Metropolitan News-Enterprise


Wednesday, November 30, 2011


Page 1


C.A. Sanctions Orange Attorney Who Submitted Brief Copied Verbatim From Another Case


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal yesterday sanctioned an Orange attorney $10,000 for having sought an extension of time to file a brief under false pretenses, and then filing an almost verbatim copy of a brief from another case.

Div. Three also threw out the default judgment that had been entered in favor of Timothy J. Donahue’s client, explaining the $30 million award of damages was unsupported by the evidence and the factual allegations in the complaint had failed to state any proper cause of action.

Donahue, who was admitted to practice in 1983 and has no public record of discipline according to State Bar records, did not respond to MetNews requests for comment yesterday.

He served as trial and appellate counsel to Gil Kim, who in 2009 sued Westmoore Partners Inc., Honolulu Harry’s Inc., Westmoore Capital Inc., Temecula Harry’s Pacific Grill, and two individuals for allegedly failing to repay money he had lent to them.

Kim attached to his complaint, and incorporated by reference, seven promissory notes which reflect defendants’ alleged indebtedness to him. He claimed that within the last year, defendants have each “acknowledged responsibility to pay on the seven notes, and have promised to pay [him],”  but “have never followed through on [the] promises and the money remains outstanding.”

Based on this failure to pay, Kim asserted causes of action for breach of contract, negligent misrepresentation, professional negligence, conversion, and unfair business practices.

When Defendants did not timely respond to the  complaint, Kim requested and obtained entry of their defaults in August 2009.

Three months later, three of the defendants unsuccessfully moved to set aside the defaults entered against them. Kim thereafter filed two separate requests for entry of a default judgment, each of which was rejected by the clerk due to inconsistent or incomplete paperwork. 

On his third attempt, Kim was successful in securing a judgment after the case was assigned to a new judge, who signed the order assessing $5 million in damages against each of the six defendants severally.

Writing for the appellate court, Justice William W. Bedsworth rejected the defendants’ argument that their set-aside motion had been promptly filed and said it was insufficient to support relief as it “amounts to nothing more than a conclusory assertion” that the individual defendant’s “anxiety, depression, and financial hardships” caused the delay.

Bedsworth, however, reasoned the default had to be reversed as “a review of Kim’s complaint reveals it does not set forth any valid cause of action.” In addition, he said, it “also fails to set forth any clear demand for damages, let alone one which would support the enormous judgment he obtained from the trial court.”

He emphasized that a trial court is required to analyze a complaint to ascertain what relief against a defaulting party would be appropriate, and cannot simply accept the demands of the plaintiff.

“The court’s role in the process of entering a default judgment is a serious, substantive, and often complicated one, and it must be treated as such,” Bedsworth said, opining:

“We need to shore this up.”

The justice then went on to criticize Donahue’s conduct during the appeal, noting the attorney had been granted an extension of time to file his respondent’s brief after averring under oath that it was needed due to the “complex issues raised” by the case and his desire to conduct more research, but then proceeded to submit a brief which contained “word-for-word identical” allegations to a brief he had filed in September 2009, which referred to an “accident” involving a plaintiff named Pablo Castillo and contended the appeal was “frivolous.”

Bedsworth suggested that such a “boilerplate brief” demonstrated that the justifications offered for Donahue’s extension request “were not merely cursory, but prevaricative” since “frivolous” claims are not “complex” and “do not require significant research to rebut.”

He also expressed displeasure with Donahue’s response to the notice the court was considering sanctions on its own motion, which the justice characterized as “both truculent and dismissive, going so far as to assert that we must have issued the notice in error.”

 Bedsworth further related that the court did not “appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order.”

The justice concluded that Donahue’s conduct warranted the imposition of sanctions, since “for serious and significant departures from the standard of practice, [and] for departures such as dishonesty and bullying, such steps are necessary.”

Although he was “loath to act in any way that would seem to encourage courts to impose sanctions for mistakes or missteps,” Bedsworth said “we will step onto the slippery slope and trust our colleagues on the trial court bench to tread carefully along with us” since “[i]is time to make it clear that there is a price to pay for cynical practices.”

He acknowledged that this may be “quixotic,” but warned  “Rocinante is saddled up and we are prepared to tilt at this windmill for as long as it takes.”

Justices Eileen C. Moore and Richard D. Fybel joined Bedsworth in his decision.

Aaron K. McClellan, who represented the defendants on appeal along with James F. Monagle and Tanis J. Leuthold of Murphy, Pearson, Bradley & Feeney, yesterday declined to comment on Bedsworth’s opnion.

The case is Kim v. Westmoore Partners, Inc. G044216.


Copyright 2011, Metropolitan News Company