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In re the Marriage of MONA LEA and ULF JOHAN CARLSSON. MONA LEACARLSSON, Respondent, v. ULF JOHAN CARLSSON, Appellant.

C053515

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

163 Cal. App. 4th 281; 77 Cal. Rptr. 3d 305; 2008 Cal. App. LEXIS 777

May 8, 2008, Filed

SUBSEQUENT HISTORY:The Publication Status of this Document has been

Changed by the Court from Unpublished to PublishedMay 23, 2008.Review denied by Carlsson (Mona Lea & Ulf Johan),Marriage of, 2008 Cal. LEXIS 9798 (Cal., Aug. 13, 2008)Related proceeding at Inquiry Concerning Judge Peter J.McBrien, 2010 Cal. Comm. Jud. Perform. LEXIS 1(2010)

PRIOR-HISTORY: Superior Court of SacramentoCounty, No. 04FL02489, Peter J. McBrien, Judge.

HEADNOTES-1

CALIFORNIA OFFICIAL REPORTS HEADNOTES

(1) Trial 9--Conduct--Due Process--Right to FairHearing--Dissolution of Marriage--AbruptEnding--Case-in-chief.--In a marital dissolution case,the trial court deprived a husband of his due process rightto a fair hearing, where the trial court abruptly ended thetrial before the husband had finished putting on hiscase-in-chief. The trial judge ended the trial while an

expert witness for the husband was on the witness standand the husband's counsel was in the midst of asking theexpert a question.

[Cal. Forms of Pleading and Practice (2007) ch.126A, Constitutional Law, 126A.54; 3 Witkin, Cal.Evidence (4th ed. 2000) Presentation at Trial, 3; 9Witkin, Cal. Procedure (5th ed. 2008) Appeal, 449,456.]

COUNSEL: Ishikawa Law Office and Brendon Ishikawafor Appellant.

Law Office of Stephanie J. Finelli and Stephanie J.Finelli for Respondent.

JUDGES: Opinion by Butz, J., with Blease, Acting P. J.,and Sims, J., concurring.

OPINION BY: Butz

OPINION

BUTZ, J.--"It is a cardinal principle of our

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jurisprudence that a party should not be bound orconcluded by a judgment unless he has had his day incourt. This means that a party must be duly cited toappear and afforded an opportunity to be heard and tooffer evidence at such hearing in support of hiscontentions. [] His right to a hearing does not dependupon the will, caprice or discretion of the trial judge whois to make a decision upon the issues. [] An order orjudgment without such an opportunity is lacking in all theattributes of a judicial determination. [Citations.] []Refusal to permit counsel ... to present evidence andmake a reasonable argument in support of his client'sposition [i]s not a mere error in procedure. It amount[s] toa deprival of a substantial statutory right ... ." (Spector v.Superior Court (1961) 55 Cal.2d 839, 843-844 [13 Cal.Rptr. 189, 361 P.2d 909] (Spector).)

"Only judge when you have heard all."--Greekproverb.

This case invites application of the above principlesto an unusual and perhaps unprecedented fact situation:In a routine dissolution case, the family law judgesuddenly declared an end to the trial before the husbandhad finished putting on his case-in-chief. After displayingimpatience and reluctance in allowing the partiesadequate time to complete their presentations, the judgeended the trial while an expert witness for the husbandwas on the witness stand and counsel was in the midst ofasking him a question.

We shall conclude that the trial court's actionsdeprived the husband of his due process right to a fairhearing. We shall reverse the judgment and direct thematter be retried.

FACTUAL AND PROCEDURAL BACKGROUND

After 16 years of marriage, respondent Mona LeaCarlsson (Mona) filed the instant petition for dissolutionof marriage from her husband Ulf Johan Carlsson (Ulf) inApril 2004. 1 The issue of custody of their minor childwas referred to a special master, and was not included inthe proceedings below.

1 As both parties have the same surname, werefer to them by their first names. No disrespect isintended.

A brief synopsis of the main disputed issues follows.

Spousal support

Ulf was a full-time state employee. Mona, on theother hand, worked part time at a dental office. Ulfasserted that Mona was underemployed and should beimputed with a full-time income for purposes ofcomputing his support obligation. He also claimed theimputation would result in an award of zero spousalsupport.

Family residence

The parties owned a family home in Gold River. Ulfrequested that he be awarded the house and that Monareceive half of the community equity. Mona was initiallyagreeable to this proposal, but during the trial changedher mind and asked that the home be sold. There wassubstantial disagreement between the parties' experts onthe value of the home.

Rental property

During the marriage, the Carlssons acquired aninterest in rental property in Sacramento. Ownershipinterest in the rental property was the subject of intensedispute. The couple initially had a silent partner, ScottMoore, who was to contribute his labor in renovating theproperty. 2 However, Moore was called up to Army dutyin Guantanamo Bay and Iraq, and ended up transferringhis interest to the Carlssons.

2 Moore's wife, Denise Moore, was also on titleas an owner.

Ulf claimed that he subsequently entered into apartnership agreement with Joseph Mayo, Jr., on therental property, with Mona's consent. He maintained thatMona secretly filed divorce papers just before Mayo'sname was to be placed on title, in an attempt to depriveMayo of his interest in the property. 3

3 By the time of trial, Mayo had filed a lawsuitagainst the Carlssons for breach of the partnershipagreement and had recorded a lis pendens againstthe rental property.

Ulf's retirement plan

Ulf asked for an equal division of the communityinterest in his CalPERS (California Public Employees'Retirement System) retirement pension and requested thatit be divided into two separate accounts to prevent Mona

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from receiving a windfall from Ulf's postdissolutioncontributions to his pension. Mona opposed segregationof the retirement account.

Attorney fees

Ulf requested that each party bear his or her ownattorney fees. Mona asked that Ulf pay $ 40,000 of her $47,000 bill for expert and attorney fees.

The trial

Trial took place before Judge Peter J. McBrien for afull day on March 2 and on two half-days, March 3 and 9,2006.

From the beginning, Judge McBrien manifested hisimpatience with Ulf's counsel, Sharon Huddle, and thepace of the proceedings. At one point during the first dayof trial, Attorney Huddle questioned why trial wascontinuing through the lunch hour:

"MS. HUDDLE: Your Honor, I am going to have toeat.

"THE COURT: The reason I am going forward isbecause tomorrow afternoon I have a continuing trial. Ithas statutory preference. So, I'm insuring that we're goingto complete it by noon tomorrow. Otherwise, we may aswell call a mistrial right now. Statutory preference.

"MS. HUDDLE: Well, I have one witness driving upfrom Orange County and another is driving from TulareCounty today.

"THE COURT: That's fine.

"MS. HUDDLE: I don't know that--I didn't have anybreakfast. I assumed I was going to get some lunch.

"THE COURT: I'm not intending to go with no breakfor anyone. I'm suggesting that maybe we can finish withthis witness and take a short break?

