Metropolitan News-Enterprise


Monday, December 28, 2009


Page 1


Appellate Court Upholds Sanctions Over Frivolous Appeal


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal has upheld sanctions against a Los Angeles County man whose former attorney sued after she allegedly endured a campaign of retribution for rejecting his amorous advances.

Ruling that Reza Naghipour’s appeal of an award in favor of Los Angeles attorney Gina M. Hattenbach on breach of contract and intentional infliction of emotional distress claims was frivolous, Div. Seven in an unpublished opinion Wednesday upheld a $4,000 sanctions award.

Writing for the court, Justice Laurie D. Zelon said “[a]ny reasonable attorney would agree that it is totally and completely meritless to complain that the trial court did not admit evidence that was never offered and did not give civil jury instructions that were never requested.”

Naghipour retained Hattenbach to represent him in a personal injury matter arising from an injury Naghipour had suffered and in a matter in which he was suing for contracting work he had performed on a home.

However, Hattenbach said she decided that she could no longer represent Naghipour after discovering that he had—in her opinion—lied about the underlying injury, and after he engaged in a series of inappropriate acts and communications based on his belief that he and Hattenbach were having a romantic rather than a professional relationship.

After a court granted permission for Hattenbach to withdraw from the representation, Naghipour sued her for malpractice but dismissed his complaint with prejudice without recovering any payment.

Hattenbach then filed a cross-complaint seeking $15,000 for services performed in the personal injury matter and damages for emotional distress.

After a trial before Los Angeles Superior Court Judge Victor E. Chavez, a jury found for Hattenbach on both claims and awarded her $21,000.

Appearing in pro per, Naghipour appealed, arguing that the trial court failed to instruct the jury regarding the validity of the retainer agreement with respect to Naghipour’s suit for his work as a contractor. He also contended that Chavez failed to admit evidence of voicemails that Hattenbach left for him.

At trial, Naghipour offered a summary of the messages, but Hattenbach’s counsel objected and Chavez sustained the objection on hearsay grounds.

Zelon, however, flatly rejected both arguments, noting that Naghipour never requested such a jury instruction and never offered the voicemails themselves into evidence.

Pointing to the California Supreme Court’s 1982 ruling in In re Marriage of Flaherty 31 Cal.3d 637, she explained that “an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.”

Applying Flaherty, and quoting the Court of Appeal’s 1950 ruling in Estate of Walters 99 Cal.App.2d 552, Zelon wrote:

“While we remain mindful of the difficulty that often arises in drawing a line between the merely meritless and the actually frivolous…, here we can easily say that ‘any reasonable person would agree that the point[s are] totally and completely devoid of merit, and, therefore, frivolous.’”

Presiding Justice Dennis M. Perluss and Justice Frank Y. Jackson joined Zelon in her opinion.

The case is Hattenbach v. Naghipour, B211783.


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