Tuesday, May 29, 2001
Page 9
PERSPECTIVES
(Column)
Judge Says Two Streets
That Cross Each Other Are the ‘Same Street’
By ROGER M. GRACE
“This appeal concerns the revocation of appellant’s permit to erect a billboard on a corner lot in West Los Angeles. The appeal presents a question of law concerning the applicability of a city ordinance requiring a 600-foot space between off-site signs of a particular size ‘that are located on the same side of the same street.’ In this case, the proposed sign would be within 600 feet of an existing sign which is around the corner and on a different street. We conclude, as a matter of law, that because the two signs are located on different streets, the spacing ordinance does not apply to these particular signs. Accordingly, the trial court erred in upholding the administrative decision to revoke appellant’s permit.”
So begins the opinion in Van Wagner Communications, Inc. v. City of Los Angeles (2000) 84 Cal.App.4th 499.
Given that the ordinance applies only to a proposed sign that would be on “the same side of the same street” as an existing sign, and the proposed sign in question would be on a different street, it does not require a master logician to discern that the statute doesn’t apply. The question is: what black-robed lunkhead would hold that it did? None other than the potentate of Department 86, Los Angeles Superior Court Judge David P. Yaffe.
To some an enigma, to some an anathema, Yaffe, 68, is hailed for his industriousness and the breadth of his legal knowledge, yet assailed for his courtroom bullying of pro pers and lawyers and for his erratic rulings. He marches to the tune of his own drummer, and the tune he’s composed for that drummer to play is discordant. As the Van Wagner Communications case reflects, he may know what the law is, but he doesn’t always know what to do with it. He is proof of the truism that knowledge without wisdom, coupled with power, is hazardous.
How did Yaffe rationalize the application of the Los Angeles ordinance to signs on two different streets? In particular, how could he have concluded that the City of Los Angeles Board of Building and Safety Commissioners validly invoked the ordinance in revoking a permit to erect a sign on Little Santa Monica Boulevard based on the existence of a sign on Sepulveda Boulevard?
Here’s how Justice Rueben Ortega tells it, in his opinion for this district’s Div. One in Van Wagner Communications:
“Judge Yaffe responded that the Board was authorized to interpret the 600-foot spacing ordinance to prohibit signs that, even though located on different streets, are visible from the same side of the same street. Judge Yaffe concluded that because the existing sign (on Sepulveda Boulevard) is tilted at such an angle that it is visible to eastbound motorists on Little Santa Monica Boulevard, Van Wagner’s sign (on Little Santa Monica Boulevard) may not be placed within 600 feet of the existing sign. Judge Yaffe explained: ‘...What it seems to me the board did was it rejected the determination by its subordinate people that these signs were not on the same street, and the board held, yes, if you put a sign at something approaching a 45-degree angle at an intersection, it can darned well be viewed by southbound traffic [on Sepulveda Boulevard] and by eastbound traffic [on Little Santa Monica Boulevard], and if it can be reviewed — if it can be viewed by the same eastbound traffic that views the other sign[, then] for the purposes of the ordinances, they’re on the same street.’ ”
(The bracketed material appears in the opinion.)
There is no ambiguity in the words “same street,” and no occasion for judicial interpretation or invention. For Yaffe to proclaim, in any context, that Sepulveda Boulevard, which runs north and south, and Little Santa Monica Boulevard, an east-west thoroughfare, are “the same street” is lunacy. Put somewhat more gently by Ortega:
“The only way to prohibit the proposed sign based on the 600-foot spacing ordinance is to conclude the signs are on ‘the same side of the same street’ because they are both visible to eastbound traffic on Little Santa Monica Boulevard. The ordinance, however, says nothing about signs that are visible from the same side of the same street. We decline to rewrite the ordinance in that fashion. The ordinance unambiguously states that it applies only to signs that are located on the same side of the same street, which these signs are not.”
The mere fact that a trial judge has been reversed is hardly a scandal. In some instances, more can be said for the reasoning of a reversed trial court than that of the appellate court. Too, there are times when the trial judge has dutifully followed the law as it existed, and the reversal is founded on a re-calibrating of the law which could not have been anticipated, nor within the prerogative of a trial court to do. And, a trial court judgment that’s reversed by the Court of Appeal might be followed by the state Supreme Court reversing the Court of Appeal.
Nor is affirmance synonymous with vindication. There are all too many instances where a trial court is affirmed by rubber-stamping appellate court justices who like the result that was reached and ignore the judge’s departure from the law in reaching that result. (The affirmance in such circumstances generally comes in an unpublished opinion to hide the mischief.)
On the other hand, there are some trial court rulings that are manifestly wrong, insusceptible of defense by any reasonable person versed in the law, and destined for reversal if challenged. These are the jackass rulings.
Yaffe’s ruling in Van Wagner Communications was of that nature.
While Yaffe does know law, and is usually able mechanically to apply it — and has a relatively low reversal rate — he does tend to make far more than his share of jackass rulings.
Take, for example, the case of Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054. There, Div. Three of this district’s Court of Appeal reversed Yaffe’s judgment of dismissal. It was a jackass ruling.
The dismissal was a sanction for the plaintiff having violated a local rule requiring service of the defendant within two months of the filing of the complaint. (I discussed that case last September in a column on frivolous sanctions.)
