Motion for Reconsideration
How do you get a judge to reconsider his/her decision?
Any party, whether in a civil or a criminal case, in an application for an order has been made to a judge, or to a court, and refused in whole or in part…. may within 10 days after service upon the party, has a legal right to have that order reconsidered. In California, this is statutorily governed by Code of Civil Procedure, Section 1008. The motion for reconsideration must be filed within 10 days to the same judge or court who made the order and must be based upon new or different facts, circumstances, or law.
I had a client recently who had four prior petty theft criminal convictions. Three of the four judges or courts in four different Los Angeles Superior Court locations granted our motion to expunge the criminal conviction. Based on new factual information, I filed a motion for the judge who denied our fourth motion to dismiss a prior conviction to reconsider his decision.
After a very detailed motion based on new factual and legal grounds and arguments from both the prosecution who still affirmed their prior objection and the defense, the judge after taking the matter into submission granted my client’s request to expunge his last remaining criminal conviction. It was critical that my client’s criminal record be “cleaned," since he was just recently terminated from his job.
Many of us are aware that employers have a legal duty to exercise due diligence in the hiring process. That duty may be violated if an employer hires someone they knew or should have known in the exercise of reasonable care was dangerous or unfit for the job. Employers are well aware that they could be sued and that courts and jurors alike have awarded large monetary damages for “negligent hiring" in cases where the employer could have avoided the harm by a criminal record check.
Benefits: Expungement is a general term to describe the removal of information from a criminal record by deleting or sealing the information. It allows an individual to answer “no" to a potential employer or other background checks if he/she has been convicted of a felony; allowing eligibility for professional certificates and licenses; allowing eligibility for student loans or government assistance such as housing.
Who qualifies: Individuals who have been convicted of a misdemeanor or felony for more than one year (excludes sex offenders); those who have fulfilled their probation; those who have completed the terms and conditions of their probation; those found “not guilty" or had the charges against them dropped.
In some situations, if you were convicted on a misdemeanor and are still on probation, an attorney may file with the court to request early termination and have the conviction dismissed. If you were convicted of a felony and are still on probation, a petition should be filed with the court to request an early release from probation in addition to having the conviction reduced to misdemeanor and dismissed.
What if you lied about your criminal record? You have the job but let us assume management finds out you were less than truthful about a prior conviction or possibly losing your professional license because you failed to disclose a conviction. An administrative hearing is the venue used.
What should you do if an investigator from a state licensing agency or human resources representative contact you? Investigators sometimes lull the employee into a false sense of security. Investigators call you in for an “informal" conference to get your side of the facts. The “informal" conference may seem so easy that the employee feels that all he/she has to do is tell the truth and fails to consider bringing in an attorney in these types of investigatory settings. But what you do not know is that a senior manager is conducting the meeting and the interview is recorded and a written report will be prepared.
This scenario is similar to when a detective calls you in to the police station to tell your side of the story. Feeling comfortable that you can handle it, you go in without an attorney. The detective tells you all you have to do is be honest and before you know it – a criminal complaint has been filed against you. I can not begin to tell you how many clients forget what they know about their “Miranda" rights. Simply stated, their right to “shut up" and let your attorney do the talking. Same idea works in the employment administrative scenario.
The senior manager will then forward the case to legal counsel who will contact law enforcement. Having an attorney attend the meeting reduces the chance that your comments may be misinterpreted. The best opportunity to resolve a case favorably comes at the investigative stage. More importantly, an attorney may point out mitigating factors that addresses your employer’s concerns.
Individuals who have sealed or expunged their records have saved them from losing their jobs, to obtain professional licenses, or to honestly check the “no" box, in certain circumstances, when asked if they have been convicted of a crime. In a tough job market, any advantage to you brings you closer to getting a job.