First Appellate Court levies sanction against judicial candidate in family law case appeal

LAKEPORT, Calif. – This week a state appellate court levied a substantial sanction on a local judicial candidate for filing an appeal in a family law case that the justices said was frivolous, involved delay tactics and cast aspersions on the performance of a Lake County Superior Court judge.

The First Appellate Court levied the $6,000 sanction against Lakeport attorney Judy Conard in an unpublished opinion released on Tuesday.

Conard is running for the Lake County Superior Court Department 1 bench this fall against fellow Lakeport attorney Michael Lunas.

Conard said Thursday that she was shocked and very disappointed by the decision.

“We obviously believed the appeal had merit or I would never have filed it,” said Conard.

She said she has never before had such a sanction placed against her.

The court’s decision won’t become final until the remittitur is filed, which Conard said she expected to occur by the end of October. At that point, she will have the option of appealing to the California Supreme Court.

The case in question involves Conard’s client, Theodore Parfet, and his former partner, Amy Tucker, who have a 7-year-old child together.

Last October, Parfet, who lives in Michigan, appealed an order that he pay the attorney fees Tucker incurred while she opposed his motions to modify child custody, visitation and child support, according to the decision, which can be read below.

Conard said they appealed the amount of attorneys’ fees, which at nearly $80,000 were in excess of what the interim fees were to be.

“If I had to do it over again, I would,” she said.

Tucker’s attorney, Lawrence Buchanan of Windsor, did not return a call seeking comment.

The sanction meted out against Conard appears to be unusual in its size and the severity of its language, based on reactions this week from members of the county’s legal community.

The three appellate justices found “the degree of objective frivolousness and delay is extremely high,” and that “pursuing a meritless appeal of an attorney fee award under the circumstances of this case flies in the face of the very purpose of the Family Code attorney fees statutes.”

The decision continued, “Unfortunately, the record before us contains strong evidence that delay tactics such as this are part of a larger and ongoing litigation strategy. Thus, the amount of sanctions must be sufficient to discourage like conduct in the future.”

Parfet was ordered to pay an additional $15,000 in sanctions to Tucker “for filing this frivolous appeal,” the justices ruled.

Finding that Conard had a professional responsibility not to pursue a frivolous appeal just because her client instructed her to do so, the justices said Conard violated her duties by facilitating the appeal “and by advancing arguments which exceed the bounds of both common sense and sound advocacy.”

As a sanction for facilitating the appeal, the appellate court ordered Conard to pay $6,000 to the clerk of the Lake County Superior Court, with both Conard and the court clerk ordered to forward a copy of the appellate opinion to the State Bar of California.

Laura Ernde, acting communications director for the State Bar of California, told Lake County News that attorneys who receive sanctions of more than $1,000 are generally required to report them to the State Bar.

She said any resulting investigation would be confidential unless and until the bar pursued formal disciplinary charges against the attorney.

State Bar records show that there are no public records of discipline or administrative action against Conard, who was admitted to the State Bar in 1985. Ernde said Lunas, a State Bar member since 1982, also has no public disciplinary or administrative action records.

A lengthy, contentious case

The main child support case was heard by retired Lake County Superior Court Judge Robert Crone Jr.

In January 2011, Tucker sought more than $7,700 in outstanding attorney fees and an advance of $30,000 for attorney’s fees and costs in order to conduct a trial on motions Parfet filed in the case.

Two months later, Judge David Herrick ordered Parfet to pay the unpaid balance of Tucker’s attorney fees plus pay the $30,000 advance.

Later that summer, Buchanan filed a declaration for attorney fees and costs in the sum of $79,115, $4,200 for expert witness fees and nearly $700 in deposition expenses.

In July 2011, Judge Crone heard the motion, found that Buchanan had made a prima facie showing of entitlement to the fees, and asked Conard “to support her contention that the amount of the fee request was unreasonable.” She asked for additional time, with the court giving her until the following month, when she filed the response.

