Opinions Affirming Sutton Did Not Exonerate Him

Tuesday, June 19, 2001

Page 9

PERSPECTIVES (Column)

Opinions Affirming Sutton Did Not Exonerate Him

By ROGER M. GRACE

Los Angeles Superior Court Judge James M. Sutton Jr. is under investigation by the Commission on Judicial Performance, as I’ve reported in previous columns. In a brief interview last week, the judge said that of the three cases about which the CJP queried him, two ended with affirmances in the Court of Appeal. He contended: “[E]ach opinion said I was not biased.”

In light of the appellate court determinations, should the CJP shun complaints from the attorneys for the unsuccessful appellants? No.

Unless there’s been an express determination by an appellate court that certain words or actions by a trial judge did not constitute misconduct, I don’t see how the CJP can be foreclosed from considering those words or actions in a disciplinary proceeding. After all, trial court misconduct can only form a basis for reversal if it’s concluded that absent the misconduct, it is “reasonably probable” that the complaining party would have obtained a more favorable result. The rejection by an appeals court of judicial misconduct as a ground for reversal is a far cry from exoneration—and does not mean that the conduct pointed to by an unsuccessful appellant was not violative of the canons.

Indeed, neither of the cases in which Sutton was affirmed by this district’s Court of Appeal over claims of misconduct is exonerative.

In one of the cases—Nguyen v. Kwikset Corporation, B126652, filed Jan. 19, 2000—Div. One, in an unpublished opinion by Justice Reuben Ortega, dismissed the contention of judicial misconduct with these words:

“We conclude the record does not demonstrate an appearance of bias. Although some remarks were perhaps better left unsaid, plaintiff was not deprived of a fair trial.”

Even if the plaintiff was “not deprived of a fair trial,” it could still be that remarks which should have been “left unsaid” could give rise to discipline, either standing on their own, or taken in conjunction with similar remarks uttered by Sutton in unrelated cases.

The other Court of Appeal case in which a claim of misconduct and bias failed was Steele v. Jensen Instrument Company, 5a Cal.App.4th 326, filed Nov. 19, 1997. There, Div. Five, in an opinion by Justice Margaret Grignon, refused, in an unpublished portion, to consider the allegations of misconduct.

Grignon recited the general rule that “[c]laims of misconduct must be raised at the first opportunity or are considered waived.” She noted a 1995 First District Court of Appeal opinion, in Catchpole v. Brannon, created an exception where the misconduct takes the form of manifestations of gender bias. However, Catchpole did not aid the appellant, she concluded, because there was no showing of gender bias on Sutton’s part. Grignon wrote:

“Our review of the entire record has not uncovered any comments by the trial court which demonstrated gender bias. Allegations of judicial misconduct are not transformed into allegations of gender bias simply because the alleged misconduct occurred during the course of a trial concerning pregnancy discrimination. The trial court’s questions and comments during the examination of witnesses were intended to clarify testimony or to address concerns about credibility. During the trial, Steele did not object to any of the trial court’s comments on the ground of judicial misconduct, therefore her objections were waived.”

The opinion does not proclaim that Sutton evidenced no bias. It does not say he committed no misconduct. It says he demonstrated no gender bias, and that absent gender bias, anything else he did or said reflecting lack of neutrality would be ignored in light of the plaintiff’s failure to object at trial. When Sutton claims that the opinion “said I was not biased,” he misstates the holding.

So, let’s look at Sutton’s conduct, as reflected in the briefs filed by the respective appellants. (In quoting from the briefs, citations to the reporters’ transcripts will be eliminated.)

I’m going to present today a large chunk of the brief in Nguyen v. Kwikset Corporation because I think it’s needed to get a picture of what went on. That won’t leave room for a discussion of Steele v. Jensen, which I’ll get to tomorrow.

In Nguyen, a machinist sued his employer and others in connection with an industrial injury. He had severely injured his right hand in 1996 in the course of changing molds in a molding press. Safety devices, supplied in 1979 by the manufacturer to Kwikset, the original owner of the press, had never been installed.

The plaintiff, Chau Ngoc Nguyen, settled with the manufacturer of the press and with his employer, SSDI. The defendants who remained in the case were Kwikset and Tracy Haeggstrom, to whom Kwikset had sold the press in 1985 (and who subsequently disposed of it.)

Los Angeles Superior Court Judge Thomas I. McKnew Jr. granted those defendants’ motions for summary adjudication on a cause of action founded on strict liability, but denied their motions with respect to Nguyen’s negligence theory. He found that the prior owners had a duty to either install the safety devices or at least provide the kits containing the devices when selling the press.

The case was assigned for trial in 1998 to Sutton. Clearly, Sutton would not have made the same ruling as McKnew with regard to the viability of a cause of action for negligence. He proclaimed during argument on Haeggstrom’s motion for a directed verdict that any negligence was “102% attributable to the employer.” He granted Haeggstrom’s motion.

Jurors found, by a vote of 10-2, that Kwikset had been negligent, but also concluded, 9-3, that there was no causal link between its negligence and the plaintiff’s injury. That outcome was not shocking. However, some of Sutton’s conduct during the trial, as set forth in the appellant’s opening brief, was, to say the least, disturbing—and worthy of note by the commission.

