Legal Question in Constitutional Law in California

I am an attorney. I obtained this client via 1-800-LAW2 where I advertise. Client subsequently substituted me for a new attorney. New attorney settled the case. Farmers insurance did not include my name in the settlement draft, in spite of my notice of the lien. I took the new attorney and Farmers Insurance into Small Claims. New attorney prevailed, as my name was not in the settlement draft. Farmers lost as they clearly broke the law under Sicilliano v. Fireman's fund by not including my name in the settlement draft. Farmers appealed and won on the appeal!!! They defense was that I did not do much on the case!!! The judge took they side!!! It is not Farmers place to decide which attorney deserves to be included in the settlement draft. They are obligated by law to promptly include all previous attorneys in the draft. As Small Claims is not Res Judicata, i intend to take Farmers to Court of unlimited jurisdiction for discriminating against me as a woman, sole practitioner, speaking with the russian accent. I need help. Farmers is a big corporation and I am a small sole practitioner. I am very hurt. I sustained a big damage.


Asked on 11/14/12, 1:56 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Small claims judgments actually are res judicata. See Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381. So you're almost certainly stuck with the judgment.

A plaintiff who opts to file in small claims court is choosing that forum instead of a regular superior court case, not in addition to it. You got what you bargained for. Part of the bargain is that you don't have the right to appeal if you lose. Another part is that you don't get to re-assert the same claim in a new Superior Court case.

Nothing you have written suggests that Farmers discriminated against you due to your gender, employment status or accent. Perhaps you have such evidence and just haven't told us about it. If you're really a lawyer, you surely understand that being treated wrongly and being a woman does not prove you were treated wrongly *because* you are a woman. Even if you could take Farmers to court again, you would have the burden of proof on this point. (Presumably you made these arguments the last time around and failed.)

A small claims plaintiff who loses in a trial de novo can petition the Court of Appeal for a writ of certiorari. But such petitions rarely succeed. You would have to show that your case presents �significant issues of small claims law or procedure.� Merely saying you should have won will not be enough.

If you are interested in bringing a writ petition, please feel free to contact me. I am a certified appellate specialist (per the State Bar of California's Board of Legal Specialization) with many years of relevant experience.

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Answered on 11/14/12, 2:18 pm


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