Tuesday, January 11, 2011
Page 6
PERSPECTIVES (Column)
9-Year Court Fray Between Attorneys Over Anti-SLAPP Fees Is Not Over
Court of Appeal Voids Judgment It Earlier Upheld Against Identical Claim of Voidness
By ROGER M. GRACE
After nine-plus years of combat in the Los Angeles Superior Court and Div. One of this district’s Court of Appeal, with a brief detour into the federal courts, litigation continues in a case in which it was quickly determined that the defendant, an attorney, was wrongfully sued; the defendant made an anti-SLAPP motion and gained a judgment for fees and costs against the plaintiff’s attorney; that judgment, through the years, climbed to $170,000; and the debtor-attorney was jailed for contempt for refusing to reveal her assets and later ordered re-jailed until she complied. The judgment, though previously upheld, evaporated, and the erstwhile debtor is now the victor.
Further rounds are apparently yet to be fought. A hearing in the trial court is scheduled for this morning and the prospect looms on a new lawsuit—which I’ll get to at the end.
The California Supreme Court on Dec. 30 declared the case closed, spurning, based on its tardiness, a request to depublish an Oct. 22 opinion by Div. One’s Justice Frances Rothschild…an opinion that should not have been published, let alone filed, deviating as it does from the doctrine of “law of the case,” with the exception it invokes plainly inapplicable.
This appears to be an instance of an opinion penned by one jurist—Rothschild—arrogantly overriding previous pronouncements in opinions by another jurist, former Justice Miriam Vogel, simply because Rothschild has a differing view. This ignores the need to subordinate the ego of an authoring jurist to the cause of stability in the law both within the confines of a case and to the eyes of those outside the case viewing the caravan of opinions in it.
The case—Moore v. Kaufman, 189 Cal.App.4th 604—will doubtlessly inspire a carload of collateral challenges to decisions that would otherwise have been accepted based on their finality.
History of antecedent litigation in 1999 by radiologist Sheila G. Moore against Cedars-Sinai Imaging Medical Group need not be recited. Suffice it to say that the plaintiff’s lawyer, Beverly Hills sole practitioner Frances L. Diaz, and the defendant’s champion, Encino sole practitioner Barry B. Kaufman, did not hit it off. Diaz represented her client aggressively, with incessant motions that were sometimes bizarre.
The Oct. 22 opinion by Rothschild relates to an April 27, 2000 action which Diaz brought on Moore’s behalf against Kaufman. Moore sued Kaufman for malpractice. Yes, she was suing her opponent’s lawyer, who had never represented her, for purported malpractice. The action was voluntarily dismissed; then, Diaz sought, by an ex parte motion in 2001, to reinstate Moore’s complaint; Los Angeles Superior Court J. Stephen Czuleger (later the court’s presiding judge), told the lawyer to proceed by a noticed motion; she did, and, with no opposition appearing, the motion was granted.
There was a bit of a problem, however. Diaz had served the motion, but not on Kaufman, the defendant; rather, she served one of the other attorneys for Moore, the plaintiff. When Kaufman found out about this, he moved for reconsideration of the motion to reinstate, which Czuleger granted, finding that Diaz had sought to mislead the court.
There was a flurry of motions, and the upshot was that Moore’s action was torpedoed on Sept. 7, 2001, when Czuleger granted Kaufman’s anti-SLAPP motion.
A judgment awarding attorney fees and costs was entered not only against the client, but also against Diaz—something not expressly authorized by the anti-SLAPP statute, Code of Civil Procedure §425.16. That statute provides for the striking of “strategic lawsuits against public participation,” and a defendant who wins an anti-SLAPP motion is generally entitled to an award of attorney fees and costs against the plaintiff.
The notice of Kaufman’s 2001 motion specified that costs and fees were sought against Diaz’s client and against Diaz. In the conclusion of the memorandum of points and authorities in support of Kaufman’s motion, it was recited that Moore and Diaz were the targets. But there was no argument in the memorandum, itself, nor was any uttered at the hearing on the anti-SLAPP motion, as to the existence of any authority for holding Diaz liable for costs or fees.
When Czuleger scribbled his name on the judgment prepared by Kaufman, which was against both the client and Diaz, he might well have failed to catch the reference to Diaz. Or maybe not. Czuleger, himself, apparently doesn’t remember. At a proceeding on June 13, 2002—at which Diaz brought an ex parte motion for a correction of the “clerical error” of her name appearing in the judgment—the judge candidly acknowledged that he did not have “a whole lot of recollection” of what had occurred. Declining to deal with the matter on an ex parte basis, Czuleger required that Diaz file a noticed motion, if she wanted her contention to be heard.
