Instead of answering, Schulman gave the Appendix p. 276
contemptuous reply, “The footnote says what the [p. 25, lines 5-6]
Schulman was asked, “Did you protest during Appendix p. 298
the administrative hearing that filing a lawsuit … is a [p. 112, ln 19-22]
constitutionally-protected right and does not make a
person unfit for service?”
Schulman did not answer the question.
But Schulman did have a moment of candor Appendix p. 299
when asked, “…can a person be found unfit for service [p. 115 lines 9-10]
because they file a lawsuit?”
Schulman said, “It likely is a very good basis Appendix p. 299
for the finding.” [p. 117, ln 13-14]
On the contrary, it is an illegal basis for the
finding. Firing an employee for filing a lawsuit is not
only a violation of the constitution, it is a violation
of California Labor Code section 1102.5. Whether
Schulman’s problem is incompetence or intentional
wrong-doing, Schulman should not be allowed to
practice law in California.
Schulman would like to pretend that her
problem is incompetence, but her ignorance turns out
to be intentional, as she herself testified in the following
Schulman was asked: “Do most administrative Appendix p. 279
decisions give specific dates and names and [p. 35,lines 20-21]
descriptions of events?”
Schulman claimed ignorance: “I can’t Appendix p. 279
answer that question. I don’t know what most [p. 35 lines 24-25
This claim by Schulman startled Plaintiff, Appendix p. 279
who asked: “…after you have read an p. 37 lines 2-5
administrative decision, are you able to remember
whether or not the decision cited specific dates,
names and descriptions of events?”
Schulman stated: “I am not really sure I can Appendix p. 279
answer that question. I really don’t understand it.” p. 37 lines 13-14
Plaintiff asked the question a different way:
“…after you’ve finished working on something Appendix p. 279
you generally forget about it?” p. 37 line 25 to p. 38 line 1
Schulman gave the shocking answer: Appendix p. 280
“I do my best to do that.” p. 38, line 2
Plaintiff wanted to make sure she was Appendix p. 280
hearing correctly. She asked: “You do your best p. 38, line 5
to forget about it?”
Schulman: “Yes.” Appendix p. 280
[p. 38, line 6]
Despite the enormous and intentional ignorance regarding employment law which
Schulman claims to have, she nevertheless stated during her deposition that
employment law is “…the major emphasis of (her) practice (Appendix p. 278,
[Deposition p. 30, lines 7-12]).”
SCHULMAN’S MARCH 27, 2003 LETTER TO PLAINTIFF
The most powerful evidence which was created after Plaintiff’s administrative
hearing regarding the fact that Schulman intentionally sabotaged Plaintiff’s case is
the letter Schulman sent to Plaintiff on March 27, 2003 (Appendix p. 10), which
caused Plaintiff to believe she had 90 days to file her Petition for Writ of Mandate
to set aside her administrative decision.
In her deposition Schulman was asked: Appendix p. 280
“Was it your purpose when you wrote this letter [p. 40 lines 5-7]
to let me know…how much time I had in which
to file my petition?”
“No, I had already done that.” [p. 40 line 8]
What possible motivation, then, could Schulman
possibly have had for including the information that
“California Code of Civil Procedure Section
1094.6 (b) requires a petition to be filed no
later than the 90th day following the date on
which the decision became final” in this letter?
Plaintiff asked: “Why did you mention Appendix p. 280
that the Code of Civil Procedure Section [p. 40 lines 9-11]
1094.6(b) allows 90 days before filing a petition?”
Schulman stated: “I was doing nothing more Appendix p. 280
than if I had had a colleague call me on the phone [p. 40, lines 22-25]
and say, “Hey I have got this issue. What should I
do about it?”
Clearly, Schulman contradicted herself.
She admitted she was trying to tell Plaintiff what to do.
Plaintiff asked: “In hindsight, do you regret that Appendix p. 280
you wrote this sentence, “CCP Section 1094.6(b) [p. 41, lines 1-4]
requires a petition to be filed no later than the
90th day following the date on which the decision
becomes final,” et cetera?
