Thursday, December 31, 2019
Page 3
2020 IN REVIEW
END OF THE YEAR:
CJP Orders Removal of Court of Appeal Justice Johnson…Brazile Issues Series of Orders Prompted by COVID-19 Pandemic…Gascón Unseats Lacey as District Attorney, Issues Directives Aimed at Shorter Sentences
January
9—President Donald Trump re-nominated three previous nominees to the U.S. District Court for the Central District of California who were not confirmed by the Senate by the end of 2019. They are Mark C. Scarsi of Milbank, Tweed, Hadley & McCloy and Los Angeles Superior Court Judge Stanley Blumenfeld, who were confirmed on Sept. 15, and Los Angeles Superior Court Judge Fernando Aenlle-Rocha, who was confirmed on Dec. 20
29—The Court of Appeal for this district affirmed a 2018 Los Angeles Superior Court decision granting the quo warranto petition of then-Los Angeles County District Attorney Jackie Lacey to have Carson Mayor Albert Robles yanked from the Water Replenishment District of Southern California based on duties of the two offices being incompatible. The opinion by Justice Lamar Baker of Div. Seven affirmed a decision by Judge James Chalfant….The First District Court of Appeal rejected the contention of California Attorney General Xavier Becerra that the state Department of Justice need not provide police records, pursuant to an amendment to the California Public Records Act that went into effect Jan. 1, 2019, where those records are in its possession but were generated by another agency. The court denied a writ of mandate sought by Becerra to overturn an order by the San Francisco Superior Court to hand over records sought by the First Amendment Coalition and the Bay Area’s public television station, KQED. Under the amendment, any record relating to a law enforcement officer’s discharge of a firearm, use of force resulting in great bodily injury, or—where an allegation was sustained—a sexual assault on a member of the public or dishonesty is a public record.
February
58—Gov. Gavin Newsom took the rare action of granting a posthumous pardon, with the action taking place 67 years after the conviction in Pasadena Municipal Court of civil rights leader Bayard Rustin for “lewd vagrancy.” Rustin had been arrested in Pasadena on Jan. 21, 1953, along with two other men engaged in sexual conduct in a parked car. He was sentenced the following day by Pasadena Municipal Court Judge H. Burton Noble (later a judge of the Los Angeles Superior Court) to 60 days in jail, and was actually incarcerated for 50 days.
13—President Donald Trump renominated John W. Holcomb, a partner in Greenberg Gross in Costa Mesa, to the U.S. District Court for the Central District of California, and he was confirmed by the Senate on Sept. 15. The president also nominated the following persons: Jenner & Block’s former Los Angeles managing partner Rick Lloyd Richmond, U.S. Magistrate Judge Steve Kim of the Central District of California, and Los Angeles Superior Court Judge Sandy Leal. No action has been taken during the congressional session on those nominations, meaning they are dead.
15—Los Angeles Superior Court Judges Richard Romero and Daniel P. Ramirez retired from the bench.
19—Katherine Mader ended her service as a judge of the Los Angeles Superior Court.
26—YouTube is a private forum that may ban or limit access to videos, as it pleases, the Ninth U.S. Circuit Court of Appeals held, affirming the dismissal of an action brought by conservative radio-talk-show host Dennis Prager’s “Prager University.” The “university” does not hold classes; rather, the San Fernando Valley-based nonprofit produces videos featuring lectures providing conservative viewpoints. PragerU brought suit in 2017 claiming that YouTube blocked viewing of 37 of its videos when the “restricted mode” was enabled—as by parents wishing to control content available to their children or employers wanting to limit surfing by employees on company time.
March
1—Judge Abe Khan retired from his Los Angeles Superior Court post.
3—Winning election to the Los Angeles Superior Court were Deputy Attorney General Linda Sun and Deputy District Attorneys Emily Cole, Sherry L. Powell, Kenneth Fuller, Adan Montalban, and Manuel A. Almada. All had been endorsed by the METNEWS.
6—Leslie A. Swain ended her service on the Los Angeles Superior Court.
9—The Ninth U.S. Circuit Court of Appeals, sitting en banc, reinstated a judgment, pursuant to a jury verdict, in favor of the British rock band Led Zeppelin in an action claiming that the opening riff to its 1971 hit “Stairway to Heaven” infringes on a tune to which the band’s songwriters had access. Circuit Judge M. Margaret McKeown wrote the majority’s opinion, in which five judges joined in full and three concurred in part. A remand for a new trial had been ordered on Sept. 28, 2018, by a three-judge panel which, in an opinion by Judge Richard Paez, found prejudicial instructional error; a rehearing en banc was ordered on June 10, 2019, pursuant to a majority vote of non-recused active judges.
14—Los Angeles Superior Court Presiding Judge Kevin Brazile issued the first in a continuing series of emergency orders in response to the COVID-19 pandemic, ordering that no jurors be summoned for civil or criminal trials for 30 days and advising judges to exercise their discretion as to continuing trials in progress or granting mistrials….Elizabeth Allen White retired as a judge of the Los Angeles Superior Court.
