Civil Case No.: B158498
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GHOSTON, et al.,Petitioners,
vs.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES,
Respondent. / For Civil No.: B158498
(Los Angeles County Superior Court
Lead Case Number: TC008819
and consol. Cases)
Hon. John Stanton
ANGELES ABBEY MEMORIAL PARK, et al.,
Real Parties in Interest and Defendants.
SUPPLEMENT TO PETITION FOR WRIT OF PROHIBITION OR OTHER APPROPRIATE RELIEF; SUPPORTING POINTS AND AUTHORITIES
George Stanbury (Bar No. 60048)H. Scott Leviant (Bar No. 200834)
Stanbury Fishelman & Wisner, Inc.
9200 Sunset Boulevard, Penthouse 30
Los Angeles, CA 90069-3601
Telephone: (310) 278-1800
Fax: (310) 278-1802
Attorneys for Petitioners
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TABLE OF CONTENTS
TABLE OF CONTENTS i
I. INTRODUCTION 1
II. PETITION FOR WRIT OF PROHIBITION OR OTHER APPROPRIATE RELIEF 3
A. Authenticity of Exhibits. 3
B. Beneficial Interest of Petitioner; Capacities of Respondent and Real Parties in Interest. 3
C. Chronology of Pertinent Events 4
D. Basis for Relief 7
E. Absence of Other Remedies 7
III. PRAYER 9
IV. MEMORANDUM OF POINTS AND AUTHORITIES 10
A. The Transfer Order Is An Unlawful Interference With Judge John Stanton’s Primary And Exclusive Jurisdiction 10
B. Even If The Transfer Order Is Not Unlawful, It Is An Unreasonable Abuse Of Discretion. 15
V. CONCLUSION 17
TABLE OF AUTHORITIES
California Citations
California Pine Box & Lumber Co. v. Superior Court (1910) 13 Cal.App. 65 17
Ford v. Superior Court (1986) 188 Cal.App.3d 737 11, 12, 13
In re Ramirez (2001) 89 Cal.App.4th 1312 12, 13
People v. Madrigal (1995) 37 Cal.App.4th 791 11
White v. Superior Court (1895) 110 Cal. 60 10
Williams v. Superior Court (1939) 14 Cal.2d 656 10
Constitutional Provisions
Cal. Const., art VI, § 4 13
Treatises
2 Witkin, Cal. Proc., (4th ed. 1996) Courts, § 232 11
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I. INTRODUCTION
On May 10, 2002, this Court deemed Petitioner’s “application for emergency stay” a “petition for writ of prohibition”, and ordered Petitioners to serve and file a “supplement” to the petition, on or before May 13, 2002.
Since the Court of Appeal issued its Order, a major development occurred in the trial court which makes even stronger the importance and propriety of completing the pending case before the empanelled jury. Mere minutes after this Court issued the emergency Order, on Friday, May 10, 2002, a jury decided the liability phase and found both defendants liable to all plaintiffs for Negligence and Breach of Contract in connection with the burial of close family members in a dirt roadway at Angeles Abbey Cemetery. In addition, the jury found both defendants liable for Fraud by Concealment as to the Williams plaintiff. This last fact – the finding of fraud on behalf of the Williams plaintiff – means that, even with the transfer order that was being foisted upon the trial court judge, this jury will remain empanelled to determine the damages and the exemplary damages for the Williams plaintiff. However, only this Court’s emergency Order has prevented the jury from being discharged as to Petitioners. If Petitioners are not permitted to have their damages decided by this same jury, inconsistent compensatory damage awards are likely.
Now, after a meticulously pre-screened jury has had the opportunity to hear the evidence and judge the veracity of 27 plaintiffs who have appeared and testified over a three week period of time, plaintiffs are being told that their damages will not be determined by this jury and, instead, their case will be further delayed and transferred to another judge in another department where a new jury will be selected to determine damages. Fortunately, only minutes before the jury returned its verdict, this Court issued its Order “restraining” the trial court from “discharging the jury or transferring any of the cases pending before Judge John Stanton to another department.” A true copy of this Order is attached hereto as Exhibit A and incorporated by this reference.
Unless this Court prohibits the transfer of this case to another department, and orders Judge John Stanton to retain the present jury and permit that jury to render its verdict for damages in favor of plaintiffs, or in the alternative, in favor of all plaintiffs that have testified at the trial,[1] plaintiffs will be denied their right to a decision from the best jury and the only jury with the right to decide damages in this case.
