JUDGE BLOWS UP WHAT BOARD THINKS NEGLIGENCE IS

[Jim Frame]

This guy could have come in, treated the board like crap, and deserved to be put through the wringer for all I know.

In many (most?) of the enforcement cases I've worked on, the respondent either ignored the complaint entirely, or refused to admit that they did anything wrong in the face of compelling evidence. (One or two lawyered up at the outset, but that was probably smart given the number of violations charged.) Had they cooperated with the Board at the outset, they probably could have gotten off with a slap on the wrist.

Not many enforcement cases actually result in surrender of license, even when that's listed as a contingent sanction. The Board offers a course of action that allows the respondent to retain their license in all but the most egregious cases.

[jamesh1467]

The surveyor was negligent just because a few surveyors said he was negligent, and then they got the board to vote on it per 8780 to confirm and make it legal? That's my understanding of what happened. That doesn't seem fair. That's just a few surveyors' opinions imposed on some unlucky surveyor who pissed someone off when the client didn't even care about this enough or was damaged enough by the actions of the surveyor to sue the surveyor themselves and show there was any real harm by the surveyor's actions. (If he had been sued, the board would have been able to back their claim with the suit, and we would be discussing solid legal common law principles from a civil case, not an enforcement case). That's what proves the negligence and takes away everything the surveyor worked so hard for to get the license and make a living? It's just blind luck of whether or not someone was mad at you, knew they could get back at you by reporting you to the board, and which expert you get to review the enforcement case against you?

I feel a professional obligation to establish and adhere to a standard of care in my own community. If I file a DCA complaint against someone it is because I genuinely believe that they are harming the community and I have exhausted all other avenues for recourse. This is not an action that is done on a whim for the complainer or the investigating body. I give the people involved more credit than that. I don't know Patrick and I haven't read the case but based on the information provided I suspect that he may have got away with one this time and would be wise not to repeat the behavior. I doubt that luck or blind emotion are the motivating factors for board enforcement cases

I am probably spouting off more than I should and word vomiting without making much sense in my last posts.

Here’s my attempt at defining the problem a little more clearly:

This guy went to court and got a higher opinion on the board's actions (and the administrative judge) on something that was previously subjectively judged by other surveyors as a sort of self-regulating process.

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care that are not very explicitly codified. (I know it’s not binding appellate precedent, but it’s still a higher precedent that can and will be used) That's what I am trying to say/express here with probably way too many words. Because everyone you ever report to the board for this kind of violation in the future can point to this case as a precedent to get out of a complaint. Or worse, the board actually goes through with the violation, and it gets appealed to the courts again and confirmed again.

The board and the administrative judges are supposed to fall in line with this decision and start enforcing it. They don’t have a choice. Their hands are going to be tied. Even if they aren't, and I am wrong about that because of some administrative loophole, it's not like they will be willing to look bad by taking a violation like this to court twice.

The standard of care is no longer debatable on circumstances or determined by other surveyors in the profession. If a boundary decision is not in a contract, it's not the standard of care. Even if a licensed surveyor signs the topo with a boundary decision on it. I am pretty sure that's what just happened in this case. The standard of care for all surveyors was just defined in common law.

The question is, what do we do about this?

[Jim Frame]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

[DWoolley]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

Jim Frame, truth. It means less than zero in relation to any future decision by any ALJ or any other judge in any other jurisdiction.

I believe the original posts said the surveyor didn't locate an existing original monument and instead, held the record math because of some brush - with a rationalization that the math placed the monument within 0.2'. It could have been 2' and the surveyor would not have known. This is clear cut negligence, regardless of one Superior Court's findings. The surveyor probably paid about $150k at market rates to roll the dice and got lucky, so what. I double dog dare any other surveyor to follow his lead, spend the $100k+ and see how it works out.

The fact we have surveyors that see the surveyor's case as being acceptable practice is disconcerting.

I know a little about professional negligence cases. If I framed and hung every license, for which I had firsthand knowledge, that has been revoked or surrendered I would need a bigger office. Only yesterday I received a final order in which a licensee lost her license for not searching for and finding several original monuments (coupled with other false statements on her ALTA). We won't be seeing that signature and seal bebopping around Orange County again.

DWoolley

[jamesh1467]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

Jim Frame, truth. It means less than zero in relation to any future decision by any ALJ or any other judge in any other jurisdiction.

