Profile

Hon. Richard S. Flier (Ret.) has settled or conducted trials dealing with the full spectrum of legal issues during his twenty years as a Superior Court Judge. His career included three separate tours as a Civil Fast Track judge handling issue conferences and settlement conferences as well as trials and summary judgment motions. Recognized as a patient, courteous and perceptive judge who has a tremendous capacity to quickly grasp issues, he is very effective in guiding parties toward resolution.

Professional Experience

  • Judge, Superior Court, County of Contra Costa. Elected June 5, 1984 (defeated Judge David E. Pesonen) for term commencing January 7, 1985. Re-elected in 1990, 1996 and 2002.
  • Assignments included Civil Fast Track, General Trials, Family Law, Criminal Calendar and Appellate Department.
  • Committee Assignments included Budget Committee (Chair), Court Reporters’ Committee, Criminal Law Judges, Fast Track Judges, Recognition Committee and Social Committee.
  • Deputy District Attorney, Contra Costa County, October 1973 – January 1985 (1977 set record for most Felony Trial Days in a year). Assignments included Misdemeanor trials, Preliminary Examinations, Felony Trial Team, Felony Expediter and Richmond Felony Filing Deputy.
  • Hearing Examiner, California Office of Administrative Hearings, State General Services Administration, San Francisco, March 1972 – September 1973.
  • Law Clerk, Law Firm of Parichan & Krebs, Fresno, California summer of 1968

Held numerous part-time non-legal jobs while attending high school through law school. This included a multi-year stint as a cook, carhop, soda jerk and dishwasher at the family restaurant, a sales clerk in Men’s Clothing and a seasonal sales manager in Linens (Macy’s).

Representative Matters

  • Trial Judge of the Shell oil spill cases which tried to verdict, 1989
  • Trial Judge of the Bank of the West case regarding the definition of “advertising” coverage.
  • Jones Act wrongful death to an engineer aboard a tanker.
  • Sexual harassment claims involving employees of large corporations.

ADR Experience and Qualifications

  • Extensive settlement experience in a wide variety of complex legal issues and problems from “slip and fall” to wrongful death, professional malpractice, employment problems, eminent domain, real estate, construction issues, insurance, business and commercial.
  • Assigned exclusively to civil matters, 1988 – 1991, 1999 – 2000 and 2002
  • Served as a judge in Bench-Bar Settlement Program.
  • Regularly assigned additional settlement conferences and mediations even while not on the Civil Bench.
  • Noted for patience, persistence, inventive solutions and the ability to resolve difficult cases involving difficult people.
  • Conducted numerous bench trials involving attorney fee disputes, sight-line property disputes, contract interpretation, inverse condemnation, statutory interpretation, construction issues and partnership dissolution.

Mediation Training

  • “Strategic Negotiation Skills” given in Woodstock, Vermont October 15-19, 2009 by Pepperdine University School of Law, 18 hours of training.
  • “Mediation Training” presented by Steven Rosenberg in Marin County, March 2005. This was a 40 hour program over a period of two weeks.
  • “Mediation & Conflict Resolution Seminar” presented by Ronald Kelly. This was done through UC Berkeley Extension, Continuing Education Unit (CEU), April 2005. This was also a 40 hour program

Honors, Memberships and Professional Activities

  • Member, California State Bar Committee on Alternative Dispute Resolution, 2011 –
  • Judge of the Year, Italian American Bar Association, 2010
  • California Judges’ Association, 1985 – present
  • Robert G. McGrath American Inns of Court, 1999 – present
  • Contra Costa County Trial Judge of the Year, 2000, ACCTLA
  • Panelist, “Civil Case Management,” 1999, Contra Costa County Bar Association in conjunction with Superior Court ADR.
  • Moderator, “Courtroom Conduct: Tactics, Ethics, Contempt and Common Sense,” 1991, CEB
  • Panelist, “Law and Motion Practice in the Bay Area,” 1990, Barristers’ Club of San Francisco
  • Alumni Association, Hastings College of the Law
  • Alumni Association, University of California
  • Rotary Club of Pleasant Hill, (President 2004 – 2005)
  • California Marching Band Alumni Association

