Wednesday, September 8, 2004
Fees Denied to Attorney Who Anonymously Represented Herself
By KENNETH OFGANG, Staff Writer/Appellate Courts
An attorney who brought a civil rights suit on behalf of a fictitiously named client whose name appeared in the state’s central child abuse registry, and who turned out to be the very client she sued for, has been denied attorney fees by this district’s Court of Appeal.
Div. One, in an unpublished opinion by Justice Reuben Ortega, last week affirmed a Los Angeles Superior Court judge’s order denying fees to Beverly Hills lawyer Esther G. Boynton.
Boynton brought suit in 1993 on behalf of “Jane Coe,” alleging that Coe and her daughter, then a minor, were both wrongfully listed in the Child Abuse Central Index. Named as defendants in the action were the City of Los Angeles; the state Department of Justice, which administers the CACI; the state attorney general; and the California Department of Social Services.
Boynton, who has lobbied against the index, later acknowledged to a reporter that she and Coe were the same person. Boynton said she was placed on the registry without her knowledge after her daughter was accidentally burned by hot coffee and sought treatment at a Los Angeles hospital in 1990.
Boynton and her then 16-year-old daughter separately told investigators that the incident was an accident. But because the coffee splashed when Boynton threw up her arms during a verbal argument, and because she then blamed herself for the injury, investigators were called in, the Sacramento Bee reported.
Boynton thought the matter was closed, she said, until she discovered her name on the registry three years later when she wanted to volunteer for a reading program.
“I did not mean to become a crusader,” Boynton told the newspaper. “But it was so illegal on its face. And it was so wrong at the same time.”
Under current law, agencies that investigate reports and suspicions of child abuse are required to forward summaries to the DOJ for inclusion in the index.
An entry for each investigation is made, identifying the suspects and victims, the agency involved, the case name or number, the allegations, and the agency’s conclusion, if any, as to whether the allegations were substantiated.
Legislative changes in recent years require that persons whose names appear in the index be notified and given the opportunity to inspect reports, subject to redaction of identifying information for witnesses and victims; that entries be removed after 10 years if the agency found the allegations to be unsubstantiated or failed to reach a conclusion and there have been no further reports of abuse by the same person; and that victims be permitted to remove their names from the index after reaching the age of majority.
Boynton lost her suit, and was unsuccessful on appeal. But she moved for attorney fees under the private attorney general statute and federal civil rights law, arguing that her suit served as a catalyst for legislative changes as well as changes in how the defendant agencies handled child abuse reports.
The defendants denied that the suit was a significant factor in bringing about legislative and administrative changes. They also questioned whether Boynton—who was assisted by attorneys Burton M. Senkfor of Beverly Hills and Kenneth W. Kossoff of Westlake Village—could be awarded fees for representing herself and argued that Boynton was not a private attorney general because she brought the suit primarily to benefit herself, not the public.
Los Angeles Superior Court Judge Robert Hess ordered Boynton to brief those arguments specifically, and granted multiple extensions of the deadline for doing so before denying the motion as a sanction for failing to complete the briefing.
Boynton argued on appeal that she was unable to complete the briefing because she was ill, and that the judge should have allowed her to submit on her original briefing and decided the fee motions on their merits.
But Ortega, in his opinion for the Court of Appeal, said the trial judge did not abuse his discretion. Boynton, he said, was working on other matters during the time period in which she claimed illness and failed to document what her medical condition was and how it prevented her from finishing the brief.
Nor did the judge err, Ortega said, in requiring the supplemental briefing.
“Plaintiff’s position, as we understand it, is that despite having obtained a...briefing schedule of her choice, she was entitled to revert to the original status quo because she was unable to comply with the filing deadline,” the justice wrote. “One who violates a court order is not entitled to dictate the consequences. A reversal in this situation would allow plaintiff to manipulate the trial court at her convenience for having failed to comply with a valid order.”
Defense attorneys on appeal were Assistant City Attorney Katherine J. Hamilton for the City of Los Angeles, Deputy Attorneys General Kenneth R. Williams and Hiren Patel for the attorney general and the Department of Justice, and Lawrence Bolton, Alice Jackson Wright and Peter P. Castillo for the Department of Social Services.
The case is Coe v. City of Los Angeles, B159513.
Copyright 2004, Metropolitan News Company