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Case of the Month Archive

January 2021

CA-4 warns that attorney's limited success here is not "an endorsement by this court of his behavior". . .


In writ proceeding, Fourth District sustains in part and annuls in part trial court's order re contempt against attorney whose offensive behavior at settlement conference demonstrated a total lack of respect for the trial court, settlement officer, opposing counsel, and opposing party; clerk is ordered to send State Bar a copy of this opinion.


Moore v. Superior Court of Orange County (Barsky)

(November 16, 2020)

California Court of Appeal 4 Civil G058609 (Div. 3) 57 Cal.App.5th 441, 271 Cal.Rptr.3d 469, 2020 FA 1963, per Goethals, J (Bedsworth, Acting PJ and Thompson, J, concurring). Orange County: Brown, J, order annulled in part and sustained in part. For petitioner: Noah Herbold, CETPS, (714) 573-7149. For trial court: no appearance. For real party in interest: David Parnall, CETPS, (925) 253-1717. CFLP §A.115.6.


Bryna Barsky and Jeffrey Ex were married in 1995, had two children, and were divorced in 2011. Their stipulated disso judgment provided, among other things, that Jeffrey would pay child support. However, he failed to do so, and arrearages accumulated. Although he received a $100,000 payment from a family trust in May 2016, he did not use the money to pay his child support debt.


In 2017, Bryna filed a petition in the probate court, seeking to secure payment from the family trust of the approximately $82,000 that Jeffrey owed. The trustee, represented by attorney Kevin Moore, countered that he was not authorized to make trust distributions to Jeffrey while the primary beneficiary, Jeffrey's stepmother, was still living. The trustee asserted that the $100,000 payment had been a loan to Jeffrey approved by his stepmother. The probate court scheduled a mandatory settlement conference in January 2019. The parties were directed to submit settlement conference statements at least 5 days before the conference, and to participate in good faith, per Orange County Local Rule 316. Bryna and her older son traveled from Northern California to participate in the conference, where she was represented by David Parnall. Moore and his associate, Debby Doitch, attended with the trustee. However, neither he nor his associate filed the required conference statement.


Temporary Judge Roy Zukerman conducted the conference as settlement officer. When he questioned Moore and his associate about the absence of a settlement conference statement, Doitch claimed that she had not filed one because "'this case is only about damages.'" When the settlement officer proposed the imposition of a lien against the trust, Moore objected in what Zukerman described as an "'extremely rude, verbally aggressive, and unprofessional'" manner toward him and Parnall. As the conference continued, Moore yelled at Parnall as well as accused Parnall of lying (but failed to specify how) and of failing to research the case (without rebutting Parnall's cites). He continually interrupted Parnall and Zukerman and refused their requests to him to calm down. After 15 minutes of this, Zukerman determined that Moore did not intend to participate in good faith at the conference and ended it.


Zukerman later executed a declaration detailing Moore's behavior and actions, which Bryna added to her trust case as evidence of the bad faith of the trustee and his attorneys. She also sought an award of fees to be paid from the trust and moved in limine to permit Zukerman to testify at the probate trial. After reviewing Zukerman's declaration, the probate court permitted him to testify. In July 2019, that court issued a statement of decision, imposing a lien on Jeffrey's trust interests, enjoining the trustee from making a distribution to Jeffrey's stepmother without notice to Bryna, and requiring the trustee to deduct monthly child support from any payments to Jeffrey. It also awarded attorney's fees to Bryna, based on the trustee's bad faith misconduct. The probate court then set an OSC re contempt against Moore based on the material in Zukerman's declaration as well as Moore's failure to file a settlement conference statement and his apparent failure to participate in good faith.


