Monday, March 4, 2019
Court of Appeal Says It Will Report Him to State Bar for Gender Bias; Attorney Responds That Verbal Assault on Bench Officer Was Warranted Because She Had It Coming
By a MetNews Staff Writer
The Fourth District Court of Appeal has certified for publication a portion of an opinion in which it upbraids an attorney for improper comments in his notice of appeal, and in particular, his likening a San Diego Superior Court commissioner to a mythological female demon with unusual sexual proclivities.
The rebuke also faults the lawyer for ascribing dishonesty to the bench officer, Carmen Luege, without demonstrating an arguable basis for his allegation.
But the target of the court’s criticism told the MetNews that his denigration of Luege was appropriate because she had questioned his integrity.
Div. One’s opinion, filed Thursday, declares:
“[A]s required by the California Code of Judicial Ethics, we are reporting plaintiff’s attorney Benjamin Pavone to the California State Bar for manifesting gender bias. The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”
Acting Presiding Justice Richard D. Fybel noted in the opinion that the 2002 edition of Webster’s Third New International Dictionary also defines “succubus” as “demon, fiend” or “strumpet, whore.”
Pavone’s use of the term “succubustic” in reference to Luege came in a sentence in the notice of appeal that reads:
“The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.”
In referring to pseudohermaphroditism, Pavone appears to be attributing female characteristics to a male defendant in the case—an action for sexual harassment under the California Fair Employment and Housing Act (“FEHA”) in which by Pavone’s client garnered a $8,080 verdict. “Reverse peristalsis” is defined by the online Urban Dictionary as “[a]n inaccurate alternative term for regurgitation or vomiting.”
Fybel expressed an inability to “understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis,’ ” declaring that “many of the words and phrases in the notice of appeal have no place in a court filing.”
The holding in Thursday’s opinion, which appears in the unpublished portion, is that Luege acted within her discretion in denying an award of attorney fees—sought in the amount if $146,634—in light of the meager recovery, which was below the $25,000 minimum in unlimited jurisdiction cases.
Addressing the misconduct, Fybel said that reference to Luege’s ruling as “succubustic” amounts to “a demonstration ‘by words or conduct, bias, prejudice, or harassment based upon...gender’ and thus qualifies as reportable misconduct.”
He relied upon Business and Professions Code §6068(b) provides which includes among an attorney’s duties that of maintaining “the respect due to the courts of justice and judicial officers.”
In a footnote, Fybel observed:
“We note rule 8.4.1 of the California Rules of Professional Conduct prohibits an attorney, in his or her representation of a client, from unlawfully harassing or unlawfully discriminating against persons on the basis of protected characteristics including gender. Plaintiff’s notice of appeal was filed in April 2017, and thus before rule 8.4.1 became effective on November 1, 2018. Had rule 8.4.1 been in effect at the time the notice of appeal was filed, Pavone’s reference to the judicial officer’s ruling as ‘succubustic’ would have constituted a violation of that rule as well as misconduct under section 6068 of the Business and Professions Code.”
The jurist also said:
“The statements in plaintiff’s appellate briefs accusing the trial court of intentionally refusing to follow the law…and the statement in the notice of appeal suggesting the trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review of its decision, also made without any support in the record, constitute reportable misconduct.”
The lawyer, signaling an intent to seek review in the California Supreme Court, told the MetNews that the denial of attorney fees “will be challenged in further proceedings.”
He added that with respect to an examination of his duty to maintain respect to the courts, the inquiry “starts with the court maintaining due respect to the litigants.” Pavone insisted that Luege “drew first blood by impugning my integrity.”
The commissioner had accused him of fabricating a matter, the attorney said, asserting that her allegation was “conclusively disproven,” as reflected by the record. He bemoaned that this asserted vindication was “conveniently not mentioned by the panel’s opinion.”
“It is not reasonable to expect trial judges to unfairly attack the litigant and then expect the litigant to not fight back.”
In denying attorney fees to Pavone, the commissioner relied upon the California Supreme Court’s 2010 opinion in Chavez v. City of Los Angeles. There, the plaintiff in an action under the FEHA attained an award of less than $25,000.
Code of Civil Procedure §1033(a) provides that an award of attorney fees is discretionary where the recovery “could have been rendered in a limited civil case.”
The issue, as posed by the court, was:
“If, as here, a party brings an action under the FEHA that is not brought as a limited civil case and recovers an amount that could have been awarded in a limited civil case, does the trial court have discretion under section 1033(a) to deny that party’s motion for attorney fees?
Reversing a decision of this district’s Court of Appeal, the high court concluded that Los Angeles Superior Court Judge Rolf Treu properly denied attorney fees to the plaintiff in an FEHA action where the recovery was less than $25,000.
“[T]he court notes that plaintiff in this case was spectacularly unsuccessful. The court’s records make clear that plaintiff engaged in fruitless litigation, with many adverse court rulings that underscored the weaknesses in plaintiff’s case. Most of the litigation had nothing to do with the FEHA claim which probably explains why the evidence plaintiff presented at trial in support of the FEHA claim was so sparse. Most of the entries in counsel’s time sheet have nothing to do with this one FEHA claim.”
She went on to say:
“Like in Chavez, plaintiff’s counsel in this case should have determined long before trial that realistically the case was worth no more than $25,000 and should have pursued the case as a civil limited matter.”
There was, Fybel wrote, no abuse of discretion on Luege’s part.
The case is Martinez v. O’Hara, G054840.
In arguing for reversal, Pavone was joined by William Mond of his firm. William M. Hensley and Marc D. Alexander of the Santa Ana firm of AlvaradoSmith represented the defendants, who urged affirmance.
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