News
Constitutional Law
Feb. 20, 2002
Defendant Escapes Punitive Damages by Not Appearing
SAN BERNARDINO - A deputy public defender found liable for defaming a sex crimes prosecutor failed to show up for a hearing on punitive damages Tuesday - a move that, thanks to the plaintiff's procedural oversight, forced the judge to declare a nonsuit.
Plaintiff's counsel was expecting to question Michael J. Kennedy about his net worth. A jury earlier this month ruled that he and his employer, San Bernardino County, should pay $250,000 in general damages to Deputy District Attorney Kay M. Neshat.
In moving for nonsuit, defense attorney Stephen E. Miller said Kennedy was under no obligation to appear in court because the plaintiff had not served him with any notice to do so. Kennedy, a Victorville public defender, apparently is in Arizona.
Gary M. Paul, attorney for Neshat, asked for a continuance to give him time to serve Kennedy. But San Bernardino Superior Court Judge Frank Gafkowski granted the nonsuit on punitive damages and dismissed the jury.
A nonsuit means the plaintiff did not have sufficient evidence as a matter of law to proceed. Before the trial, there had been no discovery on punitive damages in Neshat v. Kennedy, SCV57711 (San Bernardino Super. Ct., filed June 1, 1999).
After the hearing, Paul accused Kennedy of a "gutless" ploy to avoid a punitive award.
"I'm not saying he did anything illegal," Paul said. "He just took the coward's way out."
Under the Government Code, San Bernardino County is responsible for paying all the general damages. Kennedy, however, would have been on the hook for any punitives.
But Miller said Paul should take the blame for not filing the correct paperwork.
"Mr. Paul can say whatever he wants to," he said. "But he wouldn't have to be making any explanations if he had served the required notice."
Miller said he decided to move for nonsuit after going through his files and finding no notice for his client to appear or to produce financial records. As a party to the case, Kennedy was not under a court order or subpoena.
The nonsuit provided an extraordinary finale to a case that centered on allegations that Kennedy destroyed Neshat's reputation when, during a conference in judge's chambers, he called her a "pervert" who gets sexual gratification from her cases.
Neshat also sued the county for doing nothing to prevent Kennedy's behavior even though his supervisors knew he was "malicious and offensive."
The jury reached its verdict on general damages Feb. 8.
According to the Code of Civil Procedure, a party to a case should be served with a notice to appear no later than 10 days before trial. Paul said he had no reason to believe Kennedy would not appear - and the defendant did so for a month during the general damages phase.
"He was afraid to face this jury again," Paul said.
Michael D. Stein, an adjunct professor at Loyola Law School and an expert on civil procedure, agreed that the plaintiff's oversight was a legal basis for nonsuit.
But Stein added, "It does seem inequitable that the judge allowed [Kennedy] to escape punitive damages because he left the jurisdiction."
Paul said he was researching "legal avenues" for an appeal of the nonsuit ruling. Kennedy and the county are planning to appeal the award of general damages.
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Matthew Heller
Daily Journal Staff Writer
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