Tuesday, April 8, 2014

The Stutz Artiano Shinoff & Holtz v. Larkins case is a window into how San Diego Superior Court functions; also, two decisions by Judge Lisa Schall overturned

Our justice system works some of the time. But is that enough? How much of the time does it function adequately? And how often is it abused by the powerful to achieve unjust goals that harm the public good?

Is Judith Hayes a typical San Diego Superior Court judge or is she unusual in her brazen refusal to follow the law when she wants a litigant to lose?

See a synopsis of Judge Hayes' actions in the defamation case against me by Stutz Artiano Shinoff & Holtz. The case record could serve as a manual for judges who want to deprive a defendant of a jury trial. I have not been able to find any attorney who knows of another case in which a default was granted AFTER summary adjudication. If Judge Hayes' actions are upheld by the Court of Appeal, I imagine it will happen more often.

I don't want to believe that Judith Hayes is typical of San Diego judges. I want to believe that many, if not most, of our Superior Court judges are interested in honestly applying the law to every case. Still, assuming that there is a majority of judges who carefully follow the law, I have come to believe that it is not an overwhelming majority.

I have learned over the past few years that a good number of Judge Hayes' colleagues feel that their job is simply to churn out decisions that preserve the status quo for people in power in both public and private spheres. It's not a justice system for these judges, it's a decision-making system meant to preserve the power of whatever individuals, no matter how incompetent or corrupt, have attained positions of influence. It's no wonder our schools are failing, our pocketbooks are shrinking and our quality of life is diminishing.

This is why I support the election of federal prosecutor Carla Keehn to replace Judge Lisa Schall. We need judges who aren't completely plugged-in to the current web of alliances at the court.

We need to chip away wherever we can at the power of those who prevent change for the better in how people and organizations treat each other in San Diego.

My own case is a testament to the disregard for the law by many highly respected members of the local bar, including attorneys who have contracts with local public entities.

I have defended myself from Stutz Artiano Shinoff & Holtz to the best of my ability even though I knew that I would continually make serious errors in my conduct of the case. My goal was to create a record, which would be valuable whether I won or lost. In fact, it is more valuable when I lose. By winning, I don't prove that the justice system works, I only prove that it worked on one occasion.

The record of my case is a fascinating story. USD professor Shaun Martin was kind enough to take over one of my appeals pro bono (and give me a win in the Court of Appeal), but he was not in a position to work on the complex and compromised Superior Court case. If one of the other 5000 local members of the bar had been willing to stand up to Stutz Artiano Shinoff & Holtz, I would have more money, but I wouldn't know how corrupt the Superior Court--and the myriad officers of that court--can be. I'm glad I know. Ignorance isn't as blissful as some people claim.

Et tu, ACLU? Can the ACLU be "bought" by those opposed to free speech?

I owe a debt of gratitude to David Loy, the San Diego ACLU general counsel, for providing me with some hard evidence of the connection between power and injustice in San Diego. Mr. Loy instructed me to take down every mention of Stutz law firm on my websites--even though Mr. Loy said the ACLU wasn't going to give me any legal advice. Perhaps Mr. Loy figured that if he was simply intimidating me, that wouldn't count as legal advice. Obviously, Mr. Loy's behavior was diametrically opposed to the principles to which he has devoted his career.

I would never have believed the truth if I hadn't experienced it directly.

Mr. Loy is on the record praising himself for reaching settlements with Stutz lawyer Dan Shinoff regarding student speech in schools. It would seem that the deals Mr. Loy struck with Stutz caused him to feel obliged to undermine employee speech in schools on be. His goal was apparently to get good publicity for the ACLU, and he figured no one would ever know how much effort he put into enforcing an injunction that the Court of Appeal found to be unconstitutional.

Perhaps money also has something to do with the actions of the San Diego ACLU. They may have figured that they needed money to achieve SOME of their goals, and calculated that it would be a good bargain to abandon some of their principles in exchange for contributions. The San Diego ACLU has made it clear that it wants to focus on certain specific issues, including immigration and gay rights. But are immigrants and gay individuals really being served by making San Diego a 1st-Amendment-free zone?

I am not surprised that former executive director Kevin Keenan chose to leave the San Diego ACLU. I suspect he tries not to think about some of the cases he was forced to work on, or prevented from working on. The bizarre Johnson v. Poway Unified School District case comes to mind, in which the San Diego ACLU insisted that local high school students should be forced to sit in class under large signs with Christian messages on them. That was a case in which the San Diego ACLU should have been on Dan Shinoff's side.


It seems likely that mine is not the only case in which Judge Judith Hayes ignored the facts and the law. Certainly District Attorney seems to believe that Judge Hayes did the same thing in the criminal court. Hayes was forced to move to civil court when the district attorney's office refused to try any cases before Judge Hayes.

I suspect that Judge Hayes abused many individuals who didn't have enough money to pay for their own attorneys. The Public Defenders office is famous for getting criminal defendants to plead guilty. I sometimes felt that when Hayes spoke to me, she was repeating the exact words she had said to threaten criminal defendants.

Two decisions of Judge Lisa Schall reversed

Sometimes I think judges might just be lazy, repeating their usual actions instead of thinking hard about a case.

San Diego Trial Court REVERSED (Again) in MOVE-AWAY Case
Thurman Arnold
May 3, 2011

Parental Relocations and Move-Away

In response to a recent article I posted about the case of F.T. vs. L.J., the mother of the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked her. I am grateful that family law litigants in these published appeals are increasingly airing their side of the experience here, and I invite you to as well!

The decision in her daughter's case was published on Friday, last week, so I now understand what the maternal grandmother, "Shelly," was referencing.

