Metropolitan News-Enterprise


Monday, August 11, 2003


Page 3


Appeals Court Reduces Malpractice Judgment Against Former Judge


By a MetNews Staff Writer


A malpractice judgment against a former Sonoma Superior Court judge, in a case that gained notoriety after it was disclosed that the plaintiffís attorney was the husband of an official who was investigating the defendant while the suit was pending, was affirmed Friday in a reduced amount.

The suit was brought by the parents of two children whom Patricia Gray had represented.

The First District Court of Appealís Div. One said there was a legal basis for the juryís finding that negligence in failing to present a request for leave to file a late tort claim against Sonoma County was a legal cause of her former clientsí damages.

The judgment was reduced, however, from just under $42,000 to $32,000, the panel concluding that the trial judge had miscalculated in allocating damages among multiple defendants.

Gray was sued by the parents of two young children who claimed they had been molested by a day care provider in the town of Windsor. The parents alleged that at the time they enrolled the children at the center, they were told by a county agency that no complaints had been filed against it, which turned out to be untrue.

The parents initially retained attorney James Barrett, but later switched to Gray. They testified they made the switch because Barrett seemed uninterested in the case and because they had been told by a friend, an attorney who referred them to Gray, that they might run into a statute-of-limitations problem

Gray brought a tort claim in July 1994, but the county rejected it as untimely. She then presented an application for leave to file a late claim, which was pending in November 1994 when Gray was elected to the bench.

The plaintiffs retained new counsel, who filed suit. But the county won on summary judgment, based on the lack of timely compliance with the tort claims statute.

The parents sued Barrett and Gray for malpractice. That suit was still pending when Gray was challenged for re-election in 2000 by Elliot Daum, a deputy public defender who filed an ethics complaint charging that mailers used by Gray in the campaign had maligned him and misrepresented his role in some of his cases.

Daum won the election. But the relationship between the malpractice suit and the ethics proceedings was not generally known until it was disclosed that the plaintiffsí then-attorney, Michael Boli, was married to Victoria Henley, who as director of the Commission on Judicial Performance was overseeing the investigation into the complaint.

Grayís attorney in the CJP case, Mark Geragos, accused Henley of a conflict of interest. The commission cleared her following an investigation by a retired federal judge.

The charges against Gray were later dismissed by the commission, and Boli dropped out of the malpractice suit.

In its ruling Friday, the Court of Appeal said Gray was precluded from arguing that the county should have treated the claim as an application for leave to file a late claim. That issue, Justice William Stein wrote, was resolved in the underlying suit.

With respect to damages, Stein wrote, Gray was responsible for $81,000—based on the total damages found by the jury, $90,000, less 10 percent for which the jury found the plaintiffs responsible. But because Barrett and his firm had settled out for $49,000, Gray was only responsible for the difference, Stein said.

The original award was based on an erroneous formula accepted by the trial judge, the justice explained.

The case is Brandon G. v. Gray, A099014.


Copyright 2003, Metropolitan News Company