Teaching/Lecturers/Panelists

  • Moderator, CEB Program, “Courtroom Conduct: Tactics, Ethics, Contempt and Common Sense,” 1991
  • Panelist, “Civil Case Management,” 1999 sponsored by Contra Costa County Bar Association – Litigation Section and the Alternative Dispute Resolution Committee
  • Diablo Valley College, Law Day Speaker, Liberty Bell Award

Education

  • J.D., 1971, Hastings College of the Law, San Francisco, Round Winner, Moot Court Competition
  • B.A., 1967, University of California, Berkeley, Political Science

Bar Memberships

  • 1972 admitted to the California Bar, U.S. District Court, Northern District of California and U.S. Court of Appeals, Ninth Circuit

Representative Cases

ADA

  • Veteran with disabilities seeks ADA compensation for removing an elevator and not replacing it, and other substandard conditions at his housing complex. Property manager argues building is too old to be part of ADA, and Plaintiff isn't disabled enough.

Business

  • Homeowners defaulted on home loan when employed parent lost her job. Various unsuccessful attempts over the next four years were made to modify the loan. Homeowners are now able to make a significant payment to reduce the principle. Bank agreed to re-evaluate the modification.
  • Plaintiff hires defendant to replace an engine for a school bus. Defendant put in an engine which ultimately fails. Defendants try to fix but the replacement engine fails and a total loss. Expert says the problem is faulty assembly. Plaintiff buys another engine. Defendant sues the engine block supplies for defective product. Experts exonerate the supplier.
  • Disgruntled Property Manager encourages a competitor to solicit clients of the Property Manager and take them from the Property Manager's company. Four clients are involved - one goes with the competitor, one goes with an unrelated company, and two return to the Manager's company after signing with the competitor. Both parties four for interference with their contracts.
  • Office manager embezzled money from a dentist's office. She keeps some of the money but deposits sustained money into the account of one of the employees/contract dentists. This dentist was unaware of the theft. Dental office seeks recovery of converted funds from the employee dentist. That dentist was aware that the embezzler had an earlier problem in his office but did not know about the prior misconduct in a former office.
  • Plaintiff, a used equipment finder, contracted with the defendant to provide a used furnace used in high-tech production. The furnace was delivered, and it took several months for the defendant's engineers to make it operational due to damaged and missing parts. The defendant claimed that the shipping caused some problems, and some parts weren't included in the order. The plaintiff claimed lost profits and incidental expenses.
  • Settled a case where business had a credit card with a line of credit. Business ends and lender tries to collect balance of amount owed from the president. Issue is whether the president was the Guarantor on both the credit card and the line of credit.

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Civil Rights

  • Veteran with disabilities seeks ADA compensation for removing an elevator and not replacing it, and other substandard conditions at his housing complex. Property manager argues building is too old to be part of ADA, and Plaintiff isn't disabled enough.

Construction

  • Handled a case in which the defendant encouraged his friend to invest and find other investors in a building project in the Midwest. The project was completed, but it required more money, time, and cooperation than initially anticipated. They worked on another building project with cost overruns. Ultimately, both projects ended in foreclosure. Everyone pointed to one another for a scapegoat.
  • Water well contractor has a 1,000 foot well destroyed during the time the cement pumper, the defendant, was pumping cement down the well to create a cement casing. The contractor believes the “explosion” was due to the pumper pumping the cement at too high a pressure. The pumper believes the cause was a blockage in the well itself.
  • A property is purchased which is distressed. The new owner has the house demolished and a new house is constructed. The city does not require a soil report and none is obtained. After construction and occupancy, the owners experience mechanical issues (HVAC), floors not level, windows and doors sticking. The owner’s soil engineer says that part is due to inadequate foundation. The designer says he is not negligent. Builder says he followed the designer’s plans. It is not clear if only builder is to blame for bad workmanship.”
  • Contractor is hired to expose turn off values and water line so plumber can turn off water and create a new water line. Contractor used a backhoe. Owner/operator of trailer park says they did not authorize the backhoe. Contractor felt it necessary because of muddy soil. The tenant of the trailer park sues owner/operator for the uninhabitable conditions. Owner/operator had to wait several months to complete water line and cover trenches and blames the contractor.”
  • Owner is dissatisfied with remodel of his house. Owner claims architect did not provide sufficient oversight. Architect claims his conduct was within the standard of care.