Schulman: “No…I wasn’t telling you what Appendix p. 280
to do. I had already told you what to do in a letter p. 41, lines12-13
that I had sent you in February.”
“Let’s look at the next sentence, Appendix p. 281
Sentence 5 in that Paragraph 2 of Exhibit 4 Page 42 lines 23-24
(the March 27, 2003 letter written and sent to Larkins
by Schulman), ‘In an abundance of caution, I may
have previously told you 60 days.’ By writing that
were you intending for me to understand that the
60-day period was not correct?”
Schulman answered: “No.” Appendix p. 281
[p. 43 ln 4]
Question: “If 60 days were the Appendix p. 281
actual final time limit, why would you p. 43 lines 6-7
refer to it as “an abundance of caution?”
In response, Schulman produced eleven Appendix p. 281
lines of evasive and meaningless words. p. 43, lines 8-18
Schulman’s March 27, 2003 letter is evidence that Schulman was committing
perjury at this point of the deposition. The obvious reason she wrote the letter was
to stop Plaintiff from filing her petition on time.
FURTHER PERJURY BY ELIZABETH SCHULMAN REGARDING LETTERS
FROM PAMELA HAVIRD TO RICHARD WERLIN
Exhibit 14 of Schulman’s deposition was a letter from Larkins’ prior attorney
Pamela Havird to Richard Werlin, Assistant Superintendent of Chula Vista
Elementary School District, and had been provided to Mrs. Schulman by Maura
Larkins long before the administrative hearing, but was taken into evidence during
the hearing only after Larkins herself brought multiple copies to the hearing, and
begged and pleaded and insisted that Schulman present it as evidence.
There were many, many other documents which Larkins also begged, pleaded and
insisted that Schulman place into evidence, such as exhibit 17 (“Is Kingdoms a
Good Program?”) of the deposition, which Schulman NEVER offered as evidence.
Plaintiff asked Schulman about the
relationship between this letter and Factual
Finding 50 of the decision of the Commission
of Professional Competence (Appendix p. 220):
“Mrs. Schulman, do you find this factual finding Appendix p. 285
to contradict, to be contradicted by exhibit— [p. 61, line 11-13]
our exhibit 14?’
Schulman did not say a single word in
Plaintiff asked the question another way: Appendix p. 286
“When you read this decision, Mrs. Schulman, [p. 62, lines 5-6]
were you shocked and appalled by Factual
Finding No. 50?”
After some delay, Schulman finally Appendix p. 286
answered, “No.” [p. 63, line 1]
It did not appear to bother Schulman one
bit that the decision contained completely false
factual findings. She was there, apparently, to
help herself, and the district, but not her client.
“Did Maura Larkins beg you to place into Appendix p. 290
evidence these letters?” [p. 79, lines 8-9]
“I don’t recall.” Appendix p. 290
[p. 79 ln 20]
“Did Maura Larkins ask you to place into Appendix p. 290
evidence one or more documents that showed [p. 81 lines 6-22]
that the only issues…that caused this hostile
feeling towards Maura Larkins had to do with
policies and procedures at the school?…Did
Maura Larkins ask you to put this document
into evidence in her administrative hearing?”
“I don’t recall.” Appendix p. 290
[p. 81 ln 23]
“Is it possible that my being taken out of Appendix p. 292
my classroom and placed on administrative leave [p. 88 lines 4-7]
and asked to get a fitness-for-duty evaluation
would be irrelevant to my administrative hearing?”
“It is possible it could have been irrelevant Appendix p. 292
or only minorly important to the issues that were [p. 88 lines 10-12]
“So a good lawyer might pretty much ignore it?” [p. 88 line 14]
This question was not answered.
Mr. Smith said that it was a waste of time to Appendix p. 293
ask these questions, and that this was “not the way [p. 90 lines 20-21]
a deposition is used.”