16—Brazile advised members of his court: “By the end of today, Chief Justice Tani Cantil-Sakauye should authorize me to take emergency measures to protect the public, court users, our staff, and ourselves. Pursuant in part to that authority, I am hereby announcing a court closure, of each and every courthouse in our County, effective tomorrow, March 17, 2020. These courthouse closures will be for three (3) days, from March 17-19, 2020.”
17—Brazile declared that all civil and criminal trials in the county would be halted through April 16 in light of the coronavirus epidemic, though some courtrooms would be open to handle such matters as temporary restraining orders, preliminary hearings, and sentencing….Div. Seven of the Court of Appeal for this district directed the court’s clerk to send a copy of its opinion in a case to the State Bar for possible disciplinary action against the appellant’s attorney who filed a brief at a time when his law license was not in effect—but it was a certainty that no proceedings would be brought against the man, Owen T. Mascott, because he was disbarred on Nov. 30. Justice Laurie Zelon wrote the unpublished opinion.
20—Retired Los Angeles Superior Court Judge Burt Pines and his wife, Karen Pines, were extricated from Morocco where they were stranded with other tourists after the nation shut down its airports in light of the pandemic. Through arrangement by the U.S. State Department, British jets were permitted to land and transport tourists to other locales. In a phone conversation, he said that when he and his wife arrived in Morocco on March 11, “there were no travel advisories.” Events moved quickly over the next week, he said, and the shutting down of the airports to international flights “without any advance notice” was “a total surprise.”
23—California Chief Justice Tani Cantil-Sakauye suspended all jury trials in the state for 60 days and barred the commencement of civil or criminal trials for that period, with the proviso that superior courts could conduct trials earlier upon finding of good cause shown or through use of remote technology.
24—A lawyer cannot collect an agreed-upon referral fee from another attorney where the client merely acknowledged receipt of a letter telling him of the arrangement and affirming that he understood, but without his expressing explicit consent, the Third District Court of Appeal held.
April
8—An Orange Superior Court judge, acting on a pre-trial motion by an in-custody defendant that he not be shackled while in a court holding facility, had no authority to make a court-wide ruling that no accused be placed in physical restraints in such a facility without a showing by the District Attorney’s Office of a particularized need, Div. One of the Fourth District Court of Appeal declared. The panel granted a petition of mandate sought by the County of Orange challenging the Nov. 18 order by Judge Kathleen E. Roberts.
9—All Los Angeles Superior Court dependency proceedings are being conducted via videoconferencing, Brazile said in an update on the court’s response to the coronavirus epidemic. The advisement came in a press release which also related that following Brazile’s March 17 general order scaling back court operations, more than 75 percent of the court’s 600 courtrooms have closed, with proceedings continuing through a combination of audio and video appearances in many of the departments, with reliance on remote technology continually expanding. It said that to the extent the law allows it, delinquency hearings are being held remotely in all locations where such matters are heard.
15—Los Angeles Superior Court Judge Richard E. Rico retired.
23—The Court of Appeal for this district declared that “a series of grave errors” on the part of Los Angeles Superior Court Judge Michael Linfield in a gender discrimination case, evincing his bias in favor of the plaintiff, requires the reversal of a $13 million judgment against The Regents of the University of California. Justice Maria Stratton of Div. Eight wrote the opinion. It strips Dr. Lauren Pinder-Brown—now a professor in the Division of Hematology/Oncology of the UC Irvine Medical Center Department of Medicine—of a court victory based on alleged mistreatment while a professor of medicine at UCLA. It was a close case, Stratton said, and it can’t be said that the judge’s rulings and comments to the jury were harmless.
28—Three government lawyers were appointed to the Los Angeles Superior Court. They were Michelle E. DeCasas, a deputy Los Angeles city attorney; Lisa R. Washington, a deputy Los Angeles County public defender; and John C. Weller, a deputy Los Angeles district attorney….Superior Court research attorneys are state employees, exempt from minimum continuing legal education requirements, the First District Court of Appeal held, rejecting the contrary position of the State Bar.
May
4—A judgment may be amended to include an alter ego as a defendant by means of a separate action, Div. Six of this district’s Court of Appeal declared. Presiding Justice Arthur Gilbert set forth at the outset of brief opinion: “In petitioning the trial court to amend a judgment to add an alter ego defendant, must the plaintiff proceed by a motion in the original action, or may plaintiff proceed by complaint in an independent action on the judgment? Either procedure will do.”
5—The Court of Appeal for this district imposed a $1,100 sanction on an attorney who, in his opening brief, proclaimed that the rule against citing decisions that are not certified for publication is unconstitutional, then proceeded to cite such a case, and cited another one in his reply brief. Justice Lamar Baker of Div. Five wrote the unpublished opinion which imposed the sanction on Pasadena attorney Meir J. Westreich.
8—The results of the February State Bar exam showed the lowest passage rate since 1951: a mere 26.8 percent. Only 1,128 of the 4,205 applicants passed the exam, it was announced.
14—The Commission on Judicial Performance publicly admonished Sacramento Superior Court Judge Matthew J. Gary, pursuant to a stipulation, based on various breaches of ethics committed in a single family law case in which he became personally embroiled and made improper remarks. The judge had received discipline twice before in family law matters.
19—Div. One of the Fourth District Court of Appeal imposed a $15,000 sanction on a lawyer who handled an appeal from an action against the Mormon Church which the San Diego Superior Court had dismissed as being of a crackpot nature. Presiding Justice Judith McConnell wrote the opinion which was not certified for publication. She said: “The notion that the Mormon Church, with the aid of dozens of codefendants, including prostitutes, police officers, and judicial officers, perpetrated a wide-ranging scheme of violence, intimidation, manipulation of the judicial system, ritualistic curses, sleep deprivation, romantic sabotage, and the theft of Brown’s spiritual power—all based on Brown’s opposition to Mormonism—falls, in our view, decidedly outside the realm of possibility. These allegations, and Brown’s defense of them on appeal, are so frivolous to the point of absurdity.”
20—The 21-day “safe harbor” provision that’s been added to Code of Civil Procedure §128.5, a sanction statute, does not apply where attorney fees are sought in opposition to an anti-SLAPP motion, Div. Two of the Fourth District Court of Appeal held in an opinion which it vacated, without explanation, the next day.
22—Charges of misappropriating public funds, lingering for nearly eight years against former Los Angeles County Assessor John Noguez, were torpedoed by the Court of Appeal for this district. Div. Eight, in an opinion by Presiding Justice Tricia Bigelow, granted a petition for a writ of mandate ordering that charges against the former office-holder be dropped based on information not having been filed within 15 days of the Superior Court’s holding order, as required by two Penal Code sections. However, the opinion notes: “We conclude petitioners are entitled to the dismissal they seek, which, we note, is not a bar to another prosecution for the same felony offenses.” Noguez was arrested on Oct. 17, 2012, on 44 counts of conspiracy, bribery and corruption, in connection with property tax rates being lower for contributors to his 2010 election campaign. Charges were refiled July 27.
June
1—Cormac J. Carney became chief judge of the U.S. District Court for the Central District of California, succeeding Judge Virginia A. Phillips, who served as chief judge since July 1, 2016. She resumed her role as an active judge in the district’s Western Division, in Los Angeles.
2—The Commission on Judicial Performance acted to remove Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One from office based on repeated acts of sexual harassment and other improprieties that demeaned the office, with the jurist vowing to continue his fight by calling on the California Supreme Court to keep him in office. The disciplinary body said in a 111-page decision and order that it places credence in the recitations by the chief witness against Johnson during a 17-day hearing—Justice Victoria Chaney, a member of the same division as Johnson—and disbelieves him. “Rather than take responsibility for his offensive behavior, he maligned the victims, including his colleague Justice Chaney, and accused them of testifying falsely,” the CJP said of Johnson. “But it is Justice Johnson whom the masters found, and we find, testified untruthfully in many instances.” Chaney testified as to instances of unwanted touching by Johnson and inappropriate comments to her of a sexual nature. She told of him entreating her to have an affair with him (both are married) and, on one occasion, forcing his way into her hotel room when both were in Reno attending the National Judicial College.
4—Brazile ordered six courthouses, including the Stanley Mosk Courthouse in downtown Los Angeles, closed for the rest of the day in light of protests. Also closed were Long Beach’s Governor George Deukmejian Courthouses and the facilities in Pasadena, Hollywood, and Inglewood (both the main courthouse and the Juvenile Court building across the street). Protesters were reacting to the May 25 killing in Minneapolis of George Floyd, a 46-year-old out-of-work bouncer, by police officer Derek Chauvin, who was charged with murder.
10—Suspended lawyer Lenore Albert scored a partial victory in her battle against the State Bar of California, with the Ninth U.S. Circuit Court of Appeals holding that reinstatement of her bar membership cannot be conditioned on her payment of $5,738 in discovery sanctions, a debt dischargeable in bankruptcy—but the court rejected her contention that the cost of disciplinary proceeding against her—$18,714—is also dischargeable.
14—Los Angeles attorney Michael J. Avenatti was convicted in the U.S. District Court for the Southern District of New York on attempted extortion and wire fraud counts. In light of the adjudication that he attempted to pry nearly $25 million from Nike by threatening to expose misconduct by the sportswear giant in the recruitment of college basketball players if it did not pay—and the prospect of a sentence of 40 years or more in prison—State Bar proceedings against him are relegated to little significance. It now looms as a virtual certainty that he will ultimately be disbarred in California. Pending is an unrelated proceeding in the U.S. District Court for the Southern District of New York in which Avenatti, a one-time presidential candidate, is charged with allegedly cheating former client Stormy Daniels, out of $300,000, an advance to Daniels, a porn star, in connection with her book, “Full Disclosure.” Avenatti allegedly forged her signature on a letter to her literary agent, directing that payments be sent to a bank account he controlled.
