Monday, November 25, 2019
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Court of Appeal:
Reference in Brief to Female Judge as ‘Attractive’ Is Sexist
Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose
By a MetNews Staff Writer
The Court of Appeal for this district on Friday took to task a Pasadena lawyer who, in his reply brief, twice referred to then-Los Angeles Superior Court Judge Gail Ruderman Feuer (now a justice of the Court of Appeal) as “attractive.”
Justice Brian S. Currey of Div. Four wrote the opinion which, he noted, was ordered published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”
The opinion affirms Feuer’s denial of an anti-SLAPP motion as to a cause of action for defamation in a lawsuit brought by Cynthia Briganti against Keith Chow, stemming from allegations the defendant had posted on Facebook. Feuer did strike, as a SLAPP, Briganti’s cause of action for the intentional interference with prospective economic advantage, which the plaintiff did not appeal.
Currey said that the then-trial judge correctly found that the action stemmed from public speech on an issue of public interest—identity theft—meeting the first test for a special motion to strike pursuant to Code of Civil Procedure §425.16, and that she was also right that the plaintiff demonstrated her cause of action has “at least ‘minimal merit’ ” and thus survives the challenge.
‘Teachable Moment’
“Having resolved the merits of this appeal,” Currey wrote, “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, in the opening paragraph of Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”
He quoted the reply brief, prepared by attorney Jan Stanley Mason, as saying:
“Briganti...claims that...Chow defamed her by claiming she was ‘indicted’ for criminal conduct, which is the remaining charge [in the case] after the [trial judge]...an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action....With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”
Compliment Intended
Currey noted that at oral argument, Mason said he intended the description of Feuer as a compliment to her.
“Nevertheless,” Currey wrote, “we conclude the brief’s opening paragraph reflects gender bias and disrespect for the judicial system.”
He quoted an article by Court of Appeal Presiding Justice Lee Edmon and Los Angeles Superior Court Judge Samantha Jessner published in the summer edition of an Association of Business Trial Lawyers periodical as saying that gender discrimination in the legal profession persists and that “unequal treatment does not cease once a woman joins the judiciary.”
Intent Is Irrelevant
The jurist counseled:
“Calling a woman judge—now an Associate Justice of this court—‘attractive,’ as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge….
“As Presiding Justice Edmon and Supervising Judge Jessner observed in their article, gender discrimination is a subcategory of the larger scourge of incivility afflicting law practice….Objectifying or demeaning a member of the profession, especially when based on gender, race, sexual preference, gender identity, or other such characteristics, is uncivil and unacceptable. Moreover, the comments in the brief demean the serious business of this court. We review judgments and judicial rulings, not physical or other supposed personal characteristics of superior court judges.”
Currey noted that the Code of Judicial ethics requires judges to deter manifestations of bias on the part of lawyers—and cautioned in a “more extreme case,” a report would be made to the State Bar.
Creativity Encouraged
He added:
“We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable. Good brief-writing requires hard work, rigorous analysis, and careful attention to detail. Moreover, we recognize ‘every brief presents opportunities for creativity—for imaginative approaches that will convey the point most effectively.’ We welcome creativity and do not require perfection. We simply did not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful, or persuasive.”
The case is Briganti v. Chow, 2019 S.O.S. 3746.
Feuer is a member of this district’s Div. Seven. Nelson’s perception that she has “political connections” apparently stems from her being married to Los Angeles City Attorney Mike Feuer who, though now holding a nonpartisan office, was elected to the Assembly three times as the Democratic candidate.
Nelson, 82, was admitted to the State Bar in 1969. He was twice disciplined and was actually suspended from Jan. 29, 1993 to May 21, 1993, and from Nov. 19, 1997 to March 3, 1998.
Nelson Comments
Responding to the opinion, Nelson said he was “shocked and embarrassed” because the Court of Appeal panel “totally missed the boat on this one, attacking the messenger on a major free speech issue for using one generally descriptive word ‘attractive’ among other non-sexist complimentary words describing a trial judge who had recently been elevated to the Court of Appeal, but who erred.”
Chow’s posting had denigrated Briganti’s promotion of water-ionization devices.
Nelson contended Friday that Feuer overlooked “100 pages of briefing arguing that the alleged defamatory statement was not defamation and was merely a Good Samaritan 2:00 a.m. Facebook hyperbolic, over-the-top, praise Jesus, rhetoric warning to a friend advising her not to invest $5000” in a venture “with a snake oil saleslady, who had been found guilty by a Federal Bankruptcy Judge of identity theft, fraud, forgery, mail fraud, money laundry, theft, bad faith, lacking credibility etc.”
The lawyer went on to say:
“If all you’re looking for is sexist comments while steering the Titanic, you’re going to find a helluva lot of them while the ship sinks. Sometimes the PC brigade totally blows it—and they did this time.”
(The term, “PC Brigade” refers to persons who seek to enforce political correctness. Nelson proceeded to allude to the “DCA,” once a common abbreviation for “District Court of Appeal,” now known as the “Court of Appeal.”)
Nelson remarked:
“Shame on the DCA! Shame on the DCA!
“It’s a very sad day for Justice!
“The Court missed an opportunity to draw a red line against meaningless defamation cases—and possibly explore fraud.”
Copyright 2019, Metropolitan News Company