Metropolitan News-Enterprise


Friday, October 16, 2020


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CJP Admonishes Judge Who Was Upbraided in C.A. Opinion for Bias, Discourtesy


By a MetNews Staff Writer


An Alameda Superior Court judge who was slammed in a Court of Appeal opinion for misconduct that necessitated a reversal yesterday received a public admonishment from the Commission on Judicial Performance.

Incurring the discipline was Judge Frank Roesch, 73, who was appointed to the bench Oct. 4, 2001, by then-Gov. Gray Davis.

In both the case in which the appeals court took Roesch to task and another case, the commission said in its “decision and order,” the judge “displayed a lack of the dispassionate neutrality and the courtesy to others that is expected of judges.” It explained:

“In a civil jury trial, he interrogated a witness in a hostile manner, made sarcastic remarks, and mishandled the witness’s assertion of her Fifth Amendment privilege against self-incrimination. In a quiet title action, the judge questioned the parties and counsel in an injudicious manner. Although Judge Roesch believed, based on faulty assumptions, that his intervention in each case was justified, it is the misguided manner in which he attempted to address his misassumptions, and the discourteous way he comported himself toward those appearing in court before him, that is the basis for this discipline.”

Insurance Case

The case in which he bullied a witness was Victaulic Co. v. American Home Assurance Company, in which a company sued its insurer for an allegedly bad-faith refusal to defend it in product liability actions. A jury assessed damages at $1,073,868.80, set attorney fees in the amount of commission $8,259,712.31, and awarded $46 million. Reversal came in a Feb. 26, 2018 Court of Appeal opinion by Acting Presiding Justice James Richman of the First District’s Div. Two.

Roesch’s questioning of claims adjuster Nancy Finberg—an adverse witness called by plaintiff Victaulic Company—was “improper,” Richman said. He wrote:

“While it is difficult to read inflection, or tone, or demeanor from a cold transcript, any fair reading of the transcript here lends support to the insurers’ contention that the court ‘openly mocked Finberg on the stand, acting as an advocate for Victaulic.”

After quizzing her, the judge turned the questioning back to Victaulic’s counsel, Joseph D. Jean, remarking:

“Good luck, Mr. Jean.”

Requests for Admissions

The questioning centered on Finberg’s acknowledgement that she had spotted a potential for coverage, but had verified responses to requests for admissions in which the fact of coverage was denied. She explained under questioning by Jean:

“I’m not an attorney. I’m just an adjuster.”

She said the responses reflected the company’s legal position.

Roesch later resumed interrogating Finberg, himself.

After an in-chambers conference with Finberg and the lawyers, he told jurors that there had been an admission by Finberg “that she perjured herself in her verification.” He announced that “it was determined” that she would “be allowed an opportunity to obtain private counsel and either take the Fifth Amendment and refuse to respond to questions or not.”

The next morning, Roesch required that Finberg return to the stand and, in front of the jury, to invoke the Fifth Amendment. Richman commented:

“This ruling is hard to comprehend, in light of the authorities….”

Commission’s Determination

The commission said in its decision:

“Judge Roesch’s handling of Victaulic…constituted misconduct in multiple ways. His questioning of Finberg was inappropriately aggressive and conveyed to the jury that he questioned her credibility….A trial court commits misconduct if it persists in making discourteous and disparaging remarks to a witness and utters frequent comment from which the jury may plainly perceive that the judge does not believe the witness’s testimony….The appellate court found that Judge Roesch’s questioning of Finberg violated these principles, was improper, and constituted misconduct….The commission agreed.

“It is also misconduct for a trial court to act as an advocate for either side, due to the significance of the court in the eyes of the jury….The appellate court found that Judge Roesch improperly acted as an advocate for Victaulic by intervening in the case and cross-examining Finberg as he did….The commission agreed.”

Quiet-Title Action

The commission also cited misconduct by Roesch in an action to quiet title, saying he “displayed poor demeanor,” uttered “discourteous comments” and engaged in “embroilment.”

It noted that it took into account, as an aggravating factor, prior discipline of Roesch, relating:

“In 2011, he received an advisory letter for making discourteous remarks to a self-represented litigant, who told the judge he was an attorney in another state, but was a teacher in California. During a colloquy about whether the litigant’s service of process was proper, Judge Roesch remarked, ‘Well, I can see why you don’t practice law. You don’t bother to read the law.’ When the litigant asked Judge Roesch if he needed to do anything else for the judge to read his motion, Judge Roesch responded, ‘Well, I don’t mean to be insulting, but that’s an idiotic question.’ When the litigant asked Judge Roesch for an explanation, he responded, ‘It’s not my job to explain something to somebody who says they are a lawyer.’ Judge Roesch also remarked, ‘I sure hope you teach elementary school better than you practice law.’ ”

There was no testimony in the matter. Roesch waived his right to formal proceedings and to seek review by the California Supreme Court.

Tentative Decision

He and his lawyer, David S. McMonigle, appeared before the commission on Oct. 7 to argue against a public admonishment, which had been indicated in a July 17 tentative decision.

McMonigle, of the San Francisco firm of Long & Levit LLP, also represented Nevada Superior Court Judge Robert L. Tamietti who on Wednesday received a public admonishment under a deal; it was agreed that no more severe discipline than that would be contemplated in exchange for the jurist’s retirement from the bench and Wednesday agreement not to serve again in a judicial capacity. Tamietti, it was determined, had evinced bias against the Office of District Attorney.

Also represented by McMonigle was Modoc Superior Court Judge David A. Mason who on Dec. 3 was publicly admonished. The judge, it was found, had a “personal and sustained” relationship with an attorney, Tom Gifford, who appeared before him in more than 80 cases in 2017 without the relationship being disclosed to opposing counsel.


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