To the Commission on Judicial Performance: Take a Look at This One

Thursday, May 31, 2001

Page 9

PERSPECTIVES (Column)

To the Commission on Judicial Performance: Take a Look at This One

By ROGER M. GRACE

Perform a public service. Clip this column and send it to the Commission on Judicial Performance with a note that it ought to investigate.

The key facts were revealed in a front page article in a Los Angeles legal trade paper on Oct. 23, but apparently no disciplinary probe ensued.

Los Angeles Superior Court Judge David P. Yaffe not only found a party in indirect contempt of court in the absence of jurisdiction—no order to show cause was ever prepared, let alone served—but seemingly sought to cover up the error. He caused an amended judgment to be filed containing false recitals, creating an illusion of jurisdiction.

If what appears to have happened did, Yaffe should be censured.

The contempt adjudication was reversed on Sept. 28 by Div. One of this district’s Court of Appeal in Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281.

"[T]he court had no jurisdiction to do what it did," Justice Miriam Vogel wrote. "Its orders are void."

An order to show cause is akin to a summons, and without it, a contempt proceeding may not be conducted, Vogel explained.

Not dealt with in the opinion was the assertion by the alleged contemner that Yaffe knew of the defect when he adjudicated it to be in contempt.

Here’s the chronology:

Dr. Sheila Moore, a radiologist, wanted to see the books of a medical corporation in which she was a shareholder. She was denied access, and brought a petition for a writ of mandate. Yaffe granted her petition, and a writ was issued on Aug. 16, 1999.

Dissatisfied with the extent of compliance, Moore sought an order to show cause re contempt. At a hearing on Jan. 26, 2000, Yaffe scheduled a contempt hearing for March 28, 2000. Notice was waived.

The defendant’s attorney, sole practitioner Barry B. Kaufman, came to realize that the March 28 hearing date would be a problem for him. He had a two-day trial scheduled in San Francisco for March 27 and 28. Kaufman on March 22 made a motion for a continuance of the contempt proceeding, explaining that when he agreed to the scheduling of the contempt hearing for March 28, he was of the impression that the San Francisco trial would be postponed.

Most judges would have granted a continuance under these circumstances. Asking Yaffe for a continuance, however, is like seeking an endowment from a miser.

Yaffe advised Kaufman that the court does not "allow lawyers to schedule themselves into conflict and then continue one of the matters when one...of their cases doesn’t settle," adding:

"The reason we don’t do that is because it gives our trial dates no credibility when we do that. And it is ineffective calendar management."

Kaufman showed up in court in San Francisco on March 27. The matter did not conclude that day, and he was ordered to return the next day. On the morning of March 28, the San Francisco judge had his clerk telephone Yaffe’s clerk to explain that Kaufman’s presence was required there.

Yaffe called the case, made mention of the telephone call, and commented: "[A]s I explained to Mr. Kaufman when he was last here, I don’t think that he’s entitled to schedule himself to be in two places at one time and then demand a continuance of one of those hearings when he scheduled himself into the conflict because he couldn’t be in two places at once." Yaffe then proceeded to do what he was not entitled to do: he took out his frustrations with the lawyer on the client. He conducted a default contempt hearing, and found the unrepresented client, Cedars-Sinai Imaging Medical Group, in contempt.

Yaffe on March 30, 2000, signed a "Judgment, Order and Findings re Contempt Trial." In it, he scheduled a penalty hearing for April 14.

At that hearing, Kaufman begged for mercy for his client, asking that he, personally, be sanctioned for his error in calendaring rather than his client being punished. Yaffe fined the medical corporation $1,000.

On May 12, he ordered that it pay Moore $45,375 for her attorney’s fees and $92 in costs.

The attorney’s conduct had not been exemplary. Having been denied a continuance by Yaffe, and with matters scheduled on March 28 at the same time in cities 500 miles from each other, Kaufman did have need to do something —move for a continuance in San Francisco, seek a writ ordering Yaffe to grant a continuance, arrange for another lawyer to cover for him on Yaffe’s court, whatever. But he took no action.

