Monday, June 4, 2001
Page 9
PERSPECTIVES (Column)
Yaffe Seeks to Bar Inspection of Grout in His Bathrooms
By
ROGER M. GRACE
This is the story of litigation over grout in the bathrooms of a home owned by a judge and his wife.
The judge is David P. Yaffe of the Los Angeles Superior Court. The Yaffes’ abode is on a street off of Beverly Glen, near the Los Angeles Country Club.
Following an earthquake, the Yaffes’ insurer paid moneys for a complete remodeling of the house, built in 1935. The Yaffes engaged the services of Robert G. McConihay General Contracting, Inc. They were not happy customers and refused to pay what the contractor claimed was the balance due. Of particular displeasure to the Yaffes was that the grout used by a subcontractor in laying in tiles had discolored.
On April 23, 1996, the contractor brought an action in Los Angeles Municipal Court against the Yaffes for $11,406.51, plus interest and attorneys’ fees. What seemed a simple legal dispute, entailing relatively little money, was to turn into rocky and protracted litigation entailing questionable litigation conduct.
The plaintiff’s lawyer, Steven J. Revitz of the West Los Angeles law firm of Raiskin & Revitz, checked off questions for the Yaffes to answer on a set of form interrogatories. The interrogatories were sent off on Aug. 6, 1996 to the Yaffes’ lawyer, Patrick J. Duffy III, a partner in Monteleone & McCrory, located in downtown Los Angeles. That was the firm Yaffe had worked for from 1959-61 as an associate, and as a partner from 1962 until his appointment to the bench in 1987.
The responses were prepared by Duffy’s then-associate, Erica Behrens Robinett. One form interrogatory that was checked off was: “112.1 State the name, ADDRESS, and telephone number of each individual who has knowledge of facts relating to the INCIDENT, and specify his or her knowledge.” Here’s the response:
“To answer this interrogatory it is necessary to audit, abstract, compile and summarize data from the file entitled, ‘McConihay-Pre-Litigation’ in which all documents related to the project that is the source of this dispute are kept. The burden and expense of making such audit, abstract and compilation summary would be substantially the same for plaintiff as for defendants. Reference is therefore made to C.C.P. §2030(f)(2). Said file will be available for inspection and copying Monday through Friday, from 1:30 p.m. to 4:00 p.m. in Department 69 of the Los Angeles Superior Court, CountyCourthouse, 111 N. Hill Street, Los Angeles, California. Said documents will remain available for inspection until September 20, 1996.”
Responses to 13 other form interrogatories were: “Please refer to Response No. 112.1.” These interrogatories included 150.1 (“Identify all DOCUMENTS that are part of the agreement and state for each the name, ADDRESS, and telephone number of the PERSON who has each document”) and seven other form interrogatories for contract actions.
The bad-faith nature of the responses is patent. Had sanctions been sought, the trial judge, Brett Klein, almost certainly would have granted them. As it was, no motion to compel was made.
“This started out as an $11,000 or $12,000 case,” Revitz explains. “I was trying to maintain some semblance of it being economical.”
He adds: “I didn’t have a wealthy client.”
Had the defendants proclaimed that the documents would be available for inspection at Monteleone & McCrory, it would have been arrogant enough, since the obligation befalling the defendants was to provide answers, not an opportunity to peek at documents. Brashly, they treated interrogatories to them as a demand for production, with them setting the time and place for inspection.
But the stance they took went beyond arrogance, and into the realm of Yaffeness. What they ordained was that Revitz was to come to Yaffe’s courtroom, during hours when, presumably, the court would be in session, with Yaffe on the bench in his black robe. It cannot be doubted that this was a not-too-subtle reminder that Yaffe was a judge, a reminder calculated to intimidate.
It stands to reason that Robinett, in preparing the responses, would not have set forth that the documents would be available in Yaffe’s courtroom had she not cleared that with Yaffe first — or received an instruction from Yaffe to say that. In any event, Yaffe surely saw the responses before they were sent to Revitz; he verified them. And obviously he had the power to forbid the designation of his courtroom as the place to go to see the litigation file. He didn’t.
