Metropolitan News-Enterprise

 

Thursday, May 24, 2001

 

Page 7

 

PERSPECTIVES (Column)

No Settlement? Dismiss the Case or Pay Sanctions—Yaffe

 

By ROGER M. GRACE

 

Few would dispute the proposition that voluntary settlement is the preferred resolution of court disputes, and that efforts by attorneys for the various parties to effect an accord among their clients should be encouraged. The settlement process, entailing a need for concurrence among antagonists on every essential point, sometimes becomes more prolonged than simply battling it out at trial, particularly where the "trial" would consist merely of a hearing on a writ petition. However, settlement does preclude a further drain on court resources in the form of appeals, and has a calming effect on litigants, tending to deter renewed litigation.

These observations are neither profound nor controversial.

Also, few would disagree that no matter how certain it may seem that a settlement will be reached, a settlement is never a reality until all parties have signed an agreement or put the settlement on the record. If a lawyer represents to the court that a trial date should be vacated owing to the imminence of a settlement, that hardly constitutes an ironclad promise to the court that a settlement will be achieved, and it certainly does not give rise to an obligation on the part of the plaintiff to dismiss the action whether a settlement is achieved or not. These are propositions as to which reasonable minds cannot differ.

But Los Angeles Superior Court Judge David P. Yaffe, as many who have participated in or witnessed proceedings in his courtroom will attest, does not possess a reasonable mind. His actions in a recent case, in which the notions expressed above were rebuffed by him, reflect pure Yaffeism.

The case is Cucamongans United for Reasonable Expansion ("CURE") v. California Department of Fish and Game, Los Angeles Superior Court No. B138766. A petition for a writ of administrative mandamus was filed on April 6, 1999.

I became aware of the case on Dec. 22, 1999 when I was in Yaffe’s courtroom on an unrelated matter. I watched as Yaffe huffed and puffed and fumed because a settlement had not been effected in the Cucamongans case, notwithstanding a representation by plaintiff’s counsel on Sept. 24 that one was at hand. He was in a dither because Loeb & Loeb attorney Malissa McKeith, one of the plaintiff’s lawyers, wasn’t present. McKeith, a former State Bar governor, happens to be legally blind, and she was otherwise engaged—undergoing an eye operation.

The Dec. 22 proceeding had been triggered by Yaffe’s Oct. 24 order to show cause why sanctions should not be imposed on McKeith’s firm and its client for not dismissing the action. As he saw it, the Sept. 24 assurance that a settlement was about to be finalized induced him to vacate the Dec. 16 trial date, and a settlement should therefore darn well have been reached. In any event, he wanted the action dismissed.

The jurist continued the matter to Jan. 24, 2000. That date came around, and there was still no settlement, hence no dismissal. Yaffe, in his minute order, recited previous delays and said:

"From the representations made to the court by counsel on December 22, 1999, it appears that the failure to dismiss the case is due to an attempt by petitioner to change the terms of settlement after an agreement was reached and notice of the settlement was given to the court.

"Petitioner, Cucamongans United For Reasonable Expansion, and Loeb & Loeb, LLP, petitioner’s counsel, jointly and severally, are ordered to pay $500.00 to the Clerk of the Superior Court and to deposit proof of payment thereof in this department within 10 days, for failure to obey the order of the court to cause this action to be dismissed.

"Petitioner and its counsel are further ordered to file a Request for Dismissal in this department on or before February 25, 2000, or Show Cause why further sanctions should not be imposed for failure to do so. Hearing on the Order to Show Cause: March 2, 2000 at 9:30 a.m. in this department."

Does Yaffe not appreciate that any representation by an attorney that a settlement is soon to come is conditioned upon the client taking the final step of affixing a signature to an accord or otherwise unequivocally entering into a binding agreement? Does he not understand that clients can run hot and cold, telling their attorneys "yes" on one day and insisting "no" the next? Can he not fathom that attorneys are not responsible for the fickle nature of their clients, and that if a client insists upon a new condition of settlement at the eleventh hour, the attorney is duty-bound to press that demand? Apparently not.

Understandably dissatisfied with the state of affairs, Loeb & Loeb on Feb. 2, 2000 filed a petition for writ of mandate in the Court of Appeal. The case was assigned to this district’s Div. Three, which on Feb. 16 stayed all proceedings in the Superior Court.