15—Div. Four of this district’s Court of Appeal voiced its agreement with Div. Eight that a party prevailing at trial may be entitled to the costs of preparing demonstrative aids that are not shown to the jury, disagreeing with the contrary view of Div. Seven. Justice Brian S. Currey authored Div. Four’s opinion.…The Court of Appeal for this district affirmed a $1.9 million default judgment, holding that Los Angeles Superior Court Judge Michael Linfield properly denied a motion for relief from default because the appellant failed to back up his allegation that there was a deficiency in the service. It counseled that a party is handicapped on appeal where services of a court reporter were not engaged. “When appreciable sums are in play, it is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid,” Justice John Shepard Wiley of Div. Eight wrote. “We publish this opinion in part to discourage misplaced thrift.”…Los Angeles Superior Court Judges Michael Cowell and Steven P. Sanora retired.
19—The Ninth U.S. Circuit Court of Appeals affirmed a summary judgment in favor of IMDb.com barring enforcement of a California statute which mandates that an entertainment-oriented subscription-based website must delete reference to a performer’s age, upon demand and also excise it from any related publicly accessible website. The appeals court said the statute is specifically aimed at IMDbPro—a for-pay service—and its progenitor, the Internet Movie Database (“IMDb”) which is free to visitors and has been “ranked as the 54th most visited website in the world.” Circuit Judge Bridget S. Bade wrote for a three-judge panel in declaring: “Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional. Here, we address content-based restrictions on speech and hold that AB 1687 is facially unconstitutional because it does not survive First Amendment scrutiny.”
23—Div. Three of the Fourth District Court of Appeal branded a sentence an abuse of discretion and reversed the judgment, expressing disgust that a man who committed a hate crime and faced a mandatory prison sentence of 25 years to life, as a third-strike defendant, plus 13 years based on enhancements, was let off with a five-year term after the judge struck a prior. “[T]his is not a close call,” Acting Presiding Justice William W. Bedsworth said in an opinion. The matter was remanded to the Orange Superior Court where the defendant, whose body bears a number of tattoos in the form of swastikas and white supremacist symbols, will have an opportunity to withdraw his guilty plea to commission of a hate crime with “the present ability to commit a violent injury” or cause “actual physical injury.” That plea was rendered after Judge Roger B. Robbins offered him a plea deal, over the vehement objection of the District Attorney’s Office.
25—A 2016 action brought by the then-district attorney of Orange County under the Unfair Competition Law, in which a conspiracy among pharmaceutical companies to delay the availability of a generic version of a prescription drug was alleged, properly sought civil penalties for violations occurring statewide, the California Supreme Court held. Then-Orange Superior Court Judge Kim G. Dunning (now retired) in 2016 denied a motion by the defendants to strike from the complaint all “claims for restitution and civil penalties based on conduct outside the territorial jurisdiction of Orange County.” Div. Three of the Fourth District Court of Appeal, in a 2-1 decision, on May 31, 2018, granted a writ petition ordering that the scope of then-District Attorney Tony Rackauckas’s actions be limited to conduct in his own jurisdiction. The California Supreme Court reversed the Court of Appeal’s decision in an opinion by Justice Goodwin H. Liu.
28—The Third District Court of Appeal repudiated references to “anti-SLAPP” motions. Its announcement that it won’t use the term anymore came in an unpublished opinion declaring that a law firm’s postjudgment collection efforts did not qualify as protected activity. Justice M. Kathleen Butz advised, in a footnote: “We eschew use of an acronym often used to label this motion….The acronym grew out of the statute’s initial focus. However, with the blessing of the Legislature and the courts, this statute has been applied in contexts across the litigation spectrum, and the acronym is no longer accurate. The proceeding should simply be called what it is—a special motion to strike.” “SLAPP” is an acronym for “strategic lawsuit against public participation.”
29—Two Los Angeles Superior Court judges who opted not to seek reelection, thus creating open seats—Debre Katz Weintraub and William N. Sterling—retired.
30—The First District Court of Appeal held that the state constitutional requirement that no special taxes may be enacted by local governmental entities without approval of the electorate by a two-thirds vote does not apply to special taxes created by initiatives which may be adopted by a simple majority. Justice Alison M. Toucher of Div. Four wrote the opinion. It affirms a judgment on the pleadings granted by the San Francisco Superior Court in favor of the City and County of San Francisco, rejecting a challenge to an initiative creating special taxes, imposed on businesses, to fund homeless services.
July
13—Retired Los Angeles Superior Court Judge Marvin M. Lager died. He was 66.
14—Div. Three of the Fourth District Court of Appeal took an expansive view of judicial immunity in an opinion holding that judges are not liable if they spread false and defamatory gossip about a lawyer out of court and, in one instance alleged in the complaint, at a private party. The action was brought by attorney Ernest Calhoon of San Bernardino County’s Sun Valley against Orange Superior Court Judges Lon Hurwitz and Donald Gaffney, a court counter clerk, Mia Mejia, and others. The plaintiff claimed that when he insisted on Mejia accepting papers for filing which she wanted to reject, she called for help, falsely asserting to bailiffs he had threatened to kill her, and that the two judges then spread the tale. Hurwitz told someone at a party that Calhoon is dangerous and a troublemaker, the complaint alleged.