"MS. HUDDLE: Okay. I also have the two expertscoming tomorrow.

"THE COURT: All I'm telling you is if it's notcompleted by noon, it's a mistrial.

"MS. HUDDLE: Well, I'm--the value on the familyresidence has to be decided. There has to be an expert onthat.

"THE COURT: I don't intend to argue with youeither. I'm telling you exactly what my availability is andif you want a mistrial at this point, you're welcome to it.

"MS. HUDDLE: Your Honor, we set the matter fortwo days." (Italics added.)

During the half-day of trial on March 3, JudgeMcBrien issued a sua sponte order that Ulf producecertain annual conflict of interest documents required bythe Fair Political Practices Commission and filed with theSecretary of State. He also advised Ulf to consult anattorney regarding his exposure to "potential penaltiesfar beyond what we're talking about today."

The next half-day's proceedings began on March 9with Judge McBrien expressing frustration and anger atthe fact that the documents had not been produced.

"THE COURT: On the record, did your clientconsult some legal advice regarding that issue?

"MS. HUDDLE: I found him a lawyer.

"THE COURT: Did he bring the documents withhim?

"MS. HUDDLE: He never went to work. He is ondisability; he doesn't have them.

"THE COURT: So, he has violated my request tobring those documents?

"MS. HUDDLE: The way I heard you say it, it was asuggestion that he bring them.

"THE COURT: Do you want me to have the recordread?

"MS. HUDDLE: He would have to go to work to seeif he even has a copy.

"THE COURT: Ma'am, I would suggest that he sendsomebody to his workplace to get those documents beforewe conclude this trial."

Attorney Huddle then objected that the documentswere irrelevant to the division of community property.The judge overruled the objection, remarking that, whilethe documents were not relevant to the present case,"they may be relevant to other proceedings." Huddlepointed out that since the court had suggested possible

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criminal penalties, Ulf might want to assert his FifthAmendment privilege, but the judge rejected that assertionout of hand.

Attorney Huddle told the judge, "I don't know whatto do in a situation like this when you're actually askinghim to produce evidence which might incriminate himand it's not even the opposing side presenting it." JudgeMcBrien responded, "Ms. Huddle, am I to take that as a'no' placing you in the possibility of contempt?" to whichshe replied, "No. I will tell him to go get the records." Atthat point, the next witness was called and the courtabandoned all further interest in the subject.

As the trial extended into the late afternoon of March9 without a break, the following exchange occurred:

"MS. KEELEY [Mona's attorney]: I have no furtherquestions at this time, but I would ask that the witness notbe released.

"THE COURT: Okay. Ms. Huddle?

"MS. HUDDLE: Your Honor, is there any way Icould get a break to use the ladies' room?

"THE COURT: You know, you're approaching amistrial.

"MS. HUDDLE: I haven't even been able to talk tothe gentleman who went to work to get the records yourequested. He has returned. I don't know what he has tosay.

"THE COURT: Okay. Is that why you're asking for abreak?

"MS. HUDDLE: No. I do need to use the ladies'room. We have been here--

"THE COURT: Why don't we take a five-minuterecess, but I guarantee you, if this is not completed by4:30, there will be a mistrial." (Italics added.)

Following the five-minute recess and to expediteproceedings, both counsel notified the court they werewaiving their respective claims with respect to minormonetary issues. In a further effort to save time, AttorneyHuddle conducted a very brief redirect examination ofUlf's expert witness without his returning to the witnessstand.

Prior to the conclusion of Ulf's case, Mona's expertwitness was recalled for rebuttal on the fair market valueof the real properties in dispute. Once Attorney Huddlecompleted her cross-examination of Mona's expert, shethen recalled her own expert witness, Pakhtun Shah, totestify in rebuttal on fair market value. Shah had justtaken the witness stand when the trial ended with thisexchange:

"MS. HUDDLE: If you redid your capitalization andyour sales market approach--

"THE COURT: Pardon me. I have an EPO. Court isin recess.

"MS. HUDDLE: I think he's just taking anEmergency Protective Order request. Is that it, like adomestic violence, it's his week, right?

"THE CLERK: He's always assigned EPO's.

"THE COURT: We're going to have to adjourn this.The County operator is on the phone. This trial hasended.

"MS. HUDDLE: Your Honor, I don't even have myclient's attorney fees costs put on.

"THE COURT: Then I'll reserve over that issue oryou can get a mistrial, one or the other.

"MS. KEELEY: We don't want a mistrial. We'llreserve over that issue.

"MS. HUDDLE: But, Your Honor, the house thatwe're evaluating--

"(Judge exits room.)

"MS. KEELEY: We'll arrange another date. Don'tpanic.

"MS. HUDDLE: Is that what he said?

"MS. KEELEY: I'm going to ask for ... him toreserve.

"THE WITNESS: May I go?

"MS. HUDDLE: Is he coming back? I'm in themiddle of my examination.

"MS. KEELEY: Ms. Huddle, I'm not prepared for a

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mistrial.

"(At the hour of 4:29 p.m., the proceedings ended.)"

The judge never returned. The clerk verballyinformed counsel that the trial was concluded, but that thecourt would permit the parties to submit declarations onattorney fees as well as closing briefs not longer thanthree pages in length within one week, which both partiesdid.

In his closing brief, Ulf objected to the peremptorytermination of the trial, pointing out that his redirecttestimony was not concluded and that rebuttal testimonywas not allowed. Ulf also complained that he was notpermitted to put on any testimony regarding attorney feesand asserted that if he had had the opportunity, he wouldhave introduced testimony that selling the family homewould traumatize the Carlssons' minor daughter.

Judgment

Judge McBrien issued a written decision, rulingagainst Ulf on almost every issue. He rejected Ulf'scontention that Mona was underemployed; ruled that Ulfand Mona were sole owners of the rental property;ordered both the family residence and the rental propertysold; failed to segregate Ulf's retirement account forpurposes of awarding Mona her community share; andordered Ulf to pay Mona $ 35,000 in attorney and expertwitness fees. 4 Despite the court's prior handwrittenorder that child support would not be determined untilcustody was resolved, the judgment ordered Ulf to pay $736 per month in child support.

4 Although the parties were allowed to submitbillings for attorney and witness fees, the courtonly heard Mona's testimony on the issue. Ulfnever got a chance to testify as to his fees andcosts.

DISCUSSION

I. Ulf's Contentions

Ulf contends that by abandoning the trial in themiddle of his case-in-chief without giving him anopportunity to complete the presentation of evidence oroffer rebuttal evidence, the trial court denied him hisconstitutional right to due process and a fair trial. On thisrecord, we are compelled to agree.

