Judge Ronald Sohigian Is the Same as Ever

Monday, June 2, 2003

Page 7

PERSPECTIVES (Column)

Judge Ronald Sohigian Is the Same as Ever

By ROGER M. GRACE

Los Angeles Superior Court Judge Ronald Sohigian was challenged for reelection in 1996 by two attorneys. One issue that was raised was his obsession with sanctions. He told this newspaper (which— gulp!— endorsed him) and he reportedly told colleagues that he would take the criticisms to heart, and would lighten up.

Well, he hasn’t.

The controversial judge—who is acknowledged even by critics to be bright, but is widely viewed as picky and oppressive—on May 20 imposed a sanction on a plaintiff’s attorney for not serving notice of an initial status conference on opposing counsel. The problem is: there was no opposing counsel of record; the defendant had not yet made an appearance.

If this sounds familiar, it’s because this is virtually the scenario in Winikow v. Superior Court (2000) 82 Cal.App.4th 719. There, Div. Four of this district’s Court of Appeal granted a writ of mandate ordering a refund of a $150 sanction paid by a lawyer who had served a notice of a status conference on counsel for a defendant that hadn’t yet answered. The judge attributed the defense counsel’s nonappearance at that conference to the plaintiff’s lawyer failure to effect personal service of the notice. The Court of Appeal held that the plaintiff’s lawyer was not obliged to provide any notice.

The trial judge in that case was Ronald Sohigian. He just doesn’t seem to learn.

In the case three years ago, Sohigian cited California Rules of Court, rule 227, declaring: “This is unlawful interference with the proceedings of the court by failure to give notice of the hearing in accordance with my order….” That rule, as it then read, permitted imposition of sanctions, in favor of the opposing party or the county, for failure to comply “with these rules, local rules, or order of the court….”

He also cited Code of Civil Procedure §177.5 which authorizes a sanction, in an amount not exceeding $1,500, payable to the county, for violation of a court order.

The Court of Appeal, in its opinion by Justice Gary Hastings, observed that each of those provisions “requires a knowing violation of a valid order of the court without good cause or substantial justification.”

Hastings pointed out that even if the plaintiff had personally served the defendant with the notice of the status conference, the defendant, not yet having made an appearance, would not have been obliged to attend. He went on to note that the document the court sent to the plaintiff’s lawyer directed that notice be provided to “all counsel of record or parties in pro per,” and that, on its face, this did not require notice to an attorney for a defendant that had not yet appeared.

The May 20 sanction was of like nature.

Here’s the chronology in the case:

Feb. 6: The complaint was filed.

Feb. 20: A notice of an initial status conference, set for April 11, was mailed to the plaintiff’s attorney. It ordered that notice be given to “all counsel of record or parties in pro per.”

April 11: The matter was called. The plaintiff’s counsel appeared. Counsel for the defendant, which had not yet answered, did not appear. Sohigian continued the initial status conference to May 20, and ordered the plaintiff to show cause why the complaint should not be stricken and/or monetary sanctions imposed on his counsel for failure to give notice of the status conference. Sohigian used a fill-in-the blanks form. Punishment was also threatened, in a separate OSC, in connection with the failure to serve the defendant timely.

April 24: The defendant filed an answer.

May 20: The initial status conference resumed, with both parties represented. The plaintiff’s lawyer was ordered to pay sanctions in the amount of $400. The minute order recites that the sanction imposed “for Plaintiff’s failure to timely serve and prove service, and for Plaintiff’s failure to give notice of hearing of 4/11/03.” It cited CCP §177.5 and Rule 227 (the provisions discussed in Winikow) as well as CCP §§128.5 and 575.2.

None of those four provisions justifies the sanction insofar as it is based on non-service of the notice of the status conference on a party who had not appeared.

•Sec. 177.5 doesn’t. So says Winikow, a published and binding decision, a decision expressly disapproving of an action taken by Sohigian. It must be assumed that Sohigian is aware of Winikow and knows that §177.5 provides no foundation for the sanction.

•Sohigian could, of course, justify an avoidance of Winikow if the law had been changed so as to allow now what was impermissible in 2000, when Winikow was decided. The opposite is the case. Rule 227 has been changed—but in such a manner that Sohigian’s reliance on it is facially untenable. In 2000, the rule permitted imposition of sanctions based on failure to comply with an “order of the court.” Sohigian is contending that his Feb. 20, 2003 order to give notice was violated, and seeks to invoke Rule 227 to back up his issuance of a sanction for that alleged transgression. However, Rule 227, as amended effective July 1, 2001, no longer authorizes sanctions for disobeying court orders. It now only empowers trial courts to impose sanctions where there has been a violation of a state pretrial or trial rule, and the sanctioning judge must specify the state rule that was breached. Rule 227 was thus erroneously cited in the May 20 sanction order. It is ironic that Sohigian, the Superior Court’s prime dish-outer of sanctions, does not seek the role of an authority on them, keeping an eye on changes in the relevant rules and statutes.

•Despite an indication to the contrary in a now-vacated opinion from the First District Court of Appeal filed last December, §128.5 is a virtual anachronism. By its own terms, it applies only in cases filed “on or before December 31, 1994.” The case in Sohigian’s court was filed this year.

•Sohigian clearly erred in citing §575.2. That section provides no authority for individual trial judges to impose sanctions; rather, it provides rulemaking authority to trial courts, as a whole. Sec. 575.1 says that trial courts, by a majority vote of the judges, may adopt local rules “to expedite and facilitate the business of the court”; §575.2 adds that such local rules may include one which empowers judges to impose sanctions for violations of the local rules.

