End of the Month

Ninth Circuit Judge Alex Kozinski Resigns Amidst Allegations of Sexual Misconduct…Trial of State Bar Charges Against Carmen Trutanich Postponed…Lui Confirmed as PJ…Metoyer Appeals One-Month Suspension

Judicial Elections

The primary election will be held June 5. Some campaigns for the Los Angeles Superior Court are already in progress.

Candidates who have committees that are registered with the Secretary of State’s Office, and the amount in their campaign coffers as of July 28, the end of the latest reporting period, are Deputy Los Angeles City Attorney Onica Valle Cole, $44.90; Los Angeles Deputy District Attorney Alfred Coletta, $11,697.09; and David A. De Jute, of the U.S. Attorney’s Office for the Central District of California, $10,426.75.

Cole’s report shows that contributions from Jan. 1 of this year to June 30 were $79,952.09 and that expenditures during that period were $37,298.38, which would appear to leave a balance of $42653.71—yet the balance shown is less than $50. Cole was asked on Nov. 1 to explain this, and she said she would check with her treasurer. To date, there has been no further word from her. Cole and Coletta both have campaign websites.

Shlomo Frieman, an attorney who practices out of his home, and Klint James McKay, an administrative law judge for the California Department of Social Services in Sacramento, earlier this month took out “signature in lieu”(of filing fees) petitions for Los Angeles Superior Court Offices 22, 70, 80, 94, 108, and 127, which were vacant. However, Gov. Edmund G. Brown Jr. had the option of filling those vacancies—and did, on Dec. 22.

Judges, Lawyers Under Scrutiny

Carmen Trutanich
Former Los Angeles City Attorney

Proceedings in the disciplinary matter of Los Angeles’s former city attorney continue to lumber along, with one trial continuance after another. A pretrial conference is now scheduled for March 12.

Trutanich, as the deputy district attorney prosecuting a capital murder case in 1985 and 1986, put on a witness who testified that she witnessed defendant fatally shooting a victim from a van. The witness said she was in a station wagon being driven by one Jean Rivers.

The Office of Chief Trial Counsel is alleging that when he “knew, or was grossly negligent in not knowing” that the testimony was false insofar as the identity of the driver, whose actual name was Arlene McKay. In failing to divulge the driver’s true identity, as well as her home address, Trutanich breached his constitutional obligation of making disclosures to the defense of potentially exculpatory evidence, as required by Brady v. Maryland (1963) 373 U.S. 83, it is asserted.

The initial notice of charges was dated Feb. 9. An amended notice was filed July 10.

The current charges are that Trutanich:

•By committing a Brady violation, ran afoul of Business and Professions Code §6068(a) (duty to “support the Constitution and laws of the United States and of this state”).

•Suppressed evidence “in willful violation of Rules of Professional Conduct, rule 5-220.”

•Committed “an act(s) of moral turpitude, dishonesty, or corruption in willful violation of Business and Professions Code, section 6106.”

•By “intentionally or with gross negligence” failing to correct the testimony, “committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code §6106.”

Trutanich—who served as city attorney from 2009-13 and is now at Tucker Ellis LLP in Los Angeles—is also charged with allowing a police detective to testify falsely at a pretrial hearing in the same murder case. Trutanich has repeatedly denied the charges.

Trutanich is now an attorney with Tucker Ellis LLP.

He is represented by ethics lawyer David C. Carr of San Diego. The Office of Chief Trial Counsel has three lawyers assigned to the case: Senior Trial Counsel Eli D. Morgenstern, co-counsel Edward 0. Lear and deputy co-counsel Caitlin Marie Elen.

Trutanich has reportedly unsuccessfully sought appointment to the Los Angeles Superior Court and the San Diego Superior Court.

Delia M. Metoyer
Deputy Public Defender

The attorney is seeking review of discipline imposed on Sept. 15 based on client abandonment, failure to obey a court order, and failing to report a sanction imposed on her. She was placed on probation for one year and ordered suspended from law practice for one month.

Metoyer became emotionally upset when, after announcing ready in a case on Jan, 15, 2015, Los Angeles Superior Court Judge Elizabeth Hunter declined to release her t to go to a previously unmentioned doctor’s appointment the next day. The judge let her use the private bathroom in her chambers to compose herself but Metoyer fled, with the judge, the prosecutor, three witnesses and her client waiting in the courtroom and prospective jurors in the hallway.

A supervisor in Metoyer’s office eventually contacted the judge and secured her agreement to allow Metoyer to take the following morning off to have an MRI, but ordered that she return to the courtroom immediately. She refused to go there, and another lawyer was sent.

On April 10, 2015, Hunter imposed sanctions on Metoyer in the amount of $1,500. Metoyer did not abide by the statutory obligation to report to the State Bar any sanction of $1,000 or more.

(The county paid the sanction, as well as the costs of an appeal to the Court of Appeal, which failed, and paid her attorney fees in the State Bar proceeding, up to $15,000.)

