Court of Appeal:
Three of Four Counts Stricken, However, Because Lawyer’s Misbehavior at MSC Was a Single, Continuous Course of Conduct; Opinion Says There Was No Authority for Awarding Attorney Fees to the Other Side
By a MetNews Staff Writer
A lawyer can be held in civil contempt for accusing opposing counsel, during a mandatory settlement conference, of lying, without specifying what specific utterance was untruthful, Div. Three of the Fourth District Court of Appeal has held.
It expressed its views in an opinion that winnows four counts of indirect contempt—based on conduct not committed in the immediate view of the judge—to one count, because there was a single course of conduct. The opinion also lifts an order to pay attorney fees and costs to the other side as a sanction because the contemnor’s conduct did not involve a breach of a court order, and therefore did not meet the statutory requisite for a fee-shifting.
Justice Thomas M. Goethals wrote the opinion, filed Monday. In response to a petition for review filed by veteran Pasadena attorney Kevin Moore, the contempt fine imposed on him by Orange Superior Court Judge Jacki C. Brown was lowered from $3,600—based on four counts—to $900, predicated on a single violation.
The contempt adjudication on one of the four counts, Goethals said, was invalid because Moore had not been apprised prior to the hearing conducted by Brown that the specific conduct was alleged as a contempt. The other three counts, he pointed out, all stemmed from the lawyer’s course of conduct at a mandatory settlement conference before a lawyer, acting as a pro tem judge, which entailed rudeness and obstreperousness on Moore’s part, and constituted a unitary offense.
Goethals explained that Moore’s conduct took the form of “a continuous insult to the dignity and process of the court that continued throughout the 15-minute course of the settlement conference,” adding that “[i]t was the totality of Moore’s misconduct that undermined the conference and supports a finding of contempt,” but only a single count.
Allegation of Lying
Addressing one of the counts—the allegation voiced by Moore during the MSC that his opposing counsel, David Parnall of the Contra Costa law firm of Hartog, Baer & Hand, was lying—Goethals said:
“The contempt conviction in count two was based on Moore brazenly accusing opposing counsel Parnall of ‘lying’ without identifying any lie. A lawyer’s core function includes demonstrating through evidence and argument that an opponent’s statements are inaccurate, incomplete, or misleading. That function is never properly discharged through name calling or by hurling insults.”
“Interrupting an opponent’s presentation to loudly proclaim that opponent is ‘lying’ or is a ‘liar’ undermines the legal process. This sort of tactic is inappropriate in a courtroom and is objectively disrespectful of our system of justice….In a word, it is contemptuous.”
Invalid Theory Alleged
Moore was representing the trustee of a trust fund; the principal beneficiary of that fund was still alive; the trustee resisted the creation of a lien on potential interests in the fund by a man from whom his ex-wife—Parnall’s client—was seeking child support payments. There was no legal support, Moore maintained, for encumbering a trust in favor of a creditor of a contingent beneficiary.
“A legal theory may be wrong, but proposing a legal theory in good faith is not a lie, and its proponent is not a liar. Rather than engaging in appropriate advocacy on behalf of his client, Moore was loud, rude, and obnoxious throughout the brief MSC, which undermined the ability of the settlement officer to proceed in a professional manner. Moore elected to act like a bully to further his client’s interest. He attempts to justify this conduct as an appropriate adversarial ‘tactic.’ Moore is wrong. Such conduct has no place in any courtroom. It is contemptuous.”
Brown awarded attorney fees and costs to the ex-wife based on Code of Civil Procedure §1218(a) which provides that “a person who is subject to a court order as a party to the action…who is adjudged guilty of contempt for violating [a] court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.”
Goethals opinion invalidates that award, explaining:
“The contempt convictions at issue were not based on Moore’s violation of a court order. They were based on Moore’s abusive and unprofessional conduct during the MSC. The only court order mentioned in the contempt proceedings was one requiring the preparation of a mandatory settlement conference statement, but Moore was not held in contempt for the failure to comply with that order.
“So this is the issue: can a court award attorney fees and costs under section 1218, subdivision (a), when the contempt at issue is not for violating a court order? We conclude the answer to that question is no.”
Moore pointed out that the California Supreme Court said in the 2000 case of Boysaw v. Superior Court that “[w]hen an order of contempt is based on the tone of voice used by the alleged contemnor, the order must recite that he was warned his tone of voice was objectionable.” He received no warning from the settlement officer, Moore said.
Goethals responded that although Moore “was not specifically warned to desist upon pain of contempt proceedings,” both the settlement officer, Roy C. Zukerman, and Parnell “requested that Moore cease his behavior and extended every opportunity to move past Moore’s misconduct,” yet his “behavior continued unabated.”
The jurist declared:
“No explicit contempt warning was required to punish Moore for a single count of indirect contempt under the circumstances of this case.”
Moore said, in response to an inquiry:
“While I do not agree with the court’s conclusion that I acted in bad faith at the MSC, I do regret and apologize for some of the language that I used and its tone. I have been a lawyer for more than 30 years without any disciplinary action taken against me.”
He added that he is “grateful that the appellate court in its legal analysis recognized that the trial court overreached and annulled 3 of the 4 contempt charges and the award of attorney’s fees and costs.”
The case is Moore v. Superior Court, 2020 S.O.S. 5450.
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