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Stop and Think … Before Suing!

by Phyllis Pollack
October 2015

From Phyllis Pollack's Blog

Phyllis  Pollack


Californians have a reputation for being litigious; for making mountains out of mole hills. Judge Kozinski of the Ninth Circuit Court of Appeals minces no words on this point. A very small “tiff” got very much out of hand apparently because neither party had the courage (or common sense?) to admit the error and/or apologize.

In Demuth v County of Los Angeles, a public entity, Los Angeles County Sheriff’s Department, a public entity, Wai Chiu R. Li, an individual, Case No. 12-57197 (August 14, 2015), defendant deputy sheriff Li (“Deputy Li”) arrested a public defender counsel, plaintiff Florentina Demuth, allegedly pursuant to a judicial command that she appear in court.  (Demuth v LA County  )

In February 2010, Ms. Demuth was a public defender at the Los Angeles Los Padrinos Juvenile Courthouse. On February 11, 2010, one of her cases was called for hearing by the court, but she was not present in the courtroom. She was talking with her supervisor, Ms. De La Guerra Jones in her office. Heidi Shirley, the referee presiding in the courtroom, asked Deputy Li to page Ms. Demuth which he did several times. There was no response. He then telephoned her, and again there was no response. (Slip opinion at 3-4 and Joint Statement of Case in U.S District Court- Docket No. 50- (October 27, 2011) Case No. 2:10-cv-06783-MWF-CW.)

Evidently, it was not unusual for the public defender to be absent from the courtroom; the court frequently had to page/telephone counsel to come into courtroom for a specific case. (Id.)

In this instance, Referee Shirley was anxious to get the hearing started; she did not want to wait or continue it. So, she told Deputy Li, “Alright, I order Ms. Demuth to come to this courtroom. If she refuses, then Ms. De La Guerra Jones [her supervisor] will have to come in and explain to me why this is happening.”(Slip Opinion at 4.)

So, Deputy Li, after locating Ms. Demuth in her office talking with her supervisor, Ms. De La Guerra Jones, told Ms. Demuth several times that the referee wanted her in court immediately. She responded by asking him “to wait a minute” or words to that effect. After several rounds of this, Deputy Li raised his voice and demanded that she come immediately. She responded by stating, “[i]f you want me to come right now, you’ll have to arrest me.” Li did just that; he put her into handcuffs and escorted her to Referee Shirley’s courtroom. Once there, he removed the handcuffs. This “arrest” lasted about 11 minutes. (Id.)

Evidently, Ms. Demuth’s adversarial instincts kicked in because on July 22, 2010 she sued Li and the County of Los Angeles under 42 U. S. C. section 1983- civil action for deprivation of rights- along with various state law theories in Los Angeles County Superior Court. Ms. Demuth claimed physical injury to her wrists and shoulders as well as humiliation and severe emotional trauma. (Joint Statement, supra at 2.) The Defendants removed the matter to U. S. District Court. A bench trial occurred in May 2012; the defendants prevailed on the theory that while the arrest violated Ms. Demuth’s Fourth Amendment rights, the defendant deputy sheriff was protected by qualified immunity. Judgment was entered in favor of Defendants.  (Id. and U. S. District court docket sheet)

In December 2012, Ms. Demuth appealed to the Ninth Circuit. The appellate court affirmed in part, and reversed in part. But, in doing so, Judge Kozinski provided both parties with the much needed reality check:

Li could not reasonably have believed that he had one of
the usual Fourth Amendment justifications for the arrest: He
had no warrant; Demuth was not suspected of a crime; he was
not in hot pursuit or performing a community care-taking
function, etc. Referee Shirley’s order, by its clear terms, did
not authorize Li to seize Demuth. As Li testified at trial,
Referee Shirley’s command was “go . . . get Ms. Demuth;
and, if she refused to come to court, then . . . get Ms. De La
Guerra Jones.” The referee contemplated the possibility that
Demuth might not come when summoned, and gave clear
instructions as to what Li was to do in that case: bring her
supervisor, presumably to explain why her subordinate was
not coming to court when summoned. No reasonable officer
could have understood the referee as ordering that Demuth be
forcibly brought into court. An unreasonable mistake of fact
does not provide the basis for qualified immunity….. (Slip Opinion, supra, at 6.)

No one in this case has covered himself with glory: not
the lawyer whose lackadaisical response to a judicial
summons and disrespectful retort to a fellow court officer set
off this unfortunate chain of events; not the supervisor who
did not urge the lawyer to comply promptly with the deputy’s
repeated requests that she come to court or admonish her for
her tart response to the deputy; not the deputy who took the
bait and abused his power; not the judges of the Los Padrinos
Juvenile Court, who, doubtless aware of the incident, failed
to mediate a minor dispute among court officers and allowed
it to metastasize into a federal case. What seems to be at
stake here is little more than wounded pride, as any damages
suffered by the plaintiff seem hardly more than nominal. The
dispute should have been resolved by an admission that the
deputy violated Demuth’s constitutional rights, followed by
mutual apologies and a handshake, saving the taxpayers of
Los Angeles County the considerable costs of litigating this
tiff. (Id. at 7.)

The sad fact is that the U. S. District Court Judge did order these parties to mediate, and they mediated without reaching a resolution. A few months later, they attended a settlement conference before a magistrate judge who made a mediator’s proposal that was rejected. Did their respective stubborn natures and/or tunnel vision get in the way of their common sense? Did they lose all objectivity and the ability to look at this matter as an outsider- looking in “from the balcony”? Did their pride overtake their ability to put this into the proper perspective?

Five years of litigation and how many hundreds of thousands of dollars (and hundreds if not thousands hours of time) were spent on this?

Where is the common sense? And where is the really good reality check when you need it?

… Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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