Monday, June 18, 2001
Page 9
PERSPECTIVES (Column)
Complaints to CJP Portray Judge James Sutton as Biased Against Plaintiffs
By ROGER M. GRACE
Los Angeles Superior Court Judge James M. Sutton Jr. is under investigation by the Commission on Judicial Performance in connection with allegations that he persistently assumes the role of an advocate for defendants in tort cases. I related the substance of some of the complaints, made in 1998 and 1999, in Friday’s column.
Here are some more.
•Santa Monica practitioner Ralph D. Slater accused Sutton of “egregious and repeated judicial misconduct.”
Those words were contained in a motion for a new trial in a personal injury case which Slater tried before a jury in Sutton’s courtroom. The papers Slater filed in connection with the motion are part of the CJP’s dossier on Sutton, who sits in Norwalk.
Slater’s client was a 15-year-old boy, hurt in an automobile accident. An arbitrator, Nathan Hoffman, had awarded the boy $113,052 based on “substantial injury to his left knee.” At trial, however, there was a verdict for only a few thousand dollars—which Slater attributed, in his motion, to Sutton signaling the jury that the case was weak. (Sutton denied costs on the ground that the award was beneath the jurisdictional minimum of the Superior Court.)
In his declaration in support of the motion, Slater contended that Sutton “totally assumed the role of a ‘defense lawyer’ ” in the case. He also said:
“This declaration and the motion for new trial and additur was prepared based on my deep conviction...that unrelenting, unprecedented and egregious judicial misconduct by the Honorable James Sutton, Jr., effectively denied an adolescent, David Biagas, the opportunity for and his right to a fair trial. The trial was marked by contrasts of unfairness by Judge Sutton in questions, comments and demeanor towards the respective parties and their counsel. For example, there was severe and unremitting cross examination, by the judge of plaintiff’s medical and rehabilitation witnesses in a gruff, harsh, loud voice full of a tone of utter incredulity (e.g., ‘Are YOU MEANING TO TELL ME that...’) in contrast to calm ‘lifesaver’ questions repeatedly thrown by him to defense witnesses, interrupting cross examination by plaintiff’s counsel, with their answers accompanied by his seemingly knowing nod of their veracity.”
Slater accused the jurist of seeking to incite racial animosity toward David, a black, on the part of the all-white jury. He wrote:
“At the close of the first days of trial, Judge Sutton told the jury the story of how he wanted to continue with a jury trial during the relatively recent Los Angeles (black) riots over the Rodney King verdict. He said that the jurors, who were able to see the DMV building burning down in the distance, prevailed upon him that it was not safe to continue with the proceedings. While it would be obvious to anyone that this story was completely inappropriate in this case where a young black male was a party Plaintiff seeking compensation in the Norwalk [Courthouse] for bodily injuries, Judge Sutton then added that the jurors in Norwalk were very mad when they saw their DMV building was burning down.”
Slater recited that Sutton read jury instructions “at a pace substantially in excess of 200 words per minute,” conveying to the jury that he “had no respect or patience for the plaintiff’s case” and that it was not “worth a judge’s time.” In similar vein, he said the judge “played very loud concert music for about 30 minutes after the jury had resumed deliberations,” interfering with their deliberations in the room adjacent to his chambers, and communicating to jurors that “he had no respect for the case they were deliberating.”
The lawyer also reported:
“During the expert testimony of plaintiff’s experts, Judge Sutton would sometimes speak loudly with his clerk. One time, a male clerk from another courtroom came in and Judge Sutton talked to him just as loudly as the plaintiff’s expert on the stand. The court reporter... had to tell the judge that she was unable to hear the testimony, although she was immediately below the witness. Sometimes, when he was not lampooning plaintiff’s experts by his questions, Judge Sutton could be observed and heard turning the pages of his newspaper at the bench.”
A notice of appeal was filed, but the appeal was not pursued. Slater tells me his client’s family did not want to incur the expense.
The lawyer says of Sutton:
“I do think he’s unfit to be a judge—and I know that feeling is shared by many.”
•Santa Ana attorney Jack H. Anthony also accused Sutton of reading a newspaper during presentation of the plaintiff’s case.
