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ANTHONY J. ROBINSON

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In Memory of 09-11-01

Lest We Forget

Article for December:

         In this month's article  we are going to answer  a few of the questions that visitors have posted to our site. Since it is now December, we thought that if would be appropriate to do a review of things that are of general interest. Since these questions may pertain to different areas of practice, we thought we would put them together in one article.

Question No. 1: How many types of Courts to we have?:

        That question is fairly simple to answer and somewhat complex, due to the specialization of certain court. Until last year, at the state level, we basically had the Superior Courts and Municipal Courts. Late last year the Courts merged and now we  have the Superior Court. Under this broad category we can have limited or unlimited cases, depending upon how much money the parties have in controversy.

        Then we have specialized Courts such as Children's Court. We also have Juvenile Court, Family Law Court, Probate Court, Traffic Court, and Criminal Court. We also have a State Bar Court. This doesn't even begin to deal with the legislative bodies, that have court like functions such as Administrative Courts or Hearings. DMV Hearings, Stock Exchange Hearings, and so on.  We also have special Courts that only handle Drug or Domestic Violence cases.

        Next we have the  Appellate Courts of the State of California, and the Supreme Court of the State of California. Beyond that we also have Federal District Courts and  Bankruptcy Courts, which are basically trial Courts. The we move on the Federal Court of Appeals and the United States Supreme Court. I am sure that I probably overlooked many of the more arcane Courts, but I believe that the ones I have listed are the ones that you are more likely to deal with in everyday life.

Question No. 2: How do I deal with a dishonest 730 evaluator?:

        This is a real tough question, because if this is really your problem then you are in very serious trouble and you may not be able to correct it at all. In all the years that I have practiced law I have only seen this problem twice. Once was fairly easy to repair because it was fairly blatant and I had some unbelievable luck. The second case I am working on right now and it is a lot worse that the first case.

        The best way to handle a bad 730 Evaluator is to prevent the problem in the first place. I would suggest that you review our article in the Family Law Section about "730 Evaluations,"  You will find it very helpful in teaching you how to avoid the most common mistakes that people make in 730 evaluations. Many of the problems  associated with so called "prejudiced" evaluators are really the fault of the client.  Clients need to understand the absolute necessity for "complete and thorough" preparation before you start the evaluation process.

        You really only get one shot at this, so you had better get it right.  I have seen too many people think that they could wing it and B.S. the evaluator, fail miserably and then blame everyone but themselves for the outcome. You should remember that  once the evaluation process is completed and you lose, no one is going to give your grumblings much weight. They are going to say that you have a bad case of "Sour Grapes."

        The Court is going to rely very heavily on the evaluator's report. Probably 95% of the weigh is going to be on the report alone. The Court relies on these professionals because most are cleared by the Court before they are even placed on the approved list. Therefore, you are facing a formidable challenge to get a judge to disqualify an evaluator. The second reason why the judge is going to protect the report is the cost factor. If this is a full 730 evaluation, it may have cost the parties as much as $10,000.00 to complete. That is a hell of a lot of money and most people cannot keep shelling out that much money at will.  The last reason, is that the Court's hate to put children through the evaluation process over and over. You can't blame them for believing that either.

        I think that the biggest problem I have seen presented really  is the overused evaluator.  The Court and attorney keep using the same evaluator over and over until they begin to think that they are infallible. Attorneys talk about an evaluator being pro mom or pro dad, when they should really be looking for one that is simply neutral.

        This is a very big problem in certain branch courts and not so in others. There doesn't seem to be a problem in the Central District at all. The reason for this is that Central District has a larger pool to draw from that the branch courts do. These evaluators also charge more money and generally handle cases for people with larger incomes. For this reason they have more people on the approved panel. The bigger the pool to pick from the better chance you have of picking someone who is not prejudiced.  I should mention that the Courts are trying to use only one list of evaluators for the whole county to address this problem altogether.

        I have seen too many people blunder into an evaluation.  If you know or suspect  that you are probably going to need an evaluation. Spend some time researching and picking  several names that you are comfortable well before the Court date. That way you have more control over the process. If you and your attorney has done their homework, you will also know which ones to avoid. The more proactive you are, the better results you can expect.

