In 2008, an LA trial judge declared attorney Charles Kinney to be a “vexatious litigant” – under a statute requiring such a designee to get court permission before filing any new lawsuit.  Without getting permission, Kinney filed a new lawsuit on behalf of a co-owner of his property, against his neighbors.  He lost and appealed.

A couple of weeks ago, the Court of Appeal really hammered him – in a published opinion.  In re Kinney (12/8/11) ___ Cal.App.4^th ___, 2011 WL 6091839.

The Court affirmed on the merits – and then held that Kinney was using the co-owner as a proxy for himself.  The Court recounted in detail Kinney’s long list of failed litigation – representing both himself and his clients.  The Court concluded: “This opinion will serve as a prefiling order prohibiting Kinney from filing any new litigation — either in his own name or in the name of [his proxy] — in the courts of this state without first obtaining leave of the presiding judge. Disobedience of this order will be punished as a contempt of court.”  The Court sent a copy of its opinion to the State Bar.

By coincidence, my wife – Diana Sam – just won a case against Kinney.  Kinney represented an Oakland homeowner, suing a neighbor for harassment resulting in alleged damages (including reduction in the value of the property and emotional distress) of over $2 million.  After the defendant was served, she wrote a letter of apology to the plaintiff – admitting all the allegations (including one that said she had put dog feces on plaintiff’s front door)!  Only then did she retain Diana.  After that letter, not much chance of contesting liability.  But at trial, Diana held the damage award down to only $6,000.

In my years as an appellate lawyer, I’ve seen many instances where attorneys have been sloppy, cut ethical corners, and otherwise behaved unprofessionally.  This one, however, stands out for laziness, disregard for client and process, and no idea that he might in fact get caught.  A cautionary tale, well told by Justice Bedsworth.  I quote liberally from his opinion.

In Kim v. Westmore Partners, Inc. (2011) ___ Cal.App.4^th ___, 2011 WL 5925228, respondent’s lawyer asked the Court of Appeal (4^th District) for extension of time to file his brief:

“In that request for extension, Donahue explained—under penalty of perjury—that additional time was required to file the brief because of the many “complex issues raised” by appellants and his “[n]eed [for] more time to research cases & finalize brief….” He also cited “other time commitments of counsel.” The extension was granted.  However, when Donahue filed his brief, it belied his claim that he had been engaged in any significant research in connection with this appeal, as well as his claim of needing any significant time to “finalize” his brief. In fact, Donahue’s brief proved to be an almost verbatim duplicate of another brief he filed with this court in September of 2009, in the case of Nguyen v. Castillo (G041494).”

In a published opinion, the Court really lit into the lawyer:

“Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel’s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim’s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case—including a boilerplate accusation of misconduct against appellants’ counsel and a boilerplate request for sanctions based on a purportedly “frivolous” appeal—will not be countenanced.  Donahue’s response to this court’s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue’s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.  * * * *

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.

We do not come to this conclusion lightly. Judges are lawyers, too. And while we have taken on a different role in the system, we have not lost sight of how difficult it is to practice law. Indeed, at the appellate level, we are reminded daily how complex and recondite the issues that confront practitioners daily can be.

So we are loath to act in any way that would seem to encourage courts to impose sanctions for mistakes or missteps. But for serious and significant departures from the standard of practice, for departures such as dishonesty and bullying, such steps are necessary. We will step onto the slippery slope and trust our colleagues on the trial court bench to tread carefully along with us. It is time to make it clear that there is a price to pay for cynical practices.

If this be quixotic, so be it. Rocinante is saddled up and we are prepared to tilt at this windmill for as long as it takes.  * * * *

The court having found that Timothy J. Donahue, State Bar No. 110501, has violated court rules in such a degree as to require sanctions in the amount of $10,000, the clerk of this court is ordered, pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), to forward a copy of this opinion to the State Bar upon return of the remittitur, and to notify Mr. Donahue that the matter has been referred to the State Bar.”

MM: I would add another concern: Mr. Donahue disrespected the Justices themselves.  Appellate judges take their work very seriously.  They realize that they are usually the final stop on the road to justice.  There aren’t many rules restricting how an appellate lawyer must behave, but the rules that exist are very important.  They ensure that the Court gets the facts right (through a proper record) and gets the law right (through proper citations of relevant authority).  The Justices need both if they are to come to the correct result for the parties and – in a published opinion – sets precedent for the rest of society.  A lawyer who ignores these goals assaults the Justices where it really hurts.

Here’s my write-up on another recent case, for CEB’s Landlord-Tenant Practice books.