16—The First District Court of Appeal reversed an order vacating the renewal of a 1995 judgment now worth more than $1 million, rejecting the trial court’s reasoning that the renewal was invalid because the man who filed the paperwork on behalf of himself and 16 other judgment creditors is not a lawyer and therefore practiced law without a license. Justice James A. Richman of Div. Two wrote the opinion. The man, John V. Bisordi, “was acting in a ‘clerical’ capacity, or as a ‘scrivener,’ ” Richman said, declaring: “That is not the unauthorized practice of law.”
22—The Ninth U.S. Circuit Court of Appeals spurned a challenge by the American Civil Liberties Union Foundation and others to the sealing of a District Court opinion which found that Facebook, Inc. was not in contempt for allegedly violating the Wiretap Act by declining to allow government investigators access to calls over its messaging app. A three-judge panel, in a brief memorandum opinion, denied the bid by the ACLU, the Washington Post and the Electronic Frontier Foundation for a reversal of a Feb. 11, 2019 order by District Court Chief Judge Lawrence J. O’Neill of the Eastern District of California denying a motion to unseal a decision he made the previous year and other documents. Cooperation of Facebook was sought by federal investigators in connection with a probe of an international criminal gang, MS-13. They wanted to eavesdrop on encrypted calls over Facebook Messenger. When Facebook denied access, the Justice Department moved for an order finding the technology giant in contempt. A hearing was held on Aug. 14, 2018 and, while O’Neill denied the government’s motion, it honored its request for secrecy because the matter related to an ongoing investigation.
31—The Ninth U.S. Circuit Court of Appeals affirmed the dismissal of porn star Stormy Daniels’s defamation action against President Donald Trump, with a three-judge panel saying that his April 18, 2018 tweet accusing her of a “con job” was merely constitutionally protected “rhetorical hyperbole.” The decision came in a memorandum opinion. Suing as “Stephanie Clifford, AKA Stormy Daniels,” the plaintiff alleged that she had an affair with Trump in 2006; in 2011, she agreed to supply information about their relationship to Touch Magazine; a few weeks after she so agreed, a man came up to her in a Las Vegas parking lot, made a threat against her daughter, and admonished Clifford: “Leave Trump alone. Forget the story.” (The magazine dropped its plan to publish the story after being threatened with legal action if it did.) Trump was elected president on Nov. 8, 2016. Clifford worked with a police sketch artist who produced a likeness of the man who had purportedly threatened her, and on April 17, 2018, she publicly released the rendering. The following day, Trump tweeted: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”…It emerged that the campaign committee for Timothy Reuben spent in excess of half a million dollars on the Westside attorney’s ill-fated bid in the March 3 primary for election to the Los Angeles Superior Court, with nearly all of the funds coming from the candidate, himself, in contributions and loans, according to final finance documents filed with the Office of Secretary of State. Reuben was trounced in a two-person race by then-Los Angeles Deputy District Attorney Sherry L. Powell, who received 62.94 percent of the vote. Her committee spent $32,428.66 this year, according to its statement filed July 24; it reported no expenditures for the previous calendar year. The $555,587.95 spent by the Reuben campaign is more than 113 times what his rival’s campaign unit paid out, largely to social media companies.
August
10—The California Supreme Court held that a Los Angeles County sheriff’s deputy is jointly liable for the entire $8 million jury award of noneconomic damages in a wrongful death action notwithstanding a jury finding that he was only 20 percent at fault, declaring that there is no apportionment of damages where a tort is intentional. The opinion by Justice Ming W. Chin, for a unanimous court, reversed a July 10, 2018 decision by Div. Three of this district’s Court of Appeal which limited the award against Deputy Sheriff David Aviles to 20 percent of the $8 million, ordered that judgment be entered against another deputy for 40 percent of the total award, and sliced $3.2 million from it based on fault on the part of the decedent. Chin said that “California principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others.”…Predictions by some judges that civil jury trials would not be resumed this calendar year in light of the pandemic have proved accurate, with Brazile ordering postponement of such proceedings until 2021, with the exception of cases involving evictions. Brazile acted in one of a continuing series of general orders in response to the pandemic.
18—Retired Los Angeles Superior Court Commissioner Alan H. Friedenthal died.
24—The California Supreme Court reversed a 2005 death penalty sentence for Scott Peterson, who was found guilty of the murders of his pregnant wife, Laci Peterson, and their unborn son, determining that the trial court made a series of “clear and significant errors” during jury selection that undermined Peterson’s right to an impartial jury at sentencing. Justice Leondra R. Kruger wrote the opinion for a unanimous court. It affirmed the judgment of conviction—rejecting Peterson’s contention that that jury selection error and the enormous amount of publicity surrounding his case prevented him from receiving a fair trial—and remanded for resentencing in the San Mateo Superior Court….A party’s entitlement to exercise a peremptory challenge, on remand, to the judge who presided at the previous trial and was reversed does not necessarily apply where a reversal is conditional, the Court of Appeal for this district held. If a new trial is to take place, or not, depending on further determinations by the trial court, the opinion said, the judge at whom the challenge was directed must hold off on acting on the challenge “unless and until” a new trial is ordered. Justice Gail Feuer of Div. Seven wrote the opinion. It granted a preemptory writ of mandate directing the Los Angeles Superior Court to vacate an order honoring a peremptory challenge to Los Angeles Superior Court Judge Anthony J. Mohr.
