In re Koven, 2d Civil No. B184017 (CA 11/22/2005)

• Decision Date: 22 November 2005
• Docket Number: 2d Civil No. B184018,2d Civil No. B184017
• Parties: In re DEBRA L. KOVEN, On Contempt.
• Court: California Supreme Court

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In re DEBRA L. KOVEN, On Contempt.

2d Civil No. B184017

2d Civil No. B184018

Court of Appeals of California, Second District, Division Six

November 22, 2005

Appeal from the Ventura County, B159344, B168013.

Eric S. Multhaup, for Respondent.

THE COURT^•:

These contempt proceedings arise from two petitions for rehearing filed by attorney Debra L. Koven (Koven) on behalf of her client, Paul Bashkin (Bashkin). In no uncertain terms Koven accuses us of "deliberate judicial dishonesty." (In re Buckley (1973) 10 Cal.3d 237, 250.) These accusations are not only false: they are "insolent, offensive, insulting, and [impugn] the integrity of [this] court." (Ibid.) After we issued the orders to show cause and apparently after some reflection, Koven now concedes that the accusations "are both improper and inexcusable on their face . . . ." She "apologizes for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself."

We accept Koven's apology. Nevertheless, we do not purge Koven of the contempts she committed because her unsupported accusations of judicial misconduct are patently outrageous. Moreover, there is an aggravating factor. Koven has engaged in a pattern of abuse. She has also impugned the integrity of the trial judge, opposing counsel, and counsel's expert witnesses. (See Infra, at pp. 14-16.)

The Court of Appeal will not quietly suffer an attack upon its integrity. Our obligation to preserve the integrity of the judiciary compels us to find Koven guilty of two counts of direct criminal contempt of this court. We need not decide whether Koven could be found guilty on more than two counts of contempt because of the multiple contemptuous statements in both petitions. In view of her apology, we do not impose any jail time. It is sufficient to fine her $2,000: $1,000 for each of the two petitions for rehearing. We refer Koven to the State Bar for investigation and, if appropriate, the imposition of disciplinary sanctions. (Bus. & Prof. Code, § 6086.7.)

Factual and Procedural Background

Koven represented Bashkin in a legal malpractice action brought against DeWitt F. Blase and Heily & Blase (hereafter defendants). (Bashkin v. Blase et al., Ventura Super. Ct. No. CIV183660.) This action arose from defendants' representation of Bashkin in a combined legal malpractice and medical malpractice action against Bashkin's former attorney (Stephen Marpet) and a psychiatrist (Arthur Sorosky). (Bashkin v. Sorosky & Marpet, Los Angeles Super. Ct. No. LC026201.)

On Bashkin's behalf, Koven filed three appeals. We take judicial notice of the records in these cases. (Evid.Code, § 452, subd. (d).) The first appeal (No. B143004), filed on July 10, 2000, was from the trial court's order denying Bashkin's motion to disqualify defendants' counsel, Musick, Peeler & Garrett. This appeal is hereafter referred to as the "first disqualification appeal." On March 22, 2001, we filed our opinion affirming the trial court's order. (Nonpublished opinion by Yegan, J.; Gilbert, P.J. and Perren, J. concurring.)

The second appeal (No. B159344), filed on May 20, 2002, was from the trial court's order denying a new motion by Bashkin to disqualify defendants' counsel and an expert witness (David R. Glickman) retained by counsel. This appeal is hereafter referred to as the "second disqualification appeal."

On December 24, 2002, summary judgment was entered in favor of defendants. The third appeal (No. B168013), filed on June 17, 2003, was from that judgment. This appeal is hereafter referred to as the "summary judgment appeal."

On June 18, 2003, Koven filed a letter requesting that all of the justices of this division (Division Six, Second District Court of Appeal) recuse themselves in the second disqualification appeal. The justices of this division are Gilbert, Yegan, Coffee and Perren. Koven alleged that a reasonable person aware of the facts would "`doubt [their] ability to be impartial.'"

As to Justice Coffee, Koven asserted: "I have just been informed that Justice Coffee, while in private practice, represented [defendants] in an action entitled, Buckley v. Heily & Blase. As a result of the representation, Justice Coffee clearly owes a continuing duty of loyalty to [defendants], which would make it difficult for him to be fair to my client . . . ."