    Employment

    • Claimant brought an alleged wrongful termination (age) against the Respondent. Before the arbitration hearing could be held, Claimant died. No representative of Claimant's estate wished to pursue the matter further. The case was dismissed for failure to prosecute. Claimant's former attorney brought various motions attempting to collect attorney fees and costs from the Respondents or their attorney for an out of state deposition. The attorney was doing this in his own right since he could no longer represent the Claimant without court approval. These motions were determined to be frivolous and the attorney was ordered to pay the Respondents attorney fees for requiring Respondents to respond to these inappropriate motions.

    Family

    • During their marriage, the husband's mother provided thousands of dollars to the couple. Wife regularly asks "how much." At the time of the sale of their house, mother gives a spread sheet indicating $100,000 owed. At the time of the divorce, this amount has grown by $170,000, including a $100,000 loan used to purchase business property. Wife thought this was a gift and the other payments were gifts or undocumented. Husband, around time of divorce, signs several promissory notes to mother without consulting wife.
    • Engaged couple splits up before their marriage. Monies are owed but some disputes regarding what living expenses shared and what was money lent to purchase business. Unsuccessful attempt is made to couch this as promises made in contemplation of marriage which are not enforceable.

    HOA

    • A longtime homeowner raises issues regarding the laxity of the Home Owners' Association in enforcing the CC&Rs. She also criticizes their business practices and identifies various life safety issues at the multi-unit complex. Also, one of the owners became a self-appointed gardener and is making landscaping changes without board approval.
    • Homeowner widens two driveways and closes off a patio structure to make an interim storage room. All of these actions were taken without HOA notice or approval. The settlement involved removing one driveway, adding softscape and a tree, and returning patio structure to its open condition.

    Insurance

    • Client going through "winding down - ABC" process seeks "tail" insurance coverage for officers and directors against creditors’ claims of the corporation. The Insurance Broker provides coverage which costs several hundred thousand dollars with a "creditor's claim exclusion." Insurer refuses to provide cost of defense when creditors' claims are brought against Corporate Officers. Officer pays over $700,000 in attorney fees and costs to defend himself in litigation. He seeks reimbursement from broker for failing to evaluate ABC situation correctly and being more candid with the limitations of the coverage purchased.
    • Client goes through "winding down -ABC" process, seeks "tail" coverage for officers and directors against creditors of the corporation. Broker provides coverage which costs several hundred thousand dollars with a "creditor's claim exclusion". Insurer refuses to provide even cost of defuse. Officer pays over $700,000 in annually fees + costs to defend himself in litigation. He seeks reimbursement from broker for failing to evaluate ABC situation correctly.
    • Handled a case in which an insurance company assigned an unpaid premium collection to a collection agency. The insured entered into a payment plan and made payments over multiple years. When the insured stopped paying because the premium had been completely paid off, the agency claimed that the "interest" was due for the entire period.

    Landlord – Tenant

    • Veteran with disabilities seeks ADA compensation for removing an elevator and not replacing it, and other substandard conditions at his housing complex. Property manager argues building is too old to be part of ADA, and Plaintiff isn't disabled enough.
    • Settled a case where the plaintiff complained about an upstairs tenant water leak. Defendant landlord did repair after plaintiff got the city involved. Delay in repair caused mold but defendant denies this.
    • Landlord keeps portion of the cleaning deposit when tenant moves out. Much of the damage was wear and tear and little could be charged to the tenant. The tenant said the landlord did not return the deposit within 21 days of notified departure from the property, Landlord claimed tenant did not give proper notice.