Diaz filed such a motion on Dec. 9, 2002; Czuleger heard it on Jan. 8, 2003, and denied it, partly because Diaz was, in reality, seeking reconsideration of the Sept. 7, 2001 judgment, well beyond the time limit—which, under Code of Civil Procedure §1008(a), is 10 days after service of the order. He found that there was no clerical error. Also, he questioned his power to grant relief, even if he were inclined to do so; the judgment for fees and costs was then under appeal. Inexplicably, Diaz was appealing the judgment on Moore’s behalf, but not her own, notwithstanding being named in it. (The judgment was affirmed.)
Div. One, in an opinion by Vogel, on Feb. 3, 2005, affirmed Czuleger’s denial of Diaz’s motion for a correction of the judgment. The opinion says, in dictum:
“[W]e believe the order making Diaz jointly and severally liable for Kaufman’s fees and costs is correct on the merits. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1414 [the anti-SLAPP statute should be broadly construed to give effect to the Legislature’s intent to provide a swift and effective remedy to SLAPP suit defendants].)”
The bracketed material is in the original.
A Jan. 31, 2006, opinion by Vogel affirms Czuleger’s grant of an additional $131,635.14 to Kaufman, against Diaz, in connection with his frustrated efforts to collect on his judgment. Rothschild joined in that opinion. It contains this holding:
“We summarily reject Diaz’s contention that the September 7, 2001 judgment is void because section 425.16 does not authorize an order that makes an attorney jointly liable with her client for fees and costs. Assuming her claim had merit, the issue was waived by Diaz’s failure to join Moore in her appeal from the judgment (Diaz VII) and by Diaz’s failure to raise the issue on her own, albeit tardy, appeal from that judgment (Diaz VIII), which is now final and not subject to collateral attack. Even if wrong, the September 7 judgment against Diaz is not void.”
Rothschild now proclaims that the judgment is void.
Vogel’s 2006 opinion, you’ll note, denominates the case “Diaz VIII.” The jurist was engaging in dramatics. The seven preceding cases were ones in which Diaz represented a party, but in which she was not herself a party.
One of those cases was dealt with here on May 31, 2001, in a column headed, “To the Commission on Judicial Performance: Take a Look at This One.” Then-Los Angeles Superior Court Judge David Yaffe (since retired—thank goodness!) found the medical group in contempt in Moore’s action against it. Div. One, in an opinion by Vogel, invalidated the order because of the absence of a jurisdictional prerequisite: an order to show cause. Not dealt with in that opinion, but reflected by the record, is that Yaffe seems to have attempted to cover up his gaffes by altering the judgment to reflect events that had not occurred.
Anyway, Vogel, for effect, labels the Sept. 28, 2000, decision—which had nothing to do with Diaz, personally—as a “Diaz” case, and so denominates other cases in which she acted as counsel.
What brought Diaz to the Court of Appeal on this latest occasion was a contempt adjudication against her by Los Angeles Superior Court Judge John Shepard Wiley Jr.
The judge ordered her indeterminate jailing based on a refusal to answer questions at a debtor’s examination. Kaufman was seeking satisfaction of the award of fees and costs pursuant to the 2001 judgment—with the amount set by Czuleger on Jan. 8, 2002, at $39,596.25 in attorney fees and costs of $1,627.50, boosted by his June 4, 2004 award of $131,635.14 based on Kaufman’s continually frustrated efforts to collect on the judgment.
This was not the first time that Diaz was found in contempt in the case. Czuleger on Oct. 10, 2003, found her in indirect contempt for defying an order to answer questions in a judgment debtor’s examination and imposed on her a three-day jail term. The judge’s purpose was frustrated when, under the long-standing federal anti-crowding order, she was released after less than four hours of incarceration.
Premature release is not, however, a prospect where open-ended confinement is ordered under the civil contempt statute, utilized by Wiley. The judge acted in the only way possible to enforce a judgment previously declared valid not only by the Court of Appeal—a decision binding on him—but by the U.S. District Court Judge Ronald Lew, in response to Diaz’s habeas corpus petition when she was jailed in 2003, and by the Ninth U.S. Circuit Court of Appeals in an unpublished decision that affirmed Lew.
Sparing Diaz the fate that has justifiably befallen other judgment debtors who have refused to disclose assets—which recently included attorney Richard I. Fine and, in years past, my late Uncle Jerry (who cheated actress Doris Day out of several millions of dollars)—Div. One issued a stay order.
