|Fare hike. Attorneys spats pushed legal bills past $31-million mark for MTA, "tens of millions" for Tutor. (Photo courtesy of L. A. Metropolitan |
Transportation Authority )
Thats how the appeals court judges in contractor Ronald N. Tutors nine-year-long legal struggle against the Los Angeles subway agency describe the behavior.
Not behavior by Tutor or Metropolitan Transportation Authority officials.
By their lawyers.
The decision, written by state Court of Appeals Judge P.J. Perluss, goes out of its way to describe the vindictiveness that fueled the conflict.
Much of the bad behavior occurred over whether Tutors side should produce pre-bid documents for the MTA to consider using as evidence.
In the 1999 trial, MTAs legal costs came to at least $31 million, which the trial court ordered Tutor to pay along with a $29 million judgment. Tutor says hes spent tens of millions on his legal costs.
The appeals court judges overturned the decision against Tutor in the jury trial and now both sides will fight it out in court again on the basic claims.
In the introduction to his opinion, Perluss says Tutor-Saliba Corp., Sylmar, and Perini Corp., Framingham, Mass., squared off with the MTA "for six years of extraordinarily acrimonious, bare-knuckles litigation" over the joint ventures claim for extra payments for change orders on subway station construction projects.
The lawsuits started with Tutors claims for payments. By the time MTA had filed its cross-complaint, extensive discoverythe phase before trial when the parties to a lawsuit request evidence from each otherand repeated discovery battles had already taken place. Tutors side objected to MTA requests for pre-bid material because it claimed the documents contained confidential information about Tutors competitive bid preparation process. Tutors side grudgingly complied and allowed the judge in a separate hearing on the evidence to see a box of proprietary documents.
After filing a cross-complaint, MTA moved to re-open discovery, fueling "increasingly nast discovery battles over the next two years," Perluss wrote. Most of the MTA requests focused on pre-bid documents allegedly withheld by Tutors side during earlier rounds of discovery. Ultimately, trial court Judge Joseph R. Kalin imposed pretrial monetary and issue sanctions against Tutor and his law firm, Castle & Lax, based on their failure to produce documents.
At one point, MTAs expert witness, Thomas Turner, claimed that because the joint venture had not produced certain documents Turner would expect to find in its files, those documents must have been withheld, Perluss wrote. It was highly improbable, Perluss quotes Turner as saying, that a contractor of Tutor-Saliba-Perinis sophistication would bid $13.5 million of work without retaining some of the detailed estimating work papers for this work.
"It is apparent that not all cut-add sheets (and specifically the overall cut-add sheet) of the pre-bid estimate have been produced," Perluss quotes Turner.
In response, Ronald Tutor state that some of the documents described by Turner had been lost, others had already been produced to MTA and still others never existed.
One of the nastiest exchanges between lawyers concerned a request in June, 1999 Castle & Lax that MTA produce 1,000 boxes of MTA documents and deliver them to Castle & Laxs office. Perluss ruled that a $5,311 sanction imposed on Castle & Lax for expense was improper, "although all counsel involved in this incident demonstrated a disheartening lack of maturity and judgment."
A separate hearing had to be held on Nov. 11, 1999, on Tutors request for the 1,000 boxes. MTA claimed it had previously produced all or most of the documents in response to prior demands by Tutor.
The judge who presided over this separate hearing ordered MTA to hand-deliver the boxes, but MTAs counsel, David Casselman, offered the documents for inspection at the copying warehouse where they were stored. Tutors lawyer, Ronny Sendukas, rejected the offer and the following exchange took place:
MR. CASSELMAN: Would you like me to hand deliver 1,000 boxes? Do you want me to hand deliver them?
MR SENDUKAS: If youve got 1,000 boxes that havent been previously produced, fine, hand deliver them.
MR. CASSELMAN: No, no, thats not what the order says, Mr. Sendukas.
MR. SENDUKAS: Ive read the order and yourre wrong.
MR. CASSELMAN: Just tell me now, would you like 1,000 boxes delivered to your office tomorrow?
MR. SENDUKAS: I would like compliance with the order.
MR. CASSELMAN: Yes or no, would you like 1,000 boxes hand delivered to your office tomorrow?
MR. SENDUKAS: Thats a stupid question.
MR. CASSELMAN: Ill take that as a no.
MR. SENDUKAS: Its not a no.
MR. CASSELMAN: Then say yes.
MR. SENDUKAS: If youve got 1,000 new boxes, you better get them to my office tomorrow.
MR. CASSELMAN: I will bring a redball truck to your office and well move them into your personal office and stack them up.
The entire box incident was a useless exercise, wrote the hearing judge, because Castle & Lax only relatively briefly reviewed the 1,000 boxes delivered to their office building. Soon after they were returned to a warehouse and Castle & Lax looked them over there the following week.
The lawyers on both sides consistently showed "a lack of professional courtesy," wrote Perluss. "Although such behavior has become increasingly common place in what is supposed to be civil litigation, it is hard to fathom why lawyers believe such tactics advance the interest of their clients."
"What is clear in this case is that counsels inability to cooperate with each other directly contributed to the need for an expensive retrial of this case."
Appeals Court Rules in Favor of Tutor In Subway Dispute (1/28/2005)