By Charles V. Berwanger
Suppose you have a client who is dedicated to making litigation as difficult as possible for plaintiff through every conceivable procedural device whether proper or not; and who instructs you to not only increase the expense of litigation for plaintiff but also to delay, delay, delay? Below is a cautionary tale.
Defense counsel in Workman v. Colichman (2019) 33 Cal. App 5th 1039 apparently had such a client and counsel implemented a scorched earth defense that ultimately backfired. The end result was the imposition of almost $50,000 in sanctions jointly and severally on counsel and Colichman and referral of the matter to the State Bar. Noteworthy, the Court of Appeal identifies the many facts relating to defense counsel’s filing of a frivolous anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16(e)(4); the evidence pointing to a pattern of delay; and defense counsel’s threats, attempts at intimidation, and Ramboesque tactics.
Leading up to the lawsuit, Workman placed her home on the market for sale, found a buyer, and entered escrow. Her neighbor, Colichman, told Workman’s real estate agent Colichman planned to add a second story to her home that would interfere with the sweeping views from Workman’s home. Workman ultimately lost a sale due to that threat, and commenced this action for damges due to interference with that sale. Defense counsel thereupon filed an anti-SLAPP motion contending there was “public interest” in the communication by Workman and, therefore, the first prong of Code of Civil Procedure section 425.16 was met. The trial court denied the motion conclulding there was no “public interest” present. Colichman appealed.
The Court of Appeal in addressing the issues before it first considered whether or not the anti-SLAPP motion was meritorious. The opinion’s first paragraph gives a hypothetical of where section 425.16 does not apply taken from an earlier decision: “Blackacre sells a house to Whiteacre, and Whiteacre sues, claiming defendant misrepresented the square footage. Blackacre brings a special motion to strike, claiming his speech involves a matter of public interest, because millions of Americans live in houses and buy and sell houses ….” The Court of Appeal concludes “this case is only slightly more complex than the Blackacre hypothetical.” The defense argument the case involves more than just a neighborhood dispute and rather involves major public policy considerations relating to requiring honesty in the sale of properties and the protection of the public from less than honest realtors and sellers fell on deaf appellate ears. The Court of Appeal concluded there is nothing in the complaint that even approaches a “public interest”.
The Court of Appeal having found that the anti-SLAPP motion was frivolous then goes on to discuss the evidence relating to defense counsel’s delay and intimidation tactics at length.
First, Workman contended and the Court of Appeal accepts the contention the anti-SLAPP motion itself was an extension of defendants’ campaign of harassment and intimidation. Next, defense counsel requested as a courtesy multiple extensions of the deadline to respond to the complaint and possible mediation. Defense counsel slow walked its reponses to plaintiff’s counsel’s attempt to establish a mediation date. Finally, a date was established but as the date approached defense counsel canceled the mediation. As well, the delay inherent in the appeal also was noted by the Court of Appeal.
Threading its way through the opinion are also the many instances of half-truths, threats, and attempted intimidation by defense counsel of Workman, her attorney, and her realtor. The statement by Colichman a second-story was to be added to the Colichman home to the realtor appeared to be untrue. In response to requests by Workman for architectural renderings and evidence of permit applications was silence. Further, there was evidence Colichman was attempting to depress the sale price of Workman’s home in order to enable Colichman through an agent to purchase the home for a price less than market value. Defense counsel in threatening correspondence to plaintiff’s counsel demanded the dismissal of the lawsuit claiming it was without merit; asserting Workman had significant exposure to an award of damages and attorney’s fees; demanding that all trust funds be preserved and not disbursed; and demanding the letter be sent to Workman and plaintiff counsel’s insurance carrier. Another defense counsel missive claims the lawsuit is a shakedown; the marketing of the home was fraudulent; and plaintiff’s counsel has provided poor advice to Workman for which they will both be accountable. Another letter was sent by defense counsel to Workman’s real estate agent’s employer asserting the agent had exposed the employer to potential liability.
Based upon the 40 page Court of Appeal decision, the court determined that sanctions be imposed on Colichman and defense counsel jointly and severally; $35,985 to be paid to Workman and $8500 to be paid to the court’s clerk; and that defense counsel and the court’s clerk forward a copy of the opinion to the State Bar.
So what ethical issues are raised? Applying the Rules of Professional Conduct effective November 2018, several rules would appear to be implicated in the conduct of defense counsel. (Note that the prior rules may apply due to timing of the acts for which discipline is being considered.)
The Rules’ Chapter 3, entitled “Advocate”, deals with counsel’s duties to the court. Rule 3.1 entitled “Meritorious Claims and Contentions” provides that “(a) a lawyer shall not… bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person ….” The Court of Appeal decision upon becoming final would appear to be a determination defense counsel proferred a “defense … without probable cause”; and the opinion contains substantial evidence such “defense” was “for the purpose of harassing or maliciously injuring” Workman. Rule 3.2 also appears to be implicated. It is entitled “Delay of Ltigation” and provides “in representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” The Court of Appeal decision would appear to be determinative of the applicability of this rule as well.
Putting aside what rules may or may not be violated, and there may be more the State Bar invokes, it is quite apparent from this decision that Rambo litigation tactics involving frivolous motions, delay tactics, with a background of threatening and harassing conduct will garner judicial sanctions and State Bar discipline proceedings. That is an outcome that can only lead to bad results for the offending attorney.
Charles V. Berwanger is a partner at Gordon Rees Scully Mansukhani, LLP. law.
This article was originally published on the SDCBA website. Click here to view.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**