Judge James Sutton Is Reversed Based on Judicial Misconduct

Thursday, June 21, 2001

Page 9

PERSPECTIVES (Column)

Judge James Sutton Is Reversed Based on Judicial Misconduct

By ROGER M. GRACE

Los Angeles Superior Court Judge James M. Sutton Jr. was the trial judge in the case of Flores v. Coast Federal Savings Bank. His behavior in that case was branded by the Court of Appeal as “judicial misconduct,” and the judgment for defendants was reversed (except as to one cause of action based on a non-existent tort).

Claims of judicial misconduct seldom succeed. Members of the courts of appeal are generally not inclined to take kindly to assaults by lawyers on their lower court colleagues. Indeed, contentions of bias or misdeeds on the part of the trial judge are apt to be dealt with cursorily—and if there is publication of any part of the opinion, the part least likely to be published is the one dealing with this issue.

On those rare occasions when the contention of judicial misconduct is sustained, it is an indicator that the trial judge in the case is one who truly warrants scrutiny.

It is to the credit of this district’s Div. Three that the court did take a hard look at the unfairness to the plaintiff wreaked by the trial judge in Flores, and proclaimed his conduct to have run short of established standards for judges. It is regrettable, however, that the opinion, penned by Justice Richard Aldrich, was not published.

(Ironically, the case in which Sutton was reversed based on misconduct does not reflect Sutton at his worst.)

The plaintiffs were Maria and Olivia Flores. They moved into an apartment and encountered leaking rainwater. Then the heat went out. Olivia Flores developed bronchitis. The living conditions were, overall, deplorable.

Next, the manager ordered the tenants to vacate the premises, explaining that repairs would be done, and the process would take several months.

Meanwhile, Coast Federal Bank foreclosed on a mortgage on the property, and became the owner of it.

The City of Santa Fe Springs had plans for the parcel on which the dilapidated apartment complex sat, intending to put up low-cost townhouses there. The city impeded Coast’s efforts to fix up the existing structures.

Maria and Olivia Flores, who had been living with relatives, moved back in when the manager called and told them they could have a unit which a city inspector had found to be habitable. It wasn’t. There were spiders, mice, leaks, and foul orders. With all the packing and moving, back problems she had experienced since an auto accident a few years before were purportedly attenuated.

The city subsequently declared the entire complex to be substandard, and all tenants were again ordered to vacate. The Floreses did, and they sued on various theories.

At the first trial, which took place in the courtroom of then-Los Angeles Superior Court Judge James Edson (since retired), the jury awarded the plaintiffs $597,501. However, it turned out that jurors had lumped compensatory and punitive damages, and a mistrial was declared.

The second trial was presided over by Sutton. At the close of testimony, Sutton granted nonsuits as to several of the causes of action. The jury’s award on the remaining causes of action was less than the statutory offers of compromise, causing Sutton to order the plaintiffs to pay the defendants’ costs—amounting to $15,974.65.

The Floreses, represented by Oakland attorney Panos Lagos and Inglewood lawyer Joseph Federowski, appealed.

The opening brief contended:

“From the outset the second trial judge revealed his bias and prejudgments by way of his questioning of witnesses; his demeanor and manner of speaking to witnesses and counsel in front of the jury; and his rulings. His preconceived opinions about who really was at fault were made manifest to the jury and prejudicially influenced both the assessments of fault and damages, resulting in a miscarriage of justice. Timely objections were made to the judge’s conduct of the trial as well as other errors appealed hereby. This Court should reverse the judgment and remand this case to the Los Angeles County superior court for another trial before a different judge.”

The Court of Appeal did just that.

On Aug. 4, 1998, the case—which had been filed July 9, 1993—was settled in the master calendar court of the Norwalk Courthouse. Lagos said the amount, as he recalls it, was $160,000.

Here’s how Aldrich resolved the issue of judicial misconduct:

Appellants claim that Judge Sutton displayed bias against them by making comments and asking questions sarcastically and with a hostile tone. Although the tone cannot be discerned from the printed record, we are able to discern sarcasm from the many of the words used. The judge interjected, “Is that it?” on two occasions. Olivia’s sister (Maria’s daughter) was testifying as to ill physical effects suffered by her mother and sister. After she said that her mother coughed, her sister’s back was “sick” due to moving their things, and both were nervous, the judge asked, “Is that it?” She replied, “I cannot tell anything else.” When the same witness testified that her sister and mother cried everyday, and were sick and desperate, the judge asked, “Is that it?” Appellants contend that the question was asked in a sarcastic tone, while respondents contend that the court was “merely inquiring whether the witness had anything else to add to her testimony.” The question, “Is that it?” does not have to be asked in a sarcastic tone to be sarcastic. The words alone are a sarcastic and intimidating way of asking if a witness is finished.

There are other examples of obvious sarcasm on the part of the judge. The court’s statement, “July is a well-known rainy season in Southern California,” was no doubt said sarcastically, even though the tone does not sound in the record. When appellants’ counsel, Mr. Lagos, asked Olivia if she were a “different person inside” after her auto accident, the court asked counsel, “You mean, did it rearrange her internal organs?” When Mr. Lagos said, “I’m not trying to be funny, Your Honor,” the court replied, “Then ask appropriate questions.” When Olivia was trying to describe her mental state as a personality change (speaking through an interpreter), the judge asked, “She was so attached to living there that being deprived of the opportunity to do that has continued to change her personality. Is that what you are suggesting?”