My sense is that appellate courts are expecting more out of trial judges, like never before, and lawyers too, to be sure, and therapists and court services personnel and litigants themselves! An interesting footnote is that the father's attorneys in this case were certified family law specialists, and (presumably) local San Diego heavyweights, and the mother represented herself and yet succeeded "against all odds." Is this an Elkins Aftermath, leveling the playing field for unrepresented parties against experienced adversaries?

Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115

In Mark T. v. Jamie Z. certified for publication on April 28, 2011 by the Fourth Appellate District, a San Diego trial court was again reversed in a move-away case where she effectively refused to permit a custodial parent to move out of state without addressing what custody orders should issue if the parent did move. In F.T. vs. L.J. it was the Father who wanted to relocate - here it was the Mother but in both cases it was the same judicial officer.

Judge Lisa C. Schall doesn't like move-aways, it appears. These applications challenge the non-moving parent and can negatively impact a child's access to that parent, and disrupt parent-child bonding, if a holistic parenting plan under the move-away regime is not developed.

Judge Schall bears the indignity of being reversed twice now in less than 30 days in a reported appellate decision - quite a scolding. Family law is damned tough for judicial officers, who are doing their best to protect children and weigh in consistently with the cutting edge policies of current mental health science as well as their in-house (FCS) advisors. The problem at present is that the opinions of MHP's (mental health providers), and the wisdom of the reviewing courts, are in conflict. The science of move-away as it affects families from the MHP perspective is still developing, and it collides with certain cherished assumptions the law makes about the rights of Americans, and specifically parents in California under our current statutory scheme (see Family Code section 7501 and the Burgess case) to move freely.

In both cases Judge Schall accepted (mostly) the independent opinions of outside, court-appointed, mental health forensics and ignored the opinions of the Family Court Services mediator - here the very same Lynne Waldman who made recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's move away request should be granted, noting that Jamie had been L.'s primary caretaker since his birth, that Jamie had been unable to find a job in San Diego and was "living in poverty," and that Jamie appeared "to have a clear plan for the move."

Judge Schall now has two strikes against her for using judicial body language to create a result that she felt was fair and appropriate, and her findings on the record illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us are doing the best we can. Trial judges, however, have a script they must follow.

In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with a 22 month old child who had indeed been the child's "primary caretaker since birth." By effectively coercing Mom not to move by denying her move-away request, and by ignoring the question of "in whose custody" the child's best interests were served" or what arrangement should be imposed were Mom to move, Judge Schall committed reversible error. The justices ruled:

"The court must decide de novo what physical custody arrangement would be in the child's best interests, assuming that the requesting parent will relocate ." Therapist Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family for the Court and opined that "[t]his examiner understands the importance of having extended family around for support however this cannot be justified as being in [L.'s] best interest[s] when it means removing him from a loving and capable father. Jamie stated that she did not have an active father in her life and very much wants that to happen for [L.] It would be virtually impossible for Mark to be an active father from across the country." Dr. Love urged the child was too young for the move and went on to recommend that Mom not "be permitted to move out of the County of San Diego. At the same time, this forensic therapist was unwilling to recommend a primary change in custody and assumed that the mother would in fact remain the primary caretaker in San Diego county. She made no recommendations about what custodial arrangement should become effective when or if the Mother moved.

The appellate justices ruled: "Where, as here, a parent who shares joint custody of a minor makes a request to relocate the child in the context of an initial custody determination, the trial court must decide de novo what physical custody arrangement would be in the child's best interests. In making its custody determination, the court must proceed on the assumption that the parent who is making the request will relocate his or her own residence, regardless of whether the court grants or denies the request. In this case, the court erroneously failed to conduct its best interests analysis based on the presumption that Jamie would be relocating to Minnesota."

The trial court adopted the recommendations of Dr. Love, even though Dr. Love failed to address what should happen if and when Jamie relocates out of state. "The very issue that Dr. Love was supposed to address is what parenting plan would be in L.'s best interests, given that Jamie intended to move to Minnesota .... The court misapplied the law in adopting Dr. Love's recommendations, because in making those recommendations, Dr. Love incorrectly assumed that preserving the status quo parenting arrangement was an option, even in the face of Jamie's expressed intent to move...." At trial the Father's attorney asked Mother whether she would move if the court were to deny her request to relocate, and Mom's response showed she was tortured by the question. The appellate court ruled that this question by counsel was improper - courts cannot consider whether the primary parent might alter their plan of relocate depending upon how the court rules. As a trial lawyer this is interesting to me, because this question is often used to telegraph a message to the Court that implies it can deny the move because the moving parent evidently doesn't want to move 'badly enough.'

Apparently the trial court suspected Mother's motives for moving might include frustrating Father's access, but the court did not actually make such findings. "The court's comments regarding Jamie's reasons for moving to Minnesota appear to constitute second-guessing as to the wisdom of Jamie's decision to move (i.e., questioning the "necessity" of the relocation), as opposed to a finding that her decision to move was made 'simply to frustrate the noncustodial parent's contact with the minor child.'" There is no requirement that a parent who has the right to custody of a child establish the necessity of a proposed move. "[E]ven where the court finds that a move away request is being made in bad faith, the court must view this finding as only one potential factor in deciding whether to allow the child's residence to be moved; it does not permit the court to deny the move away request on the presumption that in denying the request, the court can assure that the requesting parent will not in fact move, and that the court can thereby maintain the status quo parenting arrangement. That one parent may have been motivated, in part, to relocate the child's residence by a desire to lessen the child's contact with the other parent does not mean that the court should apply any standard other than what would be in the best interests of the child."

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