Another piece of the puzzle on former Humboldt Superior Court CEO's sudden resignation and the resolution of a lawsuit in which she was the defendant

Last week, local attorney Dustin Owens finally got the default judgement for his client A. Zieske. A lawsuit that he filed against Humboldt Superior Court, had a hearing on August 24 in front of Visiting Judge Arvid Johnson.  Caityn Ross, not a local attorney appeared on behalf of Humboldt Superior Court and Kerri Keenan who were named as defendants.

Why is this news? Arguments in documents filed by Mr. Owens were not heard in detail by Judge Johnson.  They highlights issues brought up about the former Humboldt County Superior Court CEO Kerri Keenan and Humboldt Superior Court that have been mentioned to me by other people. In a small town, where attorneys and others have to still work in the system, getting someone to go on record is difficult.

Here are links to other posts I did on the Humboldt Superior Court, the Judicial Council's response on Keenan's resignation and whether she is being investigated:

http://johnchiv.blogspot.com/2015/09/facts-on-court-backlogs-authorization.html
http://johnchiv.blogspot.com/2015/09/and-this-is-why-i-did-not-jump-to.html
http://johnchiv.blogspot.com/2015/08/what-is-real-story-behind-humboldt.html
http://johnchiv.blogspot.com/2015/08/judicial-council-of-california-issues.html


Civil law is very complicated, Humboldt Superior Court does not have any procedures listed. Ms. Zieske had an attorney that went to great lengths for her. Not everyone can afford an attorney.

At the August 24 hearing Judge Johnson asked Mr. Owens to state how he was hurt, Mr. Owens summarized what he had to go through on behalf of his client and that what he stated below detail cost her money.

"They are not opposing the complaint," said Mr. Owens. Ms. Ross passed off everything "as an inadvertent mistake." She said that Humboldt Superior Court does not want a default judgement but the Court to order who the appropriate person is." He reserved on attorney fees.

I went and got a paper copy of Mr.Owens' DECLARATION  IN OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE DEFAULT JUDGMENT AND ENTRY OF DEFAULT AND FOR LEAVE TO RESPOND as well as OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE DEFAULT JUDGMENT AND ENTRY OF DEFAULT AND FOR LEAVE TO RESPOND; MEMORANDUM OF POINTS AND AUTHORITIES;

In his declaration, Mr. Owens, on behalf of his client stated:

1.      Anita Ziekse filed a complaint against the Court, and the Court’s CEO under Government Code § 68084.1 on April 9, 2015.  The complaint requests that release of funds that were previously deposited with the Superior Court in a trust proceeding.  The Court Executive Officer denied a claim for the return of those funds.  It appears, from her communications that this was because the Court Executive Officer was not comfortable making a legal determination about Anita’s entitlement to them.  Rather, she desired adjudication by a judge.   Government Code § 68084.1, provides that where such a claim is rejected, the party that submitted the claim may filed a verified complaint seeking to recover the money.  The complaint in this matter was verified.

2.      When the complaint was filed, a summons and notice of inclusion in delay reduction program were also issued.  The summons was a standard civil summons form, created by the Judicial Council that states, in relevant part, as follows:

1.      The summons was a standard civil summons form, created by the Judicial Council that states, in relevant part, as follows:

“NOTICE! You have been sued.  The court may decide against you without your being heard unless you respond within 30 days.  Read the information below. 

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.”

2.      I, personally, served the summons, complaint, and notice of inclusion upon the defendants, and each of them, by hand delivery to their offices on the second floor of the courthouse on April 9, 2015. 

3.      The deadline for the defendants’ answer was therefore May 11, 2015.  However, no answer was timely filed. 

4.      After checking Sustain (the Court’s case management software) and asking the clerk to determine in an answer had been filed, I submitted a request for entry of default on May 12, 2015.  A received-stamped copy of the request is attached hereto as Exhibit A and incorporated herein by reference.  There was no apparent factual dispute, and it didn’t appear that the requested relief was actually opposed in any way so I had no reason to believe that the defendants intended to file an answer.

5.      I anticipated that the default would take one to three business days to process, as is usual.  With a good portion of my practice being consumer collections, I have taken very many defaults in the Humboldt Superior Court in other cases. A wait of between one and three business days, at maximum, is typical. 

6.      I checked on the status of the default at least two to three times a week after it was submitted.  Nearly every time I was at Court, I either checked the docket via the Court’s electronic docketing system “Sustain” or checked directly with the clerk.  Sometimes I checked both.  Other times I called and checked.  However, the default did not enter as anticipated. 

7.      When I checked Sustain, I noticed that the file was in Court Operations. As I continued to check it after applying for the default, it still appeared to be in Court Operations.  There was no docket entry for the request for entry of default and there was no indication that it was being processed. 

