2017 End of Year

Monday, December 31, 2018

Page 3

2018 IN REVIEW

END OF THE YEAR:

Deukmejian, Reinhardt, Arabian Die…Brown Appoints Legal Aide, Josh Groban, to State High Court…Obscure Lawyer Challenges Judge Malcolm Mackey, Loses…Bill Ending Money Bail Enacted

January

12—The Court of Appeal for this district held, in a 2-1 opinion, that realleging allegations forming a cause of action to which a demurrer was sustained without leave to amend is a useful means of prompting the court to recognize its earlier error. Presiding Justice Frances Rothschild of Div. One wrote the majority opinion, joined by Justice Elwood Lui (finishing up work in the division after being confirmed as presiding justice of Div. Two). Justice Jeffrey W. Johnson penned a concurring and dissenting opinion in which he asserted that the majority’s view “would invite havoc into the legal system.”

17—Chief Justice Tani Cantil-Sakauye appointed Elwood Lui, the newest presiding justice in this Court of Appeal district, as administrative presiding justice, saying: “Justice Lui has an extraordinary record of public service, and today he makes history as the first Asian-American administrative presiding justice in California.”

23—— Los Angeles Superior Court Judge Joanne O’Donnell granted summary judgment in favor of the County of Los Angeles in an action brought by Mark Saladino in an effort to regain his post as county counsel. The Board of Supervisors voted, in closed session on June 9, 2015, to fire him. He signed an agreement the following day under which it was set forth that he was voluntarily requesting a return to the Department of Treasurer and Tax Collector., and was waiving any causes of action in connection with the transfer. The judge ruled that Saladino cannot skirt the “transfer agreement” he signed in which he was given a management role in the department he had headed prior to his September 2014 appointment as county counsel….Nicole Tinkham was named interim Los Angeles County public defender.

February

6—Los Angeles Superior Court Judge Ross M. Klein died at the age of 63..

10—Los Angeles Superior Court Judge Leslie Green retired.

12—President Donald Trump nominated Mark J. Bennett as a judge of the Ninth U.S. Circuit Court of Appeals. He was confirmed by the Senate on July 10, 2018 by a vote of 72–27—with the negative votes all being cast by Republicans based on the narrow view he took of Second Amendment rights while Hawaii attorney general.

16—Judges Roy Paul and C. Edward Simpson left the Los Angeles Superior Court.

24—Retired Los Angeles Superior Court Judge John L. Henning died, two days after his 80th birthday

26—A divided California Supreme Court struck down sentences of 50 years to life or greater for juveniles convicted of crimes other than homicide, saying such a punishment was unconstitutional because it doesn’t recognize the defendant’s youth and ability to change….Philip Layfield—who was suspended from law practice by the State Bar of California after he failed to show up for his Jan. 24 disciplinary hearing—was arrested in New Jersey and is facing trial in federal court here on a charge of mail fraud. It is alleged he pocketed settlement funds belonging to Josephine Nguyen, who was a client of the erstwhile law firm of Layfield & Barrett. She was to receive 60 percent of a $3.9 million settlement of her personal injury claim, amounting to $2.3 million.

27—Gov. Jerry Brown appointed two Los Angeles Superior Court judges to fill vacancies on this district’s Court of Appeal, choosing Judge Helen I. Bendix as associate justice in Div. One and Carl H. Moor as a justice in Div. Five. They were confirmed by the Commission on Judicial Appointments April 18….Brown gave Los Angeles Superior Court judgeships to Deputy Los Angeles District Attorneys Armenui A. Ashvanian and Danette J. Gomez; Los Angeles Deputy City Attorney Michael R. Amerian; Deputy Federal Public Defender Ashfaq (Ron) G. Chowdhury of the Central District of California; Kimberley Baker Guillemet, director of the Los Angeles Mayor’s Office of Reentry; Joseph M. Lipner, a partner at Irell and Manella LLP; and Audra M. Mori, managing partner of the Los Angeles Office of Perkins Coie LLP.

28—Justice Madeleine Flier retired from the Court of Appeal for this district without any announcement.

March

1—Los Angeles Superior Court Judge Mark Nelson hung up his robe.

3—Judge Richard C. Tallman of the Ninth U.S. Circuit Court of Appeals assumed senior status.

8—Los Angeles Superior Court Judges William Barry, Christine Ewell, and Carol Henry “C.H.” Rehm retired.

9—The field of Los Angeles Superior Court candidates solidified at 28. One incumbent, Malcolm Mackey, drew a challenger.

14—The ballot designation for prosecutor Ken Fuller, a candidate for a Los Angeles Superior Court open seat, was partially disallowed. The designation he chose was “Deputy District Attorney/Captain, U.S. Air Force.” It was initially accepted by the Los Angeles County Office of Registrar-Recorder, but then came “under review” by that office and the Office of County Counsel, and the words “Captain, U.S. Air Force” were excised. Fuller explained two days later: “In the interests of clarity, collegiality and in good faith, I instructed the registrar to discontinue their review of the ballot designation and to proceed with the designation of Deputy District Attorney, County of Los Angeles. …I sincerely meant no bad faith but was rather advised by an election law attorney… that both government attorney titles were permissible.”

