Monday, September 24, 2001
Self-Represented Attorney Entitled to Sanctions for Defending Frivolous Suit, Court of Appeal Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
An attorney who successfully defends himself or herself from a frivolous lawsuit is entitled to an award of sanctions under Code of Civil Procedure Sec. 128.7, the Fourth District Court of Appeal ruled Friday.
Div. Three affirmed a ruling by Orange Superior Court Judge Robert Polis in favor of Fullerton attorney Evan L. Ginsburg and his firm, Ginsburg & Hilwa.
Polis awarded $33,000 in sanctions against Placentia attorney Riordan Zavala and his client, Phillip Laborde, in connection with a suit charging Ginsburg with multiple torts, including malpractice, defamation, conspiracy, conversion, and interference with contract.
The suit grows out of a divorce action in which Ginsburg represented Laborde’s wife. Ginsburg and Michael Wolf, who was representing Laborde, agreed to the appointment of Dr. Susan Aronson to evaluate the custody issues and testify as a court witness if necessary.
Aronson’s report was unfavorable to Laborde, who retained Zavala to take action against Aronson. Zavala sent Aronson a letter saying she would be sued if she testified in the divorce case.
Aronson responded with a letter to the supervising judge of the family law departments, saying it was her “understanding that Mr. Laborde and Attorney Zavala’s threatening an independent witness regarding her testifying is a felony.”
Laborde, represented by Zavala, then filed the tort action, naming Ginsburg and Aronson as defendants. Among the claims was that they conspired to defame Laborde by “planning and scheming” to send Aronson’s letter to the supervising judge “wherein it was falsely asserted plaintiff had ‘threatened’ a witness.”
In the meantime, the divorce case went to trial, with the judge allowing Aronson to testify as the court’s witness under Evidence Code Sec. 730 and castigating Zavala for “intimidation of the mental health witness.”
Ginsburg and Aronson then moved for summary judgment in the tort action and requested sanctions under Sec. 128.7. Ginsburg advised that he would withdraw his request for sanctions if the complaint was withdrawn within 30 days.
Laborde then requested dismissal of his complaint without prejudice. Polis rejected the request, dismissed the action with prejudice as to Ginsburg, granted summary judgment to Aronson on the basis of the litigation privilege, and awarded sanctions to both defendants. Aronson’s award was for $24,000.
The suit, Polis said, was “frivolous and without merit” and brought “with bad faith.”
Justice William Bedsworth, writing Friday for the Court of Appeal, said the trial judge was correct.
Bedsworth noted that federal courts, in interpreting Rule 11 of the Federal Rules of Civil Procedure—on which Sec. 128.7 is modeled—have held that a self-represented attorney or law firm may obtain sanctions.
The justice also cited Abandonato v. Coldren (1995) 41 Cal.App.4th 264, which allowed a self-represented attorney to obtain sanctions under Sec. 128.5, the predecessor to Sec. 128.7.
Abandonato distinguished Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney who prevailed in a contract action could not obtain attorney fees under Civil Code Sec. 1717. The Abandanato court said there were different policy considerations underlying the statutes, and Bedsworth agreed.
“In other words, if the point of these statutes is to deter bad faith tactics and frivolous litigation, it makes no sense to declare such tactics acceptable against attorneys or nonattorneys representing themselves in such matters,” the justice wrote.
The court also affirmed the award of sanctions to Aronson, who was represented by Edward L. Schumann and Christopher J. Zopatti of Callahan McCune & Willis. The entire dispute was based on Aronson’s activities as evaluator and court’s expert, which are clearly privileged under Civil Code Sec. 47, Bedsworth said.
Since the plaintiff made no attempt at showing good faith beyond his failed argument that Aronson’s conduct was not privileged, the justice said, the award of sanctions was proper.
The case is Laborde v. Aronson, G022642.
Copyright 2001, Metropolitan News Company