Metropolitan News-Enterprise


Thursday, August 18, 2011


Page 1


S.C. Declines to Hear Appeal of Phil Spector Murder Conviction




The California Supreme Court yesterday unanimously declined to review a Court of Appeal ruling affirming the murder conviction of legendary music producer Phil Spector.

The justices, at their weekly conference in San Francisco, left standing the ruling of this district’s Div. Three in People v. Spector (2011) 194 Cal.App.4th 1335. The panel handed down the decision May 2 in an opinion by Presiding Justice Joan Dempsey Klein, which was modified on May 5 and May 26, when the court denied Spector’s rehearing request.

A jury at Spector’s second trial—the first resulted in a deadlock—found him guilty of second degree murder in the death of actress Lana Clarkson at Spector’s Alhambra mansion. He is serving a prison sentence of 19 years to life.

The panel said Los Angeles Superior Court Judge Larry Fidler did not abuse his discretion in allowing prosecutors to call to the stand five women who said Spector had threatened them with guns in the past. While those incidents dated back over a period of years, they were “admissible to prove that the cause of Clarkson’s death had been neither an accident nor a suicide.”

Victim’s Mindset

The justices also dismissed the contention that Clarkson was despondent and might have killed herself with a gun at Spector’s home. In making that ruling, the panel pointed to evidence from her mother that suggested Clarkson was hopeful about the future.

Klein had rejected defense claims that prosecutors impugned defense counsel and defense witnesses, in part by commenting on the high fees charged by the defense experts. The panel also upheld the use of a videotape from a hearing held outside the presence of Spector and the jury.

On the tape, Fidler was seen interpreting the testimony of a key forensic witness about the position of blood spatter on Clarkson’s body. The defense said the judge crossed the line between serving as a judge and as a witness.

“A trial court’s power, indeed its responsibility, to clarify testimony is well-settled in California,” the panel held.

Attorney Fee

In other conference action, the high court left standing a First District Court of Appeal ruling that threw out an attorney fee arbitration award on the ground that the arbitrator should have disclosed that he practices in the field of attorney-client fee disputes.

The justices voted unanimously to deny review of the May 5 ruling of Div. Two in Benjamin, Weill & Mazer v. Kors, Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40.The court also denied a request to depublish the Court of Appeal opinion.

The ruling was the second in favor of Nancy Hurwitz Kors, a psychologist who is contesting an award of more than $100,000 to a San Francisco firm that defended her in a tort action.

The appellate panel had granted rehearing on its own motion to determine whether the statute giving clients the right to mandatory arbitration of fee disputes affected Kors’ rights to an ethics disclosure under the California Arbitration Act.

Following supplemental briefing, the court concluded “that the arbitration agreement is enforceable under the CAA and the trial court erred in directing arbitration pursuant to a process governed by the [Mandatory Fee Arbitration Act.] “ Kors, the jurist said, thus had the right to disclosure of facts that would cause a reasonable person to doubt the arbitrator’s impartiality.

The firm, Benjamin, Weill & Mazer, had represented Kors in a suit by Alette and Robert Temple. The Temples sued Kors, a psychologist and professional adoption facilitator, after a woman to whom she introduced the couple turned out to have faked her pregnancy and defrauded them out of thousands of dollars.

The suit eventually ended with a voluntary dismissal, but not before Kors incurred more than $200,000 in legal fees. Her motion to recover fees from the plaintiffs, under a Family Code section that allows a fee award to the prevailing party in an action for violation of the statutory obligations of an adoption facilitator, was denied.

That denial was affirmed by the Court of Appeal in an unpublished 2006 opinion. By the time the appeal was concluded, Benjamin Weill’s billings to Kors were close to $300,000, with nearly $70,000 outstanding.

A Contra Costa Superior Court judge ruled that the parties were bound by a provision in the fee agreement giving the Bar Association of San Francisco jurisdiction to conduct binding arbitration.

The BASF appointed three arbitrators, including Sean SeLegue, a partner at Howard Rice Nemerovski Canady Falk & Rabkin. The panel heard the case in September 2008, and six months later issued an award in favor of the law firm for $76,000 in unpaid fees and costs and $26,000 in accrued interest, for a total award of $102,000.

Kors opposed the firm’s motion to confirm the award, and moved to vacate it on several grounds, including Code of Civil Procedure Sec. 1286.2(a)(6)(A), which provides that an award shall be vacated if the arbitrator “failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware.”

Kors’ attorney argued that SeLegue’s “active and pervasive representation of law firms in disputes against clients,” particularly during the time that Kors’ case was being arbitrated, was a ground for disqualification. He explained in a declaration that he had fortuitously” noted, in reading a recent state Supreme Court opinion, that SeLegue was counsel for a large law firm that was challenging the denial of a petition to compel arbitration of a dispute with a client over fees.

Upon further inquiry, the declarant added, he had learned that SeLuegue argued that case before the state high court six days after the arbitration hearing in Kors’ matter, and that at the time he was preparing the arbitration award in favor of Benjamin Weill, he was also working on a malpractice suit against DLA Piper US.

Contra Costa Superior Court Judge Thomas Maddock confirmed the arbitration award.

But Presiding Justice J. Anthony Kline, writing for the Court of Appeal, said the parties, the trial judge, and the arbitrators had—in “the most astonishing aspect of this case”—overlooked two important points: the BASF’s rules do not permit predispute arbitration agreements, and do not incorporate the mandatory disclosure provisions of the CAA.

It was error, the jurist wrote, for the BASF to conduct the arbitration. And the error was prejudicial, Kline said, because it deprived Kors of her right to disclosure of the nature of SeLegue’s practice.

 The court reasoned that under the Ethics Standards for Neutral Arbitrators in Contractual Arbitration, adopted by the Judicial Council as mandated by Sec. 1281.9, an arbitrator is required to disclose “any matter even if it is not specifically enumerated in the standard, if it ‘[m]ight cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.”

Kline emphasized that the court was not itself questioning SeLegue’s impartiality. But he concluded that a reasonable person might doubt that an attorney specializing in professional responsibility, advertising that expertise on his firm’s website, and representing large law firms in major, ongoing cases of that type, would be impartial in an attorney-client fee dispute.

The panel also concluded that Kors was entitled to attorney fees for enforcing the arbitration clause.


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