22—The California Supreme Court held that a defendant has a right to file an anti-SLAPP motion in connection with an amended complaint only as to causes of action making their first appearance within the past 60 days, but the judge has the discretion to allow such a motion to older causes of action….Donna Goldstein retired as a Los Angeles Superior Court judge.

26—Olivia de Havilland, a 102-year-old who was a major star of the late 1930s through the 1940s, lost her bout in the Court of Appeal over FX’s unauthorized depiction of her in the eight-part docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford. Justice Anne H. Egerton wrote the opinion for this district’s Div. Three in reversing Los Angeles Superior Court Judge Holly E. Kendig’s denial of the defendant’s anti-SLAPP motion. Egerton declared: “Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks. Whether a person portrayed in one of these expressive works is a world-renowned film star—‘a living legend’—or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.

28—Armand Arabian, who served on the California Supreme Court from 1990-96, and before that on the Los Angeles Municipal Court, the Los Angeles Superior Court, and the Court of Appeal, died. He was 83. Arabian had suffered from ill health following the death of his wife, Nancy Arabian, two years earlier….The Los Angeles County Bar Association Board of Trustees voted to forgive a debt of $4.5 million owed by the group’s charitable arm, Counsel for Justice, while at the same time making clear that the unit needs to be self-sufficient by the end of the calendar year because there will be no further subsidies….Unemployed lawyer Onica Valle Cole, a candidate for a Los Angeles Superior Court open seat, lost her bid for a writ ordering Registrar-Recorder Dean Logan to accept her desired ballot designation of “Consumer Protection Attorney.”

29—Ninth U.S. Circuit Court of Appeals Judge Stephen Reinhardt, a member of the court since 1980, died at 87….Los Angeles Deputy District Attorney Troy Davis won a writ ordering Registrar-Recorder Dean Logan to excise the words “Police Commissioner” from the ballot designation of a rival candidate in the June 5 primary for a Superior Court Office, criminal defense lawyer David D. Diamond. Diamond was chair of the Burbank Police Commission, a volunteer advisory board. The candidate, who wanted to be identified as “Police Commissioner/Attorney” will retain the word “Attorney” in his designation. Los Angeles Superior Court Judge Mary Strobel said in her ruling that Diamond had not shown that his service on the commission qualifies as a “principal” pursuit, as required by the Elections Code as a basis for a ballot designation.

31—Michael Johnson left his post as a Los Angeles Superior Court judge.

April

9—The Ninth U.S. Circuit Court of Appeals, sitting en banc, held that an employer cannot justify paying a woman less than her male counterparts based on her prior salary. Judge Stephen Reinhardt, who died March 29, wrote for the court. There were three concurring opinions.

10—Chief Justice Tani Cantil-Sakauye said she was calling upon the Judicial Council to revamp a rule of court to bar secret settlement agreements resolving sexual harassment or sexual discrimination complaints against judges. The move came in the aftermath of the March 23 disclosure by the Judicial Council that nearly $600,000 in taxpayer funds has been expended since 2011 to investigate and settle three complaints of sexual harassment against judges and two against court employees.

May

3—Los Angeles Superior Court Judge Robert Martinez retired from the bench.

8—Former California Gov. George Deukmejian, also a former state attorney general, died at age 89.

10—The Third District Court of Appeal declared that a trial court has the inherent power to reject out of hand actions based on bizarre and implausible claims. It affirmed the denial with prejudice of requests in 31 separate cases for a civil harassment restraining orders against former Gov. Arnold Schwarzenegger, the Dalai Lama, Facebook founder/CEO Mark Zuckerberg, and former White House aide and presidential playmate Monica Lewinsky, along with 27 show business figures. Allegations included the asserted use by the defendants of mind-reading equipment at the “mental department in Texas,” with which they caused an attack on his brain with “nano probes.”

15—Ryan Douglas Nelson, general counsel for Melaleuca, Inc., was nominated by President Donald Trump to the Ninth U.S. Circuit Court of Appeals. His nomination was confirmed by the Senate on a 51–44 vote and he took office Oct. 18.

17—The Ninth U.S. Circuit Court of Appeals reinstated an action against Pharmavite LLC based on the alleged falsity of its claim on labels of its Nature Made Vitamin E bottles that the product “Helps Maintain a Healthy Heart.” The complaint cites American Heart Association advisories against taking Vitamin E supplements and a Mayo Clinic study saying: “The bottom line is that even though initial laboratory studies, animal studies and population research into the health benefits of vitamin E looked promising, the clinical trial findings—which provide the best form of evidence—didn’t bear that out. Instead, they uncovered health risks that make it unwise to take separate vitamin E supplements.”

18—The passage rate for the February 2018 State Bar examination was only 27.3 percent, it was announced, the worst showing during the past 67-year period for the winter examination (which primarily draws efforts by repeaters). Of the 4,701 applicants who completed the exam, only 1,282 passed it.

31—A district attorney, in maintaining an action under the Unfair Competition Law, may not seek relief based on conduct in other counties, the Fourth District Court of Appeal held in a 2-1 opinion.

