Tuesday, October 4, 2005
Page 9
PERSPECTIVES (Column)
Some Things Never Change—Including Torres’s Demeanor
By ROGER M. GRACE
Ricardo A. Torres hasn’t changed.
Having turned 76 yesterday, he’s 13 years older than when his tumultuous two-year stint as presiding judge came to an end, and seven years older than when his final term in office as a judge expired. Yet, with age, he’s become no mellower, no more judicious.
He’s the same as he was in 1991 when a presiding judge of one of the municipal courts in the county labeled Torres, then the Superior Court PJ, “an arrogant, bull-headed bastard,” and whom this newspaper characterized the following year as a “despotic twit.”
Torres, serving on assignment, is presently presiding over a trial in the case of Cherry v. 3075 Wilshire Blvd. in which the plaintiffs contend they contracted Legionnaires’ Disease or similar maladies as the result of contaminants in a building. Closing arguments are slated for this morning.
The plaintiffs are not pleased that Torres is presiding. On Friday, they filed a one-chance-in-a-zillion petition in the California Supreme Court aimed at yanking Torres from the case on the eve of the completion of the trial.
The case was originally assigned to Judge George Wu, who last June 29 ordered the plaintiffs to fax their long-delayed initial exhibit list to the defendants’ counsel by 3 p.m. that day and their final list the following day. The plaintiffs were one day late with respect to supplying each list, purportedly because their lead counsel, Robert Scott Shtofman, was injured in a fall on June 29 when attempting to exit a Dash shuttle bus.
On July 7, Wu struck the plaintiffs’ final list of about 1,000 exhibits as untimely, limiting the plaintiffs to the approximately 500 exhibits contained on the initial list. However, he expressly left the door open to a motion to supplement the list with documents that had earlier been placed in the hands of the defendants through discovery. On July 18, the plaintiffs made, ex parte, the motion invited by Wu. Additionally, they sought leave to add three exhibits which had been obtained by them after the discovery cut-off.
The motion dangled. Then, on Wednesday, Aug. 10, the plaintiffs learned that the case had been transferred to Torres for trial (in Central Civil West where long-cause matters are tried), and that Torres would be hearing motions in limine the following Monday (Aug. 15). Proceeding on the notion that the ex parte motion was pending before Wu, personally, the plaintiffs bobbed into his courtroom on an ex parte basis early on Aug. 15 and solicited a ruling. The judge responded:
“At this point it is my understanding that Judge Torres wants to rule on the ex parte, and so therefore, since he is the trial judge, I will allow him to rule on the ex parte.
“If it is a situation where he wanted me to rule on the ex parte, I would, of course, do so. But it’s my understanding that since the case is in front of him, he wants to rule on the ex parte. And given the fact that the case has already been sent to him for trial, I will let him do that unless he decides that because of the issues that are presented to him he cannot rule on it, in which case he will send it back to me and I’ll like make a ruling.”
Torres did not rule on the ex parte motion that day. The following day, Torres announced that the defendants’ exhibits and those mentioned in the plaintiffs’ initial list of exhibits would be the only ones admitted, except for impeachment purposes. This exchange between Torres and Shtofman ensued:
MR. SHTOFMAN: Your honor, with regard to that, as you know we appeared yesterday before Judge Wu. We had a motion—
THE COURT: Judge Wu didn’t rule on anything.
MR. SHTOFMAN: No. He did not. He previously did.
THE COURT: I’m not interested in that, counsel. Let me just tell you the rules we’re making right now. I just ruled on the exhibits. That takes care of that.
MR. SHTOFMAN: I would like to make a record.
THE COURT: You’re not going to make a record.
MR. SHTOFMAN: I need to make a record.
THE COURT: You only get to put on the record what I allow you to put on.
MR. SHTOFMAN: The record is going to be incomplete.
THE COURT: The record is not going to be incomplete. Don’t talk. Sit down. I don’t want to hear.
A short time later, Shtofman persisted: “Are you going to hear our motion?” Torres responded: “No, I’m not.” And then...
MR. SHTOFMAN: Why not?
THE COURT: I just ruled.
MR. SHTOFMAN: What is the basis, because I’m going to really need—this is such an important issue to cut out a thousand exhibits.
THE COURT: The record speaks for itself. I’m not telling you any more.
After a recess, another lawyer for the plaintiffs, Richard Chaskin, took another stab at it. There was this dialogue:
MR. CHASKIN: Your honor, can I just get a clarification on the motion that we have to supplement, just so we have a record? It didn’t appear that the court had actually read the motion. May I inquire, had the court had the benefit of reading the motion?
THE COURT: No, I did not read any motion. I have not looked at it. I never saw it. I have no idea what it is. But all I know is discovery is closed and I’m not considering it and that’s the reason why.
So, Torres rebuffed a motion he admitted that he had not read based on his errant guess that it was a belated discovery motion.
Chaskin sought to disabuse him of his misguided notion, saying:
“For the record the motion didn’t seek to reopen discovery. The motion dealt with supplementing the exhibit list.”
He continued:
“We did appear yesterday morning, Mr. Shtofman and I, and Mr. [Sven] Buncher [counsel for the defendants] was also present in department 33 before Judge Wu. He had actually, he was prepared to start hearing the ex parte at which time we were told by Judge Wu that his clerk had been in contact with your clerk, you wanted everything brought to you and you were going to—that’s why it was all brought over here.”
Torres responded:
“Not true. I didn’t want anything brought to me. The point is I’m the trial judge. It didn’t make any difference to me what he [Wu] did. He had no jurisdiction to do anything.”