26—The Los Angeles County Bar Association went on record in opposition to the deployment of federal agents, for the sake of protecting federal property, to sites where demonstrations were taking place as part of Black Lives Matter protests. Through action by the Board of Trustees at a meeting via Zoom, LACBA adopted as its own, a resolution of the American Bar Association which said: “Recent reports indicate that federal agents within the United States Departments of Justice and Homeland Security are carrying out operations, most notably on the streets of Portland, with the objective of disrupting protests against racism and police brutality. Those reports give strong reason to believe that those federal agents are not carrying out the limited enforcement functions traditionally associated with the federal government, such as protecting federal property, but rather are unconstitutionally abridging peaceful protected conduct and are encroaching on local law enforcement authority.” LACBA’s action was not made public by the group until the Council of Sections, a watchdog group, on Sept. 23 disseminated minutes of the August meeting.
31—Elizabeth Feffer left her post on the Los Angeles Superior Court….Laurie D. Zelon retired as a justice of Div. Seven of this district’s Court of Appeal.
September
4—The Ninth U.S. Circuit Court of Appeals said in an order that it will reconsider its policy against conditional reversals. By a vote of a majority of the non-recused active judges, it decided to rehear en banc an appeal decided April 28 by a three-judge panel. Judge Paul Watford joined in that April opinion but, in a concurring opinion, lamented that the “eminently sensible procedure” of a conditional reversal “is forbidden by existing circuit precedent.” He said it was wasteful to mandate a new trial based on the erroneous exclusion of an expert’s testimony by the District Court judge at the initial trial where, on remand, that judge might determine that the testimony he excluded for the wrong reason should be excluded under what the Ninth Circuit spotlighted as a proper reason.
24—Los Angeles Superior Court Judge Edmund Willcox Clarke Jr. went into retirement.
25—Songhai Miguda-Armstead retired as a Los Angeles Superior Court judge to become executive director of the Los Angeles County’s “Alternatives to Incarceration Initiative.”
26—William J. McVittie, 81, who served as a judge of the Los Angeles Superior Court from Dec. 1, 1980 to Dec. 4, 2000, and for six years before that, was a member of the Assembly, died.
27—Los Angeles Superior Court Judge Vincent H. Okamoto, the most highly decorated Japanese American soldier in the Vietnam War who was not killed in action and founder of the Japanese American Bar Association, died.
30—Former Los Angeles County Bar Association President Harry L. Hathaway, Nowland C. Hong, a founder of the Southern California Chinese Lawyers Association, and veteran San Fernando Valley trial lawyer John L. Moriarity were named by the Metropolitan News-Enterprise as 2020 “Persons of the Year.”…Barbara R. Johnson left office as a Los Angeles Superior Court judge. She had been the presiding judge of the Appellate Division.
October
1—The Ninth U.S. Circuit Court of Appeals denied a Pasadena church’s emergency motion requesting that it enjoin enforcement of Gov. Gavin Newsom’s coronavirus orders restricting group-worship activities in an effort to stem the spread of the virus. Newsom issued guidelines in March limiting attendance at indoor worship services, and in July beefed up the restrictions in response to a resurgence of the virus, including declaring a ban on singing and chanting in places of worship. Harvest Rock Church argued that a ban unconstitutionally contravenes the right of religious freedom under the First Amendment.
7—Samantha P. Jessner was elected assistant presiding judge of the Los Angeles Superior Court for 2021 and 2022 and, if tradition is followed, will be elected without opposition as presiding judge for the following two years. She is the daughter of former Los Angeles County Bar Association President Patricia Phillips….The privacy right of a participant in a phone conversations applies even where the other party records only that person’s own side of the conversation, the First District Court of Appeal held, reversing a judgment for the consumer reviews website Yelp in a lawsuit alleging it secretly recorded sales calls in violation of the state’s privacy act.
8—Los Angeles Police Chief Michel Moore disputed the claim by attorney David D. Diamond, a candidate for the Los Angeles Superior Court in the Nov. 3 run-off election, that he’s endorsed by Moore’s department. A slate mailer called “COPS Voter Guide,” which Diamond’s committee paid to carry a recommendation that its candidate be elected, contains the message that Diamond was so endorsed. Moore said in an email to the MetNews, in response to an inquiry: “LAPD does not endorse candidates and nor do I. It’s unfortunate when politicians misrepresent and lie in their pursuit of office.” That was the second time Diamond was contradicted by a police chief, though on the previous occasion, it was by the leader of a far smaller department. Two years earlier, when he ran for a Superior Court open seat—which was won by then-Deputy District Attorney Troy Davis—Diamond claimed the endorsement of Burbank Chief of Police Scott LaChasse. When queried, LaChasse said of Diamond: “I had absolutely no knowledge that he was running for a judgeship, and I have not and will not endorse him.” Diamond was defeated in this year’s election by Deputy District Attorney Scott Yang.
