Monday, July 16, 2001
C.A. Sanctions Lawyers in Torrance School Bond Election Case
By KENNETH OFGANG, Staff Writer/Appellate Courts
Lawyers for a conservative activist who lost a suit in which he charged Torrance school officials with using illegal campaign tactics in support of a failed bond issue have been sanctioned for a frivolous appeal.
Manuel S. Klausner and Patrick J. Manshardt, both active in conservative circles themselves, were ordered to pay nearly $38,000 in attorney fees and other sanctions by Div. One of this district’s Court of Appeal.
Manshardt said Friday he and Klausner hope to settle the matter with the Torrance Unified School District rather than seek Supreme Court review of the decision, which came in an unpublished June 27 opinion by Presiding Justice Vaino Spencer.
Sanctions exceeding $1,000 must be reported to the State Bar as a matter of law, but Manshardt said he saw little reason “the State Bar would be interested in this.”
The sanctions arise from the attorneys’ representation of G. Rick Marshall, who led the organized opposition to the district’s Measure A. The 1997 ballot measure would have provided bond funds for construction and repair of schools, but failed to achieve the two-thirds majority then required for approval of such proposals.
Marshall has run twice for the Torrance school board, losing both times. He also chaired the state steering committee for Republican Alan Keyes’ presidential campaign in 1996 and was a spokesman for Proposition 38, the failed school voucher initiative.
Marshall filed suit prior to the June 1997 vote on Measure A, charging the school board and Torrance’s mayor, Dee Hardison, with using public resources to campaign for the proposal. He charged, among other things, that signs listing needed school repairs, as well as brochures and documents related to those repairs, were campaign materials rather than informational devices.
Marshall sought a temporary restraining order seeking removal of the signs and a ban on the use of the other materials. The defendants, represented by LeBoeuf, Lamb, Greene & MacRae, opposed the request.
The trial judge held a hearing in chambers and denied the relief sought. A dispute later arose as to what exactly transpired at the hearing, which was not transcribed.
The minute order says simply that the “[a]pplication is denied.” But a notice of ruling prepared by the plaintiff’s attorneys says that relief was denied “except” that the court “ordered Defendant Board of Education for the Torrance Unified School District to remove all signs and banners listing needed school repairs from school facilities” and “further ordered that to the extent the School Board failed to remove all such signs...plaintiff should be allowed to post his own signs on such school facilities stating ‘There Is a Better Way.’”
The court later ruled that, as to Hardison and the school board members, the suit was a strategic lawsuit against public participation. The judge struck the claims against them, and the decision was affirmed by the Court of Appeal in an unpublished 1998 opinion.
The attorneys for the officials then requested costs and attorney fees for the appeal. Klausner and Manshardt opposed the request and sought to depose opposing counsel and require production of their billing records and other documents.
Los Angeles Superior Court Judge Robert Hight granted a protective order barring the discovery, imposed $2,500 in sanctions against Klausner and Manshardt, and awarded more than $50,000 in fees to the defense attorneys. While the plaintiff’s appeal was pending, the appellate panel notified Klausner and Manshardt that it was considering sanctioning them and their client for taking a frivolous appeal.
In their response to the OSC, the lawyers argued that they had proceeded in good faith. The judge, they said, should have denied or reduced the fees because the defendants’ lawyers misrepresented the record of the original proceeding by claiming that Marshall had won no relief.
They noted that the district took down the signs after the TRO hearing, and that their account of what transpired at the hearing was consistent with reports in the Los Angeles Times and the Daily Breeze, contrary to the recitation in the minute order.
But Spencer said the contention was frivolous. The presiding justice said the newspaper accounts were inadmissible hearsay, and declared that “any reasonable attorney” would know that in a civil case, the minute order takes precedence over any contrary oral pronouncement by the judge.
In the June 27 decision, the appellate panel affirmed, saying Hight didn’t abuse his discretion, either in barring discovery or in setting the amount of the fees. While some of the services for which fees were requested may have been unnecessary, Spencer said, the trial judge took that possibility into consideration by knocking $2,000 off the fee request.
Nor did Hight abuse his discretion in sanctioning Manshardt and Klausner for seeking discovery, the appellate jurist said. The lawyers engaged in a “gross misuse of the discovery process,” Spencer wrote, by seeking to discover matters within the scope of attorney-client privilege and attorney work product.
The appeal was frivolous, the presiding justice went on to say, because “it would be indisputably clear to any reasonable attorney that this appeal has no arguable merit.”
Manshardt called the ruling “unfortunate,” but told the MetNews he didn’t “want to say anything too inflammatory” while trying to settle.
The defendants were represented on appeal by Richard R. Terzian, Stephen P. Pfahler, and Mark P. Estrella of LeBouef, Lamb.
The case is Marshall v. Board of Education of the Torrance Unified School District, B134855l..
Copyright 2001, Metropolitan News Company