June

1—Los Angeles Superior Court Judge Gail Ruderman Feuer was elevated to a long-vacant post on Div. Seven of this district’s Court of Appeal and confirmed July 30….Gov. Edmund Brown Jr. appointed 10 persons to the Los Angeles Superior Court. They were: Wendy W. Y. Chang, a partner at Hinshaw and Culbertson LLP; William A. Crowfoot, an assistant U.S. attorney for the Central District of California; Christopher W. Dybwad, chief deputy federal public defender in the Central District of California; Altus W. Hudson, a sole practitioner; Michelle C. Kim, a Los Angeles deputy alternate public defender; Terrance T. Lewis, a Los Angeles Superior Court commissioner; Debra L. Losnick, a Los Angeles Superior Court commissioner; Jean M. Nelson, a partner at Scheper Kim and Harris LLP; Jonathan L. Rosenbloom, a sole practitioner; and Helen Zukin, a partner at Kiesel Law LLP….Los Angeles Superior Court Judge James Brandlin retired, and three days later assumed the post of director of security for the court, a part-time position.

7—In the primary election, Los Angeles Superior Court Judge Malcolm Mackey garnered more than three-fourths of the vote in a match with an obscure Woodland Hills attorney, Anthony Lewis. Winning outright in contests for open seats, despite each having two opponents, were State Bar Court Judge Maria Lucy Amendariz and Senior Deputy County Counsel Rene Caldwell Gilbertson. Prevailing over a single opponent were Deputy District Attorney Wendy E. Segall, Superior Court Commissioner Danielle R.A. Gibbons, Deputy District Attorney Troy Davis, and Deputy District Attorney Emily Theresa Spear.

8—Retired Los Angeles Superior Court Judge Richard G. Kolostian died at the age of 86.

11—Div. Two of the Fourth District Court of Appeal declared that an appeal from the denial of an anti-SLAPP motion is not rendered moot where the plaintiff has filed an amended complaint.

14—Retired Los Angeles Superior Court Judge Steven D. Ogden, who spent his entire 16-year judicial career in the Antelope Valley, died. He was 74.

27—Gov. Edmund G. Brown Jr. appointed four persons to judgeships on the Los Angeles Superior Court. They are Los Angeles Deputy Public Defender Robert G. Chu; Los Angeles Superior Court Commissioner Maria Puente-Porras; former Munger Tolles & Olson attorney Gary D. Roberts; and Emily S. Garcia Uhrig, a professor at the University of the Pacific’s McGeorge School of Law.

29—The Ninth U.S. Circuit Court of Appeals affirmed a $41 million attorney fee award against the National Collegiate Athletic Association, plus $5.1 million in costs, in connection with an action in which former and current college football and basketball players established that the ban on them receiving money for publicity rights was an unlawful restraint of trade.

30—Sandy Kriegler, a jurist for 33 years, retired as a justice of this district’s Court of Appeal. He had been acting presiding justice of Div. Five since the death in May of last year of Paul Arthur Turner.

July

2—The California Supreme Court, in a split opinion, reversed a Court of Appeal decision upholding an order that required Yelp, Inc. to remove a negative review of a law firm, holding that federal immunity applies to a website that is a repository of views posted by third parties. The decision comes in a case where a woman, Ava Bird, left a one-star review of the Hassell Law Group on the popular website, expressing her displeasure with its representation in her personal injury action, advising: “[T]o save your case, STEER CLEAR OF THIS LAW FIRM!”

5—The State Bar Court Review Department relieved Los Angeles Deputy Public Defender Delia M. Metoyer from a Sept. 15 order by Hearing Judge Donald F. Miles that she be suspended from law practice for 30 days. But the department found, in an opinion by Review Judge W. Kearse McGill, that a public reproval is appropriate based on her disobedience to a court order. The department rejected Miles’s determination that Metoyer abandoned a client, Matiwos Ghebrehiwot, despite the view of Div. Four of this district’s Court of Appeal that “there is support” for the finding of abandonment by Los Angeles Superior Court Judge Elizabeth Hunter. In a July 27, 2016, opinion by then-Court of Appeal Presiding Justice Norman Epstein, the appeals court affirmed a $1,500 sanction imposed on the attorney by Hunter. The facts, as set forth in the opinion by Review Judge W. Kearse McGill, amplify upon, and to an extent slightly deviate from, those stated by Epstein and McGill. It was on Jan, 15, 2015, that Metoyer announced “ready” in what was expected to be a brief trial in a child molestation case; the case was sent to Hunter’s department; at the end of a conference in chambers, the deputy PD mentioned having an appointment the next morning for an MRI (based on having recently suffered a back ache). The judge told her to reschedule her appointment, and after the deputy became emotionally upset, Hunter consented to her using the private bathroom in her chambers to compose herself. Sneaking out through another courtroom, Metoyer fled to her office, with the judge, the prosecutor, three witnesses and her client waiting in the courtroom, and with prospective jurors sitting in the hallway. Despite an order from the judge, conveyed to her, she refused to return to the courtroom.

5—The California Supreme Court decided that a litigant who qualifies for a fee waiver is entitled have the Superior Court provide an official court reporter at a trial or hearing, even if that court generally requires parties to arrange for a private court reporter if they want a transcript. The result is compelled by Government Code §68086(b) which provides that the fee for a court reporter “shall be waived for a person who has been granted a fee waiver,” Chief Justice Tani G. Cantil-Sakauye said in an opinion for a unanimous court.

