Metropolitan News-Enterprise


Thursday, February 15, 2007


Page 1


C.A. Rejects Claim Judge Was Mentally Incompetent to Decide Case




Litigants who claim that the judge who ruled against them following a bench trial—and who later retired after the Commission on Judicial Performance questioned his fitness—was mentally incompetent are not entitled to a new trial or to seek discovery of the judge’s medical records, the Court of Appeal for this district has ruled.

Justice Thomas Willhite, writing Tuesday for Div. Four, acknowledged that Los Angeles Superior Court Judge Rodney Nelson’s mental health was called into question several months after the judge ordered developer Robert Bisno and his wife Jeannette to remove gates they had installed in front of their Beverly Hills home.

But nothing in the transcript of the trial indicated that Nelson had any unusual difficulty in remembering and evaluating the testimony, the justice said. The Bisnos’ counsel, Willhite noted, acknowledged at a hearing on their post-judgment motion that he saw nothing that he recognized as a sign of mental impairment during the trial.

Luxury Community

The suit, brought against the Bisnos by the homeowners’ association in their luxury community of North Beverly Park, attacked the gates and a sculpture the couple had placed in their motor court without the approval of an architectural review committee as being in violation of covenants, and as constituting nuisance and trespass.

Nelson tried the case in March 2004 and issued a permanent injunction the following month. It was affirmed on appeal in June 2005, a month after Nelson left the bench on extended medical leave.

Nelson never returned to work. The CJP initiated involuntary retirement proceedings in December 2005, saying the judge suffered from “degenerative brain disease,” and he retired in March 2006 rather than face a fitness hearing.

Motion to Disqualify

The Bisnos, meanwhile, sought Supreme Court review of the case. Their petition was denied, and a remittitur issued in October 2005.

They then moved to disqualify Nelson for cause under Code of Civil Procedure

Sec. 170.1(a)(7), on the ground that he suffered an impairment of memory preventing him from recalling the trial testimony.

They later filed a motion to dissolve the injunction, arguing that the impairment required that the injunction be dissolved in the interests of justice, and contended that Nelson’s failure to respond to their Sec. 170.1 declaration constituted an admission that he was impaired at the time he issued the injunction.

The motion to dissolve the injunction was denied.

That ruling was correct, Willhite said, because the statutory procedure for disqualification for cause does not apply to what amounts to an attack on a final judgment. Assuming that a judge’s disability is an equitable ground for dissolution of a permanent injunction, the justice added, the defendants failed to show that the denial of their motion to do so was an abuse of discretion.

The transcript, Willhite write, showed that there were no more than “minor lapses” in Nelson’s memory, such as his inability to recall testimony by the Bisnos’ neighbor, Mike Medavoy, that he liked the disputed sculpture. In contrast, the justice said, the plaintiffs “produced voluminous excerpts demonstrating instances of the trial judge’s command of the proceedings and the evidence.”

The justice went on to say that the trial court did not abuse its discretion in denying the defendants’ request to discover Nelson’s medical records. Such discovery, if permitted at all, will only be allowed upon a showing that “reasonably suggest[s]” a relationship between the judge’s medical condition and the ruling being challenged.

The case is North Beverly Park Homeowners Association v. Bisno, 07 S.O.S. 776.


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