Owning up to his error, the lawyer on May 24 moved for an order vacating the contempt adjudication under the mandatory relief provision of Code of Civil Procedure §473(b), offering his declaration of fault. Yaffe spurned it, saying that Kaufman had not been neglectful, but rather, had intentionally gone to San Francisco rather than attending the contempt proceeding.

The lawyer filed a petition for writ of mandate in the Court of Appeal. Div. One (which had peremptorily denied two earlier writ petitions) directed the Superior Court to show cause why it should not be ordered to vacate the contempt adjudication. The petition raised intriguing issues as to the applicability of §473’s mandatory-relief provision, enacted in 1992, under the circumstances at hand.

There was, however, no need to reach those issues. Somebody at the Court of Appeal spotted that the record did not include an order to show cause, a jurisdictional sine qua non. On Sept. 13, 2000, the court directed the parties to address themselves to this matter in the form of letter briefs.

In his letter brief, filed six days later, Kaufman had this to say:

"Is there any evidence in the record of personal service of an OSC re: contempt on Petitioner? There is not (because it did not happen). While Dr. Moore’s counsel procured last week an uncertified copy of what appears to be Respondent’s January 26, 2000 Minute Order, that document—citing some but not all of the Constitutional rights applicable to a contempt proceeding—was never served on Petitioner."

Kaufman went on to charge that the transcript of the March 28, 2000 hearing shows that Yaffe was aware of the defect "before any contempt judgment was issued." He quoted these passages:

THE COURT: All right. Writ was directed only to the corporation so that’s the only entity that is held in contempt.

MS. [Frances L.] DIAZ [attorney for Moore]: January 26 was the hearing date, and I don’t have the pink minute order of the order to show cause.

THE COURT: Did I sign a formal order—I usually do on orders to show cause—that you had to serve?

MS. DIAZ: Yes, I did a ruling—I did a —

THE COURT: Was there an order to show cause that I signed, copies of which you’ve served? Please help me find it quickly.

MS. DIAZ: I have a copy of the transcript of the January 26 proceeding.

THE COURT: Counsel, I want the order, a signed order to show cause.

MS. DIAZ: Okay.

THE COURT: I don’t know that there was one. I have the Minute Order. Was that it?

MS. DIAZ: I believe so, your Honor. I did a Notice of Ruling and served everybody pursuant to the Court’s instruction. Do you have a copy of my Notice of Ruling?

THE COURT: I don’t want your Notice of Ruling, counsel.

THE CLERK: There was no order requested for the January 26.

THE COURT: All right. Thank you.

Kaufman commented:

"By the above-quoted statements, it is apparent that Respondent realized that both an OSC and personal service were required. Did it ‘do the right thing’ and halt the process until these defects were cured? No. On the contrary. Respondent went ahead and ordered counsel for Dr. Moore to prepare a written finding of contempt. Not surprisingly, that March 30, 2000 Judgment of Contempt was entirely silent on the OSC/service issues....

"After the first writ petition filed on April 6, 2000 was narrowly denied by a 2-to-1 vote, Respondent realized that it had erred not only by failing to issue an OSC and requiring service of same, but also by failing to make the requisite factual findings about whether Petitioner had ‘voluntarily absented’ itself from the contempt trial.... While that first petition was apparently not persuasive enough to garner the extra vote needed for writ relief, it was persuasive enough to motivate Respondent to try to ‘cover its tracks.’ It did so by doing the unthinkable—it used its power to direct Dr. Moore’s counsel to prepare a ‘modified’ judgment incorporating a lengthy narrative it had subsequently prepared reciting several verifiably untrue facts.

"For example, despite its knowledge that no OSC was ever issued or served, Respondent directed Dr. Moore to prepare a new judgment stating that ‘the court issued an order to [Petitioner] to show cause why it should not be held in contempt....Said order was duly served upon [Petitioner].’ See...the Minute Order prepared by Respondent) (bold emphasis added). The same document prepared by Respondent also inaccurately recited that the court had made findings that Petitioner had ‘voluntarily absented’ itself from the contempt trial when, in truth, the transcript...confirms that there was no such inquiry was made back when it mattered."

