Thursday, May 15, 2003
California Supreme Court Won’t Hear Challenge to County Bar Candidate Evaluation Process
By KENNETH OFGANG, Staff Writer/Appellate Courts
The state Supreme Court yesterday denied review of a Court of Appeal ruling throwing out a suit challenging the way the Los Angeles County Bar Association evaluates judicial candidates.
No justice voted to hear Los Angeles sole practitioner Vicki M. Roberts’ appeal of the January ruling by this district’s Div. Seven, which held that her suit infringed on LACBA’s free speech rights and constituted a strategic lawsuit against public participation.
Roberts, a Los Angeles sole practitioner, ran in the last contest held within the old Los Angeles Judicial District, in November 2000, losing by 50,000 votes to then-prosecutor David Mintz. She outpolled four other contenders in the primary despite LACBA’s “not qualified” rating.
Under the longstanding LACBA procedures, candidates are initially interviewed by a subcommittee of the association’s Judicial Evaluations Committee, which then recommends a rating to the full committee.
The full committee may rate a candidate well qualified, qualified, or not qualified. Ratings less than well qualified are considered tentative, and a candidate may appeal and appear before the full committee in an effort to upgrade the rating. Roberts availed herself of that right, but the committee was unmoved.
Roberts accused LACBA of breach of contract and fraud and sought declaratory and injunctive relief as well as damages. She said the committee promised her—as it did each of the candidates—a fair process that was not forthcoming because the committee failed to abide by its own rules.
Specifically, Roberts said she was subject to an initial interview that “had all the attributes of an ambush,” and that the committee did not comply with a rule that requires candidates be given 48 hours’ notice of any negative material it intends to ask about. She also complained that a committee member whom the chairman had disqualified from her evaluation due to a conflict of interest was present when she was interviewed by the full committee, although not during the deliberations afterward.
LACBA appealed after Los Angeles Superior Court Judge Emilie Elias allowed the damage claims to go forward.
Justice Fred Woods, writing for the Court of Appeal, rejected Roberts’ claim that the suit was not a SLAPP because she was only attacking the process and not the end product. The procedures, Woods said, were “inextricably intertwined with and part and parcel of the evaluations.”
Nor was there any evidence that the alleged breach of the rules harmed Roberts’ reputation, Woods said, especially since her original interview was rescheduled to give her the required notice of negative comments. And any defect in the notice could have been cured at the appeal hearing, Woods said.
In other action at yesterday’s conference, the justices:
•Agreed to decide whether an agreement creating an attorney’s fee lien on a cause of action must be in writing to be enforceable.
This district’s Div. Seven, in Fletcher v. Davis, reversed a judgment barring Inglewood attorney Freddie Fletcher’s action to enforce what he claims is a contractual lien for fees earned in representing a former client who fired him in the middle of litigation.
Fletcher formerly represented Master Washer & Stamping Co. in litigation with its former landlord, whom the company claimed converted its property. After the first trial in the case ended in a mistrial, the company fired Fletcher and hired attorney Beverly Hills attorney Joseph Fischbach to handle the second trial, which resulted in a judgment for more than $600,000, including interest.
A creditor of Master Washer then sued, seeking a recovery against the proceeds of the judgment. A settlement agreement subsequently divided those proceeds among the creditor, Master Washer, Fischbach, and the landlord, who earlier obtained a stipulated judgment against Master Washer for $85,000 for breach of the lease.
Fletcher then sued all four of those parties, claiming he had no prior notice of their agreement and that they had converted funds to which he was entitled as a result of his charging lien on the proceeds of Master Washer’s suit. That lien, Fletcher said, was orally agreed to when he agreed to represent Master Washer at $200 per hour without a retainer.
Justice Earl Johnson Jr., writing for the Court of Appeal, concluded that there is no requirement of a written agreement to create a lien for unpaid attorney fees. In doing so, he noted that a State Bar ethics committee opinion has held that a written agreement is required, a San Francisco Bar Association opinion says otherwise, and the Los Angeles County Bar Association issued conflicting opinions 16 years apart.
•Agreed to review a ruling by this district’s Div. Three, which threw out a $6 million punitive damage award in favor of a helicopter manufacturer against a company found to have sold it defective parts, saying the claim was contractual in nature and the punitive damage award barred by the “economic loss rule.”
The court upheld a verdict of more than $1.5 million in compensatory damages in favor of Robinson Helicopter Company, Inc. against Dana Corporation, based on jury findings of breach of contract and breach of warranty. But there was no tort and no basis for punitive damages, Justice Walter Croskey wrote for the appellate court.
Copyright 2003, Metropolitan News Company