Philip Layfield
Attorney

The State Bar Office of Chief Trial Counsel filed disciplinary charges against on Sept. 20 alleging that the attorney misappropriated more than $3.4 million from his clients, and a trial is set for Jan. 24. He acknowledges moving funds from the attorney-client trust account to his erstwhile firm’s general fund, but insists he thought there was enough money in the coffers to cover the clients’ shares of settlements. He ascribes blame to others, including the State Bar’s prosecutor.

Judiciary: Vacancies, Appointments

Ninth U.S. Circuit Court of Appeals

There are five vacancies on the 29-judge court.

Judge Alex Kozinski retired Dec. 18 in the light of sexual misconduct allegations uncovered by the Washington Post and following Chief Justice John Roberts’ assignment to the Second Circuit Court of Appeals the task of investigating the charges.

Judge Harry Pregerson took senior status Dec. 11, 2015 (and died Nov. 25 of respiratory disease, at the age of 94).

Judge Barry Silverman took senior status Oct. 11, 2016; and Judges Richard Clifton and Diarmuid O’Scannlain took senior status Dec. 31 of that year.

There is one nominee. Ryan Wesley Bounds, assistant United States attorney for the District of Oregon, was nominated Sept. 7 to assume the seat vacated by O’Scannlain.

There are two upcoming vacancies. Judge Richard C. Tallman is set to assume senior status March 3 and Judge N. Randy Smith is scheduled to do the same Aug. 11.

There are six vacancies. Judge Beverly Reid O’Connell died Oct. 8 at the age of 52. Judge Audrey B. Collins resigned Aug. 1, 2014 to join the state Court of Appeal; Judge Margaret Morrow took senior status Oct. 29, 2015 and subsequently left the bench to become president and chief executive of Public Counsel; Judge Dean Pregerson (son of the late Judge Harry Pregerson) took senior status Jan. 28 of last year; Judge Christina A. Snyder took senior status Nov. 23 of last year; and Judge George H. King retired Jan. 6.

There are no nominees to replace them.

Justice Kathryn M. Werdegar retired Aug. 31. No replacement has been named.

Second District

Div. One: There is a vacancy created by the elevation of Justice Elwood Lui to the post of presiding justice of Div. Two.

Div. Two: The vacancy created Jan. 31 by the retirement of Presiding Justice Roger Boren was filled Dec. 14 when the Commission on Judicial Appointments confirmed Lui, formerly an associate justice on Div. One, as presiding justice.

Div. Three: A vacancy due to the Oct. 5, 2015 retirement of Justice Patti S. Kitching was filled Dec. 14 when Los Angeles Superior Court Judge Anne H. Egerton was confirmed as Kitching’s replacement.
Div. Four: There is no vacancy.

Div. Five: Presiding Justice Paul A. Turner of Div. Five died May 18. There is a prior vacancy in that division, due to the retirement of Justice Richard Mosk, who left the court March 30 of last year (and died 18 days later).

Div. Six: There is no vacancy.

Div. Seven: No nomination has been made to the vacancy due to the retirement of Justice Fred Woods on March 31, 2015.

Div. Eight: There is no vacancy.

Among those whose names have been sent to the Commission on Judicial Nominees Evaluation as possible appointees to the court are Los Angeles Superior Court Judges Gail Ruderman Feuer, Rita Miller, Richard Rico, Helen Bendix, Ann Jones, and Sanjay Kumar; Los Angeles attorneys Kent Richland and Bradley Phillips; Ventura Superior Court Judge Tari Cody; and Southwestern Law School Professor Christopher Cameron. Eight judges are sitting pro tem. All are members of the Los Angeles Superior Court except Allan Goodman, a retired member of that court, and Kim Dunning, a member of the trial bench in Orange County.

Judge Anthony Mohr’s tour of duty ends today; Judge Douglas W. Sortino will be sitting until Jan. 12, and Judge Michael J. Raphael will remain until Jan. 19.

The following judges are assigned to the Court of Appeal until Jan. 31: Goodman, Dunning, Halim Dhanidina, Brian S. Currey, and Kerry R. Bensinger.

Three Los Angeles Superior Court judges will begin pro tem stints on Tuesday, and will each serve two months. They are Helen Bendix, Dorothy C. Kim, and Henry Hall..

Seats in other districts are filled.

Los Angeles Superior Court

A vacancy was created Dec. 14 by the elevation of Judge Anne H. Egerton to the Court of Appeal. Judge David S. Wesley—a former presiding judge—retired effective Aug. 31. Three other judges retired recently: Leland H. Tipton on July 31, Lloyd Nash on March 3, and David Minning on April 6.

Vacancies that remained from last year due to retirements were filled by Gov. Jerry Brown on Dec. 22. U.S. Securities and Exchange Commission senior trial counsel Kristin S. Escalante will be successor to Judge Soussan Bruguera who left Dec. 15; private practitioner Gregory J. Weingart will assume the post held by Judge Sally Meloch until Dec. 10; and Supervising Deputy Attorney General Victoria B. Wilson will take over for Judge Steven Van Sicklen, who retired on Nov. 1.