Showing posts with label California Court of Appeal. Show all posts
Showing posts with label California Court of Appeal. Show all posts

Wednesday, August 20, 2014

Remittitur issued in Stutz v. Larkins on Aug. 20, 2014--but Judge Judith Hayes issued new default judgment TWO WEEKS EARLIER

See all posts regarding this case.

On August 20, 2014 the Court of Appeal issued a remittitur in Stutz v. Larkins. 

But Judge Judge Hayes issued a new judgment two weeks earlier--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.


Click image to enlarge.

UPDATE: 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.) 

So why did she do it?

Don't ask me.  I still don't understand why she felt it was in the interest of justice to throw out my opposition to summary judgment because I made a small mistake in format.  For good measure, she also threw out my evidence (which seems sort of redundant, right?) and then granted plaintiff's motion for summary judgment.

NO WEIGHING OF EVIDENCE, NO JURY TRIAL FOR DAMAGES

Why didn't Judge Hayes want to weigh the evidence?

And then why did she rant and rave about defamation ever since, as if the evidence had been weighed and there had been a factual finding of defamation?

There was no justification for outrage or anger when the decision was based on a pure technicality.  And there was no justification for denying me a jury trial regarding damages for four years.

Judge Hayes granted default four years after granting summary judgment.  She then awarded nominal damages of $30,000 based on the fact that there were TWO (yes, 2!!!) Internet searches for Plaintiff in a certain month. 

Here's what I wrote in my Opening Brief regarding the $30,000 in "nominal" damages:

The calculation for the $30,000 is based on a ludicrous,
unreasonable and illogical conclusion drawn from Exhibits D and E...

If the trial court had looked at Exhibit E of the prove-up, it would
have seen that visitors to Defendant’s site were looking for CVESD, CTA,
MEA, Fagen Friedman Fulfrost, Emily Shieh, Voice of San Diego Education,
Procopio, Kaiser Permanente, Vickie Gilbreath, medical records,
insurance, the new teacher project, Cornell, Bonifacio Bonny Garcia, CTA
lawyer, and Councilman Castaneda.

It isn’t until page AA 2510 that we see the
two (2!) total queries...referring to Plaintiff. 
These two queries would appear to
justify damages of $.86...

It was unreasonable for the trial court to order Defendant to pay Plaintiff
$.43 every single hit on the site, when almost all of the hits were by
Defendant herself; search robots; visitors who only stayed on the site a
second or two; people looking for health and insurance information--
particularly Kaiser Permanente; visitors wanting information about
schools, education and San Diego politics; or non-Plaintiff lawyers.

The Court of Appeal backed-up Judge Hayes, also based mostly on technicalities.

Erasing information on my websites

I've been working hard erasing web pages and blog posts that could be considered violations of  Judge Judith Hayes' injunction.

In the past couple of months I've depublished hundreds of blog posts and erased or edited several web pages.  I'm starting to erase web pages with public records:

Deposition page plus six additional pages

Motion to compel






Monday, September 30, 2013

Tri-City Healthcare loses appeal, wastes taxpayer money, in attempt to justify hostility to Kathleen Sterling


Kathleen Sterling wins; CEO Larry Anderson loses

By putting CEO Larry Anderson on administrative leave earlier this month, Tri-City Healthcare gives the appearance of an institution that might be trying to mend its ways.

Tri-City Healthcare got very personal in its efforts to destroy Kathleen Sterling, a board member who asked too many questions. When Judge Richard Mills wasn't impressed by the testimony of witnesses who were trying to help Tri-City get a restraining order against Ms. Sterling, board RoseMarie Reno suggested that the judge might have taken a bribe.

Perhaps Ms. Reno lives in such a small world that she thinks Tri-City's vendetta is the first that Judge Mills ever came across. She assumed that Judge Mills would be deeply impressed by the fact that a public entity claimed to have discovered a threat in its midst. She may have believed that the judge had never before seen public employees pressured to present overwrought accounts of non-events in an effort to get rid of someone. She must have forgotten that one of her witnesses said he did NOT feel threatened by Ms. Sterling.

These are the winning law firms:

The McMillan Law Firm, Scott A. McMillan and Evan Kalooky for Defendant and Appellant Kathleen Sterling; Spiegel Liao & Kagay and Charles M. Kagay

These are the losing law firms:

Daley & Heft, Mitchell D. Dean, Scott Noya and Lee H. Roistacher;
Horvitz & Levy, David S. Ettinger, Mitchell C. Tilner and Jeremy B. Rosen;
Procopio, Cory Hargreaves & Savitch, Evelyn F. Heidelberg and Gregory V. Moser [an erstwhile school attorney], for Plaintiff and Appellant Tri-City Healthcare District.

The decision states:

"Tri-City Healthcare District (Tri-City) petitioned for protective orders against Kathleen Sterling, an elected Tri -City board member, alleging the protective orders were necessary to prevent Sterling from committing workplace violence against specified individuals. (Code Civ. Proc., 1§527.8.) After a four-day evidentiary hearing, the court denied the petitions, finding Tri-City did not meet its burden to satisfy the required statutory elements for the protective orders..."

Workplace violence? Are they kidding?

The decision continues:

"We summarize the relevant events based on the evidence found reliable by the court. The February 24 Board meeting was scheduled to begin at 3:30 p.m. At about 3:25 p.m., Sterling attempted to enter the Board meeting room, believing the existing sanctions orders applied only during the meetings and not before the meetings. Security officer Crooks, how ever, believed the censure order barred Sterling from entering the room before and during the Board meetings... "

Paralegal says Tri-City report is wrong
She balks at hospital's version of events involving board member Kathleen Sterling
Aaron Burgin SDUT Nov. 11, 2011

This is from the opinion: "Although we agree that prejudicial error analysis requires a review of the entire record, we find Tri-City's approach of highlighting only its own evidence to be unhelpful and arguably misleading.""

Board of Directors

The Tri-City Healthcare District is governed by publicly elected Board of Directors, who represent the residents of Carlsbad, Oceanside and Vista. Click on highlighted names to contact by email.

Larry W. Schallock Chairperson
Cyril F. Kellett, MD Vice Chairperson
Julie Nygaard Secretary
RoseMarie V. Reno Treasurer
Ramona Finnila Assistant Secretary
James Dagostino, DPT, PT Assistant Treasurer
Paul V. L. Campo Member, Board of Directors

Thursday, September 12, 2013

Why is Tri-City Medical Center appealing the Superior Court's decisions about Kathleen Sterling?

UPDATE Sept. 30, 2013: KATHLEEN STERLING WINS IN COURT OF APPEAL

By putting CEO Larry Anderson on administrative leave earlier this month, Tri-City Healthcare gives the appearance of an institution that might be trying to mend its ways.


CEO Larry Anderson (now on administrative leave) wields his power in surprising ways.

The decision-makers for Tri-City want to make sure that elected officials see what happens if they don't go along with the political majority. The purpose isn't just to punish Kathleen Sterling, but to keep all elected officials in line.

From Attorney Scott McMillan's website:


July 22, 2011 - Superior Court Judge dismisses three of six counts against client Kathleen Sterling as they violate her rights to Free Speech.

