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We, our attorney, and the attorneys representing Terminix and the real estate agents/brokers attended a mandatory settlement conference held before Sutter County's presiding Superior Court Judge, Timothy Evans. He contemptuously informed us no one ever wins punitive damages in Sutter County. Judge Evans threatened that if we insisted on continuing forth with the civil suit, we and our attorney were looking at fines of $25,000 each if we did not drop the suit; and we would be subject to wage garnishment. Judge Evans issued a Minute Order on March 30, 1993, which stated:
Ignoring the punitive damage claim, the actual damages that plaintiffs may have suffered in this case are not monumental. The involvement of approximately four law firms, and at least one out-of-state witness, suggests that preparation of the case for trial will result in a total expenditure in excess of the hard damages. This is a case which may well end up with only counsel coming out ahead economically, in view of Mr. Ferrauiolo’s insolvency. For these reasons, the Court believed, and continues to believe, that it will be in the best interests of the litigants to try and resolve this matter at an early point in the proceedings.
Perhaps $40,000 was not monumental to Judge Evans; but it certainly was to us! Laws were broken; but because the amount is not “monumental,” a superior court judge threatens the plaintiffs? Unbelievable! If consumers who are absolutely convinced they are victims of fraud cannot take their case into a court due to the legal costs, then where can they take it? What good are “legal” contracts if they cannot be legally upheld due to legal costs?
It is not the fault of consumers that the courts are so costly, so why are consumers the ones who are denied access to justice? The courts would be much less costly and, therefore, accessible if attorneys were not involved. Why not increase the limit for Small Claims Court (where attorneys are not allowed and litigants present their own evidence) to an amount that a judge would consider “monumental”?
What choice did we have except to proceed? Were we supposed to just walk away and do nothing? Due to the nondisclosed damages and misrepresented conditions, we owed our lender over $40,000 more for the house than it was worth; and it would cost us over $40,000 more to repair the damages to bring the property to the conditions represented and contractually guaranteed -- the conditions we had been deceived into believing we were purchasing! And the judge threatened us!!
Based on Judge Evans' perceived predisposition, our attorney filed a Preemptory Challenge for Judge Evans; and we requested a trial by jury. We received a letter from our attorney which stated:
Judge Evans declined to be challenged on the basis that he felt that it was untimely, and we should have done it when the general assignment was made to his department. However, I am somewhat happy with his attitude since he’s received it. It seems as if he has taken a fresh look at this case as opposed to trying to compel the Plaintiff’s to settle the case.
Our attorney informed us that Terminix stated they could not produce John Dionne (their inspector who issued the "clear" pest inspection report) for us to deposition him; because he no longer worked for Terminix, and they didn't know his address or telephone number. With two telephone calls, I was able to locate Mr. Dionne's address and telephone number. He was deposed by our attorney on April 23, 1993.
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