The plaintiff was suing for an industrial injury. There was a directed verdict for one defendant and a jury verdict for the other.
In a brief filed in the Court of Appeal (and provided to the CJP), Anthony asserted:
“The court openly and frequently exhibited its disdain for the lawsuit before it and frequently read a newspaper on the bench during the testimony of Plaintiff’s witnesses.”
Div. One of this district’s Court of Appeal, in affirming, said in a footnote: “Due to plaintiff’s failure to object below, we are incapable of reviewing plaintiff’s unsubstantiated allegation that the trial judge often read the newspaper during trial.”
The fact that the allegation was made by lawyers in two unrelated cases—each a lawyer for a plaintiff—might be noted by the commission for the corroborative value.
•Further corroboration comes from financial analyst and law student Edie Mermelstein, who was a plaintiff in a case tried in Sutton’s courtroom.
“Most of the time” during her testimony, she tells me, “he was reading newspapers or reading an auto magazine.”
She says she also spotted him, while she was on the witness stand, “picking his ear with a paperclip and looking at the wax.” Mermelstein comments that this “tells the jury he was completely disinterested.”
Her case involved the conduct of a 35-year-old man with a criminal record who was the son of her landlords. The man, who was allowed by his parents to live in a storage garage on the premises, gained access to her apartment and stole her undergarments and otherwise harassed her, Mermelstein recounts. She sued the landlords and the son.
Following the plaintiff’s opening statement, she says, Sutton granted a nonsuit in favor of the parents, proclaiming that parents are not liable for the torts of their adult offspring. She says he missed the point that they were not being sued in their capacity as parents, but in their capacity as landlords, with a duty to tenants not to subject them to danger.
Mermelstein says the judge acknowledged that the plaintiff could proceed against the son, if she wanted to—which she did, obtaining a $170,000 verdict (on which she has not been able to collect).
She asserts that Sutton’s “courtroom behavior was appalling,” and asks, rhetorically:
“How could they keep somebody like that on the bench?”
•Laguna Hills (Orange County) attorney Holly H. McGregor says she intends to complain about Sutton to the CJP.
She represented a woman whose 87-year-old mother died as the result of her wheelchair toppling over while she was being transported in an ambulance to a doctor’s office for a routine appointment. The driver had virtually no training, McGregor says, and failed to secure the wheelchair.
The lawyer tells of being in Sutton’s courtroom for a pre-trial conference, with the client—who was the decedent’s daughter—and with the client’s son in attendance. She recalls that Sutton “glared” at her and her co-counsel, and demanded, “What are you asking for?” McGregor says she responded that she thought the case was worth $200,000 to $250,000.
That, she says, triggered “shouting” by Sutton. As McGregor remembers it, he demanded: “You mean this lady who had such a wretched life is worth that kind of money?”
She notes: “He yelled that three times.”
The daughter, she says, had to leave the courtroom.
“She went into the bathroom and poured tears,” McGregor recounts.
“We settled the case that day,” the lawyer continues, explaining that there was “no way” her client could return to Sutton’s courtroom for a trial. “Our client was destroyed,” she says.
The lawyer discloses that the case was settled for $125,000, commenting:
“I think it was worth more.”
McGregor insists that Sutton “knew the grey-haired lady was our client,” and that for him to “bark out repeatedly” his denigration of the monetary worth of her mother’s “wretched life” was “simply unnecessary.”
CHAT WITH SUTTON—I spoke briefly with Sutton, who is represented in connection with the CJP inquiry by Long Beach attorney Edward P. George Jr. He abruptly ended our telephone interview by advising, “You’d better check with the commission or check with Mr. George” and hanging up.
He did say that the commission drew his attention to three cases he had handled which went to the Court of Appeal, and that in two of those cases, “each opinion said I was not biased.”
I assume that the two cases Sutton had in mind were the industrial injury one handled by Anthony and a wrongful termination/gender discrimination case in which Petaluma attorneys Victor C. Thuesen and Kerstin Molinder represented the plaintiff/appellant.
In upcoming columns, I’ll discuss those two cases, as well as one in which Oakland attorney Panos Lagos gained a reversal based on Sutton’s misconduct.
Copyright 2001, Metropolitan News Company