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BE VERY CAREFUL IF YOU ARE TEMPTED TO GO JUDGE SHOPPING

by Stewart D. Jenkins on 11/17/15

During the more than 36 years I have practiced law folks who have tried to handle their cases by themselves, and some who have struck out represented by other lawyers, have asked me to take over their cases after they have lost at one or more preliminary hearings.

Frequently these folks have concluded that they, or their prior lawyer, didn’t present all of the evidence, or didn’t argue the law properly.  Usually the TEN [10] DAY PERIOD that they had following entry of a ruling or an order to set a hearing asking the Judge to reconsider based on new evidence, or new law, that was not available at the hearing they lost has passed by the time these folks have made their way to my office [See California Civil Code or Procedure, Section 1008].  This may leave them in a situation where they are stuck; where their only remedy is an expensive Petition to the Court of Appeal for a Writ or in some rare situations an expensive filing of an Appeal of the Superior Court’s interim decision.

A litigant is very, very, rarely privileged to disqualify a Judge after the Judge decides matters at a hearing.   Sometimes, though, changes in judicial assignments, judicial retirements, or other factors come together in a way where a different Superior Court Judge (who may have a slightly different approach) causes folks to ask their lawyer, or their new lawyer, to ask the new Judge to overrule the Judge that they struck out with earlier in their case. 

There are some instances where this is possible; though clients need to know that “generally, one trial judge may not reconsider and overrule an interim ruling by another trial judge” in the same case. 

An experienced attorney can help a client in appropriate cases convince a second Judge to backtrack and make a different ruling; but only if he or she can develop evidence and arguments taking advantage of the few narrow exceptions to the general rule.  Competent Counsel may be able to demonstrate in a Family Law Proceeding that “facts have changed” or “further evidence and law” now mandate a different outcome.  If facts exist, an attorney can help client’s prove in a divorce, paternity, custody or support matter the other party tricked the first Judge into making the wrong decision by presenting fraudulent, perjured or mistaken evidence. See In re the Marriage of Oliverez (2015) 190 Cal.Rptr. 436, 441-442.

Care and good judgment are critical in deciding whether to try to get a second Judge to overrule an earlier decision by the first Judge.  Financial sanctions and attorney’s fees are generally the “reward” for litigants who try, but fail, to convince a second Judge that Judge number one was all wet when ruling against them.  Parties in any civil suit, particularly in legal separation, dissolution, parental relations or support cases, are well advised to steer away from the attempt to convince a second Judge that an earlier Judge was wrong without professional representation and advice from an experience competent attorney.

Spousal Support – Judges Barred from making Cookie Cutter Decisions

by Stewart D. Jenkins on 05/27/15

“An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines.”  In re Marriage of Kerr.  Periodically the Legislature adds factors to be considered by courts, but ultimately the evidence presented about the individual circumstance of the parties determines how much spousal support will be paid; and how long it will be paid.

More than the length of the marriage is considered. 

One spouse who devoted themselves to raising children and maintaining the household may now not have marketable skills to return to the workforce.  One spouse may have a high earning ability giving them the ability to pay support. 

But if those high earnings far exceed the standard of living that both spouses had during the marriage, a Court may limit the amount to be paid to the amount it will take to keep the supported spouse at (but not above) the marital station in life.

Health or disabilities are factors that must be considered, if evidence is presented. 

Job opportunities or the willingness of a supporting spouse to provide funds for the education and retraining of a supported spouse to regain their earning capacity are all factors a Court will consider if properly presented.

An experienced family law lawyer is usually needed to present the complex factual and legal factors for a favorable spousal support, alimony or separate maintenance order during a divorce, dissolution of marriage or legal separation.  Post judgment motions to modify or terminate support require just as significant evidence.

Child Support – should it include Child Care Costs and the Cost of Travel to Visits in California?

by Stewart D. Jenkins on 05/21/15

California dictates factors that a Judge must calculate in Child Support cases in a complex matrix of statutes in its Family Code.  Nevertheless, there are factors that a custodial or visiting parent can argue to increase or to decrease the amount of child support to be collected or paid. 

