Thursday, September 21, 2017
Was No ‘Conspiracy’ Against High Profile Lawyer Kay—C.A.
Says Widow of the Practitioner Fails to Show Wrongdoing on Part of Attorney Helene Wasserman; Establishes No Concerted Action With State Bar, Rendering Her a ‘State Actor’
By a MetNews Staff Writer
The widow of high-profile lawyer Philip Kay yesterday lost in her bid for reinstatement of an action against Los Angeles labor and employment law attorney Helene Wasserman who was sued based on cooperating with the State Bar in an investigation that led to a three-year suspension of Kay in 2010.
Div. One of the First District Court of Appeal, in an opinion by Justice James Humes, affirmed summary judgment in favor of Wasserman and Ralphs Grocery Company.
Wasserman represented Ralphs in a retrial, following a remand, on punitive damages. Kay sued her and Ralph’s based on the State Bar discipline he incurred—which stemmed from his unprofessional conduct in that trial and two others—although it was San Francisco Superior Court Judge Michael Anello who reported him.
Wasserman did supply documents and spoke with State Bar investigators.
The action was filed May 4, 2011. Kay died Aug. 29, 2012.
His widow, Robin Ann Kay, has carried on the action, in pro per, as trustee of the family trust. She had served as her husband’s paralegal.
No State Action
San Francisco Superior Court Judge Suzanne Bolanos in 2015 granted summary judgment on the sole cause of action, under 42 U.S.C. §1983, holding that a federal civil rights action does not lie against defendants who were not acting under color of law.
Appealing, Robin Kay asserted that the defendant’s actions were intertwined with those of the State Bar, a state agency. She insisted that the defendants acted in concert with the State Bar in fabricating evidence.
In particular, she declared that Wasserman conspired with the State Bar to deny her late husband “his fundamental constitution right to due news.”
“None of the evidence Robin Kay offered in opposition to defendants’ summary judgment motion created a triable issue that Wasserman and Ralphs engaged in either a conspiracy or joint action.
“Instead, Robin Kay merely speculates that Wasserman conspired or engaged in joint action to fabricate false allegations against Philip Kay. She asserts, for example, that Wasserman ‘began communicating’ and had ‘conversations’ with the State Bar. The only specific claim she makes in this regard, however, is that Wasserman falsely informed the State Bar that Philip Kay’s misconduct was the basis for the new trial granted to Ralphs. But allegations are insufficient; Robin Kay must oppose a summary judgment motion with competent evidence….Instead, the evidence offered by Robin Kay—the trial court order—contradicts her position.”
In granting Ralphs a new trial after a jury assessed punitive damages at $30 million, Anello said he was doing so because Philp Kay’s conduct “resulted in a verdict framed by passion and prejudice.”
Humes went on to say:
“None of the proffered evidence supports a reasonable inference that Wasserman conspired or engaged in joint action with the State Bar to deprive Philip Kay of his federal constitutional rights. There is no dispute that Wasserman communicated with the State Bar during the course of the State Bar’s investigation into Philip Kay’s misconduct. But the mere fact that such communication occurred does not equate to a conspiracy or joint action. Robin Kay offers no evidence to suggest that this communication went beyond the normal exchange of information that occurs in any State Bar investigation. While she makes repeat references to ‘false information’ provided by Wasserman, she cites no supporting evidence in the record. As such, Robin Kay has failed to raise a triable issue of fact as to her section 1983 claims.”
The case is Kay v. Wasserman, A146607.
The disciplinary case received broad attention at the time in light of Kay’s prominence as a lawyer.
He specialized in sexual harassment cases—which was the nature of the action against Ralphs—and in a 1994 case won a $6.9 million jury verdict for a legal secretary against Baker & McKenzie and $225,000 against a former member of the firm, Martin Greenstein.
The State Bar sought Kay’s disbarment, but State Bar Court Judge Lucy Armendariz—who found Kay found him guilty of 16 counts of misconduct—determined that a three-year suspension was adequate.
Aside from his acts involving moral turpitude, she found persistent “insolent behavior,” commenting:
“Somewhere during his overzealous advocacy, he lost it…not the cases, but his integrity, professional decorum, credibility and respect of the court.”
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