A New Age Feud in San Diego

Sex harassment charges against Deepak Chopra associate leads to author accusing court of corruption and cronyism

The Recorder/October 17, 2000
By Gail Diane Cox

New Age superstar Deepak Chopra has taken his running feud with San Diego's judges to the California court of appeal, with the guru's attorneys urging the appellate court to "restore faith" in the "poisoned atmosphere" of San Diego's legal community.

Chopra, whose books preach that inner tranquility can fend off aging and disease, is appealing an $11,000 judgment to a former employee who says she was sexually harassed by a Chopra associate.

The case, Auxter v. The Chopra Center for Well Being, D030839, would be a passing blip on the employment law screen if it weren't for its extra baggage. Four San Diego judges have recused themselves from cases involving Chopra, who has a house in La Jolla.

During oral arguments before the 4th District last Wednesday, Chopra's attorneys claimed that cases involving the author and his associates were funneled to a judge who they say is bent on advancing her own career by currying favor with a prestigious local law firm representing Chopra's opponents.

Earlier this year, during a break on a tour for Chopra's 25th book, "How to Know God," the Indian-born endocrinologist was quoted in the Los Angeles Times as saying: "I want this on the record: I am going to get Judge Judith McConnell in the end; she will not get away with this corruption."

In Auxter, Jyl Auxter contends she lost her $70,000-a-year marketing and sales job after barely a month in 1995 when she rebuffed the sexual advances of her boss, Dr. David Simon, a partner of Chopra.

Chopra's attorneys say she was a volunteer, not an employee, and that lawyers at San Diego's Gray Cary Ware & Freidenrich solicited her to file suit because they had another client, Vicky Weaver, with a sexual harassment suit against Chopra himself.

Simon has denied wrongdoing and is out of the picture, having settled confidentially with Auxter. Chopra denied Weaver's allegations, and last March, Weaver lost her suit when a jury found she was not an employee of Chopra's company but rather of a hospital that was sponsoring Chopra's work.

During pretrial discovery in the Auxter case, McConnell repeatedly imposed monetary sanctions on Chopra's attorneys, led by Philip Stillman and Carla DiMare of Boston-based Flynn, Sheridan, Tabb & Stillman. The bulk of the problems entailed not producing witnesses' names or home phone numbers.

"I can tell you there was no willfulness on my part," DiMare told the appellate panel last Wednesday, attributing the problems to inadvertence, the judge's desire to "punish" an out-of-town firm, and, in one instance, alternative interpretations of the punctuation in the judge's order.

Ultimately McConnell imposed a liability sanction on Chopra's company, finding that Auxter had been so prejudiced in discovery that the only issue left to try to the jury would be what damages she deserved.

A month later, March 1998, McConnell stated the case was the most "insulting" she had ever dealt with and that none of the papers had been filed with respect for the court. After a break, the judge recused herself.

A jury ultimately refused to award damages, but Judge Thomas LaVoy entered judgment notwithstanding the verdict and awarded $11,000 in damages and nearly $100,000 in fees and costs.

McConnell is not the only San Diego judge to bow out of Chopra cases spun out from the Auxter and Weaver litigation, including a lawsuit by Chopra that alleged that a Gray Cary-hired investigator went through Chopra's attorneys' trash.

Judges Thomas Murphy, Robert O'Neill and John Einhorn have also recused themselves -- Einhorn telling a Chopra attorney in court, "In my more than 30 years as a trial lawyer and as a Superior Court judge, I have never witnessed such misleading, manipulative, distorted, deceptive, vitriolic action by any lawyer or law firm."

McConnell's comments show "uncontroverted, long-term bias," DiMare told the appellate justices last Wednesday, asking them to overturn the liability sanction. Justice Daniel Kremer, who conducted most of the questioning, seemed more inclined to accept the interpretation of Gray Cary attorney Kathryn Karcher that the trial judge had been baited until she become too frustrated to continue.

Kremer repeatedly challenged DiMare to come up with examples of prejudice that were not merely rulings that had gone against her client. He also chided her for straying from the topic of his questions, noting that he had nearly doubled her allotted time to speak. And, in an echo of the discovery battles before McConnell, the presiding justice warned "you don't need to personalize" by berating Gray Cary.

Quiet during most of the session was Justice Don Work, whose only question was to ask DiMare where she had heard that the San Diego Superior Court was sending all Chopra cases to McConnell because the judge was allegedly "controlled" by Gray Cary. DiMare answered that had come from a private investigator working for Chopra.

Almost lost in the superheated exchanges was the more legally significant issue.

The Auxter jury, instructed that liability had been found, still refused to award anything in damages. Lavoy, the judge who had inherited the case from McConnell, intervened. He made the $11,000 award -- one month's salary, doubled under Labor Code provisions -- and added on the fees and costs.

The third member of the appellate panel, Gilbert Nares, briefly asked Karcher to defend the standard of review on the LaVoy award. "What if the jury simply disbelieved your client?" he said. Karcher, who is scheduled to become the head of the San Diego Bar Association's appellate section next year, replied that if the sanction was proper, then some award must follow.

Chopra was not in the courtroom. According to the Los Angeles Times, he has complained to Gov. Gray Davis in a letter that he feels "impotent and paralyzed because of the cronyism and corruption in the San Diego judicial system." The governor replied that when it came to appointments to the appellate bench, Chopra's views would be duly considered.