    Legal Malpractice

    • Attorney hired in Landlord Tenant case - Attorney does realize tenants have changed and fails to giving timely action for lease rent. One tenant goes bankrupt. The other tenant beats landlord on statute of limitation.
    • During a construction project, partner lends $700,000 to complete the project but requires others to guarantee the loan. Attorney drafts the guarantee form, but it fails to contain the fractional obligations of each guarantor and fails to waive statute of limitations. Court ultimately grant a demurrer which cause lender to lose ability to fully collect from guarantors.
    • Settled a low six figure matter where a son-in-law left his father-in-law’s company after working there for twenty years due to the father-in-law not upholding proper care for certain projects and did not want to fix the damages. In addition, the father-in-law gifted his daughter and son-in-law the money for a down payment on their home but the father-in-law mentioned it was a loan.
    • During a construction project, Partner lends $780,000 to complete the project, but he requires others to guarantee the loan. Attorney drafts the Guarantee form, but it fails to contain the fractional obligations of each Guarantor and fails to waive Statute of Limitations. Court ultimately grants a demurrer which causes lender to lose ability to fully collect from Guarantors.

    Personal Injury

    • Settled a case where the plaintiff and defendant were friends hanging out when a loaded rifle was retrieved and pointed at the plaintiff by the defendant. The gun fired and a bullet went through the plaintiff's thigh.
    • Settled an auto incident where a pedestrian was hit while walking in the cross walk by a car moving at a low speed. Injuries obtained where ruptured Achilles and torn meniscus in the knee.
    • Elderly client experiences soreness and pain following her first visit to a massage parlor. Ultimately, she must undergo surgery to deal with fractured vertebra. She had a significant prior back sedation. There was also a waiver signed before the massage.

    Probate, Trusts & Estates

    • Original probate of the estate omitted an additional property (a four-plex) purchased during marriage using Community Property funds. The deed to this property described the owner as the husband as his “separate property.” The sons from a prior marriage discover the omission and bring action to get their share of this property. Decedent died intestate so distribution would be one third to wife, two-thirds to his children if their claim is valid. Wife claims that property was purchased with Community Property funds and the deed was a mistake. She and her husband, decedent, failed to correct it before his death two years later. The entire property would go to her if it were Community Property.
    • Decedent of multi-million-dollar estate attached a Notary Seal from a previous will. The will is unenforceable and perhaps forged. Likely heirs include his third wife and sons from first and second marriages. Decedent tried to disinherit one son.
    • Financial Elder Abuse and Undue Influence dispute in which daughter, who is on SSI and Medical, inherits 207K from mother. There is a concern that if she receives this, her SSI and Medical will be cut off. She signs a waiver of the $207K and her sister gets the money. When her sister refuses to give her the use of any money, she threatens to sue the sister. The daughter dies and their brothers sue their sister and the lawyer who prepared the waiver and was a trustee of the mothers’ trust for Financial Elder Abuse.
    • Settled a case in which a contingent beneficiary of a trust challenged whether a co-trustee could gift several hundreds of thousands of trust assets to the co-trustee and his family. The co-trustee and settlor were declared to be incompetent; although the trust's attorney felt she had moments of lucidity when she approved the gifts after the fact. The purpose of the trust was to provide support for the co-trustee/settlor for her entire life.
    • The original trustee (father) used resources of the residual trust without restoring them. He also undervalued his business which is part of the trust. When he died, his sons brought an action against the successor trustee, their step-mother, to make adjustments.
    • One beneficiary brought an action in probate to remove her sister as trustee. This sister had brought an action on behalf of the trust to rescind a loan transaction with the bank dealing with trust property. Because fraud was alleged in the answer against the trustee, the court found a conflict of interest and appointed a temporary trustee. The lending bank, loan broker, and temporary trustee were involved in the mediation with the beneficiaries and the trustee. All of the siblings opposed their sister who brought the original action to remove the trustee.
    • Beneficiaries disputed the trustee's action of reducing his personal note to the trust when the settler's taxes were paid.
    • Sons accused their sister of misleading their mother (trustee) in the performance of her trust duties. She was also accused of misappropriating money from the trust for her own use. The trust interest of these children only arises after the mother dies.
    • Father set up an estate plan where his children are tenants in common with him on the family house. He forced them to sign over their interest to others depending upon who is out of favor with him at any given time. When he died, many issues arose dealing with the effect of a son's bankruptcy on the title to the land as well as contribution to the estate for taxes/expenses paid by the executor on behalf of the estate.
    • A case involving an allegation that a temporary conservator was overcharging for services and making poor administration decisions.
    • Family of decedent contested the will of the decedent which gave all of her assets to her boyfriend/fiancé. They claimed that he was guilty of undue influence and other equitable grounds.
    • Successor trustee (daughter) is accused of misfeasance in receiving $260,000 from trust assets and in helping the settler make an ill-advised 1031 property exchange.
    • Son purchased family home from parents and gave a note. The father outlived his estate plan and the daughter tried to force the son to fund father's retirement using the pre-payment of the note.
    • Siblings disputed the management of their mother's living trust, especially as it deals with a motel which is run by the trustee (another sibling). They also contested the various fees charged upon their mother's death.
    • Beneficiaries accused the trustee/executor of stealing inherited items and mismanaging the real property holdings of the trust/estate.
    • Trustee found trust documents which reflect two attempts to change the ultimate distributions. When the settler died, the objector only wanted part of the changes to be made effective.
    • A case in which other beneficiaries wanted all of the changes to be made effective. Only some of the changes were legally appropriate.