On March 3, 2011, Tri-City Healthcare District filed the lawsuit against Hon. Kathleen Sterling, Director, seeking $100,000 in damages, based on the same set of facts that Tri City based its earlier restraining order proceedings upon. The suit alleged, in part, that her comments and actions were damaging the hospital’s business reputation and that she had injured several hospital personnel during an incident before a board meeting on Feb. 24. Superior Court judge in Vista issued a ruling on July 22, 2011, that struck down part of a civil lawsuit filed by Tri-City Medical Center against board member Kathleen Sterling on that grounds that it appears to violate her constitutional right to free speech. Judge Earl H. Maas ruled three of six counts in the suit are attempts to stop her from participating in hospital board meetings and speaking about hospital-related business.

The counts affected by the judge’s ruling are trespassing, injury to Tri-City’s business reputation and a request to legitimize seven sanctions against Sterling. Although stayed pending the outcome of the appeal on the denial of the restraining orders, three additional counts of battery, assault and negligence are substantively unaffected by the judge’s ruling. [Maura Larkins' comment: These charges were later dropped.]

April 04, 2011 - Client Kathleen Sterling defeats efforts to keep her from her post at Tri City Healthcare District

A judge refused Monday, April 4, 2011, to grant permanent restraining orders against Tri-City Healthcare District Director Kathleen Sterling, saying there was no clear and convincing evidence that Sterling posed a risk to the safety of board members or employees at the Oceanside medical center. Scott McMillan and Kerry Eskenas represented Director Sterling against lawyers of the tony Procopio law firm of San Diego.

Trustee RoseMarie Reno was so taken aback by the fact that the Superior Court judge wasn't impressed by the hospital's evidence that she suggested that the judge might have taken a bribe. She quickly withdrew the comment, but does not seem to have improved her thinking skills.

4th Appellate Division - San Diego
750 "B" Street Suite 300
Tri-City Healthcare District et al vs Kathleen Sterling
September 12, 2013 1:30 for Oral Arguments


See all posts re Kathleen Sterling. Kathleen Sterling's representatives are attorneys Charles Kagay (San Franciso) and Scott Mc Millan (La Mesa).

Daley & Heft law firm (Lee Rosch....?) argues for Tri-City. Tri-City appealed Judge Mills' finding of facts in the 8 restraining orders filed against an elected official who simply did her job, asking questions. Meanwhile the Procopio, Cory, Hargreaves & Savitch law firm (Board general counsel firm) have been paid for billable hours...Mitchell D. Dean, Daley & Heft is also listed on the court website.

Bret Hunt comment:
Wow! All the Tri-City patients will pay for this ridiculous appeal!

Clearly, patients have paid quite a bit more since the following article was written two years ago:


Legal tab against Tri-City trustee tops $100,000
District’s effort against board member is many-pronged
By Aaron Burgin
June 3, 2011

Oceanside — The Tri-City Healthcare District since March has spent more than $105,000 and employed nearly a dozen attorneys from three law firms in legal actions against one of its elected board members.

A judge in April denied the district’s request for a restraining order against the board member, Kathleen Sterling, who they say assaulted several hospital security guards at a Feb. 24 board meeting. The district is appealing.

Officials are suing Sterling for $100,000, alleging that her disruptive behavior has damaged the district’s reputation and embarrassed employees.

Sterling has filed counter actions, including a claim that the district is suing to silence her, and a suit to recoup her legal fees.

Legal and political experts said that while numbers are not out of the ordinary for the number and complexity of the litigation, the fact that a public district has taken these measures against an elected board member is extremely rare.

“In my 40 years in observing government, I haven’t seen anything like this,” said Bob Stern, the president of the Los Angeles-based Center for Governmental Studies and a longtime political observer. “Then again, the behavior that is alleged is unprecedented for an elected official.”

Sterling, a three-term board member who was re-elected in 2008, has frequently clashed with fellow board members, hospital administrators and staff. The district has censured her eight times for what officials call a pattern of disruptive behavior, including calling fellow board members “Nazis” and attempting to tape record closed-session meetings.

As part of her censures, Sterling has forfeited her $100 meeting stipend and must attend board meetings from a separate conference room via teleconference.

By seeking a restraining order, the hospital hopes to make Sterling stay at least 100 yards away from her colleagues and be banned from hospital property except in a medical emergency. She would have to attend meetings from another building, not just another room.

District officials said they have had to hire outside legal firms because of the number of issues they face with Sterling. They said they expect the tab to rise, but said it’s worth it to restore order to the board and keep the public safe.

“You can’t put a price on the public’s safety,” said board member Charlene Anderson, who compared Sterling to Jared Loughner, who seriously injured U.S. Rep. Gabrielle Giffords in a Jan. 8 mass shooting in Arizona. “Those people (in Arizona) would’ve gladly given $70,000 to stop him. I am that afraid something like that could come up with Sterling.”

Sterling said such allegations are ridiculous, part of ongoing district efforts to ostracize her for not being a rubber-stamp vote for CEO Larry Anderson.

“I feel I’ve been targeted because I ask questions and request supporting documents before I make an informed voting decision,” Sterling said. “But they are taking the district’s limited resources and shifting it into the lawyers to use the legal system as a bully pulpit and doing it taxpayers expense.”

Sterling’s attorney, Scott McMillan, called the district’s spending on the actions frivolous.

“What an abysmal use of taxpayer money,” McMillan said. “And for what? How much money are they going to spend before someone says enough is enough?”

McMillan said the spending is questionable because district voters have a mechanism to oust Sterling — a recall election — which no one has attempted. A recall election would cost the district $270,000 for a mail-in ballot or $860,000 for a precinct election. The district could not sponsor such an election, but district voters could.

“If they have a problem with Kathleen Sterling, they need to bring it to voters, not bring it to a judge,” McMillan said.

According to invoices provided from Procopio, the district’s contract legal firm, the firm billed the district $68,445 between March 1 and April 30, including more than $54,000 in attorneys fees for 166 hours of work and $14,000 in legal-related expenses. This does not include costs incurred during May, when the district filed its appeal. Five attorneys, who bill at $335 an hour, a clerk and a paralegal have worked on the restraining order for the firm.

The district hired Michael Curran of Encinitas-based Curran & Curran for the lawsuit. Curran billed the district $3,060 for work from Feb. 28 to March 3, but the district is expecting another bill in coming days. Curran bills at $360 an hour.

Sterling has filed a countermotion against the district that claims that the district legal actions are a “strategic lawsuit against public participation.”

Tri-City on April 21 hired a third firm to assist Curran on Sterling’s claim and other aspects of the dispute. Encino-based Horvitz and Levy has billed the district $33,559 for work performed from April 21 to May 30, Tri-City legal counsel Allison Borkheim said. Four attorneys have worked on the Sterling case, who bill the district from $290 to $460 an hour...

Saturday, July 20, 2013

Teacher Thad Jesperson gets his job back: Court of Appeal supports OAH decision, overrules Judge Nevitt

See all posts re Thad Jesperson.

Judge Reverses Firing of Teacher Tried for Molestation
March 29, 2013
By KPBS

A Fourth District Court [of Appeal in California] judge on Wednesday overturned the firing of a San Diego teacher who spent more than three years in prison after being falsely convicted of molesting second and third grade students.