A "Modified Order and Judgment of Contempt," dated April 20, 2000, was stamped with Yaffe’s name. It contains the mendacious recitations that the court had issued an OSC and that the OSC was served on the medical corporation.

The reversal was predicated solely on the failure to serve an OSC. Vogel wrote:

"It is undisputed that, despite the trial court’s apparent intent to issue an order to show cause, a signed order was never issued. As a result, the court’s orders made after January 26, 2000, are void."

The jurist went on to say:

"It is true, as Dr. Moore points out, that notice was waived at the time of the hearing on her application for the order to show cause—but the notice that was waived by the Group’s lawyer has nothing to do with the formalities attendant to contempt proceedings. ‘Notice waived’ means the lawyer waives his right to written notice by opposing counsel of the lawyer’s understanding of the court’s ruling or of further notice concerning a hearing date....It does not mean the lawyer intends to waive his client’s right to the issuance of an order to show cause (a) signed by the judge and (b) personally served on the citee."

Vogel did not discuss the allegation of judicial deception. There was no reason to do so. If Yaffe engaged in monkey business in April, 2000 in seeking to cover up an error on his part—as would appear to be the case—this was irrelevant to the issue before the Court of Appeal of whether Yaffe had jurisdiction in March, 2000 to find the medical corporation in contempt.

But if Yaffe knowingly caused a false recital to be made in a judgment in an effort to conceal his blunder, this is very much pertinent to whether the Commission on Judicial Performance should discipline him.

Such would constitute a violation of Canon 1 ("A judge should participate in...maintaining...high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved") and Canon 2 ("A judge...shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.")

If he ordered the medical corporation to pay out a total of $46,467 notwithstanding an appreciation of his jurisdictional impotency to order that it part with a cent, this is misconduct implicating those same canons, as well as Canon 3B(2) ("A judge shall be faithful to the law"), Canon 3B(5) ("A judge shall perform judicial duties without bias or prejudice") and 3B(8) ("A judge shall dispose of all judicial matters fairly").

As comments from attorneys in the first column in this series show, Yaffe is in perpetual breach of Canon 3B(4) ("A judge shall be patient, dignified, and courteous to litigants...lawyers, and others with whom the judge deals in an official capacity....")

In my next column, I’ll discuss Yaffe running afoul of Canon 2B(2) by attempting to use the "prestige of judicial office" to give himself and his wife an advantage in litigation.

This is the same David Yaffe who on March 4, 1996 defied Canon 5, restricting political activity by judges, by lambasting then-District Attorney Gil Garcetti three weeks before a primary election in which Garcetti was facing challengers. Yaffe labelled the incumbent, in the alternative, as either a "craven coward who is afraid to do his sworn duty" or an "arrogant bureaucrat." The judge proclaimed from the bench that Garcetti’s policy on three-strikes cases "demands a public statement by this court." To the contrary, Canon 5 demanded that Yaffe desist from making a public statement in light of the closeness in time of the election and the high degree of probability that the public statement would be widely reported—as indeed it was.

Yaffe, appointed to his post in 1987, is considerably over-due for a public rebuke by the Commission on Judicial Performance.

NEGATIVE ASSESSMENT: A leading attorney, who asked that his name not be disclosed, e-mailed the following assessment of Yaffe:

"I have been in his court on about a dozen appearances. He is an equal opportunity abuser, choosing to pick out attorneys in a seemingly inexplicable pattern and belittling and insulting them. He seldom picks on the well known, senior lawyers, however.

"He delights in raising issues that have not been raised by either side, laying out disjunctive reasoning to incorporate his ‘theories’ and then ruling upon his issues, without giving either side much opportunity to brief or respond to his new ‘revolutionary thoughts.’ He has been often reversed for such behavior, but is undeterred.

"He is a dilettante in the worst sense of the word, playing with litigant’s lives and fortunes to please his own ego. He should not be in the position of power he holds; he is unworthy of it, and brings an unseemly odor to the Los Angeles Superior Court. It is time to change the guard and let some of the newer, bright lawyerlike judges take a turn in this Department, and bring some semblance of logic back to an important segment of the Los Angeles Superior Court."