Tuesday, August 5, 2014
C.A. Upholds $27,334 Sanction Imposed on Lawyer
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed a $27,334 sanction imposed on a Newport Beach attorney for frivolously including two independent claims adjusting firms as defendants in his client’s action against an insurance company that denied a claim.
“Under California law, insurance adjusters and agents cannot be held liable for breaches of insurance contracts because they are not parties to those contracts,” Acting Justice Lee Smalley Edmon, a Los Angeles Superior Court judge serving on assignment, recited in her opinion for Div. Four.
Edmon noted that the relevant law was pointed out to the attorney, Gregory Molina Burke, by counsel for the adjusters both before Burke substituted them in for Doe defendants and afterward.
Burke pointed to various documents showing a link between the adjusters and the insurance company. “None of these documents,” Edmon responded, showed the existence of a contract between Burke’s client and the adjusters.
“Reduced to its essentials, Burke’s contention is that he should not have been sanctioned for asserting frivolous claims against CRES and Superior because, had he been given additional time to conduct discovery, he might have been able to discover facts that would have allowed him to assert other, nonfrivolous claims,” Edmon wrote. “But our legal system does not allow parties or their attorneys to sue first and investigate later.”
Burke’s “failure to have a factual basis for bringing the claims he brought, i.e., frivolous claims, supports the trial court’s award of sanctions,” the jurist declared.
The case is 1st American Warehouse Mortgage v. Topa Ins. Co. (Burke), B246716. Edmon’s opinion, which was not certified for publication, affirms an order by Los Angeles Superior Court Judge Ralph Dau.
Burke represented himself on appeal and Alan B. Yuter and James F. Henshall of Selman Breitman acted for the defendants.
Burke has not paid the sanctions, according to one of 17 counts in a notice of disciplinary charges filed by the State Bar’s Office of Chief Trial Counsel on Oct. 28, 2013. The notice alleges that the failure to make payment was “in willful violation” of a court order.
It also notes three other sanctions, of lesser amounts, imposed in that case and one in another case, all unpaid. The notice charges him by maintaining an action that was not “legal or just” by refusing to dismiss the claims adjusters as defendants.
Burke, who was admitted to practice in 1997, is accused of unauthorized practice of law by representing 1st American Warehouse Mortgage and other clients while his law license was suspended. A 60-day actual suspension was in effect from Aug. 7 to Oct. 7, 2011, based on Burke having diverted client trust account funds to personal use.
He has been suspended twice for failure to pay State Bar dues and once for being in arrears in child support payments.
Burke filed for bankruptcy in 2003 and 2013. In connection with the earlier bankruptcy, a sanction was imposed against Burke and in favor of the trustee; U.S. District Judge Audrey Collins dismissed Burke’s appeal of the sanction for failure to file a timely notice of appeal; the Ninth U.S. Circuit Court of Appeals in 2005 dismissed his appeal of Collins’ order.
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