Friday, June 24, 2011
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S.C. Allows Disbarred Attorney’s Claim for Fees to Proceed
By a MetNews Staff Writer
A lawsuit by a disbarred local attorney against his former co-counsel, Girardi | Keese principal Thomas V. Girardi, can proceed, the California Supreme Court ruled yesterday.
The justices said that Joseph L. Shalant could pursue his claim for unpaid fees in propria persona, even though he had been adjudged a vexatious litigant and had not obtained approval to bring his suit against Girardi, since he had been represented by counsel at the time the action was filed.
Shalant was found to be a vexatious litigant in 2002, in an unrelated case, and subjected to a prefiling order under Code of Civil Procedure Sec. 391.7 prohibiting him from “filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is filed.”
The State Bar revoked Shalant’s law license in 2005 after finding he had charged a client an illegal fee and committed an act of moral turpitude by insisting on modifying an oral contract with a client three days before a scheduled deposition, then threatening to withdraw if the client did not acquiesce.
Prior to this, Shalant had been disciplined four times, in at least nine cases involving 13 clients, for misconduct which included failing to perform legal services competently, communicating with a represented party in a lawsuit, settling personal injury cases after the client was deceased and settling cases without obtaining required court approval, according to State Bar records.
In 2006, Shalant, through Culver City attorney L’Tanya M. Butler filed suit against Girardi and National Union Fire Insurance Company.
Personal Injury Suit
The action arose from Shalant and Girardi’s representation of Jose Castro and his wife in a personal injury suit in which National Union insured the defendant. When the personal injury case was settled, Girardi paid Shalant $745,000 of the proceeds pursuant to a fee-splitting agreement, but Shalant alleged he was owed an additional $27,745 in fees and costs.
James T. Biesty of Biesty Garretty & Wagner later substituted in as counsel for Shalant, but Butler resumed representation of Shalant for three months in 2008 before applying, over her client’s objection, for permission to withdraw.
After her request was approved, Girardi and National Union moved to dismiss Shalant’s complaint against them under Sec. 391.7.
Los Angeles Superior Court Judge Teresa Sanchez-Gordon found Shalant had “failed to rectify his violation” of the statute and entered judgment in favor of Girardi ad National Union.
Div. One of this district’s Court of Appeal last April directed the order of dismissal be reversed. In a partially published decision by Justice Frances Rothschild, the appellate court concluded Sec. 391.7 governs only the filing of a new lawsuit, and the California Supreme Court yesterday unanimously agreed.
Remedies Provided
Writing for the court, Justice Kathryn M. Werdegar explained that California law provides “courts and nonvexatious litigants with two distinct and complementary sets of remedies” depending on the procedural posture of the case involving the vexatious litigant.
“In pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security,” she said, or “a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge’s permission, may then obtain its dismissal.”
Girardi and National Union “pursued the wrong statutory remedy for the situation in which they found themselves,” Werdegar said, reasoning “[t]hey could not…properly seek dismissal under section 391.7, as it governs only the filing of new litigation, and the present action, filed as it was through counsel, did not violate the section 391.7 prefiling order against Shalant.”
Werdegar noted “[n]othing in the prefiling order prohibits Shalant from continuing to prosecute or maintain an action in propria persona as long as he did not file the action in propria persona (and nothing in the statutory language would authorize the issuance of a prefiling order containing such a prohibition).”
The justice suggested the defendants “could have proceeded under section 391.1 for an order requiring Shalant to post adequate security before continuing to prosecute his action against them, making it subject to dismissal under section 391.4 if he failed to do so,” and that such a remedy remains available to them on remand.
Shalant acted pro per on the appeal, along with Brian A. Yapko of the Law Offices of Brian A. Yapko. Shawn J. McCann of Girardi Keese and San Diego attorney Martin N. Buchanan represented Girardi. Rebecca R. Weinreich of Lewis Brisbois Bisgaard & Smith served as counsel for National Union.
The case is Shalant v. Girardi, 11 S.O.S. 3348.
Copyright 2011, Metropolitan News Company