Metropolitan News-Enterprise


Monday, April 15, 2019


Page 1


Court of Appeal:

CJP Has No Duty to Divulge Status of Complaint


By a MetNews Staff Writer


The Court of Appeal has affirmed a judgment dismissing the action by a woman against the Commission on Judicial Performance for not letting her know what’s being done in response to her complaint against an Orange Superior Court judge.

The plaintiff, Sue Eicherly, 69, and six others, all but one senior citizens, unsuccessfully sued the judge, Robert J. Moss, and others in the U.S. District Court for the Central District of California alleging that Moss abridged their constitutional rights in cases involving a mobilehome park in which he ruled against them and did so pursuant to a purported conspiracy.

Eichley’s 55-page complaint (with more than 160 pages of exhibits) against the Commission on Judicial Performance (“CJP”), filed Dec. 9, 2016 in San Francisco Superior Court, asserts that the CJP has been unresponsive to her inquiries concerning the status of her April 25, 2016 complaint against Moss. In that complaint, she accused him of “willful judicial misconduct” in connection with the lawsuits he handled in which she was a party.

Needham’s Opinion

Div. One of the First District Court of Appeal on Tuesday affirmed a judgment of dismissal which followed a judge’s sustaining of a demurrer without leave to amend. Justice Henry E. Needham Jr. wrote:

“It is well-established that the confidentiality mandate for investigations prior to the commencement of formal proceedings is critical to the Commission’s function.”

Rejecting her due process claim, the jurist said:

“Eicherly does not allege facts establishing that she has a liberty, property, or other due process interest in the Commission’s investigation of Judge Moss. The Commission’s investigation of the accusations she made about the judge do not threaten to take her liberty or property. Nor has she identified any statutory benefit or interest she has at stake in the Commission’s action.”

Alleged Right Nonexistent

He continued:

“Eicherly cites no legal authority suggesting she has any due process interest, and settled law confirms she does not. Members of the public have no judicially enforceable interest in the government’s decision whether to prosecute someone….Nor can an administrative agency be enjoined to investigate or institute enforcement proceedings against a third-party, where, as here, there is no clear indication that the Legislature intended to subject the agency’s discretionary decision-making to judicial review….Because Eicherly has no right to compel the Commission to take action on her accusations against Judge Moss, she has no due process right to obtain information about the status of the complaint or the Commission’s investigation.”

Needham added:

“[E]ven if Eicherly did have a protectible due process interest, she has not established entitlement to the information she seeks….The Commission elicited information from Eicherly and told her its investigation was pending; she does not demonstrate entitlement to more.”

Marsy’s Law Invoked

The plaintiff has taken the position that Moss committed crimes in the course of handling the cases involving her—including engaging in a conspiracy to obstruct justice and perjury—and that she is therefore a crime victim. As such, she claimed in her action against the CJP, she has rights, under Marsy’s Law, to information.

Needham said:

“Assuming arguendo that Eicherly may be an alleged ‘victim’ under Marsy’s Law and may have adequately alleged a ‘crime’ for purposes of withstanding a demurrer, nothing in Marsy’s Law requires the Commission to reveal information about its investigation or to have the alleged ‘judge crime’ prosecuted.”

While a crime victim does have a right under Marsy’s to confer with a “prosecuting agency” concerning a possible arrest, the CJP is not a “prosecuting agency,” the jurist pointed out.

Whatever obligations a “law enforcement agency” has to provide information to a crime victim, he added, the CJP has no such duty.

Additional arguments were also found to be without merit.

The case is Eicherly v. Commission on Judicial Performance, A151723.

Federal Action

Each of the plaintiffs in the federal action had been either a resident in the Palm Beach Mobilehome Park, located in the City of San Clemente—as Eicherly had been—or an owner, or both. In the state proceedings, they were among those who sued in various actions to convert the mobilehome park into a “resident ownership” one and to block a sale of the park.

Among numerous defendants in the Dec. 21, 2016 federal action were, in addition to Moss, the Orange Superior Court’s then-presiding judge, Charles Margines, and the three members of the Fourth District Court of Appeal’s Div. Three who affirmed certain decisions by Moss: Presiding Justice Kathleen E. O’Leary, Justice William W. Bedsworth, and then-Justice William L. Rylaarsdam, now retired.

The complaint—which comprised 89 pages—or 225 pages, counting the exhibits—alleges that “the Judicial Officers agreed and conspired with each other and with the other Defendants in this case” to bring about Moss’s adverse rulings.