Larkins noted: “I was trying to discuss Ms. Appendix p. 293
Schulman’s performance as a lawyer and now we [p. 91, lines 6-8]
have shifted to discussing my performance as a lawyer.”
SCHULMAN’S MOTIVE FOR
SABOTAGING HER CLIENT’S CASE
Larkins: “Did you feel that Maura Larkins Appendix p. 296
had a hostile environment at Castle Park [p. 105 lines 2-3]
Schulman: “What my personal views of Appendix p. 296
any client’s case might be are not relevant to the [p. 105 lines 7-9]
issues of the case.”
Larkins: “They could supply a motive for Appendix p. 296
not adequately representing the client.” [p. 105 lines 11-12]
But Ms. Schulman did not answer.
“There were some glaring omissions Appendix p. 297
in the documents that were produced by the [p. 107 line 3 to
District in this case. The documents were p. 108 line 6]
Bate stamped. …Why didn’t you compel the
District to produce those documents?…Bates
stamped Page 39 and Bates stamped Page 55…
24, 27, 28, 39, 44…Why didn’t you demand a
single one of them be produced?”
Ms. Schulman did not answer. But one
remains curious. Why did she not demand that
CVESD produce the docuements? Because she
didn’t want to force the district to obey the law
by threatening them with the possibility that
their crimes and other violations of law would
SCHULMAN UNILATERALLY ENDED
HER OWN DEPOSITION
Schulman and her attorney unilaterally Appendix p. 300
ended her deposition. Larkins asked: “Will [p. 121 lines 21-25]
you come on Monday?” Matthew C. Smith
answered, “No.” Larkins asked: “Will you make
an appointment for another (day), to continue
this deposition?” Mr. Smith answered: “No.”
SCHULMAN SHOWED NO CONCERN
THAT THE COMMISSION FAILED TO PROCEED IN THE MANNER
REQUIRED BY LAW
Schulman failed utterly to meet the standard of care by failing to address, both
during her client’s administrative hearing, and after she received the decision,
the laws and case law applicable to Larkins’ case. Her deposition makes clear
that she supported the Commission on Professional Competence when it grossly
misconstrued CALIFORNIA EDUCATION CODE SECTIONS 44932(a)(7),
44932(a)(5) AND 44939. Schulman’s agenda clearly did not include proper
representation of her client.
SCHULMAN NEGLECTED (OR INTENTIONALLY FAILED) TO POINT
OUT THAT LARKINS’S REFUSAL ON OCTOBER 5, 2001 TO REPORT TO
WORK WAS A SINGLE ACT, NOT “PERSISTENT” REFUSAL
During the seven months after October 5, 2001, the district never asked
Larkins to come back to work. There was no persistent refusal to a district
order. The District asked once, Larkins refused once. The Superintendent
never offered to have a conference with Mrs. Larkins to discuss the reasons for
her transfer, as required by the contract, and no investigation was ever
The threshold which must be reached in order to dismiss a teacher for violation
of Board rules and regulations, or failure to perform regular assignments, was
addressed in Governing Board of the Oakdale Union School District V. Seaman
(1972) 28 Cal. App..3d 77. The COMMISSION cites Seaman in legal
conclusion 5, but misconstrues the case egregiously.
Seaman applies very pertinently to this case, but supports a decision contrary to
the one made by the COMMISSION. The Court in Seaman states, “…
respondent argues, merely, that each day of appellant’s absence was a separate
violation of the school board’s regulations, and hence that the violation in this
case met the “persistent” requirement of subdivision (g) of section 13403…The
argument is specious. This is not a case where it is reasonable to say that Mrs.
Seaman’s absence, by its very duration, amounted to a “persistent” [28 Cal.App.
3d 83] violation of the governing board’s rules. Nor can it be fairly said from
the evidence presented that the teacher was motivated by an attitude of
continuous insubordination. Mrs. Seaman had been employed by the district for
eight years, and there is no evidence in the record to prove that she ever
violated a school law or regulation of the governing board prior to the incident in
The district and the COMMISSION make the same specious argument as the
respondent in Seaman.
