Moore v. Superior Court of Orange Cnty.
| Decision Date | 16 November 2020 |
| Docket Number | G058609 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kevin J. MOORE, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Bryna Barsky, Real Party in Interest. |
Moore & Associates, Kevin J. Moore, Pasadena, Kevin M. Bayley, Huntington Beach; Mortensen & Reinheimer and Noah B. Herbold, Irvine, for Petitioner.
No appearance for Respondent.
Hartog, Baer & Hand, David W. Baer, Orinda, and David Y. Parnall, Walnut Creek, for Real Party in Interest.
While representing a client at a mandatory settlement conference (MSC) before a temporary judge, petitioner Kevin Moore was rude and unprofessional. Among other things, Moore (1) persistently yelled at and interrupted other participants; (2) accused opposing counsel of lying while providing no evidence to support his accusation; (3) refused to engage in settlement discussions; and (4) effectively prevented the settlement officer from invoking the aid and authority of the supervising judge by asserting this would unlawfully divulge settlement information. To make matters worse, Moore later acknowledged that his contemptuous behavior was the result of a tactical decision he had made to act in such a manner in advance of the MSC. After a hearing, respondent court convicted Moore of four counts of civil contempt, imposed a $900 fine for each count ($3,600 total), and ordered the payment of attorney fees and costs to the opposing party. (See Code Civ. Proc., § 1209 et seq. )1
Moore here challenges all four contempt convictions and the associated punishments. We conclude the record and applicable law require that three of Moore's convictions be overturned. We affirm one conviction and the punishment required for that offense, and we order the clerk of this court to make the required notification to the State Bar for whatever additional action the Bar may consider appropriate. We also find the award of attorney fees and costs here is precluded by statute.
Real party in interest Bryna Barsky and Jeffrey Ex were married from 1995 until 2011. They had two children during their marriage. Barsky and the coincidentally named Ex resolved their dissolution action by stipulated judgment, which provided for child support payments to Barsky.
Ex received $100,000 from a family trust in May 2016 but did not use the money to extinguish his child support obligations. Barsky filed a trust petition in 2017 to secure payment of the accrued child support from the trust (the probate proceeding). Ex owed Barsky approximately $82,000 at the time of trial.
Moore represented the trustee in the probate proceeding. The trustee asserted he was not authorized to distribute money from the trust to Ex, at least so long as the primary beneficiary (Ex's stepmother) was alive. The trustee characterized the April 2016 transfer of $100,000 as a loan to Ex (approved by Ex's stepmother).
The probate proceeding was resolved following a bench trial. The court's July 2019 statement of decision ordered (1) a lien to be attached to Ex's present or future trust interests; (2) the enjoinment of the trustee from providing any distribution (however characterized) to Ex without providing 60-day advance notice to Barsky and her counsel; and (3) the trustee to deduct monthly support payments for the children from any payment to Ex. The order also awarded attorney fees to Barsky, to be paid out of the trust, based on the trustee's bad faith misconduct committed while litigating the case. The record provided with the writ petition does not describe further proceedings in the probate proceeding.
The contempt proceedings arose out of Moore's conduct at a mandatory settlement conference prior to the probate trial.
By minute order, respondent court scheduled a mandatory settlement conference for January 2019. The court directed "[t]rial [c]ounsel, parties and persons with full authority to settle the case [to] personally attend." The court also ordered "[s]ettlement [c]onference [s]tatements" to be "filed at least five court days prior to" the conference. The Superior Court of Orange County, Local Rules, rule 316 obligates parties to file a settlement conference statement and to participate in good faith at the settlement conference.
The settlement conference proceeded as scheduled. It is Moore's behavior during that MSC that is at issue here. After a hearing, the trial court found it to be contemptuous and imposed the sanctions that are the subject of this appeal. Roy C. Zukerman, acting as a temporary judge, was the settlement officer. Moore and his associate, Debby Doitch, were present with their client, the trustee. Barsky and her elder son attended the conference with their attorney, David Parnall. Barsky, her son, and Parnall travelled to Orange County from northern California to attend.
The MSC lasted approximately fifteen minutes. It did not result in a settlement of the case. Zukerman is an experienced attorney2 and settlement officer.3 After the failed settlement conference, Zukerman (the only disinterested attendee of the settlement conference) executed a declaration describing his recollection of events as they occurred during the aborted MSC.
Zukerman's declaration identified several problems with the conduct of Moore, his associate, and his client. No settlement conference statement was filed by the trustee. When Zukerman asked why he had not received the statement, Doitch "stated that she and attorney Moore had not filed such a statement because ‘this case is only about damages.’ "
Zukerman suggested what he believed was an appropriate resolution to the lawsuit, i.e., the imposition of a lien against the trust such that funds available in the future to Ex would be first paid to Barsky. "In response to my proposal, attorney Moore was extremely rude, verbally aggressive, and unprofessional—not only toward attorney Parnall, but also toward me."
Zukerman recalled that Moore's abusive conduct continued. Moore yelled at and accused attorney Parnall of lying, without offering any specifics to support his allegations; he accused Parnall of failing to research the case, without rebutting authorities cited in Parnall's submissions; he interrupted, talked over, and yelled at Parnall and Zukerman; and he refused to calm down upon request. Zukerman stated Parnall was professional and composed throughout the conference and that he unsuccessfully attempted to calm Moore down.
Zukerman concluded, "In my opinion, [trustee], attorney ... Moore, and attorney ... Doitch failed to ‘participate in good faith’ in the MSC, as required by ... Local Rule 316(E)."
Barsky obtained the Zukerman declaration in an effort to supplement her probate petition, adding allegations about the bad faith of the trustee and his attorneys. Barsky's supplement asserted grounds for the potential recovery of attorney fees and litigation costs in the probate proceeding to be paid out of the trust.
Barsky also moved in limine to include testimony by Zukerman during the trial on the probate petition. The court reviewed the Zukerman declaration and granted the motion to allow Zukerman to testify.
After ruling on the motion in limine, the court addressed the contempt issue: "[B]ased on [the Zukerman declaration's] contents, I now set an order to show cause in re contempt by the individual Kevin Moore, and I'm going to set that for" a hearing.
During the ensuing probate trial, the court heard the testimony of Zukerman, which included cross-examination. Zukerman explained he was appointed to serve as a temporary judge for the settlement conference. He noted that approximately 25-35 percent of parties fail to file a settlement conference statement.
During his testimony, Zukerman addressed petitioner Moore's misconduct:
Zukerman explained his thinking in this regard. "When an attorney argues with me, butts in every time I try to start a sentence, and calls the opposing attorney a liar, I feel that attorney does not want to continue with the settlement conference." Zukerman then repeated his opinion that Moore did not participate in good faith in the settlement conference. Zukerman did not testify with regard to any statements by Moore about whether Zukerman could consult with the trial judge about Moore's behavior.
On April 18, 2019, the court issued a statement of probable cause accompanied by an order to show cause related to Moore's conduct during the MSC: ...
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City of Long Beach v. Patel
... ... B316807California Court of Appeals, Second District, First DivisionJanuary 27, 2023 ... Superior Court of Los Angeles County ... No. 18LBCV00013, ... propriety ... " (Moore v. Superior Court (2020) ... 57 Cal.App.5th 441, ... ...