14—The Commission on Judicial Performance publicly admonished Nevada Superior Court Judge Robert Lynn Tamietti, explaining that it was not pursuing a possible sterner action in light of an agreement by the judge to retire from the bench, effective Oct. 31, and not serve again in a judicial capacity. Allegations included bullying an attorney who used a peremptory challenge on him and shifting the case to a judge of his choosing rather than the case being reassigned by the presiding judge; becoming personally embroiled in a case, telling the deputy district attorney, “And I credit my disgust, in large part, to your office and its handling of this file”; and sending other judges of the court an email deriding a deputy district attorney.
15—Alameda Superior Court Judge Frank Roesch—who was slammed in a Court of Appeal opinion for misconduct that necessitated a reversal—received a public admonishment from the Commission on Judicial Performance. The CJP said: “In a civil jury trial, he interrogated a witness in a hostile manner, made sarcastic remarks, and mishandled the witness’s assertion of her Fifth Amendment privilege against self-incrimination. In a quiet title action, the judge questioned the parties and counsel in an injudicious manner. Although Judge Roesch believed, based on faulty assumptions, that his intervention in each case was justified, it is the misguided manner in which he attempted to address his misassumptions, and the discourteous way he comported himself toward those appearing in court before him, that is the basis for this discipline."
20—The First District Court of Appeal issued a sweeping order requiring that San Quentin reduce its prison population, then at 3,109, to “no more than 1,775 inmates,” in light of the COVID-19 pandemic, declaring that the endangering of prisoners by virtue of close confinement amounts to a violation of the Eighth Amendment’s ban on cruel and unusual punishment. The court ordered that that the petitioner, serving a life sentence for murder, be moved to a safer facility, and also mandated broader relief, though acknowledging that there is no authority for granting habeas corpus relief not only to a petitioner, but to those who are similarly situated. Presiding Justice J. Anthony Kline of Div. Two wrote the opinion.
23—Los Angeles Superior Court Judge Gilbert M. Lopez hung up his robe.
30—Los Angeles Superior Court Judge Victor E. Chavez, who served as presiding judge in 1999 and 2000, died at the age of 90.
November
3—Former San Francisco District Attorney George Gascón defeated Los Angeles County District Attorney Jackie Lacey in her bid for a third term. Gascón had received $2,250,000 in campaign funds from New Yorker George Soros, a major contributor to liberal office-seekers in local elections….Gaining election to the Superior Court were Deputy District Attorneys David Berger, Steve Morgan and Scott Yang….The “safe harbor” provision of Code of Civil Procedure §128.5 does not apply where attorney fees are sought by a plaintiff that prevails on an anti-SLAPP motion which the court finds to have been frivolous, Div. Two of the Fourth District Court of Appeal held, reaching the same conclusion it did on May 20 in an opinion it vacated the following day.
9—California employers must provide overtime pay to employees who receive no set salaries and derive their livelihood entirely from commissions, Div. Three of the Fourth District Court of Appeal declared. However, the opinion does not discuss a provision in the California Code of Regulations which says that higher-paid employees who earn at least half their recompense from commissions are not entitled to such pay. The opinion became final 30 days later with no modifications.
10—Martin J. Jenkins was confirmed by the Commission on Judicial Appointments as a justice of the California Supreme Court. The Commission on Judicial Nominees Evaluation had found him to be “exceptionally well qualified” which is the highest rating. He served as a justice of the First District Court of Appeal from 2008-19 and from 1997-2008 sat on the U.S. District Court for the Northern District of California. Most recently, he was the judicial appointments secretary….The Los Angeles County Board of Supervisors voted 3-2 to consider options for ousting Alex Villanueva as sheriff. Supervisors Mark Ridley-Thomas and Sheila Kuehl co-authored a motion calling for an examination by the Office of County Counsel, the Office of Chief Executive Officer, the inspector general, and the Civilian Oversight Commissioner as to possible ways to get rid of the controversial lawman or yanking powers from him. They gained the needed third vote—that of Supervisor Hilda Solis—with Supervisors Kathryn Barger and Janice Hahn voting against the action. Kuehl charged, in a statement released later in the day, that Villanueva “has continuously refused to cooperate with the Civilian Oversight Commission and our inspector general, defying both subpoenas and requests for information,” adding: “He has incurred tens of millions of dollars in settlement costs in excessive force litigation, re-employed deputies who were lawfully terminated, and aggressively resisted the County’s attempt to balance the department’s budget which is running unprecedented deficits.”
13—Gov. Gavin Newsom appointed 10 persons to the Los Angeles Superior Court. They were Los Angeles Deputy Public Defender Rita L. Badhan; Los Angeles Superior Court Commissioner Alicia Y. Blanco; Los Angeles Deputy District Attorney Robert E. Sanchez DuFour; Administrative Law Judge Carla L. Garrett; private practitioners Ronald O. Kaye, Elizabeth Potter Scully; David W. Swift, Hernan D. Vera, and Wendy L. Wilcox; and Assistant U.S. Attorney Bryant Y. Yang of the Central District of California.