In September 2011, Judge Crone ruled that Tucker’s expenditures “were reasonable under the circumstances in light of Parfet’s financial resources and demonstrated willingness to use those resources to fund litigation against Tucker.”

Court documents showed that on Oct. 12, 2011, Parfet filed a motion of appeal for Crone’s order, arguing that Crone abused his discretion by failing to review relevant evidence before granting attorney fees. The burden of proving that abuse was on Parfet, who the appellate court found failed to make the argument.

“Here, the trial court granted an attorney fees motion and there is no dispute on appeal that the award is supported by substantial evidence. More to the point, Judge Crone never made any statement which could be construed as a refusal to review Buchanan’s fee request. To the contrary, the record before us confirms that the trial court did review the relevant evidence,” the appellate justices wrote.

The court also found that Parfet’s case had “unsound” interpretation of case law, made contentions inconsistent with the case’s record, and failed to offer evidence to support his contention that Buchanan’s billing records were “clearly inaccurate” or that Parfet brought the alleged errors to the trial court’s attention.

“Despite his bold and inflammatory language, Parfet identifies only one allegedly obvious inaccuracy in the billing statements,” the justices wrote. “He contends that Buchanan ‘billed 21.5 hours for court time’ when the ‘Court records and Appellant’s records clearly show 12 hours.’”

The court went on to find that “Parfet’s claim that this trial court failed or refused to review the evidence relevant to the attorney fees motion prior to making its ruling is not supported by any evidence in this record. The record before us shows that Judge Crone was very familiar with every aspect of this case and that he properly exercised his discretion by making the attorney fees award that is the subject of this appeal.”

The justices also shot down other claims by Parfet that Crone abused his discretion by “procedural irregularities” regarding timely review of Parfet’s objections and that he denied Parfet the opportunity to file additional objections to a second proposed statement of decision that Tucker submitted to the court. The appeals court noted that Parfet again failed to provide evidence of his assertions.

In its analysis, the court cited case law that defines an appeal as being frivolous and warranting sanctions “when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit.”

The decision concluded, “This appeal is frivolous under both of these standards.”

It continued, “Every argument that Parfet made on appeal is based on a questionable if not patently erroneous interpretation of the record. Furthermore, Parfet relied on obviously inapposite case law and employed legal presumptions which are inconsistent with settled principles of appellate review. Finally, Parfet cast aspersions on the trial judge without any factual justification. Under these circumstances, any reasonable attorney would agree that this appeal is totally without substantive merit and therefore frivolous.”

The justices concluded that the only motive was delay, noting, “ ... every round of litigation that he has initiated has been delayed and exacerbated by his resistance to paying Tucker’s fees. This time around, there is evidence that Parfet and his counsel made representations about Parfet’s willingness to pay reasonable fees which were inconsistent with their actual litigation strategy, i.e., to resist paying any fees for as long as possible.”

With the decision coming about a month and a half before the election, Conard said she was “assuming it’s a test of my judicial temperament.”

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091812 - First Appellate Court Sanctions on Conard

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Written by: Elizabeth Larson

Published: 21 September 2012

Supervisors approve appointment of sheriff’s attorney in Brady matter

LAKEPORT, Calif. – After a short, contentious Tuesday morning discussion, the Board of Supervisors approved the hiring of a Southern California attorney to represent Lake County’s sheriff, who is facing a potential action by the district attorney based on allegations that he lied during a 2008 investigation.

The board, in a 3-1 vote – with Board Chair Rob Brown voting no – approved the appointment of Paul Coble of Fullerton, a senior associate with the Jones & Mayer law firm, to represent Sheriff Frank Rivero in dealings with District Attorney Don Anderson. Supervisor Jim Comstock was absent from the meeting.

Anderson is considering giving Rivero a “Brady letter,” due to allegations that he lied to sheriff’s officials conducting an investigation into a nonfatal shooting in February 2008 in which Rivero – then a deputy – shot at a man holding a can of pepper spray. The man was not hit or injured.