DWoolley

I think you guys are missing the point I’m trying to make here. I really do. I’m not trying to show I’m the smartest person in the class. I’m trying to help and make sure we don't just watch the pitch go by with this thing. Deregulation is a game that happens one inch at a time over decades. This case was a step in the wrong direction.

Everyone in this forum has been debating facts, I’m trying to tell you the facts can be whatever you want them to be. This guy challenged the law, and the law doesn't seem like it’s on our side. If it had been, we would have won. If there were laws that supported the finding of negligence, the board would have used them. They have some great attorneys. They really lost because they sucked as attorneys and couldn’t make a case with the facts you all seem to agree show negligence? No. They lost because the law wasn’t on their side with those facts.

The courts will absolutely screw up what you think the law is unless you design the laws so they can’t. This whole thing is a warning that we need to modify the design of our LS Act laws so the courts can’t screw it up like this again. Otherwise, they absolutely will screw it up, and this will repeat again.

We need to give the board more statute tools to better define standard of care so they can get these guys next time. That’s what I am trying to say here and what I have been trying to say from the beginning. When the board loses in court, we all lose along with the board. It’s just a matter of whether you are willing to accept that or not. If you accept that, we can work to change it and make it better. If you don’t want to accept that, I really don’t know what to say other than I can’t help people that don’t want to be helped.




I can help or I can shut up. But I am through trying to convince people I am right when I know I am. Nothing you guys have said pokes a hole in the logic I have been using. You guys just don’t seem to be understanding what I am saying, not caring, or I am not expressing it well enough. Either way, at a certain point this becomes beating a dead horse. Responses to previous counter arguments below, but this is the last time I do it.


DWoolley, ALTA’s wouldn’t even apply to what we are talking about because a resolved boundary is by definition within the contract anyone makes for an ALTA. You could have gotten this guy with negligence if this was an ALTA. Even by this court’s reasoning. I never said what he did was acceptable. In fact, I said or implied the opposite multiple times. I said the means we used to get to the ends of saying this guy was negligent is not acceptable. Possibly even concerning about the arguments the board made. Not that his actions were acceptable. Yes he rolled the dice. But I am pretty sure he rolled the dice and also screwed us all. It won't be rolling the dice again for the next guy. It went from rolling the dice to high percentage chance of winning for the next guy. Don't you see that? I'm pretty sure the board's attorneys will and won't even take this to court next time.

Also, double dog dares are how people get in trouble based on their ego by responding to forums. Just look at that Airforce kid who put that classified stuff out there to prove he was right in the forums and went to jail. You’re seen as a leader in this field by a lot of people. Don’t post that stuff.


Jim Frame, I understand it’s not binding (I said that in the next sentence after you quoted) and I didn’t expand on it because these posts are already way too long. But this again comes back to I highly doubt that the board has bad attorneys that wouldn’t have used the existing precedent or made good arguments if they were there to be made. The law must not be there to support us and now we have something that could go against us in the future that gave a new opinion on the “Landmark 2011 case” that we previously relied on. Is there some kind of wealth of common law for surveyors’ negligence where this would get buried in research that it won’t be found so we could still use the 2011 case without this coming up as an alternate opinion on that 2011 case?

Its the law of large numbers. When you only have a small amount of cases to justify your arguments on a very niche subject, the cases matter a lot more and hold a lot more weight. How will the next attorney reference other cases to make their arguments in the next case? They will research and use this case because there is no real binding precedent. This likely just became the precedent, because there is really no binding precedent.

Administrative law gets admittedly too complicated for me to say I know everything about it, but my understanding is that the administrative judges without full judicial powers are inferior to superior courts with full judicial powers, otherwise the superior court wouldn’t have been able to overturn them like they did in this case. I really don’t see an inferior quasi-judicial judge overturning a legal doctrine that was created by a higher full judicial court. I am also pretty sure the landmark 2011 case where we got our negligence enforcement power is an admin case in quasi-judicial common law, not full judicial common law. So this new superior court opinion of that would probably be held in higher regard even though it’s not binding. But that’s just me and inference based on what I know. If you seriously think the admin judges can just blindly ignore this….i would find that hard to believe….but if you quote some cases or some statues showing me where they can or have ignored superior court decisions previously I will shut up and I will have learned something here by all this. (I may also find that pretty concerning tho because Admin judges are described as "quasi-judicial" not "judicial" like the superior courts. They are not supposed to have that kind of power to ignore judicial opinions)

Your are now asking the admin judges to directly defy one of the few outside judicial opinions of their actions to enforce our idea of the standard of care on surveyors. Do you want to wait for the next guy to try this like DWoolley suggests to see what happens if I could be right? Are you that sure of yourself that this case won’t influence the board’s future actions? Or do you want to be proactive and change this for the better, so we make sure this never happens again?