Canon 2B(2) of the Code of Judicial Ethics provides that “[a] judge shall not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others....” Yaffe, in allowing his attorney to convey that a condition of gaining discovery was to come to the client’s courtroom while the client was on the bench, exercising judicial powers, ran afoul of that stricture.
(Revitz relates that Duffy did relent to the extent of providing copies of the documents to him by mail.)
One year to the day after the complaint was filed — on April 23, 1997 — an arbitration proceeding took place before Northridge attorney Kenneth B. Alexander. The theory was propounded by the Yaffes that the grout was mixed wrong and was inherently defective. Alexander made an award in favor of the contractor, with an offset based on the discoloration of the grout. He set the sum at $4,409.10. The plaintiff wasn’t satisfied, and announced it would seek a trial de novo.
In a letter to Robinett on April 24, 1997, Revitz said:
“It was a pleasure meeting you yesterday. This will confirm the request I made to you at the end of the arbitration that our client and/or its subcontractor be allowed access to the Yaffes’ home to attempt to clean the tile grout. In addition, we would also like to take a sample of the grout to determine whether there is any inherent problem with the same. If we find that there is such a problem then a claim will be made against CG Custom Tile [the subcontractor] which has products liability insurance. In that event, the entire problem regarding the tile grout may be resolved without any further expense to either of our clients.”
Robinett responded to that letter, as she had to an earlier letter, saying the discovery cut-off has already passed, and no inspection would be permitted. Further correspondence ensued. On May 9, Robinett wrote:
“First, according to CCP §1141.24 and CCR 1612, your time for permissible discovery has passed. Second,McConihay had sufficient opportunity to remedy the entire tile problem prior to the start of this litigation. And third, the Yaffes have already had the tile inspected by the CSLB [Contractors State License Board] and cleaned for the time being by another company.”
Sec. 1141.24 provides: “In cases ordered to arbitration pursuant to subdivision (a) of Section 1141.16, absent a stipulation to the contrary, no discovery other than that permitted by Section 2034 is permissible after an arbitration award except by leave of court upon a showing of good cause.” Emphasis added.
So, Revitz filed a motion for leave of court to conduct discovery after the cut-off. Revitz argued that reports prepared by the defendants’ experts indicating that the grout was inherently defective were not made available to him until it was too late to serve discovery requests, and that an inspection was “absolutely essential to meet the defense raised by the defendants through [the]...reports.” He sought an inspection of the grout in the countertop, floor, and shower of the Yaffes’ master bathroom, as well as the floor of an upstairs bathroom and the kitchen countertop.
In their opposition, Duffy and Robinett argued:
“An arbitration proceeding is not an opportunity for discovery, nor is it the springboard for another round of discovery. To allow this would defeat the purpose of having discovery cut-off and the purpose of an arbitration in any matter. No party would be willing to participate in arbitration and disclose its litigation strategy and trail [sic] evidence at an arbitration proceeding if further discovery could be conducted after the fact as a matter of course.”
They also asserted that it was “premature” to ask Klein to order an inspection of the grout. Only if Klein were to grant an order re-opening discovery could the plaintiff serve the request for inspection, the lawyers contended.
In a declaration in reply to opposition, Revitz countered that “since defendants have admittedly already received three previous requests for the Inspection, requiring McConihay to re-serve the Inspection Demand would seem to be an idle act.”
Revitz added some information that was legally irrelevant — but interesting. He said:
“It is submitted that the reason why defendants do not care how much time and expense is incurred in connection with their matter is because they are not paying for the time of their counsel, something which Patrick Duffy, one of the defendants’ attorneys, advised me long ago. While this may be a windfall for defendants it is submitted they should not attempt to use the same to needlessly increase McConihay’s expenses.”