"The term 'due process of law' asserts a fundamentalprinciple of justice which is not subject to any precisedefinition but deals essentially with the denial offundamental fairness, shocking to the universal sense ofjustice." (Gray v. Whitmore (1971) 17 Cal. App. 3d 1, 20[94 Cal. Rptr. 904].) " 'The trial of a case should not onlybe fair in fact, but it should also appear to be fair.'[Citations.] A prime corollary of the foregoing rule is that'A trial judge should not prejudge the issues but shouldkeep an open mind until all the evidence is presented tohim.' " (Hansen v. Hansen (1965) 233 Cal. App. 2d 575,584 [43 Cal. Rptr. 729].)

The trial court openly violated these precepts. Afterdisplaying ill-disguised impatience with Ulf and hiscounsel and repeatedly threatening a mistrial if theproceedings were not concluded quickly enough, JudgeMcBrien abruptly ended the trial before Ulf had finishedhis presentation, cutting off any opportunity for rebuttalevidence (other than six questions posed to Ulf's expert)or argument of counsel. This method of conducting a trialcannot be condoned in a California courtroom.

Unquestionably, the trial court has the power to ruleon the admissibility of evidence, exclude profferedevidence that is deemed to be irrelevant, prejudicial orcumulative and expedite proceedings which, in the court'sview, are dragging on too long without significantlyaiding the trier of fact. If the court errs in any of theserespects, its rulings may be reviewed by a higher courtand, if prejudicial, the judgment will be reversed. Thatkind of review is unavailable here, however, because thecourt's summary termination of the trial infringed on Ulf'sfundamental right to a full and fair hearing.

"Denying a party the right to testify or to offerevidence is reversible per se." (Kelly v. New West FederalSavings (1996) 49 Cal.App.4th 659, 677 [56 Cal. Rptr.2d 803] (Kelly); accord, Fewel v. Fewel (1943) 23 Cal.2d431, 433 [144 P.2d 592]; Guardianship of Waite (1939)14 Cal.2d 727, 729 [97 P.2d 238]; Caldwell v. Caldwell(1962) 204 Cal. App. 2d 819, 821 [22 Cal. Rptr. 854](Caldwell).) As the state Supreme Court has recentlystated: "'We are fully cognizant of the press of businesspresented to the judge who presides over the [FamilyLaw] Department of the Superior Court ... , and highlycommend his efforts to expedite the handling of matterswhich come before him. However, such efforts shouldnever be directed in such manner as to prevent a full andfair opportunity to the parties to present all competent,

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relevant, and material evidence bearing upon any issueproperly presented for determination. [] Matters ofdomestic relations are of the utmost importance to theparties involved and also to the people of the State ofCalifornia. ... To this end a trial judge should notdetermine any issue that is presented for hisconsideration until he has heard all competent, material,and relevant evidence the parties desire to introduce.' "(Elkins v. Superior Court (2007) 41 Cal.4th 1337,1357-1358 [63 Cal. Rptr. 3d 483, 163 P.3d 160] (Elkins),quoting Shippey v. Shippey (1943) 58 Cal. App. 2d 174,177 [136 P.2d 86].)

The trial court essentially ran the trial on astopwatch, curtailing the parties' right to present evidenceon all material disputed issues. Using the constant threatof a mistrial, Judge McBrien pressured Attorney Huddleinto rushing through her presentation and continuingwithout a break. Despite his avowed compelling need forbrevity, the judge himself frustrated the trial's progressionwith a sua sponte order that Ulf produce documentswhich, as the judge conceded, were not relevant to theissues before him. Most damning, the judge abruptlyended the trial in the middle of a witness's testimony,prior to the completion of one side's case and withoutgiving the parties the opportunity to introduce or evenpropose additional evidence. This was reversible error.

The Elkins case fully supports our conclusion.Although Elkins involved a different issue than that posedhere--whether a local rule that required parties to presenttheir case in contested dissolution trials by means ofwritten declarations was inconsistent with certainstatutory provisions (Elkins, supra, 41 Cal.4th at p.1345)--the court's pronouncements have a direct bearingon this case. The high court noted that "[a]lthough someinformality and flexibility have been accepted in maritaldissolution proceedings, such proceedings are governedby the same statutory rules of evidence and procedurethat apply in other civil actions ... ." (Id. at p. 1354.)"Ordinarily, parties have the right to testify in their ownbehalf [citation], and a party's opportunity to callwitnesses to testify and to proffer admissible evidence iscentral to having his or her day in court." (Id. at p. 1357,italics added.) Emphasizing a party's "fundamental rightto present evidence at trial in a civil case" (ibid.), theElkins court went on to declare, "'One of the elements ofa fair trial is the right to offer relevant and competentevidence on a material issue. Subject to such obviousqualifications as the court's power to restrict cumulative

and rebuttal evidence ... , and to exclude undulyprejudicial matter [citation], denial of this fundamentalright is almost always considered reversible error'" (ibid.,quoting 3 Witkin, Cal. Evidence (4th ed. 2000)Presentation at Trial, 3, pp. 28-29).

II. Mona's Defense of the Judgment

Mona raises a number of arguments in defense of thejudgment, none of which we find persuasive.

Mona first contends there is no such thing as"structural error" in a civil case. However, where the trialcourt denies a party his right to a fair hearing, it exceedsits jurisdiction, and the error is reversible per se. (9Witkin, Cal. Procedure (4th ed. 1997) Appeal, 449, p.497.)

Although we have found no case like this one, inwhich the trial judge literally walked out of thecourtroom in midtrial, our courts have consistentlyapplied the rule of automatic reversal where a party isprevented from having his or her full day in court.(Spector, supra, 55 Cal.2d at pp. 843-844 [refusal topermit evidence or argument on motion to modifypreliminary injunction]; Southern Pacific TransportationCo. v. Santa Fe Pacific Pipelines, Inc. (1999) 74Cal.App.4th 1232, 1248 [88 Cal. Rptr. 2d 777][exclusion of proper method of valuation abridgedparty's right to present relevant evidence on materialissue]; Kelly, supra, 49 Cal.App.4th at p. 677 [granting ofmotions in limine prevented jury from hearing crucialevidence]; Caldwell, supra, 204 Cal. App. 2d at pp.820-821 [refusal to allow testimony on needs of childwhere child support was contested issue]; Moore v.California Minerals etc. Corp. (1953) 115 Cal. App. 2d834, 836-837 [252 P.2d 1005] [trial court grantedjudgment on the pleadings sua sponte, without hearingevidence or argument].)

