Alameda County judge is admonished over discourtesy and mishandling witness

Alameda County Judge Frank Roesch was admonished Thursday by the Commission on Judicial Performance, which concluded he mishandled a witness' assertion of her Fifth Amendment rights and treated lawyers and witnesses discourteously.

A state appellate court reversed Roesch's rulings in two cases the commission mentioned. In one instance a $55 million jury verdict in an insurance bad faith case against an American International Group Inc. subsidiary was reversed.

"In two cases, Judge Roesch displayed a lack of the dispassionate neutrality and the courtesy to others that is expected of judges," the commission wrote.

"Although Judge Roesch believed, based on faulty assumptions, that his intervention in each case was justified, it is the misguided manner in which he attempted to address his misassumptions, and the discourteous way he comported himself toward those appearing in court before him, that is the basis for this discipline," the decision read.

The commission quoted extensively from transcripts of hearings in the two trials to illustrate Roesch's pointed and accusatory questioning of witnesses.

All members of the commission agreed on a public admonishment with the exception of Kay Cooperman Jue, a paralegal who favored a private admonishment instead.

During the trial against AIG, plaintiff Victaulic Inc. called the defendant company's director of complex claims, Nancy Finberg, as a hostile witness.

Roesch repeatedly interrupted the questioning to ask questions of his own and make "sarcastic and gratuitous remarks" that made it clear he did not believe she was telling the truth, the commission wrote.

The judge also ordered Finberg to make her Fifth Amendment declaration in front of the jury without giving AIG attorneys a chance to question her.

Both of Roesch's decisions violated the law, 1st District Court of Appeal Justice James A. Richman wrote in a February 2018 reversal of the verdict. Victaulic Co. v. American Home Assurance Co., 20 Cal. App. 5th 948 (Cal. App. 1st Dist., Feb. 26, 2018).

"Rather than acting as an impartial jurist, he persisted in questioning her in an overly forceful manner, required her to assert the Fifth Amendment in front of the jury, and did not permit her to be questioned by the insurers, who repeatedly asked him for the opportunity to do so," the commission wrote.

The commission also made similar findings against Roesch in a quiet title case, saying he made accusatory comments against the plaintiff that the parties in the case were "cheating somebody."

Roesch did not return a telephone call or email message seeking comment. David S. McMonigle, a partner with Long & Levit LLP who represents the judge, also could not be reached Thursday.

Roesch and McMonigle appeared before the commission Oct. 7 to contest the commission's tentative order. They waived an appeal to the California Supreme Court.

The commission ruled that prior discipline, an advisory letter to Roesch in 2011 for making discourteous remarks to a self-represented litigant, was an aggravating factor.