Metropolitan News-Enterprise


Friday, October 22, 2004


Page 3


Judge Klein Tells His Side of Story


(Los Angeles Superior Court Judge Brett Klein on June 8 sent the Commission on Judicial Performance his “written objection to the intended public admonishment.” After setting forth his background, he provided the following discussion of his actions in the case of Butler v. Terry.)



a. The trial court proceedings


Butler v. Terry was a personal-injury claim by two individuals who said their bedroom ceiling became soaked and fell on them due to the property owner’s negligent failure to maintain the roof. The property owner was uncooperative with her own attorney in providing discovery to the plaintiffs. I ordered the defendant to respond to discovery requests, and I set a deadline. She missed the deadline, and then she provided incomplete information regarding repairs to the leaky roof. At plaintiffs’ request, I struck the defendant’s answer, entered her default, and scheduled a default prove-up hearing, at which plaintiffs could present evidence of the amount of their damages.

On the eve of the default prove-up hearing, the defendant requested reconsideration of my ruling striking her answer, on an emergency basis (an ex parte application with one day’s notice). I denied the defendant’s request, explaining to the parties that there was no emergency, since the motion for reconsideration could just as effectively be heard and decided on regular notice, after the default prove-up hearing.

The default prove-up hearing proceeded as scheduled. Ms. Butler, who was one of the two plaintiffs, testified. Mr. Nero, the other plaintiff, was unavailable to testify in person, because he was in custody. He could have testified by telephone from the prison, or by written statement, but his attorney did not ask for this. The evidence at the hearing included a photograph of the damaged ceiling. There was no photograph of the debris. Ms. Butler testified that she had lost time from her job as a public employee due to her injuries, and that there were no written records of her time lost from work.

I did not believe Ms. Butler’s testimony. She testified for about half an hour. I watched and listened carefully. I disbelieved her account of how the accident happened, and of her injuries, and of her treatment. Her testimony sounded rehearsed, as though she was trying to remember a script. I did not believe that a government employee would be unable to obtain records showing her absences from work.

The law required me to award judgment “for such sum as appears by such evidence to be just.” (Code Civ. Proc., § 585, subd. (b).) I decided this was a very small sum, because I did not believe that either Ms. Butler or Mr. Terry was injured by the falling plaster. This factual determination was not the product of bias. It was the product of a dispassionate view of the evidence presented. It was my duty to find the facts and decide the case, and that is exactly what I did. It would have been improper for me to have awarded the plaintiffs more money than I found the evidence showed.

I intentionally did not explain these reasons to plaintiffs’ counsel, because Ms. Butler was in the courtroom, and I was solicitous of her feelings. Her boyfriend had gone to prison, leaving her without sufficient funds to pay her rent, and her landlord had evicted her as a result. She must have been very disappointed at the outcome of the case, and I did not want to add insult to her disappointment by explaining that I had decided she was lying about her injuries. And so I gave no explanation of my damages assessment. (A jury would have given no explanation either.)

Until I heard the evidence, every ruling I made in the case was favorable to plaintiffs. This should be some indication that I was neutral in the case, rather than biased against the plaintiffs.

At the default prove-up hearing I also had to decide the legal question of whether the plaintiffs’ recovery was by law limited to the dollar amount requested in their complaint. Sections 580 and 585 of the Code of Civil Procedure explicitly provide that default judgments cannot exceed the dollar amount demanded in the complaint or in a written Statement of Damages. The appellate courts have consistently held that the constitutional guarantee of due process of law precludes a default award in excess of nominal damages where the defaulted defendant has not been served with formal written notice of the dollar amount of the plaintiff’s claim. (The cases I was familiar with at the time were Greenup v. Rodman (1986) 42 Cal.3d 822; Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428; and Janssen v. Luu, (1997) 57 Cal.App.4th 272. There are many other appellate cases recognizing and restating this principle, including Anastos v. Lee, D041904, decided two weeks ago: “The statute . . . serves to protect a defaulting defendant from unlimited liability by providing notice of the maximum judgment that may be assessed.”

In my case — the Butler case — the complaint did not demand any particular amount. (This was not a defect in the complaint; a statute precluded a personal injury complaint from specifying the amount of damages sought, requiring instead that a separate Statement of Damages be prepared for that purpose.) Plaintiffs had served a statement of damages on defense counsel — but not until after the defendant had violated my order to provide discovery. Because the defendant had not been put on advance notice of how much money she might be held liable for if she were to violate my discovery order, I ruled that I could not lawfully hold her liable for more than nominal damages.

