I’ve written here before about how you can never assume a judge knows anything about civil litigation. I’m not necessarily saying that in a pejorative sense; it may just be that the judge has only a transactional legal background, or previously worked on the criminal side.
I ran into another one of those judges who was unclear on basic procedure.
I was retained to handle an appeal from a bench trial judgment, and I had to bring a Motion for New Trial before pursuing the appeal. I timely filed the notice of intention to move for new trial, and all the subsequent documents. With a bench trial, I don’t hold much hope that the judge will, in essence, reverse herself, but it is a necessary step for appeal if you are challenging the amount of damages.
The day before the hearing, the judge issued a tentative ruling, denying my motion on three grounds. First, she erroneously (and incredibly) ruled that the motion was untimely, because it was not served 16 court days before the hearing. New trial motions have their own schedule, and are not subject to the section requiring 16 days notice. They are specifically excluded by that code section, and in any event it is the court that sets the hearing date after the notice is filed, so I have no control over how much notice is provided.
Second (and perhaps even more incredibly), the tentative stated that the court was denying the motion because I had served it by email, and there was no indication that the opposition had authorized service by email. The thing is, while I had indeed sent a courtesy copy by email, I had ALSO served by overnight mail, as indicated on the Proof of Service. This court was apparently under the impression that emailing a courtesy copy, in addition to serving by overnight mail, somehow negates the proper service.
Finally, the court came up with, shall we say, a creative theory that since the prior trial counsel had objected to the Statement of Decision, that amounted to a motion for new trial, and therefore my motion for new trial was in fact the second such motion, and therefore should have been brought as a motion for reconsideration.
All three of the court’s grounds for denying the motion were patently erroneous, so I prepared my oral response and drove to court ready for battle.
My matter was called, and the judge asked why I was there, given the tentative. I launched into my explanation on why the first point was erroneous, but she cut me off and said, “Well even if that is true, the tentative gives two other reasons why the motion was denied.”
“Yes, your Honor, and I will get to those, which were erroneous as well,” I responded.
“Counsel, I’m not going to allow you to argue if you are going to go through my tentative point by point and explain why I was wrong,” she responded.
and than?
. . . and then I took her up on appeal, explaining to the Court of Appeal that at the very minimum this presented a teaching opportunity.
Ego-driven reaction by a jurist (the judge) who potentially suffers from pathological gender insecurities: rational explanation of her errors by a male probably comes across as “man-splaining” to her (and, as any sane person knows, the concept of “man-splaining” is employed as sexist dismissal of arguments by way of marginalizing or minimizing such arguments on the basis of gender. In effect, it is an ad hominem: “your statements are invalid because you are a man”, the converse of insecure males who take offense at being corrected by a female).
The central purpose of showing up to a hearing after a tentative is to contest it, obviously. In other words, you were doing exactly what you were supposed to be doing. I am supremely curious at how this panned out, if you don’t mind sharing! Cheers.
I just kept on talking and the judge announced that she was going with her tentative ruling; even the ridiculous ruling as to the notice required. I took it up on appeal, explaining to the Court of Appeal that regardless of how it decided the underlying motion, this was a teaching opportunity (does that make me a mansplainer?) I feel like when a judge goes off the rails like this, an appeal court should address any crazy conclusions, even if it doesn’t directly go to the ultimate opinion. For cripes sake, at least drop a footnote stating, “counsel was correct that a motion for new trial is not governed ty the 16 day notice period, but that does not alter our conclusions.” If the Court of Appeal fails to speak to an error such as this, then what will the judge conclude? “I must be right about the notice period, because my ruling was not reversed.” The Court of Appeal did not say one word about the notice period in the opinion.
I had a case where I submitted the proposed judgment following a bench trial, and the opposition “objected” to the proposed judgment by citing to a case from the 80s that had no discussion of the relevant issue. The judge picked up the phone and spoke to the attorneys who had been involved in that case from the 80s, to ask whether the issue, that was not discussed in the opinion, had been an issue in the case. Based on his ex parte communications with attorneys having nothing to do with the case, he reversed himself and entered judgment in favor of the opposition. I took it up on appeal, and of course the judgment was reversed in favor of my client. But nowhere in the opinion did the Court of Appeal address the issue of the outrageous conduct of the judge. I’m not saying it is the job of the Court of Appeal to finger wag at the judge, but I think it would have been entirely appropriate to add a little language explaining that it is not appropriate for a judge to contact persons outside of the trial, while affording no opportunity for counsel to examine these new witnesses.