Whether we call this error "structural" or not isinconsequential. The failure to accord a party litigant hisconstitutional right to due process is reversible per se, andnot subject to the harmless error doctrine. (Kelly, supra,49 Cal.App.4th at p. 677.) 5

5 Contrary to Mona's suggestion at oralargument, In re James F. (2008) 42 Cal.4th 901[70 Cal. Rptr. 3d 358, 174 P.3d 180] (James F.)does not support the proposition that structuralerror can never occur in a civil case. In James F.,

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the trial court, in a dependency proceeding,appointed a guardian ad litem for a mentallyincompetent father without the proper proceduralsafeguards for ensuring that he had an opportunityto contest the appointment. The state SupremeCourt ruled that this procedural due processviolation did not create an error that "'def[ied]analysis by "harmless-error" standards'" (id. at p.917, quoting Arizona v. Fulminante (1991) 499U.S. 279, 309 [113 L. Ed. 2d 302, 331, 111 S. Ct.1246] (maj. opn. of Rehnquist, C. J., as to pt. II)),since it could be determined from the record thatthe error had no material effect on the outcome(James F., supra, at pp. 917-918). Nothing inJames F. implies that per se error cannot be foundin a civil appeal. Moreover, James F. did notinvolve a party's substantive due process right to afair trial, the deprivation of which the state highcourt has held defies harmless error analysis. (SeeWebber v. Webber (1948) 33 Cal.2d 153, 161-162[199 P.2d 934]; Fewel v. Fewel, supra, 23 Cal.2dat p. 433.)

Mona also asserts that Ulf "expressly waived" hisdue process claim by failing to request a mistrial on thetwo or three occasions that it was offered by the court.We do not agree. Ulf's attorney did everything possible toavoid a mistrial, yet the judge still left the courtroom inthe middle of her client's case. It is unfair andunreasonable to compel a party to suffer theinconvenience and expense of a mistrial in order topreserve a due process claim on appeal. Ulf was notrequired to choose between a mistrial and a fair trial.

Mona next avers that Judge McBrien's actionsconstituted harmless error because Ulf got a chance to puton "plenty of evidence" to support his contentions andwas warned on several occasions that his time waslimited. But harmless error analysis has no place here.The trial court's termination of the trial rendered anassessment of prejudice impossible. We cannot speculateon what evidence would have been submitted had Ulfbeen permitted to complete his presentation, much lessdetermine whether it would have made a difference in thejudgment. (See Del Ruth v. Del Ruth (1946) 75 Cal. App.2d 638, 648-649 [171 P.2d 34].) Mona's request is akinto asking that a football team be declared the winnerwhere the referee stopped the game in the fourth quarter,on the ground that the team had a sizeable lead and acomeback by the opponent was unlikely. Ulf was entitled

to a full and fair trial. Because the court did not affordhim one, the integrity of the process was fatallycompromised.

Mona's brief also suggests that Ulf is precluded fromcomplaining because he did not make a sufficientobjection in the trial court or an offer of proof as to whatadditional evidence he would have put on had the trialnot been aborted summarily. Because this argument is notpresented under a separate heading, it is forfeited.(Heavenly Valley v. El Dorado County Bd. ofEqualization (2000) 84 Cal.App.4th 1323, 1345-1346 &fn. 17 [101 Cal. Rptr. 2d 591]; Cal. Rules of Court, rule8.204(a)(1)(B).)

In any event, the claim is both legally and factuallyincorrect. The judge exited the courtroom as AttorneyHuddle was speaking. She was not required to lodgeformal objections or make offers of proof to a vacantbench. Furthermore, Ulf protested the summarytermination of trial in his closing brief. He pointed outthat he had not finished putting on his case-in-chief andthat rebuttal testimony was not allowed. He also assertedthat, had he been permitted to do so, he would haveintroduced rebuttal testimony that would have supportedhis contentions in the case, including evidence thatselling the family home would traumatize the couple'sdaughter. Ulf did what he could to raise judicial errorunder extraordinary circumstances. He preserved theissue on appeal.

By arbitrarily cutting off the presentation ofevidence, Judge McBrien rendered the trialfundamentally unfair and violated Ulf's right to dueprocess. (U.S. Const., 14th Amend., 1; Cal. Const., art.I, 7, subd. (a).) Because these errors infected theintegrity of the trial, they require reversal without regardto an assessment of actual prejudice. (See People v. Mello(2002) 97 Cal.App.4th 511, 519 [118 Cal. Rptr. 2d 523].)

DISPOSITION

The judgment is vacated and remanded for retrial.The Presiding Judge of the Sacramento County SuperiorCourt is directed to assign the matter to a different judge.(Code Civ. Proc., 170.1, subd. (c), 187.) Ulf shallrecover costs on appeal. (Cal. Rules of Court, rule8.278(a)(1).)

Blease, Acting P. J., and Sims, J., concurred.

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Respondent's petition for review by the Supreme Courtwas denied August 13, 2008, S164391.

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Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME JUDGE PRO TEMS 3rd DISTRICT COURT of APPEAL RoadDog SATIRE

ABOUT FAMILY COURT NEWS CONTACT FAMILY COURT NEWS Terms & Conditions Privacy Policy

ATTORNEY MISCONDUCT DOCUMENT LIBRARY

18 July 2013

Vance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers

In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance. Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure.

In essence, McBrien and Raye agreed to effectively privatize public court operations to the specifications of private-sector attorneys in exchange for not having to run the court's settlement conference program. The SCBA Family Law Section agreed to run the settlement program provided they were given effective control over most court policies and procedures, including local court rules.

As a result, the public court system was restructured to the specifications of local, private-sector attorneys, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view an example of the same, current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested by the family law bar:

"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family

Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991

Vance Raye and Peter J. McBrien were thearchitects of the current family court system.

JUDICIAL MISCONDUCT (63)

JUDGE PRO TEM (49)

ATTORNEY MISCONDUCT (35)

MATTHEW J. GARY (33)

FLEC (28)

SCBA (22)

ARTS & CULTURE (21)

CHILD CUSTODY (21)

PETER J. McBRIEN (20)

ROBERT SAUNDERS (20)

WATCHDOGS (19)

CHARLOTTE KEELEY (18)

CJP (18)

EMPLOYEE MISCONDUCT (18)

PRO PERS (18)

DOCUMENTS (16)

DIVORCE CORP (13)

JAMES M. MIZE (12)

COLOR OF LAW SERIES (11)

CONFLICT OF INTEREST (11)

SATIRE (11)

WOODRUFF O'HAIR POSNER and SALINGER (11)

JAIME R. ROMAN (10)

SHORTCUTS TO POPULAR SUBJECTS AND POSTS

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Sacramento Family Court News via Google+ 1 year ago - Shared publiclyVance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers. Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991:In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice

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Posted by PelicanBriefed at 11:20 AM

Labels: 3rd DISTRICT COA, ANALYSIS, APPEALS, ATTORNEY MISCONDUCT, CJP, FLEC, JUDGE PRO TEM, JUDICIAL MISCONDUCT,

NEWS EXCLUSIVE, PETER J. McBRIEN, SCBA, VANCE W. RAYE

Location: Sacramento County Superior Court Family Relations Courthouse - 3341 Power Inn Road, Sacramento, CA 95826, USA

- William R. Ridgeway

court system in 1991. As reported by the Daily Journal legal newspaper, McBrien dishonestly implied that the new system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts.