17—The Ninth U.S. Circuit Court of Appeals reversed a summary judgment for $5.2 million in a breach-of-contract action because the defendant was barred by the District Court from arguing the affirmative defenses contained in its answer to the first amended complaint, the judge’s theory being that no new answer had been filed to the second amended complaint, and the defenses had no continuing effect. District Court Judge Eric F. Melgren of the District of Kansas, sitting by designation, wrote for a three-judge panel: “Is a defendant required to file a new answer reasserting its affirmative defenses when the claim in the amended complaint related to those affirmative defenses remains the same? We hold that the defendant is not.”
18—A watchdog group, the Council of Sections, disseminated a report showing that the Los Angeles County Bar Association owed nearly $1 million in back rent for the organization’s two floors in an office building at the northeast corner of Seventh Street and Bixel Avenue, and with the year-to-date expenses exceeding revenues. “Unpaid rent continues to accrue ($960,000) April through October and is reflected on the financials as an expense,” the summary says.
19—Los Angeles attorney Harvey I. Saferstein, 77, who served as president of the State Bar of California in 1992-93, died….Retired Court of Appeal Justice Paul H. Coffee, who sat on this district’s Div. Six from 1997 until his retirement on Jan. 31, 2012, died at the age of 88.
December
7—George Gascón took office as Los Angeles County district attorney. He proceeded to issue nine “special directives” implementing new policies. They included not seeking the death penalty or life imprisonment without possibility of parole, not asking for pretrial release on condition of putting up bail except in the case of felony sexual assault or violent felonies, and not moving for the trial of juveniles in adult criminal court. He also instructed that “sentence enhancements or other sentencing allegations, including under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending matters.”
8—The Commission on Judicial Performance issued a severe public admonishment to former Modoc Superior Court Judge David A. Mason, who was publicly admonished on Dec. 3, 2019, for failing to disclose to parties his close relationship with a lawyer who appeared before him and, even after that scolding, continued to neglect to make a disclosure in some cases. Mason, who retired Oct. 31, on Nov. 6 signed a stipulation prepared by the commission staff under which he would, if the CJP approved the bargain, receive a severe public admonishment and be forever barred from seeking or accepting a judicial office or assignment. The former jurist could, potentially, have received a higher level of discipline: a censure.
12—Los Angeles Superior Court Judge Gilbert M. Lopez retired from the bench.
14—U.S. District Court Judge Thomas M. Durkin of the Northern District of Illinois held that Los Angeles attorney Thomas V. Girardi of Girardi Keese misappropriated $2 million or more of funds due to clients, families of persons killed in the crash of a Boeing jet in Indonesia, and ordered his assets frozen. The judge admonished: “No matter what your personal financial situation is, no matter what kind of pressures you are under, if you touch client money, you are going to be disbarred and quite possibly charged criminally.” Girardi claims to be penniless.
18—District Attorney George Gascón retreated from his proclamation on Dec. 7 that deputies, going forward, may not allege enhancements, ever, and must ask the judge in each case in which such allegations have been made to strike them “in the furtherance of justice.” He amended a special directive “to allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances,” specifying that the “exceptions shall be narrowly construed.” Enhancements may now be sought where the defendant is charged with a hate crime, elder abuse or abuse of a dependent adult, child abuse, child or adult sexual abuse, sex trafficking, or financial crimes “where the amount of financial loss or impact to the victim is significant, the conduct impacts a vulnerable victim population” or where a freeze of the defendant’s assets is sought so that payment of restitution of fines may be facilitated….Pop singer Erika Jayne, a star of television’s “Real Housewives of Beverly Hills,” posted on Instagram—then removed it within half an hour—an allegation that her husband, Los Angeles personal injury attorney Thomas V. Girardi (whom she is divorcing), is engaged in an affair with Court of Appeal Presiding Justice Tricia Bigelow of this district’s Div. Eight. Four days later, the Los Angeles Times quoted Bigelow’s lawyer—Alan Jackson, who, as a deputy district attorney, in 2012 lost a run-off for district attorney to then-Chief Deputy Jackie Lacey—as saying that Jayne’s “‘actions in maliciously doxxing the justice were nothing short of criminal” and announcing that “[w]e are considering our options to protect Justice Bigelow from further harassment.”
19—The Los Angeles County Bar Association advised its members by email that the organization will declare bankruptcy if it can’t reach a settlement with the lessor of two floors of office space in the building at the northeast corner of Seventh Street and Bixel Avenue near downtown. LACBA has not been paying rent since March and, Executive Director Stanley Bissey said two days earlier that “LACBA currently owes $1,122,880 in unpaid rent.”
23—The requirement laid down by the California Supreme Court in 1989 that a person suing for emotional distress based on a physical injury to another must have been present when the injury was inflicted is satisfied where the plaintiff is “virtually present,” viewing the event live, via remote technology, the Court of Appeal for this district held. Justice Gail Ruderman Feuer wrote for Div. Seven. The plaintiffs had watched, via a livestream of video and audio on a smartphone the physical abuse of their two-year-old disabled son by a vocational nurse.
30—The Association of Deputy District Attorneys filed a petition for a writ of prohibition/mandate assailing directives of the district attorney.
31—Los Angeles Superior Court Judge William A. MacLaughlin, who served as his court’s presiding judge in 2005 and 2006, retired.
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