Friday, September 15, 2000
Page: 8
PERSPECTIVES
(Column)
A Lawyer Has $200 'Stolen' From Him
By ROGER M. GRACE
A lawyer lost $200 recently when a bully scared him into turning over the funds.
The incident didn't take place in a dark alley, the bad guy didn't wear a mask, and he didn't brandish a pistol. The stick-up took place in Department 86 of the Los Angeles Superior Court, the bad guy was wearing a black robe, and his weapon was the contempt power.
Judge David Yaffe on Aug. 24 ordered sole practitioner Michael Rotsten to pay $200 to the clerk of the court as a sanction for his failure to obey an earlier court order. The earlier order, mailed to Rotsten on June 26, required him to give notice of a status conference "to all counsel of record or parties in pro per forthwith." Rotsten showed up at the July 26 status conference without having given notice.
There was a fairly good reason why he had not given notice to "all counsel of record or parties in pro per." There was no opposing counsel of record, and the opposing side was not in pro per.
Yaffe on July 26 continued the status conference to Aug. 24, ordered Rotsten to give notice to the other side—which had been served but had not yet answered or otherwise pled—and ordered him to show cause why a sanction should not be imposed for his purported disobedience of the June 26 order to give notice.
If we stop right there, it's clear that Yaffe was out of line. The June 26 order required that notice be given to "all counsel of record or parties in pro per." There were no counsel of record in the case other than Rotsten. The respondent, designated in the writ petition as "the City of Santa Monica Police Department/Animal Control Section," was not a party in pro per. For Yaffe to order Rotsten on July 26 to show cause why sanctions should not be imposed based on a supposed disobedience of an order when it was patent that no disobedience had occurred was clearly erroneous.
There's more. The day after Yaffe ordered Rotsten to show cause, the Court of Appeal handed down a published decision which left no room for doubt—if there ever was room for doubt—that Yaffe's order was flawed.
In Winikow v. Superior Court, Schreoeder RPI, [82 Cal.App.4th 719], 00 Metropolitan News-Enterprise Slip Opinion Supplement 4362, the Court of Appeal for this district issued a writ ordering that the Los Angeles Superior Court refund a $150 payment made by attorney Jeffrey K. Winikow pursuant to a sanction order issued by Judge Ronald Sohigian. The jurist had imposed the sanction because Winikow, counsel for the plaintiff, had served notice of a status conference on the defendant, the law firm of Haight, Brown & Bonesteel, by mail, rather than by personal service. Justice Gary Hastings of Div. Three said in the July 27 opinion that Winikow was not obliged to serve any notice at all on the defendant because, though served with summons and complaint, it had not yet answered.
Hastings wrote:
"[T]he Notice of Status Conference requires counsel for plaintiff to serve notice 'to all counsel of record or parties in pro per forthwith.' We understand this language to require plaintiff to serve notice only on those defendants who have made a formal appearance in the action....Haight, Brown had not yet made an appearance. Therefore, pursuant to the terms of the notice, petitioner was under no duty to give Haight, Brown notice of the status conference."
That language hardly suffers from ambiguity. And Rotsten brought the case to Yaffe's attention. Notwithstanding the pronouncement of the higher court, Yaffe on Aug. 24 imposed a $200 sanction.
Initially, he set the amount at $500, but Rotsten evinced repentance and told the judge he was a sole practitioner and didn't "need to be punished" to the extent of $500. The judge lowered the amount. It remains, however, that in imposing the sanction, he acted in defiance of the Court of Appeal's ruling in Winikow.
Yaffe rationalized his departure from that decision by proclaiming that it doesn't apply in an administrative mandamus proceeding, such as that brought by Rotsten on behalf of his client. However, there is nothing in Winikow limiting its application to any particular class of proceedings. The ruling was in no way pinned to the nature of the complaint filed by Winikow (an action at law for wrongful discharge). It centered on the meaning of words.
Sohigian's order directed Winikow to provide notice "to all counsel of record or parties in pro per forthwith." The appellate court held that those words do not communicate a need to serve parties that had not yet made an appearance. Yaffe's order directed Rotsten to provide notice "to all counsel of record or parties in pro per forthwith." For Yaffe to interpret those words to include a command to serve notice on parties that had not yet appeared not only defies common sense, but reflects a cavalier refusal to apply the law as set forth by a higher court.