For instance Family Code § 4062 requires on request a Judge order that “Child care costs related to employment or to reasonably necessary education or training for employment skills” be paid by a parent.  The focus is on employment now, or in the future.  In litigation over child support Judges cannot avoid ordering payment of child care costs; unless those costs are unrelated to the custodial parent’s current of future employment.  Occasionally a visiting parent can take advantage of this statute.

On the other hand, Judges have the choice of how to apportioning travel for visiting between the parents.  This is a discretionary decision.  So these kinds of expenses may, or may not, be used to increase or decrease the amount of support paid by a visiting parent.   Generally a Judge is looking for extraordinary travel expenses.  Costs equating with an ordinary commute that a parent might incur for work are not the kind of expense a Judge is likely to consider to reduce a visiting parent’s support, or to increase a custodial parent’s support if the custodial parent is providing the transportation.  Travel from Ohio to California for visits may make a clearer case for an adjustment in support, depending on other circumstances.

An experience family law lawyer can help you review and prepare the kind of evidence need to help a Judge make a favorable decision on these kinds of child support issues.

San Luis Obispo's chance to turn lead into gold

by Stewart D. Jenkins on 05/06/15

 The Tribune newspaper: published 4/23/2015 - Viewpoint  

Like most resident and taxpayers, I think the San Luis Obispo City Council should be seeding our public tax dollars in ways that grow private jobs for people living right here in town. Why shouldn’t people living in San Luis be the folks who get the work building our town’s streets, water systems, and city buildings?  Shouldn’t our town’s stores, shops, restaurants, barbers and hairdressers benefit from having more local customers?  Wouldn’t this mean local residents could better afford the high price of a modest home in San Luis Obispo?

Our City Council repeatedly issues bid invitations to construct city facilities. But the bidding process used by San Luis Obispo does not require the winning contractor to employ plumbers, electricians, masons, welders, ironworkers, carpenters, equipment operators or laborers who live in San Luis Obispo.

On April 21, for instance, the City Council considered advertising for bids on two construction projects estimated to cost $1.6 million to replace a storm drain on High Street and a 16-inch waterline on California Boulevard and Johnson Avenue. But the council did not discuss requiring the winning bidder to hire local workers for these or any other city projects.

That means winning out-of-town bidders can import workers from places such as Bakersfield, Fresno and Santa Maria who by law must be paid the same good prevailing wage that a San Luis Obispo worker would be paid. That money pulled out of San Luis Obispo instead boosts the Bakersfield, Fresno or other distant economies.

California law allows our city an easy way to require local-hire by the private contractors constructing city facilities and infrastructure, at no added cost.  California’s Public Contract Code permits a city to enter into a project labor agreement for all construction projects that will require any contractor winning the bid to hire local residents to build city projects (whether it be a bridge, sewer upgrade, or a new city police station).

Here’s where the turning lead into gold comes in. It is something most of us intuitively know.  With a local-hire requirement, whatever contractor wins a city bid, the money is paid to local workers. It stays here.  A local cement mason’s wage will get spent here buying gas, paying for a barber, taking his family to the movies, and buying produce. Those dollars will be spent again and again. The barber buys groceries, the grocer buy more produce, and the theater and gas station pays their employees here. The produce farmer will spend those dollars again at Costco, and the theater employee will use them taking a date to dinner, and on and on as this money circulates.  It is well established that a project labor agreement will boost a city’s local economy, multiplying by 400% to 700% the public construction dollars spent.

Don’t be fooled by rabid anti-union arguments.  Project labor agreements are “union neutral” by law.

The Public Contract Code imposes taxpayer protection provisions on project labor agreements.  Both union contractors and non-union contractors, in and out of town, are eligible to bid and win the city’s contracts. Both union contractors and non-union contractors who are city residents are eligible for jobs governed by the agreement on a first-applied, first-hired basis. Strikes and lockouts are forbidden.  Both union and non-union workers must be provided with health and welfare, pension, vacation, and training benefits - enriching our local community.  And union hiring halls bear all administrative expenses, even though non-union workers must be dispatched to the jobs and provided union Health and Pension benefits.

