Atty. Carina Castaneda

Atty. Carina Castaneda (3)

LAW AND ORDER: THE LEGAL SYSTEM

ADMINISTRATIVE HEARINGS FOR REVOCATION OF PROFESSIONAL LICENSES

Professional licensing agencies may suspend or revoke a license issued for reasons enumerated in the California Business and Professions Code (BPC). For many who have criminal convictions, whether they are doctors, nurses, contractors, they will be served and must defend against an accusation that impacts their careers and livelihood. I had a client come in recently who is a pharmacist and had an underlying drug-related arrest. I did not represent him in his criminal case and he represented himself in his administrative hearing.
The outcome of the hearing meant probation for 5 years with terms that are extensive and very rigid. It is critical to hire an attorney who is experienced in direct and cross-examination, gathering evidence and highly skilled in conducting hearings. In California, the Attorney General (AG) is the representative of the various professional licensing boards. Even prior to the date of the hearings, I worked with the Supervising Deputy AG in providing her mitigating evidence such as character letters and evidentiary documents lessening the culpability of my client.
Even though an early termination of probation and a criminal expungement may not be conclusive in getting the Board to withdraw the accusation, it is an important factor that enables the judge and the board to reconsider the gravity of the charges.
If the board or its designee asks a licensee to provide criminal history information, a licensee shall respond to that request within 30 days. The licensee shall make available all documents and other records requested and shall respond with accurate information.
As a condition of renewal for a license that expires on or after April 1, 2009, a licensee who was initially licensed prior to 1/1/98, or for whom an electronic record of the submission of fingerprints no longer exists, shall furnish to the Department of Justice (DOJ) fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search through the DOJ.
A licensee shall disclose whether, since the licensee last applied for renewal, he/she has been convicted of any violation of the law in CA. or any other state, the United States, or other country, omitting traffic infractions under $300 not involving alcohol, dangerous drugs, or controlled substances.
I have just mentioned some of the general criminal background checks that are in effect. It is critical that if you have been arrested of a crime, a review of your employee manual is necessary since reporting it to a supervisor may be mandatory. For example, for nurses, sections 2520.4 and 2520.5 of the Vocational Nursing, California Code of Regulations, both the licensee and the employer must report of any act listed in the BPC, Sections 2878, 2878.1 and 2878.5. The report shall be made to the board within a required time period a violation had occurred.
For licensed individuals, in all sorts of professions, if you have been arrested and subsequently convicted of a crime it means facing both the criminal and administrative consequences. It is important that the attorney that you hire for the administrative hearing be aware of the rehabilitation criteria. The Board has the final decision to revoke, suspend, or place the licensee on probation. Keep in mind as well that the facts of the underlying criminal case must be adequately explained to the board and the witnesses for the administrative hearings are generally the same for the administrative hearing.
Having the same criminal and administrative attorney represent the client in both venues is a benefit. I find that since I have knowledge and information about the criminal case and the reasons for the disposition and other critical information are available to me, it is more advantageous to my client. Frankly, to some of my clients, the board hearing is more stressful for them since it ultimately means their livelihood is at stake. While the criminal case if of equal importance, to many they know there is a conclusion to the criminal case. But if their license to work is taken away, it means their professional life is destroyed.
Thus, when the Board considers the disciplinary actions that should be implemented, the attorney must be able to advise the administrative judge of the rehabilitation possibilities of an individual article. If you are personally experiencing such issues, call me immediately at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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Contempt of Court

The primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts. The secondary purpose is to protect and enforce the parties’ rights by compelling obedience to court orders and judgments. Examples of this would be failure to appear when subpoenaed, screaming profanities in court, and failure to obey a court order.
The judge may impose sanctions such as fines or jail for someone found guilty of contempt of court. For criminal cases, sanctions typically are a jail term and fines that are intended to punish. Probationary terms may also be imposed. As for civil contempt, sanctions may include a fine or a jail term that ends when the offending behavior ends and money damages may be awarded to the injured party.
To prove contempt the prosecutor or complainant must prove four elements: existence of a lawful order, knowledge of the order, ability to comply and the failure to comply. As referenced, my client had attorneys and an accountant to insure that effective and full compliance with court proceedings would be effectuated.
I have a case now in which the opposing party in a divorce case is facing numerous contempt charges for failing to provide financial information as ordered by the Court. The crux of the case generally falls on the factors of the “Respondent/Defendant’s” ability and willingness to comply with a court order. Another relief that could be requested is attorney fees incurred in filing an affidavit of contempt in the family court case scenario.
I have defended several clients in numerous counts of family law contempt cause of actions pertaining to financial obligations such as child support, spousal support and attorney fees (financial issues). Another area where contempt is brought forth is in violations of a visitation order or restraining orders. My most recent case is about noncompliance and overt disobedience of a court order requiring the other party to provide financial documents for “discovery.”
The four factors to be proven: valid court order, knowledge of the order, ability to comply with the order, and willfulness of conduct must all be proven beyond a reasonable doubt in both the civil and criminal arena. Since the court can impose up to five days per count of jail, a maximum of 180 days of jail would trigger the right of the Respondent/Defendant to request a jury trial.
The power to punish for contempt is broad and carries with it great responsibility to apply it judiciously and only when contempt is clearly and unequivocally shown. Defendants in criminal matters should be given every opportunity to exonerate themselves. Criminal contempt sanctions should be only utilized after the judge has determined that civil contempt remedies are inappropriate.
It is incumbent and prudent if you are the party that is attempting to get a contempt action initiated and successful that you hire an attorney that have both the experiences and expertise in both the criminal and civil arena. While in family law (civil) court is not the criminal arena, the constitutional rights afforded a criminal defendant will be required, including but not limited to, a right to an attorney, right to a speedy trial, and a right to remain silent.
It is a complex matter that will require you to get an attorney not only to decipher the pleading requirements but also to effectively win the case in trial.
Any questions, call me at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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Modification of child custody or visitation orders

I have a client that has a visitation order of a mere 5% due to a prior restraining order. He came to my office and wants to know what his options would be. Since the restraining order had expired, a modification is “necessary or proper” in the child’s best interests. Generally, a custody or visitation order may be modifiable during the child’s minority whenever the court finds a modification is “necessary or proper” and consistent with the child’s best interest.

I suggested reaching out to the opposing party’s attorney prior to filing any motion to see if a stipulation for more visitation time would be available. This not only curbs legal fees and court costs but is consistent with the duties required in family law of both parties’ to act in good faith.

If there is no agreement and court intervention is the only means to an end, I will always note in our motion that best efforts were made in order to prevent judicial intervention and increased costs. Depending on the acts or behaviors of both the attorney and opposing party, sanctions for legal fees and costs may be requested.

The standard governing custody adjudications requires the court to review and conclude what is the child’s best interest. However, if the custody order has been deemed “final”—usually a Judgment has been filed, then a showing of “significant change of circumstances will be needed. The policy behind this is that modifications to custody or visitation create instability and security is essential to the child’s welfare.

The paramount goal is to preserve the need for continuity and stability in custody arrangements, unless some significant change in circumstance reflects a different arrangement would be in the child’s best interest. As for my client, there is no final custody order so the best interest standard is the applicable law.

Unless the order is permanent or final, the court is only required to make an initial custody determination of what custody order is consistent with insuring continuity and stability for the child. The burden of proof must be on the party requesting the change –my client.

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