Duffy acknowledged in a declaration he filed in the latter stages of the litigation that his firm had agreed to waive all fees for services to the Yaffes through the time of the arbitration.
He tells me that for the period subsequent to the arbitration, Yaffe “paid portions of the fees” that were billed. “What portions of the fees he paid was between he and I,” Duffy says. The unpaid fees were waived, the lawyer recites, explaining: “As a matter of friendship, he was given certain concessions.”
Klein on June 17, 1997, granted the motion for leave to re-open discovery and ordered an inspection. He told the parties to agree on a date and time for the inspection and specified: “If Judge Yaffe wishes to observe the inspection, it shall be conducted on a weekend or other date or time convenient to him.”
You might think that this brought to a conclusion the controversy over the inspection. Not so.
Revitz sought agreement to an inspection on June 23, 1997. That didn’t come about. On July 11, Robinett sent a letter saying it could take place on Aug. 9 or Sept. 6 — and not before Aug. 9 because the Yaffes would be unavailable. It was subsequently agreed that the inspection would be conducted on Aug. 9.
Was Yaffe actually unavailable? Revitz recited in an Aug. 13, 1997 letter to Robinett:
“On August 2, 1997 [a Saturday], Mrs. McConihay telephoned Judge Yaffe’s home to determine whether or not he was there because, quite frankly, Mr. McConihay assumed that your clients were attempting to delay the Inspection. According to Mrs. McConihay, Judge Yaffe answered the telephone at 10:26 a.m.Obviously, the Inspection could have taken place on that date.”
Revitz asked that Robinett advise him whether she believed any of the recitations in his letter were inaccurate.
In a letter dated Aug. 15, Robinett shot back that she would “not deny nor admit accuracy of any of the statements in your letter” and added: “[W]e object to your client’s attempts at detective work by contacting the Yaffes for information.”
The inspection did not occur on Aug. 9. On July 21, 1997, the Yaffes filed a petition in Los Angeles Superior Court seeking a writ of mandate commanding Klein to scrap his order. The petition asserted that Klein acted in excess of jurisdiction in ordering the inspection.
The petition also averred that “to order the inspection is extremely offensive because it is an invasion of the Yaffes’ privacy without due process.”
Los Angeles Superior Court Judge Victor E. Chavez, then the court’s presiding judge, stayed proceedings in the case on July 28, 1997. The proceedings remained stayed for nearly nine months. The stay was lifted on April 10, 1998, in an order signed by Orange Superior Court Judge Tully A. Seymour, sitting on assignment as a judge of the Los Angeles Superior Court. On the same date, he signed an order denying the Yaffes’ petition.
On Oct. 20, 1999, Klein awarded judgment in favor of Robert G. McConihay General Contracting, Inc.
It was “in the amount of $11,406.51, plus ten percent per annum simple prejudgment interest thereon from October 31, 1995, to October 20, 1999, plus cost and attorneys’ fees.”
A cost bill was filed; the Yaffes moved to tax costs; Klein granted the motion. On Jan. 25, 2000, he set the costs at $920.95. At the same time, he granted the plaintiff’s motion for attorneys’ fees (pursuant to a contractual provision for attorney fees to the prevailing party), setting the award at $35,000.
The total was $47,327.46. The plaintiff a month before trial had made a statutory offer to compromise for $25,000. All the Yaffes would offer was $4,409.10.
Duffy insists the judgment “was definitely wrong.” He says Klein provided no reasons and says the case “was decided that way for other than — well, you can ask Judge Klein.” (Klein declines comment.)
Next time Yaffe invites you to his home, be sure to get a gander at his bathroom grout to see if it’s yellowing again.
By the way, Revitz says the Yaffes, in setting forth what work they wanted the contractor to perform, specified they didn’t want the grout sealed. If it had been sealed, he says, it wouldn’t have discolored.
Tomorrow, I’ll discuss further those free legal services Yaffe received — and his failure to report them on a form filed with the Fair Political Practices Commission.