The complaint in the case was filed on On Dec. 21, 1995, and the plaintiff’s lawyer, Tony Forberg, made at least 19 ill-fated attempts to effect service on the defendant between then and early February of the next year. On Aug. 22, 1996, Yaffe issued an order to show cause for failure to prosecute the case. A hearing was slated for 9:30 a.m. on Sept. 23.
Forberg, a sole practitioner, had an appearance in Compton Municipal Court at 8:30 that morning. Pursuant to his instruction, his “assistant” telephoned Yaffe’s department at 8:30 to advise that Forberg might be late. (Forberg says the person referred to in the opinion as his “assistant” was his wife.) Nonetheless, before Forberg could get to Yaffe’s courtroom, Yaffe dismissed the case. (The lawyer recounts that his wife was told by the courtroom clerk at 8:30 to check back in; she telephoned at 9:35 to report that Forberg was stuck in Compton and would be late, but was told that he needn’t bother showing up because the case had already been dismissed.)
The minute order read:
“Order to Show Cause Re: Failure to Prosecute the Case;
“No appearance by 9:30 a.m.
“Case is dismissed in its entirety.
“It Is So Ordered.”
From that, Forberg inferred, reasonably, that it was his failure to get to court by 9:30 that triggered the dismissed. He proceeded to move to vacate the dismissal pursuant to Code of Civil Procedure §473(b), invoking the provision mandating relief where an attorney, in a declaration, admits fault.
The motion was heard March 5, 1997. As Forberg recounts it, Yaffe “didn’t want to hear anything — he wasn’t amenable to any reasonable argument.”
Denying the motion, Yaffe said in his minute order:
“Although the counsel for plaintiff admits fault in his failure to appear at the hearing at which his clients’ case was dismissed, such failure to appear was not the cause of the dismissal. The case was dismissed because by the date of the hearing, 9/23/96, the case had been pending for more than 9 months and the defendant had not been served. Local Rule 7.7 requires that the complaint be served within 60 days after it is filed. The moving papers also do not state grounds for discretionary relief for Excusable neglect because no attempt to serve the defendant after 2/11/96 is shown and no explanation is given for the unreasonable delay of almost 5 months between the date the case was dismissed and the date that the motion for relief under Code of Civil Procedure Section 473 was filed.”
If Forberg’s non-appearance at 9:30 a.m. on Sept. 23, 1996 was not a factor in the dismissal — as Yaffe insisted in his March 5, 1997 minute order — that means that Yaffe would have dismissed the action on Sept. 23 even if Forberg had appeared, had assured the court that service of process was in the works (it was effected on Oct. 5, 1996), and had recited the numerous efforts to serve the defendant. What the minute order communicates is that nothing Forberg could possibly have said on Sept. 23 would have deterred Yaffe from dismissing the case in light of the violation of the local rule. If that’s so, it reflects closed-mindednesss and rigidity on Yaffe’s part, in the extreme.
In any event, the Court of Appeal did not permit the draconian dismissal to stand. Justice Richard Aldrich wrote:
“We find the trial court failed to consider less drastic measures than dismissal as the first sanction (Gov. Code, § 68608, subd. (b)). Also, the trial court failed to take into account that service of process is ordinarily within the power of counsel as opposed to the client; therefore, in the absence of any information to the contrary, the sanction for failure to serve the complaint within the time period specified by the local delay reduction rule should, in the first instance, be levied against the attorney in the form of monetary sanctions and not against the client by dismissing the case. (Code Civ. Proc., § 575.2, subd. (b).)”
Sec. 68608(b) says, in relevant part:
“Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case.”
There had been no previous sanctions.
Sec. 575.2(b) provides:
“It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.”
Aldrich termed Forberg’s perception that the action had been dismissed based on his tardiness “[a]n understandable mistake since the trial court’s order did not cite either local rule or statutory authority for the dismissal and the order implied the case was dismissed because there was ‘[n]o appearance by 9:30 a.m.’ ”
In Karamzai v. Digitcom (1996) 51 Cal.App.4th 547, Div. Five of this district’s Court of Appeal debunked Yaffe’s notion that he had the unfettered power to tell parties, in effect: "Don’t do what the statute tells you — do what I tell you."
Yaffe told them that any request for a trial de novo following arbitration had to be filed within 10 days of the award. The statute says 30 days.
The defendants sought to file a request for a trial de novo within the 30-day period permitted by statute, but past the Yaffe-imposed 10-day deadline. Yaffe, braying “he-haw,” would not permit the filing, and declared that the arbitrator’s award was the judgment. Div. Five reversed, in an opinion by Justice Orville Armstrong, who wrote:
“A trial court does not have inherent or unrestricted power to extend or shorten the time specified by the Legislature in which an act in a civil action must be done. Rather, the court has such power only to the extent granted by the Legislature.”
There’s broad power, conferred by Code of Civil Procedure §1054, to extend the time parties have to perform acts, Armstrong said, but pointed out that “[t]he Legislature has not granted such sweeping authority to the courts to shorten time.” There are particular instances where it has conferred a power to shorten time — for example, in connection with motions subject to the time requirements of §1005 — but there’s no such authority in connection with requests for trials de novo, the jurist wrote.
In other words, Yaffe cannot, despite his apparent view to the contrary, spew whatever orders suit his fancy.
On Thursday, I’ll discuss a case which appears to entail substantial misconduct on Yaffe’s part, warranting discipline.
Copyright 2001, Metropolitan News Company