In a written ruling, the judge noted that officials at Clairemont's Toler Elementary School acted erroneously when they terminated Thad Jesperson's employment in November 2008.

Jesperson was arrested in April 2003, tried three times and ultimately convicted on seven counts of molestation. He was sentenced to serve 15 years to life in prison but was released in 2007 because of misconduct on the part of jurors and ineffective assistance from his own attorney. All convictions were overturned and Jesperson asked Toler Elementary officials to reinstate him.

The school denied his request despite the overturning of all molestation convictions and a ruling from a commission on professional competence that Jesperson was fit to teach and that "the evidence (in the case) did not establish that he touched (one of the students who accused Jesperson of molestation) in the manner to which she testified, or in any other manner that was immoral or a violation of district regulations...".


The Education of Mr. J.
BY MARK SAUER
San Diego Magazine
May 2008
PHOTOGRAPH BY MAX DOLBERG

THE YOUNG THUG’S SHAVED SKULL bore a tattoo of a gargoyle holding the severed head of Jesus. He approached in slow motion, swinging his head side to side, muttering expletives. His target, Thad Jesperson, sat motionless in a corner of the jail cell reserved for snitches, gays and child molesters. The ex-teacher’s eyes were wide with terror, his ears ringing with screams from adjoining cells: “Get him! Kill him!” His nightmare—that he would not get back home safely to his family—was playing out.

The kid growled something about “Chester,” jail slang for a child molester—the worst label for an inmate. He kept coming.

Jesperson, a devout Christian and pacifist, realized that in the next moment he had to somehow convince this advancing, irrational force of something Jesperson and his attorney had failed to make clear to jurors: that he was not a molester; that he had never harmed a child.

Now others lined up, awaiting turns to impress the cheering section. Hyper-alert, Jesperson saw from the way the kid was balanced that he would swing with his right, a shot straight to the face.

Thad Jesperson knew in his heart he didn’t belong behind bars. But he had no choice now except to deal with it.

KIDS, PARENTS AND TEACHERS at William P. Toler Elementary School in Clairemont Mesa knew Jesperson as Mr. J, a fond moniker for a man many described as an immensely popular, innovative teacher. Toler was small, a few hundred students, about a third of them Hispanics bused in from the South Bay.

When first questioned, each of the girls who would later accuse him denied Mr. J had touched them inappropriately. But after repeated questioning by police detectives, parents, social workers, district attorney’s investigators and other students, the girls’ stories changed. Experienced molestation interviewers say that turnabout is not uncommon.

Concern among Toler parents was spurred by letters sent home saying a teacher was suspected of molesting students. The letters urged parents to question their children, a red flag to many child-abuse experts. In high-profile false-accusation cases a generation ago, badgering by parents and misguided therapists led to fantastic stories by youngsters of not only sexual abuse but also blood rituals and animal sacrifice in classrooms. The notorious Dale Akiki prosecution in San Diego and the McMartin Preschool case in suburban Los Angeles were two of the more famous among at least 100 such “witch hunt” prosecutions across America.

San Diego District Attorney Bonnie Dumanis vigorously defends the decision to prosecute Jesperson. She says lessons learned from the phony case against Akiki provided safeguards against false allegations in the investigation at Toler Elementary School.

Dumanis says the Jesperson case was vetted by a panel of experienced prosecutors. Her team decided the girls’ statements were strong enough to convince jurors of guilt beyond a reasonable doubt. The prosecution’s ultimate success on that score was decidedly mixed, however.

As prosecutor Tracy Prior, an 11-year veteran in the Family Protection Division, told the court, the “entire case rides on the backs of 9- and 10-year-olds.” There was no corroborating evidence, and there were no independent witnesses against Jesperson. The issue of suggestibility played a prominent role at trial.

At the time of his arrest in April 2003, Jesperson had no criminal record. The defendant, who has a master’s degree in education, came relatively late to teaching. Born in San Diego in 1964, Jesperson spent two years in South America (starting at age 20) as part of a mission with the Mormon Church. For five years, until he was 28, Jesperson owned a carpet-cleaning business. Then he decided to enter the classroom.

Married for 20 years, Sydney and Thad Jesperson have two sons and two daughters. The four kids, who range in age from 11 to 19, passed a number of significant milestones while their father was behind bars; Jesperson participated as best he could over a prison phone line and by mail.

The genesis of most of the accusations, according to court documents, came on a December day in 2002, after Jesperson walked past and said hello to five girls gathered in the schoolyard.

“Third graders Michelle, Kelcey, Dreanna, Renee and Vanessa were talking when one of the girls mentioned that [Jesperson] had touched her leg and back the previous year and that it felt ‘uncomfortable,’ ” is how one court brief put it. “Kelcey said [Jesperson] had touched her shoulder. Vanessa, who was never in any of [Jesperson’s] classes and made no accusations, testified she told the girls that such touching was ‘child molesting.’ ” She’d learned about it “on a TV program called Law and Order. ”

Michelle reported the conversation to her mother, who does not speak English. The distraught mother sought out a woman at school whom many Hispanic parents considered to be a counselor. In fact, Nellie Goodwin was the “bus lady,” a part-time employee who shepherded kids from buses and helped supervise at recess.

When Michelle’s mother told Goodwin her daughter talked with friends about Jesperson touching them, Goodwin responded: “This is not the first time we’ve had a report about this teacher. I don’t know why he is even here; he is not a good teacher.” Then Goodwin started crying and told the mother not to repeat what she had said. Goodwin, according to court testimony, said she would look into the matter; the mother would be called by the end of the day. When that call didn’t come, Michelle’s mother called San Diego Police.

Kimberly Newbold was assigned to the case. The young detective decided to interview only the girls who had been in Jesperson’s class because, she later testified, “I was looking for victims.” Despite the girls’ initial denials about “bad touching,” the questioning did not stop.

MOLESTATION ACCUSATIONS emerged and evolved through Jesperson’s preliminary hearing and his trials. They included that he rubbed girls on their thighs and backsides during reading sessions in front of the class.

Most of the alleged fondling was done through their clothing, the girls testified. But some eventually said he pulled down their underwear, or removed their “nylons,” in order to touch their “private parts.” There was no allegation of penetration, rape, oral sex or any type of act more serious than fondling.

The abuse was alleged to have occurred in a busy classroom where teachers, school staff and parents came and went freely, often to use computers. During much of the period in question, an aide to an autistic student was present in Jesperson’s class; neither she nor any other adult ever saw him inappropriately touch a child. Classroom doors and blinds were open, according to testimony, and Jesperson commonly sat in plain view at the front of the class, usually next to students he was helping learn to read.

Jesperson and his trial attorney, Robert Boyce, said the idea that a molester would choose such a setting for his crimes made no sense. But D.A. Dumanis said a molester might well operate in plain sight in order to later make that argument.

The fact that no pornography was found on the ex-teacher’s school and personal computers was an example of the prosecution trying to turn something positive for the defense into a liability, according to Jesperson’s attorneys. Prosecutor Prior emphasized to jurors that a school colleague of Jesperson’s had erased personal files and e-mail from the hard drive of Jesperson’s work computer after he was arrested and fired. “And it’s [pornography] gone forever,” Prior said in a closing argument. “There is no child pornography . . . We would never have known, because it’s now gone forever.”

