From June 19 until July 14 of this year, 12 Los Angeles citizens including a TV writer, a student studying fashion design, another getting a PhD in Political Science, a teacher, a retired teacher, a clinician and cancer researcher, a Home Depot manager, an Edmunds.com content provider, 2 in real estate, a mother, and myself served on a jury. For over 3 weeks we (as well as the 3 alternates) went to the Santa Monica Court House, infamously known in popular culture as the place where OJ lost his civil case.
As courthouses go, this was not bad. Not only had the jury room been updated within the last decade, the court is located about 3 blocks away from the ocean. I walked to beach during most of our lunch breaks and even got a slight sunburn one day I forgot to wear sunscreen.
The civil case, Herzig vs. The State of California, started back in 2010. We juried the second phase of the trial, the damages portion. The state had already lost against the real estate developer and we had to decide how much the plaintiff was due with some other questions. Picking the jury was a major hassle taking 3 days. Of the 90 potential jurors summoned, 89 were interviewed by the counsels before they settled on the 15. Some people desperately didn’t want to be on the jury, giving passionate (and in one case tearful) declarations against developers and their “greed.” One guy was an environmental expert and after several questions, he was dismissed. In contrast there was a newly minted citizen from Eritrea who was excited to be on a jury. The concept of suing your own government for damages blew her mind. It was something that could never happen in her home country or in Ethiopia, another country she lived in before coming here. Unfortunately she was cut too. I might have been close to the chopping block for both parties as I told the plaintiff’s lawyer that while I understood I was to award damages, I didn’t plan to give anything outrageous. The lawyer asked what my definition of outrageous was, but the defense objected. My answer for the outrageous sum would have been an 8-figure number. (Which they asked for.) The defense later asked whether my grandmother losing land to taxes would make me biased against the state. I said I could remain unbiased, but I felt she gave me a skeptical look.
Once we were sworn in as jurors, our judge, Mitch Beckloff, ended up being one of the kindest, best pro-jury judges I believe anybody will ever encounter. To begin with, he gave each of pens with a message thanking us for our jury service. We started the trial at 9:50 every morning with an hour and a half lunch break. Then another break around 3pm where he had a box full of treats for us. And by treats I mean full sized Snickers bars. He also baked cookies for us, bought cupcakes from Vanilla Bakery (my wife and I used them for our wedding), and later donuts when we were in deliberation.
He was a stickler with the lawyers about our break times, making sure that we didn’t sit for too long. Also we started the trial in the afternoon twice. Once to accommodate a juror’s job interview and another for a juror to complete an NIH research proposal.
The case itself was both interesting and frustrating. In 1995 the plaintiff entered into escrow for Malibu beachfront property from the US Marshals. The property had formerly housed the Albatross Hotel that was built in the 1950s and burnt down in the 70s. Here is a photo of the place in much better days. http://www.tikiroom.com/tikicentral/bb/viewtopic.php?topic=25533&forum=2
The purchase also included a flood channel that flowed from Los Flores Creek into the ocean. In 1998 with the escrow complete, the plaintiff tried to develop the property. The plans he submitted between 1998 and 2010 included an 8 room condo plan and later a restaurant. Each time there was an issue with either the city of Malibu or the California Coastal Commission that led to the projects being turned down.
So in 2010 the plaintiff was on his property when he noticed erosion behind his retaining wall that bordered the creek/flood channel. He found out that a drainage pipe owned by CalTrans went under the Pacific Coast Highway and through his wall had burst in 2003. Because of the erosion, his lawyer argued, the plant life growing behind the wall became an extension of the creek and would now be considered an ESHA (Environmentally Sensitive Habitat Area.) ESHAs require 1000 feet of undisturbed land, thereby reducing the development potential of the property. Using that argument, the plaintiff forced an inverse condemnation against the state of California – a sort of photonegative of government property condemnation. He made the state pay him for the value of his land before it was devalued as an EHSA. (Technically the land has never been declared an ESHA since no development proposals were submitted after the lawsuit began in 2010.) Our job was to determine the value of the land (in today’s prices) before and after the pipe broke.