In People v. Bell (2011), 197 CA4th 822, 128 CR3d 588, Bell leased an apartment under the name of another person whose identity Bell was using without permission, then made only partial rent payments.  The court upheld Bell’s conviction for grand theft:

“We conclude that the grand theft conviction is supported by substantial evidence because Bell intended to permanently deprive Healstone of a leasehold interest in real property, at least to the extent that Bell failed to pay rent during her occupancy. Bell took possession of the apartment by false pretenses and was delinquent in rent payments “right off the bat.” She made partial payments, late payments, and a payment with a bad check. The jury could reasonably have concluded that she intended to deprive the owner of months of rent when she moved into the apartment under false pretenses. Using another’s identity not only permitted her to lease the apartment, but also to have that person’s bank account garnished instead of Bell’s. And because nothing in the record suggests that she intended to pay all the rent at a later time, it is evident that she intended to permanently deprive Healstone of its leasehold interest, at least to the extent of the unpaid rent.”

Here’s another summary of a recent case I’m adding to California Landlord-Tenant Practice (CEB:

In Gould v. Corinthian Colleges, Inc. (2011) 192 CA4th 1176, 120 CR3d 943, a commercial lease contained an “anti-waiver” provision, which said that the landlord’s acceptance of less than the full amount of rent shall not be a waiver of his right to the remainder of the rent.  The parties agreed that the tenant could terminate early by paying $136,500.  The tenant paid $120,000, telling the landlord to take the balance from the tenant’s security deposit.  The landlord kept the $120,000, then claimed that the tenant’s effort to terminate early was ineffective, because the tenant had no right to require the landlord to use the security deposit, and the anti-waiver provision gave the landlord the right to keep the $120,000 and still be owed the remaining $16,500.  The court held that by failing to return the $120,000, the landlord had waived the anti-waiver provision, and therefore rejected the landlord’s assertion that the early termination was ineffective.  “For Gould to keep the money and claim it does not constitute waiver is absurd, not to mention unconscionable.”

Here’s a case summary I recently wrote for California Landlord-Tenant Practice (CEB):

In Ramirez v. Wong (2010) 188 CA4th 1480, 116 CR3d 412, a male resident manager entered an apartment occupied by two female tenants while they were out, opened their dresser drawer, and sniffed their underwear.  The court held that this did not violate Civil Code §51.7, because this involved no threat of violence.  Nor was it sexual harassment under Civil Code §51.9, as it involved no interaction between the manager and the tenants, i.e., the tenants were unaware of the conduct while it was happening.

MM: But what about Civil Code §1954(a), which allows the landlord to enter the tenant’s premises only for certain specified purposes – not including underwear-sniffing?  Did the tenant’s lawyer drop the ball by not alleging §1954(a) as a basis for liability?

Here’s another case summary I’ll be adding to the California Eviction Defense Manual (CEB):

In Munoz v. MacMillan (2011) 195 CA4th 648, 124 CR3d 664, the landlord sued the tenant in unlawful detainer, won, obtained a writ of possession, and evicted the tenant.  The tenant then appealed and won.  Then the tenant sued the landlord for breach of contract, alleging that the landlord had breached the lease provision assuring the tenant of quiet possession during the lease term.  The trial court granted summary judgment for the landlord, holding that the landlord had evicted under color of a valid judgment.  The appellate court reversed, holding that “the tenant’s rights under the lease do not disappear merely because a landlord initiates an unlawful detainer action.”  The court noted that while the landlord’s good or bad faith might be relevant in a tort action, it is not relevant in a suit for breach of contract.  “Were this not the rule, it would be difficult to explain doctrinally what happened to Munoz’s contract rights.  Munoz did not at any time voluntarily relinquish her right to possession under the lease for the term, either during the pendency of the term prescribed, either during the pendency of the unlawful detainer action or following the initial judgment.  The entry of an appealable judgment in the underlying unlawful detainer action was not sufficient to extinguish the lease as a matter of law.”  And the tenant’s failure to seek reinstatement of the tenancy after reversal of the unlawful detainer judgment did not preclude the breach of contract action.

I’m now writing an Update for a book I wrote many a year ago: the California Eviction Defense Manual, now published by California Continuing Education of the Bar.

In the next few days, I’ll be posting summaries of some of the more significant new cases.

Here’s the first one.  The case came down just a couple of weeks ago.

