Egregious attorney misconduct at trial leads to reversal on appeal

When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict, and it even survived a mid-trial motion for mistrial and a new trial motion, but it was a short-lived victory, as the Court of Appeal reverses.

Here’s how the Court of Appeal summed it up:

Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders [i.e., orders precluding certain evidence at trial]. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
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While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

The court even gives a tally of the misconduct: eight improper statements during opening argument, ten references during cross reference of plaintiff to the off-limits subject of his prior termination from a school district, another 13 forbidden references to the termination — 12 of them after sustained objections! — during cross-examination of plaintiff’s wife, and five improper statements during closing arguments. Counsel also sprinkled Nazi references liberally because the plaintiff’s motorcycle bore a logo for Set Free ministries — a religious organization that ordained plaintiff after a year of bible study — that included a Nazi-style helmet.

The court also summarizes the misconduct by type and, noting that appellant claimed there was even more misconduct, writes: “But we see no reason to go further. Suffice it to say we found enough to establish attorney misconduct at least five pages ago.”

Of course, the misconduct alone is not enough for reversal. Before the court can reverse, it must find that the misconduct was prejudicial. That’s not hard for the court to do in this case. See the case for more dateline the nature of the misconduct and why it was prejudicial, and the trial court abused its discretion in denying a motion for new trial.

The court’s characterization of the trial judge as “patient” has to be the understatement of the year. The trial judge denied a mid-trial motion for mistrial, and even after the attorney continued in her misconduct after that, the trial judge refused to grant a new trial motion after the defense verdict.

The reversal on appeal is not the only adverse consequence of the misconduct. The Court of Appeal also orders the clerk to send a copy of the opinion to the State Bar, “notifying it the reversal of the judgment is based solely on attorney misconduct.”

The limits to switching gears on behalf of a minor on appeal

A pre-teen in a juvenile proceeding has counsel appointed for her in the trial court (the counsel is also appointed as her guardian ad litem). Her counsel argues at the dispositional hearing that the minor’s repeated hospitalizations are due to mother’s refusal to acknowledge the seriousness of the minor’s diabetes diagnosis or appropriately monitor her treatment, and the trial court removes the minor from her mother’s custody.

The mother appeals, and appellate counsel is appointed for the minor. The minor did not appeal, and you would think the minor’s position is pretty well solidified at this point, right?

Wrong. Or may, “it all depends.”

On the appeal In re Felicity .S, case no. A137439 (1st Dist. Oct. 31, 2013), the minor’s appointed counsel on appeal reversed course completely. The minor’s appellate counsel asked for more time to file her appellate brief, then filed a whopper of 75 pages that, instead of focusing on “how the issues raised by the mother’s appeal impacted the minor’s best interests,” instead backed up all of the mother’s arguments, without offering any explanation for the change in course.

In a huge understatement, the appellate court stated that the attorney’s “failure to provide any explanation for taking a position conflicting with that taken by the minor’s trial counsel is highly problematic.”  So, the judge asked the attorney for a declaration explaining her reasons for the about-face. The Court of Appeal found her 25-page declaration unconvincing, to say the least. She stated she spoke with minor’s trial counsel, but did not give the substance of the conversations or even claim that trial counsel recommended the change in position.

But wait, there’s more! The attorney tried to “backdoor” new issues into the appeal, outside the scope of those raised by the mother, her declaration and despite the fact that the minor had not even appealed.

In sum, we conclude that when this court exercises its discretion to appoint counsel for the minor in a situation where the minor has not appealed, it is improper for the appellate counsel to reverse the position taken by minor’s trial counsel without authorization by the minor’s guardian ad litem and/or without an explanation as to how the reversal of position is in the child’s best interests. When, after careful analysis of the record and briefs of the parties, minor’s counsel fully adopts the arguments of a party to the appeal, preparation of a full statement of the case and repetition of that party’s arguments will rarely be helpful to the court or serve the best interests of the minor.

(Footnote omitted.) These limitations hardly impose a straightjacket on appointed counsel. The court explicitly left open the possibility that such reversals of position might be justified; they just have to be adequately explained.

Falling on your 473(b) sword only gets you so far

OK, it’s not actually FALLING, but you get the picture

Oddly enough, this point is made in a case where no one actually fell on their sword.

The title of this post comes from my nickname for the mandatory relief provision in  Code of Civil Procedure section 473, subdivision (b) (my emphasis):

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

I’ve always considered this a very scary provision, since it invites an attorney to admit he screwed up, and maybe even committed malpractice (hence my reference to this as the “fall on your sword provision”), in order get his client (and himself) out of a jam. The scary part is . . . what about those situations where an attorney admits fault, but does not get the “mandatory” relief?

The limitations of this provision are explored in yesterday’s decision in Las Vegas Land and Development Co., LLC v. Wilkie Way. LLC, case no. B238921 (2d Dist. Sept. 20, 2013). In that case, a plaintiff failed to file any opposition to a summary judgment motion and had summary judgment entered against it. The plaintiff moved under this mandatory relief provision to set aside the summary judgment, then appealed from the order denying relief.

The limits of falling on your sword – forget about relief from summary judgment

The court holds, consistent with other decisions and contrary to an outlier holding the other way, that the mandatory relief provision does not apply to summary judgments. This holding results from a pretty straightforward analysis of the statutory language limiting application of the provision to defaults and default judgments.

What happens when no one actually falls on their sword?

I’ve seen applications for mandatory relief denied when the court deemed the attorney’s affidavit of fault too unspecific to constitute the required admission. In this case, the plaintiff applicant took it one step farther, and sought relief without any affidavit of fault from an attorney, claiming that its counsel had abandoned it.

In light of the court’s holding that the mandatory relief provision does not apply, the resolution of this request makes no difference, but the court addressed it anyway. Again, it reached a conclusion on a very straightforward analysis. The statute has no exceptions to the affidavit requirement, so the party seeking relief was not excused from providing an affidavit of fault, notwithstanding its contention that it had been abandoned by its counsel.

In fact, plaintiff’s former counsel — the one representing plaintiff at the time plaintiff failed to respond to the summary judgment motion, and who had supposedly abandoned plaintiff — filed an affidavit opposing plaintiff’s request for relief from the judgment, saying that he had advised his client of the need to oppose the summary judgment and was told by the client that it had already engaged new counsel to do so. Not exactly the kind of affidavit plaintiff could have used from the guy, since it not only disavowed any fault but also established that the client had not been abandoned, undermining the factual basis for the claimed exception to the rule.