Tuesday, January 29, 2019
By a MetNews Staff Writer
The Third District Court of Appeal has upheld a $17,000 sanction against a lawyer who represented the daughter of a deceased judge in her suit against the California’s Judge’s Retirement System because it was manifest that the action was barred.
“[N]o reasonable attorney could have objectively determined there was the slightest chance plaintiff would prevail,” Presiding Justice Vance W. Raye said in an opinion filed Friday and not certified for publication.
While the opinion affirms the sanction imposed by the lower court, it declines to further sanction attorney H. Lee Horner Jr. on appeal, finding no indication of bad faith on Horner’s part.
Then-Sacramento Superior Court Judge Raymond Cadei, since retired, sustained the demurrer by the Judge’s Retirement System (“JRS”) without leave to amend, ruling that the action, filed in 2016, was barred by the statute of limitations and res judicata.
Cadei sanctioned Horner, an Arizona attorney who has been a member of the State Bar of California since 1984, under Code of Civil Procedure §128.7. He declared:
“Since this Court finds no objectively reasonable attorney would under these circumstances have determined that the claims now alleged in plaintiff’s complaint were ‘warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law,’ the imposition of monetary sanctions against plaintiff’s counsel is justified.”
The plaintiff, Julie Stothers Horner, as the successor trustee to her mother’s trust, filed a petition for writ of mandate and complaint for declaratory relief against JRS in July 2013, alleging the system had underpaid her mother the benefits due to her after the death of her father, Los Angeles Superior Court Judge Stephen Stothers.
Stothers, appointed to the Los Angeles Superior Court in 1970, sat on the bench until his death in 1985. He was an Inglewood Municipal Court judge from 1967-70.
The plaintiff’s 2013 case was dismissed on the ground that she had not exhausted her administrative remedies. Her subsequent attempt to obtain relief before the California Public Employees’ Retirement System was rejected by an administrative law judge in 2015.
In both the 2013 superior court case and the administrative proceedings, the plaintiff asserted that JRS had not credited her father for his military service and had miscalculated the benefits under applicable case law.
Raye agreed with Cadei’s characterization of Horner’s involvement in the case, rejecting his insistence that his client’s third attempt to get money she claimed had been owed her mother was not barred by res judicata.
Addressing the sanction, Raye said:
“We cannot say the court abused its discretion. While we see no reason to address the statute of limitations issue here, the trial court found that filing the second lawsuit in 2016, 16 years after the claim arose, was barred by the statute of limitations and by res judicata. Both of these claims were legally frivolous and we agree with the trial court that no reasonable attorney could have objectively determined there was the slightest chance plaintiff would prevail. Since a finding of bad faith is not a prerequisite to an award of sanctions pursuant to Code of Civil Procedure section 128.7, the fact the claims are legally frivolous is sufficient to support the award. Simply put, it is not our role to second guess the trial court, absent a finding of an abuse of discretion.”
Nonetheless, the court did not find a sanction on appeal to be appropriate.
“While it may be difficult to fathom that a claim arising from a judge’s death over 33 9 years ago might still have any viability,” Raye said, “we are reluctant to infer bad faith or an improper motive from prosecution of a weak case.”
The case is Horner v. Judges’ Retirement System, C084619.
Copyright 2019, Metropolitan News Company