Metropolitan News-Enterprise


Tuesday, July 9, 2019


Page 1


Court of Appeal:

Sanction Based on Action of Former Counsel Is Invalid

Opinion by Moor Countermands Order by Former Superior Court Colleague Raphael, Now Himself a Justice, in Monetarily Punishing a Lawyer for Frivolousness of a Complaint He Didn’t File


By a MetNews Staff Writer


An attorney who replaced other lawyers in a case and was socked with a $16,000 sanction based on the frivolousness of the complaint filed by his predecessors has won a reversal by the Court of Appeal of the sanction order.

One relatively new justice wrote the opinion reversing another not-long-ago appointee to the state’s intermediate appellate court. Justice Carl H. Moor, named by then-Gov. Jerry Brown to this district’s Div. Five on Feb. 27, 2018, countermanded his former Los Angeles Superior Court colleague, Michael J. Raphael, who, while a member of the trial bench in 2017, imposed the sanction on attorney Marc Libarle.

Brown selected Raphael for Division Two of the Fourth District Court of Appeal on July 24, 2018.

Underlying Facts

Libarle on Sept. 28, 2016, filed a declaration with the court saying that he had been hired to represent plaintiff Primo Hospitality Group, Inc. in a lawsuit for professional malpractice but was unable to attend a hearing in the case scheduled for the following day. He had not yet filed a substitution of attorney form.

On Sept. 29, he was served with a motion for sanctions under Code of Civil Procedure §128.7 based solely on the infirmity of the complaint. That section, in part, renders an attorney subject to sanctions for signing his or her name to a meritless complaint, providing a 21-day “safe harbor” within which the offending pleading may be withdrawn, immunizing the lawyer from sanctions if it is.

Sec. 128.7 also provides that “maintaining” a frivolous action is sanctionable.

The lawyer was sanctioned based on Raphael’s view that the complaint should not have been brought against attorney John Torbett and others and that the litigation should not have been continued. Raphael declared at a hearing on May 17, 2017, that “no reasonable attorney would have brought or maintained this lawsuit believing it to be meritorious.”

Moor’s Opinion

Moor wrote:

“The motion for sanctions was based solely on the complaint, so sanctions could not be awarded unless Libarle had presented the complaint to the court prior to service of the motion. We agree that Libarle’s filing of a declaration simply notifying the court of a change in counsel did not constitute presentation of the complaint to the court. There is no evidence that Libarle presented the complaint to the court before Torbett served the motion for sanctions, and therefore, service of the motion was premature and sanctions had to be denied.”

He went on to say:

“When Torbett served the motion for sanctions on September 29, 2016, Libarle’s only conduct in the case had been to file a single declaration, in which Libarle’s only statements about the case were that he had been ‘retained to represent the plaintiffs’…The declaration does not submit Primo’s claims to the court or advocate any of the claims. In fact, a few weeks after the declaration was filed, the trial court made a finding that Primo was still technically self-represented. We conclude that at the time Libarle was served with the motion for sanctions, Libarle had not presented any of the objectionable claims in the complaint to the court, whether by signing, filing, submitting or further advocating the claims, so he could not be held liable for sanctions under section 128.7 based on the notice of motion that was served. Indeed, as the trial court expressly found, Libarle was not even counsel of record at the time the notice was served, rendering the notice that he had 21 days from that point to dismiss the case premature.”

New Motion Required

Moor said that if renouncement of filings by Libarle subsequent to the filing of the complaint by his predecessor counsel had been desired, a new motion would have been required. He set forth:

“Libarle may have presented Primo’s claims to the court through his subsequent conduct in the proceedings, such as in opposition to the summary judgment motions, but the motion for sanctions that was served in September 2016 did not provide notice of specific conduct that violated the statute along with a safe harbor period to withdraw or correct the pleadings.”

He declared:

“To seek sanctions for conduct taken after the date of the motion served on Libarle, the respondents were obligated to serve a new motion describing the sanctionable conduct to afford Libarle notice and the safe harbor period under the statute.”

Federal Court Rule

Sec. 128.7 was based on Federal Rules of Civil Procedure, rule 11. The respondents cited the Eleventh U.S. Circuit Court of Appeals’s 1996 decision in Turner v. Sungard Business Systems, Inc.

There, the appeals court affirmed a sanction imposed on Alabama attorney Henry Penick who, like Linarle, took over representation in a case.

A judge of the District Court for the Northern District of Alabama, in imposing a sanction, held that “from the moment he appeared on the plaintiff’s behalf,” Penick “had actual knowledge that there was no merit to the plaintiff’s assertions, or, at the very least, he consciously decided not to inquire of the merits.”

The federal appeals court said:

“That the only ‘paper’ Penick signed and submitted to the court in prosecuting Plaintiff’s claim was the notice of appearance is unimportant. By appearing in this case, Penick affirmed to the court that the case had arguable merit. In this sense, it was as if Penick had refiled the complaint.”

Moor distinguished that case, saying that “the attorney sanctioned in Turner not only filed a notice of appearance but presented meritless claims to the court during the pretrial conference.” He noted that “Turner did not present the same issues of inadequate notice as present here: in Turner, the sanctions were imposed pursuant to an order to show cause set by the court, nor a defective notice served by opposing counsel.”

The jurist added, however, that “[t]o the extent that a portion of the discussion in Turner, read in isolation, implies that simply filing a notice of appearance in a meritless case is sufficient to violate rule 11, we disagree” and said it was “inconsistent with the plain meaning” of the California statute.

The case is Primo Hospitality Group, Inc. v. Haney, 2019 S.O.S, 3238.

Libarle represented himself. Robert H. Stellwagen, David C. Moore, and Joshua A. Cohen of the Pasadena law firm of Collins Collins Muir & Stewart acted for Torbett.


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