Case law that has developed from the 1963 U.S. Supreme Court decision, Brady v. Maryland, requires prosecutors to divulge all potentially exculpatory evidence to defendants in criminal cases.

With regard to law enforcement officers with credibility issues, those issues must be released to defendants in cases where the officers are involved.

Anderson had begun the inquiry last year, and earlier this year Rivero had gone to the board to ask for outside legal counsel after County Counsel Anita Grant declared a conflict of interest in the case.

Rivero based his request on Government Code Section 31000.6, which states, “Upon request of the assessor or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”

The board had voted in March to ask Grant’s office to explore an “ethical wall” in order to avoid the conflict. Anderson waived the conflict, Rivero did not, and later in March he filed a writ of mandate to force the board to give him the attorney under the government code. Last month a visiting Mendocino County judge granted Rivero’s request.

Grant told the board on Tuesday that she had asked Jones & Mayer last week for an estimate of costs going forward in dealings with the district attorney. On Tuesday morning she received an email estimating $5,610, with attorney’s fees at about $250 an hour.

State government code allows for “reasonable” fees to be paid to attorneys in such cases. “That’s at the high end but it is within the range,” Grant said.

If more formalized representation is needed, she said Coble estimated that the base cost of $5,610 could be increased by a factor of three or more.

She suggested the board establish an initial contract with a specific cost level. If costs need to be increased, the amount can be renegotiated, as the board has done in other circumstances. Grant suggested a $6,500 cap.

Brown said the language of the code doesn’t specifically say anything about the sheriff being able to pick whatever attorney he wants. Grant said the California Attorney General’s Office has given a general opinion of the law that concludes the choice is up to the sheriff.

Brown said he felt a local attorney should be chosen. “I already think it’s exorbitant,” he said, referring to the initial amount just to meet with the District Attorney’s Office.

Board members, sheriff clash

Supervisor Anthony Farrington said he had trepidation that if the board pursued the matter of choice of attorney, the sheriff would “hang his hat” on the attorney general’s opinion. He said the spending of tax dollars has been his concern from the beginning.

He asked Rivero how much the county had to reimburse him for legal costs to date.

“I don’t have that figure with me,” said Rivero. “They’re working on it right now.”

Grant, however, said the amount to date totaled about $14,000.

Coble had told Lake County News in an interview late in August that his bill for legal expenses in representing Rivero stretched back to February.

Farrington asked Grant if the board would be able to see itemizations of the costs. Grant said the board was entitled to question some of the expenses. “You’re not giving the keys to the kingdom.”

Brown called the situation “a joke,” adding, “I think the whole thing’s ridiculous.”

He asked the source of funding; Grant said it could come from the Local Assistance for Rural and Small County Law Enforcement fund.

Farrington asked how that would impact plans to purchase a Clearlake Oaks substation. County staff said there was about $1.8 million in the fund. Farrington said that was if the county didn’t end up in “an appellate-type venture,” hinting that Rivero may take the matter much further based on Anderson’s anticipated decision.

Brown said it also depended on the client. He pointed out that when there is a litigious client who is always on the phone with the attorney, “someone has to pay for that bill,” with it being no different than dealing with public defenders.

“I understand that you don’t like this,” said Supervisor Denise Rushing. “It’s a tough thing to do fiscally.”

She said she was prepared to give approval as long as the costs were within an acceptable range and the board had control mechanisms. Rushing called the funding source “unfortunate.”

Brown wanted to know the options for getting a local attorney. Rushing said it would cost more to change attorneys at this point, to which Brown replied, “It should have been done originally.”

Supervisor Jeff Smith was curious about the listed travel time, as well as airfare, a rental car and overnight lodging. He asked where Fullerton was, and Brown pointed out that it’s in Orange County.

Brown asked if the attorney general’s opinion on such cases had been tested. Grant said not to her knowledge.

