judge, Vance E.
Salter, pointed out that appeals
court judges typically overturn
rulings to correct legal errors,
not to re-interpret the facts. He
lamented that his colleagues
had in this case made their own
independent determination
about facts that were in
considerable dispute, without the
benefit of having heard the 13
witnesses who testified before
the trial judge, or viewing the
surveillance video. The
surveillance footage, for
example, calls into question
whether Carrazana even
appeared to be reaching for a
weapon, Salter said.
The ruling will likely be appealed
to the Florida Supreme Court
and stands as the latest test of
Florida’s Stand Your Ground
law, which authorizes the use of
deadly force with no duty to
retreat if they reasonably fear
imminent death or great bodily
harm. In another Florida case
last month, a judge granted
immunity to a man who shot an
acquaintance for threatening to
beat him up.
In Stand Your Ground cases,
judges and prosecutors
frequently interpret the absence
of a duty to retreat as eliminating
any duty to mitigate the harm.
The trial judge, for example,
pointed out that Mobley did
nothing to warn the two men that
he was about to fire, or to fire a
warning shot. But the appeals
court ruling countered, “The
statute contains no warning
requirement.”
In fact, while moves to limit or
repeal the Stand Your Ground
law have failed, the Florida
legislature is now advancing a
bill to expand Stand Your
Ground immunity to warning
shots.
startlingly similar brawler-gets-
gun-from-car-and-kills-two-
men case from Florida
After Bar Brawl
Escalates Into A Deadly
Shooting, Court Lets
Shooter Off Thanks To
Stand Your Ground
By Nicole Flatow
Think Progress
January 6, 2014
"After Bar Brawl Escalates Into A
Deadly Shooting, Court Lets
Shooter Off Thanks To Stand
Your Ground"
In 2008, what started as a
confrontation in a South Florida
Chili’s restaurant ended with a
shooting that left two 24-year-old
men dead, after Gabriel Mobley
went to his car and retrieve a
gun. While the trial judge
found that Mobley was not
immune from prosecution
using the state’s Stand Your
Ground law, a 2-1 appeals
court overturned that
finding last week,
holding that Mobley
was justified in using
deadly force.
If the ruling stands, Mobley will
be immune from all criminal and
civil charges, thanks to the
Stand Your Ground law that
gained notoriety after the
shooting of Trayvon Martin.
The incident started, when two
men approached Mobley’s
female coworkers sitting at the
restaurant bar. Mobley’s friend
asked the men to leave, but
Mobley later approached them
to make peace and explain that
there had been a
misunderstanding. Later, Mobley
became worried when he saw
them staring with what he
thought was a “mean, cold [look]
on his face” and then later
banging on the window while
standing outside the restaurant.
Mobley told his friend he thought
they should leave the
restaurant. At this point video
surveillance footage shows that
he went to his car, retrieved his
gun, and returned to the front of
the restaurant to smoke a
cigarette.
A few seconds later, one of the
two men, Jason Jesus Gonzalez,
approached and punched
Mobley’s friend, although the
details of the scenario are in
dispute. Then his friend Rolando
Carrazana approached. Mobley
said he saw Carrazana reach
under his shirt and believed he
was pulling out a gun. He began
firing shots, delivering critical
injuries to both men, who later
died. No guns or weapons
were found on either man,
although two knives were
found on the ground nearby.
Mobley was later charged with
second-degree murder, but
requested a hearing under the
Stand Your Ground law to argue
that he was entitled to immunity.
The trial judge found that he was
not, in part because he had
returned to his car to get a gun,
and fired without issuing any
warning that he had a gun or
attempting to mitigate the
situation first.
But on appeal, two judges
disagreed with this finding. “It
may have been more prudent for
Mobley and Chico to skitter to
their cars and hightail it out of
there when they had the chance;
however, as even the State
concedes and the court below
recognized, Mobley and Chico
had every right to be where they
were, doing what they were
doing and they did nothing to
precipitate this violent attack,”
the judges wrote.
The dissenting judge, Vance E.