But Jesperson’s lawyers noted it was routine to erase school computer files once an employee leaves. Besides, FBI investigators were able to restore 90 percent of Jesperson’s school hard drive (his home computer had not been erased), and no pornography of any kind was found.

The four kids, who range in age from 11 to 19, passed a number of significant milestones while their father was behind bars.

JESPERSON BELIEVES now the case against him was the result of two basic dynamics: the bruised feelings of a few girls from his previous second-grade class, and the bruised ego of Nellie Goodwin.

Prior to the 2002-03 school year, Jesperson had been assigned to teach the GATE (Gifted and Talented Education) third-grade class, for which students must pass an aptitude test. Some of his second-grade students, including Michelle, who made the original molestation allegation (and who had not qualified for the GATE class), approached Jesperson again and again on the playground, pleading to be in his class.

Several Toler staff members testified they had seen the girls constantly pestering Jesperson. One day late in the fall, Jesperson said, he felt especially awkward because the girls were “begging to be in my class” as he was standing next to the teacher whose class they were in.

“In what I thought was a rather stern demeanor, she said to them, ‘Don’t you get it? You can’t be in his class.’ And she said something along the lines of ‘He doesn’t want you in his class.’ It made me feel very uncomfortable; I did not want to hurt their feelings,” Jesperson said. “By the same token, it was a relief. After that, suddenly they were no longer coming up and bothering me.”

Then, at a Christmas assembly, Jesperson was asked to pass out about 20 jingle bells among more than 80 kids. Michelle was skipped over, he said, and was clearly angry. From then on, Jesperson said, her demeanor toward him changed.

“Her body language in the hallway said, ‘I don’t like you anymore.’ ” He recalls the day he said hello while walking past Michelle and the other girls. “It was clear something bizarre was happening. I saw them looking at me and whispering, and I remember thinking, ‘That can’t be good, whatever is going on there.’ ”

Jesperson, who says, “My heart goes out to those parents,” noted that when Michelle’s mother sought counsel from Goodwin, the schoolyard aide was apparently primed to disparage him. “During one of the first meetings after I came to the school [in 1998], long before any of this came about, the principal asked me to translate for the benefit of Spanish-speaking parents and kids,” he says. “I’m going around the halls speaking Spanish to these children. For me, it was one more way to interact and make my job fun.”

Translating for the principal? Interacting with Spanish-speaking parents and students? That’s what Goodwin did.

“It seems,” Jesperson says, “that I had encroached on Nellie Goodwin’s world.”

IN APRIL 2003, Jesperson was arrested, then released on $100,000 bail. Trial began the following March on 13 counts of molesting eight girls. Emily, who came forward only after the school sent the warning letters home, said the touching was over her underwear but inside her pants on the back area of her private parts.

Court documents show Emily had at first said only that Jesperson patted her leg after helping her tie her shoes. The seven other girls described various touching episodes; their parents testified about what their daughters had told them. Detective Newbold, who did not re cord her interviews, testified, as did hospital social workers, whose videotaped interviews were entered into evidence.

Aside from a parade of character witnesses, the cornerstone of Jesperson’s defense was that the children’s inconsistent, sometimes improbable, stories were the result of suggestibility.

Alison Clarke-Stewart, a professor of psychology and social behavior at the University of California, Irvine who is an expert on child suggestibility and memory, was not allowed by the court to give her opinion. Instead, the professor testified that children are more susceptible to suggestibility than adults, and if they are led to believe that someone is “a bad person,” they will reinterpret innocuous actions as inappropriate.

But in an interview, Clarke-Stewart was unequivocal about her conclusions. “I absolutely do not believe this man did any inappropriate touching with these children,” she says. “Much of it was a congratulatory thing, a pat on the leg, an arm around a child where, because he’s so large, his hand may have extended to the outside of the hip or leg. I thought it was pretty clear what happened in this case.

“The kids and parents [thought] something bad happened at the school. The girls talked a lot among themselves; contamination was likely here. Parents are in no position to do this kind of questioning—they are not trained, and they have an obvious conflict of interest. That letter [from the school to parents] was a very bad idea.”

Clarke-Stewart says she did not believe the questioning at Children’s Hospital was egregious, though. “In San Diego, people are very aware of leading children in questioning, because of previous cases, like Akiki,” she says. “Suggestibility is more subtle these days.”

A main problem: Interviewers offered children no innocent alternative explanation for Mr. J’s occasional pats on the back or leg, she says. “It was only viewed as molestation.”

The second prong of Jesperson’s defense involved personality evaluations. Forensic psychologist Clark Clipson examines sexually violent predators for local courts and usually testifies for the prosecution. Clipson, who was hired by Boyce, has evaluated hundreds of sex offenders, including many teachers.

“I felt much more strongly about this case than I do about most,” says the soft-spoken Clipson. “I saw nothing to indicate this man is sexually attracted to children in any way. He came out with a very clean psychological evaluation.”

The jury in the first trial found Jesperson guilty on a single count involving Emily. Jurors either voted for acquittal or were unable to reach verdicts on the 12 other counts. They did reach a verdict, however, on the allegation that he had abused multiple victims: That was not true, the jury said.

With the conviction, Jesperson’s bail was revoked, and he went to jail. Prosecutors prepared to try him a second time on the hung charges.

WHEN THE KID with the gruesome tattoo on his skull swung with his right, Jesperson threw his left arm up and blocked the blow. Then he stood to his full 6 feet 4 inches, held the attacker at arm’s length and said: “You don’t know who I am.”

“You mean you’re not a Chester?” the kid said.

“No,” Jesperson replied, “I am definitely not a Chester. I am a father of four children, been married for 20 years, and my only objective is to get home safely. You have no worries with me.”

With that, the situation was defused. It turned out to be Jesperson’s only violent confrontation behind bars.

Early on in county jail at Vista, Jesperson says, he encountered a 300-pound, heavily tattooed lifer named San Quentin Steve “who scared me to death.” But San Quentin Steve befriended him on the spot, Jesperson says, telling him it was obvious he did not belong there. The convicted killer and former addict then proceeded to teach him how to survive.

Jesperson believes San Quentin Steve was an angel sent by God.

“Basically, he said to hold my head up high, no matter what,” says Jesperson. “He said respect is something that is earned and I would ultimately be judged by who I was, and that regardless of what was being said about me, I knew in my heart who I was . . . the rest would work itself out. And he was right.”

During nearly four years in county jails and state prisons, Thad Jesperson saw stabbings and beatings, riots and lockdowns. He spent almost 100 days in solitary confinement “for my own safety.” He was denied visits by his children, even though a judge had approved them.

While Jesperson was locked up, his daughter Lauren, now 19, learned to drive, graduated from high school, had her first dates and became an independent, working college student. His daughter Sherie, now 18, was voted homecoming princess at her high school, was elected junior-class president and accepted at two universities. His son, James, now 13, took up the clarinet and soccer, qualified for his Eagle Scout badge and won several writing awards. And youngest son Thomas, 11, finished elementary school, joined a soccer team, learned to play the saxophone and guitar and embarked on his own Boy Scout career.

