Legal System Tested by Skirmish Over a Disputed Bat Mitzvah Bill : Litigation: Entrepreneur takes judge and his attorney wife to court in bitter fight over $1,692 entertainment fee.

Beverly Hills Municipal Court Judge Elden Fox and his wife, Janet, a senior county prosecutor, spent a year planning the dinner-dance celebrating their daughter’s bat mitzvah. But so much went wrong.

The fog machine never got going. There were not enough party streamers. There were no games for the kids. And then, on top of everything else, their daughter’s grand entrance--to the tune of the classic rocker by the Doors, “Twentieth Century Fox”--was marred when the master of ceremonies cut off the sound.

“If looks could kill,” Janet Fox said of the look she shot emcee Alan Herzig, “he would have been dead.”

What ensued was not homicide but, predictably, litigation. The Van Nuys couple refused to pay Herzig the $1,692 he billed them. So Herzig sued in Van Nuys small claims court--where the case turned into a display of emotions so raw that a court commissioner remarked that it “doesn’t look good for the judiciary.”

Indeed, it is the sort of case that provides grounds for public contempt of the legal system--particularly with the added spice of the involvement of a judge and a prosecutor as defendants.

In the middle of one court hearing, Judge Fox walked out.

He also went so far as to ask for a change of venue, to file a legal brief--replete with 18 exhibits--and to bring a stenographer to court, all steps virtually unheard of in small claims court.

Then, when the commissioner, Kirkland Nyby, entered a default judgment against them, the Foxes appealed the ruling, and filed another legal brief complaining that the commissioner had chosen “to ‘flex his muscle’ and punish the defendants.” Nyby denied that charge.

After five months of court challenges and a Superior Court appeal, the case finally ground to a close last week--with the old judgment overturned and a new one entered splitting the difference in the dispute. Emotions are still hot.

“Are we expected, because my husband is a judge and I’m a lawyer, that when someone breaches a contract, we have to grin and bear it and pay the amount?” said Janet Fox, a senior deputy district attorney.

At a bat mitzvah--or, for boys, a bar mitzvah--a 13-year-old is recognized by the Jewish community as an adult. The event is solemn in synagogue but also an occasion for great joy and a gathering of family and friends, and Janet wanted to throw a memorable party for 160 guests. But she also knew what she did not want.

“I’ve been to (parties) with disc jockeys and dancers with these high-cut leotards and they play R-rated rap songs with the cursing and the killing cops,” she said.

Herzig’s Tarzana-based company, the Dancing Machine, has been in business since 1977. The Foxes agreed to pay him $3,300--half before the party and the balance on the day of the party. In exchange, he promised to provide a seven-piece band, various emcee and deejay services and party favors.

The party went off last Aug. 13 at the upscale Bel Age Hotel in West Hollywood. But the fog-making machine had to be scrubbed. There were not enough streamers and there were no games. One of the female deejays showed up wearing a black leotard and tailed tux outfit that Janet Fox thought skimpy and provocative.

“The little 13-year-old boys thought it was very sexy,” she said of the leotard. “My daughter was totally embarrassed.”

Herzig said that if Janet Fox had said something about it to him that night he would have ordered a change in clothes. As for the games, Herzig said he was prepared to begin playing them at one point when a fire-eater appeared.

“He was a magician, not a fire-eater,” who entertained during the salad course only, leaving ample time for games, Janet Fox retorted.

Herzig does not dispute that he interrupted the song “Twentieth Century Fox.” But that was good professional judgment, he said, because guests had heard the chorus several times--establishing the play on the Fox family name--and “I needed to pump the party up.”

After all was said and done, Herzig still wanted the original balance due, $1,692. The Foxes offered $800.

Herzig refused and said in a letter: “I’m ready. My people are ready. If necessary, we’ll rumble in small claims court!”

On Aug. 30, Herzig sued. The rumble was on.

At an Oct. 19 hearing before Nyby, who has been a small claims commissioner for 15 years, Fox appeared by himself and asked for a change of venue, to the Westside. Nyby denied the request.

Fox asked for a continuance, saying his wife and daughter were unavailable and he was due back in Beverly Hills, in his own courtroom. The motion was denied.

Fox moved to disqualify Nyby, saying he was prejudiced. Denied.

At that, Fox turned and walked out of the courtroom. “It’s no wonder why the public has such a problem with the judicial system,” one of Herzig’s witnesses said he heard Nyby say, according to the court file.

There is no stenographer or tape recording in small claims court, and Nyby said he recalled his comments slightly differently: “I said, ‘That doesn’t look good for the judiciary.’ Or, ‘That didn’t look good. . . . ‘ Because he walked out and that surprised me.”

Nyby stressed that he bore no animosity toward either Fox: “All I did was rule on the facts that were presented to me.”

Fox said he was angry when he walked out, but “in hindsight, I should have stayed.”

In fact, he came back into the courtroom. But when Nyby said the judge was expected to participate if he stayed, Fox--who before taking the bench in 1990 prosecuted Zsa Zsa Gabor for cop-slapping and Cathy Evelyn Smith for her role in John Belushi’s fatal drug overdose--left again.

Nyby entered a default judgment in Herzig’s favor, awarding him $1,692 plus $185 in court costs.

Two months later, the Foxes were back, asking Nyby to set aside his ruling. He refused.

The Foxes appealed to Superior Court. Last Monday, just a few minutes before the hearing was to begin before a temporary judge assigned to the case, Encino attorney Raoul Roth, Fox served Herzig with a 12-page brief.

At the hearing, Roth ruled that Nyby should have given the Foxes a continuance and a change of venue.

Both asked, however, to go to trial right then and there. The next day, Roth issued a ruling: Herzig was due $725 and $100 in court costs, or about what the Foxes had offered him last August.

“I thought, well, this is what they should pay for what they got,” Roth said, since the Foxes did receive some services but not all they had contracted for.

“Technically, I won,” Herzig said. “But I got nothing more than they were going to give me originally . . . so big deal.”

“I’m not saying anybody is right or wrong,” Elden Fox said, “but in light of the fact that the motions were granted and the case litigated, I feel vindicated.”

“Actually,” said Roth, “I think they both lost.”