17—Michael P. Judge, who served as Los Angeles County public defender from 1994-2010, died.

19—Eric D. Miller of Perkins Coie’s Seattle office was nominated by President Donald Trump as a judge of the Ninth U.S. Court of Appeals.

20—Gov. Edmund Brown Jr. announced four appointments to posts in the Court of Appeal for this district: the elevation of Justice Nora Manella of Div. Four to the position as presiding justice of the division and elevation of three Los Angeles Superior Court judges to associate justice spots. Halim Dhanidina was chosen to fill a vacancy in Div. Three, Dorothy C. Kim was named to a seat in Division Five, and Maria E. Stratton was given a place in Div. Eight. Another Los Angeles Superior Court judge, Michael J. Raphael, was appointed to Division Two of the Fourth District Court of Appeal. All were confirmed Aug. 23…Miguel T. Espinoza an assistant U.S. attorney for the Central District of California, and Alison M. Mackenzie, a partner at Boies, Schiller, Flexner LLP in Los Angeles, were named by the governor to the Los Angeles Superior Court.

30—Hank M. Goldberg stepped down as a Los Angeles Superior Court judge.

August

1—Los Angeles Superior Court Judge Lloyd C. Loomis went into retirement.

3—The Court of Appeal for this district held that Carson Mayor Albert Robles must pay his own legal fees for his failed defense against the Los Angeles County District Attorney Office’s action to strip him of membership on the Water Replenishment District of Southern California Board of Directors based on the holding of both offices being incompatible.

13—It was announced that Los Angeles Superior Court Judge Sandra A. Thompson, a bench officer for 35 years who served as president of the National Association of Women Judges, had died, following a long illness.

15—Los Angeles Superior Court Judge Howard L. Halm retired after a 49-year career in law.

16—The Los Angeles County Board of Supervisors reported that it selected Ricardo Garcia, a supervising attorney in the San Diego County Public Defender’s Office, to be public defender here. He replaces Ronald L. Brown, who retired Dec. 31, 2016.

20—Los Angeles Superior Court Judge Mary Thornton House left the bench.

22—Norman Epstein, widely viewed as a preeminent legal scholar, retired as Court of Appeal presiding justice of this district’s Div. Four.

24—The California Supreme Court announced its appointment of Jason Lee, chief compliance officer for a Century City financial planning firm, as chair of the State Bar Board of Trustees (successor, under legislation effective Jan. 2, 2012, to the Board of Governors). Former Los Angeles County Bar Association President Alan Steinbrecher was chosen as vice chair. The board formerly elected the State Bar president, but that was changed by legislation enacted last year.

26—Paul W. Egly, who, as a Los Angeles Superior Court judge, gained national attention in 1978 by attempting to end segregation in Los Angeles city schools by ordering busing of about 85,000 students to schools outside the neighborhoods where they resided, died at the age of 97. Controversy over his ruling caused his judicial career to end before the case was over. He was up for reelection in 1982, and decided not to run. He told the MetNews on Jan. 16, 1981: “Why should I run? My pension is vested. What’s the use of going through the hassle?”

27—California Chief Justice Tani Cantil-Sakauye, reacting to recent arrests and detentions of suspected illegal aliens at courthouses, declared: “Continuing to make immigration arrests at state courts and especially in our courtrooms is disruptive, shortsighted, and counterproductive. It is damaging to community safety and disrespects the state court system.” On March 16, 2017, Cantil-Sakauye had said in a letter to the then-U.S. attorney general and then-head of Homeland Security: “Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws. Enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.”…U.S. Magistrate Judge Bridget Bade of the District Court for the District of Arizona received a Ninth U.S. Circuit Court of Appeals nomination.

28—Gov. Edmund Brown Jr. signed into law SB 10 which, effective October 2019, abolishes the money bail system, a move urged last year by Chief Justice Tani Cantil-Sakauye. Following a signing ceremony, Cantil-Sakauye issued a statement saying: “This is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair. It took a three-branch solution with Governor Brown, the Legislature led by Senator [Robert] Hertzberg and Assemblymember [Rob] Bonta, and the Judicial Council’s Administrative Director Martin Hoshino working with judges in my Pretrial Detention Work Group to bring about a fair and just solution for all Californians.”

29—Los Angeles Superior Court Judge Mitchell Beckloff granted a petition for a writ of mandate ordering Los Angeles County Registrar-Recorder Dean Logan to disallow “Prosecuting Attorney, City of Los Angeles” as the ballot designation for Los Angeles Deputy City Attorney Patricia Hunter, a candidate for a Superior Court judgeship in the county’s Nov. 6 run-off election. He acted in light of legislation, effective Jan. 1, requiring use of actual job titles by government lawyers. Beckloff rejected Hunter’s cross-petition which argued that if she couldn’t use the words “Prosecuting Attorney,” her opponent, Sydne Jane Michel, should be barred from using the description “Redondo Beach Senior Deputy City Prosecutor.” In her case, Beckloff said, that’s the actual title of her office. Beckloff also granted a writ sought by Los Angeles Deputy District Attorney Javier Perez challenging real estate broker/attorney Michael Ribons’s chosen designation as “Arbitrator/Lawyer.” He found that Ribons’s occasional volunteer activity as an arbitrator did not amount to a “principal profession, vocation, or occupation” as required by Elections Code §13107, leaving him with the label of “Lawyer.”