Here is an aerial Google Map shot of the property today: https://firstname.lastname@example.org,-118.6365605,127m/data=!3m1!1e3
We watched a dozen plus witnesses from a smorgasbord of engineers, competing real estate experts, and the plaintiff himself. We also had to determine if the retaining wall built in the 1950s was repairable or not. I took over a hundred pages of notes as did a few other jurors who requested new notebooks. There was a lot of technical talk and acronyms, but I think we followed the arguments for the most part. Towards the end of the trial, the plaintiff’s wife suffered a heart attack during the defense’s evaluation of the property value. We were rushed out of the courtroom and eventually sent home.
Once we deliberated, I was made foreman. I have to say that I was impressed with sincerity and intelligence of our jurors. We were given an impossible task with limited information that none of us were qualified to make. We had 3 questions to answer:
- Could the retaining wall be fixed under Malibu’s 50% or less replacement restriction? (Anything over 50% is a teardown and requires new materials.)
- What is the value of the land (in today’s prices) before the damage?
- What is the value of the land after the damage?
Fortunately we only needed 9 out of 12 to make a decision. On Monday and Tuesday we argued about the wall. I tried to make sure everybody got to make their points. We had poster sized Post-It paper on the walls with timelines, regulations, estimates, and other details written out. We voted 4 times with the mood slowly shifting to no it can’t be repaired. (Part of the no campaign relied on changes in deposition testimony by defense engineering experts). I was a soft yes, believing the wall could be repaired, but not as precisely as the defense laid out. We were stuck at 4 yes and 8 no. Two others were soft yes (it can be repaired, but it would be close) while the Home Depot manager believing the wall could absolutely be repaired under the 50% replacement rule. I finally gave in late Tuesday afternoon.
Part of Tuesday and most of Wednesday was spent on the value of the property. The plaintiff’s expert claimed it was worth $16M before the damage while the defense’s expert claimed only $2.5M. Two jurors believed the land was worth $2.5M or less while another two believed it was $8M or more. The rest of us were in between, but still not close. Again, none of us were experts and we had to come up with numbers based on surrounding properties. It was tough and tense. At the end of the day on Wednesday we had 8 jurors agreeing on a number. We were close, but the bailiff came to get us and a juror need to go to her job. Thursday morning we took votes in $5/square foot increments starting at $115/sf (~29k of property.) We found the number at $130 (or $125) and valued the property before the pipe break at $3.8M. The twist is that we valued the property higher in the after damage at $3.4M. So the plaintiff, while he got money, was not an “outrageous” 8 figure sum. It was around $400,000.
After the verdict was declared, I got an email list of all the jurors and we decided to meet two weeks later at Duke’s, a restaurant next to the #%! wall. After drinks, food, and conversation we wandered over to the wall and gawked at it. It was in bad shape and probably not repairable under Malibu code. A few jurors learned from the defense that the plaintiff had bought the property for a mere $300,000. It boggles my mind to think he sued the state for $16M. (And according to the defense post verdict, he originally wanted $28M!)
I have to say serving on a jury was a great life experience. I feel like we shouldn’t have had to rule on such a complex issue, but I’m proud that we did our best to come up with a fair solution nonetheless. It gives me hope for America when things looks so bleak. If everybody is respectful of each other and willing to listen to opposing sides, we can get things done in this world. If you have an opportunity to serve on a jury, I’d recommend doing it. Besides these guys below did it as well:
Travis Richardson has been a finalist for the Macavity, Anthony, and Derringer short story awards. His novella LOST IN CLOVER was listed in Spinetingler Magazine’s Best Crime Fiction of 2012. He has published stories in crime fiction publications such as Thuglit, Shotgun Honey, Flash Fiction Offensive, Jewish Noir, and All Due Respect. He edits the Sisters-In-Crime Los Angeles newsletter Ransom Notes, reviews Anton Chekhov short stories at http://www.chekhovshorts.com, and sometimes shoots a short movie. His novella, KEEPING THE RECORD, concerns a disgraced baseball player who will do anything to keep his tainted home run record. www.tsrichardson.com
My story “Quack and Dwight” from Jewish Noir is up for Macavity and Anthony Awards this year. I’ll find out in September. Wish me luck!