In addition to working on her husband’s defense cases and interacting with hundreds of supporters, Sydney Jesperson built a home-based accounting career. Those skills came in handy as three trials devastated the family’s finances. Donations from church members, family and hundreds of friends are what sustained his family, Jesperson says, enabling them to keep their house and keep the kids clothed and fed.

Jesperson’s second trial mirrored his first. Jurors struggled with the case, eventually convicting him on a single count while acquitting him or disagreeing on 10 others. Their lone conviction was vacated by the trial judge, who ruled juror bias had tainted the verdict.

In his third trial, however, Jesperson was found guilty on seven counts of molesting four of his former students. In February 2005, Superior Court Judge David Danielson sentenced him to 15 years to life in prison, with no possibility of parole for 12 years.

Jesperson, who had refused to discuss plea-bargains that may have gained his freedom earlier—one huge concern was having to register as a sex offender and not being able to be around children ever again, especially future grandchildren—vowed to rely on his faith in God, the love of his family and many supporters and the positive bonds he had forged with several prisoners, to see him through. Steeling himself for the ordeal ahead, he said he dared not hope an appeal filed on his behalf by esteemed San Diego attorney Chuck Sevillia would bear fruit.

ON THE MORNING of September 15, 2007, Jesperson walked into the visitors’ room at Pleasant Valley State prison in Fresno County, took one look at his wife, his sister Shauna and her husband, Dave, and “my good friend Mike, the parent of two of my former students,” and knew immediately something was up. They were allowed to step out onto a private patio, where Sydney told her husband the news: In an 80-page ruling, a state appeals court had overturned his convictions on grounds that he did not get fair trials due to juror misconduct; failures by his attorney, Robert Boyce; and mistakes made by his trial judge.

“Sydney held both of my hands and, looking into my eyes through tears of joy, said, ‘Thad, all eight counts have been re versed,’ ” Jesperson recalls. “It was as if a rush of wind went through my whole body. My legs began to give way as my dear wife held me. I did my best to retain the tough-prisoner facade I had become accustomed to—there is no crying in prison—as an incredible feeling of joy washed over me.”

In mid-December, when Jesperson was released on bail pending new charges and a possible fourth trial, more than 300 family members, neighbors and friends crowded his cul-de-sac. They carried welcome-home signs and candles and sang Christmas carols.

A month later, District Attorney Bonnie Dumanis decided against trying him a fourth time, saying it was time to “spare these brave children” the ordeal of having to testify again.

The dismissal hearing, hastily arranged late on a Friday afternoon, played out in a near-empty courtroom. Prior made one last impassioned speech about how “36 jurors across three trials” had declared Jesperson a child molester, words that rang specious and hollow in light of the ruling by the appeals court. Boyce accepted the dismissal of all charges, speaking not a word for the record in Jesperson’s defense.

Friday, July 19, 2013

Tim Crews wins in California Court of Appeal; trial court may not punish him for filing suit to get public records from school district

The California School Boards Association (CSBA) supported Willows School District's use of taxpayer dollars to sue a citizen for demanding transparency.

See previous post on this story HERE.


Victory for publisher Tim Crews and CPRA in Appeals Court decision
First Amendment Coalition
July 19, 2013


Tim Crews, Editor & Publisher Willows Valley Mirror

A state Court of Appeal has ruled that small-town California newspaper publisher Tim Crews does not have to pay legal fees to a school board he sued over his public records request. The unanimous decision (read the Court of Appeal's decision) represents a crucial victory for government transparency and a welcome success for the First Amendment Coalition, which was instrumental in organizing and underwriting Crews’ successful defense.

“The appeals court’s decision makes clear that, in deciding whether to go to court to contest an agency’s denial of your request for public records, you will not have to fear a crushing penalty,” said Peter Scheer, FAC’s executive director. “If the court had decided differently, no journalist or ordinary citizen would ever again file suit to enforce the PRA, for fear of being bankrupted by a court order to pay a penalty of tens of thousands of dollars.”

Scheer added: “That would have been a disaster, not just for Tim Crews of course, but for government transparency in general.”

The case grows out of a public records request filed by Crews, publisher of the Sacramento Valley Mirror in Glenn County, an agricultural community in Northern California. The request sought emails of the superintendent for the Willows Unified School District. Crews was investigating whether the district was using school resources to influence a political campaign (a line of inquiry that ultimately did not pan out).

The school district began delivering copies of the emails the day after Crews filed suit. It also withheld several thousand emails on various grounds. A Superior Court judge ruled in the district’s favor after reviewing the withheld emails. The court not only dismissed Crews’ PRA suit, but then took the highly unusual step of ruling that Crews’ case was frivolous and on that basis ordering him to pay the district’s legal fees--an amount that was ultimately set at $56,000.

The Appeals Court, while agreeing with the dismissal of Crews’ PRA suit, squarely rejected both the finding that the case was frivolous and the resulting order to pay the district’s legal fees.

The Court emphasized that a fee award is a form of “punishment [that] should be used most sparingly to deter only the most egregious conduct.” Failing to prevail in a PRA lawsuit, by itself, is never enough to justify a fee award. The Court said a suit could be found “frivolous” only if filed in bad faith--for example, “to harass” an agency rather than to obtain information--or if the suit’s legal basis is so implausible that “any reasonable attorney would agree” it is “totally without merit.”

Under the appeals court’s interpretation of the PRA, a plaintiff and her lawyer, when deciding to sue to gain access to records, don’t have to be confident that they will prevail. Even if they expect to lose, they can file a suit without fearing a crushing penalty in the form of an award of legal fees.

The court said: “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win.”

FAC became involved in Crews’ defense after he was ordered to pay the district’s legal fees. FAC helped Crews in lining up legal representation--his attorney for the appeal was Karl Olson (of Ram, Olson, Cereghino & Kopczynski in San Francisco). Also for the appeal, FAC took the lead in organizing amicus brief support for Crews. Two amicus briefs were filed, one brief on behalf of media companies (prepared by Duffy Carolan and her colleagues at Davis Wright Tremaine) and another on behalf of pro-access government officials (prepared by Terry Francke of Californians Aware).

“For us, Tim’s case was absolutely make or break,” said Scheer. “The only means of enforcing the PRA is through civil suits that challenge agencies’ withholding of requested records,” he said. “If Tim’s penalty had been affirmed, that would have been the end of PRA enforcement.”

The cost of Crews’ representation was substantially underwritten by FAC’s Rebele Legal Fund, a special fund for open-government litigation named for FAC Board member Roland (“Reb”) Rebele, the founding (and biggest) contributor to the fund. (Other major contributions were made by Raymond Pryke, Susan McClatchy and Allen McCombs, among others.)

The Rebele Legal Fund provides funding support for important open-government and first amendment cases in which, for a variety of reasons, pro bono (i.e., free) legal representation may not be available. Normally the fund is for cases in which FAC, by action of its Board of Directors, has decided to participate as a party.


Judge Byrd dismisses GCBE actions v. Mirror
By Tim Crews
Sacramento Valley Mirror
March 3, 2007

Willows—A decidedly grumpy Superior Court Judge Don Byrd yesterday dismissed the counter actions against this newspaper. In the complex aftermath of the Sacramento lawsuit against the Glenn County Office of Education, the Glenn County Board of Education refused to join in a settlement, a victory for the newspaper — and for access to public information.

