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Court of Appeal:
Judge Abused Discretion in Refusing to Hear Argument
Orange County Jurist Erred in Issuing Stay Without Listening to Reason Why He Should Not, Opinion Says
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday granted a petition for a writ of mandate directing the Orange Superior Court to vacate an order staying a product liability action against Kia Motors America, Inc. based on the pendency of a class action in federal court raising the same issues, with the trial judge being scolded for having refused to hear argument against the stay.
The judge is Derek W. Hunt, a jurist known for brusqueness. Hunt stayed the action at what was scheduled to be a telephonic hearing on a demurrer.
An unpublished “By the Court” opinion—signed by Acting Presiding Justice William W. Bedsworth and Justices Richard M. Aronson and Thomas M. Goethals—quotes Hunt as telling Century City attorney Gregory A. Lehrmann of the Knight Law Group, LLP, who was representing plaintiffs Clelia R. Almendarez and Jose R. Preza:
“All right. Another pertinent fact is that the plaintiffs, both of them, also claim to be members of a class of plaintiffs in an existing class action in federal court called Brogan against Hyundai. In fact, in fair to 139 of the plaintiffs grossly long complaint, it says, quote, that the facts alleged in the Brogan case are substantially similar, if not identical, to the facts herein, close quote. So if that’s the case, I don’t see any reason why I should concern myself with today’s demurrer or for that matter, with anything else about the case until the class action’s resolved.
“California law gives the trial court discretion to stay any action if the result is to discourage multiple litigation, avoid unseemly conflicts with other courts.
“And so I am putting this demurrer off calendar. I am ordering the case stayed, and I will give you a status conference next June. And you can report to me what is going on in that class action. Myra, give me a date for next June.”
Attorney Not Heard
Lehrmann tried to explain why a stay would not be appropriate, but Hunt cut him off, saying:
“You know what? I don’t care. This is going to be stayed. This is ridiculous. This is just an attenuating litigation when it needn’t happen. Tell me what happens with the class action, and then we will go to work on this case. But as long as your clients are covered by the class action, that’s that.
“So I will talk to you on June 14th. If something happens before then, obviously, bring on a hearing of some sort and we can sort it out at that time. Okay. You can both hang up.”
Appeals Court’s Opinion
The Court of Appeal, in issuing a peremptory writ, declared:
“Here, the court assumed petitioners were members of a class action in a lawsuit against the same defendant and based on the same facts raised in the petitioners’ complaint. But petitioners had opted out of the federal action….
“Needless to say, respondent court’s preemptory disposition was improper. Had the court permitted petitioners’ counsel to speak during the hearing, as it should have, it would have learned petitioners previously had opted out of the class action litigation, and the hearing on the demurrer could have taken place.”
The justices reminded Hunt of Canon 3B(4) of the Code of Judicial Ethics which provides:
“A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”
They pointed also to Canon 3B(7) which says:
“A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the full right to be heard according to law.”
Hunt Criticized
The opinion remarks:
“The quoted exchange between the court and counsel demonstrates the court fell short in meeting the standards articulated in these canons.
“Trial courts are beset with daily challenges, including large calendars and a lack of resources. Conducting the court’s business during a deadly pandemic undoubtedly added to the burdens and stress judges recently have faced. Regardless, the canons must be followed.”
The three jurists went on to say:
“As the Advisory Committee Commentary to Canon 3B(8) makes clear: ‘The obligation of a judge to dispose of matters promptly and efficiently must not take precedence over the judge’s obligation to dispose of matters fairly and with patience.’ Likewise, our Supreme Court has observed, ‘there is a compelling public interest in maintaining a judicial system that both is in fact and is publicly perceived as being fair, impartial, and efficient.’ ”
The quote from the Supreme Court was taken from Broadman v. Commission on Judicial Performance, a 1998 opinion adopting the Commission on Judicial Performance’s recommendation of a public censure of a Howard R. Broadman, now an arbitrator/mediator.
Hunt has not incurred public discipline by the commission.
The case is Almendarez v. Superior Court, G059881.
Roger Kirnos of Knight Law Group was joined by Cynthia E. Tobisman and Jeffrey Gurrola of the appellate law firm of Greines, Martin, Stein & Richland LLP in representing Almendarez and Preza. Brian Takahashi, Jimmy Y. Park and Jennifer T. Persky of the Torrance firm of Bowman and Brooke acted for Kia.
Other Cases
On April 24, the Fourth District’s Div. Three reversed a judgment for the defendants in a case handled by Hunt. The judge found for the defendants on equitable claims, then dismissed the plaintiff’s legal claims.
That, Acting Presiding Justice Eileen C. Moore said, he had no power to do.
“The trial court’s erroneous dismissal of the legal claims prejudicially denied [the plaintiff] his constitutional right to a jury trial on the legal claims,” she wrote.
On remand, she declared, the plaintiff would also be entitled to have a jury decide the equitable claims because they are intertwined with the causes of action at law.
Attorney Fee Award
The same Court of Appeal division on Sept. 30 reversed an order by Hunt awarding $1,000 in attorney fees in a case in which counsel for the plaintiff, Alejandro Ramirez, had requested $164,768. Hunt provided no explanation for the amount he arrived at.
Justice David A. Thompson wrote:
“Here, while it is mathematically possible to derive the $1,000 awarded by the trial court from some form of lodestar calculation (e.g., two hours at $500 per hour, four hours at $250 per hour, etc.), the record shows the trial court did not use this approach. The $1,000 awarded is a round figure, bearing no relationship with Ramirez’s counsel’s claimed hourly rate ($550 per hour), or the hours claimed by Ramirez’s counsel (196.3), or even the reductions suggested by defendants in their opposition.”
The justice commented that “at least some explanation or justification was warranted” and observed that the transcript “tends to support Ramirez’s contention the award was arbitrary.”
One Side Heard
In a July 29 opinion, the division reversed an order by Hunt dismissing an action. The motion to dismiss was scheduled to be heard on July 24. 2018 but when Hunt noted that the attorneys in that case were before him on an unrelated matter on July 10, he advanced the matter to that day although the opposition had not been filed.
He told the attorney for the plaintiff:
“The way it works is, file when you can. I’m not going to turn it down. I start reading. And when I get bored. I stop reading.”
He added:
“Put the good stuff up front.”
The opposition was electronically filed at 5:37 p.m. that day, but the motion by then had already been granted. The plaintiff moved for justice reconsideration but the motion was denied, in chambers, without an explanation.
The judgment of dismissal was reversed, with a remand for further proceedings, because a stay in the case had “likely” extended the time for service of process.
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