8.      On May 27, 2015, I again went in personally to ask the clerk about the status of the default.  I couldn’t see any reason why it would take over two weeks to process.  The clerk indicated that they had been requesting the file from Court Operations by e-mail and phone message, but never received any response.  If I recall correctly, the clerk indicated that she e-mailed Lisa Chapman who Sustain showed had the file.  I was told that the file was being kept up there, and that the clerk’s office could not access the file to enter a default.  During that same conversation, the clerk indicated to me that they would immediately send another e-mail top the Court Operations to request the file and would let me know.  When I followed up the next day, there was still no response.  I started to find all of this information very disconcerting.

9.      On June 1, 2015 at 10:55 a.m., I e-mailed the Court CEO to check on the status of the file at 10:55 a.m. On the same date at 12:46 p.m. Stephanie Cameron, the CEO’s assistant at the time returned my e-mail and indicated that she would look into it and respond the same day.  Later that day, I went to Court to check Sustain and noticed that the file was now located in the office of Andrew Lund.  At 5:44 p.m., Ms. Cameron e-mailed me indicating that she was still looking into it.  Two days later, on June 3, 2015, she indicated that they are conducting research to ensure they are processing the case correctly and would respond by the end of the day on June 4. Attached hereto as Exhibit B and incorporated herein by reference is a true and correct copy of this e-mail exchange.

10.  By June 9, 2015, there was still no response, so I sent another follow up e-mail on June 9, 2015 at 11:42 a.m. At 11:52 a.m., I received a response from the Court CEO indicating that the Judicial Council had retained hired outside counsel and they would prepare an answer.  I requested counsel’s information so that I could contact them directly, but it was not forthcoming.  A true and correct copy of this e-mail exchange is attached hereto as Exhibit C and incorporated herein by reference. 

11.  I would note that I routinely and liberally agree to extensions to answer if I am asked.  However, I was never asked in this case. 

12.  On the same date, I received word from a clerk who would not provide me with their name, that the Court’s administrative offices, having received notice that I requested a Default, “made my default disappear.”  I was told that they took the file upstairs and locked it in a cabinet so that no one could access it.  I thereafter personally reviewed the Court’s electronic filing system, Sustain, and there was no evidence of the request for default in the docket.  Sustain still showed that it was in the office of Drew Lund, which seemed to confirm this.

13.  Being tired of the inappropriate delays, and the fact that the file appeared to have been held hostage by the defendants, I decided that an ex parte application for entry of default and a default judgment was necessary.  I spent quite a bit of time trying to get outside counsel’s information and to inform them that I was filing an ex parte application for entry of default and a default judgment.  I prepared the ex parte application and submitted it on June 10, 2015.  A true and correct copy of my ex parte application, which detailed my efforts, is attached hereto as Exhibit D and incorporated herein by reference.

14.  I noticed a Court hearing for June 11, 2015 at 8:30 a.m. in Department 8 pursuant to Local Rule 2.8 and the Ex Parte Hearing Schedule issued by the Court.  Attached hereto as Exhibit E, collectively, are true and correct copies of these rules.  I specifically discussed the necessity of getting the file upstairs, so that I could have a hearing in front of a judge the following morning with the Clerks.  After some conversation, they agreed to do what they could. 

15.  On June 10, 2015, I was first contacted by attorney Caitlin Ross who indicated that she would be representing Ms. Keenan and the Court with regard to the matter.  She asked if I would be willing to drop the ex parte application because they intended to file an answer.  I indicated that, given the circumstances, I could not.  She indicated that she just learned about the case.  She told me that she would not attend the hearing on the ex parte application.  I offered to inform the Court that she opposed the application, and explained that if she faxed me a letter opposing the application I would provide it to the Court.  However, I never received such a letter. 

16.  On Jun 11, 2015 at 8:30 a.m. I went to Court for the hearing.  I did not see this matter on the calendar for Department 8, so I checked the Court's public access computers.  Neither the ex parte application nor default request showed up in the Court's docketing system.  At about 8:32 a.m. after waiting outside of Courtroom 8, I knocked on courtroom 8's door.  A bailiff answered the door and I explained that I had an ex parte hearing scheduled to take place at 8:30 a.m. I handed the bailiff a single copy of the ex parte application and he went back to figure out what was going on.  Shortly thereafter, Lisa Chapman, the Courtroom Services Manager came out.  She informed me that they had no idea that the ex parte application was filed until then.  I found this odd because, when she returned my copy, she had the other copy that I filed the day before in her hand.  She explained that the application wasn't on the docket in Sustain nor in the Court’s calendar.  She said that the file was with Drew Lund and went to go speak with him.  She then came back, explained that she was going to speak with one of the clerk supervisors and Drew Lund and asked me to wait downstairs in the jury services room where they would follow up with me.  I did so. 