Pursuant to §575.2, the Los Angeles Superior Court adopted local Rule 7.13 as part of its trial court delay reduction rules. It provides: “The Court may impose appropriate sanctions for the failure or refusal (1) to comply with the Rules, (2) to comply with any order made hereunder or (3) to meet the time standards and/or deadlines established herein.” If Sohigian thought that the plaintiff’s lawyer had violated an order made pursuant to the delay reduction rules, he should have invoked Rule 7.13—not the statute which empowered the court to adopt that rule.

As it happens, the Feb. 20 order relating to an initial status conference was not an order pursuant to the local delay reduction rules. Local Rule 7.9 no longer authorizes initial status conferences, though many judges still hold them; the rule, as now phrased, refers only to the newly devised case management conference.

Accordingly, even if Winikow did not exist, the only provision that could even arguably support the sanction order is §177.5 (though any such argument would be rather frail).

Sohigian did say in the order: “Said sanctions are stayed by the Court until further orders at a time of the Final Status Conference on 9/11/03.” This is curious. Did he impose the sanction, knowing it to be invalid, merely to throw a scare into the plaintiff’s lawyer, with the intent of lifting it, in the end?

Sidenote: the $400 sanction was imposed for two separate acts, each specified in a separate OSC. It is not known how much of that sanction is ascribable to the plaintiff’s lawyer not giving notice of the status conference. Given the prospect that Sohigian will not lift the sanction for that supposed offense at the time of the final status conference, it would be helpful to the lawyer in weighing whether to seek a writ, and to the Court of Appeal if he did, to know the amount in issue.

Asked about the May 20 order, Sohigian told me:

“I don’t have recall of it.”

It’s no wonder. I subsequently took a peek at court records on the Internet relating to recent proceedings in Sohigian’s Department 41. The particular case I was tipped off to is not a fluke, but part of a pattern. It would seem that Sohigian has decided to take it upon himself to reverse (or at least ignore) the Court of Appeal’s decision in Winikow.

Since the first of the year, there have been more than 175 actions in his department relating to sanctions. (Sohigian issued an order threatening sanctions in one instance because trial court exhibits had not been picked up yet.) I’ve come across 21 OSCs which were issued on the date of the initial status conference under circumstances where, it would appear, only the plaintiff’s lawyer showed up, the defendant not yet having answered. The standard language summarizing the action is:

“Order (ORDER TO SHOW CAUSE RE DISMISSAL/STRIKING-AND-DEFAULT AND WHY PARTIES AND COUNSEL SHOULD NOT BE SANCTIONED (CCP 128.5, 177.5, AND 575.2, AND CRC 227) )”

In 20 of the 21 cases I found, Sohigian concomitantly issued an order to show cause why the case should not be dismissed and why sanctions should not be imposed for failure to make timely service, citing California Rules of Court, rule 201.7. It’s true that para. (b) of that rule does provide: “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” The reality is that even with the most diligent of efforts to effect service within that period, it’s not always possible to do so. Para. (f) provides that failure to serve the complaint within 60 days “may result in an Order to Show Cause being issued as to why sanctions shall not be imposed.” The word “may” is permissive. Normal judges exercise the prerogative with restraint, taking the realities into account. Sohigian, by contrast, apparently regards the rule as a mandate to engage in vigilante-like conduct to menace those plaintiffs’ lawyers who do not effect service within 60 days.

It’s not misconduct for a judge to commit legal error —not without more, at least. In Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, the California Supreme Court specified what additional elements will turn a blunder into a disciplinable offense. The elements included “intentional disregard of the law.”

Sohigian was the very judge whose mistake gave rise to the opinion in Winikow—an opinion which was issued notwithstanding mootness because, though Sohigian had vacated the sanction order, further orders of the same sort needed to be deterred.

He surely knows that a lawyer cannot be sanctioned for not serving notice of a status conference on a party that hasn’t appeared. The Court of Appeal has told him that. Nonetheless, in apparent defiance of the law, on May 20 he sanctioned an attorney for such a supposed offense and churns out OSCs re sanctions for this imaginary affront.

Ronald Sohigian is an industrious jurist who, off the bench, is a pleasant person. But enough is enough.

Lawyers, in large numbers, disqualify Sohigian from hearing their matters through filing affidavits of prejudice against him. Yet the legal profession, through lack of concerted action, has allowed him to remain on the bench. The Commission on Judicial Performance should be deluged with complaints about him.

VOGELIAN NONSENSE—Court of Appeal Justice Miriam Vogel is also up to her old tricks.

In Haney v. City of Los Angeles, B153530, 03 Metropolitan News-Enterprise S.O.S. 2607, filed May 22, Presiding Justice Vaino Spencer wrote the majority opinion, with Justice Robert Mallano concurring. Vogel produced a separate opinion. It read: “I concur in the judgment only.”

She has concurred in the judgment only more than any other member of the Court of Appeal, though she hasn’t done it lately.

If there’s something wrong with Spencer’s published opinion (upholding the patently justifiable firing of a lying, cheating police officer), it would be nice if Vogel would let us in on it. If there is a flaw in the reasoning, it would be of value for Vogel to pinpoint the defect she discerns so that attorneys citing the case in years to come might do so with caution. Perhaps other appellate courts asked to follow Haney would find her insights useful.

On the other hand, if she’s merely miffed at Spencer this week, and is using this as a device to rebuff her colleague, it’s not appropriate conduct.

Vogel has, in the past, criticized Spencer for a lack of succinctness. If Vogel is disassociating herself from the 13-page slip opinion simply because she doesn’t like the way it’s written, she’s engaging in silliness. One who signs an opinion authored by another is not embracing the author’s writing style and no rational person is going to impute such style to the signatory.

If Vogel finds the opinion so repulsive that she cannot sign it, though embracing the outcome, an explanation is surely not expecting too much from her.