The COMMISSION misconstrues the case law by ignoring that a particular act
rarely constitutes unfitness for service, and certainly does not do so in this
case. Larkins was ready and willing to come back to work as soon as it was
The case law has insisted that one “particular act” rarely constitutes “evident
unfitness for service” and certainly not a “persistent violation of or refusal to
obey prescribed rules and regulations."
The particular act in this case was when Mrs. Larkins told the District
immediately on October 5, 2001, which was the first and only occasion in which
the District mentioned a specific school site, that I did not feel safe until an
investigation had been done and obviously false allegations retracted. No
student was forced to spend a single day without his regular teacher because of
my decision. The district had willfully and continually refused to protect me
from arbitrary actions due to slanders.
The COMMISSION also ignored the court’s definition of “persistent violation”
in Seaman by failing to give proper weight to the words “continuing, especially
in the face of opposition…constantly repeated.” The COMMISSION should
have noted that there was no opposition to Larkins’ not reporting to work after
October 5, 2001. There was never a letter or fax or phone call asking her to
report to work other than October 5, 2001. You notice that not even the
November 14, 2001 letter threatening dismissal (Exhibit 42) directs her to
report to any assignment. It was made clear at the November 21, 2001
meetings with Mrs. Larkins and her attorney that the District did not want Mrs.
Larkins to return.
The District’s efforts to connect this case to Board of Education v. Matthews
(1957) 149 Cal.App.2d 265 are inappropriate.
Matthews is about a teacher who decided “it was too cold and nasty and foggy
up here” (in Richmond), so she had “gone south to get warm.” The teacher who
drove down to Los Angeles where she stayed for ten days without any further
communication, and when the school called, “all (her) interests in Richmond
came rushing into (her) brain and (she) did feel ashamed (she) had been gone so
long and it dawned then, (she) had been gone longer than (she should have
been.” The following year there were similar problems.
The District in its Memorandum (Exhibit J-4), cites Matthews to justify all
three of its charges against Mrs. Larkins. In so doing, it underlines the fact
that all three charges are based on a single act, Mrs. Larkins’ refusal on
October 5, 2001 to return to work without an investigation and retraction.
Matthews makes it clear that the school authorities do not have the power to
make an illegal rule. Matthews did not concern a hostile work environment.
The two cases could hardly be more different.
COMMISSION’s LEGAL CONCLUSION 4, “The refusal of a teacher to
accept an assignment…is, in essence, insubordination,” fails to allow for laws
allowing employees to defend themselves.
The COMMISSION misconstrued Board of Education v. Swan (1953) 41 Cal.2d
546 by automatically applying the decision in Swan to this case without
recognizing that refusal to accept assignment is not automatically
insubordination, but that an employee may defend against a charge of
insubordination by establishing that the conduct for which he or she is being
dismissed was justified. This COMMISSION incorrectly permits the district to
disobey the law and the contract.
Swan concerned a principal who badmouthed the school board at a PTA
meeting, and who refused to be demoted to a teaching assignment. .Mrs.
Larkins was perfectly happy in her teaching assignment for twenty-six years,
then in 2001 was taken out of her classroom and sent home twice, for months at
a time, because of false allegations. Mrs. Larkins was willing to go back to
teaching as soon as it was safe, which required measures to stem the rising tide
of hysteria in the District, an end to the District’s violations of the Collective
Bargaining Agreement, and an end to Assistant Superintendent Werlin’s total,
arbitrary, and abusive control over every aspect of Mrs. Larkins’ employment.