In its Oct. 22, 2010 opinion by Rothschild, it granted the writ petition sought by Diaz, holding that the 2001 judgment against her was void because the anti-SLAPP statute “does not authorize an award of attorney fees against a party’s attorney.” The opinion adds that “[b]ecause the judgment is void as to Diaz, she may challenge it in defense of the contempt proceeding.”
Beyond rescuing Diaz from incarceration, the opinion effectively blocks Kaufman from collecting on a judgment which that very panel had previously declared to be valid.
A request to the state high court for depublication of Rothschild’s opinion was made in a Dec. 21 letter from Kaufman’s attorney, Andrew J. Waxler, of the El Segundo law firm of Waxlerk●Carnerk●Brodsky. Noting that Vogel retired from the appeals court in 2008, the letter argues:
“The ultimate effect of the published decision is to undermine the ‘law of the case’ doctrine and provide authority for parties to relitigate the same issue over and over in hopes that the composition of the Court of Appeal panel will change and the Court will determine that its prior decision was wrong.”
Unfortunately, the letter was not delivered on the day it was written. Rule 8.1125 requires that a request for depublication “be delivered to the Supreme Court within 30 days after the decision is final in the Court of Appeal,” which would have been Dec. 21. The letter was received Dec. 23, and relief from default was denied Dec. 30.
The holdings in the 2005 opinion were not snubbed by Rothschild last October. Rothschild does not say nor intimate that Vogel’s opinion was in error in affirming Czuleger. However, her opinion does contradict utterances by Vogel—not only the dictum, quoted above (that the judgment against Diaz was statutorially justified), but other statements.
Vogel’s 2005 opinion says:
“Diaz—who filed a notice of appeal on Moore’s behalf—did not file a notice of appeal from the September 7, 2001, judgment for herself, notwithstanding that she knew that judgment made her jointly and severally liable for the award of fees and costs. Since the time to…appeal from the judgment had expired long before Diaz filed her motion to correct a ‘clerical error,’…Diaz’s motion to correct a ‘clerical error’ must be viewed as what it is—a transparent effort to do indirectly that which she forfeited the right to do directly. For this reason…, her motion was properly denied.”
Rothschild’s 2010 opinion counters in a footnote:
“An individual who is aggrieved only by a judgment’s award of attorney fees in an unspecified amount may wait for the court to issue an order determining the amount of the award, and then appeal from that order….On that appeal, the individual can challenge not only the amount of the award but also the opposing party’s entitlement to any award at all.”
Rothschild notes that in the 2005 unpublished opinion, “we criticized Diaz for failing to appeal from the judgment,” and declares:
“That criticism does not constitute the law of the case because the point was unnecessary to our decision.”
Even if Rothschild is right—and Vogel was wrong in intimating that Diaz waived her rights by not joining in Moore’s appeal when she could, instead, have appealed on her own behalf later, after the amount of fees and costs payable to Kaufman was set by Czuleger—it hardly matters. Diaz did not, after the setting of the amount, file an appeal. Rothschild muddies the waters by referring to amendments of the amounts by interlineation after Czuleger initially set them (on Jan. 8, 2002), and uncertainties as to when the time to appeal began to run. The fact is that at no time, in a timely or untimely manner, did Diaz appeal from the judgment against her.
This points to the patent lack of any unfairness to Diaz. Without a need to avoid an “unjust decision” (or an intervening change in law), law of the case may not be slighted.
Rothschild brings up a new point by suggesting that Czuleger might have been bamboozled by Kaufman in connection with Diaz’s motion to correct the supposed “clerical error.” She writes:
“The record contains no reporter’s transcript of the hearing, so we have no way of knowing what parts of the record the trial court reviewed, or what information or argument the court relied on in reaching its decision. It is worth noting, however, that in opposition to the motion, Kaufman provided the court with his notice of motion and motion under the anti-SLAPP statute and with the conclusion of his memorandum of points and authorities, but he omitted the remainder of his memorandum of points and authorities. Kaufman’s selective presentation of the record thus could well have led the court to believe that Kaufman had argued in support of the propriety of an attorney fees award against Diaz under the anti-SLAPP statute, when in fact he had done no such thing.”
This is as much an attempt to prejudice readers of the opinion against Kaufman, thus distracting from any infirmity in Rothschild’s legal propositions, as Vogel’s earlier quest to engender in readers a dislike of Diaz.
In fact, it is not uncommon for lawyers to attach to motions only those pages of papers in the court file which relate to and support the point they are presently making—and even to draw diagonal lines through portions of the pages which are irrelevant. It is a salutary practice, honing in on that which is germane.
