Judge David P. Yaffe — Perched on a Throne in ‘Wonderland’

Tuesday, May 22, 2001

Page 7

PERSPECTIVES (Column)
Judge David P. Yaffe — Perched on a Throne in ‘Wonderland’

By ROGER M. GRACE

I’m not exactly objective when it comes to Los Angeles Superior Court Judge David P. Yaffe. I can’t stand him.

I’ve appeared before him in three cases. (The Daily Journal Corporation sought to wrest a City of Los Angeles contract from the Metropolitan News Company, and lost; MNC pushed for rescission of two County of Los Angeles contracts awarded to DJC, and lost.)

Too, I’ve viewed Yaffe’s handling of numerous other cases with which I’ve been unconnected. I commented in a column on Sept. 15 on one proceeding I viewed while waiting for a matter to be called; Yaffe imposed a $200 sanction on a plaintiff’s lawyer for not giving notice of a status conference to lawyers for the other parties. The problem was that there were no other attorneys of record in the case. And Yaffe imposed that sanction on Aug. 24 notwithstanding that one day after he issued an OSC re sanction on July 26, the Court of Appeal, in a published opinion, invalidated a sanction meted out under identical circumstances.

From what I’ve observed, Yaffe does, to his credit, read the briefs. And he has a substantial quantum of law memorized.

To his discredit, however, he’s a nasty and arrogant SOB.

I have witnessed his outbursts. They are frequent. But they are directed selectively. An attorney with graying hair who’s a member of a top-notch firm is not going to be the object of his wrath; a pro per or a young sole practitioner is. Conduct so innocuous as speaking the words, "Your honor may I interject?" may trigger a quickie tantrum, depending on the status of the person doing the interrupting.

And I’ve observed Yaffe’s quirks. Chief among the quirks is that he indulges in a fantasy of infallibility. He decides cases on bases not advanced by the parties, but conjured up by himself, and does not permit an opportunity to brief the propositions he’s interjected. After all, a proposition spawned by David P. Yaffe could not possibly be wrong.

My negative perception of this jurist, I have found, is shared by others. If I bring up the topic of David Yaffe in conversations, I hear comments such as "he’s crazy" and "he’s a contrarian son of a bitch." (Each of the persons so labeling Yaffe is a leading practitioner.) A Superior Court judge told me he avoided talking with Yaffe at a judges’ event, saying, "I would have puked all over him."

I sent out questionnaires on Yaffe to various lawyers seeking their evaluations of the judge. Some filled out the questionnaires and returned them, others telephoned, and one wrote a letter. Most requested anonymity.

Below are some of the comments I received by phone.

•Ronald M. Cole of the Irvine law firm of Palmieri, Tyler, Wiener, Wilhelm & Waldron appeared before Yaffe in a writ proceeding to force a government agency to pay the balance of the judgment in an inverse condemnation case.

Having observed the judge’s handling of various cases on a number of occasions, Cole credits Yaffe with being a "pretty knowledgeable guy" who "must work pretty hard." The lawyer continues:

"But he’s so irascible and so unpredictable and so strange."

Cole recounts that when he was arguing in favor of an attorney-fee award in the case, Yaffe told him he understood the equities and would make the award if he could, but that he feared the Court of Appeal would reverse him if he did.

The judge struck $84,405 in attorney fees and $845.70 in costs from the cost bill; Cole appealed on behalf of his client; the Court of Appeal on Jan. 30 reversed. The case is Downen’s, Inc. v. City of Hawaiian Gardens Development Agency (2001) 86 Cal.App.4th 856. Div. Six of this district, in an opinion by Presiding Justice Arthur Gilbert, remanded the case "for an award of reasonable litigation expenses incurred in this action, including those incurred on appeal." (In fairness to Yaffe, Gilbert did say that there were two ways the applicable statute could be interpreted, "neither of which is unreasonable.")

Cole says that on remand, he will disqualify Yaffe pursuant to Code of Civil Procedure §170.6—and adds he’ll do that in any future case assigned to that department.

"I just don’t think I could put another client at risk to his capriciousness," Cole remarks.

•An attorney who lost one, won one in Yaffe’s courtroom found the judge "emotionally cold." He aptly summed up Yaffe, both in terms of his imperiousness and his idiosyncratic approach by saying:

"It’s almost like he was speaking from a throne—in ‘Alice in Wonderland.’ "

He recounts seeing Yaffe reduce a young lawyer to tears, saying that the man "was begging for mercy and he wasn’t getting it."