The court was similarly sarcastic to Coast’s counsel, Mr. Joffe. Mr. Joffe asked a question regarding the inspection of an apartment to determine its fitness for “human living and consumption.” The court asked him. “Consumption? [¶] How does one consume a property?” When Mr. Joffe erroneously objected that redirect examination exceeded the scope of cross, the court said, “So what?” Another comment made to Mr. Joffe was, “You don’t have to be an expert to know if there is a hole in the roof water is going to come through. Give me a break....It’s inane.”

In addition to the sarcasm, appellants contend that the judge asked questions, invited objections, and excluded evidence on its own motion in a manner which showed a possible bias against them. We agree. Among those cited by appellants included questions which highlighted appellants’ cultural and socio-economic status. Olivia testified that the rent was $635, but that she and her mother paid $215 to $235 per month. The judge asked, “Who paid the rest?” When Olivia replied, “Section 8,” Judge Sutton asked, “What is that, welfare or something?” When Olivia testified that she had not been able to rent an apartment in another building in the vicinity because they did not accept section 8, the judge asked, “Did you speak to him in English or Spanish?” She replied, “A little bit. My sister help my English. And I also talked to Mr. Tarin, and I told him what was happening.” The judge then interrupted Mr. Toffee, who attempted to continue his examination, with “Were you told in the Spanish language that those apartments in both places did not qualify for this Section 8 public assistance?”

….There is, at the very least, an appearance of unfairness in this record. Judge Sutton’s sarcasm, whether directed at appellants or respondents, contained the clear message of contempt for the litigation before him. That message, and the unnecessary use of the terms, “welfare” and “public assistance” could have triggered hostility in jurors toward appellants. Questioning Olivia, who was testifying through an interpreter, about her ability to speak and understand English indicates a possible cultural bias. In addition, it could have given the jury the impression that the court did not believe that she really needed an interpreter, thus eroding her credibility.

Respondents point out that it is permissible for a trial judge to ask questions of witnesses…and to exclude improper questions even without objection….And the judge may comment on the evidence so long as he does not distort the testimony, and informs the jurors that they are the exclusive judges of all questions of fact and of the credibility of the witnesses….We do not disagree with respondents, but find Judge Sutton’s comments and questions to go well beyond normal judicial conduct.

….Many of Judge Sutton’s questions were in the nature of a comment on the evidence. And it is not simply a question of courtroom etiquette, as respondent Mora suggests. A judge is required to “be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom [he] deals in [his] official capacity....” (Cal. Code Jud. Conduct, canon 3A(3); see In re Rasmussen (1987) 43 Cal.3d 536, 537.) Nor does it mitigate the possible effect on the jury that Judge Sutton was equally rude to opposing counsel, as respondent Coast suggests. The judge’s comments and questions displayed a contempt for the litigation. Since appellants brought the matter to court and had the burden of proof, such contempt could easily be interpreted as directed primarily toward appellants. In any event, Judge Sutton’s comments and questions were not simply discourteous, they betrayed a bias, or at least the appearance of bias against appellants on the basis of class and culture.

Sutton granted me a few moments of his time last week, before deciding he didn’t really want to be interviewed, and hanging up. He said of the Flores case:

“The problem was the City of Santa Fe Springs was trying to steal the property from the savings and loan, and the jury perceived that.”

Its decision was sound, and the only way for the plaintiffs to attack the verdict, he said, “was to attack me—and they did.”

Asked if the appellate court had been unfair to him, he said: “I think so.” He explained that the justices “took a cold record,” and were not aware that the case was before him on retrial and that “I was trying to keep a lid on it.”

The comments do not reflect an awareness that he had done anything wrong in the course of the proceedings.

Sutton said he wrote a “letter of explanation” to the Commission on Judicial Performance. He declined to provide a copy of the letter.

He instructed that further questions be directed to the CJP or to his lawyer, Ed George. The CJP confirmed that there is an ongoing investigation. George failed to return a phone call.

Oh, yes. There was something else Sutton said. He mentioned that Lagos—who was the Flores’ lawyer and has orchestrated complaints to the CJP—was “himself suspended for six months after this case.”

A lawyer is not apt to be suspended from practice for six months in the absence of rather serious misconduct. What egregious misdeeds did he commit?

“That’s not true,” Lagos protests. “I was not [suspended].”

He readily acknowledges having been disciplined for letting a paralegal sign his name to pleadings rather than personally affixing his signature, splitting fees with the paralegal in connection with collections, and bringing what was determined to be a frivolous action against the paralegal after they had a parting of ways.

I obtained copies of the relevant papers from the State Bar. They are public records; they were available to Sutton.

The discipline was pursuant to a stipulation, filed Aug. 6, 1997. Lagos was publicly reproved. He was not suspended from practice. Mitigating circumstances were found as follows: “Respondent has no record of prior discipline over many years of practice, coupled with present misconduct not deemed serious.” Notation was made: “Respondent has cooperated fully.”

For Sutton to accuse a lawyer of having been suspended from law practice for six months when there is no basis for the allegation was, to state the obvious, irresponsible. It was also libelous. (Ordinarily, spoken words, if defamatory, constitute slander; under California law, defamatory words spoken to a reporter with the expectation they will appear in print are classified as libel.)

It is, of course, unlikely that Lagos would bring a libel action against Sutton, given the lack of harm resulting from the libel. But Lagos should at least get something from Sutton. He should get an apology.

But that would be only one on an exceedingly long list of apologies that jurist owes. The many plaintiffs whose causes he has sabotaged top the list.