Monday, September 20, 2010
C.A. Upholds Restraining Order Against Attorney
By SHERRI M. OKAMOTO, Staff Writer
The Court of Appeal has upheld the imposition of an order enjoining Beverly Hills sole practitioner Martin B. Reiner from harassing Los Angeles attorney Susan Kaplan, who was his opposing counsel on a workers’ compensation matter last year.
Div. Three of this district’s Court of Appeal on Thursday rejected as “specious” Reiner’s claim that his conduct was constitutionally protected and chastised the attorney for engaging in behavior that “far exceeded the scope of civility.”
Kaplan, who did not return a call seeking comment, claimed that Reiner and a process server had come to the Graiwer & Kaplan office last September to serve her and her husband with subpoenas after gaining access to the private interior office area by pushing past a secretary as she exited a secured back door.
“Clearly, that laying in wait to commit the crime of trespass in a secured area shows he is capable of criminal activity and is willing to engage in criminal activity in order to intimidate me and others,” Kaplan alleged in her complaint.
She further asserted, under penalty of perjury, that a worker’s compensation judge had granted a motion for protective order filed by Kaplan’s firm because of “unprofessional behavior during discovery matters,” and that a special master had been appointed to attend discovery to ensure Reiner controlled his behavior.
At the hearing on the motion, Kaplan said Reiner was “threatening” and had “invade[d] my space by getting right up in my face.”
Kaplan described Reiner as “unstable,” and “always agitated, almost as if he is under the influence of something.” He “uses profanity and makes all kinds of wild accusations and threatens our attorneys by stating that he is going to file complaints against them for assault,” Kaplan said, adding that she was “convinced he will not stop this type of conduct unless he is prohibited from doing so.”
Reiner, however, on Friday reiterated his assertion, reflected in the opinion, that Kaplan’s version of events was “utterly fabricated.”
“Kaplan and her firm concocted false allegations against me…in an effort to try to throw a monkey wrench” in an ongoing workers’ compensation case in which his client is raising a claim of insurance fraud by Kaplan and her firm as an affirmative defense, Reiner claimed.
“There is an animus that exists and drives the present matter,” he insisted.
Reiner had also denied the factual assertions in Kaplan’s complaint at trial, where he represented himself, before Los Angeles Superior Court Judge David S. Cunningham III.
According to Reiner’s version of events, Kaplan had noticed a deposition at her offices, and an employee had held the rear door to the offices open for Reiner and the process server to enter. He stated that he had been in Kaplan’s office less than 60 seconds, and that “there was no violence, nor threat of violence, nor profanity, nor confrontation.”
After the hearing, Cunningham granted the restraining order prohibiting Reiner from being within 100 yards of Kaplan, her home, and her vehicle, but did not check off the box that would prohibit Reiner from being within 100 yards of Kaplan’s job or workplace. The order remains in effect until Oct. 8, 2012.
Writing for the appellate court, Justice Richard D. Aldrich noted that some of the alleged instances of harassment occurred in a courthouse during pending litigation, but he explained this was insufficient to protect Reiner’s conduct.
The justice opined that an attorney’s free speech rights are circumscribed during judicial proceedings by his obligation to maintain respect for the court, emphasizing that Reiner’s conduct—following Kaplan around the courthouse, yelling, using profanities, and threatening opposing counsel—was “[b]y no stretch of the imagination…courteous or even civil.”
Aldrich also brushed aside Reiner’s contention that the trial court proceedings had not been fair since he was denied the opportunity to testify.
He explained that proceedings on injunctions are summary and that “the court had other pressing business to attend to.” As the trial court “had heard testimony, had independently questioned counsel, and had all of the filings before it,” Aldrich concluded there was sufficient evidence of at least three instances of harassing behavior, causing Kaplan to seriously fear for her safety, which justified issuance of the restraining order.
On Friday Reiner insisted “I would have been able to impeach the false allegations of Susan Kaplan, and I would have prevailed,” had he been allowed to testify.
“I was told by the court that it did not have time to consider [my testimony], and the Court of Appeal, in its decision, seems to think that’s not important,” he complained. “That’s frightening.”
Reiner added that he planned to appeal the decision, which he called “a terrible miscarriage of justice… an outright injustice.”
Presiding Justice Joan D. Klein and Justice Patti S. Kitching joined Aldrich in his decision.
Kaplan was represented on the appeal by David M. Livingston of Livingston Bakhtiar, who did not return a MetNews phone call Friday.
The case is Kaplan v. Reiner, B220426.
Copyright 2010, Metropolitan News Company