The board, a somnambulating beast awakened when Arturo Barrera took office as the new Glenn County Schools Superintendent, tried to drag to unresolved matters. They mumbled about “enforcing a temporary restraining order” when none was issued. (One of the several judges involved, Judge Golden said that GCOE attorneys needed to describe the behavior they wanted prevented. And that would all boil down to prior restraint.) The board seemed to want the MIRROR punished for revealing embarrassing things about GCOE, misspending, destruction of records and the like.

In the end Judge Byrd told the new GCOE attorneys that if GCOE wanted an injunction, they’d have to file it. And that way lies a great peril: Prior restraint.

The board seemed crestfallen.

MIRROR attorney Paul Boylan observes, "I have been working with the California Public Records Act for years advising public agencies on how to respond to requests for public records. When I agreed to represent the MIRROR, I really believed that I could negotiate an agreement where the MIRROR received the information it asked for and the GCOE privacy and confidentiality interests could be met. That is the way 99.9 percent of public records disputes are resolved. But not this one. After six months of the nastiest litigation I have ever been part of, I still don't understand why the GCOE fought so hard to keep these records secret. Why pay four different law firms so much money to keep so little secret? It just doesn't make any sense.

"This should have been an uncomplicated, straight forward court proceeding. The court was going to decide a very simple question:

Did the GCOE reasons for keeping documents secret outweigh the public's interest in that same information and the public's right to know? If yes, then the GCOE would have won. If no, then the MIRROR would have won. Simple. But the case got complicated when the GCOE attorneys — the ones hired to handle all of the MIRROR's requests — gave the MIRROR huge amounts of student and personnel information that the MIRROR didn't ask for.

“How on earth did such an incredible mistake happen? These were the experts hired to stop exactly the sort of thing that they ended up doing. It makes no sense. But then the case got even more complicated when the GCOE tried to get that information back — as if that was even possible — and wanted the court to order the MIRROR not to report on the information the GCOE attorneys gave the MIRROR.

“They knew or should have known that the MIRROR would not cooperate with any attempt to compromise its First Amendment rights to get the news and report the news," Mr. Boylan points out. Last year, then-Superintendent Joni Samples appointed a Sacramento attorney as a public records chief, and an expensive one at that. Mark Ellis released a disc to the MIRROR that continued seven years with of special education e-mails.

The e-mails were supposed to have been swept clean of confidential information. They weren’t. We later learned that the attorneys couldn’t f figure out how to open them. So they were tossed in a box with spending records.

And even later GCOE lawyers were supposed to have gone back and produced “clean” versions for us.

They never did.

The MIRROR reported that instead of protecting confidential information, the lawyer had negligently released it.

And then we did a story on the failure of special education management to report suspected child abuse, a story with fictionalized names and the special education children protected, Mr. Ellis sought to have us punished. For his error.

We had earlier turned over the discs, in a stipulated agreement we entered into most reluctantly. We did not agree to turn over our hard drives.

Friday, Judge Byrd scolded both sides and complained about the complex litigation but congratulated both sides for an agreement. With Mr. Ellis appearing by telephone, Judge Byrd reviewed matters, noted that Mr. Ellis had filed for a TRO and “I denied that request.” He asked what GCBE wanted and Donald Anthony Velez Jr ., of Miller Brown & Dannis suggested that the information be eliminated from the MIRROR’s computers, perhaps by the appointment of a “tech savvy” referee.

Judge Byrd waved that off, grumbled a bit more and said he was returning the cart load of records and discs to GCOE.

The Mirror obtained the information legally. We retain it.

Mr. Boylan notes, "We tried to end this nonsense - this huge waste of time and money. The MIRROR offered to settle many times. It didn't do any good. But then Superintendent Barrera fired his attorneys and negotiated an agreement that gave the MIRROR the records the MIRROR asked for in exchange for dismissing the Brown Act and the public records claims against the GCOE and the Board. We thought it was over. The issue of those confidential records - the ones the GCOE's attorney's gave to the MIRROR - was still out there. And no one seemed to know what to do about it.

"Judge Byrd solved that problem. He is an excellent judge. He did for the parties what the parties could not do for themselves — he ended the case by dismissing the actions against the MIRROR. I am grateful."

Friday, October 12, 2012

Anti-SLAPP motion wins: Court of Appeal Says Online Comments by Mother, Grandmother of Plaintiff’s Child Were Opinions

Update Dec. 2013: Darren Chaker Sentenced to Federal Prison for Bankruptcy Fraud

See my earlier post about Darren Chaker.

See Court of Appeal decision in Chaker v. Mateo.

Panel Says Online Comments by Mother, Grandmother of Plaintiff’s Child Were Opinions
Defamation Suit Over ‘Deadbeat Dad’ Reference Held SLAPP
By KENNETH OFGANG
Metropolitan News-Enterprise
October 5, 2012

Two women who referred to a San Diego man, in an online posting, as a “criminal and a deadbeat dad” who “may be taking steroids” were expressing protected opinions and cannot be liable for defamation, the Fourth District Court of Appeal ruled yesterday. Div. One affirmed a San Diego Superior Court judge’s ruling that the suit by Darren D. Chaker against Wendy and Nicole Mateo was a strategic lawsuit against public participation. The justices agreed with Judge Timothy Taylor that the suit arose from speech on a public issue, and that the action is barred by the First Amendment.

The evidence, Justice Patricia Benke explained, showed that Nicole Mateo became pregnant during a brief relationship with Chaker, resulting in contentious paternity and child support litigation in Mateo’s home state of Texas. In 2010, comments about Chaker and his forensics business, including claims that he was involved in fraud and prostitution, as well as the deadbeat dad and steroid references, began showing up in the comments sections of websites such as Topix, where he had posted a profile, and the Ripoff Report.

Anti-SLAPP Motion

Chaker attributed some of those statements to Nicole Mateo and her mother Wendy Mateo, and sued both of them, as well as others. Wendy Mateo brought an anti-SLAPP motion, which the judge granted.

Benke, like the trial judge, rejected Chaker’s argument that the allegedly defamatory statements related to a purely private dispute, thus falling outside the scope of the statute. The justice cited Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, which held that the Internet is a public forum, as well as cases holding that public statements about private conduct—such as criticism of the treatment of young athletes by their coaches— may be matters of public interest for purposes of Code of Civil Procedure Sec. 425.16.

“Like the court in Wilbanks, we view the Internet as an electronic bulletin board open to literally billions of people all over the world,” the jurist wrote. “...The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.”

She went on to say:

“The statements posted to the ‘Ripoff Report’ Web site about Chaker’s character and business practices plainly fall within in the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.”

By posting his profile on Topix, she added, Chaker “made his character a matter of public interest as the term has been interpreted.”

Because the comments deal with a matter of public interest, Benke wrote, the burden shifted to Chaker to show that he was likely to prevail. But because the First Amendment protects opinion, she said, he could not make such a showing.

Opinion, Not Fact

Citing a number of recent cases holding similar online comments to be opinion, rather than assertions of fact, the justice said the statements challenged by Chaker had to be understood in the context of the litigation between him and Nicole Mateo, particularly since they “were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here.”

