Wednesday, August 15, 2012
Department 36: The Judge Is a Bobble-Head, His Clerk an Unbridled Dominator
By ROGER M. GRACE
Litigating in the courtroom of Los Angeles Superior Court Judge Gregory Alarcon is about as pleasant as an IRS audit or a spinal tap.
First, there’s his clerk, Cheryl Mason. She is overbearing and snotty. The clerk—whose name plate reads “Ms. Mason”—addresses lawyers as “counsel,” and when she speaks that word, with haughtiness and disdain, you would think the term were a put down, akin to “little boy” or “little girl.”
One time a phone call came in about 8:45 a.m. Ms. Mason was just sitting there, doing nothing. She told the caller to phone back at 9:00 because the department takes no calls between 8:30 and 9.
When she walks in the courtroom, she struts with heavy steps. (By the way, Ms. Mason has a tattoo on one ankle.)
When attorneys use Call-In, she lectures them not to rustle their papers because it can be heard in the courtroom, and warns that she has standing permission of the judge to hang up on any caller disregarding the admonition. In one episode I witnessed, she interrupted court proceedings to bellow, “Counsel…” advising that his shuffling of papers was audible. He insisted he wasn’t touching his papers; the hearing resumed, but not for long; Ms. Mason was apparently detecting some static on the line, discernible to her finely tuned hearing; she emitted a sigh of exasperation, and hung up on the lawyer. The judge smiled.
Canon 3B(4) of the Code of Judicial Ethics requires that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of all court staff and personnel under the judge’s direction and control.” (Emphasis added.)
Alarcon is in violation of that canon. He exerts no control over his domineering clerk. Maybe he’s afraid of her.
Alarcon is, himself, patient and courteous. He sits and listens as attorneys argue motions, asking no questions and making no comments. Clearly, he has not read the papers.
One attorney who phoned in, and thus had not seen the tentative ruling, queried whether the order was against the husband alone, or also the wife, and Alarcon fumbled through the tentative to find out what the ruling (supposedly his ruling) was—being spared the task when opposing counsel disclosed the answer.
Though he’s patient and personally courteous, I can’t say that Alarcon is “dignified.” From what I observed the four times I was in his courtroom, he comes across like a clueless ninny. Pretending to understand what’s going on, he keeps nodding his head up and down. Alarcon does not look like a judge; he looks like a black-robed Bobble-Head doll.
Behaving like a goof is not consonant with the requirement of Canon 2A that a judge “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Gregory Alarcon is the son of Ninth U.S. Circuit Court of Appeals Judge Arthur Alarcon—which probably explains why he was appointed.
You can dismiss these comments as the grousing of a person stung by rulings by Alarcon’s research attorney, or credit them as being what they are: objective observations concerning a judge who is a defective unit.
I’ve solicited comments on Alarcon.
•ROBERT N. PAFUNDI, a Beverly Hills entertainment lawyer, told me yesterday of a case in which he represented a child actor, at the tail end of proceedings. He says he feels “strongly” that Alarcon “did not understand my arguments and that he had not read my papers.”
Alarcon ruled against Pafundi’s client, and the Court of Appeal, in a 2007 decision by Div. Two of this district’s Court of Appeal reversed, 3-0. Justice Kathryn Dodd wrote that a guardian ad litem should have been appointed for the child and observed: “It is the court’s responsibility to protect the rights of a minor who is a litigant in court.”
She termed the failure of Alarcon and others to see that need “nothing short of stunning.”
•THE FOLLOWING COMES from an attorney who commenced a case before Alarcon in 2006, with summary judgment being granted to the other side in 2011. He writes:
During the early years, Judge Alarcon had a practice of providing written tentative rulings at the time of the hearing….The tentative rulings provided substantial analysis of the matters at issue. I do not know how much, if any, involvement the Judge Alarcon had in drafting these tentative rulings. I don’t recall that the Court ever deviated from a tentative on a motion in my action.
On the eve of trial which was expected to be a fairly complicated 3 week jury trial, the Court decided to stay the action. In September 2010, the Court set a hearing to review status. At the hearing, the Court again reset the trial for July 12, 2011, although the reasons previously given for the stay had not changed.
Following the reactivation of the action, there were a number of motions filed. However, the Court had apparently changed its practice of providing tentative rulings in advance of argument and the Court did not provide tentative rulings or reasoning during oral argument. Rather, the Court would simply listen to oral argument and take the matter under submission.
The appearance of Judge Alarcon changed dramatically from 2007 to 2011. To me, Judge Alarcon did not have the appearance of a healthy man which was a concern expressed also by my opposing counsel.
As the new trial date approached, opposing counsel filed a motion for summary judgment. This motion was extensively briefed. Oral argument was lengthy but did not result in any questions or comments by Judge Alarcon. The Court later granted summary judgment. Motions for reconsideration and other motions related to costs and the form of judgment were conducted by Judge Alarcon in the same manner and without comments or questions from the bench. Rulings were not made at the time of the hearing….
I cannot fault Judge Alarcon on judicial temperament. Judge Alarcon has always been polite, courteous, accommodating and respectful both towards me and towards others in my presence.