30—Los Angeles Superior Court Judge Robert Hess retired.

September

4—The First District Court of Appeal declared that a man serving time for using explosives to steal from an ATM in the middle of the night might be entitled to resentencing because such conduct can qualify as “shoplifting” under Proposition 47. That 2014 ballot measure allows defendants who were sentenced for second degree burglary, a felony, to petition, under some circumstances, to have their sentences recalled, and to be resentenced for shoplifting, a misdemeanor. For sentence-lowering purposes, “shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).”

7—The Fourth District Court of Appeal reinstated a lawsuit that claims the front label of “One A Day”-brand gummy vitamins is misleading because the daily serving is actually two gummies.

11—Los Angeles Superior Court Judge Rita Miller left the bench to become a private judge.

13—The Court of Appeal for this district held that the California Medical Board has standing to appeal the vacating of a medical malpractice judgment entered six years earlier against a man who was then a neurosurgeon, but whose license has since been revoked.

14—An attorney who filed a probate petition for a client in 1992, and withdrew as counsel in 2007 after 15 years of virtually no activity in the case, had standing after his client’s petition was dismissed and a new petition was filed by another beneficiary in 2014, to claim a portion of the statutory attorney fees, the First District Court of Appeal held. Under a statute and a court rule, the court declared, there was no time limit on the lawyer seeking fees….Judge Michael K. Kellogg retired from the Los Angeles Superior Court.

21—An attorney’s violation of Rule 3-300 of the Rules of Professional Conduct—which bars business transactions with a client absent a written explanation of the risks, a suggestion that independent legal advice be sought, and securing the client’s written assent—can form the basis of an action under the Unfair Competition Law, the First District Court of Appeal decided.

27—Gov. Edmund Brown Jr. vetoed a bill that would have provided blanket immunity from the civil arrest of anyone at a courthouse. The bill, SB 349, was authored by Sen. Ricardo Lara, D-Bell Gardens. Brown said in his veto message: “I support the underlying intent of this measure, but I am concerned that it may have unintended consequences. Last year I signed SB 54 (De Leon), a provision of which tasked the Attorney General with publishing model policies limiting assistance with immigration enforcement to the fullest extent possible at courthouses and other public facilities to ensure that they remain safe and accessible to all California residents, regardless of immigration status. I believe the prudent path is to allow for that guidance to be released before enacting new laws in this area.” The bill was generally perceived as stemming from concerns, expressed by Chief Justice Tani Cantil-Sakauye and others, over arrests of illegal aliens at courthouses by Immigration and Customs Enforcement officers.

October

3—The Los Angeles Superior Court announced that Judge Eric C. Taylor was elected by judges as assistant presiding judge for 2019 and 2020. If tradition is followed, he will assume a two-year term as presiding judge in 2021. He defeated Los Angeles Superior Court Judge Scott M. Gordon, who supervises the criminal courts, and was widely expected to win. Taylor served as president of the California Judges Association in 2003-2004 and 2015-16.

5—The Court of Appeal for this district vacated a sentence because the defendant was not allowed to be personally present at the sentencing and disqualified Los Angeles Superior Court Judge Jose I. Sandoval from handling further proceedings based on his three-year delay in resentencing the man following a 2013 remand. Acting Presiding Justice Victoria G. Chaney of Div. One wrote: “The three-year delay between remittitur and resentencing here was unconscionable. The record does not disclose the cause of the vast majority of the more-than-20 continuances. But unless the trial court had already determined when it first started continuing resentencing in this case that it was going to sentence Smith to more than the length of the continuances (taken together with whatever custody and other credits Smith was entitled to), then the delay had the very real possibility of implicating Smith’s liberty rights. We will grant Smith’s request to be resentenced before a different trial judge.”

9—Acceptance of a plaintiff’s statutory offer of compromise by the defendant’s lawyer did not create an enforceable settlement because the parties had not signed an agreement, the Court of Appeal for this district held, reversing a judgment granted by Los Angeles Superior Court Judge Holly J. Fujie….Los Angeles Superior Court Judge Barbara Ann Meier, in setting aside a default judgment, properly imposed a condition that the defendant reimburse the plaintiff for attorney fees and costs but, once that condition was appealed, lacked power to reinstate the judgment based on the defendant’s non-compliance with the challenged order, the Court of Appeal for this district decided.