II. PETITION FOR WRIT OF PROHIBITION OR OTHER APPROPRIATE RELIEF
A. Authenticity of Exhibits.
All exhibits accompanying this Petition are true copies of original documents on file with the Respondent Court. (Verification and Declaration of George Stanbury attached hereto, at ¶ 2.) Each of the exhibits are incorporated herein by reference as though fully set forth in this Petition. The exhibits are paginated and page references in this Petition refer to the consecutive pagination.
B. Beneficial Interest of Petitioner; Capacities of Respondent and Real Parties in Interest.
Petitioners are the Plaintiffs in an action entitled Terry Barnes, et al. v. Angeles Abbey Memorial Park, a California corporation, et. al , case number TC008819, and related and consolidated actions, now pending before the Hon. Judge John Stanton in Division 4 of the Los Cerritos Branch of the Los Angeles Superior Court. Defendants Angeles Abbey Memorial Park Cemetery and the Estate of Jean Sanders are named as the Real Parties In Interest.
C. Chronology of Pertinent Events
Petitioners are four families (Ghoston, Freeman, Askew and Harris) whose loved ones were improperly buried at Angeles Abbey Memorial Park. These cases were “consolidated” with a pre-existing Class Action case involving many more improperly buried loved ones at Angeles Abbey. The Class Action was “certified” for purposes of determining liability only, while the “individual” cases (i.e., the four families represented by this firm and the Williams plaintiff, represented by another firm) were to proceed on both liability and damages.
As the consolidated case proceeded to trial, it became obvious that it was a “long cause” matter and counsel for the parties properly qualified the case for a “long cause” trial. The case was transferred from the Central Civil courthouse by the Presiding Judge to the Central Civil West courthouse to be tried by Hon. Judge Harvey Schneider as a long cause trial. Judge Schneider retired before the trial was commenced and the case was then transferred to Hon. Robert Parkin in the Compton courthouse.
On April 15, 2002, the scheduled date for trial, Judge Parkin was “unavailable” and, on order of the Presiding Judge, John Cherosky, the case was transferred to Hon. William Barry in Division 11 of the Compton courthouse. Counsel for Defendants then filed an affidavit pursuant to C.C.P. Section 170.6 against Judge Barry. Later the same day, pursuant to order of the Presiding Judge sitting in Department 1 of the Central Civil courthouse, the case was transferred for trial to Hon. Judge John Stanton sitting in Division 4, Los Cerritos Court in Bellflower. A true and correct copy of the Minute Order transferring this case to Judge John Stanton is attached hereto and incorporated by reference as Exhibit B.
On April 15, 2002, when the matter was unconditionally transferred for “jury trial – long cause”, all parties and counsel, including the Class Plaintiffs, all individual Plaintiffs, and counsel for both defendants, believed that the case had been fully and finally transferred to Judge Stanton for trial of both liability and damages, as well as any post-verdict or post-judgment motions and issues. Consistent with this belief, a special, “qualified” panel of potential jurists was pre-screened and laboriously selected in a voir dire process the consumed more than two court days. During this process, nearly 100 prospective jurors were used to obtain the 12 actual and 3 alternate jurors who have heard the evidence over the past 3 weeks and rendered their verdict of liability against both defendants.
Trial of this matter commenced before Judge John Stanton on April 15, 2002. The trial has continued without interruption for nineteen (19) court days. Four law firms and six (6) trial attorneys have participated in the trial. Fifteen (15) jurors have devoted their time to this case and made the sacrifice and commitment to participate in the case to its conclusion. Thirty-two (32) witnesses have testified and at least two of those witnesses live on the east coast of the United States. Several others live in northern California or significant distances from Los Angeles. Now, after three (3) days of deliberation leading up to their verdict of liability, including a verdict of Fraud by Concealment, and after 3 weeks of actual trial in which this jury panel has heard testimony from thirty-two (32) witnesses, read portions of two depositions, and viewed at least 52 admitted exhibits, Petitioners are being told that the four cases filed by the Ghoston, Freeman, Askew, and Harris families will be transferred mid-trial, without the jury, to another department of the Superior Court, along with the claims of the class representatives and all class members who did not file individual cases.
