Metropolitan News-Enterprise


Monday, March 13, 2006


Page 3


C.A.: Judge Erred in Declaring Mistrial Over Objection of Both Sides


By a MetNews Staff Writer


An Orange County judge abused her discretion when, over the objections of both parties to a divorce proceeding, she declared a mistrial when they failed to finish presenting evidence by a deadline she had set, the Fourth District Court of Appeal ruled Friday.

Writing for Div. Three, Presiding Justice David G. Sills said the deadline set by Orange Superior Court Judge Nancy A. Pollard was “arbitrary.” He noted that Pollard cited the fact she was scheduled to move to another department at the end of the year to handle domestic violence cases and told the litigants she did not have any more days for trial available before her departure.

At the time Pollard declared the mistrial in November of last year, Sills said, the trial “only had consumed less than two court days, and there was only one witness left to call and only a few more hours left to go.”

If Pollard truly could not have found time before her assignment changed to complete the trial, the appellate jurist declared, she could have taken the case with her to her new courtroom. Pollard’s new assignment was in the adjoining courtroom, and was still denominated a family law assignment, Sills observed.

The presiding justice cited Family Code Sec. 2330.3, which requires that marriage dissolution actions, “to the greatest extent possible, shall be assigned to the same superior court department for all purposes, in order that all decisions in a case through final judgment shall be made by the same judicial officer.”

He wrote:

“We...hold, since trial was already in progress, that it was ‘possible’ within the meaning of Family Code section 2330.3 for the trial judge, assigned at the time of the trial to a ‘family law’ panel, to have taken the case with her to her subsequent courtroom assignment, and in fact she should have taken it.”

The presiding justice acknowledged in a footnote that Pollard’s “displeasure with the pace of proceedings” in the case was “very understandable.” It was first assigned to her as a long cause matter in 2002, and the trial of reserved issues — the marriage had been dissolved in 2001 — had been continued several times.

Part of day on which the mistrial was declared was consumed by arguments between the lawyer for Deborah Blumenthal and the attorney representing her ex-husband, Edward Blumenthal, over which side was responsible for the delays and for the slow pace of expert testimony and cross-examination. But neither side, Sills noted, asked for a mistrial.

“The case before us is unusual in that the reason for the mistrial had nothing to do with prejudice to a party,” Sills explained, adding:

“The matter thus comes to us in the posture of the trial judge declaring a mistrial over the wishes of both parties. The mistrial was declared for reasons peculiar to the trial judge’s own calendar.”

Rule 6.608 of the California Rules of Court, Sills pointed out, requires a judge to “[h]ear all assigned matters unless he or she is disqualified.”

Citing People v. Bolden (2002) 29 Cal.4th 515, Sills opined:

“Despite the discretionary nature of the decision to declare a mistrial, one can detect in our Supreme Court’s jurisprudence a substantive preference against them.

That is, the high court has narrowly defined the grounds for grants of mistrials, but has emphasized the deferential abuse of discretion standard in ruling on denials of motions for mistrial....”

Because of that preference, the jurist explained, the appellate panel had concluded that “while the appropriate standard of review in this case is abuse of discretion, it is abuse of discretion with elevated scrutiny.”

The implication of the designation of the dissolution proceeding as a long cause matter, Sills said, was that “within the bounds of reason and sound trial court administration” there would be “no arbitrary limits on trial time.”

He commented:

“For our purposes here, the salient fact is that Judge Pollard did not mention anything about the parties’ failure to adhere to any time estimate that they had previously given (assuming, for sake of argument, that that would even be a valid reason to declare a mistrial in Orange County where, in contrast with San Diego or Santa Barbara, there is no rule warning litigants of such a result). At the most there was only an oblique mention of the parties exceeding ‘allotted time,’ and the only referent for that ‘time’ was the judge’s own previously stated 3 p.m. Friday deadline. As this court observed in Abbott v. Mandiola (1999) 70 Cal.App.4th 676..., ‘A trial, unlike grandmaster chess or the last two minutes of a close football game, should not become a race against the clock.’”

Sills conceded that it would be impractical for a judge to embark upon a new assignment bringing along a substantial calendar of unfinished work.

“But surely,” he reasoned, “as to that limited number of family law cases in which the trial judge has already begun trial during his or her tenure on a family law panel, the trial administration and section 2330.3’s interests in continuity strongly favor simply completing the case in the new assignment, and if it is really not ‘possible,’ the burden is on the trial judge to demonstrate why.”

He continued:

“We need only add that the interest of access to justice for family law litigants in particular is implicated by any mistrial granted not because of prejudicial error, but for reasons of internal judicial administration. For people of limited means (as the Blumenthals would appear to be), it is particularly gratuitous to inflict the hardship of the additional attorney fees that must necessarily be incurred if a mistrial is granted because of some change of judicial assignment. The county isn’t going to bear the cost of paying the Blumenthals’ lawyers for two days of wasted trial — they are going to have to bear that burden themselves.”

Noting that Edward Blumenthal supported her petition for writ relief brought by his ex-wife, the appellate court ordered Pollard to finish hearing the case.

Justice William F. Rylaarsdam and Justice Richard D. Fybel concurred in the opinion authored by Sills.

The case is Blumenthal v. Superior Court (Blumenthal), G036590.


Copyright 2006, Metropolitan News Company