Metropolitan News-Enterprise


Monday, October 25, 2010


Page 1


C.A. Tosses Contempt Award Against Beverly Hills Attorney


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal on Friday granted Beverly Hills attorney Frances Diaz relief from a contempt order for refusing to answer questions at a judgment debtor examination.

Div. One agreed with Diaz that the underlying judgment against her was void because California’s law barring strategic lawsuits against public participation does not authorize an attorney fee award against a losing plaintiff’s counsel.

Diaz sought relief in the face of over $170,000 in fines under a judgment holding her jointly and severally liable with her former client, Dr. Sheila G. Moore, after Moore’s complaint against Encino attorney Barry Kaufman was stricken under the anti-SLAPP statute.

Moore, a radiologist who held a share in a medical corporation, sued Kaufman, the corporation’s counsel, for his role in allegedly altering documents provided after she successfully petitioned Los Angeles Superior Court Judge David Yaffe for a writ to inspect the corporation’s books in 1999.

Kaufman sought attorney fees and Superior Court Judge J. Stephen Czuleger—who went on to become the court’s presiding judge—granted fees as to the anti-SLAPP motion. However, through apparent error, Czuleger’s order was entered against both Moore and Diaz in 2001.

In 2004, Kaufman sought further fees for his attempts to enforce the judgment. Diaz appeared for a judgment debtor examination the following year, but declined to answer any questions about her “private life” or “pocketbook” on the basis that the judgment against her was void for lack of jurisdiction.

The following year, Kaufman sought an order to show cause regarding contempt based on Diaz’s refusal to answer questions, and Superior Court Judge John Shepard Wiley Jr. signed the order. Diaz, representing herself, sought to strike the order, but Wiley proceeded with the contempt proceedings before considering Diaz’s motion.

Diaz maintained that the underlying judgment was void and subject to a collateral attack in a contempt proceeding, but Wiley ruled that she would be in contempt if she did not participate in a judgment-debtor examination. He then denied Diaz’s motion to strike as an invalid use of the motion, and continued the proceedings so she could seek writ review.

Wiley later entered a formal contempt order when Diaz said she would not respond to the judgment-debtor questions, and he ordered her to surrender herself to go to jail in September 2006. Diaz, however, sought an emergency stay pending an appeal, which the Court of Appeal granted.

In 2007, the Court of Appeal dismissed Diaz’s appeal as premature, and Diaz appealed from the order denying her motion to strike the following year. She later complied with the court’s order directing her to seek writ relief prior to Feb. 5 of this year, and the Court of Appeal consolidated the matters.

Diaz sought writ relief and her persistence paid off. Div. One, in an opinion by Justice Frances Rothschild, unanimously concluded that her petition had merit, reasoning that the judgment was void as to Diaz because she was not a party to the litigation and because the anti-SLAPP statute does not authorize an award of attorney fees against a party’s attorney, allowing her to challenge the judgment in a contempt proceeding.

Rejecting Kaufman’s argument that the statute should be broadly construed, Rothschild wrote that “the statute says nothing about mandatory fee awards against counsel, and no court has ever interpreted the statute as requiring such an award.”

She further opined:

“Kaufman is seeking to collect over $170,000 from Diaz on the basis of a patently void judgment, and Diaz currently faces the prospect of incarceration for resisting Kaufman’s collection efforts. Were we to deny Diaz’s writ petition on the basis of the law of the case, we would be deliberately shutting our eyes to a manifest misapplication of existing principles that results in substantial injustice.”

Presiding Justice Robert M. Mallano and Justice Victoria Gerrard Chaney joined Rothschild in her opinion.

Kaufman was represented on appeal by Andrew J. Waxler of Waxler♦Carner♦Brodsky, and Kent L. Richland of Greines, Martin, Stein & Richland, neither of whom could be reached for comment.

Diaz told the MetNews that she was “thrilled” after “nine years” of fighting, adding:

“It’s a great day where, after the decision of a nightmare case that went from bad to worse, I finally get some justice.”

The case is Moore v. Kaufman, 10 S.O.S. 6014.


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