The math is not complicated. If San Luis Obispo had an adopted project labor agreement that $1.6 million spent on the storm drain and waterline would generate between $6.4 million and $11.2 million in new economic activity right here in SLO.  

Attorney Stewart Jenkins has been practicing law in San Luis Obispo since 1978. His practice includes municipal and taxpayer law.

 The Tribune newspaper: published 4/23/2015 - Viewpoint  

Spousal Abuse and Spousal Support. When is one a defense against the other?

by Stewart D. Jenkins on 10/03/14

Spousal Abuse and Spousal Support.  When is one a defense against the other?

In an opinion issued September 10, 2014, the California Second District Court of Appeal considered an appeal by Mary from a Superior Court order terminating her non-modifiable spousal support 7 years after Judgment had been entered ordering her husband to pay her for life.  Of real importance to the case was the fact that Mary’s husband had agreed to the non-modifiable support to pay Mary, and had stipulated that she was permanently disabled in 2004.

The California Legislature had adopted a new statute [Family Code § 4325] effective in 2002, however, which dictated that if one spouse was convicted of committing domestic violence against the other within five years before either filed to dissolve their marriage, that this fact raised “a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal supportshould not be made to the abusive spouse.

Mary had raised a number of defenses to applying the statute to terminate her spousal support.  For instance, she had been convicted in 2000, two years before the new statute went into effect.  The Court rejected her ex post facto argument – holding that requiring an abused spouse to pay a convicted abuser would be “unconscionable,” would “unjustly enrich” the abuser, would “force victims of abuse to remain dangerously entangled in the abuser’s web of violence and intimidation,” and would require “the abused spouse to finance his own abuse.” 

Mary argued in various ways that her husband could not make a motion to terminate support he had agreed to pay two years after the law went into effect, and 10 years after he had signed the agreement to entry of Judgment requiring him to pay.  The court held that the right of an abused spouse to be free from, or to be freed from, paying support to their abuser was so important a public policy right that it could not be waive.  The fact that Mary’s husband had never asserted that right before did not deprive him to assert it now [Mary’s husband had argued he did not know about existence of a statute allowed him to avoid supporting his abusive spouse].  The Court reasoned that because it was against public policy to require a victimized spouse to pay support to a convicted abuser, it did not matter whether the Husband knew or did not know he had a right to oppose support or to terminate support whether agreed to or whether ordered.

Does this affect dissolution of marriage between every victimized spouse from a convicted abuser?  Yes, but the case leaves open one potential exception that has yet to be defined by either the Legislature or by any Court case.  And that Family Code § 4325 sets up a “rebuttable presumption affecting the burden of proof” that a convicted abuser should never receive spousal support. None of the Appellate Courts that have address when facts or circumstances might rebut or overcome the presumption.

 Just as every case turns on unique facts, and every family navigates different circumstances, ultimately situations triggering a Family Code § 4325 will depend on careful analysis, full presentation of evidence, and insightful lawyering.  For all the facts of Mary’s case, you can look up In re the Marriage of Kelkar (2014) ___ Cal.App.4th __, 176 Cal.Rptr.3d 905

 

What is Community Property?

by Stewart D. Jenkins on 05/22/14

What is Community Property?  And how is it different from other kinds of ownership?

Simon & Garfunkel’s song “America” begins with "Let us be lovers we'll marry our fortunes together, I've got some real estate here in my bag.” 

But does California law really make husbands and wives “marry their fortunes together?”  Most married couples will buy a house as “husband and wife” or as “joint tenants” during their marriage.  But what does that mean if a husband buys a car from his payroll check only in his name during the marriage, or a wife opens a business during the marriage with money she earned after marriage and puts the business profits into a checking account in her name only?  What happens if one spouse buys a lot during the marriage in his or her name only?  Does it matter how title is held to property acquired during marriage?