This is why I awarded the plaintiffs only nominal damages of one dollar. In my view, the law required it, and permitted no greater award. This decision was not the product of bias; it was, in my neutral opinion, required by law.

In summary, my determination of the amount of the actual damages in the case was my neutral and objective evaluation, acting as trier of the facts and judge of the credibility of witnesses, of the nature and extent of each plaintiff’s injuries. Since this was my evaluation of the claim, it would have been misconduct for me to have awarded more than several hundred dollars per plaintiff. And because of my legal determination on the question of statutory and constitutional law presented by the timing of the statement of damages, it would have been misconduct for me to have awarded more than nominal damages. I felt sympathetic toward Ms. Butler – any judge or layman would — but I would never allow personal sympathy to be a basis for a ruling on a question of fact or law.


b. The appeal


The plaintiffs appealed, and the Court of Appeal (Second Appellate District, Division Eight) reversed me, and remanded the case with directions to enter a new default judgment.

The Court of Appeal held that I was incorrect in my determination that the statutory and case law precluded an award of more than nominal damages. That was a pure question of law, and it could be called either way. The appellate panel called it differently from the way I called it, and their decision was controlling. I do not think this shows that I engaged in misconduct evidencing bias or prejudice or personal embroilment by the ruling I made on this question of law.

The Court of Appeal also ruled that my assessment of the actual damages was arbitrary and capricious and unsupported by the evidence. I understand, of course, that it is misconduct for a trial judge to make an arbitrary and capricious decision. But I do not think the appellate court’s opinion should be read as accusing me of acting out of caprice. “Arbitrary and capricious decision” is a legal term: it is a formula that simply means a decision was unsupported by substantial evidence. There was nothing in the Court of Appeal opinion that said or suggested that the Justices thought my ruling was the product of bias or prejudice or improper motive or a desire to favor one side over the other.

The defendant did not file a brief in the appeal. The Court of Appeal was therefore permitted to accept as true the statement of facts in the plaintiffs’ brief on appeal. (See former Rule 17(b), Cal. Rules of Court, and Advisory Committee Comment to the 2002 revision of Rule 17.)

I accepted that I had been reversed. My feelings were unhurt. I have been reversed before, and I expect some reversals every year, no matter how carefully I do my work, because I try literally hundreds of cases per year, sitting without a jury – mostly short unlawful detainer trials – and every trial ends in an appealable final judgment about which one side or the other feels aggrieved. My attitude when reversed in Butler v. Terry was this: ‘The Court of Appeal reversed me on two points. This means I made a mistake in my rulings. I can learn from this. I will never make these two mistakes again, and I can become a better judge for what I have learned.’

The appellate opinion was unusual, in that it instructed me to make a greater monetary award on the same evidence. It would be a challenging deliberative process to make a fresh and different valuation on the same evidence, unless I changed my mind about what facts to find and infer from the evidence. Hence I was relieved when the Court of Appeal ruled, shortly thereafter, that plaintiffs had the right to disqualify me. The task would now pass to a different judge, who would be evaluating the damages for the first time.


c. The post-reversal disqualification


After the reversal on appeal, the plaintiffs filed a section 170.6 challenge. A section 170.6 challenge is a very frequently employed right to an automatic disqualification of a judge. There are complex legal rules regulating when such challenges are available and when they are unavailable. I am familiar with these rules, because I have kept abreast of developments on the topic since writing a published Court of Appeal opinion on the subject as an Assigned Justice. (Flores v. Superior Court (1991) 226 Cal.App.3d 797.)

The automatic disqualification of a trial judge can be obtained only before the judge has held an evidentiary hearing, unless after a reversal on appeal the case is assigned to the same judge “to conduct a new trial on the matter.” (Code Civ. Proc., § 170.6, subd. (2), 2d paragraph, first sentence.) The law requires a judge to honor all timely section 170.6 disqualification requests. But the law also requires a judge to strike all untimely challenges, and to hear and decide all cases if not disqualified. (Code Civ. Proc., § 170: “A judge has a duty to decide any proceeding in which he or she is not disqualified.)