At that point, Rivero – who had been sitting quietly at a table before the board dais – broke in, saying that the amount of attorney’s fees to go against the county to get the legal representation already had exceeded the estimates to resolve the entire matter.

“That’s a decision that falls squarely on your shoulders,” he told the board.

The outcome, replied Brown, is likely to be the same.

Rivero asked if he had some reason to believe that. “Yeah, I do,” Brown replied.

For his part, Rivero said he didn’t know it to be true, and said the board should have followed the statute and given him an attorney from the beginning.

“I would believe that one should learn from history,” Rivero said.

Brown said cryptically that the matter may turn out to come down to one individual. “Plus, it will give you something to talk about on the radio,” Brown said, a reference to Rivero’s shows in which he often criticizes the board and his political opponents.

“When we used to communicate,” Farrington told Rivero, he said the sheriff had asked him to communicate with the County Counsel’s Office after she declared the conflict. Farrington said he tried to facilitate another possibility – he had championed the ethical wall approach – but said Rivero had elected not to accept it.

Rivero replied that the county counsel had said “unequivocally” that there was a conflict.

That decision, Farrington reminded him, had triggered their conversations. Farrington recalled Rivero being upset that Grant had declared the conflict. He said he tried to facilitate a resolution, reaching out to Anderson, who waived any conflict.

Farrington said Rivero baited and switched. “Right now, you’re not being honest,” Farrington said, a statement to which Rivero objected. Farrington said their email exchange over Rivero’s legal counsel told a different story.

Rivero said he was acting in the best interests of the sheriff’s office. Farrington pressed him on why he had still wanted representation from Grant’s office initially after she had conflicted out.

Farrington said he wanted to move forward. “You have bait and switched,” no matter what Rivero was saying now, he said.

With that, Farrington said he also wanted to have Grant write a letter and bring it back on the next available agenda asking Anderson to move forward immediately on the Brady letter decision in the interest of saving taxpayer money. The board gave consensus.

Farrington moved to approve Jones & Mayer as the firm to represent Rivero, with a fee structure not to exceed $6,500, and to bring back a contract for final approval. Rushing seconded, with the board voting 3-1, with Brown voting no.

Farrington also moved to identify the Local Assistance for Rural and Small County Law Enforcement fund as the source of funding.

Interim County Administrative Officer Matt Perry said staff would have to return to the board at a future meeting – the date of which has not yet been determined – with a resolution to cancel the reserves in the fund in order to approve the expenditure. The board approved Farrington’s motion 4-0.

Grant’s letter to Anderson and the final contract with Jones & Mayer are scheduled to be on next week’s agenda.

Anderson told Lake County News on Tuesday that he’s ready to proceed.

“Basically, I’ve been waiting for the last two or three months for them to decide who the attorney’s going to be so I can schedule a meeting,” he said.

He plans to meet with Rivero and give him a chance to explain his side of the story.

After he meets with Rivero, Anderson will evaluate what he has to say, the evidence – including taped interviews – and reports, and then make a decision.

According to case law, the decision of who gets a Brady letter ultimately is up to the district attorney.

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Written by: Elizabeth Larson

Published: 19 September 2012

Board to discuss appointment of sheriff’s attorney, Lakeport water project

LAKEPORT, Calif. – On Tuesday the Board of Supervisors will discuss the appointment of an attorney for the county’s sheriff and a Lakeport water project.

The meeting will begin at 9 a.m. Tuesday, Sept. 18, in the board chambers on the first floor of the Lake County Courthouse, 255 N. Forbes St., Lakeport. The meeting will be broadcast live on TV8.

At 10:30 a.m., the board will consider appointing the Jones and Mayer law firm as outside legal counsel for Sheriff Francisco Rivero, and also will determine the fee structure and source of the funding.

Late last month a visiting judge granted Rivero’s request for a writ of mandate against the board, which in March refused to hire him an outside attorney to represent him in response to a District Attorney’s Office investigation.