Koven alleged that Justices Yegan and Perren were not impartial because they had "sat on the bench of the Ventura County Superior Court during the time that [defendant] DeWitt Blase was actively trying cases in that venue." Koven claimed that a Ventura County Superior Court judge — Barbara A. Lane — had "voluntarily recused herself [in the instant action], ruling sua sponte, that all Ventura County Superior Court judges had ' intimate knowledge' of [defendants], and as such, it would be 'very awkward' to have the case remain in Ventura and be heard by judges who knew 'intimately both of the defendants.'" "Given [the judge's] statements," Koven asserted, "[Justices Yegan and Perren] would necessarily be included amongst those who could not be impartial in hearing a matter between [defendants] and [Bashkin]." But Judge Lane did not "rule" that all Ventura County Superior Court judges had intimate knowledge of defendants. She gratuitously said: "There's probably no judge in this courthouse who doesn't know the defendant [DeWitt Blase]." "[T]hat might make this case awkward. He's a character and very well-known in Ventura County."

Furthermore, Koven maintained that the justices of this division were not impartial because they had ruled against Bashkin in previous matters, including his request to stay the trial court proceedings pending the resolution of the second disqualification appeal. Koven alleged: "By failing to grant the stay request, this Division has predetermined its ruling against my client in the instant appeal." Koven accused the justices of Division Six of having "repeatedly denied" her client the "right to equal protection under the law . . . ."

Defendants filed opposition to the request for recusal. Defendants' counsel noted that it had "submitted respondents' brief, which addresses every one of the arguments made in appellant's 47-page opening brief." Defendants' counsel stated: "Spending this kind of time and money on briefing is hardly consistent with knowledge that 'the fix is in' before this Division. As each of you certainly knows, I have no such knowledge."

In an order signed by Presiding Justice Gilbert and filed on July 2, 2003, this court denied the request for recusal "as frivolous."

On July 17, 2003, this court ordered, on its own motion, that the second disqualification appeal "be considered and heard together" with the summary judgment appeal.

On April 22, 2005, Bashkin filed his reply brief in the summary judgment appeal. Oral argument in the second disqualification and summary judgment appeals was heard on May 11, 2005. Because Bashkin's appeals were the last matter on the afternoon calendar and Justice Coffee was not on the panel of justices hearing the appeals, he left the bench before oral argument began.

On May 31, 2005, this court filed its opinions in both appeals. (Nonpublished opinions by Yegan, J.; Gilbert, P.J. and Perren, J. concurring.) We affirmed the trial court's order denying Bashkin's new motion to disqualify defendant's counsel and the expert witness. In addition, we affirmed the summary judgment. Koven filed petitions for rehearing in both appeals. We denied the petitions.

Before denying the petitions for rehearing, we issued two orders, one for each appeal, requiring Koven to show cause why she "should not be adjudged guilty of contempt and punished for impugning the integrity of this court." The order to show cause arising out of the second disqualification appeal was assigned case No. B184017. The order to show cause arising out of the summary judgment appeal was assigned case No. B184018.

The order to show cause arising out of the second disqualification appeal stated that it was "based on the petition for rehearing . . . , including but not limited to the following statements:

1. 'After reading the Opinion, it became painfully obvious that this Court worked backwards in reviewing the issues to ensure that the "ends justified the means." . . . [¶] It is clear from the Opinion that this Court neither reviewed the controlling cases, nor read [Bashkin's] Reply Brief, which contained the authority mandating reversal. And why would this Court look at cases cited by [Bashkin], anyhow, when it has concealed its own conflicts with defendants resulting from their prior relationships! How could [Bashkin] possibly convince this Court to follow the governing law requiring expert's and counsel's disqualification, when this Court engaged in the same type of "loyalty-breaching" activities that [Bashkin] was complaining about in his motion to disqualify them?! [Bashkin] never stood a chance to succeed on this appeal. If this Court dared to disqualify an expert and a defense firm that failed to disclose conflicts, its own conduct could be called into question! The cards were not only stacked against [Bashkin], but the Jokers were wild!'

2. 'THE COURT CONSPIRED WITH [DEFENDANTS] TO DEFEAT [BASHKIN'S] INTEREST.'

3. 'In fact, the justices of this Court refused to disclose their conflicts of interest; refused to respond to [Bashkin's] charges; and refused to recuse themselves, precisely because "the fix was in," to quote [defendants'] counsel.'

4. 'Despite its obvious "window-dressing," this Court's elaborate" staging" of the removal of Justice Coffee from the panel hearing oral argument on [Bashkin's] two appeals, ironically proved three things: First, that Justice Gilbert knew full well that [Bashkin's] charges against the other three justices were anything but "frivolous." Second, that all of the prior rulings against [Ba...