Metropolitan News-Enterprise

 

Thursday, August 25, 2021

 

Page 3

 

C.A. Evinces Impatience With Antics of Lawyer Albert

 

By a MetNews Staff Writer

 

Div. Three of the Fourth District Court of Appeal has indicated that it’s fed up with the shenanigans of attorney/litigant Lenore Albert, imposing a $2,500 sanction on her for “her pervasive violations of the California Rules of Court relating to the contents of briefs and appendices,” and reporting her to the State Bar for possible disciplinary action.

The controversial lawyer and former political candidate, who has previously been suspended from law practice, is presently facing disciplinary charges in four cases.

Acting Presiding Justice William W. Bedsworth authored the opinion, which was filed Tuesday and not certified for publication. It affirms a March 4, 2020 order by Orange Superior Court Judge Layne H. Melzer granting a nonsuit on Albert’s cause of action against Westlake Village attorney David Seal for defamation and his May 27, 2020 order denying her motion to vacate a jury’s verdict in Seal’s favor on her claim of intentional infliction of emotional distress.

An exasperated Bedsworth said, in examining Albert’s conduct:

“In this appeal, Albert has filed a 6,000-page appendix, a 65-page opening brief, a motion to augment the record, with exhibits, and a request for judicial notice, with exhibits. A large portion of the appendix consists of copies of ‘trial exhibits,’ exhibits purportedly included on the pretrial exhibit list. Although Albert’s briefs do not indicate whether these exhibits were offered into evidence, she repeatedly uses them as ‘citations to the record’ supporting her factual claims of conspiracy. That is, when she cites to the record at all, instead of simply making things up. Much of both the opening brief and the reply brief is devoted to an argument that tort liability can be based on statements made in a document filed with the court, as if the contrary rule was not one of the most firmly established principles of California law.”

Previous Admonitions

Bedsworth continued:

“Albert is no stranger to the appeal process, having represented herself in some 12 appeals in this court alone. We have in the past articulated principles of appellate law and practice in the opinions in quite a few of these cases and admonished her for failing to follow these principles, but to no avail. This is a busy court, with many calls on its resources. Appellants with legitimate issues must wait to have them resolved while we deal with briefing replete with misrepresentations of the record and violations of basic rules of appellate practice, such as Albert has placed before us.”

The justice noted that when the court notified Albert that it was considering imposing sanctions, she responded with a 120-page brief.

Vigilance on the part of the trial judge, Orange Superior Court Judge Layne H. Melzer, “prevented the trial from becoming a free-for-all, in which Albert could introduce evidence of anything anyone had ever said or done that offended her, regardless of relevance to the allegations against Seal,” Bedsworth said, lamenting:

“Unfortunately for us, there is no similar protection for appellate briefs.”

He chronicled various gaffes by Albert in the appeals court, as well as “instances of fabricated ‘facts’ ” in her briefs, and commented:

“[S]he has been repeatedly taken to task in prior appeals for her disregard of established principles of appellate practice. In the last of these appeals, we specifically mentioned the eligibility of her conduct for sanctions. The time has come to demonstrate that the California Rules of Court are not mere suggestions and that violating them has consequences.”

Anti-SLAPP Motion

Albert brought her action against multiple defendants. Seal and two other defendants who are members of the State Bar— Mitchell B. Hannah and Devin R. Lucas—responded with an anti-SLAPP motion, which then-Orange Superior Court Judge Geoffrey T. Glass, now retired, granted in its entirety as to Hannah and Lucas.

A March 6, 2018 unpublished opinion by Bedsworth pointed out what Albert apparently missed: that Glass’s ruling did not wipe out her cause of action for emotional distress but limited it to harm ensuing from nine specific acts she alleged on Seal’s part. The opinion affirmed the ruling as to Hannah and Lucas.

It gave the go-ahead to a trial on Albert’s allegations of defamation, holding that the motion had erroneously been granted by Glass on that cause of action. Albert’s averment that Seal had disseminated an accusation that she “was having sex with various people and her dog,” Bedsworth said, survives a special motion to dismiss.

In Tuesday’s decision, Bedsworth said that Albert “does not direct us to even a ‘scintilla’ of admitted evidence that Seal ever defamed her,” noting that there was no evidence adduced as to any statements by him as to her sex life, only a reference to her having a “boyfriend.”

Barred Evidence

As to evidence that was barred, Albert insisted that liability can be founded on allegations Seal made in a declaration in support of a temporary restraining order against her. Bedsworth responded:

“Albert’s argument founders on the litigation privilege of Civil Code section 47, subdivision (b), which is absolute as it applies to tort liability, except for malicious prosecution. A party cannot be sued for defamation (or other torts) based on statements made in a pleading filed with the court.”

He set forth:

“The nonsuit ruling is unassailable.”

Bedsworth also saw no basis for Melzer rejecting the jury’s verdict and ordering a new trial, explaining that Albert sought to have Seal held liable for acts allegedly causing her emotional distress on the part of persons purportedly acting in league with Seal without producing any evidence of the defendant’s link with those persons.

The case is Albert v. Seal, G059136.

State Bar Proceedings

Disciplinary charges are pending against Albert in four cases brought against her by the State Bar Office of Trial Counsel. The latest accusation was filed on April 29.

It is alleged in that filing that while on suspension from the State Bar of California—from Feb. 14, 2018 until April 21, 2021—she represented clients in the U.S. District Court for the Eastern District of California notwithstanding its rule that only active members of the State Bar could practice before it, failing to advise that court of her status, and practicing without a license.

Other allegations in the cases relate to failings to account to clients as to funds, failing to pay restitution that was ordered, and snubbing a July 10, 2019 order by the California Superior Court to make reports of compliance with probationary conditions.

Albert contended in the Bankruptcy Court for the Central District of California that the stay issued by that court precluded enforcement of the requirement of submitting reports. That court rejected that view, saying:

“The probationary reports do not fall within the category of ‘an act to collect, recover or offset’ a discharged debt….Rather, as correctly noted by the State Bar, these documents serve a regulatory purpose in assessing compliance with conditions of probation, regardless of Albert’s payment of the debts at issue.”

Albert—an unsuccessful candidate for the state Assembly in 2016, for Orange County district attorney in 2018, and for the chairmanship of the state Democratic Party in 2019—on June 10, 2020, won a decision in the Ninth U.S. Circuit Court of Appeals that reinstatement of her State Bar license could not be conditioned on her payment of $5,738 in court-ordered discovery sanctions, a debt discharged in bankruptcy. However, the court, said that “her $18,714 debt to the State Bar” based on the reasonable costs of its investigation of her “is non-dischargeable.”

 

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