The OSC was personally served on Doitch. In opposition, Moore asserted that he had prepared for the conference, that the failure to accept a settlement offer did not constitute contempt, and that his "'frustration with this case and his zealous advocacy of his client got the better of him'", which offended Zukerman and Parnall. The contempt trial proceeded over several days between June and September 2019. Bryna testified that she had been upset by Moore's actions, which included a sinister threat against Parnall, and by Moore, Doitch, and the trustee's laughing together as they exited the conference. Parnall testified about the events and his conclusion that Moore's conduct went beyond the usual posturing. Moore testified that Doitch should have prepared the conference statement but was prevented from doing so by a medical emergency. He described his actions as animated and probably verbally aggressive. He denied threatening Parnall and claim that he was just trying to correct "'false and misleading statements'" that Parnall was making to Zukerman. At the end of his testimony, Moore apologized for his conduct. Doitch testified about her medical emergency and denied any bad faith.


On September 27, 2019, the trial court found that Moore was in contempt for four categories of misconduct: (1) yelling and interrupting Zukerman and Parnall; (2) falsely accusing Parnall of lying; (3) refusing to engage in settlement discussions; and (4) deterring Zukerman from seeking assistance from the supervising judge by threatening that doing so would impermissibly divulge settlement information. The lower court fined Moore $900 for each category and ordered him to pay Bryna's attorney's fees and costs. The court stated that Moore's conduct and statements were "'totally unprofessional'" and disruptive of the trial court's functions. The lower court declined to find that Moore was in contempt for failing to file a settlement conference statement, believing that it was Doitch's job, and denied Moore's motion to dismiss for lack of jurisdiction.


Moore filed a petition for a writ of review, and the Fourth District sustained it in part and annulled it in part.


That's the way it goes. . .
The justices began by explaining that there are two types of civil contempt, direct and indirect contempt. Here, they noted, there was indirect contempt, since the conduct was not committed in the presence of the court. The justices outlined the steps required in bringing an indirect contempt case: (1) presenting an affidavit containing the facts constituting the contempt to the trial court; (2) the trial court issues a warrant of attachment or OSC; (3) the warrant or OSC is served; (4) if a warrant (not applicable here), arrest and bail are possible; (5) a hearing at which the charges are investigated and answered and witnesses may testify; and (6) findings are made and punishment imposed. In this case, the panel concluded, all the required steps were taken.


He knew. . .
The justices acknowledged that the affidavit in this case "was unconventional" since the declaration on which it was based was not created by Zukerman with the intent to initiate contempt proceedings. Moreover, the OSC failed to "enumerate the contempt counts in a manner aligned with the ultimate outcome of the case." However, the declaration did make clear the facts constituting the contempt-Moore's obnoxious behavior, misconduct, and lack of good faith-for which he was convicted. Nonetheless, the panel found, due process required that Moore receive notice of the specific charges at issue. And, they determined, the charging documents gave him the required notice as to the kinds of misconduct listed by the trial court.


Failing to notice. . .
The justices found, however, that Moore had not been given adequate notice of contempt charge $4, deterring Zukerman from seeking assistance from the supervising judge by threatening that doing so would unlawfully divulge settlement information. Therefore, they concluded, that count must be vacated for lack of due process. In addition, the panel continued, the lower court violated his due process rights by failing to give him notice that he faced three separate counts for action in bad faith. The justices were convinced that Moore's misconduct was sufficiently egregious to constitute contempt but found that the trial court should have lumped the three counts into one count of contempt, based on the totality of his conduct. Accordingly, the panel annulled the contempt order as to three counts and three fines, consolidated them into one count for bad faith participation and obstreperous misconduct at the settlement conference, and imposed one $900 fine. In conclusion, the justices determined that the award of fees and costs was not authorized by statute since Moore did not violate a trial court order.





Not surprisingly, the panel directed the court clerk to send a copy of this opinion to the State Bar as soon as it is final. They warn, however, that Moore's limited success in this writ action should not be "construed as an endorsement by this court of his behavior." Indeed, although the justices give him a break by consolidating three counts and vacating the other count, at no place in the opinion do they express anything but disapproval of his conduct.



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