The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid tour with McBrien and the late Judge William Ridgeway. As the Daily Journal reported:

"Around 1990, McBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time there were continual postponements of trials.

'This is how we came up with the system today,' McBrien said. 'It was probably the best trip Sacramento County ever paid for.'

The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling.

'Now, if you're ready and unable to settle, chances are 99.9 percent that you are going out [to trial] the first time,' McBrien said. 'A lot of that is attributable to the willingness of the Sacramento bar to work as settlement counselors.'" Click here to view the Daily Journal report.

To continue reading the rest of this article, visit our special, updated 3rd District Court of Appeal page. Click here. For more on the alleged collusion between judges and attorneys who also serve as Sacramento Superior Court temporary judges and work as settlement counselors, visit our special judge pro tems page. For additional posts about the people and issues in this report, click on the corresponding labels below.

Sacramento Family Court judges and local, Sacramento Bar Association attorneys openly acknowledge their close relationship.

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COMMISSION ON JUDICIAL PERFORMANCE

- -oOo

4 INQUIRY CONCERNING JUDGE PETER J. McBRIEN

5 CJP NO. 185 ORIGINAL 6 -- ---- ------ -- - -- - -- ---- --1

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TRANSCRIPT OF THE

HEARING BEFORE SPECIAL MASTERS

SACRAMENTO, CALIFORNIA

APRIL 1, 2009

VOLUME 1, PAGES 1 - 250

REPORTED BY: SANDRA LEHANE REGISTERED PROFESSIONAL REPORTE:R

CERTIFIED SHORTHAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (510) 864-9645

----------- IN RE CJF NO. 185 - 4/1/09 ------- ----1 1

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A. It's actually 920 - no. 720 9th Street.

Q. That's the main Sacramento County courthouse?

A. It is.

Q. And how long were the family law departments

in that particular courthouse?

A. Until 1999, when we moved out to the Ridgeway

building.

Q. Going back to when you were first appointed

to the family law department or assigned to the family

law department, what were the problems with this

master calendar system?

A. The trials never got to trial. So the Bar

the family law bar, and it was a fairly strong bar

here in Sacramento, initiated the concept of a trip to

Orange County and San Diego County to pick up some

ideas about how their courts were structured. And

myself and Judge Ridgeway and two family law attorneys

made that trip and came back with various i as of how

to restructure the system.

Q. Now, is there a family law section of the

Sacramento County Bar Association?

A. There is.

Q. And was there a family law section of the

Sacramento County Bar Association back in 1991?

A. There was.

b-------------------------IN RE CJF NO. 185 - 4/1/09----------------------~ 188

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Q. Is there an organization called the Family

Law Executive Committee?

A. There is.

Q. What is the Family Law Executive Committee?

A. It is a group of leaders that the family law

bar e ects to take care of the administrative needs

for the section.

Q. And did you work with the Family Law

Executive Committee in developing the current system

in the fami y law practice in Sacramento County?

A. We did.

Q. Could you describe what that wor ng

relationship was?

A. Okay. We - we I, first of all, it's a very

good relationship. We meet -- we still meet monthly.

We keep making adjustments to the system when there are problems. But basically, we moved to a system

where we have law and motion in the family aw

departments on Monday, Tuesday, Wednesday, and we hear

the trials on Thursday and Friday if, in fact, those

trials are two days or less. And if they are more

than two days, they go down through the master

calendar.

Q. Backing up, the Family Law Executive

Committee is appointed in what fashion?

~------------------------IN RE CJF NO. 185 - /09----------------------~ 189

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A. They are elected by the membership of the

family law bar.

Q. The family law bar section of the Sacramento

County Bar Association?

A. Correct.

Q. And you and other judges worked together with

this Family Law Executive Committee in developing the

current system?

A. Correct.

Q. Who are the other judges?

A. Well, at the time, there was Justice Raye

now Justice Raye.

Q. Justice Vance Raye of the Third District

Court of Appeal?

A. Yes.

And another individual whose name always

escapes me, but he left the bench after about two

years.

Q. Dave Sterling?

A. Dave Sterling.

Q. Now, after you went to Orange County, you met

with the Family Law Executive Committee and

developed - or started to develop a plan. Was that

presented to the Superior Court for its approval?

A. It was. And what happened is the Bar culled

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through the various ideas and options, came up with a

plan, presented it to the family law bench. We made

what adjustments we felt were appropriate and then

presented the whole of it to the full bench.

Q. And was that plan approved?

A. It was.

Q. When?

IA. In 19 I want to say late 91 .

Q. And since 1991, is that the current plan that

is employed in the family law departments?

A. It is.

Q. You testified that on Mondays, Tuesdays and

Wednesdays f ly law courts hear law and motion

matters and trials of two days or less on Thursday and

Friday; right?

A. Correct.

Q. Who hears the settlement conferences?

A. The family law bar indicated that they would

be willing to volunteer, and they serve as the

settlement pro terns. There are two for each day of

the week except for Monday. So they have four days a

week where they have two volunteers. And they try to

make it gender neutral, have one male and one female,

and they hear the settlement conferences.

Q. And are settlement conferences assigned

~----------------------IN RE CJF NO. 185 - 4/1/09----~------------------191

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dependent upon the length of the trial?

A. They are.

Q. How does that work?

A. If, in fact, it's going to be a one-day or

less trial, the settlement conference would be one

week before the trial date. And if it's going to be

two days or less, it would be two weeks before.

Q. And in connection with the estimation of the

length of the trial, is that something that you as a

judge would do?

A. No.

Q. Who makes the estimation?

A. The attorneys.

Q. Are the attorneys encouraged to work together

in developing the estimated time?

A. They are.

Q. And is there any significance to the

estimated length of the case, at least from the

judicial perspective of the Sacramento County Superior

Court judge?

A. I believe that -- you know, having seen many,

many of them, that they generally are accurate. They

aren't always accurate, but I think they are trying to

be accurate, stay within the guidance that we have.

Because quite frankly, if, in fact, they don't

L-------------------------IN RE Cc7F NO. 185 - 411109----------------------~ 192

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complete it, they can be mistried.

Q. And when you say "mistried," meaning that the

parties will then be given a new trial date?

A. They would.

Q. You were involved, obviously, with the

Carlsson vs. Carlsson case?

A. Correct.

Q. I would like you to take a look at Exhibit C

in the respondent's

A. I think mine is over there.

MR. MURPHY: May I approach the witness?

SPECIAL MASTER CORNELL: Yes. You don't need

to seek permission.

THE WITNESS: you said C?

MR. MURPHY: Exhibit C, yes.

THE WITNESS: Okay. I have it before me.

BY MR. MURPHY:

Q. For the record, could you describe what

Exhibit Cis?

A. This is an Order to Show Cause filed by

Ms. Huddle on behalf of Mr. Carlsson asking to

continue the trial, fi ed on March 1st of 2006.