 I believed that under the law, plaintiffs were not entitled to disqualify me from deciding the new amount of the judgment on remand from the Court of Appeal, because the process prescribed by that Court – “to enter a new default judgment in accordance with the evidence Butler presented at the default prove-up hearing on October 24, 2000” – did not appear to involve “conduct[ing] a new trial on the matter” within the meaning of the statute. My thinking was that a “new trial” is a public courtroom proceeding in which, at a bare minimum, evidence is taken and closing argument heard. But the Court of Appeal had not ordered a new default prove-up hearing; all that was required by its order was for me to deliberate anew in the solitude of my chambers and then write an order affixing the dollar amount of each plaintiff’s damages.

Accordingly, I struck the disqualification challenge as untimely. This was a pure question of law, and I decided it as I thought correct. I was not embroiled in the case; if I had transferred it to another judge, that would constitute a refusal to decide a case assigned to me, a violation of Code of Civil Procedure section 170.

Plaintiffs then petitioned the Court of Appeal for a writ disqualifying me. The Court of Appeal denied the writ petition because it was filed after the statutory deadline for such petitions, but in its denial order it expressed its view that the proceedings on remand did constitute a new trial, so that I should consider myself disqualified. This, of course, settled the matter for me; I could not and would not be the judge who executed the appellate directive to enter a new default judgment in accordance with the evidence presented at the default prove-up hearing.

This ruling by the Court of Appeal should not be taken to indicate that my decision on the section 170.6 disqualification was based on bias or personal embroilment. Rather, my decision was a neutral one, based on the law as I understood it. The Court of Appeal ruled I was wrong on the law.

Meanwhile, at some point plaintiffs also filed a section 170.1 petition alleging prejudice. This is a procedure by which a party alleges and describes actual prejudice or conflict of interest on the part of the trial judge. Unlike the section 170.6 procedure, disqualification is not automatic. The judge either decides to disqualify himself or a hearing is held before a judge of another court to decide whether the judge is in fact disqualified by prejudice or other reason. The disqualification statute explicitly provides (§ 170.2, subd. (b)), that it is not grounds for disqualification that the judge has made decisions in the case adverse to the party who seeks to disqualify the judge. The statute further provides (§ 170.4, subd. (b)) that a challenged judge may strike a disqualification petition if “on its face it discloses no legal grounds for disqualification.” Since plaintiffs’ disqualification petition was based on the rulings I had made at the default prove-up hearing, I struck the challenge as stating no grounds for disqualification.

It would have been a dereliction of duty for me to disqualify myself without a legal basis to do so. In a case in which the late Justice Stanley Mosk was the trial judge, the Supreme Court explained:


“[T]he rule appears to be that when the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him in the trial of the action. It is his duty to consider and pass upon the evidence produced before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose evidence outweighs that of the opposing party. The opinion thus formed, being the result of a judicial hearing, does not amount to that bias and prejudice contemplated by section 170, subdivision 5, of the Code of Civil Procedure as a basis for a change of venue or a change of judges.”


(Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.)


d. The post-reversal proceedings


Of course, once the Court of Appeal opined that the proceedings on remand constituted a new trial, I was barred by law from reassessing damages. That had to be done by a judge other than myself. It cannot be misconduct for me to have refrained from doing what the appellate court said I could not do. And yet one gist of the Commission’s notice appears to be that the appellate court told me to enter a new judgment in favor of plaintiffs and yet I failed to do so.

I wish to emphasize this point, because I certainly understand why the Commission has determined to look into the question whether I refused to obey the instructions of the Court of Appeal. On remand, I could not enter a new judgment, because I had been disqualified from doing so. I was required to leave the task of entering a new judgment for another judge, and that is exactly what I did. I assure the Commission I would never knowingly disobey a ruling by a higher court.

Once it was ruled that another judge would have to determine the new amount of the judgment, there remained the matter of the defendant’s unresolved motion for reconsideration of the pretrial ruling striking her answer as a discovery sanction. I carefully considered whether defendant was entitled to a hearing on that motion, or whether such a hearing was precluded by the dispositional direction in the first appellate decision. This was a difficult and close question of law. It seemed to me that the defendant was entitled to have that motion heard – and that I could not deprive her of that right — unless something in the appellate decision precluded it. My analysis was that under settled principles of appellate law, a general reversal restores the case to the procedural posture it had immediately before entry of judgment, unless the appellate opinion specifies otherwise. At the time of the default prove-up hearing, the motion for reconsideration had been filed and was pending. The appellate opinion said nothing about that motion. Certain that the appellate court had read the record on appeal and saw that the reconsideration motion had been filed before the default prove-up hearing, and knowing that the appellate opinion said nothing about the motion, I concluded the appellate court had not decided to bar the defendant from requesting that the trial court now hear and decide her motion for reconsideration of the ruling striking her answer.