17.  Eventually, the clerk supervisor came down and indicated to me that Lisa sent her down to tell me that my default I requested on 5/12/2015 would be entered that day.  I explained that I wanted to have the file before a judge, and that I was entitled to have a judge review the ex parte application.  She said that there was no judge available to hear it and that there was some confusion because of all of the local judges were going to disqualify themselves.  I got the impression that she was instructed to say that from her tone.  I then explained that I happened to know there was a visiting judge in Department 5, and asked if I could be heard in Department 5.  I was again denied.  However, I was assured that the default would be entered that day.  I asked about whether the default judgment would also be entered, and the clerk supervisor didn’t know whether or not that would enter.   Little did I know that another 25 day wait would ensue.

18.  After this meeting, I called Lisa Chapman and left a voice message (there was no answer) explaining that I wasn't satisfied with the response, knew there was a visiting judge here, and wanted to get the matter heard by the visiting judge today.  To date, I have still not been able to get my ex parte application in front of a judge.  

19.  In all my experience as an attorney, I have never previously been prevented from having a hearing in front of a judge.

20.  I submitted a proposed order on my ex parte application with the application.  However, I have never received that back.  When I checked a couple days ago, it was not listed anywhere in the docket.  I have still never received a ruling on my ex parte application.  I wonder if the order I submitted is even made it into the file.  I am particularly concerned because even my ex parte application, filed on June 10, 2015, did not show up in Sustain until July 6, 2015.  When it did show up, it was back-dated to June 10, 2015 in the docket.  Attached hereto as Exhibit F and incorporated herein by reference are true and correct copies of pictures I took from the Court’s public access computers proving that my ex parte application and the proof of service therefore were not put in the docket until July 6, 2015. 

21.  On June 11, 2015, I again spoke to attorney Caitlin Ross regarding this matter.  She indicated that she wasn’t asking for me to withdraw or rescind my current request for a default judgment to be entered, but she wanted a week to review the file and try to propose a resolution.  I explained again that we were considering filing a request for attorney fees for violations of the Court rules and that my client shouldn’t have had to file an ex parte application to actually get a default entered in the first place.  Ultimately, I agreed to hold off on any new filings for a week because I believed that a resolution short of additional litigation would be best for all involved.  A week went by with no answer.  I tried to follow up, but didn’t hear back until June 24, 2015.  On June 24, 2015, Ms. Ross finally got back to me.  She indicated that the answer they attempted to file was rejected.  I informed her about the scheduled Case Management date and time.  She indicated that she would be talking with her client about a resolution that afternoon and would get back to me.  On July 2, 2015, I hadn’t heard back so I attempted to contact her again. 

22.  I persistently checked on the status of the judgment after the default was entered.  At some point, I was informed that the file had to make the rounds for the local judges to disqualify themselves which is, of course, appropriate.[1]  However, I was also aware that there were visiting judges here for most of this time-period.  The Court judgment that I submitted on June 10, 2015 was ultimately not signed by a judge until July 6, 2015, and only after I repeatedly called the Court to check on the status of the judgment. 

23.  On July 2^nd, 2015, for example, I called in to check the status of the Judgment.  The clerk I spoke to on the phone wouldn’t give me her name—she stated she feared retaliation.  She went on to tell me that the ex parte application didn’t even show up in their docket, nor did the default judgment.  She put me on hold to inquire for me.  When she came back on the phone, she told me that she would have to get ahold of the clerk manager because the clerks themselves weren’t allowed to see the file or know what’s going on with it. 

24.  After hearing this, I sent an e-mail demand to Caitlin Ross for the immediate return of all funds that I requested in my ex parte application for judgment no later than the close of business the following Monday.  I was concerned because she wasn’t responding as she said she would and I believed that my client’s due process rights had already been violated.  Attached hereto as Exhibit H and incorporated herein by reference is a true and correct copy of my demand e-mail. 

25.  Following my e-mail, I received a call from Ms. Caitlin Ross.  She indicated that Ms. Keenan was out of the office for the July 4^th weekend, that they had a phone call scheduled for Monday, and asked that I don’t file a collateral federal action so they could have time to discuss the case.  She also indicated that the defendants did NOT oppose my client’s claim, but that they just wanted a judge to sign off on the claim.
 

26.  Later that same date, I spoke to the Clerk Supervisor who told me that there was a visiting judge there and that she had the file sent to him to consider the judgment.  She also told me that the clerks were allowed to access the file and that statements to the contrary were false.

