Metropolitan News-Enterprise


Wednesday, November 27, 2013


Page 1


State Supreme Court to Hear State Bar’s Bid to Revive SLAPP Fee Award Against Disciplined Lawyer


By a MetNews Staff Writer


The California Supreme Court agree to decide yesterday whether the State Bar is entitled to an attorney fee award in a case in which it prevailed both on its anti-SLAPP motion and on jurisdictional grounds.

The court, at its weekly conference in San Francisco, voted unanimously to grant the State Bar’s petition for review in Barry v. State Bar of California (2013) 218 Cal. App. 4th 1435. The conference is normally held on Wednesdays, but is traditionally moved up to Tuesday during Thanksgiving week.

In its Aug. 21 ruling, Div. Two of this district’s Court of Appeal held that Barry’s Los Angeles Superior Court suit challenging the validity of a disciplinary suspension was properly dismissed. The court agrees with the trial judge that lower courts could not hear the case because lawyer discipline is exclusively within the jurisdiction of the Supreme Court.

The court, however, reversed Judge Deirdre Hill’s award of more than $2,500 in attorney fees, reasoning that because the trial court had no jurisdiction to hear the merits, it had no jurisdiction to award fees.

 According to State Bar records, Barry agreed in 2011 to be placed on probation, with an actual suspension of 60 days, on grounds of pursuing meritless cases in connection with a family law matter, as well as a lawsuit, found “groundless” by the court, against opposing counsel, a court commissioner and three Los Angeles superior court judges, charging among other things violation of her client’s due process and equal protection rights.

When Barry sued to nullify the stipulation, Hill concluded that the State Bar’s pursuit of lawyer discipline is protected activity for purposes of the anti-SLAPP statute, and that Barry failed to state a prima facie claim, in part because the trial court lacked jurisdiction.

In affirming the dismissal but reversing the fee award, the Court of Appeal rejected the State Bar’s argument that Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733 applied.

Brown held that the trial judge, having dismissed for lack of subject matter jurisdiction after having determined that the matter came within the exclusive jurisdiction of the workers’ compensation system, could award costs. But Justice Victoria Chavez, writing for the Court of Appeal, said that because the trial court’s ruling came on an anti-SLAPP motion, and not on a motion to dismiss for lack of jurisdiction, Brown did not apply.

In other conference action, the high court denied review and depublication of a ruling by this district’s Court of Appeal that a trial court may completely deny attorney fees if it reasonably disbelieves the applying attorney’s representations as to how much time he or she spent litigating the matter.

This district’s Div. One, in an opinion by Justice Jeffrey Johnson, said Los Angeles Superior Court Judge Anthony Mohr acted within his discretion in denying fees to Lori J. Sklar. The court also upheld Mohr’s imposition of $165,000 in discovery sanctions against the attorney, who was admitted to the State Bar of California in 1994 and presently works out of her house in Minnetonka, Minn.

Sklar was lead counsel in an action against Toshiba America Information Systems, which culminated in a 2006 settlement, finally approved by the court the following year. Nearly one million consumers who had purchased a model of Toshiba’s laptop computer—which, based on a defective cover, tended to shut down and lose data—received allowances with a value totaling about $99 million.

Mohr was skeptical of Sklar’s claim as to the hours she put in. Toshiba balked that it showed that she worked on the case “nearly all day (sometimes as much as 16.75 hours), every day, seven days a week, including holidays, for some 22 months.”

The lawyer resisted Toshiba’s discovery attempts in connection with the fee request. It wanted the original records from her computer to see how they matched up with her hard-copy compilations, but it turned out Sklar had wiped them from her computer.

Mohr ordered that she permit an expert from Toshiba to try pull the erased files from her hard drive, but she refused access.

Johnson, writing for the Court of Appeal Aug 7 in Ellis v. Toshiba American Information Services, Inc. (2013) 218 Cal. App. 4th 853, agreed that the trial judge could not reasonably rely on Sklar’s time records, and that the order allowing a search of her laptop was reasonable under the circumstances.

The Supreme Court yesterday also depublished an Aug. 27 opinion of the Third District Court of Appeal, which held in MacDonald v. State of California (2013) 219 Cal.App.4th 67 that California statutes protecting employees from retaliation for complaining about health and safety violations require exhaustion of administrative remedies prior to filing a lawsuit.

The court unanimously decided, however, not to take up the case of former legislative staff member Aaron MacDonald, who sued the state and the Assembly. MacDonald claimed that he was fired after he complained to his supervisors that a fellow employee in the office of then-Assemblyman Bill Berryhill, R-Stockton was smoking in the office, in violation of state law.


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