C.A. Fines Lawyer $2,000 for Impugning Court’s Integrity
Petition for Rehearing Implies Justices Bowed to Will of Real Estate Development Company, in Vague Language, Associated Members of Panel With Lawyer Thomas V. Girardi
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has imposed a $2,000 contempt fine on a Claremont attorney—$1,000 for accusing the court of being under the domination of The Irvine Company, a major real estate development outfit, and $1,000 for likening the justices to Thomas V. Girardi, a lawyer on involuntary inactive bar status.
The Irvine Company is wholly owned by Donald Bren, said to be the wealthiest real estate developer in the nation, with assets of $16.4 billion. Girardi, a former trial lawyer, is facing multiple allegations, in lawsuits and in abated State Bar proceedings, of cheating clients, on a large scale.
Lawyer Paul M. Mahoney of Mahoney & Soll LLP was adjudged in contempt based on slaps he took at the members of Div. Three in a petition for rehearing filed March 16. Mahoney expressed indignation that the justices, in an unpublished March 2 opinion by Acting Presiding Justice William W. Bedsworth, rejected contentions he had put forth on behalf of a subcontractor that sued a contractor, under Civil Code §8814, for penalties based on late payments.
March 2 Holding
“[W]e decide a subcontractor is not entitled to prompt payment penalties under section 8814 when the trier of fact decides it has not completed the work,” Bedsworth said in that opinion.
In seeking a rehearing, Mahoney intimated that the contractor prevailed based on contacts with a third party—understood to be the Irvine Company—“who...wields a lot of legal and political clout in Orange County.”
After being ordered to show cause re contempt, Mahoney said he had merely “mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple.”
The lawyer also said in the March 17 petition:
“Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi.”
The opinion declaring Mahoney to be in contempt was filed Thursday and made public on Friday. Although it is a “By the Court” opinion, the writing style is that of Bedsworth.
In the petition for rehearing, the opinion says, Mahoney “cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one,” adding:
“Instead he filed nine pages of text that more closely resembled a rant than a petition.”
The insinuation in the petition of subservience to The Irvine Company and the follow-up barb, the opinion sets forth, “would serve as a perfect exemplar in any law school class in which the instructor was attempting to illustrate the phrase ‘impugn the integrity of the court.’ ”
“Nor can we find any other way to interpret his comparison of the courts in this case to Los Angeles Attorney Thomas Girardi—whose alleged transgressions have received a great deal of media attention of late—than as an insult to the integrity of the court.”
Pointing to “the muddled language” of the passage, the opinion says:
“We tried to figure out whether he was saying that we were indistinguishable from Girardi and his ilk or that we ignored conduct such as his, but finally abandoned the effort because either one was contemptuous.”
This advice to appellate lawyers is provided:
“If you think the court is wrong, don’t hesitate to say so. Explain the error. Analyze the cases the court relied upon and delineate its mistake. Do so forcefully. Do so con brio; do so with zeal, with passion. We in the appellate courts will respect your efforts and understand your ardor. Sometimes we will agree with you. That’s why you file a petition for rehearing—because they are sometimes granted.
“But don’t expect to get anywhere—except the reported decisions—with jeremiads about ‘society going down the tubes’ and courts whose decisions are based not on a reading of the law but on their general corruption and openness to political influence.”
A footnote observes: “Our District Courts of Appeal are not especially thin-skinned.” It says that the 2005 decision in In re Koven “was the only published decision we could find of this type, and inquiries to other Courts of Appeal turned up no unpublished cases,” remarking:
“Thankfully, this does not come up much.”
In the Koven decision, attorney Debra L. Koven was, like Mahoney, ordered to pay two $1,000 contempt fines. Her remarks concerning justices of Div. Six of this district’s Court of Appeal included an allegation that two of them refused to recuse themselves because “the fix was in.”
That panel directed the clerk to send a copy of the opinion to the State Bar, as did the court in Mahoney’s matter.
Koven expressed remorse and was placed on probation by the State Bar, with no actual suspension.
Last week’s opinion from the Orange County-based panel relates that Mahoney did not “recant at the hearing” on the order to show cause, reporting:
“We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it.
“The result is that we cannot even say, as did the Koven court, ‘We accept Koven’s apology. Nevertheless, we do not purge Koven of the contempts....’….Unlike the Koven court…, we are confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument.
“We do not….This kind of over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop.”
The case is In re Mahoney, 2021 S.O.S. 2539.
Mahoney said Friday:
“I obviously disagree with the Court of Appeal, but as you know lawyers don’t have rights of free speech.”
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