Judge Erred in Allowing Claim Based on Actions by Non-Party

Wednesday, October 29, 2025

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Court of Appeal:

Judge Erred in Allowing Claim Based on Actions by Non-Party

Opinion Says Cross-Plaintiff Was Improperly Permitted to Present Emotional Distress Claim Based on Conduct Committed by Cross-Defendant’s Spouse Who Was Not Named in Suit

By Kimber Cooley, associate editor

Div. Two of this district’s Court of Appeal has held that a Los Angeles Superior Court Judge erred in allowing a party to try an emotional distress claim based on a theory that the cross-defendant’s husband—an attorney who represented his wife at the civil trial and during related criminal proceedings—used his access to the legal system to harass and threaten the cross-plaintiff.

Reasoning that the cross-plaintiff could have asked to amend the cross-complaint to assert claims against both spouses, the court concluded that Los Angeles Superior Court Judge James E. Blancarte erred in allowing her to argue at trial that the cross-defendant was liable for intentional infliction of emotional distress by acting in concert with her non-party husband to harass, threaten, and file meritless claims when the allegations were not alleged in the pleading.

Presiding Justice Elwood Lui authored Monday’s unpublished opinion, joined in by Justices Victoria M. Chavez and Anne Richardson, which also accuses the attorneys on both sides of incivility and describes the case as “overzealous litigation” concerning “a dispute over a parking space that unfortunately made its way into a courtroom.”

Those attorneys are Robert H. Bisno of the Los Angeles-based Law Offices of Robert H. Bisno, acting for his wife Jeanette Bisno, as well as Anthony Willoughby and Anthony Willoughby II of the Century City firm Willoughby & Associates, who represented the cross-plaintiff Katherine Keller.

Parking Space Dispute

The litigation arose after Keller and Jeanette Bisno were each hunting for an open parking space inside a Beverly Hills structure on Dec. 13, 2018. When Keller exited her car, Jeanette Bisno approached her to demand that she exit the spot, knocked a cup of coffee from her hands, and pushed her.

Police cited and released Jeanette Bisno on misdemeanor battery charges, and she pled no contest to simple assault on Oct. 29, 2019.

On Dec. 20, 2018, Jeanette Bisno—represented by her husband Robert Bisno, who also acted for her in the criminal matter—filed a complaint against “Doe” parties for assault, battery, intentional infliction of emotional distress, among other claims. After she was arraigned on the criminal matter, she amended the civil pleading to substitute Keller as a defendant.

In June 2019, Keller filed a cross-complaint against Bisno alleging causes of action including assault, battery, and intentional infliction of emotional distress. On Dec. 4, 2020, Jeanette Bisno requested that her complaint against Keller be dismissed without prejudice.

Trial Commenced

Trial on the cross-complaint began on August 7, 2023, but before the matter was presented to the jury, Jeanette Bisno filed a motion in limine to prevent Keller from referring to any matters beyond those relevant to the causes of action asserted in the cross-complaint. Blancarte granted the request.

Anthony Willoughby told the jury in his opening statement that Robert Bisno used his representation of his wife on the criminal matter to improperly obtain Keller’s “confidential and privileged” identifying information in order to name her in the civil complaint and harass her. He said that “they utilized her husband’s access to the legal system to try to ruin my client.”

Over Robert Bisno’s objection, Keller was permitted to testify that the attorney had called her “ten times” in March 2019 to “harass” and “threaten” her. During closing argument, Anthony Willoughby again asserted that the Bisnos “acted in concert, just like they acted in concert in this trial.”

The jury found for Keller on all causes of action, awarding her $9,500 for past medical expenses, $855 for future healthcare costs, and general damages of $28,900 for noneconomic pain and suffering as well as $154,000 in punitive damages.

Scope of Issues

Saying that Blancarte “should have adhered to [his] ruling” on the motion in limine, Lui noted that “[t]he scope of the issues to be decided by the jury must be measured by the scope of the pleadings.” He opined:

“Keller’s cross-complaint named Bisno alone as a cross defendant. Keller’s intentional infliction of emotion distress cause of action expressly rested on Bisno’s ‘outrageous’ assaultive conduct. As discussed, Keller’s trial theory was both Bisno and Attorney Bisno were liable for intentional infliction of emotional distress by acting in concert to harass, threaten, and file a lawsuit ‘without cause’ against her. Because this new theory of liability was not pleaded, the issues it raised were outside the scope of the cross-complaint and any supporting evidence should have been excluded.”

He continued:

“Keller did not seek to amend her cross-complaint before or during trial to name Attorney Bisno or to assert additional facts supporting her new theory of emotional distress liability. Nor did Keller request at the conclusion of trial to amend her cross-complaint to conform to the admitted evidence. Absent an amendment to the cross-complaint, Keller’s new theory of liability against the Bisnos could not serve as a basis for recovery.”

Emotional Distress Claim

Addressing whether the jury’s finding on the emotional distress claim could be supported based only on the parking lot assault, he opined:

“The evidence at trial showed Bisno’s assaultive behavior was certainly intentional and outrageous. Keller reasonably was greatly disturbed by the parking space dispute. However, Keller did not produce sufficient evidence that Bisno’s conduct actually and proximately caused her to suffer severe emotional distress— such that it was enduring and substantial—to justify an award of damages on the claim.”

As to the punitive damages award, he said that Keller “failed to meet her burden to prove [Jeaneatte] Bisno’s ability to pay punitive damages,” saying Anthony Willoughby’s assertions that she drove a “$200,000 car” and owned a “$30 million house” were countered by the cross-plaintiffs uncontroverted testimony that she had lost one home to foreclosure in 2009 and another residence was in foreclosure at the time of trial.

Lui declared:

“We affirm the judgment against Bisno for assault and battery and Keller’s $10,355 award of special damages for economic loss. However, we reverse the judgment in favor of Keller for intentional infliction of emotional distress and her $28,900 award of general damages for noneconomic loss….We also reverse Keller’s $154,000 punitive damages award for insufficient evidence of Bisno’s ability to pay and improper argument by Keller’s counsel.”

Attorney Comments

MetNews reached out to Anthony Willoughby and Robert Bisno for comment relating to the court’s characterization of their behavior as lacking civility. At the time of publication, only Robert Bisno responded.

He called the court’s observation “correct” and remarked:

“My office seeks professional relations with all opposing counsel.

“In the vast majority of my litigation and the drafting of documents, I achieve that.

“In the almost 47 years I have been in practice, the Willoughbys (father and son) [seem] to practice a different type of law.

“It was my experience that they did not seek professional relations.

“For example, a meet and confer email seeking a simple stipulation for extension to file a brief, as almost any attorney will grant, went unreturned.”

The case is Keller v. Bisno, B334054.

Willoughby & Associates and Robert Bisno continued to act for their clients on appeal. Anthony Willoughby was ordered publicly reproved by the State Bar Court in 2016 for failing to disclose a potential conflict in writing after having faced prior discipline for similar conduct more than twenty years earlier.