These are questions as old as California.  Marital property law in California always viewed property acquired by either spouse as “a community of property between husband and wife, [borrowed] from the Spanish law.”  There “is hardly any analogy between … the doctrines of the common law in respect to the rights of property consequent upon marriage.” California’s law of marital property “proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. No form of transfer or mere intent of parties can overcome this positive rule of law. All property is common property, except that owned previous to marriage or subsequently acquired in a particular way.”  Meyer v. Kinzer (1859) 12 Cal. 247, 250-252.  Though at odds with the English common law (where married women had little or no right to own, manage or inherit property), this seemingly simple “partnership” concept has been, and continues to be, the subject of litigation (see for instance my posting on the majority and concurring opinions issued by the California Supreme Court Case on In re the Marriage of Frankie Valli and Randy Valli decided May 15, 2014).

To understand the concepts, it helps to translate some of the phases into modern terms.  For instance “equally contributing by his or her industry to [the marriage’s] prosperity” easily means that someone working for a pay check, or working in a business they open is using his or her time, skill, and labor to generate income for the marriage.  Less obvious, but just as true, a spouse who maintains the house, raises the children, arranges medical appointments and supporting the other spouse in their efforts to work or build a business is contributing their “industry” to make it possible for the working spouse to maximize their earnings.  So every dollar earned through work of either spouse belongs equally to both.

What does this mean in the context of the questions posed at the beginning of this post? 

Let’s take the husband who bought a car in just his name with his paycheck [I know, nice pay check] during the marriage.  It does not matter what the title says, the car is community property belonging to both spouses.  

Wife owns a 50% interest in the car. How about the wife who opened a business during marriage which she alone manages, and deposits the profits from the business into an account in her name only?  Again, the business, the profits, and the bank account are community property belonging to both spouses.  Husband owns half regardless of the name on the account or the business.

And if one spouse buys a parcel of land during the marriage in his or her name only.  As Meyer v. Kinzer held “No form of transfer [title on the deed] or mere intent of parties can overcome this positive rule of law,” so if the money used to buy the lot was community property it does not matter what the title says about one spouse owning, or even the intention that the spouse had when he or she bought the lot.  It would be community property, in which the other spouse owned 50%.

Are there exceptions?  Of course.  For more information, see the blog post on preserving separate property during marriage.  And see the blog post on In re the Marriage of Frankie Valli and Randy Valli about “transmutation” of property to or from a community or separate status.

 

 

Stop lawsuits brought to muzzle your freedom of speech

by Stewart D. Jenkins on 10/10/13

The Anti-SLAPP motion.  CCP § 425.16.

Each of us grows up in the United States knowing that engraved on our DNA is an inalienable right to speak, publish, and participate in local, state and national government.  This is much more than voting, writing a letter to the editor or commenting on an internet newspaper article.  So many aspects of citizen involvement are interwoven into the basic idea of Freedom of Speech, Press, Assembly and Petition that many pages would be needed just to catalog how it affects every aspect of American life.  From running for office to reporting a crime, it forms the basic fabric tying our democratic-republic together. 

 But powerful officials and individuals, who vigorously guard their own positions, sometimes do so by abusing the courts to take rights of free speech and free press away from those whose ideas or influence they fear.  Lawyer shorthand for these kinds of noxious lawsuits is to describe them as SLAPP suits (Strategic Lawsuit Against Public Participation).  Candidates, Office Holders and Government Contractors sometimes sue investigative journalists, news media, election opponents, churches, activists or whistleblowers for such things as defamation, libel, slander, invasion of privacy to try to keep them from uncovering or reporting on corruption. 

But California law contains a powerful antidote.  In 1992 the legislature found that there had been “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech” and petition and “that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”  In doing so California enacted Civil Code of Procedure § 425.16 authorizing someone victimized by a SLAPP suit to immediately ask the court to throw the case out because it stems from an “act of [of the defendant] in furtherance of the [defendant]’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”  This statute protects statements made at official meetings, to administrative agencies, at court, and reports to law enforcement.   It protects statements made in any public forum about an issue of public interest.  And it protects “any other conduct” furthering your exercise “of free speech in connection with a public issue or an issue of public interest.”  BUT, the motion is not self-actuating.  The person sued must bring the motion within 60 days of being served with the complaint (so don’t delay finding a lawyer to help you with the motion or your chance to bring it will be lost).  Hearing on an Anti-SLAPP motion is also very quick, usually less than 30 days after the motion is filed.  These are fast paced defenses.  Success is dependent on presenting factual evidence that the suit arises from an act of free speech, press, or petition in connection with a public issue.  And succeeding in the Anti-SLAPP motion also depends on undercutting several exceptions allowing plaintiffs to preserve the lawsuit in particular instances.  To save defendants from expense and delay, there is an automatic stay in the statute against plaintiffs taking depositions (or other discovery) while the motion is pending.  Exceptions to the discovery stay, and defenses of the stay, must be carefully and zealously addressed in these expedited motions to strike.