“Against the non-judicial officer defendants, Plaintiffs sue Defendants for damages on causes of action for the non-judicial Defendants having wrongfully sold the Palm Beach mobilehome park, including Plaintiffs’ homes, in a transaction fraught with breach of fiduciary duty, self-dealing, and aiding and abetting of breach of fiduciary duty,” the complaint sets forth.

Suit Against JAMS

The plaintiffs had previously sued the alternative dispute resolution company JAMS and a principal in it, former Court of Appeal Justice John Trotter, in connection with mediation in connection with the litigation. In their complaint against Moss and the others, they asserted:

“[T]he Judicial Officers’ alleged conspiracy was based on a desire to protect Justice Trotter and to secure positions for themselves at JAMS upon retirement.”

District Court Judge Cormac J. Carney on March 29, 2017, dismissed the action with prejudice under the Rooker-Feldman doctrine under which federal courts have no jurisdiction over de facto appeals of state court judgments.

A Ninth U.S. Circuit Court of Appeal panel on Jan. 3, 2018, said in a memorandum opinion that Carney was correct in dismissing the action, but erred in doing so with prejudice, declaring that on remand, it must be dismissed without prejudice so that the claims could be pursued in state court.

On Feb. 1, 2018, Carney obliged.

Recent Development

In an unpublished state Court of Appeal opinion rendered Dec. 17, 2018, in Chodosh v. Palm Beach Park Association, G053798, the Fourth District’s Div. Three affirmed in part, and reversed in part, an April 2016 determination by Moss that Eicherly and her six litigation cohorts owe money—ranging from $81,172.09 to $159,327.77—to the Palm Beach Park Association for unpaid rent on their spaces.

It was unclear from the record, Bedsworth said, whether the appellants owned mobilehomes—which are defined as exceeding 320 square feet—or recreational vehicles (“RVs”), which are smaller. The significance, he explained, is that state regulations require mobilehome park operators to make sure that each unit has a certificate of occupancy or a “Mobilehome Installation Acceptance”—but, under the Health and Safety Code, this does not apply to RVs.

There was no official certification that any mobilehomes in the park had been properly installed and, under a 2008 opinion by Rylaarsdam in Espinoza v. Calva, this was a defense in an action for unpaid rent, Bedsworth said, pronouncing:

 “The judgment against appellants for unpaid rent must therefore be reversed and the case remanded for an evidentiary hearing, if for no other reason than to examine the factual question of whether each of appellants’ units exceed 320 square feet. If the hearing reveals that a given appellants’ unit is less than 320 square feet, the judgment is to be reinstated against that appellant.”

Eichley’s Lawyer

Patrick Joseph Evans of Evans and Associates in Huntington Beach represented Eichley in the trial court and on appeal in the various court frays.

In the Dec. 17 opinion, Bedford remarked:

“Appellants’ counsel Patrick J. Evans feels that Judge Moss is biased against him. That bias is, in fact, the major theme of his opening brief. Time and time again, Attorney Evans complains that Judge Moss turned a blind eye to ‘illegality’ and what Evans describes as a ‘real estate crime scene.’

“These are unfair allegations….”

Bedsworth said:

“[N]ot once in the 60 pages of the appellants’ opening brief does appellants’ counsel ever actually quote anything Judge Moss said or wrote that shows any sort of bias or preconception. Quite the opposite: We’ve been through this record and can only compliment Judge Moss for extreme judicial restraint. All Judge Moss did—besides hold his temper—was to rule against appellants on a number of occasions. It is well established that adverse rulings—even many erroneous adverse rulings—are no basis for a claim of judicial bias.”

Pattern of Conduct

Bedsworth went on to comment:

“…Attorney Evans has engaged in a pattern of inflammatory accusations against any number of judges who have ruled against him, including not only Judge Moss but the Presiding Justice of this Division. Worse, at oral argument in this court, he practically invited us to hold him in contempt for accusing Judge Moss of fixing the result….

“…A number of the adverse rulings made by Judge Moss against Attorney Evans’ clients were nothing but the natural outcome of the fact Attorney Evans did not raise issues timely or otherwise poorly articulated them. Even the fairest judge sometimes cannot make up for poor pleading or poor research by a litigant’s counsel.

“We choose not to set contempt proceedings for Attorney Evans for the calumnies he has casually hurled at Judge Moss, nor for those directed at this court. We conclude he craves the attention of such a hearing more than he would suffer from its result. We choose to deny him that attention and write off his intemperance to an excess of zeal on behalf of vulnerable and elderly clients.”


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