Attacking Chaker as “dishonest and scary,” the justice said, “is on its face nothing more than a negative, but nonactionable opinion.

A different result might have been reached, Benke suggested, if, instead of mere generalized attacks on the plaintiff’s character, the defendants made allegations of specific wrongdoing at specified times and places.

The reference to Chaker as a “criminal,” the justice added, was arguably defamatory, but is nonactionable because Chaker was convicted of a crime, although the conviction was expunged.

The case is Chaker v. Mateo, D058753

Monday, January 10, 2011

I'm excitedly waiting to read what plaintiffs have to say

The lawyers who are suing me for defamation didn't file a response to my appeal regarding Judge Judith Hayes' injunction by the November 29, 2010 due date. Instead, they were given a 30-day extension. And they didn't file by Dec. 29, 2010. Then the court gave them a generous grace period: until January 25, 2011.

I'm excitedly waiting to read what plaintiffs have to say. They've had more time to write a response than I did to write the appeal in the first place. Their pleading should be pretty marvelous.

Friday, December 10, 2010

Thad Jesperson was wrongly accused: Court of Appeal overrules Judge William Nevitt

UPDATE March 29, 2013: Court of Appeal says Thad Jesperson may go back to work

Judge Reverses Firing of Teacher Tried for Molestation
March 29, 2013
By KPBS

A Fourth District Court [of Appeal in California] judge on Wednesday overturned the firing of a San Diego teacher who spent more than three years in prison after being falsely convicted of molesting second and third grade students.

In a written ruling, the judge noted that officials at Clairemont's Toler Elementary School acted erroneously when they terminated Thad Jesperson's employment in November 2008.

Jesperson was arrested in April 2003, tried three times and ultimately convicted on seven counts of molestation. He was sentenced to serve 15 years to life in prison but was released in 2007 because of misconduct on the part of jurors and ineffective assistance from his own attorney. All convictions were overturned and Jesperson asked Toler Elementary officials to reinstate him.

The school denied his request despite the overturning of all molestation convictions and a ruling from a commission on professional competence that Jesperson was fit to teach and that "the evidence (in the case) did not establish that he touched (one of the students who accused Jesperson of molestation) in the manner to which she testified, or in any other manner that was immoral or a violation of district regulations...".


July 20, 2012 note: I used to have confidence that judges would never ignore the law and the evidence. But I have lost that confidence. There was no reason to believe the accusations that children came up with AFTER they were manipulated by adults. This reminds me of the Dale Akiki case. Amazingly, in this case the Office of Administrative Hearings got it right.


ORIGINAL POST:

Bonnie Dumanis really wanted to get this teacher convicted, but it took jury misconduct and inadequate legal representation to achieve the goal.

I know Judge Nevitt to be a decent judge. Almost all judges feel an obligation to support school districts, but in this case, I think Judge Nevitt was right to overturn the decision of the Office of Administrative hearings. The OAH is pretty much a joke as far as administering the law fairly or effectively.

Schools shouldn't take risks with the well-being of kids. Even though he might be innocent, it makes sense for Jesperson to find another job. Jesperson might file a civil suit. In that case, it might make sense for the school to give him a desk job.


UPDATE--COURT OF APPEAL SAYS OAH WAS RIGHT, JUDGE NEVITT WAS WRONG:


Thad Jesperson Conviction Overturned

Sep 13th, 2007
by Mark L. Jackson
Mark's Soapbox

Another blow to the San Diego Justice System. Appeals court overturns the conviction of Thad Jesperson. Citing incompetence on the part of his legal team, and the misconduct by the jury (no doubt the Judge has some blame here as well)...

When first questioned by San Diego detectives, the children who made the initial accusations denied anything happened
.

Eventually, the students said they were touched by Jesperson while they read with him at the front of a classroom. Some said the touching was a light rubbing over their clothes, but others said that the touching was more intimate.

Sevilla said that under repeated questioning by police, school officials and social workers at Rady Children’s Hospital, the students’ story changed.

What the hell were the prosecutors thinking? No doubt ‘this will get me a promotion and get me elected to City Attorney, or even *gasp* Attorney General.’

Where the hell were they when the Jurors were breaking the rules? One Juror lied about being molested as a child, no doubt hoping to hang a molester. Another Juror used previous training as a teacher in deliberations, clearly out of bounds.

However this is the worst:

On one tape, a social worker is heard to say “we are here to make sure he (Jesperson) doesn’t do that to you or any more kids.”...


ORIGINAL POST:


Dec 10, 2010
Court Finds Teacher 'Unfit to Teach'
by Emily Alpert
Voice of San Diego

A Superior Court judge ruled last week that a San Diego teacher who was first convicted of child molestation, then freed after his convictions were overturned, is still "unfit to teach."

That would give San Diego Unified School District the legal backing to fire the teacher, who had successfully fought his firing in an earlier appeal...

Thad Jesperson had been put on trial three times before his conviction was thrown out because of jury misconduct and inadequate legal representation. After his convictions were reversed more than two years ago, San Diego Unified decided to terminate Jesperson for immoral conduct and unfitness for service.

The school district alleged that Jesperson had "engaged in lewd and lascivious acts" with four female students, the same allegations that led to his criminal charges, according to court documents. His teaching credential had lapsed while he was incarcerated, according to court documents.

Jesperson contested the charges before a panel called the Commission on Professional Competence, which hears teacher terminations. He argued that he never engaged in misconduct with any child and that trying to fire him based on allegations that had been overturned in court was "double jeopardy."

In February, the panel concluded that there was no cause to dismiss Jesperson, concluding that there was too little evidence to show that he had inappropriately touched a child the way she had testified. Only one of the students was called to testify.

The school district fought the finding in Superior Court. Attorney Jon Vanderpool, who is representing Jesperson, argued in a legal filing that the classroom layout and present witnesses made it implausible that Jesperson had touched the girl as alleged and that her testimony was not credible or consistent.

"Because they did not find Jesperson touched Emily inappropriately, no measure of unfitness, immoral conduct, or violation of regulations was demonstrated by the District," Vanderpool wrote.

But Judge William R. Nevitt, Jr. ruled against the disciplinary panel that had backed Jesperson, saying its finding was "contrary to the weight of the evidence." Nevitt concluded that the evidence showed the girl had been touched inappropriately, which "constitutes immoral conduct making him unfit to teach."...

Sunday, March 14, 2010

Mr. Adelstein represented a former substitute teacher who was peacefully picketing

Krell v. Gray

On appeal, Mr. Adelstein represented a former substitute teacher who was peacefully picketing in front of a LAUSD middle school. His sign and leaflets stated that the school promoted racism, sexism, and low student performance, and he specifically named the assistant principal. The assistant principal was upset with this. First, he and LAUSD sued the former teacher on the theory that the teacher's picketing was promoting workplace violence, and sought an injunction under Code of Civil Procedure, section 527.8. The trial court noted that the teacher was not encouraging violence and in any case his picketing was protected by the First Amendment.

Undeterred, the assistant principal then sued under Code of Civil Procedure, section 527.6, arguing that the teacher's picketing was a form of harassment. The case was assigned to a different judge who concluded that the picketing was harassment, rejected the teacher's res judicata and collateral estoppel defenses, rejected the First Amendment defense, and entered the injunction.