Q. What was the basis of the request for a

continuance?

A. That she was just served with a joinder '-------------IN RE CJ.F NO. 185 411109------------~

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Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME JUDGE PRO TEM RACKETEERING 3rd DISTRICT COURT of APPEAL SACRAMENTO

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Sacramento Family Court News Exclusive Investigative ReportThis investigative report is ongoing and was last updated in April, 2015.

As many of the articles on our main page reflect, Sacramento Family Law Court whistleblowers and watchdogs contend that a "cartel" of local family law attorneys receive kickbacks and other forms of preferential treatment from family court judges, administrators and employees because the lawyers are members of the Sacramento County Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program on behalf of the court.

The kickbacks usually consist of "rubber-stamped" court orders which are contrary to established law, and cannot be attributed to the exercise of judicial discretion. For a detailed overview of the alleged collusion between judge pro tem attorneys and family court employees and judges, we recommend our special Color of Law series of investigative reports.

The Color of Law series reports catalog some of the preferential treatment provided by family court employees and judges to SCBA Family Law Section judge pro tem lawyers. Click here to view the Color of Law series. For a list of our reports about family court temporary judges and controversies, click here.

The current day Sacramento County Family Court system and attorney operated settlement conference program was set up in 1991 by and for the lawyers of the Sacramento County Bar Association Family Law Section,

Sacramento Superior Court Temporary Judge Program Controversy

Judge Pro Tem Attorney "Cartel" Controls Court Operations, Charge Whistleblowers

Sacramento Family Court reform advocates assert that collusion between judges and local attorneys deprives financially disadvantaged, unrepresented pro per court users of their parental rights, community assets, and due process and access to the court constitutional rights.

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according to the sworn testimony of controversial family court Judge Peter J. McBrien at his 2009 Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's testimony.

In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J. O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's complete testimony, click here.

Court watchdogs assert that the settlement conference kickback arrangement between the public court and private sector attorneys constitutes a racketeering enterprise which deprives the public of the federally protected right to honest government services.

Court reform and accountability advocates assert that the local family law bar - through the Family Law Executive Committee or FLEC - continues to control for the financial gain of members virtually all aspects of court operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and bias against unrepresented litigants and "outsider" attorneys, including:

Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States" was released in major U.S. cities on January 10, 2014. After a nationwide search for the most egregious examples of family court corruption, the movie's production team ultimately included four cases from Sacramento County in the film, more than any other jurisdiction. Judge pro tem attorneys Charlotte Keeley, Richard Sokol, Elaine Van Beveren and Dianne Fetzer are each accused of unethical conduct in the problem cases included in the movie. The infamous Carlsson case, featuring judge pro tem attorney Charlotte Keeley and Judge Peter McBrien is the central case profiled in the documentary, with Sacramento County portrayed as the Ground Zero of family court corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp.

Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was dumbfounded by the order. Click here for our exclusive report, which includes the complete court reporter transcript from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the prejudicial treatment of outsider attorneys.

Whistleblower leaked court records indicate that Sacramento Bar Association Family Law Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For our complete investigative report, click here.

Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a California Rule of Court prohibiting temporary judges from serving in family law cases where one party is self-represented and the other party is represented by an attorney or is an attorney. The orders were renewed by Presiding Judge Laurie M. Earl in February, 2013. Click here for details.

Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to opposing parties when a judge pro tem working as a private attorney represents a client in family court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest posts.

Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law Executive Committee for the financial benefit of private sector attorneys, and often disadvantage the 70 percent of court users without lawyers, according to family court watchdogs and whistleblowers. For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial Performance, McBrien described seeking and obtaining permission from FLEC to change a local rule. Click here and here.

In November, 2012 Sacramento Family Court Judge Jaime R. Roman issued a rubber-stamped, kickback order declaring a family court party a vexatious litigant and ordering him to pay $2,500 to the opposing attorney, both without holding the court hearing required by law. The opposing attorney who requested the orders is Judge Pro Tem Charlotte Keeley. The blatantly illegal orders resulted in both an unnecessary state court appeal and federal litigation, wasting scarce judicial resources and costing taxpayers significant sums. Click here for our exclusive coverage of the case.

Judge Matthew Gary used an unlawful fee waiver hearing to both obstruct an appeal of his own orders and help a client of judge pro tem attorney Paula Salinger avoid paying spousal support. Click here for our investigative report.

An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of

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temporary judge Scott Buchanan. The rubber-stamped, kickback child support order, and other proceedings in the case were so outrageous that the pro per is now represented on appeal by a team of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster. For our exclusive, ongoing reports on the case, click here.

Judge pro tem attorneys Richard Sokol and Elaine Van Beveren helped conceal judge misconduct and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van Beveren failed to report the misconduct of Judge Matthew Gary as required by state law. Van Beveren is an officer of the SCBA Family Law Executive Committee. Click here for our exclusive report...

...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and misleading information about the unlawful contempt of court and resisting arrest incident. The apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct, trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government whistleblower. Click here for details.

In 2008 controversial family court Judge Peter J. McBrien deprived a family court litigant of a fair trial in a case where the winning party was represented by judge pro tem attorney Charlotte Keeley. In a scathing, published opinion, the 3rd District Court of Appeal reversed in full and ordered a new trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's conduct in the case as a "judicial reign of terror." McBrien subsequently was disciplined by the Commission on Judicial Performance for multiple acts of misconduct in 2009. Click here to read the court of appeal decision. Click here to read the disciplinary decision issued by the CJP.

Judge pro tem attorneys Camille Hemmer, Robert O'Hair, Jerry Guthrie and Russell Carlson each testified in support of Judge Peter J. McBrien when the controversial judge was facing removal from the bench by the Commission on Judicial Performance in 2009. As a sworn temporary judges aware of McBrien's misconduct, each was required by Canon 3D(1) of the Code of Judicial Ethics to take or initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a character witness in support of the judge. In the CJP's final disciplinary decision allowing McBrien to remain on the bench, the CJP referred specifically to the testimony as a mitigating factor that reduced McBrien's punishment. Click here. Court records indicate that Judge McBrien has not disclosed the potential conflict of interest to opposing attorneys and litigants in subsequent appearances by the attorneys in cases before the judge. Click here for SFCN coverage of conflict issues.

Judge pro tem attorneys Terri Newman, Camille Hemmer, Diane Wasznicky and Donna

Reed were involved in a proposed scheme to rig a recall election of controversial Judge Peter J. McBrien in 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the Year" before the November election. Click here for the Sacramento News and Review report.

Judge pro tem attorney Robert J. O'Hair testified as a character witness for controversial Judge Peter J. McBrien at the judge's second CJP disciplinary proceeding in 2009. Paula Salinger, an attorney at O'Hair's firm, Woodruff, O'Hair Posner & Salinger was later granted a waiver of the requirements to become a judge pro tem. A family court watchdog asserts the waiver was payback for O'Hair's testimony for McBrien. Click here to read our exclusive investigative report.