In Swan, the Court clearly states that not all employees are in the same
category as Ione Swan. The decision states, “The case of Hanley v. Murphy,
40 Cal.2d 572 [255 P.2d 1], is clearly distinguishable. There the superior officer
acted without regard for the prescribed civil service rules, and his alleged bad
faith therefore became a material consideration in determining the aggrieved
employee’s rights.” Larkins’s contract clearly required a conference, and
reasonable necessity, and safety. It clearly allowed her to file grievances, and
forbade retaliation by the district when she did so. The law allows her to file a
lawsuit. The law specifically forbids retaliation when an employee files a PERB
charge, and when an employee reports illegal or criminal behavior to a public
The Court in Swan refers to Hayman v. City of Los Angeles, 17 Cal.App.2d 679
[62 P.2d 1047] also rules that there are limits on the power of public employers:
“Control over public employees is not only a right but a duty, and in the
discharge thereof a wide discretion is allowed, which will not be disturbed until
the point of illegality is reached.” In the instant case, the weight of the evidence
shows that the point of illegality was reached early in 2001, and the illegal
actions of the District have been growing in number ever since.
This case needs an infusion of simple logic and common decency. This Superior
Court case was an extension of the farce that took place in Administrative Law
Judge Ahler’s courtroom, in which Judge Ahler apparently wanted to stop the
justice system in its tracks.
Appellant Maura Larkins respectfully asks that this Court reverse the decision
of the trial court and vacate the award of costs.
DATED: May 9, 2005 ___________________________
Maura Larkins, Appellant
Schulman clearly believes that Maura Larkins has no right to any explanation for
Schulman’s failure to present evidence of Chula Vista Elementary School District’s
criminal(!) and civil wrongdoing, evidence of Larkins’ innocence of the charges
against her, and pertinent legal issues, at Larkins’ administrative hearing.
During her deposition, Schulman refused to Appendix p. 275
answer the question, “Are school districts limited [Deposition p. 19,
by the Constitution of the United States in the rights line 25]
and authority they have to direct the work of
Schulman’s disrespectful answer was, “…I am not Appendix p. 275
here in a position to provide a lecture or a seminar on what [Deposition p. 20,
public employees’ and employers’ relationships are…” lines 11-15]
Schulman was asked, “When you represent a client Appendix p. 276
who is in a wrongful termination case, do you normally [Deposition p. 23,
try to make sure that the client’s constitutional rights are lines 8-12]
honored by the employer?”
Instead of answering, Schulman claimed: “I can’t Appendix p. 276
answer that question. I don’t understand your question.” [Dep’n p. 23, ln17]
“Do you understand Article 5, which provides Appendix p. 276
that the district retains all rights and authority [p. 24, line 24
to direct the work of its employees to be limited to p. 25, line 2]
in any way whatsoever?"
|STATEMENT OF THE CASE
It is in the public interest to reverse the ruling. Elizabeth Schulman and
Matthew C. Smith abused an overburdened, ethically-challenged legal system.
Appellant is not in a position to demand that the system be fixed. She asks only
that one small insult to justice—the decision that appellant must pay the costs of
the attorney who defrauded her of approximately $35,000 (much more than half a
year’s salary for Larkins)—be reversed.
STATEMENT OF APPEALABILITY
This appeal is from the judgment of the San Diego County Superior Court and is
authorized by the Code of Civil Procedure, section 904.1, subsection (a)(1).
This judgment is appealable because it is the final judgment, and Notice was
given in a timely manner.
STATEMENT OF THE FACTS
There is enough evidence in this lawsuit to justify taking away Elizabeth
Schulman’s license to practice law in California. In a better world, Judge Styn
would have forwarded the evidence to the Bar Association. Instead, he ignored
it (helping Elizabeth Schulman avoid all responsibility for her wrongful acts), and
then punished Maura Larkins financially for bringing the lawsuit.
The decisions of the court in this case illustrate why Elizabeth Schulman felt
confident that she could get away with violating the legal requirements for an
attorney who agrees to represent a client.
Schulman possessed sworn testimony that
contradicted the testimony of the witnesses appearing for Chula Vista
School District. Why did she not present it? Judge Styn’s prejudices against in
pro per litigants not only protected Schulman from any legal consequences for
her wrongdoing, but caused him to dismiss with prejudice a case in which the
complaint itself contained enough evidence to prove Schulman guilty of the
causes of action against her. Maura Larkins was willing to accept the dismissal
of her case without prejudice, but is unwilling to accept the glaring contempt for
the law demonstrated by Schulman’s brazen demand for more money from
Plaintiff after the case was dismissed (or perhaps the decision to demand more
money was made by Matthew C. Smith alone?)