If what Kaufman presented distorted the picture, or provided an inadequate glimpse of it, it was up to Diaz to point that out in her reply to Kaufman’s opposition. If, in fact, she did that, any incorrect perception that might otherwise have occurred was averted; if she did not, she can hardly be pitied based on any supposed erroneous notion on the part of Czuleger which she could have prevented.
In any event, even if Kaufman had openly admitted in his opposition that “no citation to authority or argumentation of any sort was provided in support of the request for fees and costs against Diaz,” it would hardly have mattered in light of Czuleger’s conviction that he was powerless to grant relief on the motion to correct a clerical error.
The salient facts are that Diaz, an attorney, failed to point in her opposition to the 2001 anti-SLAPP motion that no authority existed for a judgment against her, and did not appeal from the judgment. Rothschild appears to be seeking to deflect attention from that with a red herring.
Rothschild’s 2010 opinion clashes with Vogel’s 2005 opinion in yet another respect.
In the judgment Czuleger signed on Sept. 7, 2001 against Moore and Diaz, there was blank to be filled in later as to the amount of attorney fees and costs that they were to pay. When Kaufman made a written motion calling upon Czuleger to fill in those blanks, he made reference to the judgment as being one against Moore.
In a footnote, Vogel remarks:
“Because the motion to dismiss expressly sought fees from Diaz as well as Moore, and because that motion was granted in its entirety, it is immaterial that Kaufman’s later motion to fix the amount of fees referred to Moore but not Diaz. When Diaz filed her opposition to Kaufman’s motion to dismiss, she had the opportunity to raise as many arguments as she had about her personal exposure for fees and costs. That she chose not to do so was her decision, not Kaufman’s, and she will not now be heard to complain that he somehow deprived her of her due process rights or otherwise obtained the benefit of an erroneous ruling. She crafted her theory of the case and she is stuck with it.”
By contrast, Rothschild views as significant that Kaufman’s motion referred only to Moore, saying that “to anyone familiar with the terms of the judgment,” that is, being one against Moore and Diaz, jointly and severally, “Kaufman’s motion appeared to seek an amendment of the judgment that would hold Moore alone liable for the attorney fees that Kaufman sought.”
Just what her point is remains unclear. She seems to be hinting that Kaufman impliedly moved to amend the judgment, so we should all pretend that it was amended.
A holding in the 2006 opinion was nullified.
The 2006 opinion (in which Rothschild concurred) expressly rejects Diaz’s contention that the judgment was void.
Rothschild’s 2010 opinion declares that Diaz was a “stranger” to Moore’s action against Kaufman, hence a judgment against her is void. Cases are cited in support of the proposition. However, none of those cases involves a situation where the alleged invalidity of a judgment was raised before and rejected.
It’s true that cases say that a void judgment is subject to attack at any time, even after an appeal. But nowhere to be found is authority for a collateral attack on a final judgment as being void where it has already been judicially determined that it is not void.
The case closest in point appears to be City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, decided by this district’s Div. Six. There, the court declined to consider the appellants’ contention that judgments against them, and in favor of a city, for attorney fees were void. The appellants had asserted the invalidity of the judgments in an appeal a year before; the city moved to dismiss the appeal as untimely; the appellants countered that a collateral attack on a void judgment may be raised “at any time”; the appeal was dismissed.
The 2003 opinion says that the dismissal of the appellants’ 2002 appeal “was a rejection of their claims that the judgments could be collaterally attacked” and that ‘[u]nder the law of the case doctrine, ‘a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case.’ ”
Rothschild invokes the “unjust decision” exception to the law of the case doctrine, saying:
“Under the doctrine of the law of the case, we ordinarily will not revisit an issue of law that was actually presented and determined in a prior appellate proceeding if the issue was necessary to the decision in the prior case. (See, e.g., People v. Shuey (1975) 13 Cal.3d 835, 841-842.) If ‘there has been a manifest misapplication of existing principles resulting in substantial injustice,’ however, we may ‘decline[] to adhere to’ the law of the case. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492.) Accordingly, ‘[t]he doctrine of law of the case is a discretionary policy which should not be followed if it results in a manifestly unjust decision. In looking to a just determination of the rights of the parties, an appellate court is not precluded from reconsidering questions decided on a former appeal.’ (Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 835.)
“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.”
In none of the three cases cited by Rothschild was “substantial injustice” found. In fact, in Miroshi, it was said that “since the law of the case doctrine is itself inapplicable here, we need not address the applicability of exceptions to it.” In Amato, the court dealt not with the “substantial injustice” exception but the far more common exception based on a change in the law.