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In cases where one party is unrepresented, family court clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state court rule formatting requirements. The declarations - on blank paper and without line numbers - make it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible evidence. Click here for our report documenting multiple state court rule violations in a motion filed by SCBA Family Law Section officer and temporary judge Paula Salinger. To view the pro per responsive declaration objecting to the illegal filing click here, and click here for the pro per points & authorities.

Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information included in the mandatory form. Click here for our exclusive report.

Sacramento Family Court temporary judge and family law lawyer Gary Appelblatt was charged with 13-criminal counts including sexual battery and penetration with a foreign object. The victims were clients and potential clients of the attorney. The judge pro tem ultimately pleaded no contest to four of the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click here to read our report.

Judge pro tem and SCBA Family Law Section attorney Scott Kendall was disbarred from the practice of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate the law, failing to perform legal services competently, and failing to keep clients informed, including not telling a client about a wage garnishment order and then withdrawing from the same case without notifying the client or obtaining court permission. Court administrators concealed from the public that Kendall held the Office of Temporary Judge. Click here to view our report.

Judge pro tem attorneys Nancy Perkovich and Jacqueline Eston in 2008 helped Donna Gary - the wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by the Code of Judicial Ethics. Click here for our exclusive report on the controversy.

In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court administrators and judges. Click here for our report.

Family court reform advocates assert that judge pro tem attorneys obtain favorable court rulings on disputed issues at a statistically improbable rate. The collusion between full-time judges and judge pro tem attorneys constitutes unfair, fraudulent, and unlawful business practices, all of which are prohibited under California unfair competition laws, including Business and Professions Code 17200, reform advocates claim.

Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in unnecessary appeals burdening the appellate court system, and other, related litigation that wastes public funds, exposes taxpayers to civil liability, and squanders scarce court resources.

Watchdogs point out that the court operates what amounts to a two-track system of justice. One for judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and "outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold standard reference on judge misconduct. Click here for articles about the preferential treatment given judge pro tem attorneys. Click here for examples of how pro pers are treated.

After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete, scathing account.

The Sacramento County Bar Association Family Law Section is led by an "Executive Committee" ("FLEC") of judge pro tem attorneys composed of Chair Russell Carlson, Vice Chair Elaine Van Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members. Click here for other articles about FLEC.

Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any provision of the California Rules of Professional Conduct. Family court watchdogs assert that temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of

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office. To view the applicable Code of Judicial Ethics Canons, Click here. For a Judicial Council directive about the obligation to address judicial misconduct, a critical self-policing component of the Code of Judicial Ethics, click here.

For information about the role of temporary judges in family court, click here. For official Sacramento County Superior Court information about the Temporary Judge Program click here. Using public records law, Sacramento Family Court News obtained the list of private practice attorneys who also act as judge pro tems in Sacramento Family Law Court. Each lawyer on the list below is currently a temporary judge, or was a temporary judge in 2009, 2010, 2011, 2012 or 2013. SFCN cross-checked each name on the Sacramento County judge pro tem list with California State Bar Data. The first name in each listing is the name that appears on the Sacramento County judge pro tem list, the second name, the State Bar Number (SBN), and business address are derived from the official State Bar data for each attorney. The State Bar data was obtained using the search function at the State Bar website.

For-profit, private sector lawyers who also hold the Office of Temporary Judge:

Sandy Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra Amara,1 California Street, Auburn, CA 95603.

Mark Ambrose, Mark Anthony Ambrose, SBN 141222, Law Offices of Mark A. Ambrose, 8801 Folsom Blvd. Ste. 170, Sacramento, CA 95826. Ambrose unethically advertises himself as a temporary judge.

Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law & Mediator, 206 5th Street, Ste. 2B Galt, CA 95632.

Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610 American River Drive #112, Sacramento, CA 95864. Appelblatt was disbarred by the State Bar on Sept. 24, 2010 after being convicted of sexual battery against clients. Click here for our exclusive report. Appelblatt is a graduate of McGeorge School of Law.

Beth Appelsmith, Beth Marie Appelsmith, SBN 124135, 1430 Alhambra Blvd. Sacramento CA 95816.

Bunmi Awoniyi, Olubunmi Olaide Awoniyi, SBN 154183, Law Office of Bunmi Awoniyi a PC, 1610 Executive Ct. Sacramento, CA 95864. Awoniyi unethically advertises herself as a temporary judge. Awoniyi was appointed a Superior Court Judge in December 2012 and holds court in Department 120 of Sacramento Family Court.

Alexandre C. Barbera, C. Alexandre Barbera, SBN 70071,915 Highland Point Drive, Ste. 250 Roseville, CA 95678.

A number of family court whistleblowers have leaked court records indicating that judge pro tem attorneys receive from

judges kickbacks and other preferential treatment in exchange for operating the family court settlement conference program.

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Investigative Reporting, News, Analysis, Opinion & Satire

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3rd DISTRICT COURT of APPEAL SACRAMENTO

This ongoing investigative project was updated in April, 2015.

Sacramento Family Court News is conducting an ongoing investigation of published and unpublished 3rd District Court of Appeal decisions in trial court cases originating from family courts. This page is regularly updated with our latest news, analysis, and opinion. Our preliminary findings reveal an unsettling link between how an appeal is decided and the political ideology, work history, and family law bar ties of the court of appeal judges assigned to the appeal.

Our investigation indicates that the outcome of an appeal is in large part dependent on the luck of the justice draw and the undisclosed connections between the trial court judge whose order is appealed, the trial and appellate court attorneys, and the judges assigned to resolve the appeal.

The collusive atmosphere falls hardest on unrepresented or "pro per" appeal parties who can't afford to hire a local appellate attorney. 3rd District appeal outcome statistical data reveals a virtually perfect record of success for attorneys in cases where the opposing party is a pro per. Appeals taken by pro per litigants rarely, if ever, succeed.

In addition, a separate SFCN investigation has uncovered evidence that both trial and appellate court judges, part-time judges, and court employees deliberately obstruct appeals by indigent, unrepresented parties. Appeal data from the Third District reveals that most pro per appeals are never decided on the merits and are instead

Third District Court of Appeal:

Justice, Ideology & Conflicts of Interest

A Sacramento Family Court News investigation indicates that ideology and undisclosed conflicts of interest play a significant role in the outcome of appeals in the Third District Court of Appeal.

An Exclusive Sacramento Family Court News Investigation

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dismissed on legal technicalities, which are often caused by the deliberate acts of government employees.

Court whistleblowers assert and have documented that the family law division of Sacramento Superior Court and the 3rd District Court of Appeal effectively operate as a RICO racketeering enterprise that deprives the public of the federally protected right to honest government services, and includes predicate acts of mail and wire fraud. Click here to read our full report on the allegations.

