Monday, August 3, 2015
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C.A. Slams Lawyer Who Is Already Facing Disbarment
By a MetNews Staff Writer
An attorney who is facing disbarment, and is presently on involuntary inactive status, has been hit with an order by the Court of Appeal to pay $4,537.50 in sanctions for putting forth arguments on appeal that no reasonable “person,” let alone a reasonable attorney, would have advanced.
The unpublished opinion in Keegan v. Viviani, G050032, was filed June 11 but not made public until late Thursday.
Attorney Charles G. Kinney filed briefs arguing that costs were improperly imposed on his client Marian Keegan, who lost an action in which she complained of flooding and parking problems in Laguna Beach. The memoranda of costs, Kinney asserted on appeal, were tardy.
(Kinney was a co-plaintiff in the action but was not a party to the appeal.)
15-Day Rule
Acting Presiding Justice Eileen C. Moore, writing for the Fourth District’s Div. Three, pointed out that under Rules of Court, rule 3.1700(a)(1), where a party mails notice of entry of judgment (when it‘s done within 180 days after the entry), the cost memoranda must be filed within 15 days after “the date of service of written notice of entry of judgment or dismissal.”
Notice of a June 19 entry of judgment was mailed to Kinney by defendant Three Arch Bay Community Services District on July 2, 2013. On July 16, that defendant filed its memorandum of costs.
(On July 26, 2016, two other defendants sent notice of entry of judgment, as well as their memoranda of costs. The opinion upholds the costs awarded them; they did not seek sanctions.)
Kinney contended that the 15-day period for filing memoranda of costs was activated by his June 4 notice of ruling on the defendants’ successful motion for summary judgment. Moore declared:
“[A] June 4, 2013 notice of the ruling on the summary judgment motion…would not have been, and could not have been, a notice of entry of judgment as required to trigger the 15-day period of California Rules of Court, rule 3.1700(a)(1).”
She went on to say:
“No reasonable person would agree that a notice of ruling given 15 days before judgment was entered could possibly be construed as a notice of entry of the subsequent judgment.”
Need for Sanctions
Moore’s discussion of the strong need for sanctions implied that the amount that was imposed on Kinney would have been greater had the fees charged by the defendants’ attorneys not been as modest as they were: $165 per hour.
The jurist said that the “degree of frivolousness” of the appeal “was great”—the primary argument that memoranda of costs were untimely being “utterly absurd” and “the need to discourage the conduct of Attorney Kinney, whose bad tactics are well known, is great.”
Those “bad tactics” led the State Bar Court Review Department, on Dec. 12, 2014, to urge that Kinney be disbarred by the California Supreme Court. It said:
“Seven years after [then-Los Angeles Superior Court] Judge [Elizabeth] Grimes [now a justice of the Court of Appeal] identified Kinney as a ‘relentless bully,’ six years after he was first declared a vexatious litigant, and almost four years after a Court of Appeal warned in a published opinion that Kinney ‘must be stopped immediately,’ he continues to clog the court system with his meritless claims and motions. We find that Kinney is unfit to practice, and we recommend his disbarment.”
Boren’s Opinion
The opinion proclaiming that Kinney “must be stopped immediately” was issued by this district’s Court of Appeal in 2011. Presiding Justice Roger Boren of Div. Two said:
“Despite his status as a vexatious litigant, Kinney has pursued a persistent and obsessive campaign of litigation terror against his neighbors and the City of Los Angeles.”
Boren recited:
“Kinney was declared a vexatious litigant in 2008 in part because he has been repeatedly sanctioned for filing frivolous or unmeritorious papers, motions or other papers. Kinney was sanctioned in 2007 after appealing from a non-appealable order expunging a lis pendens. Kinney was also sanctioned $63,944.11 while representing a plaintiff in federal court. The Ninth Circuit wrote, ‘attorney Kinney has continued in his efforts to relitigate nonmeritorious claims through vexatious and multiple filings within the current suit. Even in this appeal, despite a circuit decision to the contrary, he seems intent upon arguing that his claims are meritorious.’ The First District Court of Appeal has upheld sanctions against Kinney in several cases. He was sanctioned twice (for $250 in 2001 and $3,000 in 2003) while representing a defendant who was alleged to have fraudulently transferred his assets in an auto accident case, and the sanctions were upheld on appeal: the court wrote, ‘there was ample reason for concluding that Kinney filed the motions for an improper purpose, such as to cause needless delays or to harass or punish [plaintiff] for bringing suit.’ In another case, the appellate court affirmed sanctions of $2,500 imposed on Kinney for “patently inadequate discovery responses and, more particularly, the frivolous objections which he interposed.”
Keegan Disclaims Authorization
A June 11 companion case to the one that was belatedly posted on Thursday upheld the underlying judgment in the Laguna Beach dispute. Moore related in that case that when the court became aware that Kinney had been placed on involuntary inactive status, it nudged Keegan to hire a new lawyer.
She wrote:
“Keegan thereafter filed a letter informing this court that she had never authorized Kinney to file an appeal on her behalf.
“Keegan appeared at oral argument, in propria persona. She represented to this court that she had never sought to file a lawsuit, but that Kinney had knocked on her door and asked her to participate in the lawsuit. She said she had told him ‘no’ five times before she ultimately agreed. Keegan further represented that Kinney had told her she ran no risk of loss. She also indicated that Kinney had never informed her that a costs award had been entered against her and she represented that she had only learned of the costs award the day before she appeared at oral argument. In addition, Keegan reiterated that she had never authorized Kinney to file an appeal on her behalf, either in the matter before us or in the appeal of the costs award….
“This court is not an investigative body and is not taking evidence to determine whether Kinney engaged in misconduct in soliciting a plaintiff for a lawsuit, in failing to inform his client of the outcome of a lawsuit, or in filing an appeal without the permission of his client. However, because of the allegations to the effect that Kinney has engaged in misconduct, we are reporting the matter to the State Bar of California, pursuant to canon 3D(2) of the California Code of Judicial Ethics. The State Bar of California may wish to investigate the alleged misconduct.”
The case posted on Thursday is Keegan v. Viviani, G050032.
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