Friedman Ordered to Pay $12,000 in Fees to Moriarity's Lawyer
By KENNETH OFGANG, MetNews Staff Writer
A Los Angeles Superior Court judge yesterday ordered State Assemblyman Terry Friedman, D-Encino, a candidate for an open seat on the Los Angeles Superior Court, to pay $12,000 in attorney fees incurred by his opponent in a court challenge to Friedman's ballot statement.
Judge John Zebrowski had indicated at a hearing Wednesday he intended to award $13,625 to Bradley Hertz, of counsel to the local firm of Reed & Davidson, including $1,750 for preparation and argument on the fee motion. Hertz represented John Moriarity, a Van Nuys trial lawyer who finished second to Friedman in the June 7 primary with 275,696 votes to the legislator's 283,110.
The judge delayed his final order until yesterday in order to consider several arguments advanced by Friedman attorney William Rothbard with respect to the amount, among those being the claim that counsel should not be compensated for time spent discussing the case with reporters. The judge gave no explanation yesterday as to his reasons for reducing the amount.
Hertz defended the time consumed by his media discussions as being necessary to the litigation, but said it didn't amount to more than 30 minutes of the 68 hours he expended.
The fees were awarded under the private attorney general statute, Government Code Sec. 1021.5, which authorizes such an award when litigation results in a "significant benefit" being "conferred on the general public or a large class of persons."
Hertz, who practices primarily in the field of political law, told the MetNews he knew of no other instance in which the statute had been applied to award fees in litigation over candidate statements. There have, he said, been several cases in which private attorney general fees were awarded to lawyers who succeeded in forcing changes in ballot measure arguments.
Zebrowski on Sept. 2 directed county elections officials to modify Friedman's candidate statement by:
•Deleting the assertion that the assemblyman "co-authored `Three Strikes, You're Out' for violent felons."
While Friedman did not co-author AB 971, the "Three Strikes" legislation signed into law in March, he did co-author another "Three Strikes" bill—AB 167 by Assemblyman Tom Umberg, D-Garden Grove—which did not become law. Zebrowski said voters associate the term with the measure which went into effect.
The judge's original order permitted Friedman to state that he "supported `Three Strikes' concept limited to violent felons." But after receiving supplemental briefs from Friedman attorney William Rothbard—including a declaration from the assemblyman calling that language "incomplete and misleading" and asserting that forcing him to use it "would constitute a `judicial hijacking' of control over my own campaign"—Zebrowski modified his order by directing all references to "Three Strikes" dropped from the ballot statement.
•Deleting the statement that he is endorsed by conservative Fourth District Supervisor Deane Dana. Friedman had agreed in court papers to the deletion, though he asserted in a declaration that the supervisor agreed to back his judicial candidacy in a telephone conversation on May 18.
A declaration from Dana submitted by Moriarity said the supervisor endorses Moriarity, not Dana, in the race.
•Substituting the words "attorney in" for the words "prosecutor of" in Friedman's description of himself as a "Nationally recognized PROSECUTOR of landmark cases." The judge rejected Friedman's claim his work on behalf of underprivileged clients as legal services attorney justified the reference, ruling voters understand the term "prosecutor" to refer to one who prosecutes accused criminals.
•Deleting the candidate;s reference to himself as a "victims' rights specialist." That reference also would be generally understood to suggest work on behalf of crime victims, Zebrowski declared.
•Replacing the claim that Friedman's professional experience included service as an "appointed Deputy District Attorney, winning criminal conviction" with the statement that he "served as a temporary volunteer deputy district attorney." Friedman spent a month with the District Attorney's Office under then-District Attorney Ira Reiner in October of 1991.
•Qualifying a reference to service as a "Law Professor" with the adjective "adjunct."
Rothbard said yesterday the assemblyman was "considering his options" with respect to a possible appeal. Friedman may also bring his own motion for fees in connection with two proceedings in which the assemblyman prevailed, the lawyer said.
In one of those matters, which was consolidated for hearing with Moriarity's petition, Zebrowski ruled that Moriarity's ballot statement must be modified by replacing language stating that the Los Angeles Women Lawyers Association "strongly endorse[s]" Moriarity with the statement that his "qualifications were confirmed by" the organization, which is actually called the Women Lawyers Association of Los Angeles.
In the other, Sacramento Superior Court Judge James Ford ruled that Friedman can call himself "Law Professor/Lawmaker" on the general election ballot.
Friedman's petition for expedited review of Zebrowski's decision was summarily denied by the Court of Appeal for this district. A petition seeking to overturn Ford's decision was denied by the Third District Court of Appeal on the merits, and review of that decision was denied by the Supreme Court.
Copyright Metropolitan News Company, 1994