            In Lewis Operating Corp. v. Superior Court (2011) ___ CA4th ___, ___ CR3d ___, 2011 WL 5429554, the tenant was injured while using a treadmill at an exercise facility operated by the landlord at the apartment house.  When the tenant sued for negligence, the landlord invoked a provision of the rental agreement where the tenant waived all negligence claims against the landlord arising out of use of the exercise facility.  The tenant countered with CC 1953(a)(5), which invalidates waivers of “His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.”  The court rejected that argument, holding that the Legislature did not intend the statute to apply to “amenities.”  The court held:

Where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility that goes beyond bare habitability, there is no reason whey the landlord may not protect itself by requiring the tenant, as a condition of use of the amenity, to execute the same waiver or release of liability that could lawfully be required by the operator of a separate, stand-alone health club or exercise facility.

The court noted, however, that the protection of the statute is not limited to defects covered by the implied warranty of habitability.  So the anti-waiver provision would apply to injuries incurred when a child falls out a window or the landlord fails to provide safety warnings at a common-area swimming pool.  Nor does the court’s opinion necessarily apply to claims based on gross negligence.

One Justice dissented, arguing that the majority had ignored the plain language of the statute, which contains no limitation to amenities.  The dissent also noted that when the statute was enacted, CC 1942.1 already invalidated waivers dealing with habitability claims, so the Legislature must have intended the newly-enacted CC 1953(a)(5) to bar waiver of claims based on amenities.

Today’s NY Times (11/15/11, page A19) has a piece about law profs who sign on to amicus briefs filed in the U.S. Supreme Court.  It mentions a Harvard professor who usually refuses to sign where he hasn’t had the time to thoroughly check whether the brief is analytically and historically accurate.  An academic, he says, has a responsibility beyond that of an advocate. 

I sympathize.  Mixing law professing with litigation can get kind of messy if you take both seriously.

A while ago, I won a couple of big cases establishing the implied warranty of habitability in California.  See Hinson v. Delis (l972) 26 Cal.App.3d 62 and Green v. Superior Court (1974) 10 Cal.3d 616.   Then, donning my law prof’s hat, I wrote a law review article about the topic.  See The Implied Warranty of Habitability: A New Doctrine Raising New Issues, 62California Law Review 1444 (1974).  After it came out, a judge wrote to the law review, saying that they should not have published it – because you can’t trust the guy who argued the case to write an objective, scholarly tome about it. 

I bristled, of course, but on reflection I think he might have been right.  A professor should be very objective – consider all the facts, all the social considerations, and come to conclusions that follow from those facts and considerations.  Let the chips fall where they may.  That is not what an advocate does.  An advocate has a predetermined outcome – win for the client – and then backtracks to find facts and arguments that supports that conclusion.  It’s a totally different way of thinking. 

Many law profs think they are somehow exempt from this dilemma, and merrily write law review articles on issues that they litigate for one side only.  I disagree, and I’ve stopped doing it.  I write a lot, but no more law review articles on issues I litigate.

The conflict can run the other way too.  I once wrote a piece – very objective – criticizing a sitting appellate justice.  He let me know that he hasn’t forgotten it, so as an appellate lawyer, I avoid handling cases assigned to his court.

Yesterday’s NY Times (109/11), at page A31, has a piece on the sentencing practices of Federal Judge Danny Chin (who sentenced Bernie Madoff to 150 years).

One line caught my attention: “Judge Chin acknowledged that he often wondered what happened to defendants who had appeared before him – if his ideal was to balance punishment with rehabilitation, how had it worked out in the real world?  The NY Times tracked down some of those people.”

Why does it take an occasional newspaper reporter to give a judge feedback re the effectiveness of his or her sentencing practices?  Shouldn’t our legal system provide this info to judges on a systematic basis?  Otherwise, a judge might go for years (and 100′s of defendants) operating on faulty assumptions – maybe too harsh, maybe too lenient, or maybe just misguided.

To my knowledge, no jurisdiction in the country – state or federal – has in place a feedback loop telling judges on a regular basis what happened to defendants they sentenced.  Did the sentence cure them of their evil ways, make them so resentful that they committed more crimes, or introduce them to other criminals in prison who educated them on new ways to harm the public?  If the judge doesn’t know, how can he or she adapt and improve?

             It’s happened to all of us. 

             You wrote a perfect brief: the law was clear, and the law seemed to be on all fours with your facts.  A slam-dunk, no way the judge could rule against you. 

           And you lost!  Then you seethed about the judge.  Dumb, arrogant, “result-oriented”, and worse.

            What happened?

            You could be right about the judge.  But maybe something else had occurred.  Maybe – probably, in fact – the judge was trying to achieve “justice”, and he or she was not going to let a little thing like the law stand in the way.       

            Lord Denning tried to justify this: “If there is any rule of law that impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule – or even to change it – so as to do justice in the instant case before him.”