        When I have reason to believe that the evaluator has done something that I am not comfortable with, I will usually write a letter, copy to the opposing counsel, to outline the problem and allow the evaluator an opportunity to respond. If I don't like the response or I get a lot of flak from the other attorney, I will arrange for a meeting with the attorneys and the judge to address the problem, "before"    the report is written. Sometime you don't discover the problem until the report has been written and delivered. Then you really have a huge problem.

        If you have this type of a situation, you or your attorney should bring it to the Judges attention as soon as you become aware of the situation. Preferably before the report is written. That way no one can claim that you just didn't like the outcome of the report. Unfortunately, many of the complaints that I have heard are really sour grapes and nothing else. If there was any suspicious behavior, it is not well documented before the report is distributed to be believable.

        Another place to go for relief is the licensing authority for the type of evaluator that you used or their peer review committees. These folks have quite a lot of power and are a force to be reckoned with and the evaluators know it. It may not repair your case, but it may prevent abuse in the future.

        The last hope is to have your lawyer vigorously cross-examine the evaluator, with an eye to discrediting the report. I wish I could tell you that this technique was a sure fire winner but it isn't. The best I have ever seen come from this technique is that you can sometimes get the recommendations modified.  Best advice  is still do it right from the beginning.

Question No. 3: How do I Get a Restraining Order Released:

        Depending on who is asking that question, I would answer the question differently. For the perpetrator against whom the Court issued the Order, if you did what the victim alleges you did, then you deserve the Order and shame on you. If you didn't do what the victim alleges, then I  would suggest that you comply exactly with the Order until it is lifted by the issuing Court, contact a qualified family law attorney and see if you can demonstrate your innocence.

        If you are the victim and you allow the perpetrator to talk you into removing the order, all I can say to you is that you are a damn fool.  Never misuse the Court's power to restrain conduct. The purpose of such orders is to maintain order and keep the peace.  In my opinion, if you follow the following criteria, you will not get yourself into trouble:

• You should never try and get one if you are unwilling to enforce it against the person that is restrained.

• Second never get one with the hope that the restrained person will magically change and become the nice person that you want.

• Finally, never use this as a way to enforce a personal vendetta against someone.

         If you want to learn more, I would strongly suggest that you read my article on "Restraining Orders"  it will help you understand the basics facts about these orders. It also deals with how you go about getting them removed.

Question No. 4: How do I Go About Evicting a Squatter or Unwanted House Guest?

        The answer is very simple. You go about it the same way that you would any other tenant. Given them proper notice and if they don't leave, you file an Unlawful Detainer case and have them removed. Now that wasn't very hard was it?

Question No. 4: How Much Notice Must I Give  the Landlord Prior to Vacating my Unit?

        We have received numerous  inquiries regarding how much notice you must give the landlord before you can legally terminate your tenancy.  The questions deal with various fact patterns, but the question is always the same. How much notice must I give the landlord?

        There are several  answers to this question depending upon the type of tenancy that you have. For example: Let's say that you signed a written lease for a specific period of time.   Let's use one-year as an example. If your lease is for one year, it automatically terminates and you must be out no later than the last day of the one-year lease period. Unless you and the landlord agree to extend the lease or it is automatically extended by the lease itself. You must refer to the lease document itself to see exactly how much notice the lease calls for. Usually, the lease will require either party to give notice to vacate or of their intention to vacate within thirty days of the expiration of the lease.

        Lease agreements subject to HUD Section 8 rules or Rent Control are vastly different. You must review your particular agreement.

        Month to month tenancies,  more correctly known as periodic tenancies may be terminated by giving notice equal to the time period of the tenancy. For example, if the tenancy is month to month, then one month's notice would be appropriate. If you are week to week, different rules would apply. As are the rules governing low cost housing that bases their occupancy on a daily, weekly or similar time period usually less than 28 days.

        The reality is that each such tenancy is different and you could have a great variation in notice requirements. I would suggest that you review your situation before you take any action. Remember, if you incorrectly give notice it will be ineffective and you will have to give proper notice. This will usually result in a delay in vacating the premises. You could end up being responsible for the payment of rent beyond what you think you are required to. Be sure and check it out well in advance to moving and do it in writing. Be sure and keep a copy for yourself.

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