Metropolitan News-Enterprise


Thursday, October 20, 2011


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C.A. Upholds Dismissal of Legal Malpractice Case as Sanction for ‘Underhanded Litigation Tactics’


By SHERRI M. OKAMOTO, Staff Writer


The Court of Appeal for this district yesterday upheld the dismissal of a malpractice case against a local law firm and its name partner as a sanction for misconduct by the plaintiffs.

Div. Seven, in an unpublished decision, noted that Al and Cynthia Ward “persistently delayed sharing discovery with defendants, used underhanded litigation tactics, and disregarded prior court orders” during the course of prosecuting their claims against Tesser Ruttenberg & Grossman and attorney Kenneth Ruttenberg.

In light of the behavior of Ward and their attorney—Cynthia Ward’s sister Jo Ana Saint-George—the panel said Los Angeles Superior Court Judge John P. Shook did not abuse his discretion in issuing a terminating sanction.

Ruttenberg and his firm had represented the Wards and several of their neighbors in mediation sessions arising from a consolidated action concerning construction defects in their residential development in 2004. These mediation sessions ultimately resulted in a global settlement offer, which the Wards accepted.

Four years later, the Wards sued Ruttenberg and his firm, asserting the defendants had not allowed them to attend mediation sessions, misrepresented critical information, and pressured them to accept a settlement amount far below the cost of their actual damages.

This lawsuit, however “culminat[ed] in a record riddled with delays and back-and-forth litigation,” Justice Frank Y. Jackson said for the appellate court yesterday.

Jackson noted that the Wards’ attorney “suffered from serious illness throughout the duration of this case in the trial court,” and “there were numerous continuances and extensions granted due to Saint-George’s illness,” but even with these “repeated accommodations for Saint-George’s poor health, plaintiffs were uncooperative and inattentive” and failed to respond to discovery, even though “Saint-George managed to propound two identical improper discovery requests.”

Ruttenberg and his firm eventually filed two motions to compel, which Shook granted in October 2009. He also imposed monetary sanctions. When responses were not forthcoming by the following January, Ruttenberg and his firm filed a motion for terminating sanctions, which Shook granted.

On appeal, the Wards argued that Shook’s final sanction order was an abuse of discretion since he had failed to consider their lack of any history of discovery abuse by them, the absence of a showing of prejudice to defendants, the voluminous nature of the discovery, and Saint-George’s illness.

Jackson disagreed with each of these arguments.

He first noted that the Wards “cited no authority to support the contention that the trial court should have considered the fact that plaintiffs had no prior history of discovery abuse,” which forfeited this claim on appeal, and that it was also meritless since “the record supports a finding plaintiffs were guilty of repeated misconduct and violations of the discovery statutes.”

The justice then moved to the Wards’ second argument, based on prejudice, explaining that Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285 was inapplicable.

“While it is true that the Parker court reversed terminating sanctions because the moving parties did not demonstrate prejudice, these parties were non-propounding parties to the discovery in question,” which, Jackson said, is “a pivotal difference” from the situation presented in this case, where the defendants were the propounding party.

As for the amount of discovery propounded, Jackson said, “due to the complexity and scope of the underlying construction defect suit, as well as the plaintiffs’ need to prove the defect suit as a ‘trial-within-a-trial’ for the malpractice suit, it is sensible to assume that the trial court believed the number and detail of the discovery requests was reasonable.”

Jackson also concluded that the record provided no evidence that Shook had failed to consider Saint-George’s health, and that the Wards “fail[ed] to cite any authority that suggests that the trial court was required to take this into account.”

He said the record before the appellate panel “thoroughly supports the trial court’s implied finding that plaintiffs were guilty of repeated misconduct and violations of discovery statutes,” and since “monetary sanctions had already been imposed (and ignored),” Shook did not abuse his discretion in terminating the case.

Presiding Justice Dennis M. Perluss and Justice Fred Woods joined Jackson’s opinion.

Thousand Oaks attorney Gerald P. Peters served as appellate counsel for the Wards. Ruttenberg and his firm were represented by Jonathan B. Cole, Mark Schaeffer and Michael W. Feenberg of Nemecek & Cole.

Feenberg yesterday praised the appellate court for reaching “the right decision.” He said that this “was a frivolous lawsuit to begin with,” and the “trial court properly disposed of it” after finding the “tactics engaged in by the plaintiff and their attorney were inappropriate.”

The attorney said his client was “ecstatic” with the decision, and suggested that “three important points” could be taken from it: that the large volumes of discovery propounded was  appropriate, that “judges can rely upon representations of counsel concerning the necessity and propriety of discovery,” and that courts are not “going to tolerate frivolous litigation and gamesmanship by plaintiffs.”

Saint George, who registered with the State Bar as inactive in June and currently resides in Arizona, said that she was “disappointed” by yesterday’s ruling.

She explained that she was suffering from a brain tumor, and was hospitalized for brain surgery when the terminating sanction motion was filed. “I didn’t get the terminating sanction notice until a day or two before I filed my response,” Saint George said, adding that opposing counsel “knew I was in the hospital” and declined to afford her more time to respond.

The attorney also emphasized repeatedly that she had responded to the discovery requests, even though “all of them were duplicative.”

Saint George pointed out the appellate panel “conceded there was some ambiguity” as to whether or not a response was filed, and insisted, “when you have those factual discrepancies terminating sanctions are extreme and egregious.”

In addition, she said, “terminating sanctions are only allowed for willful violations [of the discovery statutes],” and averred there “were not sufficient facts to substantiate a willful violation” in light of the factual ambiguities the appellate court had acknowledged.

Saint George further remarked that the “underlying issue was really whether a plaintiff can sue their lawyer for malpractice that occurred during a global-type settlement,” which is “a real timely issue.”

Had the Court of Appeal  ruled differently, Saint George said “the lower court would have had to make some determinations with whether or not the conduct of this lawyer during the settlement would have been covered under the confidential settlement rules.”

She insisted the current broad judicial interpretation of those rules is “hindering plaintiffs” and “this case would have really brought it out.”

A telephone number listed on the State Bar website for Peters was not in service yesterday and he did not respond to an emailed request for comment.

The case is Ward v. Tesser & Ruttenberg, B224220.


Copyright 2011, Metropolitan News Company