11—Gov. Edmund G. Brown Jr., with his term drawing to a close, made 15 appointments to the Los Angeles Superior Court, three of the appointees being persons who were elected to the bench in the June primary. Those three were State Bar Court Judge Maria Lucy Armendariz, Los Angeles Superior Court Commissioner Danielle R.A. Gibbons, and Principal Los Angeles Deputy County Counsel Rene C. Gilbertson. Brown bestowed judgeships on four Los Angeles Superior Court commissioners in addition to Gibbons: Diego H. Edber, Brenda J. Penny, Michelle S. Short, and Timothy M. Weiner. He also appointed five government lawyers: Assistant U.S. Attorney Jill T. Feeney of the Central District of California, Deputy District Attorneys Carolina V. Lugo and Robert Serna, Deputy Alternate Public Defender Mario Barrera, and Deputy Public Defender Michael R. Powell. Private practitioners placed on the bench were Craig S. Barnes, a partner at Clyde and Co, and Sabina A. Helton, a shareholder at Buchalter APC. Also chosen were Anne K. Richardson, director of the Consumer Law Project at Public Counsel. All of the 15 are Democrats, except one: Serna, a Republican.

13—President Donald Trump nominated three persons to seats on the U.S. District Court for the Central District of California. They are Los Angeles Superior Court Judge Stanley Blumenfeld, Jeremy B. Rosen of Horvitz & Levy, and Mark C. Scarsi of Milbank, Tweed, Hadley & McCloy.

15—Rebuilding the Los Angeles County Bar Association’s rapidly dwindling membership is a key LACBA goal, President Brian S. Kabateck told trustees, section and committee chairs, members of the Council of Sections—which spearheaded efforts to put reformers in control of the organization—and others who attended an upbeat ad hoc meeting. Kabateck put forth the cold, hard facts as to the association’s deterioration over the past decade, but described initiatives aimed at bringing about a rebound. Kabateck said there were 18,500 members in 2010 and roughly 9,250 members now (with a spokesperson saying the following day that the precise up-to-date figure is 10,175.) The figures, showing the drop in membership over recent years, contradicted higher ones proclaimed three years earlier during the controversial presidency of Paul Kiesel….State Bar Court Hearing Judge Yvette D. Roland granted the former Los Angeles City Attorney Carmen Trutanich’s motion for a dismissal of disciplinary proceedings against him based on the length of time—32 years—since the alleged misconduct occurred. She based her ruling on the unfairness to Trutanich in having to defend himself against charges from that long ago. It was not until March 29, 2016, that U.S. District Judge David O. Carter of the Central District of California, following an evidentiary hearing, granted a petition for a writ of habeas corpus to Barry Williams, a gang leader whose first degree murder conviction was secured by Trutanich, as a deputy district attorney, in 1986. “Trutanich’s failure at trial,” Carter found, to provide the true name of a witness and to correct testimony he knew to be false, “was deeply troubling.” The judge commented if Trutanich had acted “in accordance with his constitutional duty, the jury likely would have had rejected the credibility of the prosecution’s entire case against Petitioner.” In the aftermath of that decision, the State Bar launched an investigation. The initial notice of charges against Trutanich was dated Feb. 9, 2017, and an amended notice was filed July 10, 2017.

24—Los Angeles Superior Court Judge Ernest M. Hiroshige drew a public admonishment by the Commission on Judicial Performance for delegating to his court clerk the responsibility for conducting case management conferences. “The judge has continued to engage in this practice despite the private admonishment he received in 2010 addressing, in part, such conduct,” the CJP’s “Statement of Facts and Reasons” set forth. It added: “The judge’s prior discipline was a significant factor in the commission’s decision to issue this public admonishment.” The commission’s annual report for 2010 said of the private admonishment: “A judge delegated responsibility to conduct case management conferences to the judge’s clerk. On one occasion, the judge used stationary imprinted with the judge’s official title and court address to advance the judge’s personal interests. The judge also used the judge’s official title and court address on the judge’s personal checks.”

26—Gov. Jerry Brown announced his appointment of two persons to the Los Angeles Superior Court: a commissioner of that court, Cherol J. Nellon, and Jana M. Seng, a head deputy at the Los Angeles County Alternate Public Defender’s Office. He also elevated Los Angeles Superior Court Judge Frank J. Menetrez to Div. Two of the Fourth District Court of Appeal.

29—The governor announced the appointment to the Los Angeles Superior Court of Los Angeles County Deputy Public Defender Scott R. Herin, Sidley & Austin attorney Michael C. Kelley, and Los Angeles Superior Court managing research attorney Teresa R. McGonigle.

30—Actress Nicollette Sheridan lost her appeal of a summary judgment rejecting her claim that the company behind ABC’s hit television show “Desperate Housewives” killed off her character in retaliation for her allegation that showrunner Marc Cherry hit her in the head, the Court of Appeal this district’s Court of Appeal held.

31—The Evidence Code section that bars a judicial officer from testifying in a subsequent “civil proceeding” as to what was said or done in a matter before him or her does not preclude testimony in a later administrative proceeding, the Third District Court of Appeal declared.

November

4—U.S. District Court Judge Manuel Real of the Central District of California, 94, assumed senior status.

