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Jurist Accuses Beverly Hills Firm of ‘Vexatious’ Litigation
Senior Circuit Judge Pens Ninth Circuit Concurring Opinion Arguing That Plaintiff’s Attorneys, Who Missed Filing Cut-Off Date by One Day, Pursued Appeal of Denial of Relief From Dismissal of Action in Bad Faith
By Kimber Cooley, associate editor
A visiting jurist on the Ninth U.S. Circuit Court of Appeals yesterday asserted in a concurring opinion that a plaintiff’s lawyers, who filed their client’s wrongful death complaint one day too late, engaged in vexatious litigation by pursuing an appeal of an order denying relief from a dismissal based on their “excusable neglect” in allegedly miscalculating the statute of limitations.
Senior Federal Circuit Judge Evan J. Wallach, sitting by designation, agreed with a memorandum opinion affirming the denial, but wrote separately to accuse the attorneys of having pursued “vexatious proceeding for relief from…dismissal in a shifting story filled with contradictions and disingenuous excuses” and said that their arguments “are so frivolous and vexatious that they demonstrate bad faith.”
He argued that four lawyers associated with the Beverly Hills law firm of DRE LAW A.P.C.—Antonio Castillo, Darren M. Richie, Tory Pankopf, and Kaeleen Kosmo—should be ordered to show cause why the court should not impose sanctions in the form of attorney fees payable to the other side for costs incurred in responding to the appeal.
The question of sanctions arose after plaintiff Raymond Valdez, a resident of California, filed his wrongful death complaint against United Airlines Holdings Inc. and related parties on Oct. 21, 2022 in Los Angeles Superior Court. He alleges that his then-73-year-old mother died in the hospital on Oct. 20, 2020 after she fell from a wheelchair while United employees were transporting her to her plane six days earlier at a Texas airport.
After United Airlines, an Illinois company, removed the matter to federal court, District Court Judge John F. Walter of the Central District of California ordered the case dismissed with prejudice in June 2023, finding that the action was time-barred because it was filed in the Superior Court one day after the expiration of the state’s two-year statute of limitations.
Two months later, Valdez moved for relief from the dismissal order under Federal Rule of Civil Procedure 60(b), which allows for such a remedy in the case of “mistake, inadvertence, surprise, or excusable neglect.”
Discovery Rule
In the request, filed by Richie, Castillo, and Pankopf, the plaintiff argued that his attorneys mistakenly failed to consider, or raise in opposition to the motion to dismiss, that the statute should have been tolled until his discovery that her death may have been linked to the fall at the airport, saying:
“It wasn’t until after he consulted legal counsel that he learned that defendant was responsible for his mother’s death. That is, defendant dropping her did not cause her death. But it did cause her to be hospitalized during the worst pandemic since the Spanish flu and exposed her to the Covid virus which she caught and led to her untimely death. Therefore, the earliest defendant could argue the [statute of limitations] could have begun to run is when Plaintiff received the death certificate, i.e., December 20, 2020.”
Alternatively, Valdez contended:
“Second, the file stamp on the complaint is incorrect. The complaint was submitted to the attorney service for filing on October 20, 2022, and the attorney service has confirmed it e-filed the complaint to the court that same day. However, the superior court clerk marked it filed on October 21, 2022, rather than the date it was received on. Given the error of the filing clerk…the complaint was timely filed.”
Castillo submitted an accompanying declaration providing that “[t]he complaint was submitted to the attorney service for filing on October 20, 2022, and the attorney service confirmed it submitted the complaint to the court for filing that same day,” attaching a purported email from Julianna Pence with On-Call Legal Inc. saying the pleading was electronically filed that day.
District Court’s View
Unpersuaded, Walters denied the request, writing in his order:
“The Court concludes that Plaintiff’s claimed mistakes are disingenuous and are nothing more than a failed attempt to manufacture an excuse to make additional arguments that were obvious and plainly available to Plaintiff at the time he filed his Opposition….In addition, the Court agrees with Defendant that Plaintiff has failed to demonstrate that Plaintiff’s new argument that the statute of limitations began to run on December 20, 2020, rather than October 20, 2022, is meritorious.”