The 2014 documentary film Divorce Corp, designated Sacramento County as the most corrupt family court in the United States. Court watchdogs contend that the scale and scope of the corruption rivals the Kids for Cash scandal in Luzerne County, Pennsylvania, which also became a documentary film.

Third District Court of Appeal cases are assigned to three of ten judges. The background of each appears to be a critical factor in how an appeal is decided.

For example, 3rd District unpublished opinions show that Court of Appeal justices who were elevated to the appellate court from Sacramento County Superior Court will often effectively cover for judicial errors in appeals from the same court.

Third District Justices George Nicholson, Harry E. Hull, Jr., Ronald B. Robie, and Presiding Justice Vance W. Raye previously were trial court judges in Sacramento County Superior Court.

Each have personal, social, or professional ties to family court judges and attorney members of the Sacramento County Bar Association Family Law Section. After his retirement in 2011, 3rd District Presiding Justice Arthur Scotland described the professional and personal relationships he had with attorneys during his career on the bench.

"[I] enjoy friendships...I go to all the county bar events. I do that for two reasons. One, I think it's a responsibility of a judge to be active in the community, and the attorneys appreciate it. But I really like the people. I really like going to these events. I enjoy friendships and that sort of thing." Click here to view Scotland's statement.

Sacramento Lawyer, the monthly magazine of the Sacramento County Bar Association each month publishes accounts of recent social, educational and charitable events sponsored by the association, its 17 specialty law sections - including the family law section - and its eight local affiliates, including the Asian/Pacific Bar Association, and Women Lawyers of Sacramento. Most are well attended by a mix of state and federal judges, court administrators, supervisors and employees, and lawyers.

To get a sense of the collusive atmosphere in Sacramento Family Law Court, we recommend reading our special Color of Law series of investigative reports, which document the preferential treatment provided by family court employees and judges to SCBA Family Law Section lawyers at the trial court level. Click here to view the Color of Law series. Financially disadvantaged, unrepresented litigants who face opposing parties represented by SCBA attorneys assert that the collusive collegiality taints appeal proceedings in the appellate court.

Pro per advocates contend that under Canon 3E(4)(a) and (c) of the Code of Judicial Ethics, Raye, Robie, Hull and Nicholson should disqualify themselves from participating in any appeal originating from Sacramento Family Law Court. Advocates argue that the same conflict of interest principles apply to family court appeals that resulted in the self-recusal, or removal, of Vance Raye from participating in the 2002 Commission on Judicial Performance prosecution of family court Judge Peter McBrien. To view the 2002 Raye recusal and CJP decision against McBrien, click here. The CJP has disciplined judges for violating the Code of Judicial Ethics rules requiring judges to disclose conflicts. Click here for examples of CJP conflict of interest disciplinary decisions.

It is a basic principle of law that state appellate justices and federal judges with personal or professional relationships with trial court judges connected to an appeal or federal court action should disqualify themselves to avoid the appearance of partiality. Click here to view a recent order issued by a federal judge disqualifying the entire bench of the Fresno Division of the US District Court for the Eastern District of California due to personal and professional relationships with local state court judges.

The conflict disclosure problem infects the Superior Court as well. To the benefit of local family law attorneys who also hold the office of temporary judge in the same court, Sacramento Family Law Court judges effectively have

3rd District Court of Appeal watchdogs assert that appeal outcomes are inconsistent, and in large part determined by

the work history, and social or professional connections of the three judges assigned to decide an appeal.

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institutionalized noncompliance with state conflict of interest disclosure laws. Click here. For an example of a Sacramento County civil court trial judge who fully complied with conflict laws, click here. Without oversight or accountability, family court judges routinely - and in violation of state law - ignore the same disclosure requirements.

In 1991, as a superior court judge, current 3rd District Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance.

Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure. The public court system was built to the specifications of private-sector attorneys from the SCBA Family Law Section Family Law Executive Committee, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view the same, current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested by the family law bar:

"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family court system in 1991. As reported by the Daily Journal legal newspaper McBrien dishonestly implied that the system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts. The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid trip with McBrien and the late Judge William Ridgeway.

"[M]cBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time, there were continual postponements of trials. 'This is how we came up with the system today,' McBrien said. 'It was the best trip Sacramento County ever paid for.' The judges changed the local system so that family law judges presided over both law and motion matters and trials..." the Daily Journal reported. Click here to view.

Under oath, McBrien admitted that the private-sector, for-profit family law bar dictated the public court facility restructuring plan - conceived to serve the needs and objectives of SCBA Family Law Section member attorneys - which then essentially was rubber-stamped by the bench.

"[T]he Bar culled through the various ideas and options, came up with a plan, presented it to the family law bench. We made what adjustments we felt were appropriate and then presented the whole of it to the full bench," and the plan was approved. Click here to view.

In essence, McBrien disclosed that the current public court system was set up by and for local attorneys with little, if any, consideration of the needs of the 70 percent of court users unable to afford counsel. The system also has shown it is designed to repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of San Francisco, and Sharon Huddle of Roseville. Click here and here.

"[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to out-of-town counsel," Gianelli said.

According to the Commission on Judicial Performance - the state agency responsible for oversight and

History & Origins of the Current Sacramento County Family Court System

Tani Cantil Sakauye worked with Peter J. McBrien in Sacramento County Superior Court from 1997-2005.

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accountability of California judges - the structure is known as a "two-track system of justice."

"In this case, we again confront the vice inherent in a two-track system of justice, where favored treatment is afforded friends and other favored few, and which is easily recognized as 'corruption at the core of our system of impartial equal justice, and...intolerable," the CJP said in a 2005 judicial discipline decision involving a Santa Clara County judge. To view a list of similar CJP decisions, click here.

According to the gold standard reference on judicial ethics, the California Judicial Conduct Handbook [pdf], published by the California Judges Association, providing preferential treatment to local, connected attorneys also is known as "hometowning," and is prohibited by the Code of Judicial Ethics. To view this section of the Handbook, click here.

One objective of the revamped system was to keep all family court proceedings in-house: within the isolated family relations courthouse. Prior to the change, trials were conducted at the downtown, main courthouse and before judges more likely to have a neutral perspective on a given case, and less likely to have ties to the family law bar.

"The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling," the Daily Journal reported.

Family court watchdogs and whistleblowers allege that under the system set up by Raye and McBrien, the local family law bar - through the Family Law Executive Committee or FLEC - now controls for the financial gain of members virtually all aspects of court operations, including local court rules. A cartel of local family law attorneys receive preferential treatment from family court judges and appellate court justices because the lawyers are members of the Sacramento Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program, court reform advocates charge.

Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and flagrant bias against unrepresented litigants and "outsider" attorneys. Click here for a list of watchdog claims. Published and unpublished 3rd District opinions indicate that Court of Appeal justices without direct ties to the same superior court are more likely to follow the law, and less likely to whitewash trial court mistakes.

Keeping Neutral Judges Out-of-the-Loop

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