Here's Yaffe's rationale, as set forth in the minute order:
"The case of WINIKOW v. SUPERIOR COURT, filed July 27, 2000, 2000 DJAR 8313, is not applicable to mandate proceedings in which an administrative record must be prepared. The respondent need not prepare the record until payment of the costs of such preparation by the petitioner (C.C.P. Section 1089.5), and the writ cannot be granted by default (C.C.P. Section 1088). Where the petitioner files a proof of service claiming to have served the respondent, and the respondent has not appeared, the only means available to the court to manage the proceeding in accordance with the requirements of the Trial Court Reduction Act is to order a status conference. In a civil action counsel for plaintiff can be ordered to enter the defendant's default if the defendant does not answer, but no default is permitted in a mandate case."
The minute order does not show that Winikow is inapplicable to administrative mandamus proceedings. Winikow says that an order to give notice to counsel of record does not constitute an order to give notice to counsel who are not yet of record—and nothing in Yaffe's discussion escapes the irrefutable logic of that holding.
What Yaffe's discussion goes to show is that Yaffe, presiding as he does in a writs department, should revise the standard form used by his department in ordering the petitioner's counsel to give notice of a status conference. It should include a requirement that notice be provided to defendants—or their counsel, if known—that have been served but have not yet appeared. While it might be that the attendance of parties that have not yet appeared cannot be compelled, there's no reason Yaffe could not order the giving of notice to them, in light of his perception that their participation would assist the court in managing its calendar. If notice were served, they would be apt to show up.(It's difficult to imagine how attendance could be rendered obligatory in light of Hastings' pronouncement in Winikow that "even if the petitioner had personally served the notice on Haight, Brown, Haight, Brown would not have been required to attend the status conference." The Superior Court is seeking review in the Supreme Court, arguing that if there had been personal service of the notice of status conference, it would have constituted "process by which the court acquired jurisdiction over all persons served with the notice.")
When counsel for the City of Santa Monica did not show up at the July 27 status conference, Yaffe should have done two things. First, he should have proceeded with the status conference. Rotsten presumably would have explained to him, as he did in a declaration filed after he was ordered to show cause, that the writ proceeding had been put on the back burner pending resolution of a criminal action against his client, the outcome of which could have rendered the writ action moot. The criminal case had concluded one day prior to the status conference. Second, rather than striking out at Rotsten for not giving notice to the respondent of the status conference, he should have recognized that his order, as worded, did not require such notice, and should have given thought to revising the stock language of his orders.
But that's not how Yaffe proceeded. At the Aug. 24 hearing, Rotsten was sanctioned and growled at.
He was deprived of $200, as wrongfully as if the money had been stolen by a mugger.
Meanwhile, Rotsten, an Encino animal-rights attorney, is licking his wounds.
"In the 30-and-a-half years I've been an attorney, I have never been sanctioned by anybody," he notes.
And he clearly doesn't think he should have been sanctioned by Yaffe.
"One of the exceptions to sanctions is 'substantial justification,'" he says, asserting he had substantial justification for not giving notice to the Santa Monica City Attorney's Office because the order, as he read it, did not require him to do so. (Code of Civil Procedure Sec. 177.5, under which Yaffe apparently proceeded, authorizes sanctions of up to $1,500, payable to the county, "for any violation of a lawful court order by a person, done without good cause or substantial justification.")
"Sanctions aren't supposed to be for having a dispute with the judge over what the law is," Rotsten remarks, adding:
"It's not like I looked at the order and defied it. I looked at the order and concluded that it didn't apply."
Rotsten estimates he would have an "80 percent chance of prevailing" if he sought a writ in the Court of Appeal, but says he probably won't challenge the sanction. "I just looked at the economics of it," he explains.
Aside
from the attorney time that would be involved, Rotsten would have to lay out
in excess of $200 in costs for the filing fee and transcripts of the July
26 and Aug. 24 proceedings. He'd be bound to succeed in obtaining a return
of the $200 Yaffe took from him—but he wouldn't be able to recoup his costs.
Denial of costs where the Superior Court is the opposing party seems harsh
and wrong, but that's the upshot of the opinion in Winikow. The Winikow
court accepted the Superior Court's argument that judicial immunity shields
it from an obligation to pay costs. That aspect of the Winikow decision
is predicated on infirm reasoning, as I'll
discuss in a column on Monday.
Copyright 2000, Metropolitan News Company