Walters denied a defense request for sanctions.
Yesterday’s memorandum decision affirming the order was signed by Senior Circuit Judge Mary M. Schroeder, Circuit Judge Consuelo Callahan, and Wallach. In a footnote, the panel remarked:
“United argued Valdez’s counsel should ‘pay United’s reasonable attorneys’ fees incurred in responding to this appeal.’ The majority declines to award fees.”
At oral argument, Callahan noted that she was “struggling with the frivolousness argument” in the request for sanctions due to the deadline being missed by only one day.
Wallach’s View
In his concurring opinion, Wallach wrote:
“I concur with the majority but also would address United’s request for attorney’s fees…by ordering Valdez’s counsel to show cause in writing why we should not impose sanctions….”
The jurist noted that “Valdez’s counsel proffered a fugitive document (allegedly an email) with a declaration from Valdez’s counsel testifying ‘[t]he file stamp on the complaint is incorrect,’ ” and said:
“Valdez’s counsel’s briefing on appeal was premised explicitly on the state court’s clerical mistake in timestamping one day late (asserting…there was a ‘misfiling by the [state court].’). However, at oral argument, Valdez’s counsel…admitted that the Complaint was filed with the state court on October 21, but attributed the one-day lateness to a third party attorney service, by stating ‘we submitted it to them for filing on October 20, and…they agreed to file it the same day, and that was our understanding of what had happened and we didn’t realize that mistake until the motion for dismissal came about,’….This is contradictory on its face, and probative of subjective bad faith.”
Wallach also took issue with what he called “disingenuous excuses,” citing an attempt to characterize any miscalculation of the filing cut-off date as being attributable to 2020 being a leap year. He explained:
“Valdez’s counsel’s alleged excuse of filing late because of a leap year is nonsensical because if Valdez’s counsel had believed there was an intervening extra February 29, the counsel would have filed earlier in October, not later. In the event of a leap year, an extra day is added, and a statute of limitations that is a multiple of 365 days starting on a given day of a month would end earlier in the month.”
Conduct on Appeal
He continued:
“I recognize the district court denied United’s request for fees, but I do not think that should control our decision. The district court did not consider, nor could it have considered, that Valdez’s counsel has engaged in new conduct on appeal that evinces bad faith….
“I would use the Court’s ‘inherent power to police itself’ to prevent conduct that ‘abuses the judicial process,’…ordering the four attorneys associated with the law firm of DRE LAW, A.P.C., who have represented Valdez throughout the course of this litigation…to show cause in writing why this Court should not impose sanctions.”
Kosmo, an attorney with DRE Law who is licensed to practice in New York, appeared for Valdez at oral argument. She said yesterday:
“[M]y representation of Mr. Valdez was strictly and solely limited to the 15 minutes oral argument. I had no part in representing Mr. Valdez in the underlying matter, and I had no part in any of the appellate paperwork or brief writing.”
Firm’s Head Comments
Darren M. Richie, the chairman and founder of DRE LAW, commented: “Mr. Castillo, our very experienced and successful chief trial counsel at the time, directed his staff to timely submit the underlying action for filing with a licensed attorney service. Attorneys routinely rely upon licensed attorney services to professionally perform their duties.
“This matter involved a survival action brought by the deceased son for wrongful death against United Airlines. The son was not a legally sophisticated party capable of appreciating and determining who would be a proper defendant nor the proper causes of action on the very day he was notified of her death. Only until an autopsy was performed and results were reviewed by the son did he discovery the theory of negligence. It is from that date, within the confines of the delayed discovery rule, that any statute would run.
“Both of these positions are reasonable and meritorious.
“Given the recent decision we will take time to review the merit of higher court review as well as action against the attorney service.”
The case is Valdez v. United Airlines Holdings Inc., 23-2825.
State Bar records indicate that Casillo is now working for Castillo Law, based in Studio City, and Pankopf is practicing out of Reno, Nevada.
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