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Court of Appeal:
No Comment on Axing of Suit Based on Lawyer Misconduct
Although Judge Cowan Did Hold That Client Need Not Have Complicity in Shenanigans for Dismissal to
Be Appropriate Sanction, Justice Helen I. Bendix’s Opinion Points Out That His Ruling Did Not Exonerate Client
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the action of one judge in dismissing a lawsuit based on the plaintiff’s lawyer having gained the disqualification of another judge through subterfuge, with the appeals court neither rejecting nor embracing the rationale expressed in the order terminating the lawsuit that imposing the ultimate sanction was justified even if the client had not ratified her attorney’s misconduct.
Although Los Angeles Superior Court Judge David J. Cowan broadly proclaimed that it did not matter whether plaintiff Erina Gilerman participated in or approved of the trickery of her then-lawyer, Yevgeniya “Gina” Lisitsa, Monday’s unpublished opinion by Justice Helen I. Bendix of Div. One does not express a view on the correctness of Cowan’s perception. Rather, it points to indications that Gilderman did have knowledge.
Gilerman sued PLM Loan Management Services, Inc. and others seeking to set aside a trustee sale; Los Angeles Superior Court Judge Stephanie Bowick made two rulings adverse to Gilerman; Lisitsa filed a second amended complaint naming a new defendant, Illana Behrend, who was said to be “PLM’s Southern California agent”; Behrend filed a peremptory challenge to Bowick; she accepted the challenge and was out of the picture. In truth, Behrend had no connection to PLM.
OSC Issued
When the chicanery came to light, Cowan ordered that Gilerman show cause why her action should not be dismissed. At an April 15, 2021 hearing on that order, Gilerman was represented by new counsel who claimed that any inquiry as to why Lisitsa added Behrend as a defendant was barred by the attorney work product privilege.
Cowan determined that Behrend had been a sham defendant and that a fraud had been perpetrated on the court, requiring dismissal. The minute order sets forth:
“An attorney is an agent of the client….An attorney’s actions in handling a case must necessarily be imputed to the client, with certain exceptions such as waiver of a right to a jury….However, making the tactical decision of adding a defendant to thereby challenge a judge is something for which the client will be responsible….
“Here, Gilerman ‘voluntarily chose this attorney as [her] representative in the action, and [s]he cannot now avoid the consequences of the acts or omissions of this freely selected agent,’ at least in tactical matters….There is…no evidence here in response to the OSC that Gilerman herself did not approve or ratify her attorneys’ actions….Indeed, Gilerman verified the second amended complaint.”
Ratification Not Necessary
The minute order continues:
“[W]ithout resolving the factual issue of whether Gilerman was herself involved in the decision to add Behrend for purposes of filing a peremptory challenge to Judge Bowick, the Court finds the weight of unrebutted evidence shows that tactical decision was in any event carried out by Gilerman’s counsel and is therefore attributable to her under well-established authority, whether or not she ratified those acts.”
Gilerman appealed, arguing that “dismissal of a litigant’s action for attorney error is inappropriate.”
She quoted the Court of Appeal for this district as saying in the May 9, 2007 opinion in Del Junco v. Hufnagel that the power to dismiss an action based on misconduct should be limited to “extreme situations, such as when…the fault lies with the client and not the attorney.”
Gilerman Not Blameless
Bendix wrote:
“Assuming arguendo a dismissal sanction is inappropriate when the attorney, rather than the client, is at fault, we do not read the trial court’s ruling as finding Gilerman blameless. It is true the trial court did not conclusively determine the extent of Gilerman’s involvement in the fraud, stating that it reached its ruling ‘without resolving the factual issue of whether Gilerman was herself involved in the decision,’ because the acts of Gilerman’s counsel were ‘attributable to’ Gilerman ‘whether or not she ratified those acts.’
“This, however, was not the full extent of the trial court’s findings. The trial court also noted that Gilerman verified the second amended complaint, and when confronted with evidence the complaint she had verified contained a sham defendant, presented no evidence or explanation to exonerate herself.”
She added:
“The court had before it strong evidence of a fraud on the court, and Gilerman’s failure to respond to that evidence made it impossible for the court to determine whether Gilerman herself was culpable or only her counsel was. We agree with the trial court when it stated, ‘Only by dismissal will the Court ensure that its process is not abused.’ ”
Addressing the contention as to the work product privilege, Bendix said:
“We agree with the trial court that once a pleading is filed, the court does not infringe on attorney work product by inquiring into the factual basis of the pleading’s allegations, which would have been subject to discovery in any event.”
The case is Gilerman v. Redwood Mortgage Investors VIII, B314764.
Copyright 2023, Metropolitan News Company