I can’t do this on my own. In fact, I can’t probably do this at all which is why I am posting here spouting off like this. Its guys like you and DWoolley that will get the law changed. I’m trying to get you to do it for us and protect the integrity of my license for the next few decades.

[LS_8750]

I get it. Loud and clear to me.
If the Board can't figure it out and the so-called professionals are blind, then why should there be licensed professionals?

For a land surveyor to end up in court over their own conduct, opinions, or lack thereof, is sad.

And I've seen it in my practice. I've seen ethical cannibalism first hand, the equivalent of chopping down the tree to reach the fruit, dropping dead animals down the well we all drink out of. And apparently oblivious to what they are doing. Yes. Much worse than the subject of this thread.

[marchenko]

The Superior Court judge got it right.

Land Surveyors are experts in the art and science of Land Surveying. They can exercise their judgement as to the accuracy required to fit the needs of a particular project. It is what society needs. The surveyor who had the Board ruling dismissed applied that judgement to his survey. Our laws reflect this as discussed below.

Government Code 66424.5(a) “Tentative map” refers to a map made for the purpose of showing the design and improvement of a proposed subdivision and the existing conditions in and around it and need not be based upon an accurate or detailed final survey of the property.

We are authorized to create tentative maps. They show topographic information. Local ordinances usually require property dimensions. Our law (see paragraph above) states they are not required to be accurate surveys. They sometimes expire; hence no recorded map follows it.

Government Code 66448
In all cases where a parcel map is required, the parcel map shall be based upon a field survey made in conformity with the Land Surveyors Act when required by local ordinance, or, in absence of that requirement, shall be based either upon a field survey made in conformity with the Land Surveyors Act or be compiled from recorded or filed data when sufficient recorded or filed survey monumentation presently exists to enable the retracement of the exterior boundary lines of the parcel map and the establishment of the interior parcel or lot lines of the parcel map.

If the parent property has multiple corners, when we go to monument the interior lines of a parcel map compiled from recorded data we would find a monument marking the exterior boundary that won’t fit our calc’s for a tenth or two. The final position of our map corner, and the dimensions leading to and from it, would differ from our filed parcel map.

A legislative requirement that every corner be monumented first would lead to our role in the process being replaced by others. It could be utilized as a weapon to thwart projects that would help our society. Be careful what you ask for, you might get it.

George Marchenko LS 6964

[DWoolley]

I think you guys are missing the point I’m trying to make here.
...

You are correct, I was not understanding your point.

Putting the instant case aside, I believe you are correct if your point is the profession of land surveying is in the process of closing out. I have written and offered evidence on this forum to the pressures on the profession’s inability to be sustainable. Although I do not know what the future holds, I would be surprised if there was much left of land surveying in a single decade.

I disagree with the statement:

“We need to give the board more tools to better define standard of care so they can get these guys next time.”

The BPELSG staff have plenty of existing tools available and the authority. As is their prerogative, they wash approximately 70% of the cases under “compliance achieved” or similar. Restated, 30% of the respondents face discipline and of those, less than 10% potentially face a Deputy Attorney General [which, rightfully, will usually result in a settlement]. The cases that are not pursued against the professionals are not due to a lack of jurisdiction or legal gray areas. This is not intended to be shot at BPELSG, they will do what they will do for their own reasons. Ultimately, the BPELSG is not in place to protect and/or serve the professional community.

I will add another personal observation, I find it quite curious the professional community will ask the two non-practicing BPELSG land surveyors for technical practice advice - never questioning their number of records of surveys filed, monuments preserved, records of survey or maps checked, construction stakes set, geodetic experience, the number of standards/manuals written, peer reviewed papers published etc. Then, the land surveyor inquirers will most often take the advice as though Moses himself delivered it as the third tablet. Equally, although far less frequent, the land surveyor inquirers will quickly dispel the advice as cockamamie nonsense when disagreeable. Is this due to land surveyors not having a professional network or fear of reprisal? I find the LCSO, a consortium of County Surveyors, City Surveyors and public agency folks, is a better multi-jurisdictional, broad based experience, resource for practice issues - often with published standards. BPELSG members have not assembled a LSTAC in more than a decade, why is that?