•A VETERAN ATTORNEY WHOSE firm had a major case before Alarcon says: “[O]ur experience has been terrible with Judge Alarcon,” complaining:
“He has NEVER ruled from the bench, and always takes his matters under submission. He has detailed tentative rulings that we believe are written by his research attorneys (it is fairly obvious, based upon some of his rulings that, whoever is writing the opinions has no practical real-world law experience). Even if both sides point out that something in his tentative ruling is incorrect, he does not change a word (or even a letter) of his tentative ruling. He has ALWAYS adopted his tentative ruling, mistakes included, as his final ruling several days later.”
The lawyer says the only reason he won’t “jump on a ‘get rid of Judge Alarcon’ bandwagon is that at least he is civil to the lawyers in his courtroom.”
•ONE PROMINENT PLAINTIFFS’ attorney tells me that he has heard “for years” that Alarcon doesn’t read the papers that are filed—and remarks that “whenever assigned” to his courtroom, “I would file a peremptory challenge.”
There are comments posted on a website accessible to plaintiffs’ lawyers who subscribe to it.
•ONE LAWYER QUERIED as to whether he should use a Code of Civil Procedure §170.6 on Alarcon, and this assessment of the judge appears in response:
“He’s an intellectually bankrupt glorified bureaucrat. Dump him at once if [your] case has any value. I have wondered [the] few times I had [the] misfortune of being assigned to him as to what his true motivation in becoming a judge was; cause he’s as close to being a judge...as a pig [is to] being a ballet dancer. Needless to say, I think he’s the biggest joke of a judge in Central.”
In an additional posting, the commentator observes that Alarcon’s “brain tissue is strangely anatomically outside his body, residing inside his law clerk’s skull.”
•ANOTHER PRACTITIONER REMARKS:
“When he was about to MSJ me [grant a motion for summary judgment to the opposition] on a point of federal pre-emption which was too complicated for his dinosaur brain, opposing counsel brought an obscure long case, which had nothing to do with the ruling to court. Not cited in any of the papers; not even raised for the first time in the reply brief...this was beyond the reply brief.
“He gave me 2 (count ’em) two minutes to look the case over to tell him why he shouldn’t dismiss my case through MSJ. Told me every fifteen seconds how much time was left. I saw the basic ruling, saw the flaws, when the 2 minutes was up, I started to say ‘here is why this case is off point, and even if the dicta were applicable it would cut in my favor’ and he says, ‘never mind, MSJ is granted’ and walks off the bench.
“This is the case that the other side settled for full value on receiving my appellate brief.”
That same lawyer says in a separate posting:
“Alarcon pretty much lets his clerk make significant legal determinations, and uses MSJ to clear his calendar when it is too busy to suit him….
“He is, in fact, easily manipulated, and this probably accounts for his willingness to make decisions that make little sense in law and motion, and his relative passivity during trials.”
•YET ANOTHER LAWYER relates:
“I have him up on appeal right now. He can’t make up his mind and changes it on a moment[’]s notice. We argued jury instructions for an hour and he ruled in my favor and then on one instruction he started to give it and then said in front of the jury, ‘no not this one.’ I asked for sidebar and said he had ruled in my favor. He said he changed his mind.”
The critique continues:
“Defendant held back on financial docs and then when their expert started talking about these docs I objected. He told expert to forward me copies which he did at 10pm that night. Several hundred pages. Then I had to reopen the next morning and try to cross examine. His response when I complained was that ‘what are you complaining about, you got the docs.’ ”
•A CASE IS RECOUNTED by a critic where liability was admitted. The defendant’s doctor produced a 57-page report. Both sides wanted to put off the trial so they could mediate. Alarcon appeared reluctant to grant a continuance. The plaintiff’s lawyer says:
“[W]e agreed to dismiss the case without prejudice, to be refiled in six months if we don’t settle, with the [defendant] waiving any statute or claim deadlines, and no further discovery except experts depos. Why in this time of courtroom shortages and budgetary issues would a sitting judge refuse litigants the opportunity to settle? In 37 years of practice I have never experienced anything like this.”
“I did have the chance to watch a trial in his courtroom. During final argument, plaintiff objected that the defendant was arguing evidence that had not be presented to the jury. Judge Alarcon’s response was simply ‘deal with it in your rebuttal.’ ”
•A CONTRIBUTOR WRITES:
“Here are my thoughts on Judge Alarcon:
“1. His demeanor is calm and collected and during argument you get the feeling that he is paying attention. (I found that not to be the case).
“2. His temperament, while mellow and lawyer friendly, is not good. More like biased and plenty of bizarre rulings that places the party at the receiving end in a box, forcing undesirable choices.
“3. He favors large firms and will ignore the law.
“4. He is not smart and will be vindictive.
“5. He sanctioned one of our listmates for $5K or more for something stupid. Check archives.
“6. While you can do worse in Central, I personally, will ding him.”
There is a consistency to the comments.
Alarcon sits and listens, patiently. But he absorbs about as much as a viewer of a Portuguese film, without subtitles, who doesn’t speak Portuguese.
He pretends to be a judge. He does not function as such. Most of his colleagues, in light of shriveling resources, are working harder than ever. Alarcon, who draws the same pay as they, is a slacker, a figurehead when it comes to deciding motions.
What manner of man is it who thrives in being perched at the highest latitude in the courtroom, addressed as “Your Honor,” and being cloaked in a black robe, but who is unwilling (or unable) to perform the tasks attendant to the office he enjoys?
That robe and other apparel become transparent in the context of a Hans Christian Andersen tale. Though he fools many into thinking he’s an emperor cloaked in finery, he is but a stark naked buffoon, with a bobbing head.
Copyright 2012, Metropolitan News Company