Hall v. Harker

• Decision Date: 29 January 1999
• Docket Number: No. G020262,G020262
• Citation: 69 Cal.App.4th 836,82 Cal.Rptr.2d 44
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 884, 99 Daily Journal D.A.R. 1087 R. Michael HALL et al., Plaintiffs and Respondents, v. James G. HARKER, Defendant and Appellant.

Page 44

82 Cal.Rptr.2d 44

69 Cal.App.4th 836, 99 Cal. Daily Op. Serv. 884,

99 Daily Journal D.A.R. 1087

R. Michael HALL et al., Plaintiffs and Respondents, v. James G. HARKER, Defendant and Appellant.

No. G020262.

Court of Appeal, Fourth District, Division 3, California.

Jan. 29, 1999.

[69 Cal.App.4th 839] O'Brien Watters & Davis, Michael G. Watters and Janis H. Grattan, Santa Rosa, for Defendant and Appellant.

Chevalier, Allen & Lichman and Roger P. Freeman for Plaintiffs and Respondents.

OPINION

WALLIN, Acting P.J.

This action for malicious prosecution against James G. Harker, an attorney, presents the question whether alleged bias on the part of the trial judge towards attorneys in general and the defendant in particular requires reversal. We conclude it does.

Procedural History

Dudley Taylor, a real estate broker, lived in Paso Robles in 1985. In February 1986, he went to work for Troy Investment Fund as marketing director for Troy's real estate development projects in southern California. Taylor signed a series of one-page contracts for base salary plus commission per unit sold, but he claimed Troy's chief executive officer, R. Michael Hall, also orally promised him a bonus commission of 2 percent of all gross sales under his brokerage license.

A dispute arose over the bonus commission, and in February 1991, Taylor sought legal advice from James Harker. Harker helped Taylor draft a letter charging Hall with preventing the sell-out of the Troy properties to prolong his salary and benefits, thereby breaching his fiduciary duty to the Troy investors. Taylor sent the letter to the District Attorneys of Orange and San Luis Obispo Counties. Harker wrote another letter detailing Hall's misdeeds to the law firm representing Hall and Troy and sent copies to various regulatory agencies.

In October 1991, Hall and Troy sued Taylor for defamation. Taylor, represented by Harker, filed a cross-complaint which was ultimately amended to allege violations of Labor Code section 970 [misrepresentations inducing relocation for employment], fraud, breach of contract, and breach of the covenant of good faith and fair dealing based on Hall's refusal to pay Taylor the bonus commission.

Hall and Troy obtained summary judgment on the cross-complaint in December 1992. The trial court found "that Taylor could not reasonably rely on oral promises for the payment of brokerage commissions, that Taylor executed fully integrated written contracts for the payment of brokerage commissions pursuant to the Statute of Frauds, the Parol Evidence Rule bars consideration of oral statements contrary to those written documents, and there were no other contracts, oral or implied, between Taylor and Cross-defendants as a matter of law." The court also found, based on a Department of Real Estate document, that Taylor had opened an office in Los Angeles County some months before he relocated to Orange County, allegedly in reliance on Hall's unenforceable oral promise of a 2 percent bonus commission.

The trial on Hall and Troy's complaint proceeded. At the trial judge's suggestion that Taylor might be exposing himself to charges of extortion in sending the first letter, Taylor asserted his privilege against self-incrimination and refused to testify as an adverse witness. Hall and Troy proved up their damages and were awarded $754,971. Taylor filed a notice of appeal but dismissed the appeal before the record was filed.

In September 1994, Hall and Troy filed this action against Harker for malicious prosecution in filing and maintaining the cross-complaint. During trial preparation, a copy of a letter from the Department of Real Estate was found in the files of counsel for Hall and Troy. The letter corrected the information regarding Taylor's office address to show he did not open a Los Angeles County office before he began employment with Troy in February 1986. The letter was dated November 1992, before the motion for summary judgment was heard in the underlying case, and Harker claimed the law firm acted unconscionably in failing to correct the assertion in the motion for summary judgment.