And he tells of Yaffe dealing with a pro per seeking a temporary restraining order to block a foreclosure sale of her home: she insisted she had made a payment; Yaffe said it wasn’t alleged in her declaration; the woman said she could run home and bring back a receipt; Yaffe said if it wasn’t in her declaration, it didn’t count.

"He seems to take delight in coming up with something no [other] person thought of," the lawyer notes. "Probably nobody’s thought about it because it’s wrong."

If there is something wrong with the proposition he’s hatched, "if you point it out, he becomes unpleasant—he doesn’t want to hear it," the attorney complains.

That’s Yaffe, as I too saw him. Yaffe’s Law seems to be: the law is as Yaffe ordains it to be.

•An attorney who says he has made "several appearances" before Yaffe on ex partes comments: "I partly understand his impatience and his frustration, being bombarded with papers." The lawyer adds, however: "He doesn’t have to be that rude."

Yaffe, he explains, "raises his voice—he does a lot of things to really intimidate attorneys....A lot of attorneys get creamed."

•A lawyer who says she appeared in Yaffe’s courtroom two or three times when he was in a trial department comments: "I never really had a pleasant experience with him," explaining: "I found him to be rude."

She notes that he "seemed to be consistent"—that is, consistently rude. "It wasn’t like he was having a bad day," the attorney says. She recounts: "My reaction was: why is this guy a judge if he hates lawyers?"

If the presiding judge asked her opinion as to whether Yaffe should be returned to a trial department, she says, "I would recommend against it." Where does he belong? "Retired," she responds.

(In a letter last year to then-Presiding Judge Victor Chavez, I made a somewhat different suggestion: "The reassignment of Yaffe to some other court would be in the public’s interest. [¶] I believe he should be in Department 95. That, of course, has nothing to do with where he should preside.")

•" ‘Awful’ doesn’t even begin to describe him." That’s the view of a lawyer who had two cases before Yaffe when the judge was in a trial department.

The critic remarks:

"He gets a view of a case early on, and that’s the view that sticks with him about the case—not very open-minded."

The lawyer recounts:

"I served on a committee with him that revised the local rules in ’94, ’95. He was very jealous of judicial prerogatives.

"The goal of the committee was to make the rules uniform....We were trying to abolish the secret rules, the rules on the clipboard."

That goal, he observes, was not shared by Yaffe.

•"He’s a little irritable at times," another attorney says. "He has a certain crustiness about him.

He adds that Yaffe is "a little loud on occasion" and "he’s a little quirky."

The lawyer does credit Yaffe, however, with being "prepared," and says that on one occasion, he went back to his office following and adverse ruling, looked up the law, and saw that Yaffe "was absolutely right."

•Under the category of "Temperament/Demeanor," California Courts and Judges, 2001 edition, reports similar comments from attorneys. It says:

"Attorneys seem to have varying views of Judge Yaffe’s personality, but there was a preponderance of negative comments gathered. ‘Yaffe is very unpleasant.’ ‘He is very difficult to deal with. He does not have a judicial temperament.’ ‘Yaffe can be rude.’ ‘If anybody gets up on the wrong side of the bench, he is not the one. He is always in a bad mood.’ ‘Yaffe is not courteous.’ ‘Yaffe is courteous.’ ‘Yaffe is pleasant.’ ‘He’s a very serious fellow on the bench.’"

ON THE RECORD: Of the 11 persons who filled in questionnaires, only two gave permission to use their names.

Diane Marchant, a downtown Los Angeles sole practitioner who often represents police officers, reports having appeared before Yaffe "at least 30 times over the past 10 years." She had nothing but praise for him. As to his demeanor and temperament, she writes:

"If your papers are in order, you’re prepared, and you’re candid during oral argument he’s fine—however, he loses patience with idiots."

As to Yaffe’s understanding of the issues and application of the law, Marchant says: "Above average; he seems to delight in discovering an issue or a case the parties have neglected to address." (He does indeed.)

Responding to a question as to any incidents in his courtroom reflecting on the judge’s reasonableness or competence, Marchant relates that she has "never seen anything which could reflect negatively" on Yaffe in that regard.

With respect to the jurist’s "notable traits or tendencies," she says: "To his credit, Judge Yaffe asks for supplemental briefing when an issue needs to be more fully explored, before he renders a decision on the merits."