Salter, pointed out that appeals
court judges typically overturn
rulings to correct legal errors,
not to re-interpret the facts. He
lamented that his colleagues
had in this case made their own
independent determination
about facts that were in
considerable dispute, without the
benefit of having heard the 13
witnesses who testified before
the trial judge, or viewing the
surveillance video. The
surveillance footage, for
example, calls into question
whether Carrazana even
appeared to be reaching for a
weapon, Salter said.
The ruling will likely be appealed
to the Florida Supreme Court
and stands as the latest test of
Florida’s Stand Your Ground
law, which authorizes the use of
deadly force with no duty to
retreat if they reasonably fear
imminent death or great bodily
harm. In another Florida case
last month, a judge granted
immunity to a man who shot an
acquaintance for threatening to
beat him up.
In Stand Your Ground cases,
judges and prosecutors
frequently interpret the absence
of a duty to retreat as eliminating
any duty to mitigate the harm.
The trial judge, for example,
pointed out that Mobley did
nothing to warn the two men that
he was about to fire, or to fire a
warning shot. But the appeals
court ruling countered, “The
statute contains no warning
requirement.”
In fact, while moves to limit or
repeal the Stand Your Ground
law have failed, the Florida
legislature is now advancing a
bill to expand Stand Your
Ground immunity to warning
shots.
More Judith Hayes
cases
cases
Lawyers who skipped the First
Amendment: Michelle Bachmann and
Judith Hayes (San Diego Superior Court
judge)
Michele Bachmann is calling on the Feds to imprison
everyone criticizing the Koch brothers.
Daily Kos notes, "Bachmann, who must have skipped
class when the First Amendment was taught at her law
school, believes critics of Charles and David Koch
should be indicted on RICO anti-racketeering charges."
Bachmann attended Oral Roberts University School of
Law. Perhaps they teach the Constitution differently
there, but Judge Judith Hayes knows better. She
attended University of San Diego School of Law. So why
has she pretended, in Stutz v. Larkins, that she doesn't
know what the First Amendment says?
Amendment: Michelle Bachmann and
Judith Hayes (San Diego Superior Court
judge)
Michele Bachmann is calling on the Feds to imprison
everyone criticizing the Koch brothers.
Daily Kos notes, "Bachmann, who must have skipped
class when the First Amendment was taught at her law
school, believes critics of Charles and David Koch
should be indicted on RICO anti-racketeering charges."
Bachmann attended Oral Roberts University School of
Law. Perhaps they teach the Constitution differently
there, but Judge Judith Hayes knows better. She
attended University of San Diego School of Law. So why
has she pretended, in Stutz v. Larkins, that she doesn't
know what the First Amendment says?
Judge Judith Hayes
Michele Bachmann
Just how far to the extreme right is Catholic
University of America? Charles Koch likes it
a lot, giving $1 million to business school
University of America? Charles Koch likes it
a lot, giving $1 million to business school
May 2, 2014
The Coast News
Judge orders environmental impact report for 'Desert Rose': "The council was wrong to approve
the development in northeastern Olivenhain without seeking such a document, Judge Judith
Hayes said..."
The Coast News
Judge orders environmental impact report for 'Desert Rose': "The council was wrong to approve
the development in northeastern Olivenhain without seeking such a document, Judge Judith
Hayes said..."
| News, information and ideas about our education system, courts and health care by Maura Larkins |
Friendly judges
"In pleading guilty, [Former San
Diego Superior Court presiding
judge Michael Greer admitted
helping Frega win cases by
providing inside information,
devising legal strategies and
steering the cases to
"friendly" judges."
"In pleading guilty, [Former San
Diego Superior Court presiding
judge Michael Greer admitted
helping Frega win cases by
providing inside information,
devising legal strategies and
steering the cases to
"friendly" judges."
SD Superior Court
administration Michael C. Roddy
administration Michael C. Roddy
Posts re electing judges
(from Role Model Lawyers blog)
(from Role Model Lawyers blog)
See all posts regarding this case.
On August 20, 2014 the Court of Appeal issued a remittitur in Stutz v. Larkins (see document below).
But Judge Judge Hayes issued a new judgment two weeks ago--on August 6, 2014--in San Diego Superior
Court!
In typical fashion, Judge Hayes didn't bother to have her clerk serve me with the judgment. I didn't know
about it until I was served with a copy by plaintiff on August 19, 2014.