27.  On the afternoon of July 6, 2015, I finally received the judgment, which was signed by a visiting judge.  The following day, I sent an e-mail to Ms. Ross indicating that I had received the judgment and inquiring as to when I might be receiving a check. 

28.  On July 7, 2015, I received a call from Paul Landrum.  He is a family law mediator with the Humboldt Superior Court.  He indicated during a brief phone call to me that he had heard about what went on with this file.  He told me that he heard from other Court employees that the file was hidden in Lisa Chapman’s office and then, at some point was moved to Drew Lund’s office.  He also told me that heard that documents had been removed from the file.

29.  On July 9, 2015, I received a call from Ms. Ross.   She indicated during that call that the defendants intended to attempt to set-aside the default.  Ms. Keenan, she said, did not want the judgment to be one by “default.”  She also indicated that they didn’t actually oppose the relief that we requested in the complaint, but that they just wanted a judge to hear the matter and make a determination.  She stated that she would like to have a hearing scheduled and that they would attend to observe, but would not actually present any opposition. 

30.  During this July 9, 2015 call, I explained to Ms. Ross that that a judge had already reviewed the default application and signed the default judgment.  I explained that, initially, all they said they wanted was a judge’s signature.  I implored her to consider less costly and less time-consuming alternatives.  I asked whether they would be willing to pay my client’s attorney fees if we agreed to set aside the default.  I also asked whether they would, instead, just consider a stipulation to amend the judgment to remove the word “default.”  I explained that it made absolutely no sense to me that they would want to set aside the default and have a hearing even though they were not going to present any opposition! I explained that trying to set aside the default in this situation wouldn’t do anything more than waste our time, cost our clients money, cause delays, and waste the Court’s time.  She indicated that she would talk to her client and get back to me. 

31.  On July 13, 2015, I received a follow up call from Ms. Ross.  She indicated that they were nonetheless going to attempt to set aside the default and that they were filing the motion that day.  We also discussed scheduling, but that is not important to this opposition.  I again implored her not to bring a motion that would only waste time, my client’s money, and the Courts’ resources.

32.  Since then, several things have happened.  Ms. Keenan has either resigned or retired.  I have had the judicial counsel call me and indicate that they were investigating whether Kerri Keenan had mishandled case files, including this case.  I have had several other court employees, who wouldn’t reveal their names, call my office to tell me that the file was mishandled. 

33.  Commencing with the preparation of the default in this matter on May 12, 2015 and running through the entry of the default judgment on July 6, 2015, I worked more than 11.4 hours on this matter.[2]  At my hourly rate of $250.00, Plaintiff incurred $2,850.00 in attorney fees to obtain the default and default judgment.  Attached hereto as Exhibit I and incorporated herein by reference, is an itemized statement of my time spent.  Plaintiff also incurred $90.00 in filing fees for the ex parte application that was necessary to obtain the default and default judgment.  The total cost in obtaining the default was therefore $2,940.00. 

34.  Between July 6, 2015 and the date of this declaration, I have spent at least 12.60 hours working on this matter, primarily in connection with opposing the pending default set aside.  At my hourly rate of $250.00, my fees have been $3,150.00 in connection with this motion.  An itemized statement of my time is attached hereto as Exhibit J and incorporated herein by reference.  I anticipate another 1 to 2 hours will be spent in connection with this motion and the hearing thereon at an additional cost of up to $500.00.  The total of these sums is $3,650.00.

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[1] Another discrepancy in the docket appeared during this time-frame.  Judge John T. Feeney’s minute order disqualifying himself was signed on June 24, 2015, but was entered into the docket on June 23, 2015.  Attached hereto as Exhibit G are a copy of the audited docket entry and minute order for the Court’s reference.

[2] NOTE:  There were a number of short telephone calls and inquiries made by counsel during this time-frame as well that were not billed. Counsel does not typically bill for calls under 3 minutes in duration, or for checking a docket briefly while at Court on another matter.

In the opposition:

Plaintiff, Anita L. Zieske, through her attorney hereby opposes the Defendants’ Notice of Motion and Motion to Set Aside Default Judgment and Entry of Default, And For Leave to Respond to Complaint filed herein on July 13, 2015 on the grounds set forth in the Memorandum of Points and Authorities set forth below, and the Declaration of Dustin E. Owens, set forth below.  Plaintiff requests that the Defendants’ motion be denied and that Defendants be ordered to pay plaintiff’s attorney fees and costs in the amount of $6,590.00 in accordance with CCP § 473 and/or CCP § 128.5.  In the event that the motion is granted, which it should not be, Plaintiff requests that defendants also be ordered to pay a penalty of $1,000.00 pursuant to CCP § 473(c).