Just as Elizabeth Schulman allowed discovery abuses by Chula Vista Elementary
School District and its law firm, Parham & Rajcic (particularly Mark Bresee), so
did Judge Styn allow abuses of the discovery process by Schulman.
THE JUDGMENT CONSTITUTED AN ABUSE OF DISCRETION
BY THE JUDGE
Judge Styn’s prejudice against Plaintiff Larkins was obvious from the beginning
of this case, when he refused to allow either consolidation or coordination of this
case with GIC 781970. The reason for this appears to be that he did not want an
in pro per litigant in his courtroom or in any other courtroom of San Diego
Superior Court. Judge Styn appears to prefer a system run by lawyers for their
own benefit, no matter how dishonest they might be, to any type of system which
allows in pro per litigants to be given equal treatment.
When he refused to consolidate or coordinate this case with the original case in
this matter, Judge Styn made the decision to overwhelm Plaintiff. Plaintiff often
had to be in two places at once, and was burdened with discovery and motions by
six different law firms, most of it solely for the purpose of harassment.
Defendant Schulman and her lawyers sabotaged the discovery process and failed
to make any serious effort to put on a defense. They didn’t produce one
document. They treated this matter as a joke, a farce.
Schulman’s lawyer Matthew C. Smith never exhibited any interest in taking
Plaintiff’s deposition until Plaintiff noticed her own deposition for September 22,
He then stopped Plaintiff from taking her own deposition! He waited until two-
and-a-half weeks after he had been served with the Notice of Deposition of
Maura Larkins for September 22, 2004, and then began to claim that he had
purchased airline tickets for a trip on that date.
Smith did not bother to produce copies of those tickets, but Judge Styn
apparently agreed that Smith’s associates should not be allowed to substitute for
him in the task of making objections during Larkins’ questioning of herself.
Judge Styn required that Larkins take her own deposition earlier or later than
her chosen date, even though Judge Styn knew that Larkins was fighting a
complex case in a closely related matter in another court at this time. Forcing
Larkins to change the date of the deposition prejudiced her. Smith’s associate
Gregor Hensrude could have handled the job of making objections when Plaintiff
was taking her own deposition.
Schulman was so uninterested that she didn’t even attend when the deposition
finally took place on October 28, 2004, the same date that Plaintiff was required
to sit for a deposition in the separate, original case, and until only two days
before the cut-off date for depositions.
After Plaintiff produced over 2,000 documents, the case was terminated because
she didn’t produce documents created by Schulman, and possessed by Schulman,
which Schulman herself chose not to produce. Shulman, in fact, produced NO
documents. She was in no way prepared to defend herself. She had no defense.
She would have lost.
THE STANDARD OF REVIEW
The standard of review in this case is the “abuse of discretion” standard.
ELEMENTS OF THE ACTION
Schulman’s deposition was an egregious demonstration of contempt for Superior
Court. Schulman was so wrapped up in her determination not to provide a single
meaningful answer during her deposition that she embarrassed herself by
offering nothing but evasions to the question “Do you have a habit and custom of
taking on clients when you believe they are lying to you?” (Appendix p. 272 &
273 [Deposition p. 9, line19 to page11, line 17]).
Finally, her lawyer stepped in and said to her, “The question was do you have a
custom and habit of taking cases where you think your clients are lying. Yes or
no?” She then gave the only answer possible for a lawyer who wants to pretend
to be the least bit ethical, and, as it happened, one of the few honest answers she
gave during the deposition: no. (Appendix p. 273 [Deposition p. 11, lines 18-21]).
|Malpractice by Atty. Elizabeth Schulman
Honorable Ronald L. Styn