District Attorney Don Anderson led an inquiry into allegations that Rivero lied during a February 2008 investigation involving an incident in which, while working as a deputy, Rivero shot at a man carrying pepper spray. The man was not hurt.

As a result, Anderson is considering giving Rivero a “Brady letter.” In that case, he would need to disclose credibility issues to defense attorneys in any cases in which Rivero was involved as a law enforcement officer.

Also on Tuesday, at 9:30 a.m., the board will consider the feasibility study for the proposed South Lakeport Water System, discuss a proposed letter to the city of Lakeport regarding the city’s proposed annexation and related water services issues – which have become a point of contention between the city and county.

They also will consider sending a letter to the city of Lakeport regarding agreement between the county and the city to allow sewer service from Lampson Airfield to City of Lakeport Wastewater Treatment Facility.

In other business, the board also is scheduled for a closed session update on Carmichael resident Bismarck Dinius’ lawsuit against the county, which is scheduled to go to a mediator next week.

Dinius is suing the county over his prosecution for an April 2006 boat crash cash in which a woman died. He was steering a sailboat which was hit by a powerboat driven by then-Chief Deputy Russell Perdock. At the end of his 2009 trial, Dinius was acquitted by a local jury.

The full agenda follows.

TIMED ITEMS

9 a.m., A-1 to A-4: Approval of consent agenda, which includes items that are expected to be routine and noncontroversial, and will be acted upon by the board at one time without discussion; presentation of animals available for adoption at Lake County Animal Care and Control; consideration of items not appearing on the posted agenda, and contract change orders for current construction projects.

9:05 a.m.: Citizen's input. Any person may speak for three minutes about any subject of concern, provided that it is within the jurisdiction of the Board of Supervisors and is not already on the agenda. Prior to this time, speakers must fill out a slip giving name, address and subject (available in the clerk of the board’s office, first floor, courthouse).

9:15 a.m., A-5: Consideration of proposed Public Safety Realignment Implementation Plan Revision.

9:30 a.m., A-6: (a) Consideration of the feasibility study for the proposed South Lakeport Water System; and (b) consideration of proposed letter to the city of Lakeport regarding the city’s proposed annexation and related water services issues; and (c) consideration of proposed letter to city of Lakeport regarding agreement between the county and the city to allow sewer service from Lampson Airfield to City of Lakeport Wastewater Treatment Facility.

10:30 a.m., A-7: (a) consideration of appointment of the Jones and Mayer law firm as outside legal counsel for Sheriff Francisco Rivero; and (b) consideration and determination of the fee structure and source of funding.

NONTIMED ITEMS

A-8: Supervisors’ weekly calendar, travel and reports.

A-9: Consideration of the following appointments: Clear Lake Advisory Committee.

CLOSED SESSION

A-10: 1.Conference with labor negotiator: (a) county negotiators: A. Grant, L. Guintivano, M. Perry, J. Hammond and A. Flora; and (b) Deputy District Attorney’s Association.

A-10: 2. Public employee performance evaluation: Child Support Services director.

A-10: 3. Conference with legal counsel: Existing litigation pursuant to Government Code Sec. 54956.9 (a): Dinius v. County of Lake.

A-10: 4. Conference with legal counsel: Pending litigation, decision whether to initiate litigation pursuant to Government Code Section 54956.9(c): One potential case.

A-10: 5. Conference with legal counsel: Substantial threat of litigation pursuant to Government Code Section 54956.9 subd. (b)(3)(c): Fowler v. County of Lake, et al.

CONSENT AGENDA

C-1: Approve minutes of the Board of Supervisors meeting held on Sept. 11, 2012.

C-2: Adopt resolution authorizing grant project – Lake County Victim-Witness Assistance Program.

C-3: Adopt resolution declaring county property surplus to the needs of the county and authorizing purchasing agent to sell said property (one 2006 Dodge Sprinter 2500 SHC Super High Roof Cargo Van).

