Judge Sutton Acts Wrongfully, Justices Shrug Shoulders

Thursday, November 1, 2001

Page 7

Perspectives (Column)

Judge Sutton Acts Wrongfully, Justices Shrug Shoulders

By ROGER M. GRACE

James M. Sutton Jr. is a judge of the Los Angeles Superior Court whose mission appears to be that of sabotaging tort cases assigned to his Norwalk courtroom.

I told of some of his shenanigans in a series of columns in June. Another instance of Sutton’s pro-defendant bias in civil cases surfaced yesterday in an unpublished Court of Appeal opinion by Justice Fred Woods of this district’s Div. Seven. The case is Lucas v. Volpe, B142893. The case is one in which reversal was the only reasonable action the appellate court could have taken—yet in this instance, as in all too many, the Court of Appeal rationalized the irrational, and affirmed.

The appellants were William Lucas and Josee Lucas. They had sued Stephen P. Volpe and others based on what they asserted to be mismanagement by Volpe of eight partnerships. The Lucases were minority general partners, along with about 15 others.

The defendants demurred to the complaint, one of the grounds being that the Lucases had failed to join the other partners, whom the defendants insisted were indispensable parties. Los Angeles Superior Court Judge Thomas I. McKnew Jr. overruled that portion of the demurrer.

Subsequently, the defendants moved to dismiss pursuant to Code of Civil Procedure §389 on the ground that indispensable parties had not been joined. Los Angeles Superior Court Judge Chris R. Conway denied the motion.

On April 26, 2000, the case was sent to Department R for trial. That department, wherein lurks James Sutton, is a death house for tort actions.

Trial did not take place. Sutton proclaimed that it appeared that there were indispensable parties who had not been joined, and asked for briefing of the issue. He did not forewarn that he would scuttle the action if he found this to be so. At a hearing on May 10, 2000, Sutton sua sponte granted a motion for judgment on the pleadings. At a subsequent hearing, he granted the defendants’ motion for attorney fees, pursuant to a contractual provision.

Did the plaintiffs’ attorney ask that an opportunity be afforded to add the other partners as parties? Santa Monica sole practitioner David Burkenroad responds: “I asked for that, yes I did.” He recounts that Sutton “said ‘no.’ ”

Here’s the relevant portion of the transcript, provided by the lawyer:

“Mr. Burkenroad: Your honor, I request that the court give the plaintiffs the opportunity to name the other parties as parties to the extent that they have relied on the orders of the court not to do so.

“The court: This case is finito. It is over. I have sustained the demurrer. I have granted the judgment on the pleadings.”

Sutton’s action did not preclude a refiling of the action. Nonetheless, the plaintiffs were hardly unscathed. They were saddled with an obligation to pay the defendants $14,379.32 for defense work done by attorney Brian J. Kennedy.

Burkenroad protests that the plaintiffs were not seeking damages from the other partners or from the partnerships, but from “an individual partner for the tort of breach of fiduciary duty.” There was no need to join the other partners, he insists.

Even if he’s wrong—and Woods’ opinion says that he is—there would seem to be a king-size abuse of discretion on the part of Sutton in failing to grant the Lucases leave to join the other partners so that the action could have proceeded and been determined on the merits.

Woods does not discuss that point. However, in the course of justifying Sutton’s granting of judgment on the pleadings on his own motion, Woods alludes to this authority:

“(See also Bank of Orient v. Superior Court (1977) 67 Cal.App.3d 588, 595 [‘The objection to the omission of indispensable parties is so fundamental that it need not be raised by the parties themselves; the court may, of its own motion, dismiss the proceedings, or refuse to proceed, until indispensable parties are brought in.’].)”

That authority stands for the rather uncontroversial proposition that Sutton could have put the case on hold until the other partners were brought in. The unfairness of his not having done so is manifest. Yet, this was somehow overlooked by Woods and his colleagues, Acting Presiding Justice Earl Johnson Jr. and newly appointed Justice Paul Boland (who participated while a Superior Court judge, sitting on assignment). It was this same trio who recently filed an opinion entirely under seal—though they did, to their credit, later publicly file a modified version of the opinion.

It’s well settled that it is an abuse of discretion to grant judgment on the pleadings without leave to amend if there’s a “reasonable possibility” that the plaintiff, if given a chance, could state a cause of action. The policy underlying that rule is that cases generally should be tried on their merits. Here, there was no issue as to whether a cause of action was stated, but the underlying principle is the same. In refusing to permit the amending of the complaint to name the remaining general partners as parties, and provide an opportunity to serve them, Sutton plainly abused his discretion and once again evidenced injudiciousness. Burkenroad says of Sutton’s action: “To me, it was vicious.”

For all Sutton knew, the action had merit. Yet, by taking the course he did, he created the prospect that plaintiffs with valid causes of action would be paying the tortfeasor (and his nominal co-defendants) $14,379.32 because the plaintiffs did not join parties whom two judges told them need not be joined.

That prospect has turned out to be reality. The validity of the allegations against Volpe has now been judicially determined. Burkenroad reports that the action was re-filed, and that Los Angeles Superior Court Judge Irving S. Feffer granted summary adjudication in favor of the plaintiffs on the cause of action against Volpe for breach of fiduciary duty, assessing damages at $180,068. He notes: “We intend to get punitive damages.”

Nonetheless, it remains that Sutton ordered Burkenroad’s clients to pay $14,379.32 to the party who committed a tort, and the Court of Appeal, in a thoughtless decision, upheld the injustice. Burkenroad advises:

“I’m going to petition the Supreme Court for review just for the sake of it.”

UPDATE—Another injustice ratified recently by the Court of Appeal was the adjudication of Siskiyou attorney Steven G. Hanson as being in contempt for telling a jury in a criminal case that his client “has not received a fair trial in this case.” Hanson advises that he paid the $200, without seeking review in the Supreme Court.