Patricia J. Barry, a West Hollywood sole practitioner, also gave consent to comments being attributed to her. Her responses to the questionnaire center on an administrative mandamus case she argued before Yaffe, unsuccessfully. She terms him "impatient, authoritarian, pro-government," and says that in any such case in the future, she would "immediately exercise a 170.6 strike against him." The lawyer notes, however, that she observed proceedings in a "somewhat political" case in which she thought "he acted as a true Judge of the People."

In a letter, Michael K. Collins of Greenberg Glusker Fields Claman Machtinger & Kinsella, says he "appeared before Judge Yaffe in three or four cases over the years, with a total of perhaps six substantive appearances," adding: "I won some and lost some."

Collins continues:

"I would describe Judge Yaffe’s demeanor and temperament as uneven. Sometimes, he is very courteous and patient. Other times, he is curt and irascible.

"I believe Judge Yaffe understands the issues and how the law should be applied. He is very smart. While he does not always get it right, his average is good. Overall, he is one of the better judges on the court. I am never unhappy about having a matter assigned to him."

Collins remarks that he "will always gladly take a judge like Yaffe, who may be a little gruff but will apply intelligence, common sense and the law to reach a reasonable result most of the time."

Comments of those who asked that they not be identified tended to be more negative. They appear on the opposite page.

I’ll have more to say about Yaffe in future columns—including a discussion of some of his rulings and litigation over the grout in his bathroom.

Responses to Questionnaires on Judge David P. Yaffe
How many times have you appeared before the judge?	How would you describe the judge’s demeanor/ temperament?	How would you describe the judge in terms of understanding of the issues and application of the law?	If you witnessed any incident in the courtroom in your case or any other case reflecting on the judge’s reasonableness or competence, please describe it, using additional sheets if necessary.	Please describe any notable traits or tendencies on the part of the judge, using additional sheets if necessary
2	Poor. Very arrogant. Very impatient.	He is quite bright. However, he tends to prejudge the issues.	No.	Sarcastic, condescending and demeaning.
Several	Judge Yaffe’s courtroom demeanor is deplorable. He is mean spirited and has no respect, whatsoever, for the attorneys who appear before him.	Certainly, Judge Yaffe has the intellectual capacity to sit as a judge. Unfortunately, he often fails to use his intellect when addressing issues in the courtroom. I have seen him make significant legal errors to the substantial prejudice of the parties.	I have seen Judge Yaffe on a number of occasions mistreat lawyers, and pro pers who appear in his courtroom. He has no place sitting in Dept. 86 (a department reserved for Los Angeles Superior Court’s finest). It is questionable whether this judge should continue on the bench at all — he is a disgrace.
2	Like a stern professor in law school demands answers to probing questions and appears equitable.	Seems very earnest and thorough.	He is a little close minded / Stands on his tentative.	Appears to "seek the truth" — in his mind anyway. He stands on his tentatives and is close minded.
10-12	Erratic. Sometimes professional and civil, but often impatient and curt.	Generally OK. Seems to read and pay attention to the papers, although sometimes seems to rule based on his reaction to a particular person or event, rather than the facts/law presented.	Nothing specific, just often a general lack of courtesy and short temper.	See above.
1 two week civil trial.	Terrible. Yells for no apparent reason.	Does not let you try your case. Terrible trial judge.		No patience.
2 cases/10 appearan-ces	Average, but somewhat haughty, abrupt and caustic.	Fair on one case, horrible on the other.	He unfairly sanctioned me when defense counsel was abusing discovery.	You have to deal with him w/ kid gloves and kiss his a— to some extent.
1	Open, accessible, reasonable, even tempered and professionally formal.	Mine was not a complicated case. He understood the issues.	N/A	I simply got in and got out. I have nothing to report.
2 or 3	God awful. Growls at everyone. Unnecessarily austere. Mistakes terror for judicial demeanor.	He knows the law but overwhelmingly favors government entities.	Growls at everyone.	growls at everyone. we will 170.6 him on all future cases.
At least three times.	My most recent experience was in 1997 at a hearing on a preliminary injunction. Cocounsel was disturbed with his irascible attitude and refusal to consider argument except as an attack on him.	I thought he did not understand but I was the losing party.		Please send one of these to [omitted]. He had strong feelings about Judge Yaffe’s demeanor.