Also, equally curious, why would the professional community look to BPELSG to save their profession? Understand, I made the mistake of having a similar perspective a decade ago. Like Lennon's lost weekend, this was my lost decade.

In the alternative, it may be a generational thing, younger folks may not know about the Magic 8 Ball for those tough decisions. My personal survey acumen can be attributed to the ol’ Magic 8 Ball. Online version here: https://magic-8ball.com/

Standard of care will always be anchored in the “reasonable person doctrine”. What would a professional facing similar circumstances do in a similar situation?

As the profession diminishes, the standard of care necessarily diminishes accordingly. As an example, not to many years ago a professional would not have met the standard of care by using GPS RTK/RTN for short distance measurements [to keep us in the food chain and make this a professional opinion, accuracy statements were rejected by our community]. One could argue the practice is prevalent enough today to be the standard of care. Hypothetically, in the context of this thread pushed out over the next decade, we could state existing monuments do not need to be located when establishing corners – especially if the monuments are in brush. Following this through to the logical conclusion, most tradesmen, GIS technicians, engineering technicians have a working knowledge of CAD, coordinate geometry and GPS RTN. Ergo, these folks are not breaking the law when they can replicate the work of a licensed professional and add a caveat [legally, known as informed consent] alla the NSPS model law. This is not prospective, we see it today, every day, in construction, topography, site plans, legal description writing, etc.

The land surveying community, from my perspective, would rather die [literally] than accept any further regulation or have standards placed upon them.

Thank you for taking the time to write in detail and drive the conversation. Raise a cup to 2024.

DWoolley

[DWoolley]

...
They have some great attorneys. They really lost because they sucked as attorneys and couldn’t make a case with the facts you all seem to agree show negligence? No. They lost because the law wasn’t on their side with those facts.
...

A state Attorney I was hired at $68k annually a few short years ago. Today I believe it is $92k annually. The tier one folks bent on public service, like a Kennedy, go to criminal law or civil litigation. The Davey Crockett School of Law graduates, oftentimes unemployable in private practice, took the $68k hoping to offset their student loans and are gratefully relegated to a board or bureau. It is not uncommon for these folks to be in a band, practice black and white photography, build ships in bottles or have some other esoteric pastime. In the mix are private practice failed partners and pre-retirees marking time until eligible for retirement. The occasional talented interim attorneys take their proverbial foot in the door opportunity until eligible to become an ALJ in Work Comp, EDD, DMV or similar and exit stage left asap.

DWoolley

[jamesh1467]

DWoolley, the short answer to your questions is that I am still an idealist. I still want to see us for what we could be as a profession.

You are talking to a guy who has certificates beyond our field in data science, AI and Augmented Reality. I can go into a lot of detail about what I think the future is. (some of you know how much detail I can go into with that stuff all too well) But I don’t want to get off topic with that. I also don’t want to get into the whole bad attorney thing or get into the board methods. I just wanted to make the point that there are likely to be broader implications of this case than just this surveyor.

This was a court mandated erosion of surveyor values. We have to stand up and say: “this wasn’t what was supposed to happen” Otherwise, it is implied that we agree with what happened here.

I don’t want to get caught up on the mechanisms for acting either. I suggested statute, because it absolutely will supersede this opinion at the lower court level. But it’s not the only option and I am sure the CLSA, and the board have some smart people that can figure out some better ways to do it. The only thing I would say is that appeal could just make it worse if we lose again. Its a high risk action. But appeal is not up to me.

You can let the courts speak for you or you can speak for yourself. But you’re making history and defining the future of our profession either way. This case requires a response by the surveying community about what we think our values should be to supersede the court's opinion of what they think our values should be. Respond or don’t respond. But either way, it’s a choice.

[DWoolley]

DWoolley, the short answer to your questions is that I am still an idealist. I still want to see us for what we could be as a profession.
...

Fair enough.

I am very appreciative to Desert Tortoise for taking the time to write a detailed account of this case. I am also appreciative of the posts provided that drove the conversation. Thanks to all contributors.

All the best,

DWoolley

[desert turtoise]

Bottom line is the system in place fails to provide fairness to the licensee, since the decision is based on the opinion of ONE "expert". How could this have continued so many years, allowing the state to bring citations or worse ? Other states employ three licensed land surveyors to evaluate and vote on the outcome of a complaint. As I said in the introductory opening article, the only fairness I have seen from Borpels was unofficial; from the XO who once told me in the hallway at a seminar; "sometimes we make mistakes".