Wednesday, November 1, 2017
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Court of Appeal:
Can’t Enjoy Benefit of Two-Prong Settlement While Repudiating the Other Part of It
Lawyer Who Cashed a Large Check but Not Smaller One, Demanding Higher Pay-Off Than Provided for in the Agreement, Has a History of Taking Judicially Rebuffed Stances
By a MetNews Staff Writer
An attorney who was fired by a state agency and sued under the Fair Employment and Housing Act for wrongful termination, disability discrimination, and retaliation, settling her action for $5,000—in tandem with a $369,500 settlement of a workers’ compensation claim—then cashing the larger check but not the smaller one, and demanding an additional $750,000, has lost her appeal of the trial court’s order enforcing the settlement.
The Court of Appeal for this district on Monday affirmed Los Angeles Superior Court Judge John P. Doyle’s order, pursuant to Code of Civil Procedure §664.6, that judgment be entered in conformity with the terms of the September, 2015 “global” settlement of claims by ousted lawyer Olga H. Garau. Doyle found each of her contentions to be without merit.
Justice Brian Hoffstadt of Div. Two wrote the opinion, which was not certified for publication. It is one of a string of opinions finding Garau’s contentions to be untenable.
Hoffstadt agreed with Doyle that Garau had not shown that enforcement was barred by the doctrine of unconscionability which, he noted, requires both a procedural and substantive basis.
He wrote:
“The Settlement is not procedurally unconscionable because plaintiff negotiated the contract herself, and thus was aware of all of its terms; there was no ‘surprise.’ Plaintiff asserts that her personal medical and financial situation put pressure on her to settle rather than go to trial, but the court correctly found that her situation existed independent of anything the defendants did.
“The Settlement is not substantively unconscionable because the terms are evenly balanced: Plaintiff got a $374,500 payment and a promise to expunge her personnel records of negative comments in exchange for dismissing the civil lawsuit and her workers’ compensation case and as well as for resigning. Plaintiff urges that the Settlement is grossly unfair because only $5,000 of the payment was allocated as damages for her civil lawsuit. But there was evidence that plaintiff was the one who requested that allocation, and she cannot now use it as a basis for keeping more than 98 percent of the settlement proceeds while disclaiming any duty to uphold her end of the bargain. Plaintiff points to the fact that she disputes being the one who allocated the money between the two pieces of litigation, but we must draw all inferences in favor of the trial court’s factual findings, not reweigh them.”
Other Points Raised
Garau argued that the settlement cannot be enforced because it was signed by the chief counsel for the Department of Industrial Relations, by which she had been employed, in its Division of Occupational Safety and Health. She pointed to the California Supreme Court’s 1995 decision in Levy v. Superior Court which says that “the litigants themselves,” not “their attorneys of record” must sign settlement agreements.
Hoffstadt responded:
“However, where a party authorizes someone to serve as their [sic] representative, that representative may sign on the party’s behalf and that signature is valid under section 664.6.”
The lawyer, who has represented herself at all stages of the proceedings, insisted that the settlement is invalid because the defendants did not file a notice of settlement, as required by the California Rules of Court. the jurist pointed out that the rule requires that “each plaintiff or other party seeking affirmative relief” file the notice, with no requirement that a defendant do so.
“In her reply brief,” the opinion relates, “plaintiff responds that she was not required to file any such notice because there was no valid settlement, which is flatly inconsistent with her initial argument that there was a settlement that became invalid due to defendants’ failure to file a notice.”
He said that, in any event, the rule is “ ‘a case management tool for delay reduction’ meant to assist courts in sorting the inactive cases from the active cases” and that “nothing in its terms or in this purpose supports a rule that noncompliance voids a settlement.”
Government Code Provision
Garau asserted invalidity of the settlement based on Government Code §1364 which renders it “unlawful to remove a person from an office or position of public trust” other than based on “tests and qualifications provided for under civil service and retirement laws.” Hoffstadt commented:
“Plaintiff’s assertion is unsupported by any factual or legal citation or any argument; as a result, she has forfeited it….Further, nothing in this provision precludes a defendant from entering into a bona fide settlement of an employment dispute; if it did, it would preclude any and all such settlements.”
The appellant’s protest that a condition precedent was not met—payment within 90 days—met with no sympathy. Hoffstadt said:
“[S]ubstantial evidence supports the trial court’s finding that plaintiff waived compliance with this requirement when she was informed that the checks would be late, did not object to this development, and proceeded to cash the check representing the lion’s share of the Settlement.”
Appellant Disputes Wording
The plaintiff also contended that the appeals court erred, in a separate appeal of monetary sanctions, in saying the trial court rendered the appeal moot by “vacating” a sanctions order, when, in actuality, it “waived” the sanctions. The justice said:
“This has no bearing on the propriety of this appeal.”
(It dismissed the appeal of the sanction order on Dec. 1, 2016; that same day, Garau filed a request seeking a change in the language of the order; the following day, the court denied the request.)
Doyle acted in the absence of jurisdiction, Garau insisted, because when he entered his order in May 2016, the case was in the Court of Appeal, and a stay was thus in effect. An appeal does stay trial court proceedings, Hoffstadt said, but only as to such matters encompassed in the appeal, and Garau’s contest to sanctions did not preclude action on unrelated matters.