Anti-SLAPP motions are one of the best tools to protect your Constitutional rights.  They are professionally rewarding for Constitutional lawyers.  But they are not simple, not the right tool in every free speech case, and should be brought by experienced attorneys.  Happily the Legislature has made it easier for you to get help defending your freedoms.  To motivate experienced lawyers to protect your rights to free speech, press and petition rights the Legislature mandated that courts shift “the financial burden of defending against so-called SLAPP actions on the party abusing the judicial system.”  See Ketchum v. Moses (2001) 24 Cal.4th 1122, at 1136.  If you win your Anti-SLAPP motion, "Absent special circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent …." Ketchum, above, 24 Cal. 4th 1122, 1133.  In short, California’s Anti-SLAPP motion is designed to dissuade the powerful from SLAPPing journalists, whistleblowers, and ordinary citizens with lawsuits to muzzle their freedom of speech, press, or petition by making those who abuse the court system pay legal fees and costs for the journalists’, whistleblowers’, or citizens’.

Do Mothers & Fathers have equal rights in Paternity Cases?

by Stewart D. Jenkins on 08/27/13

by Stewart D. Jenkins

Do mothers and fathers have equal rights in Paternity Cases?  Yes, but a father’s rights to paternity must be earned.

In California an unwed father does not have any statutory right to assert rights to custody, visitation, or even to prevent the adoption out of a child unless he has first established a parental relationship with the child that gives him (and the child) a constitutional due process and equal protection right to continue or further develop that relationship between father and child under the 14th Amendment.

For an unwed father's relationship to “ripen into a constitutional right” he must prove that he promptly came forward and demonstrated a full commitment to his parental responsibilities.  The mere existence of a biological link does not merit constitutional protection. The U.S. Constitution only will supersede California statutes to protect the unwed father’s relationship if that father has actively developed the parental relationship by actually stepping up to participate in the rearing of his child and act toward the child as a father. 

This rule of law is best stated in a 6-1 California Supreme Court opinion authored by Justice Stanley Mosk in 1995 entitled Adoption of Michael H., 10 Cal.4th 1043, 1052.

Qui Tam Actions [a suit in the name of the King]

by Stewart D. Jenkins on 08/26/13

Private Citizens rewarded when they recoup funds fraudulently charged and paid by local governments.  The California False Claims Act.

by Stewart D. Jenkins

     Unscrupulous individuals and companies that dupe Cities and Counties into paying out false claims submitted, or collude with government officials to keep public funds from being charged or collected lawfully, can cost local governments millions of dollars.  In a Qui Tam suit, Treble Damages and other penalties can be recovered.  Where political or other factors prevent the prosecuting attorney in a City or County from bringing suit to recover the ill-gotten gains, California authorizes a private citizen can sue on behalf of their local government; and the successful private Qui Tam plaintiff shares not less than 25% and not more than 50% of the recovered funds as a reward for his or her trouble.  A successful private Qui Tam plaintiff is also entitled to an award of reasonable attorney’s fees and expenses against the defendant(s). 

Gov. C. § 12652.

      However, where a local government has declined to sue, and the private Qui Tam plaintiff fails to win, the defendant may seek an attorney’s fees and costs award in some circumstances.

by Attorney, Stew Jenkins
Disclaimer: Blog posts are NOT legal advice and NO Attorney-Client Relationship is formed by these posts or by any comments, or by comments replying to comments on this Blog. This is for general information as the laws frequently change and might be different in other jurisdictions. This Blog is not intended to substitute for advice from an attorney, licensed in your jurisdiction. Please consult a competent attorney in your area if you require legal advice. Please do not include sensitive or confidential information in your comments, replies or emails. 
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