6—Run-offs for four Los Angeles Superior Court open seats were decided by voters. The final results including the candidates, their ballot designations, the amounts their committees spent on the election efforts in 2018 (through Oct 20), and the percentage of votes they attracted appear below with the name of the victor in each race listed first. Office No. 4: A. Verónica Sauceda, “Superior Court Commissioner, County of Los Angeles,” $46,444, 59.49%; Alfred A. Coletta, “Deputy District Attorney, County of Los Angeles,” $323,107, 40.51%. Office No. 16: Patricia (Patti) Hunter, “Deputy City Attorney, City of Los Angeles,” $53,333, 61.83%; Sydne Jane Michel, “Senior Deputy City Prosecutor, City of Redondo Beach,” $409,272, 38.17%. Office No. 60: Tony J. Cho, “Deputy District Attorney, County of Los Angeles,” $273,547, 55.60%; Holly L. Hancock, “Attorney at Law,” $46,444, 44.40%. Office No. 113: Javier Perez, “Deputy District Attorney, County of Los Angeles,” $72,213, 68.56%; Michael P. Ribons, “Lawyer,” $139,022, 31.44%.

7—The Court of Appeal for this district declared that anti-SLAPP motions may be filed only in unlimited jurisdiction civil cases. Div. Three, in an opinion by Presiding Justice Lee Edmon, granted a writ of mandate ordering the Appellate Division of the Los Angeles Superior Court to vacate a decision in which it directed that a special motion to strike, pursuant to Code of Civil Procedure §425.16, be acted upon in a limited jurisdiction civil case.

13—President Donald Trump made three nominations to the Ninth U.S. Circuit Court of Appeals: Daniel P. Collins, a partner at the Los Angeles firm of Munger, Tolles & Olson; Patrick J. Bumatay, an assistant U.S. attorney for the Southern District of California; and Kenneth Kiyul Lee, of the Los Angeles firm of Jenner & Block LLP.

14—Los Angeles Superior Court Judge Benny C. Osorio retired on the 10 year anniversary of his appointment to the bench.

16—Only 40.7 percent of those taking the July 2018 State Bar exam passed it, it was announced. Results showed that 3,284 of the 8,071 applicants were successful—an 8.3 percent decrease from the rate of those passing the July 2017 exam. The success rate this year for those who had not previously flunked the exam was 55 percent; last year, it was 63.2 percent.

19—The Court of Appeal for this district reversed an order granting an anti-SLAPP motion after the plaintiff had dismissed its complaint, holding that the trial court was, under the circumstances, powerless to act on the motion and award attorney fees. “[I]n the absence of a pending motion for attorney’s fees set for hearing,” Justice Gail Feuer of Div. Seven said in an unpublished opinion, “the trial court lacked jurisdiction to address the merits of the special motion to strike.”

27—All vacancies on the Court of Appeal for this district became filled, with Justice Laurence D. Rubin being elevated to the post of presiding justice of Div. Five and Los Angeles Superior Court Judges Brian S. Currey and John S. Wiley Jr. being chosen for seat as associate justices. The appointments were subject to Commission on Judicial Appointments approval, which came Dec. 21….A group of doctors that won an injunction against enforcement of the state’s recently-enacted law legalizing euthanasia did not adequately allege standing to bring their action, the Fourth District Court of Appeal held, ordering the trial court to vacate its judgment ruling the law unconstitutional….A woman who, after ingesting cocaine and downing five to seven alcoholic drinks, came to a USC fraternity party, continued drinking, and, while on a makeshift dance platform was knocked off and hurt, cannot gain damages from the university under a “negligent undertaking” theory that was based its patrol officers failing to shut down the shindig, the Court of Appeal for this district decided.

29—Gov. Jerry Brown appointed seven persons to the Los Angeles Superior Court. They are: Daniel M. Crowley, a partner at Booth, Mitchel and Strange LLP; Alexander C.D. Giza, a Hueston Hennigan LLP partner; Mary E. Kelly, an administrative law judge with the Unemployment Insurance Appeals Board; Jeffrey S. Cohen-Laurie, a Los Angeles deputy alternate public defender; David K. Reinert, a Los Angeles deputy district attorney; Holly A. Thomas, deputy director of executive programs at the California Department of Fair Employment and Housing; Jessica A. Uzcategui, a partner at Sacks, Glazier, Franklin and Lodise. Reinert in 2016 was vice president of the Los Angeles County Bar Association and was chosen by the organization’s Nominating Committee to move up the ladder to become senior vice president, but a reform movement that year put up a rival slate of candidates; Reinert was defeated by Deputy City Attorney Philip H. Lam by a vote of 1,284 to 436….Div. Two of the Fourth District Court of Appeal held that two documents from an investigation into allegations that a former high school girls’ volleyball coach bullied his players cannot be released under the California Public Records Act because the coach’s privacy interests outweigh the public’s interest in their disclosure. The former Ayala High School girls volleyball coach, Bernie Wendling, was investigated by the Chino Valley Unified School District in San Bernardino County after complaints were made that he had bullied his students by publicly yelling at them. He is referred to in the opinion as a “Doe” despite news coverage identifying him by name. The Court of Appeal on Dec. 20 opted to order that the case be published, contrary to its initial order; Wendling remained identified as “Doe.”

December

3—California’s irrebuttable presumption that factual determinations made in another state’s attorney disciplinary proceeding are correct does not, on its face, contravene due process, the Ninth U.S. Circuit Court of Appeals held. Under the California statute, a final order of discipline in a sister jurisdiction “shall be conclusive evidence that the member is culpable of professional misconduct in this state” and the only defenses are that the conduct that was found would not be disciplinable here or that the out-of-state proceedings “lacked fundamental constitutional protection.”

