Metropolitan News-Enterprise


Monday, June 2, 2003


Page 1


Taking Frivolous Appeal Not Necessarily Malpractice, C.A. Rules in Tiff Between Orange County Lawyers


By KENNETH OFGANG, Staff Writer/Appellate Courts


A lawyer whose client was sanctioned for filing a frivolous appeal is not estopped from defending his or her actions in a resulting malpractice suit by the client, the Fourth District Court of Appeal ruled Friday.

Div. Three overturned a judgment for nearly $40,000 in favor of Laguna Hills attorney Jeffrey S. Dawson in his suit against Santa Ana practitioner James Toledano.

The events leading to the malpractice suit began when Dawson was injured in a skiing accident. Representing himself, the attorney sued ski resort operator Snow Summit, Inc. in San Bernardino Superior Court in 1993.

Snow Summit won a summary judgment, based on the assumption-of-risk doctrine. Dawson filed a notice of appeal, and later hired Toledano—then of the firm Toledano & Wald—to represent him in the appellate court.

In 1996, after issuing an order to show cause, the appellate panel held a hearing and ordered Dawson to pay sanctions, $6,000 to the court and reasonable fees to Snow Summit’s lawyers.

The underlying summary judgment was affirmed in an unpublished opinion

Dawson sued Toledano in Orange Superior Court. He claimed that Toledano—who himself was sanctioned last year for taking a frivolous appeal after being fined $7,500 by the Federal Elections Commission for mishandling a contribution while serving as Orange Democratic chairman—misadvised him that the appeal was winnable.

Orange Superior Court Judge David Brickner, who heard the case without a jury, ruled that as a matter of res judicata, Toledano could not deny that he advised Dawson to bring a frivolous appeal. The case was then tried solely on the issue of damages.

Toledano’s cross-complaint for unpaid attorney fees was rejected by the judge.

Justice Eileen Moore, writing Friday for the Court of Appeal, noted that sanctions were imposed on Dawson not only because the legal arguments made by Toledano were frivolous, but also because it questioned the Div. Two panel felt that Dawson caused the accident by skiing recklessly “and as an attorney he should have known better than to file the complaint at all.”

There was also doubt as to Dawson’s veracity, Moore noted, with the justices questioning how, if Dawson had slowed down as he claimed, he could have skied forcefully into a wooden fence and injured himself as severely as he did on a gentle slope.

“Given the fact the court imposed sanctions in part because of the conduct of the client, not the conduct of the appellate attorney, it would be a sorry result to hold that the appellate attorney had committed malpractice as a matter of law based on the sanctions award,” the justice wrote.

Beyond that, Moore wrote, the requirements for res judicata were not met. Even if a sanctions order is a judgment for purposes of the doctrine, an issue the court did not decide, the issue of whether a party should be sanctioned for taking a frivolous appeal and the issue of whether the party’s attorney negligently advised that the appeal be taken are not identical, the justice concluded.

While the frivolousness of an appeal is purely an objective question of law, Moore explained, a malpractice action requires a factual determination as to whether the appellate lawyer breached a duty to the client and whether the breach proximately caused harm.

“Here” the justice reasoned, “there are obvious concerns as to whether, and to what extent, Toledano’s recommendation to pursue the appeal as a potentially meritorious one was the cause of the harm, that is to say, whether and to what extent it prompted the sanctions award.”

Not only was there a suggestion that Dawson’s own conduct was a contributing cause to the sanctions determination, Moore elaborated, an issue existed as to whether Dawson—who filed the appeal himself, the justice emphasized—would have proceeded regardless of Toledano’s advice.

Besides, Moore wrote, for res judicata to apply, there has to be privity between the parties. Toledano, she noted, was not a party to the Snow Summit litigation, nor did he and Dawson have “such a unity of interest that they represented the same legal right.”

The case is Dawson v. Toledano, G029927.


Copyright 2003, Metropolitan News Company