Monday, July 17, 2006
Lawyers Sanctioned for Frivolous Motion in Appellate Court
By TINA BAY, Staff Writer
The Fourth District Court of Appeal Friday issued a $46,000 sanction award against Los Angeles attorneys A. Thomas Hunt and Jonathan Biddle for bringing a frivolous motion.
Representing plaintiff Edward Jennings on appeal in his wrongful termination suit, Hunt in November 2005 had moved to disqualify opposing counsel, Morrison & Foerster partner Janie Schulman, on the ground that she possessed a copy of a highly sensitive letter that Jennings’ trial counsel had written to him in 2003.
In the letter, trial counsel Jonathan Biddle told Jennings he should settle because evidence indicated that he falsified Senao’s financial documents, which was damaging to his case.
Jennings’ complaint against his former employer EnGenius Techonlogies, Inc., and its parent corporation, Senao International Co. Ltd.—collectively “Senao”—alleged Senao wrongfully fired him after breaching its alleged promise to pay him a $250,000 bonus so he could purchase a home.
Jennings claimed that Senao CEO Paul Lin verbally agreed to pay him the “house bonus” in exchange for him helping to take the company public.
As evidence of this alleged promise, Jennings submitted forms that Lin had signed reimbursing him for $250,000 in “living expenses.” He also submitted company financials including the $250,000.00 amount.
The nearly month-long trial—which included forensic expert testimony for Senao that the “house bonus” entries were subsequently-altered entries for $250—concluded with a jury verdict in Jennings’ favor.
But Orange Superior Court Judge Ronald L Bauer granted Senao’s motion for a new trial of all issues on Jennings had prevailed as plaintiff and on Senao’s cross-complaint. Bauer largely denied Senao’s motions for JNOV, noting that the evidence was substantial but not very persuasive.
While the case was pending appeal, Senao received a copy of Biddle’s letter to Jennings in the mail. The envelope bore Jennings’ name and city of residence in the return address field.
Schulman notified Biddle she had a copy of the letter but when she refused to return it, arguing Jennings had waived any privileges associated it, Hunt suggested that Schulman was acting in bad faith and demanded the letter’s return.
When Schulman persisted in her refusal, Hunt filed a motion to disqualify her and to terminate the case in his favor, arguing that Schulman was the one who sent Senao the letter after stealing it from Hunt’s files.
In a declaration supporting Hunt’s motion, Biddle attempted to persuade the court that his criticisms had merely been “preliminary conclusions” that were later proven incorrect. Biddle also said, mischaracterizing Jennings’ actions, that Jennings testified truthfully at trial and accepted responsibility for any “mistakes” he made concerning any billing errors.
Rejecting the attorneys’ arguments, the appellate panel denied the disqualification motion. At the justices’ invitation, Senao moved for frivolous motion sanctions.
Writing for Div. Three, Justice William W. Bedsworth concluded in an unpublished opinion that Hunt’s motion was indeed “objectively frivolous.”
“[T]he motion before this court…appears to have been the legal equivalent of a “Hail Mary pass”—a desperate effort to forestall a full evidentiary hearing regarding the letter, its significance in light of Jennings’ subsequent testimony, and the manner in which it came into the possession of Senao,” he wrote.
Bedsworth opined that Hunt was prepared “to argue what he himself did not believe, if only he could be assured that no court would learn all the facts that he knew.”
“We can only imagine what he would have been willing to argue if he could have been assured in advance that the disputed letter would be buried for all time,’” the justice said.
Schulman told the MetNews that she was pleased with the court’s analysis on the sanctions issue.
“I think that the court’s analysis speaks for itself, and I hope that Mr. Jennings, Mr. Biddle and Mr. Hunt take it to heart,” she said, also saying that she was surprised when she learned Senao had received the letter.
Hunt and Biddle did not immediately return phone calls for comment.
Under Business & Professions Code Sec. 6068(o), which requires attorneys to notify the bar of all monetary sanctions exceeding $1,000, the two must now officially report their $46,000 sanction.
This may be damaging to Hunt, who two years ago won a controversial 10 year-long bid for reinstatement to the State Bar.
He had resigned from the bar in 1993 with charges pending after former clients complained that he had abandoned their cases.
Hunt, Biddle and Jennings are jointly and severally liable for the award.
The panel affirmed Bauer’s new trial order, partially reversing his grant of Senao’s JNOV motions.
The case is Jennings v. Senao International, G033590.
Copyright 2006, Metropolitan News Company