Friday, April 29, 2011
Attorney With ‘Fool for Client’ Sanctioned for Frivolous Appeal
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday upheld an award of sanctions against Simi Valley family law attorney Robert N. Greenberg and sternly rebuked him for pursuing a frivolous appeal premised on facts expressly discredited by the trial court.
In his decision for Div. Six, Justice Kenneth R. Yegan suggested Greenberg, who appeared pro per, illustrated Abraham Lincoln’s observation that “[h]e who represents himself has a fool for a client,” since the attorney was plainly “unschooled on the basics of appellate law.”
The justice allowed that “emotions run high in family law litigation and that this may cloud the judgment of a party,” but cautioned “this does not excuse the filing of a ‘creative’ (i.e. misleading or incomplete or inaccurate) income and expense declaration; or perjury, as referenced by the trial court; or the filing of a frivolous appeal.”
Yegan, joined by Presiding Justice Arthur Gilbert and Justice Paul H. Coffee, also directed the court clerk to send a copy of yesterday’s decision to the State Bar to consider disciplinary charges.
Reached yesterday afternoon, Greenberg said he had not seen the opinion, but would read it and call back. He did not return the call and did not respond to subsequent messages.
The attorney faced the State Bar disciplinary system two years ago, and stipulated to a public reprimand for lying under oath about having had a sexual relationship with a client.
Greenberg obtained a recovery for the client, who became his “live-in girlfriend,” Yegan explained. Half of the proceeds from her case were awarded to Greenberg’s wife in a marital dissolution judgment in 2008, but Greenberg refused to pay this sum, contending that the account receivable for this case was “reduced to zero” or “forgiven” because no fees were awarded by the court in that matter.
Greenberg’s wife filed an order to show cause, and following a hearing, Ventura Superior Court Judge Brian J. Back ordered the attorney to pay the $9,737.59 as ordered in the 2008 judgment, remarking that Greenberg’s payment obligation “should have never been an issue in the first place.”
Back said that Greenberg “can write off or otherwise forgive the obligation as between himself and the client,” but he “cannot escape his responsibility to pay wife the sum of $9739.59 representing 1/2 the amount of the receivable.”
He further ordered Greenberg to pay $800 in attorney fees and $2,000 in sanctions, finding such sanctions would not impose an unreasonable financial burden on Greenberg, even though there was “no reliable way to determine husband’s actual net disposable income” due to the “perjury in which husband engaged.”
Yegan, in his decision for the appellate panel, remarked that Greenberg “has no appreciation for the trial court’s order, which can only be viewed as an adverse factual finding.” He emphasized that it was the trial court’s duty “to determine that a witness is to be believed or not believed,” as “[t]his is the nature of fact finding.”
The justice noted that “[t]here is nothing novel in this concept and we ourselves remarked upon it 20 years ago” in In re Marriage of Martin (l991) 229 Cal.App.3d 1196.
Lawyers Might Listen
In that case, “[w]e also warned the bar that sanctions could be ordered for appeals based upon a theory asking to substitute our judgment for that of the trier of fact,” but “[a]s we said then and we repeat now, ‘ no one seems to listen,’ ” Yeagan said. He remarked that “[w]e are ever hopeful that appellate lawyers are listening” this time.
As Greenberg had made “no showing that the trial court abused its discretion in concluding that his attempt to do an impermissible end run around the 2008 judgment required wife to incur attorney fees she can ill afford,” Yegan said, the appeal was frivolous.
From the perspective of Greenberg’s former wife, the justice posited, “it is even worse” since she was to receive one half of the fees owed by her husband’s new girlfriend and being forced to “ ‘forgive’ this money undoubtedly would add insult to injury.”
The case is In re Marriage of Greenberg, 11 S.O.S. 2127.
Copyright 2011, Metropolitan News Company