C-4: Approve the submittal of the Anti-Drug Abuse (ADA) Grant to the California Emergency Management Agency, for the amount of $110,511 (allocation of funds to be determined).

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Written by: Elizabeth Larson

Published: 17 September 2012

New Lakeport courthouse clears another hurdle in latest state recommendations

LAKEPORT, Calif. – The plans to bring a new courthouse to Lakeport are continuing to move forward at the same time as some courthouse projects in other parts of the state are facing delays.

Last Friday, following two and a half days and 26 hours of public meetings, the state’s Court Facilities Working Group reached recommendations on which courthouse projects would move forward and which would be delayed – some indefinitely.

Seven courthouse construction projects – two in Kern County, two in Los Angeles, one in Monterey one in Placer and one in Plumas – were recommended for indefinite delay, with 23 projects to proceed and move forward subject to funding availability or other considerations.

The new Lakeport courthouse was one of those getting the green light to proceed.

“It’s very, very good news,” said Court Executive Officer Mary Smith. “We’re excited about it.”

Smith said staff from the Lake County Superior Court attended the hearings last week in San Francisco.

Justice Brad Hill, the chair of the Court Facilities Working Group, said in a written statement issued by the Judicial Council that, due to the $544 million cut the state judicial branch faced this last year, the working group “was left with the deeply difficult and disappointing task of delaying necessary court construction projects that would have gone ahead under a better fiscal environment.”

Hill and the working group invited each of the 24 courts with one or more of the 31 projects to submit a proposal, demonstrating why each project should move forward with the branch’s limited funds, the Judicial Council reported.

In Mendocino County, a new courthouse project in Ukiah also will move ahead with site acquisition, with the project to have one less courtroom, the state reported.

The Court Facilities Working Group’s recommendations will go to the Judicial Council of California for consideration at its Oct. 26 meeting.

The Lakeport courthouse – a 50,000-square-foot, $55 million project to be built at 675 Lakeport Blvd. – made a short list of critical projects statewide.

It gained its place on the priority list due to safety concerns and space constraints state officials identified for the courts’ current location on the fourth floor of the Lake County Courthouse, located at 255 N. Forbes St.

Those quarters have become even more cramped since the Lake County Superior Court reconfigured its calendars and relocated Judge Stephen Hedstrom’s Department 4 courtroom from Clearlake to Lakeport in August in response to an anticipated cut of more than half a million dollars for the new fiscal year, as Lake County News has reported.

Smith said all of the projects that are moving forward – including Lakeport’s – will through an evaluation committee that will look for ways to save money when possible.

“There is going to be some scrutiny on the project, but it’s going to move forward,” she said.

Lakeport’s courthouse project plans have been approved; now it’s waiting for funding to move to the next phase, which Smith said is working drawings.

The Administrative Office of the Courts previously had planned for the Lakeport courthouse project’s groundbreaking and bond issuance to take place in the spring of 2013, with construction to be completed in late 2014.

However, that schedule has been disrupted due to the recent changes in the state judicial branch’s fiscal situation. Smith said state officials haven’t recently updated the project’s timeframe.

While the situation is uncertain due to the state’s funding availability, “I’m very optimistic that it will get back on track,” said Smith.

The list of projects approved at last week’s meeting will be posted on the Court Facilities Working Group Web site, www.courts.ca.gov/policyadmin-invitationstocomment.htm , for two weeks for public comment, and later this month the working group will meet to confirm final recommendations.

Once the Judicial Council reviews and either accepts or adjusts the Court Facilities Working Group recommendations, projects slated to move forward will be reviewed by a cost-reduction subcommittee chaired by Justice Jeffrey W. Johnson.

“Given the current economic environment, we remain ever vigilant stewards of the taxpayer’s money,” Johnson said in a written statement. “I predict that those projects recommended for construction will face considerable reductions in size, scope and cost.”

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Written by: Elizabeth Larson

Published: 12 September 2012