In addition, the reconsideration motion had to be heard by me, not by another judge, notwithstanding the post-reversal 170.6 challenge, because of a 1979 appellate decision, which I called to the parties’ attention, holding that a motion for reconsideration must be heard by the judge who decided the order to be reconsidered, and a party cannot obtain a fresh judge to hear a reconsideration motion by filing a 170.6 affidavit before the reconsideration hearing. (Buchanan v. Buchanan (1979) 99 Cal.App.3d 587, 594-595.)

At the hearing on defendant’s reconsideration motion, defense counsel persuasively argued that the terminating sanction I had imposed – the striking of the defendant’s answer and entry of her default — was vastly disproportionate to the magnitude of the defendant’s particular violation of my discovery order. The discovery in question related solely to questions of the defendant’s liability for the falling plaster, and did not bear on the issue of the extent of the plaintiffs’ injuries. It became clear that it was inappropriate for me to have stricken the defendant’s answer, rather than to impose a lesser sanction more closely related to the harm done to the plaintiffs’ case by the defendant’s failure to timely reveal the name and address of the roof repairman. Accordingly, I granted the motion for reconsideration and again sanctioned the defendant, but this time I tailored the sanction more carefully to the offense, and imposed an evidence sanction precluding the defendant from using the roofer’s testimony at trial unless she fully disclosed his identity well before trial, so that plaintiffs could interview him and, if necessary, take his deposition before the trial.

After I announced this ruling, both counsel professed uncertainty as to what would happen next. The answer seemed obvious to me. The post-reversal section 170.6 disqualification meant that my work on the case was at an end. I would send the case to my presiding judge, who would assign it to another judge. That judge would obey the command of the Court of Appeal and determine the amount of the damages. That judge would also have to deal with the problem of how my order granting reconsideration would affect the new judgment. What that judge would decide was none of my concern. My work on the case was finished. I assumed that the next judge would do his or her duty, enter a fresh default judgment, and that the next step would be that the defendant could file a motion before that judge to vacate the judgment on the ground that it was based on a terminating sanction that had been set aside on reconsideration.

The parties obviously had not yet thought this far ahead. They asked me, at the conclusion of the hearing, what would happen next. I refrained from telling them. I did this deliberately, for two reasons. First, my role in the case had concluded with my order deciding the reconsideration motion. Secondly, I wanted to avoid saying anything that could be construed as advising either side as to what motion or other tactic they should pursue next. I was being scrupulous to maintain my neutrality and impartiality. If the defense counsel had not thought of filing a motion to vacate the second default judgment, I certainly did not want to plant the suggestion in his mind. So I simply told them that I cannot predict the future. Undoubtedly in my selection of words I should have chosen forthrightness over wit. I should have said, “Gentlemen, I am disqualified from further proceedings, and therefore I will refrain from speculating on what may happen next in the case.”

The fact that the Court of Appeal overturned my ruling granting the motion for reconsideration does not show that my ruling was the product of bias or embroilment. To the contrary, at all times I made such rulings and orders as I believed I was required by law to make.


e. The remark about “Be careful what you ask for”


At the conclusion of the default prove-up hearing, having ruled that the law limited the plaintiffs to a nominal recovery because they had procured defendant’s default before serving a statement of damages, I remarked to the parties that the case illustrated the adage that one should be careful what one asks for, lest one get it. I had in mind that this was a lesson lawyers should learn and remember in the formulation of litigation strategy.

I should not have uttered the remark, however. I recognize that now, and I apologize to the Commission for having uttered it. The remark served no constructive purpose; I am no longer a law professor, and any teaching I do should occur in the classroom, not the courtroom. The remark could understandably be interpreted by plaintiff’s counsel as a taunt, and by the Commission as an indication of personal embroilment and bias, or the appearance thereof. I can only assure the Commission that I did not so intend it.

In summary, I have tried to show that throughout this case I acted impartially, dispassionately, with a neutral frame of mind.


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