In the middle of a “long cause” trial, Hon. Chris Conway, Supervising Judge for the Southeast District of the Los Angeles Superior Court, Ordered Judge John Stanton (the specified Judge named in the Minute Order [Exhibit B] to try this case) to transfer the 4 class representative plaintiffs and certain individual plaintiffs (Ghoston, Askew, Freeman and Harris) back to Hon. Robert Parkin, Assigned Judge of the South Central District of the Los Angeles Superior Court.[2]
D. Basis for Relief
The issue presented by this Writ Petition is whether the Respondent Court, specifically Hon. Chris Conway and/or Hon. Robert Parkin, has the authority to disrupt an ongoing trial by requiring the discharge of the jury that has deliberated and rendered a liability verdict in favor of all Plaintiffs and against both Defendants and the transfer of the case, without the jury, to another department of the superior court. Petitioners contend that the Respondent Court has no jurisdiction or authority to usurp the primary, exclusive jurisdiction of Hon. Judge Stanton by ordering the discharge of the jury and the transfer of the case to another department and, even if such authority could be deemed to exist, such actions would be an abuse of discretion that would result in manifest injustice to Plaintiffs and waste of judicial resources. At the same time, such an act, if allowed to stand, could only erroneously serve to raise questions in the mind of some members of the public as to whether there was an appearance of improper handling of a jury trial mid-stream.
E. Absence of Other Remedies
Each jury is unique as is every trial. If the jury is discharged, Plaintiffs will never be able to duplicate this jury. If the case is transferred to another department, the judge in that department may make rulings that are inconsistent with the rulings made by Judge John Stanton. No subsequent jury would possess the full set of facts possessed by the current jury when evaluating the remaining issues in the ongoing trial of this matter. Further, the transfer will necessarily result in further delay to the Plaintiffs who have already waited seven (7) years for justice.
/ / /
/ / /
III. PRAYER
Petitioners pray that this Court:
- Issue a Writ prohibiting Respondent Superior Court from discharging the jury and from transferring any of the plaintiffs’ cases, including Petitioners’, to another department of the Superior Court;
- In the alternative, issue a Writ prohibiting Respondent Superior Court from discharging the jury and from transferring, to another department of the Superior Court, any plaintiff’s case in which the plaintiff (or an adult guardian thereof) has already testified at trail;
- In the alternative, issue a Writ prohibiting Respondent Superior Court from discharging the jury and from transferring, to another department of the Superior Court, the Ghoston, Freeman, Askew, Harris and Williams individual (non-class) plaintiff cases;
- Award Petitioner their costs pursuant to Rule 56.4 of the California Rules of Court; and
- Grant such other relief as may be just and proper.
Dated this 13th day of May 2002. Respectfully submitted,
George Stanbury
H. Scott Leviant
Stanbury Fishelman & Wisner, Inc.
By: / George Stanbury, Esq.,Attorneys for Petitioners Ghoston ,Freeman, Askew and Harris
IV. MEMORANDUM OF POINTS AND AUTHORITIES
A. The Transfer Order Is An Unlawful Interference With Judge John Stanton’s Primary And Exclusive Jurisdiction
When a case has not yet proceeded to trial, even an improper transfer order may be upheld. (See, e.g., White v. Superior Court (1895) 110 Cal. 60, 67.) However, once a department of the Superior Court is proceeding to hear a case, that situation changes radically. Improper transfers are barred as an interference with a preexisting, exclusive jurisdiction over the matter, and any improper transfer provides clear grounds for appellate reversal. In Williams v. Superior Court (1939) 14 Cal.2d 656, the California Supreme Court held:
“[W]here a proceeding has been duly assigned for hearing and determination to one department of the superior court by the presiding judge of said court in conformity with the rules thereof, and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned. . . . In other words, while one department is exercising the jurisdiction vested by the Constitution in the superior court of that county, the other departments thereof are as distinct therefrom as other superior courts.”
(Williams v. Superior Court (1939) 14 Cal.2d 656, 662; see also, People v. Madrigal (1995) 37 Cal.App.4th 791, 795; 2 Witkin, Cal. Proc., (4th ed. 1996) Courts, § 232, p. 302.)
The holding in Williams remains as valid today as it did in 1939. For example, the Court, in Ford v. Superior Court (1986) 188 Cal.App.3d 737, held:
“’”’[a] superior court is but one tribunal, even if it be composed of numerous departments. . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . .’ “. . . [W]here a proceeding has been . . . assigned for hearing and determination to one department of the superior court by the presiding judge . . . and the proceeding . . . has not been finally disposed of . . . it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned . . . If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion. [Citation.]” (Williams v. Superior Court [1939] 14 Cal.2d 656, 662, 96 P.2d 334 ... )’ (In re Kowalski (1971) 21 Cal.App.3d 67, 70 [98 Cal.Rptr. 444]; People v. Batchelor (1976) 56 Cal.App.3d 278, 284 [128 Cal.Rptr. 349].)”