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Court of Appeal Scolds Lawyers Over Hard-Hitting Brief
Westwood Firm Bills Itself as Being ‘Unapologetically Aggressive’—Their Approach Miffs Justice Zukin
By a MetNews Staff Writer
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Pictured above is attorney Christopher Frost, a founding partner of Frost LLP. The Court of Appeal on Thursday took issue with the forcefulness of his firm’s opening brief, although finding in favor of its client. |
Div. Four of the Court of Appeal for this district has reversed an order granting an anti-SLAPP motion, saying it is ordering publication of the opinion “to draw attention to our concluding note on civility and persuasive brief writing” in which it scolds the appellant’s lawyers for filing a spirited opening brief.
That brief was signed by Westwood attorney Christopher Frost. John D. Maatta and Nicholas Lauber of his firm, FROST LLP, are also attorneys of record in the appeal.
The firm says on its website:
“We Are Fighters
“We believe that a disruptive worldview allows us to be unapologetically aggressive,TM competitive, and profoundly successful on behalf of our clients.”
But Justice Helen Zukin, in an opinion filed Thursday, found that the firm was overly aggressive. Among the descriptions of a trial court’s ruling which she found objectionable was the word “egregious.”
Nature of Litigation
The litigation is over the right to move trash bins. The receptacles are owned by Arakelian Enterprises, Inc., doing business as Athens Services,
Athens has a waste collection franchise granted by the City of Los Angeles. Property owners can move the trash bins themselves to the curb for collection by Athens or can pay Athens to do it.
FROST LLP represents WasteXperts, Inc. which offers a “push and pull” service which entails moving the bins to the curb. Athens has demanded that WasteXperts’s employees keep their hands off the bins.
WasteXperts brought an action against Athens for declaratory relief, insisting that it has the right to perform the service, citing a Los Angeles Municipal Code section that says:
“No person, other than the owner thereof, his agents or employees,...shall tamper with or remove any solid waste container or the contents thereof from any location where the same had been placed by the owner thereof or his agent....”
It acts as the property owners’ agent, it maintains.
WasteXperts also complains of demands sent to it to cease and desist from handling the bins and to communications dispatched to its customers insisting that they not use the “push and pull” service.
Motion Granted
Athens brought a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure §425.16. Judge Monica Bachner on Oct. 24, 2022, granted the motion, holding:
“All five causes of action are based on Defendant’s cease-and-desist letters to Plaintiff and Plaintiff’s customers, which amounts to prelitigation correspondence….CCP § 425.16(e)(1) protects statements made ‘before a judicial proceeding,’ and § 425.16(e)(2) protects statements made ‘in connection with an issue under consideration or review by a...judicial body.’ Thus, the provisions apply to prelitigation communications.” She declared not only that Athens satisfied the first prong of the statute—showing that the lawsuit arose from protected conduct—but also that WasteXperts failed to meet its consequential burden: demonstrating a probability of prevailing on the merits.
On March 3, 2023, Bachner granted Athens attorney fees in the amount of $175,000.
In her opinion on Thursday reversing the anti-SLAPP order, Zukin said that the cause of action for declaratory relief “does not ask Athens to clarify or retract any of its communications” and that “[a]n action that seeks to resolve an existing disagreement does not arise from protected activity merely because one party first ‘communicated their disagreement’ to the other.” The “cease and demand” letters to WasteXperts and Athens’s communications to customers, she wrote, amount to commercial speech, exempted from §425.16 by §425.17.
Terms Order ‘Shocking’
The appellant’s attorneys said in the first paragraph of their opening brief:
“Although the scope of Anti-SLAPP protections are broad (some would argue too broad in their interpretation and application), the overreach by the trial court here is nothing short of shocking, effectively blessing Athens’ business threats to Appellant’s clients and immunizing them from Appellant even obtaining declaratory relief based on noncommunicative conduct.”
Zukin commented:
“Appellant can certainly challenge the outcome without such unfounded insinuations that the trial judge had become an advocate for the other side.
“Perverse Miscarriage’
The lawyers also remarked in the brief:
“By precluding the declaratory relief action, the trial court effectively immunizes Athens from Appellant seeking a declaration of its rights to perform onsite services on private property in the face of Athens claiming it cannot—a truly perverse miscarriage of justice.”
They contended that “the trial court’s determination that Appellant has not shown a likelihood of success on the merits is transparently erroneous.”
FROST LLP commented: “The trial court also awarded Athens $150,000 in fees simply for drafting the Anti-SLAPP Motion—the largest (and most egregious) amount that can be found in any recorded California case law for a litigation of a single motion at this stage of the proceedings. This is currently the subject of a separate appeal.”
Zukin’s Reproach
The justice wrote:
“We recognize WasteXperts may not prosecute its appeal without responding to the trial court’s orders. But counsel can dispute the merits of a ruling without calling it ‘transparently erroneous,’ ‘egregious,’ or a ‘truly perverse miscarriage of justice.’
She went on to say:
“Emotional diatribes do nothing to support the arguments made by counsel. In fact, this verbiage serves the opposite purpose. It requires the court to spend additional resources filtering out the hyperbole, and requires opposing counsel to bill their client for additional time to compose a response.
“Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve. When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.”
A comment on the opinion was sought from FROST LLP. Maatta, a founding partner, did not address Zukin’s rebuke in saying:
“We’re very pleased, but not surprised, by the Court’s ruling in favor of our client WasteXperts,” he said. “It’s clear from the rationale provided in reversing the lower Court’s decision that the Court of Appeal took great care to get it right.”
The case is WasteXperts, Inc. v. Arakelian Enterprises, Inc., 2024 S.O.S. 2357.
Ronald B. Turovsky, Donald R. Brown and Benjamin G. Shatz of Manatt, Phelps & Phillips represented Athens.
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