After a court trial, the court ruled for Hall and Troy, finding the underlying cross-complaint was terminated in their favor and that Harker had initiated and maintained the cross-complaint without probable cause and with malice. With respect to the nondisclosure of the DRE correction letter, the court found "[t]here was nothing to indicate anything other than a problem inherent with handling masses of paper in a medium size office with much work, many clients, and a centralized mail room staffed by human beings with normal human limitations." It also found a copy of the letter had been sent to Taylor and was subsequently given to Harker, and neither of them advised the trial court of its existence during the summary judgment hearings.

Judicial bias

Throughout the trial, the court expressed negative opinions about attorneys. Harker claims this obvious bias requires reversal because it created the appearance of impropriety and denied him a fair and impartial trial in violation of his right to due process. After a comprehensive review of the record, we agree.

"Whatever disagreement there may be in our jurisprudence as to the scope of the phrase 'due process of law,' there is no dispute that it minimally contemplates the opportunity to be fully and fairly heard before an impartial decisionmaker." (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 245, 42 Cal.Rptr.2d 440.) A judge's impartiality is evaluated by an objective, rather than subjective, standard. That is, "due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias." (Id. at p. 246, 42 Cal.Rptr.2d 440.) The question becomes whether "a reasonable man [or woman] would entertain doubts concerning the judge's impartiality ..." (Ibid; see also In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 15 Cal.Rptr.2d 70; Cal.Code Jud. Conduct, canon 2; 23 West's Cal.Codes Ann., Rules pt.2 (1996 ed.) p. 709; Code Civ. Proc., § 170.1, subd. (c).) When the allegations of bias relate to factual issues, they are particularly troubling because the appellate court usually defers to the trial court's factual and credibility findings. (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247, 42 Cal.Rptr.2d 440.) Implicit in this time-honored standard of review is the assumption that such findings were made fairly and impartially.

The comments made by the trial judge here reflected his opinion that attorneys occupy a position of power over the ordinary citizen which they routinely abuse. For example: "[T]hat's what I like when an attorney is on the stand being grilled and know[s] what it's like to be sued and be grilled." "I'd love to see attorneys put on the stand. I think it is poetic justice. And I really hope that somebody that is just a tiger at examination or cross-examination gets them and just works them over. Generally speaking they come out of the experience, if it's been properly done, humbled. And much more appreciative of what they've put other people through." "[O]ne of the things I think is an appropriate learning tool for attorneys is for them to be on the witness stand for some time and to be grilled unmercifully so they can learn how it feels and possibly be a bit more sympathetic on whom they inflict their terror...."

The court indicated its belief that attorneys are predisposed to use the judicial process as a means of coercion. "There's a great deal of commentary both in the legal profession and in the nonlegal profession [about] the cudgel that attorneys use against citizens, beating them down, killing the forest by the papers they produce in the course of the trial. Ten billion dollars in the State of California is used by attorneys in their suits, and it produces nothing except money for attorneys." The next day, he repeated, "[A]ttorneys have an unusual cudgel they can use against citizens by virtue of their ability to control the evidence. [p] You know you have the weapons. The citizen does not -- weapons, not evidence -- and he needs or she needs to be able to feel secure from its arbitrary, inappropriate use. And I think that's what malicious prosecution is all about."

The court apparently believes attorneys spend unnecessary time on cases to inflate their fees. "I am always distressed when there is a great deal of legal threshing around, which simply runs up the legal costs, and it bothers me because, normally speaking, your law is fairly clear, just that the attorneys ignore it and try to do something which the law does not allow." "Attorneys' questions are kind of like expenditures in a family. They always rise to take up the available time or available cash." The court characterized Harker's deposition of Hall as "simply a deposition asking every conceivable question that the attorney can think of because he is paid by the hour."

The court insinuated that attorneys use tricks to distort the truth: "I am not the kind of weak...