Nonetheless, Yaffe on March 2—apparently oblivious to the stay—conducted further proceedings in the case. None of the attorneys of record was present. Yaffe imposed sanctions on Loeb & Loeb and its client, "jointly and severally," in the amount of $1,000 "for failure to obey the order of this court made on January 24, 2000" to dismiss the action. Yaffe added:

"Petitioner and its counsel are further ordered to file a request for dismissal in this department on or before March 23, 2000, or show cause why the petition should not be dismissed for failure to do so."

Div. Three of this district’s Court of Appeal on March 21, 2000 voided Yaffe’s March 2 actions in light of proceedings in the trial court having been stayed. Its four-page order was in the nature of a Palma letter, telling Yaffe it was contemplating issuance of a peremptory writ in the first instance to void the Jan. 24 orders.

The "By the Court" order (signed by Presiding Justice Joan Dempsey Klein, Justice H. Walter Croskey, and Justice Patti Kitching) explained what should not have required explication. It said:

"The record filed in this court clearly establishes that a valid enforceable settlement agreement simply does not exist…. [¶] ….

"The power of the trial court to award sanctions is not unlimited but must be used only in accord with statutory authority….Sec. 177.5 of the Code of Civil Procedure gives the court power to impose sanctions for violation, without substantial justification, of lawful court orders. In the absence of a valid executed settlement agreement, the court’s directive to the parties to settle the case and to file a dismissal of the action is a manifest abuse of its power. Failure to comply with that unlawful order does not warrant sanctions."

Div. Three added:

"The court is without power to order the parties to settle a case and cannot order dismissal based on the fact that the parties failed to conclude the matter by means of a negotiated agreement. The imposition of sanctions was improper."

The Feb. 16 stay, the appeals court said, was "suspended only to enable the [trial] court to vacate and correct its orders," and if it did, the petition would be dismissed and the stay would be lifted.

Yaffe on March 24, 2000, issued a four-page order. He vacated his March 2 orders, remarking that he had not known of the stay. He also vacated his Jan. 24 orders. The judge proceeded to portray the matter as one not entailing any error on his part—indeed, in Yaffe’s eyes, Yaffe does not err—but rather, an instance where his action had been misconstrued. He proclaimed:

"It never has been, and is not now, the intention of this Court to order the parties to settle this case, or to sanction the parties or counsel for not settling the case. It has been and continues to be the intention of this Court, unless otherwise directed by the Court of Appeal, to conduct a hearing to determine whether sanctions should be imposed, and if so upon whom, for the failure to obey this Court’s Order setting the matter for trial on the merits on December 16th, 1999, with no further continuances. Specifically, the Court intends to determine whether it was induced to order the trial off calendar by a false representation that the case had been settled."

It is true that Yaffe had not evinced an intent to impose sanctions based on the parties having failed to settle the case. His intent—and his deed—was to impose sanctions on the plaintiff and its counsel, both on Jan. 24 and on March 2, for failing to dismiss the case. And his intention, expressed on March 2, was to impose further monetary sanctions, and the ultimate sanction of court-ordered dismissal, if there were not a voluntary dismissal by March 23. His stance was, in effect: "You got me to vacate the Dec. 16 trial date upon the assurance the case would be settled, and therefore dismissed, so the plaintiff is required to effect that dismissal whether the case gets settled or not."

In claiming that "[i]t has been and continues to be the intention of this Court" to conduct a hearing to determine if anyone should be sanctioned for making a false representation that a settlement had been reached, and if so, who the recipient of the sanction should be, Yaffe distorts the facts. This simply was not his intent all along, as he claims. On two occasions, he had imposed sanctions, without making any determination as to whether a false representation had been made, and without any pondering of whom he should sanction; he imposed the sanctions on the plaintiff and the law firm representing it because a request for dismissal had not been filed.

It is typically and pathetically Yaffeistic for this sly jurist to utter demonstrably false statements in pursuit of his objective of safeguarding his image of infallibility—an image that exists only in his own mind.

Yaffe went on to set a briefing schedule and a trial date. Oh? The Court of Appeal had expressly lifted its stay only for the purpose of giving Yaffe a chance to vacate his orders. The stay was otherwise in place. This Yaffe gaffe is not particularly significant, except insofar as it is revelatory of the judge’s defective reasoning ability.

The Court of Appeal said at the outset of its March 21 order that "[a]ll parties to the petition are notified it is the present intention of this court to grant the petition and to issue a peremptory writ of mandate in the first instance..., directing the respondent court to vacate its sanction orders and to commence regular court proceedings, including setting a trial date, if warranted...." The concluding portion read: