Thursday, May 7, 2020
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Court of Appeal Imposes $1,100 Sanction On Attorney Citing Unpublished Case
By a MetNews Staff Writer
The Court of Appeal for this district has imposed a $1,100 sanction on an attorney who, in his opening brief, proclaimed that the rule against citing decisions that are not certified for publication is unconstitutional, then proceeded to cite such a case, and cited another one in his reply brief.
Justice Lamar Baker of Div. Five wrote the unpublished opinion, filed Tuesday. It affirms Los Angeles Superior Court Judge William F. Fahey’s award of $21,870.09 in attorney fees against Pasadena attorney Meir J. Westreich and his wife, Maria Ruiz.
In announcing the imposition of “modest sanctions” against Westreich, Baker noted that under California Rules of Court, rule 8.1115, decisions that are not certified for publication may not, except in narrow circumstances, be cited, and said that the lawyer’s First Amendment challenge to that rule has been rebuffed in previous cases. He wrote:
“In addition to wrongly—but properly—arguing Rule 8.1115 is unconstitutional, plaintiffs’ opening brief—improperly—goes further. It cites an unpublished decision as purported support for the argument that the trial court erred in declining to apportion the attorney fees award as plaintiffs desired.”
Respondents’ Brief
Baker pointed out that the respondents—Randall and Janice Higa—drew attention in their reply brief to the 1990 Court of Appeal decision in Alicia T. v. County of Los Angeles. There, then-Presiding Justice Joan Dempsey Klein of this district’s Div. Three (now retired) said that “[c]ounsel’s refusal to desist in the citation of an opinion ordered not to be published and failure to address controlling published authority merits” sanctions.
“Unchastened, plaintiffs’ reply brief not only cites the same unpublished decision again, but also cites yet another unpublished case,” Baker said, declaring:
“Having disregarded the warnings both in published precedent and from defendants in their brief in this case, we conclude sanctions in the amount of $1,100 are necessary to remedy an unreasonable violation of the Rules of Court and deter future noncompliance.”
Property Line Dispute
Litigation between the parties goes back to an action filed by Westreich and Ruiz on July 17, 2012, against their next-door neighbors, the Higas, over a boundary dispute.
While the action to quiet title was pending, Westreich and Ruiz filed a second suit against the Higas, on April 14, 2015, alleging breach of privacy rights, retaliation for exercising their rights of free speech and petition, intentional infliction of emotional distress, negligent infliction of emotional distress, and trespass.
In that second action, Fahey on Oct. 8, 2015, granted the defendants’ anti-SLAPP motion, awarding them $41,207.76 in attorney fees and costs under the mandatory-award provision of the governing statute. On Jan. 26, 2016, he denied a motion for reconsideration.
2018 Decision
Div. Five of this district’s Court of Appeal on April 16, 2018, in an opinion by then-Orange Superior Court Judge Kim Dunning (now retired), sitting on assignment, dismissed an appeal from the granting of the anti-SLAPP motion and award of fees, holding that the appeal was untimely. (Her opinion also upheld the award of a judgment by Los Angeles Superior Court Judge Holly E. Kendig for the Higas in the quiet-title action.)
Dunning’s opinion declared that the Higas would receive their costs on appeal.
Fahey made his Sept. 5, 2018 award based on work that lawyers for the Higas did in opposing the motion for reconsideration and on the appeal from his granting of the anti-SLAPP motion. Westreich and Ruiz then appealed from the latest order, with Westreich representing his wife and himself.
Argument on Appeal
He argued that Fahey should only have awarded fees on appeal to the extent the defendants’ lawyers argued that the appeal was untimely—and that they should simply have filed a motion to dismiss rather than a brief.
Baker said in Tuesday’s opinion that Westreich was not entitled to have his contentions addressed having failed to provide a transcript of the Sept. 5, 2018 hearing before Fahey or a settled or agreed statement. He addressed them, anyway, saying:
“Here, the trial court was not obliged to apportion defendants’ attorney fees because at each step defendants were completely successful, not partially successful. The trial court granted defendants’ anti-SLAPP motion as to all of plaintiffs’ causes of action. In Westreich I, defendants succeeded in getting the anti-SLAPP portion of the consolidated appeal dismissed in its entirety. That is an unqualified win….
“Plaintiffs’ Monday morning quarterback argument to the contrary is unpersuasive. With hindsight, and taking the result in Westreich I as a given, a motion to dismiss plaintiffs’ anti- SLAPP appeal would have likely succeeded. But defendants could not be sure of that at the time they filed their consolidated respondents’ brief (even if they had then noticed the untimeliness problem), and defendants reasonably chose to make a full response on the merits. There is nothing in the record that suggests defendants made a tactical election in bad faith merely to pad their legal bills. The trial court did not exceed the bounds of its discretion in determining defendants were entitled to their full costs—including all attorney fees incurred as a result of plaintiffs’ unsuccessful anti-SLAPP appeal.”
The case is Westreich v. Higa, B293726.
Shoddy Pleading
The Ninth U.S. Circuit Court of Appeals on Aug. 23, 2018, reversed the dismissal with prejudice of an action by an art collector who claimed he was cheated out of more than $2 million by sellers of works that were either forged or overstated as to their value.
A panel said, in a memorandum opinion, that District Court Judge Manuel Real of the Central District of California (since deceased) was correct in dismissing the second amended complaint, prepared by Westreich, because he found it was “seriously deficient.” However, the panel said, Real abused his discretion in denying leave to amend.
When Westreich addressed the court at oral argument on Aug. 7, 2018, Circuit Judge Josephine Nguyen termed the second amended complaint “very difficult to understand, very confusing…very, very tediously long” and Circuit Judge M. Margaret McKeown characterized it as a “rambling complaint.”
The State Bar issued a public reproval to Westreich in 1998 based on dismissing an action without his client’s consent. In 2003, it suspended him for six months, with the suspension stayed, and placed him on one year of probation, based on his failure to comply with three of four probation conditions imposed in 1998.
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