The brief, prepared by Santa Ana attorney Jack H. Anthony, set forth:

In the instant case, Judge Sutton displayed bias against Plaintiff and Plaintiff’s counsel and disdain for the lawsuit before him by repeatedly making critical and sarcastic statements and by consistently belittling Plaintiff’s case.

During voir dire, a prospective juror, Ms. Johnson, disclosed that she held an extreme pro-employer bias. Even though Defendants had made it clear that they sought to apportion fault to Plaintiff’s employer, the court’s response was to twice erroneously announce that there was not an employer involved and told the juror: “I don’t understand what you are talking about.”

When Plaintiff’s counsel questioned the prospective juror whether her proemployer bias would affect her ability to apportion or not apportion fault to Plaintiff’s employer, the prospective juror candidly acknowledged that it would.

In follow-up questioning by the court, the prospective juror again acknowledged her bias. The trial court’s response to the prospective juror’s admission of her bias was to order the juror to “get out” of the court room and to instruct the [jury coordinator] that she was excused from further service as a juror on the court’s order. The obvious message to the jury panel was that Ms. Johnson’s admission of her bias was reprehensible enough to render her unsuitable to serve as a juror on any case whatsoever. Needless to say, no other prospective jurors admitted biases for or against employers.

Upon conclusion of Plaintiff s opening statement, Defendant Haeggstrom moved for nonsuit. In response to Plaintiff’s claim that his opening statement referred to the Defendants jointly, the court characterized this argument as “a weasel”. In response Plaintiff’s request to reopen the opening statement if the court believed Plaintiff had failed to state a cause of action against Defendant Haeggstrom, the court responded: “You don’t get two bites of that apple.”

In response to Plaintiff’s counsel’s statement that he believed he did allege a causal connection in his opening statement, the court responded: “The heck you did.” Only when a review of the transcript of the opening statement was insisted upon by Plaintiff’s counsel, was the court satisfied that counsel had in fact made the allegations he claimed and the motion for nonsuit was denied. Before denying the motion, the court expressed to all counsel its bias that the liability in Plaintiff’s case was so thin that the court had grave misgivings about the case.

Plaintiff called as his first witness Charles Land, the president of Morgan, the manufacturer of the press. Judge Sutton interrupted questioning of this witness and asked the witness if he had been able to ascertain whether safety devices had been installed on the press. Not satisfied with the witness’ affirmative answer to this question, the court reworded the question and insisted that the witness provide a yes or no answer. The witness’ response indicated confusion over the question: “I think the answer is no, as I understand the question.”

During follow-up questioning by Plaintiff’s counsel, the court again interrupted to pose it’s own questions. Mr. Land informed the court that he was confused by the court’s questions.

Mr. Land was finally allowed to explain his confusion and testified that his answer to the court’s previous question was intended to mean that he could tell whether some of the safety devices had been installed, but not all of the devices. The court announced in front of the jury that the witness’ explanation changed his previous testimony. When the witness apologized and again referred to his confusion over the previous question asked, the court again announced in front of the jury his conclusion that the witness had changed his testimony.

Later in this same witness’ examination, the court repeated a third time to the jury his conclusion that the witness changed his testimony concluding: “I am not sure what the testimony is.”

When counsel for Plaintiff inquired during examination of Mr. Land whether there was additional paper for the large pad available in the courtroom for witnesses to make sketches, the court’s response was a sarcastic: “I don’t do paper.”

During cross-examination of Mr. Land, when Plaintiff’s counsel objected to the witness being questioned regarding the contents of deposition transcripts the witness testified he did not recall ever having seen, the court’s response was a sarcastic: “Then he can’t recall it, can he?”

During the testimony of witness Philip Cosores Sr., the trial court encouraged the Defendants to withdraw an objection because the court perceived and announced in the presence of the jury that the witness’ answer was beneficial to the defense. Even though this witness was a former management level employee of SSDI with an expected bias in favor of this entity and was not designated as an expert witness, the court questioned the witness over the objection of Plaintiff’s counsel about his opinion of what caused the accident.

During examination of Philip Cosores Jr., a management level employee of Plaintiff s employer SSDI, the court allowed testimony over the objection of Plaintiff on the witness’ opinion of what caused the accident even though the witness was not present when the accident occurred and even though this witness had not been designated as an expert witness. The court even endorsed this witness’ qualifications to give expert opinion testimony, stating in the presence of the jury: “If he is not expert in the operation of it, no one is.”

So, we encounter Sutton improperly commenting on the evidence in the jury’s presence, engaging in sarcasm, bullying a plaintiff’s witness, giving advice to the defense, and, in general, signaling the jury that the defendant should win. In the various complaints filed with the commission, previously summarized here, these same misdeeds are recited. There is, unmistakably, a pattern—a pattern of judicial misconduct aimed at giving the advantage to “big guy” defendants sued in tort by “little guy” plaintiffs.

The commission would be remiss if it failed to consider the misconduct in Nguyen simply because that misconduct was not deemed by the Court of Appeal to amount to reversible error.