Friday, February 1, 2019
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Court of Appeal:
Judgment Not Assailable on Basis of Bias Where Lawyer’s Shenanigans Irked Judge
$103,000 Attorney-Fee Award in Favor of City of Monrovia Affirmed Over Lawyer’s Insistence That Judge William D. Stewart Lacked Impartiality
By a MetNews Staff Writer
A pro per attorney who displayed belligerence at an hour-long hearing on motions, repeatedly put forth spurious arguments, and persisted in quibbling after the judge had ruled, cannot gain reversal of a $102,669 attorney-fee award to the opposing party on the ground that the judge, whom she drove to a state of exasperation, was biased against her, the Court of Appeal for this district has held.
The opinion by Justice Victoria Chavez was filed Wednesday and not certified for publication. It affirms a 2017 attorney fee award by Los Angeles Superior Court Judge William D. Stewart in favor of the City of Monrovia, and against lawyer Pauline White, whose office is in that city.
The award stems from White’s unsuccessful 2016 appeal from rulings in 2014 by then-Superior Court Judge Donna Fields Goldstein, who did not run for reelection last year. Goldstein denied White’s anti-SLAPP motion against the city, which sued her to block allegedly unlawful construction and grading of her property, and granted the city’s anti-SLAPP motion as to all 21 causes of action in White’s cross-complaint.
Monrovia was awarded $24,122.50 in attorney fees by Goldstein pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, which provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”
Earlier Opinion
The Court of Appeal’s May 31, 2016 unpublished opinion, by Chavez, affirmed Goldstein’s orders except as to five of White’s causes of action which it found did not come under the anti-SLAPP statute.
On remand, the matter came before Stewart after White exercised a peremptory challenge to Goldstein.
Prior to a scheduled Feb. 24, 2017 hearing, Stewart issued a written tentative ruling indicating an intent to award Monrovia $102,699 for legal services on appeal. The hearing was subsequently re-set for March 17.
Chavez’s opinion on Wednesday indicates that White did most of the talking.
“During the hearing, White’s insistence on advancing erroneous legal arguments, her disregard of Judge Stewart’s admonishments, and her unwillingness to accept the court’s rulings increasingly taxed Judge Stewart’s patience,” Chavez said.
Provides Example
One example of White’s conduct, she said, was her repeated exhortations that Stewart disregard utterances in the Court of Appeal’s 2016 opinion. Chavez provided this example from the transcript of dialogue following Stewart’s advisement that he was not at liberty to contradict the appeals court:
“MS. WHITE:...So going back to that, there was in fact a timely government claim presented and denied, which the City knows about because they obviously denied it.
“THE COURT: Did the Court of Appeal hold that way?
“MS. WHITE: I beg your pardon, your Honor?
“THE COURT: Did the Court of Appeal hold that way?
“MS. WHITE: Hold which way, your Honor?
“THE COURT: What you just said.
“MS. WHITE: Well, they made a mistake....
“THE COURT: I can’t consider that....”
Other Matters Considered
At that hearing, Stewart considered, before getting to the matter of attorney fees on appeal, the city’s demurrer to the remaining five causes of action in the cross-complaint and White’s motions for leave to amend her cross-complaint, to dismiss the city’s complaint and to expunge a lis pendens recorded on her property, and a motion for relief from her failure to file a motion to tax costs.
“By the time White argued that the City was not entitled attorney fees on appeal as the prevailing party on the underlying anti-SLAPP motions, Judge Stewart had exhausted his patience, culminating in his remarks that he might disqualify himself and that he was considering reporting White to the State Bar,” Chavez recited.
She quoted Stewart as telling White:
“You know, I just might disqualify myself from being prejudice[d], but I’m trying to put that aside, Ma’am. You are not performing as a proper attorney in this court’s opinion. You are representing yourself, but, remember, you’re an attorney, too, and I’m considering reporting you to the State Bar.”
Chavez wrote:
“Immediately thereafter, he adopted all of his tentative rulings, including the ruling on the City’s motion for attorney fees, and concluded the hearing. White disregarded Judge Stewart’s rulings and his conclusion of the proceedings and continued to interrupt and challenge him, prompting Judge Stewart to reiterate, several times, his intention to report her to the State Bar.”
Taking Stewart’s remarks in context, Chavez said, bias is not established. Comments made to a lawyer during a hearing, even if hostile, do not form a basis for reversal unless they relate to information derived from extrajudicial sources or reflect an inability on the part of the judge to be fair, she continued, declaring that neither circumstance was present.
The tentative ruling on fees was made nearly a month before her courtroom conduct provided annoyance, she noted.
Subsequent Recusal
Following the hearing, Stewart made an order recusing himself from further proceedings in the case. That Chavez said, “did not preclude him from ruling on the City’s attorney fees motion at the conclusion of the March 17, 2017 hearing.”
She noted that Code of Civil Procedure §170.4(d) provides, with emphasis added by her, that “a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined.”
Stewart made his rulings in the case before disqualifying himself from further participation, she pointed out.
Wording of Opinion
The 2016 opinion declared: “The City is awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award.”
White contended that Stewart lacked the power to award attorney fees on appeal because the Court of Appeal had not ordered such an award. Chavez responded by pointing to California Rules of Court, rule 8.278(d)(2), which provides:
“Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”
That rule authorizes motions for attorney fees “under a statute.” The applicable statute, Chavez said, is §425.16.
Chavez found the amount of the award reasonable in light of the 238.8 hours expended on the 2016 appeal by attorneys representing the city.
The case is City of Monrovia v. White, B282713.
White represented herself on appeal. William Litvak of the West Los Angeles firm of Dapeer, Rosenblit & Litvak, who represented Monrovia in the 2016 appeal, was joined by Eric P. Markus of his firm, in handling the current appeal.
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