            Outrageous?  Aren’t judges supposed to “follow the law”?  Or defensible?  Isn’t the whole point of having rules is to get just results?  We can debate that another time.  For now, let’s deal with the real world.  Let’s examine how litigators might deal with the fact that judges will indeed, on occasion, ignore the law or twist the facts to get the “right” result. 

            I learned this the hard way, as a young attorney.  And, of course, I railed against it, like you did.  But as I matured (?), I realized that railing wasn’t doing my clients much good.  Maybe it would be better to go with the flow rather than try to swim upstream.  If judges want justice, I should give it to them.

            Here’s the problem.  Before you went to law school, you probably had a pretty good intuitive sense of justice.  But then law school taught you a more systematic way to “think like a lawyer.”  Learn and memorize the rule, then apply it to the facts.  That’s how you write an A exam and pass the bar.  Don’t bother thinking about why the rule was adopted.  Your job is to apply “IRAC” (Issue, Rule, Application, Conclusion), not to find “Justice”.  If mechanically applying IRAC leads your argument down the garden path to an unjust result, so be it. 

           This might work on exams, but it often does not work in the real world.  Judges do not like unjust results, and they will squirm and turn to avoid them. 

            So where do you find “justice” in your case?  Sometimes it’s easy – it hits you in the face, as when your client is a little old widow suing a used car dealer who falsely told her “these brakes are in perfect condition.”

            But often it’s not that simple.  You have to find an angle that will grab the judge’s desire to do the right thing, as he or she sees it.

            I once represented a city that had enacted one of California’s first rent control ordinances.  Landlords immediately filed suit, throwing every conceivable legal theory against the wall, hoping one would stick.  I won in the trial court and California Supreme Court, but the U.S. Supreme Court granted cert on a single issue: is rent control a form of price-fixing that is banned by the federal Sherman Antitrust Act?  I had some good legal arguments, but the “justice” of the case posed a real problem.  Rehnquist was Chief Justice, and most of the other Justices were just as conservative as he was.  They would not be fans of “socialist” rent control from “The People’sRepublic ofBerkeley” (as the landlords were fond of calling my client).  So there wasn’t much point in pressing the “justice” of rent control – protecting poor tenants from unconscionable rent increases, etc.  That was sure to fall on deaf ears. 

             Was there any “justice” angle that might appeal to those guys?  Well, how about this?  Basically, the landlords were arguing that the Court should interpret a federal law in a way that knocked out a local law.  We would argue that Congress could not have intended to have a federal law interpreted to prevent small communities from resolving local problems in ways that they thought best.  “Judge, don’t let Big Brother stop little cities – the governments closest to the people – from dealing with local issues as they think best.” 

            It worked.  See Fisher v. City of Berkeley (1986) 475U.S. 260.

             Here’s another way to look for the “justice” of your case.  We sometimes forget the rules do not arbitrarily fall on us from the sky.  Someone – judges or legislators – made the rules, for a reason.  Usually, that reason is to achieve justice in most cases.  If you can show the judge that the reason behind a rule is a just one, and applying the rule in the way you propose will further that just reason in your case, you should win.

            Take hearsay.  Suppose you represent the plaintiff in a personal injury action against a bus company.  You claim that a bus driver ran a red light, plowing into your client in the intersection.  The bus company wants to introduce an “Accident Report” it requires drivers to file – this one being filed a month after the accident, saying that the light was green when he crossed the line.  You object, claiming hearsay.  The bus company invokes the “business records” exception for writings made “made at or near the time of the act, condition, or event.”  Evidence Code §1271. 

           How might you argue this?  “At or near” is so vague that it could mean just about anything.  So if you just mechanically focus on those words, you’re not going to have much influence on the judge.  But think about why the Legislature included the business records exception.  Probably because when some worker writes a record when the event is still fresh in a mind not cluttered by a lot of subsequent events, he probably got it right.  So reliability is likely the key.  But how reliable is a bus driver’s memory a month after an event, when 29 days worth of other driving incidents might get things muddled in his mind?  That might catch the judge’s attention.

          And how about adding this?  The whole purpose of the hearsay rule is to protect “that great engine of truth-finding”: cross-examination.  If the judge lets the jury see this less-than-reliable accident report, it will deprive plaintiff of her God-given right to question the writer of that report in person and under oath as to whether he was telling the truth.  Isn’t the purpose of a trial to help the jury find out the truth?  (You can probably come up with your own ideas about how to improve this justice argument.  Once you start thinking along these lines, your creative juices will come alive.)

         Will this work?  Maybe, maybe not.  But it surely will have a better chance of persuading the judge than simply urging “30 days is not ‘at or near the time’, your honor.”

         Judges want to do justice.  Help them do it, and your chance of winning will be vastly improved.