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    Real Estate/Real Property

    • Adonis landowner had a non-exclusive easement for 12 parking spots on neighbor's parking lot. The basement was never enforced for over 30 years. Upon attempts to enforce by Dilatory Relief action, the neighbors argue for various reasons the easement is unenforceable.
    • A couple and their friend purchased a property to fix it up and resell it. The owners never wrote down their agreement. A few years later, the couple and their newly married friend disagree regarding the long-term plans for the property.
    • Appointed Referee to execute a Partition and sale in dispute in which joint owners of a four-plex, who were once intimates, find they can no longer handle the business of joint ownership once they marry or have a relationship with other people. After unsuccessful attempts to amicably resolve their issues, a partition action is brought by one owner to force the sale. A Referee is appointed for this purpose. The other owner files a cross-complaint alleging various tort causes of action. During the process of moving out, one owner is accused of assaulting the other and criminal charges are filed. The Referee supervised the sale and then assisted the parties in resolving the accounting and civil liability matters. The criminal matter was resolved separately.
    • Joint property owners' disagreement over what expenses and revenues should be considered on the sale of properties owned for over 40 years. Manager felt that was not to be considered, other owner felt expenses were not documented.
    • Sibling dispute that parents sold apartment buildings over 23 years ago to their brother. Confusing collection of deeds but the brother that has been paying taxes, collecting rent, and acting like an owner. At a minimum issue is whether the legal title is shown by deeds. "Tenancy in Common" to parent and son is rebutted by evidence that the apartment building is solely owned by the brother.
    • Joint property owners' disagreement over what expenses and revenues should be considered on the sale of properties owned for over 40 years. Manager felt that was not to be considered, other owner felt expenses were not documented.
    • The dividing line between adjoining properties was protected by an old retaining wall. The lower property received mud and silt from the uphill property. The uphill property complained of loss of lateral support. The retaining wall was mistakenly built on both properties and both owners used a small portion of the other's property. Both properties are insured by the same company. The retaining wall needs to be rebuilt.
    • Settled a case in which a real estate investor sought contract damages when a seller claimed that she didn't know she was selling her house when she signed the sale papers. The seller claimed that she doesn't read English. The buyer claims he spent several hours with the seller to make sure she understood the transaction.
    • Disgruntled Property Manager encourages a competitor to solicit clients of the Property Manager and take them from the Property Manager's company. Four clients are involved - one goes with the competitor, one goes with an unrelated company, and two return to the Manager's company after signing with the competitor. Both parties four for interference with their contracts.
    • Adjoining land owner had a non-exclusive easement for 12 parking spaces on Neighbor’s parking lot. The easement was never enforced for over 30 years. Upon attempts to enforce by Declaratory Relief action, the neighbor argues for various reasons the easement is unenforceable
    • Joint property owners’ disagreement over what expenses and revenues should be considered on the sale of property owned for over 40 years. Manager felt rent was not to be considered. Other owner felt expenses were not documented.

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    Articles / Publications