The appeal had a convoluted history. Mr. Adelstein's brief argued that the injunction should be reversed under res judicata, collateral estoppel, and the First Amendment, among other things. He also requested attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i). LAUSD represented the assistant principal and argued to the contrary.

The Court of Appeal initially issued a published opinion affirming most of the injunction but remanding for a relatively minor correction. Mr. Adelstein filed a petition for rehearing, arguing that this opinion had incorrectly analyzed both the collateral estoppel and First Amendment issues. The Court of Appeal then asked for two sets of supplemental letter briefs, granted rehearing, and issued a second opinion reversing the trial court's injunction in full. The Court of Appeal also awarded attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i).

Case Comment

I need to commend the justices in this case for granting rehearing. Petitions for rehearing are rarely granted, especially if a case has been designated for publication. But the Court of Appeal's analysis in its initial opinion, especially of the First Amendment, was simply incorrect. Many justices would be tempted to simply deny the rehearing petition and be done with the case. But the court here not only granted rehearing, but spent a considerable amount of time ordering and considering two sets of supplemental letter briefs. The justices not only worked hard to get the right result, but changed their mind in the process, and this should not pass without note.


Court: California Court of Appeal, Second Appellate District, Division Five (Los Angeles)
Case No. B169593
Authors: Justice Richard Mosk; Presiding Justice Paul Turner
Opinion Date: February 16, 2005; April 27, 2005
Trial Counsel: The client was in pro per.

Tuesday, March 09, 2010

"American Beauty" Case Exposes Appeals Court Rift

Unity isn't always a good thing; sometimes people are unified in pursuit of evil purposes. I think a difference on the court now and then is better than having justices who always go along to get along.

Kristin Rossum

"American Beauty" Case Exposes Appeals Court Rift
On Point
By Matthew Heller
10/26/07

A decision throwing out a $1.5 million jury award in the “American Beauty” murder case has exposed a rift in the California courts over whether a government agency can be directly liable for negligent hiring and supervision of its employees.

Kristin Rossum, a former employee of the San Diego County Medical Examiner's Office, was convicted in 2002 of poisoning her husband with a drug she had stolen from her workplace. Red rose petals were found strewn around the body of Gregory de Villers, evoking a scene from the Oscar-winning film “American Beauty.”

In a wrongful-death suit, de Villers's family alleged the negligence of the county's managers in hiring and supervising Rossum was a proximate cause of the murder. A jury in March 2006 found Rossum 75 percent responsible, leaving the county to pay 25 percent ($1.5 million) of the $6 million award of compensatory damages.

The 4th District Court of Appeal last week reversed the award against the county in an opinion that found the plaintiffs could not maintain their negligence claim because it was “not grounded in the breach of a statutorily imposed duty,” as required by California Government Code Section 815.

“[T]here is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices,” the court said.

The plaintiffs had cited a 2nd District precedent which said a school district could be sued for negligently hiring and supervising a teacher who molested a junior high-school student if administrators knew or should have known of [the teacher's] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision. Virginia G. v. ABC Unified School Dist., 15 Cal.App.4th 1848 (1993).

According to the de Villers family, the county should have known of Rossum's history of methamphetamine abuse and taken precautions to prevent her from using meth impounded by the medical examiner.

But Justice Alex C. McDonald, writing for the 4th District, said Virginia G. erroneously relied on a California Supreme Court case and "should not be perpetuated." John R. v. Oakland Unified School Dist., 48 Cal.3d 438 (1989), held that the plaintiffs could pursue claims against a school district “premised on its own direct negligence in hiring and supervising” a teacher.

“[T]he language [in John R.] is both dicta and is contained in an opinion that did not command a majority of the court,” McDonald stressed. Only two of the seven justices signed the lead opinion, with three justices concurring “only 'in the majority's holding' of no vicarious liability.”


The concurring justices' silence on direct negligence, however, is too slim a reed for McDonald to conclude they did not support the majority on that issue. And the lead opinion goes well beyond dicta by saying, “we must now decide whether plaintiffs should ... have the opportunity to pursue” their direct negligence claims.

With the split at the intermediate appeals court level on this important issue, the Supreme Court should accept de Villers v. County of San Diego for review.


Here are Justice McDonald's goals:

Increase the cooperation and congeniality of appellate court administration and decision making.

Emphasize consistency of legal precedents in the development of the law.

Tuesday, June 23, 2009

Is Judge Frank Devaney a slow learner, or simply determined to keep Mexicans out?

Judge Francis M. Devaney

Overturned probation condition is judge's 2nd
Orders kept youths from entering U.S.
By Greg Moran,
San Diego Union-Tribune Staff Writer
June 23, 2009

The state appeals court struck down the first order as unconstitutional in August, weeks before the second reversal.

For the second time in a year, a state appeals court has reversed a San Diego judge's probation condition that essentially banished a juvenile U.S. citizen to Mexico.

The youth, identified in court papers as Alex O., was 17 when he was arrested in August at the San Ysidro border crossing with about 4 pounds of marijuana. He is a U.S. citizen who lives in Tijuana with his mother, who is not a legal U.S. resident.

Alex pleaded guilty to possessing marijuana, and Superior Court Judge Frank Devaney sentenced him to a year in juvenile camp but stayed that sentence and placed him on probation.

As a condition of the probation, Devaney said the youth could enter the United States only to attend school, visit relatives or work. He also ordered Alex to notify his probation officer when he was to enter the country.

Devaney made that ruling in September. That was just weeks after the state 4th District Court of Appeal in San Diego struck down a similar order that Devaney made for another youth.

In that case, Devaney ordered James C. to live with his grandparents in Tijuana, and under no circumstances return for a year. The state appeals court struck down that order as unconstitutional in August because it violated the youth's rights of free association and travel.

Faced with the similar case of Alex O., Devaney again erred, the court concluded.

The youth does not attend school in this country, has no job and no family, so it was unlikely that any of the permitted reasons for him to enter the country would apply, Justice Patricia Benke wrote. The order also prevented Alex from entering the country to attend a movie or go to the beach or the zoo, Benke said.

“In short, although the juvenile court's order is not an express banishment from the United States, its practical effect on Alex is almost indistinguishable from a banishment,” Benke wrote.

Devaney, now a judge in the downtown San Diego adult courts, declined to comment last week.

Deputy Public Defender Jo Pastore, who handled the appeal, said Devaney's order was too broad. While judges have discretion on setting conditions of probation, the law says those conditions have to have some relation to the crime at issue.

“The (appeals) court is saying the problem happened at the border, so if you are infringing on someone's right to travel, it has to be limited and specifically tailored to crossing the border,” Pastore said.

That is why the appeals court upheld one condition — that Alex notify his probation officer before coming into the United States. Such orders are made in other juvenile probation cases, such as when minors want to leave the county.

Benke said requiring Alex to notify his probation officer when he enters the country relates to the crime he committed, and does not hinder his right to travel as a U.S. citizen.

Pastore said Devaney thought he was complying with the appeals court's first decision when he dealt with Alex. But his solution ended up with the same effect.

“It banished him from the entire country, and the court said that is just over-broad,” Pastore said.