In Shuey, the Supreme Court says, in an opinion by Justice Stanley Mosk, that if the doctrine of law of the case “is to be other than an empty formalism more must be shown than that a court on a subsequent appeal disagrees with a prior appellate determination.” It observes that “[o]therwise the doctrine would lose all vitality....”
The opinion declares:
“We do not propose to catalogue or to attempt to conjure up all possible circumstances under which the ‘unjust decision’ exception might validly operate, but judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding.”
Would an affirmance of Wiley’s order of commitment of Diaz for contempt constitute “substantial injustice”? No.
Note should be taken that the “unjust decision” exception is one which is almost never applied. An unpublished 2003 Court of Appeal opinion relates:
“Our research revealed numerous cases where the doctrine of law of the case was not followed because there was an intervening change in the law. People v. Scott [1976]...16 Cal.3d 242 is the only case we located where the unjust decision exception is applied. The parties have not cited any other cases applying the exception. Therefore, it is apparent that the unjust decision exception to the doctrine is rarely applied.”
It has not been applied in any subsequent published decision...until the one Rothschild filed.
She points out that Diaz was facing the prospect of being jailed. True. The potential consequence was drastic, but entirely of her own making, and was subject to a swift lifting through compliance with a lawful order.
Surely it cannot be doubted that Wiley’s order, when defied, was lawful, having been previously validated by the Court of Appeal.
Was Diaz, in fact, a “stranger” to the 2001 proceeding? It was an anti-SLAPP motion that specifically sought attorney fees and costs from her, the attorney who filed the complaint in issue. The motion was served on Diaz, but as attorney for the plaintiff. She was not a party to the lawsuit. The issue of “voidness” is touched upon by Rothschild, but not satisfactorily developed by her.
Even if she’s right on the point of law, she is wrong in her action. Her last-minute capsizing of what has already been decided reflects a lack of self-discipline.
There was a judgment against Diaz. She did not appeal that judgment. While she invoked Code of Civil Procedure §473(d) in 2002 to attack the judgment as one reflecting a “clerical error,” she did not move under that very paragraph to “set aside any void judgment or order.” She raised the issue of the judgment being “void” in state and federal proceedings after Czuleger found her in contempt in 2003. In the Ninth Circuit, she argued: “Basic due process dictates that a judgment creditor cannot enforce a judgment against someone it never even sued. [¶] All orders and judgments holding Appellant liable for the statutory cost award are void.” She raised the issue in appealing Czuleger’s 2004 order awarding Kaufman additional attorney fees, and the Court of Appeal in 2006 rejected her contention. For her to refuse to answer judgment debtor questions fully justified the order that she be jailed until she complies. Surely there is no injustice whatsoever, let alone a “substantial” injustice.
There is, however, an injustice to Kaufman created by Rothschild’s opinion. The Court of Appeal, in 2006, rejected Diaz’s contention that the judgment was void, and the California Supreme Court denied review. Kaufman thought he had $170,000 coming. The Court of Appeal now shreds the judgment based on Rothschild’s new-found disagreement with an opinion in which she had joined.
The 2010 opinion is a result-oriented one, aimed at sparing a lawyer a jailing when sympathy for her, under the circumstances, is wholly misplaced.
Kaufman explains his decision not to seek review in the state Supreme Court in an e-mail, in response to an inquiry, saying:
“One Justice retires (Vogel) and a new one (Rothschild) issues a new opinion saying that everything Division One did before under Vogel was wrong. How do you appeal that? The Supreme Court has a limited docket and is there to resolve conflicts in the law, not resolve errors made in any particular case or irreconcilable opinions from the same appellate division.”
All this comes in a case in which there has been over-litigation in the extreme and apparent legal and judicial misconduct.
An egregious instance of misconduct appears to be the failure of a Court of Appeal justice—Rothschild—to honor pronouncements in a case set down previously.
A post-judgment status conference is scheduled to be held in Wiley’s courtroom this morning. Diaz says that on the basis of the Court of Appeal’s instruction that the trial court amend the 2001 judgment “nunc pro tunc” to remove her name, she will ask, through counsel, that Wiley order Kaufman and his lawyers to make “restitution” to her. They have caused “financial disaster” to befall her over the past decade by pursuing enforcement of the judgment, she tells me. Diaz declares that Wiley should require her adversary “to make things right.”
Absent such an order—which does not seemly likely for Wiley to issue—there will “probably be a malicious prosecution action that will be filed,” she says.
The fray continues.
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