Metropolitan News-Enterprise


Friday, October 22, 2004


Page 1


Commission on Judicial Performance Admonishes Judge Brett Klein


By KENNETH OFGANG, Staff Writer/Appellate Courts


Los Angeles Superior Court Judge Brett Klein was admonished yesterday by the Commission on Judicial Performance, which said he had acted improperly in one of his cases.

Klein “abused his authority and displayed bias and embroilment through actions he took after a judgment he had entered was reversed by the Court of Appeal,” the commission said in a 9-0 decision. One member did not participate; there is one vacancy on the commission, which consists of six public members, two lawyers, and three judges.

The public admonishment is the least severe form of public discipline the commission can impose. Klein, who waived his right to an evidentiary hearing, said he would not seek review in the California Supreme Court.

The judge, a former Court of Appeal research attorney and law professor who has sat on assignment in the Court of Appeal, told the MetNews he was “embarrassed and ashamed to be among the few judges publicly disciplined this year.”

While there was no finding of corruption or severe impropriety, the decision “goes to the heart of the work I do,” he said. Looking at the matter in hindsight, he added, “I accept [the commission’s] judgment and I accept it as correct.”

The case was the subject of a published opinion, Butler v. Superior Court (2002) 104 Cal. App. 4th 979.

The plaintiffs sued their former landlord, claiming that her failure to maintain the premises caused their ceiling to fall, injuring them.

Klein struck the defendant’s answer as a sanction for failure to comply with discovery orders, and declined to hear the defendant’s motion for reconsideration prior to a default prove-up. At the prove-up hearing, the judge heard testimony suggesting medical damages in excess of $3,000 per plaintiff.

“At the end of the hearing, Judge Klein found that fair compensation to the plaintiffs totaled $200 for medical expenses and $1050 for other damages, $300 of which was not compensable,” the commission explained. “The judge then ordered nominal damages of $1 to each plaintiff, on the ground that awarding damages would deprive the defendant of due process of law because the plaintiffs’ statement of damages was first served on her after she engaged in the conduct that resulted in entry of her default as a terminating sanction for the discovery violation.”

Klein’s comment at the end of the hearing, which the judge later admitted he should not have made, was “I suppose this case illustrates [the] adage ‘Be careful what you ask for. You might get it.’”

The judge also asked the defense if it was prepared to withdraw the motion for consideration, to which counsel responded affirmatively.

In its first opinion in the case, which was unpublished, the Court of Appeal said the judge’s finding with regard to the medical damages was arbitrary and capricious, and that he was in error in concluding that an award of actual compensation as set forth in the plaintiffs’ statement of damages would violate due process.

The Court of Appeal remanded with instructions “to enter a new default judgment in accordance with the evidence Butler presented at the default prove-up hearing on October 24, 2000.”

After the remittitur was received, Klein sua sponte set a hearing on the previously withdrawn motion for reconsideration of the order striking the answer. Plaintiffs’ counsel protested, arguing that the setting of the hearing was outside the scope of the remittitur, and challenged Klein under Code of Civil Procedure Sec. 170.6.

Klein struck the challenge as untimely, holding that the statute’s provision allowing a challenge to a judge after a reversal on appeal did not apply in the absence of a “new trial.” The plaintiffs then challenged Klein for cause under Sec. 170.1, but the judge struck the challenge as facially insufficient.

He later granted the motion for reconsideration, following which he accepted the Sec. 170.6 challenge and recused himself.

The plaintiffs then petitioned for a writ of mandate, resulting in the second, published opinion of the Court of Appeal. The court held that Klein had “materially departed from our directions on remand” by reconsidering the sanctions rather than recalculating damages and entering a new judgment.

In response to the CJP’s charge of misconduct, Klein defended his actions as having been taken in good faith, even if legally erroneous.

While he had sympathy for plaintiff Charlene Butler—her boyfriend and co-plaintiff Bennie Nero was in jail and left her without money to pay rent, leading to her eviction—he had doubts about her credibility on the damages issue, Klein said. He had no bias against the plaintiffs and had made several rulings in their favor, including on the sanctions issue, he said.

His subsequent rulings, he said, were based on the law as best he understood it at the time, given the convoluted nature of the proceedings. Since a motion to reconsider must be heard by the judge who made the original order, even in the face of a Sec. 170.6 challenge, and since he could not enter judgment on the basis of the Court of Appeal’s mandate once recused, he felt he had no choice other than to rule on the motion and leave it to the next judge on the case to sort out the seeming inconsistencies, he explained.

He acknowledged that he should not have made the “be careful” remark. It “served no constructive purpose” and “could understandably be interpreted by plaintiff’s counsel as a taunt, and by the Commission as an indication of personal embroilment,” he wrote, even though that was not his intent.


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