Now, it couldn’t possibly be, could it, that Torres is so territorial that he spurned the motion because, after the case came to him, the motion was pressed before some other judge?
Surely, no balanced and mature jurist would act with such pettiness. But we are, after all, talking about Ricardo Torres.
He said during the hearing: “I have no ex parte that was filed before me and so I have no idea” as to the merits of the motion. The clear implication is that if the plaintiffs had not prevailed upon Wu to have made a ruling in the case after that case had been transferred to Torres, Torres would have entertained the motion.
The motion had been made before the case had been transferred to Torres, but the motion had not been decided. The motion was thus pending in the Superior Court. Once the case was transferred to Torres, it was “before” him. Yet, he refused to address that motion, despite efforts of counsel to apprise him of the significance of it. The Municipal Court presiding judge who in 1991 provided an assessment of Torres got it right.
That afternoon (on Aug. 16), Shtofman was not present. This colloquy took place:
MR. CHASKIN: I think I’ve covered everything.
THE COURT: Why don’t you be the lead attorney in this case and you can handle it because it would be a pleasure. It would be a pleasure just to have people—
MR. CHASKIN: I wish I could tell you I was going to be the lead attorney but unfortunately I don’t think that’s part of our plan.
THE COURT: My next question is going to be who’s going to be the lead attorney on the plaintiffs’ case?
MR. CHASKIN: Mr. Shtofman.
THE COURT: So your lead attorney is not here?
MR. CHASKIN: Based upon your discussion with his honor he had some pressing issues he needed to attend to immediately. I don’t know how to say it more politely than that.
THE COURT: If he wants to go to the Court of Appeals for a writ more
power to him. I don’t know how he can get one.
....
I have a lot of experience with Mr. Shtofman. This is his third jury trial in front of me. Normally in this county you don’t see attorneys over and over again, but I’ve been on the bench a long time and this is the third trial I’m going to have with Mr. Shtofman. So I’m aware of Mr. Shtofman and I know how he operates.
Torres was, to say the least, out of line in taking potshots at Shtofman. For him to seek to effect a redesignation of some other lawyer as lead counsel for the plaintiffs was nothing short of impertinent.
If Torres was that anxious to avoid further contact with Shtofman, it just might indicate a bias against that lawyer of sufficient magnitude that Torres was obliged to recuse himself.
On Aug. 18, Shtofman filed in the Court of Appeal for this district a petition for a writ of mandate seeking to require that the order denying the plaintiffs’ motion to supplement their exhibit list be vacated. At that point, voir dire had already commenced. Div. Two denied the petition the day after it was filed, without comment.
On Aug. 31, the lawyer filed a statement of disqualification, predicated largely on rulings Torres had made. The judge struck the statement; Shtofman sought a writ; Div. Two said “no”; the state Supreme Court was asked Friday to intercede.
Attached to the statement of disqualification was an assessment of Torres’s conduct by a woman who had testified in the case as an expert witness. Not being under penalty of perjury, it lacked legal relevance. But it is of relevance in a column about Torres.
The writing took the form of a letter to the Commission on Judicial Performance. It said:
“I observed Judge Torres’ improper demeanor, sarcastic comments, derisive tone of voice, and mocking facial expressions when addressing plaintiff’s counsel and me. He spoke differently to defense counsel; it was consistently in a courteous manner.”
I didn’t witness that, so I can’t say that it’s so. I can say that based on what I know about Torres, I believe it.
Why is Torres, a retired judge, presiding over cases?
How he came to be presiding is simple. He’s been assigned by the chief justice, Ronald George.
But why?
George is surely aware of the turmoil the Los Angeles Superior Court was in during the “Reign of Torres” as the result of the high-handedness of the power-crazed presiding judge. He cannot possibly be oblivious to Torres’s display of the same Queeg-like qualities when presiding in a courtroom.
It is, I submit, an affront by the chief justice to the attorneys and to others appearing in courtrooms to force Ricardo Torres on them.
ASSIGNMENT, NOT APPOINTMENT — In his writ petition, Shtofman grumbled about Torres having been on assignment for six years. I think he has a point, though he didn’t really develop it nor raise it timely.
Successive two-month appointments year after year, for more than six years, defy the state constitutional scheme under which the governor appoints judges to fill vacancies, and the people elect judges to full six-year terms. The California Constitution does say, in Art. VI, §6(e), that “[a] retired judge who consents may be assigned to any court.” The administrative power to make such an assignment does not appear sufficient, however, to authorize the chief justice to create, in essence, full-term judgeships—or indeed, potentially, lifetime appointments.
Under the constitutional scheme, the electorate has an opportunity every six years to replace a judge with someone else. Where there are two-month assignments which collectively exceed six years, the popular prerogative is thwarted.
CONGRATS, LARRY — I was delighted to see on Saturday how well my longtime friend Lawrence Crispo, a retired Los Angeles Superior Court, performed as a judge on “The Law Firm.” He came across as, to use the description my wife uttered as we finished viewing the TV show, “the consummate judge.” He was in control without being over-bearing and was decisive.
“The Law Firm” is a reality show in which the senior partner, Roy Black, dismisses one or two of the associates at the end of each of the eight episodes in the miniseries. It’s a labored concept, badly executed—accounting for the demotion of the show after two episodes from NBC to its cable subsidiary, Bravo.
Kudos also go to Los Angeles criminal defense attorney Deep Goswami, “dismissed” on last Saturday’s show. He displayed admirable graciousness.
Copyright 2005, Metropolitan News Company