Tuesday, March 15, 2005
Page 7
PERSPECTIVES (Column)
Judge Peter D. Lichtman Plays by Rules He Invents
By ROGER M. GRACE
A judge who is ambitious will want to be noticed. Judicial restraint is not what draws attention.
By contrast, rulings that are sweeping, inventive, and bold are calculated to engender public awareness of the judge who makes those rulings.
The ambitious judge will rev up the judicial engine and hit the road, burning rubber, pulling ahead of lackluster colleagues, heedless of stop signs and speed limits. Get ahead!—that’s the goal.
Is there a judge on the Los Angeles Superior Court with such consuming ambition?
Meet Peter Donald Lichtman.
Undaunted by the rejection slip the Bush Administration gave him when he sought appointment to the U.S. District Court in 2002, recuperated from the trouncing he took at the hands of Steven Czuleger when he ran for assistant presiding judge last year, Lichtman is now seeking appointment to the Court of Appeal for this district.
He is not fit for that post.
I’ve written about Lichtman before. See “When Is Peter Lichtman Not Peter Lichtman?” (March 25, 2002), and “Here’s a Writing Sample From Peter Lichtman” (March 26, 2002.) They appear on our website at:
http://www.metnews.com/opinion/persp.misc-2002.htm.
When the Metropolitan News Company sued the Daily Journal Corporation for major anti-competitive conduct, including locality discrimination and selling below cost, Lichtman was, at the first trial (which ended in a hung jury) conscientious and unbiased. At the second trial, he was discernibly hostile to us. He sabotaged our case at every turn, rendering rulings directly contrary to ones he had made before.
The “writing sample” provided in the March 26, 2002 column is telling. It is the portion of his July 16, 1999 order granting a nonsuit in favor of the Daily Journal (a nonsuit gratuitously granted after an adverse jury verdict). He held that an element of the tort of “locality discrimination” in California is selling below cost. The relevant statute bars selling a product at a lower price in one locality than in others in order to destroy competition the area (in our case in Los Angeles) where the low price is charged. The statute, on its face, does not require selling below cost; if it did, the statute would have no purpose since selling below cost is already proscribed by a separate statute.
The long and the short of it is that Lichtman, to reach the result he desired, relied on a 1963 utterance by a federal trial judge in New Jersey, spurning a 1983 decision by the Court of Appeal in California which delineated the elements of locality discrimination under our state statute. The California appeals court discerned no requirement of selling below cost. If you assume this was a good-faith gaffe on Lichtman’s part, you’re wrong; a motion for a new trial did not result in any change. Lichtman was committed to a result, and was faithful to it.
Could it be that Lichtman reckoned that without relief being afforded to us from the Daily Journal’s anti-competitive conduct, we would perish, while the Daily Journal would go on forever, indebted to him and thus prone to advance his judicial career? Admittedly, that question is based on sheer speculation. Whatever Lichtman’s motivation was for annihilating our case, it was hardly a one-time-only instance of his overreaching.
Just last Feb. 15, the Court of Appeal disapproved of Lichtman’s conduct as a settlement judge in Orange County clergy sex cases. He presumed to make binding findings. The making of binding findings is not something a settlement judge is commissioned to do, as the court held in Travelers Casualty and Surety Company v. Superior Court, 24 Cal.Rptr.3d 751.
In his opinion for Div. Eight, Justice Laurence Rubin recited that Lichtman on April 20, 2004, issued an order that the parties participate in an evidentiary “valuation hearing” at which he would determine the potential liability with respect to about 90 cases.
“On May 21, 2004, we issued a notice of intention to grant a peremptory writ in the first instance, stating that Judge Lichtman had no authority to adjudicate any aspect of the case, conduct an actual trial, or render any binding findings,” Rubin set forth. “We warned that Judge Lichtman’s April 20 order would be vacated unless he agreed to delete certain specified portions of his order, including any mention of adjudication, trials, and findings.”
Lichtman modified his order. Somewhat. He proceeded to conduct an evidentiary hearing, with the insurers for the Roman Catholic Diocese of Orange County declining to participate. The jurist issued a lengthy “Valuation Order.”
Rubin declared:
“[W]e believe Judge Lichtman exceeded his authority and our previous orders that he make no findings regarding the settlement value of the [cases]….Additionally, he anticipatorily adjudicated certain legal issues that were not properly before him. The net effect was to render the mediation process coercive, at least as to the insurers.”
For the particulars, please see the opinion. As to the bottom line, Rubin wrote: “[T]he court abandoned its designated role as a neutral facilitator without decision making authority.”
The court ordered Lichtman to scrap his valuation order.
On Feb. 17, The Associated Press reported:
“A new judge has been named to oversee the settlement of more than 500 clergy abuse cases against the Roman Catholic Archdiocese of Los Angeles.
“Los Angeles Superior Court Judge Peter D. Lichtman will be replaced by Judge Charles W. ‘Tim’ McCoy because insurance carriers for the church objected to his handling of the case.”
In an unpublished opinion filed Dec. 2, Div. Two of this district’s Court of Appeal reversed Lichtman’s $174,480.50 award of attorney fees in favor of the City of Los Angeles. The award was based on what Lichtman deemed to be a frivolous appeal of his order denying the defendant’s anti-SLAPP motion.
As will no doubt occur to you instantly, a trial judge does not impose sanctions for frivolous appeals.
“We hold that the power to punish a frivolous appeal lies with the Court of Appeal, not the trial courts,” Justice Judith Ashmann-Gerst wrote.
Another unpublished opinion handed down by the same division on March 9 of last year also reflected over-reaching by Lichtman.
