Monday, June 12, 2017
Court of Appeal Holds:
Judge Aviva K. Bobb Had No Need to Make Disclosure
Justices Say the Retired Jurist Was Not Obliged to Disclose to the Plaintiff Prior to Arbitration That She and Defendants’ Counsel Are Both in the Lawyers Philharmonic Orchestra
By a MetNews Staff Writer
The Court of Appeal for this district on Friday rejected the contention that a judgment confirming an arbitration award must be scrapped because the arbitrator—former Los Angeles Superior Court Judge Aviva K. Bobb—and opposing counsel, Marc L. Sallus, both play instruments in the Los Angeles Lawyers Philharmonic and this relationship wasn’t disclosed.
While the opinion, which was not certified for publication, treated arguments of appellant Lester Knispel seriously, the characterization of the orchestra by the appellant’s lawyer at oral argument as a “punk rock band” caused Div. Eight’s presiding justice, Trisha A. Bigelow, to query if he was trying to make a joke.
Bigelow said in Friday’s opinion:
“There is no…‘close’ or personal relationship resulting from Judge Bobb’s participation in the Philharmonic with Sallus….[T]heir membership in the Philharmonic is too ‘slight and attenuated’ to require disclosure. Substantial evidence supports the trial court’s findings.”
Bigelow quoted then-Los Angeles Superior Court Judge Suzanne G. Bruguera (now retired) as finding:
“…Judge Bobb (a violin player) and Mr. Sallus (who plays the trombone) both played in the Los Angeles Lawyers Philharmonic. The Court further finds there is zero evidence of any personal relationship between Judge Bobb and Mr. Sallus, and consequently, there was no need to disclose participation in the Philharmonic. The Court specifically finds the Declarations of Marc L. Sallus and the Hon. Aviva K. Bobb, Ret. to be persuasive. Both Declarations establish that the contact between Mr. Sallus and Judge Bobb was minimal at most, and that they did not interact with each other at all, other than to exchange pleasantries every once in awhile.”
Fact Deemed Irrelevant
Bigelow went on to say:
“Our conclusion is unchanged even taking into consideration Appellant’s contention that Sallus and Judge Bobb were not merely members of the Lawyers Philharmonic. Instead, Sallus was on its board of directors while Judge Bobb was its lead violinist. Notwithstanding the fact that there is no evidence in the record to show they occupied these positions at the Philharmonic at the relevant time we fail to see how this changes the analysis. Appellant presents no evidence that a member of the board of directors and the lead violinist would have greater interaction or a closer relationship than the one described in Judge Bobb and Sallus’ declarations.”
Nicholas Tepper represented the appellant and Sallus, along with Justin B. Gold, of the law firm of Oldman, Cooley, Sallus, Birnberg, Coleman & Gold, acted for the respondents.
Tepper told the MetNews:
“This decision is disappointing and incorrect. Both the opposing counsel and the Judge had to try out to become members of the subject group. This is not like joining a bar association. This is more akin to a country club or a fraternity. This is not just a fact that should have been disclosed but one that should have led to immediate disqualification.”
“It is my opinion no judge who sat in any County should be permitted to mediate/arbitrate in that same County after they retire. The conflicts are too varied and obvious.”
“We are pleased with the Court of Appeal Opinion. The Court articulated the actual facts. It is consistent with the practice and legal decisions regarding arbitration. It affirms that Arbitrators and Mediators do not have the additional burden of checking the membership of all of the organizations, churches, temples, bar associations and even amateur musical groups they may have joined. My client is very happy with the result and looks forward to receive his house, which the Appellant is wrongfully holding.
“As to the Los Angeles Lawyer Philharmonic, it is a voluntary organization consisting of 150 to 175 musicians who are also lawyers, judges, paralegals, and others associated with the practice of law. Membership is determined by an audition before Gary Greene, our conductor and founder.”
‘Punk Rock Band’
At oral argument on May 25, this dialogue took place at the outset of Tepper’s argument:
“TEPPER: The respondent’s counsel and the arbitrator played together in a punk rock band called the Lawyers Philharmonic Group.
“BIGELOW: This is a joke, right?
“TEPPER: No, your honor. I will go on to—
“BIGELOW: My understanding is that this was the Lawyers Philharmonic.
“TEPPER: I just said that. It was a punk rock group called the Lawyers Philharmonic.
“BIGELOW: OK. I’m sorry. I’ve been to the Lawyers Philharmonic and I’ve never heard them play punk rock. That’s why I thought you were possibly making a joke.
“TEPPER: No joke, your honor.”
Tepper went on to tell the jurists:
“I think this is a case where the court must think outside of the box. You must not look at this case as lawyers or as esteemed judges of the Court of Appeal.
“You must not look at the LPG as a classical orchestra. Rather, we assert that you must look at it from the perspective of the objective, reasonable person and must step away from ourselves.
“We must step away from those who have attended the LPG or other classical performances.”
The lawyer went on to say:
“We all, and rightfully so, look at the LPG as an esteemed, erudite endeavor where its members could not possibly run afoul of the Rules of Professional Ethics.”
Bigelow interrupted, to assure him:
“We really don’t have any of those preconceived notions, whatsoever, about persons who play in the philharmonic. We’re fully capable of looking at this objectively, regardless of the fact that they’re lawyers or not.”
Tepper said even if there were acceptance of the contention—which he termed “incredible”—that Bobb and Sallus “never spoke to each other and never socialized,” playing music together would create “simpatico.” He elaborated:
“It would be the same charged, emotional experience members of a punk band experience. In fact, it is likely belonging to this exclusive club, and playing with 86 other musicians and backed by a 100-person chorus, that experience would create even greater common, emotional experience than playing in a five-member punk band.”
Alluding the Lawyers Philharmonic concert scheduled to take place yesterday at UCLA, followed by a dinner, Tepper insisted that there is no difference in musicians playing together at Royce Hall followed by a $250-a-plate meal and members of punk rock band playing in a “dive” and having buffalo wings and beer afterward.
Sallus had reserved 20 minutes to speak, but said he would offer no remarks unless there were questions, and Bigelow said there were none.
Bobb, who is a private judge with Alternate Resolutions Center, was appointed to the Los Angeles Municipal Court in 1980, served as presiding judge in 1992, and was elected to the Los Angeles Superior Court in 1994, without opposition. She retired in 2009.
Sallus is a former chair of the Conference of Delegates of California Bar Associations, former president of the Beverly Hills Bar Association, and former president of the Barristers of the Los Angeles County Bar Association.
The case is Knispel v. Shore, B270450.
Copyright 2017, Metropolitan News Company