4—The Ninth U.S. Circuit Court of Appeals struck down a portion of a federal penal statute that prohibits bringing persons into the United States illegally or causing them to remain here, holding that the law is overbroad and infringes on freedom of speech. The provision declares that anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is guilty of a felony. The opinion quotes an amicus brief as pointing out that “a loving grandmother who urges her grandson to overstay his visa” would be a criminal act, under the law.

5—The Court of Appeal for this district stripped a plastic surgeon and his professional corporation of a $1.9 million default judgment because the summons was published in a newspaper other than the one specified in the Superior Court’s order for publication. That deviation, Acting Presiding Justice Laurence D. Rubin of Div. Eight said, nullified the service by publication, rendering the judgment void. The order for publication of a summons designated the Orange County Register; the newspaper’s staff proceeded to cause publication, instead, in the Laguna News-Post, one of the Register’s community weeklies….The Ninth U.S. Circuit Court of Appeals reinstated a civil rights action against District Court Judge Otis Wright II of the Central District of California in connection with an alleged incident in his courtroom, as well as ensuing events. The plaintiff, attorney Caree Harper, said in her complaint that at a status conference before Wright on March 2, 2015, this occurred: “Plaintiff…was unexpectedly berated and repeatedly asked questions that triggered attorney/client privilege objections. Plaintiff requested counsel and requested that she be allowed to leave. Both requests were denied. Plaintiff alerted the court that she was having chest pains, and his response was to make hand gestures and that triggered multiple US Marshals and blue jackets to forcefully and physically seized Plaintiff. Plaintiff screamed in pain as the group of 6-8 officers violently wrenched her arms behind her back. At this point the Defendant Judge stood from the bench, pointed, clapped and laughed at the Plaintiff. Plaintiff yelled out about the use of force being administered as one short smirking…male deputy pointed a Taser in the Plaintiffs face. Plaintiff had previously cleared security and at no time did she present a physical threat to anyone. Plaintiff was denied immediate medical care even after advising the sadistic judge and aggressive deputies of her medical conditions and chest pains.” District Court Judge Gary Klausner on June 20, 2017 dismissed Harper’s action, without leave to amend, based on untimeliness of the service of process; the Ninth Circuit, in a memorandum opinion reversed Klausner, saying that “applicable factors weigh against dismissal.”

6—When Code of Civil Procedure §128.5 was resuscitated in 2014, it incorporated the safe harbor provision of §128.7, Div. One of the Fourth District Court of Appeal held, repudiating its contrary 2016 opinion. The change of mind was based on a clarifying amendment last year and the persuasive force of a Jan. 31 opinion by this district’s Div. Seven.

7—Gov. Jerry Brown appointed three persons to the Los Angeles Superior Court, all of whom will fill vacancies created by commissioner positions being converted to judgeships in October. They are: Joseph J. Burghardt, a deputy public defender; Lisa S. Tamashiro Coen, a Los Angeles deputy district attorney; and Anne Hwang, a chief deputy federal public defender for the Central District of California.

11—The Ninth U.S. Circuit Court of Appeals reversed a district court judge’s sua sponte dismissal of a putative class action, with prejudice, against the makers of the Nivea brand of cosmetics, holding that the plaintiff has standing and adequately pled the $5 million damages necessary to establish jurisdiction under the Class Action Fairness Act. The plaintiff sued two American entities related to German skin-care company Beiersdorf, alleging that the companies’ NIVEA Skin Firming Hydration Body Lotion—which represents on the bottle that it “Improves Skin’s Firmness in as little as 2 weeks” and contains a substance called coenzyme Q10 (“CoQ10”)—does not, in fact improve skin firmness. The lotion, she maintains, contains only negligible levels of CoQ10.

13—The Commission on Judicial Performance admonished Los Angeles Superior Court Judge Carol Williams Elswick for improper and discourteous conduct in several cases between 2013 and 2016. It said in its written decision and order: “Judge Elswick has engaged in numerous incidents of misconduct over a three-year period. In the commission’s view, the judge’s misconduct involving abuse of authority and disregard of the defendants’ fundamental rights, resulting in deprivation of liberty, is particularly serious.”

14—All Los Angeles Superior Court judgeships became filled, with the appointment of two commissioners of that court, James E. Blancarte and Timothy R. Martella. Two vacancies were to occur, however, with the Dec. 21 confirmation of Judges Brian Currey and John Shepard Wiley to this district’s Court of Appeal.

20—The requirement in the Rules of Professional Conduct that a client’s waiver of a conflict be in writing does not bar a court from declining to disqualify a law firm based on a waiver implied from conduct, the Fifth District Court of Appeal held, affirming an order that permits Best, Best & Krieger, LLP to remain as counsel in a case it has been involved in for 14 years.

26—The Ninth U.S. Circuit Court of Appeals held that a plaintiff in an action under consumer-protection laws need not make any higher showing than a plaintiff in any other type of case to defeat the defendants’ motion for summary judgment, rejecting a contrary view of some district courts in the circuit, as well as the Fourth Circuit Court of Appeals.