Metropolitan News-Enterprise


Thursday, April 18, 2019


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Court of Appeal:

No Expert Testimony Needed Where Malpractice Is Obvious

Judgment Affirmed Against Glendale Lawyer Who Advised That Mortgage Payments Not Be Made While He Arranged for Loan Modification, Resulting in Foreclosure Sale and Eviction


By a MetNews Staff Writer


Misconduct by a Glendale attorney was patently egregious, the Court of Appeal for this district said yesterday, declaring that expert testimony was not needed to support a judgment against for malpractice.

The unpublished opinion, by Justice Lamar W. Baker of Div. Five, affirms an award by Los Angeles Superior Court Judge Elizabeth R. Feffer against lawyer Armen Janian—who is presently suspended from law practice based on disciplinary actions against him—for $579,044 in general and special damages and $500,000 in punitive damages.

The plaintiffs were Forrest Fykes Sr., his wife Valerie Fykes, their son Forrest Fykes Jr., and his wife,  Melissa Fykes. The parents of Forrest Fykes Jr. in 2004 purchased a home for the younger Fykes, but they were to keep up payments on the mortgage.

National Help Center Law Group (“NHC”) a loan modification outfit of which Janian was the director and chief financial officer, contacted the elder Fykes and arranged to represent them in gaining a reduction in mortgage payments. While negotiations were in progress, Janian advised, according to Feffer’s findings, that mortgage payments cease to be made in order to increase leverage.

While the four Fykes thought Janian and NHC were working in their interests, foreclosure proceedings of which they had no knowledge, were in the works. The house was sold at a trustee sale and the younger Fykes were evicted.

Credibility Lacking

The four Fykes sued Janian. Feffer found that his credibility was “extraordinarily low.”

She found that expert testimony was not necessary because it was obvious Julian’s actions fell below the requisite standard of care.

“That is right,” Baker wrote, “because Janian’s professional failings were egregious.”

He elaborated:

“There was substantial evidence at trial that, among other things, the Fykes had been able to keep current with their mortgage payments before receiving the NHC solicitation; Janian and others at NHC advised the Fykes to stop making payments—and even more significantly—to ‘ignore’ notices of default and sale that would ensue from nonpayment; and Janian and others at NHC requested (unlawfully, per Civil Code section 2944.7) thousands of dollars in up-front payments. Compounding this malpractice, Janian also failed to take any of the steps he promised the Fykes he would take to ensure they would not lose their home…”

No Loan Negotiations

Baker added:

“Moreover, because Janian did nothing to prevent all of his client files from being lost, there was no evidence at trial that Janian (or anyone at NHC) ever attempted to negotiate a loan modification with the Fykes’ lender prior to the foreclosure sale. On these facts, the trial court did not need an expert to understand Janian’s conduct fell beneath the standard of care required of an attorney.”

The fact that Julian’s clients were the elder Fykes did not mean there could be no liability to the younger Fykes, Baker declared, because harm to Forrest Fykes Jr. and Melissa Fykes was “certainly foreseeable on these facts, and there are no other considerations that mitigate against recognizing a duty.”

The case is Fykes v. Janian, B286419.

Julian represented himself and Michael D. Anderson and Andrei V. Serpik of the Pasadena firm of Anderson & Associates acted for the Fykes.

Justices’ Displeasure

Janian was one of two appellants taken to task in the opinion from this district for improper content of their briefs. The other appellant incurring justices’ displeasure was Frederick Theodore Rall III, a political cartoonist and blogger, who contested a $352,736.14 award in attorney fees to the owner of the Los Angeles Times and others in connection with a successful anti-SLAPP motion.

Baker said, with respect to Janian:

“Defendant and appellant Armen Janian’s (Janian’s) prosecution of this appeal—from an adverse judgment awarding over $1 million in general, special, and punitive damages against him for legal malpractice and fraud—takes the same cavalier approach that may well have contributed to his liability. Most of Janian’s arguments challenge the sufficiency of the evidence at trial, but he does not fairly summarize the evidence that supports the judgment, instead preferring to highlight his own trial testimony and largely ignore the rest—including any discussion of the trial court’s statement of evidence and reasons supporting its verdict. That is not how appellate litigation works, and the bulk of his arguments are therefore waived.”

 Derision Inappropriate

In Rall v. Tribune 365 LLC, B287721, Div. Eight of this district’s Court of Appeal rejected a challenge to a $352,736.14 award by Los Angeles Superior Court Judge Joseph R. Kalin to Los Angeles Times Communications LLC and others in an action in which Rall sued the Los Angeles Times for questioning, in print, the accuracy of a blog he wrote in 2015.

Rall claimed that after he had crossed a street, in a lawful manner, a motorcycle officer “zoomed over, threw me up against the wall, slapped on the cuffs, roughed me up and wrote me a ticket” for jaywalking.

Div. Eight affirmed on Jan. 16 Kalin’s granting of an anti-SLAPP motion. The California Supreme Court on April 10 granted review.

The panel, in affirming the attorney fee award yesterday, said in an opinion by Justice Elizabeth Grimes: 

“Throughout his opening brief (plaintiff did not file a reply brief), plaintiff has disparaged defendants, defense counsel, the trial court, and the legal system. Not only is such disparagement inappropriate, it is ineffective. Appellate briefs provide an opportunity to present cogent legal arguments. Appellate briefs are not a forum for plaintiff to vent his spleen. We do not repeat or consider any of plaintiff’s inappropriate and irrelevant remarks.”

She later added:

“We will not entertain plaintiff’s disrespectful and baseless attacks upon the trial court and his rantings against the legal system.”

With respect to the merits, Grimes said:

“Nowhere in his brief does plaintiff develop any coherent argument that the hourly rate or the number of hours spent by defense counsel was unreasonable. Plaintiff says lead defense counsel’s discounted rate of $705 an hour is inflated, while at the same time telling us it is not unique, and that big corporate clients have adjusted to such rates. Plaintiff says the question for the court is whether the defense could have gotten the same for less. That is not the question for the court. Plaintiff has failed to demonstrate defendants’ fee request was ‘overreaching’ or ‘inflated.’ ”

Rail’s lawyers on appeal were Roger A. Lowenstein and Jeffrey Lewis. The Times was represented by Kelli L. Sager, Rochelle Wilcox, Dan Laidman, and Jeffrey Glasser of Davis Wright Tremaine, the firm that represented the defendants at trial.


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