Monday, February 12, 2007
Lawyer’s Unauthorized Signing of Moving Declaration Did Not Render Motion Frivolous—Appeals Court
By TINA BAY, Staff Writer
The fact that an attorney signed his client’s name to a declaration in support of an anti-SLAPP motion filed on the client’s behalf did not by itself render the motion frivolous, the Court of Appeal for this district ruled Friday.
In reversing Los Angeles Superior Court Jan A. Pluim’s ruling sanctioning local lawyer Jose Mariano Castillo, Div. Three concluded in an unpublished opinion that the moving papers he filed satisfied his client’s burden under the anti-SLAPP statute irrespective of the unauthorized moving declaration.
The 73-year-old Castillo, who practices in downtown Los Angeles, was retained by Robert Miranda to defend a suit brought against him by the Garvey School District in June 2005.
The district—which encompasses parts of Monterey Park, San Gabriel, Rosemead, and unincorporated Los Angeles County—sued Miranda over his efforts to have a then-kindergarten student removed from his school because his medical condition, eczema, allegedly created a problem for other students.
Acting as the director of the Los Angeles Metro Region of the Mexican-American Political Association in representing concerned parents of the boy’s classmates, Miranda had allegedly circulated false claims to the parents that the student literally dripped blood during the school day, leaving blood on everything he touched.
The district and the guardians of the boy—who is now in the second grade—sued Miranda and the child’s kindergarten teacher, Rachel Cervera, alleging various causes of action including invasion of privacy, libel and slander, and violation of the boy’s right to receive a free public education without discrimination.
After filing an answer for Miranda, Castillo filed a special motion to strike all causes of action under Code of Civil Procedure Sec. 425.16, the anti-SLAPP statute. The motion was supported by a single declaration by Miranda.
Sec. 425.16 provides that where a lawsuit impinges on First Amendment rights of free speech and petition, the defendant is entitled to have the suit stricken and to recover attorney fees, unless the plaintiff can show a probability of prevailing on the merits.
In opposing Miranda’s motion, the district conceded that Miranda’s alleged comments arose from acts in furtherance of his rights of free speech and petition, but said the plaintiffs nonetheless would prevail on the merits of their claims against him.
Pluim denied the anti-SLAPP motion.
One month later, while deposing Miranda, the district’s counsel discovered that his declaration had not been signed by him but by Castillo. Around that time, in mid-November of 2005, Castillo ceased representing Miranda in the case.
The district filed a motion for attorney fees and monetary sanctions against Castillo, claiming that he knowingly submitted a forged signature on the moving declaration for the purpose of hindering the plaintiffs’ case.
Castillo asserted—contrary to his former client’s deposition testimony—that he signed the declaration with Miranda’s oral authorization because the client was then hospitalized and unable to sign it himself.
Pluim found that Castillo signed the declaration without his client’s permission, and that the anti-SLAPP motion was therefore “frivolous and solely intended to cause unnecessary delay.” The judge then ordered Castillo to pay $10,922.50 in sanctions to the district.
On appeal, Div. Three deferred to Pluim’s finding as to Castillo’s signing of the declaration, but disagreed that the unauthorized declaration was fatal to the anti-SLAPP motion.
Presiding Justice Joan Dempsey Klein, writing for the panel, pointed out that the district conceded the case involved Miranda’s exercise of his right of free speech and petition. Thus, she explained, it was undisputed that Miranda’s moving papers on the anti-SLAPP motion met their burden.
“Given these circumstances, irrespective of the unauthorized moving declaration, the moving papers on the anti-SLAPP motion met their burden and successfully shifted the burden to the District to present evidence to show a reasonable probability it could prevail in the action,” the presiding justice wrote, concluding the motion was not frivolous.
However, she noted that the panel’s reversal of the sanction order “should not be construed as an exoneration of Castillo,” and that the issue remained whether his conduct warrants the imposition of sanctions pursuant to some other statutory provision.
Justices Walter Croskey and Patti S. Kitching concurred in the opinion.
James R. Lynch, who represented the district on appeal, told the MetNews his client would likely not appeal the panel’s decision, and would instead ask the trial judge to determine whether Castillo could be sanctioned under another authority.
Lynch remarked that the only reason his client conceded the first prong of the anti-SLAPP test—that Miranda had engaged in constitutionally protected activity—was that he had made some of his statements at a public board meeting and in letters he wrote to Cal/OSHA and the Los Angeles County Department of Health. The concession was that his statements were “protected enough” for the purpose of bringing health concerns to the attention of public officials, the attorney said, adding:
“I can see where the court is coming from in their thinking but I guess the part they didn’t really want to accept was that if Miranda, for example, had filed a motion with no supporting evidence, we would not have bothered to make that concession. We would have pointed out he had not offered adequate evidence to support his motion.”
Castillo told the MetNews he had good reason for making the motion to strike, and was “happy” that the court did not find the motion frivolous on account of his signing Miranda’s declaration.
On remand, he said, he should not be sanctioned on other grounds but, rather, given an evidentiary hearing so that he can prove to the court that he had Miranda’s authority to sign the declaration.
“...I can introduce evidence from other people, witnesses who heard, for instance, when he gave me the authority to sign the declaration,” the lawyer said.
Asked why Miranda denied giving him such authority, he explained:
“I’m bound by the attorney-client privilege....Miranda is a very difficult client that has his own reason for saying what he’s saying.”
He took the case at the insistence of a former partner who knew Miranda well, he noted.
“I didn’t want to take this case, and I did, and I’m sorry that I did.”
But, he added, he believes his ex-client has a “good, good case” and would prevail at trial.
The case is Garvey School District v. Miranda, B189820.
Copyright 2007, Metropolitan News Company