On Nov. 14, 2000, Lichtman entered a judgment in a class-action case, pursuant to a settlement agreement. In January of 2003, the plaintiffs asked Lichtman to boost the defendant’s liability for administrative costs from $70,000 to $170,000 because the affected class was actually comprised of more than 30,000 members, rather than the 10,000-15,000 estimated during settlement negotiations. On March 19, 2003, Lichtman upped the amount, relying on equitable powers.
Presiding Justice Roger Boren wrote for the panel in reversing. He said:
“The record on appeal conclusively shows that respondents were in no way the victims of extrinsic fraud or mistake. The purportedly unknown facts that respondents complain of now, three years after judgment, were all on the table before a final judgment was entered in this case….[I]t is unrefuted that respondents quickly learned—before judgment was entered—that the class size was, in reality, over 30,000 consumers and that administration costs far exceeded $70,000.
“Claims notices were sent to 31,000 consumers on October 2, 2000, six weeks before the court entered judgment on the settlement. In fact, by August 31, 2000, 10 weeks before the court hearing and before the settlement agreement was even signed, the claims administrator informed respondents that the administration costs were at least $118,000; however, respondents’ attorney decided that he was ‘willing to let it go to a certain extent.’ Equitable rules of fairness and justice do not authorize the courts to intervene and rewrite a contract executed with knowledge of the facts….”
Boren went on to say:
“[W]e note that the trial court’s retained jurisdiction to enforce the terms of the settlement does not authorize the court to rewrite the terms of the settlement.”
That’s rather basic.
Div. Two seems to specialize in Peter Lichtman cases. On July 17, 2002, it issued a writ, in an unpublished opinion, ordering Lichtman to grant a motion for change of venue to Ventura County. It was in that county that the plaintiffs’ personal injuries and property damage were alleged to have occurred.
The plaintiff originally sued in Los Angeles County based on the defendant having an office in Glendale. In the course of mediation, it was agreed that the plaintiff would dismiss the complaint, and that if it were re-filed, the statute of limitations would be tolled and no “defense” would be asserted based on “any failure” to pursue the action during the tolling period.
The action was refiled, in Los Angeles County. By then, however, the defendant had closed its Glendale office. Lichtman denied the motion for change of venue, finding that by virtue of the agreement, the defendant was estopped from asserting the “defense” that venue did not lie here.
Boren wrote:
“[W]e conclude that an objection based upon wrong venue is not a defense in the legal sense of the term.”
He went on to observe:
“In reaching its decision, the trial court paid scant attention to the following provision contained within the parties’ Agreement: ‘Any action to enforce this Agreement shall be brought in the Superior Court for the State of California, in the County of Los Angeles....This election of jurisdiction does not constitute an admission by [defendant] PCM...that the proper jurisdiction and/or venue for the Complaint or any subsequently filed complaint by the Plaintiffs is properly vested in the Superior Court for Los Angeles County.’ This provision is plain. PCM specifically reserved the issue of venue, should mediation fail and the parties be forced to return to the courts.”
There are, of course, other cases in which Lichtman’s decisions were overturned, and cases in which he was affirmed. However, the cases I’ve pointed to provide guidance, I think, on the issue of whether Lichtman has aptitude for Court of Appeal service.
Lichtman, in running for the post of assistant presiding judge for 2005 and 2006 (prelude to being presiding judge for 2007 and 2008), sent a letter to colleagues bad-mouthing the court’s practice of keeping statistics on judges’ disposition of cases. He was quoted by a legal trade paper on July 18, 2002, as saying that a lawyer must “barf up a lung” to get a continuance, while a judge is apt to stay home on sick leave based on “a sniffle.”
This hardly ingratiated him to colleagues. The morning that comment appeared, then-Presiding Judge Robert Dukes yanked Lichtman from his post as supervisor of complex litigation at Central Civil West.
His bid for election as assistant presiding judge drew little support. Czuleger handily defeated Lichtman and Los Angeles Superior Court Judge Mary Thornton House without a run-off.
Lichtman’s judgment was called into question Feb. 2 when Div. Three of this district’s Court of Appeal signaled an intent to yank the judge off a case involving multiple lawsuits against the maker of a withdrawn anti-inflammatory drug, Vioxx. Div. Three said in a Palma order (announcing plans to issue a peremptory writ in the first instance): “No reasonable minds could differ on the undeniable appearance of impropriety arising from Judge Peter D. Lichtman’s involvement in the proceeding.”
The impropriety stemmed from Lichtman having been a user of the prescription medication, which was removed from shelves in September in light of findings that it substantially boosted the prospects of heart attacks or strokes. Lichtman told lawyers in the case about his use of Vioxx in October.
Spurning a Jan. 11 challenge for cause filed by the defendant drug-maker, the judge on Jan. 14 struck the statement of disqualification while also filing an answer. In the answer he countered that because he liked the drug and had decided not to join the suit, “[t]here is simply no doubt that this court can be fair, impartial and unbiased.”
Disagreeing, Div. Three said in its Feb. 2 order: “Clearly the facts of this case mandate removal of Judge Lichtman.”
Despite the appeals panel’s definiteness, opposition was filed on behalf of Lichtman.
Meanwhile, Lichtman is under scrutiny by the Los Angeles County Bar Assn’s judicial evaluation panel, as well as by the State Bar’s Commission on Judicial Nominees Evaluation.
If committee members look hard and deep, it is difficult to imagine that their ratings of Lichtman for the Court of Appeal would be other than “not qualified.”
Copyright 2005, Metropolitan News Company