Treu Affirmed
There was an earlier decision in the case.
On April 30, 2015, an unpublished Court of Appeal from the same division was issued affirming an order by Los Angeles Superior Court Judge Rolf Treu. Hoffstadt provided this summary:
“An employee of a division of a state department sues her division, the state department of which it is a part, and the state itself for employment-related claims. May attorneys from the department’s legal unit represent all three state entities in the action? We conclude that they may, and affirm the denial of the employee’s motion to disqualify defense counsel.”
Earlier Litigation
Prior to the present litigation, Garau sued over a decision made during her six-month probationary period not to keep her on. That period ended on April 11, 2006; six days earlier, she was advised that further services would not be required.
An administrative law judge affirmed the employment decision but the California State Personnel Board countermanded it; the department delayed in reinstating Garau, as ordered, because the matter of her backpay was yet undecided so that, in its view, the order was not final; Los Angeles Superior Court Judge James Chalfant agreed.
Presiding Justice Norman Epstein this district’s Div. Four reversed in the first of three unpublished opinions he was to write in the case, and the only appeal Garau was to win. He said in an Oct. 14, 2009 opinion that the reinstatement order and the matter of back pay were separate issues, setting forth:
“Because the Board’s reinstatement order was final and all administrative remedies available with respect to reinstatement had been exhausted, we conclude the trial court abused its discretion by striking Garau’s reinstatement petition as premature.”
Petition Not Barred
On Oct. 5, 2011, Epstein’s opinion was filed reversing then-Los Angeles Superior Court Judge Robert H. O’Brien’s order denying a petition by the Department of Industrial Relations contesting the decision of the California State Personnel Board that Garau be restored to her position. O’Brien agreed with Garau that the petition was barred by the 2009 Court of Appeal decision; Epstein said it wasn’t, explaining:
“Because a judgment dismissing an action as unripe is not a final judgment on the merits, the Department is not barred from challenging the Board’s decision in its second petition.”
Epstein’s next opinion in the case was filed Dec. 7, 2011. Garau was seeking back pay.
Affirming decisions by Chalfant and O’Brien, he said:
“We conclude that appellant effectively withdrew her back pay appeal before respondent California State Personnel Board…rendered a final decision on the merits, and that her doing so bars the relief she was seeking.”
That opinion was vacated and a modified version, reaching the same result, was filed March 27, 2012.
Represents Husband
In 2010 and 2011, she represented her husband in an action involving his dispute with his brother over the remains of their mother.
The mother had expressed the wish to be buried at Holy Cross Mortuary of Culver City, and, after her death, the brother made arrangements there for interment. Garau’s husband favored burial at Forest Lawn Cemetery in Long Beach, where their father and other family members are buried.
The lawyer interceded, making demands upon Holy Cross, which resulted in the funeral and interment, scheduled for Feb. 11, 2010, being called off until the dispute was resolved.
When it was clear there would be no accord, Holy Cross brought an action in Los Angeles Superior Court seeking an order of interment.
Then-Los Angeles Superior Court Judge Jacqueline Connor, on April 22, 2010, ruled that the funeral and internment were to proceed at Holy Cross, and did. Garau appealed, arguing that the body should be moved to Long Beach.
Defective Briefs
Writing for this district’s Div. Two, Justice Judith Ashmann-Gerst said that the appellant “raises a host of arguments, all of which lack merit.” She noted that Garau urged reversal based “principally on inflammatory remarks and unfounded accusations” against the brother and Holy Cross and that the appellant’s “opening brief and, even worse, his unnecessarily lengthy reply brief, are confusing, lack adequate legal authority, and are missing record citations.”
Garau argued that her husband’s “laudable purpose” in seeking to have “his parents buried in as much physical proximity as possible” should surmount the policy against moving remains. Ashmann-Gerst noted that “there were no plots purchased together and there is no space” available next to the mother’s husband.
She said the appellant’s “laudable purpose” is not one “that justifies the exception to the general rule of not removing remains once they are buried.”
Wrong Procedure
Earlier, she represented her husband and two daughters in an action against the Torrance Unified School District, contesting imposition of certain fees as being in violation of the “free school” clause in the California Constitution. She appealed from an order reclassifying the case as one of limited jurisdiction.
Div. Seven of this district’s Court of Appeal on March 1, 2006, dismissed the appeal. Then-Justice Fred Woods (now retired) explained that writ review was the exclusive remedy.
On Nov. 25, 2003, the case returned to Div. Seven on three appeals and one cross appeal. Garau joined her husband as an appellant based on imposition of sanctions on her, in the amount of $25,000, and including her as an obligor on a $89,233 attorney fee award.
Woods wrote the opinion affirming Los Angeles Superior Court Judge (now Assistant Presiding Judge) Kevin C. Brazile’s grant of summary judgment in favor of the school district.
The justice found, however, that sanctions were improperly imposed on Garau because the “safe harbor” provision on Code of Civil Procedure §170.7, allowing time for undoing the conduct. Once summary judgment was granted, there was no way papers previously filed could be withdrawn, he pointed out.
Woods also said there was no authority for making an attorney liable for an attorney fee award against the client.
Garau is now a personal injury and workers’ compensation attorney.
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