I have no idea why the Court of Appeal bothered to issue the remittitur. Judge Hayes certainly wasn't waiting
for it.
It turns out that there's case law that says that Judge Hayes did not have jurisdiction on August 6, 2014 to
issue a new judgment:
‘Until remittitur issues, the lower court cannot act upon the reviewing court’s decision; remittitur ensures in
part that only one court has jurisdiction over the case at any one time.” (People v. Saunoa (2006) 139 Cal.
App.4th 870, 872.)
On August 20, 2014 the Court of Appeal issued a remittitur in Stutz v. Larkins (see document below).
But Judge Judge Hayes issued a new judgment two weeks ago--on August 6, 2014--in San Diego Superior
Court!
In typical fashion, Judge Hayes didn't bother to have her clerk serve me with the judgment. I didn't know
about it until I was served with a copy by plaintiff on August 19, 2014.
I have no idea why the Court of Appeal bothered to issue the remittitur. Judge Hayes certainly wasn't waiting
for it.
It turns out that there's case law that says that Judge Hayes did not have jurisdiction on August 6, 2014 to
issue a new judgment:
‘Until remittitur issues, the lower court cannot act upon the reviewing court’s decision; remittitur ensures in
part that only one court has jurisdiction over the case at any one time.” (People v. Saunoa (2006) 139 Cal.
App.4th 870, 872.)
Remittitur issued in Stutz v. Larkins on Aug. 20, 2014--but Judge Judith
Hayes had already issued a new default judgment TWO WEEKS EARLIER
Hayes had already issued a new default judgment TWO WEEKS EARLIER
[91002. No person convicted of a misdemeanor under this title shall be a
candidate for any elective office or act as a lobbyist for a period of four years
following the date of the conviction unless the court at the time of sentencing
specifically determines that this provision shall not be applicable...Any person
violating this section is guilty of a felony.
[Does that mean it's a felony for such persons to run for office?]
candidate for any elective office or act as a lobbyist for a period of four years
following the date of the conviction unless the court at the time of sentencing
specifically determines that this provision shall not be applicable...Any person
violating this section is guilty of a felony.
[Does that mean it's a felony for such persons to run for office?]
Terse orders
“The court’s unexplained orders don’t always live up to its otherwise high standards of legal
craft,” said William Baude, a law professor at the University of Chicago. “The court doesn’t
tell us its reasoning..."
“The court’s unexplained orders don’t always live up to its otherwise high standards of legal
craft,” said William Baude, a law professor at the University of Chicago. “The court doesn’t
tell us its reasoning..."
Judge Hayes issues judgment without jurisdiction in defiance of
the Court of Appeal. Fortunately for Hayes, the Court of Appeal
covered up for her by issuing a Remittitur two weeks later.
the Court of Appeal. Fortunately for Hayes, the Court of Appeal
covered up for her by issuing a Remittitur two weeks later.
"Affluenza" teen's family also
refused to show up for
depositions--but the Texas judge
didn't behave like Judith Hayes
Before 'Affluenza' Case, Teen's
Family Tangled With the Law
By Reese Dunklin,
Associated Press
Jan 29, 2016
..Fred Couch's roofing and construction
company, Cleburne Sheet Metal, was sued in
1996 over a roughly $100,000 debt.
Two plaintiff firms alleged he tried to
move assets, and twice attempted to
question him and Tonya Couch, court
records show. The couple failed to show
up for both depositions.
A judge sanctioned them and gave them a
deadline to pay, which they missed by several
weeks...
refused to show up for
depositions--but the Texas judge
didn't behave like Judith Hayes
Before 'Affluenza' Case, Teen's
Family Tangled With the Law
By Reese Dunklin,
Associated Press
Jan 29, 2016
..Fred Couch's roofing and construction
company, Cleburne Sheet Metal, was sued in
1996 over a roughly $100,000 debt.
Two plaintiff firms alleged he tried to
move assets, and twice attempted to
question him and Tonya Couch, court
records show. The couple failed to show
up for both depositions.
A judge sanctioned them and gave them a
deadline to pay, which they missed by several
weeks...