Salsbury Eng'g, Inc. v. Consol. Contracting Servs., Inc. (In re Mahoney)

• Decision Date: 10 June 2021
• Docket Number: G057832 (Consol. with G057966)
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Paul M. MAHONEY on Contempt. Salsbury Engineering, Inc., Plaintiff, Cross-Defendant and Appellant, v. Consolidated Contracting Services, Inc., Defendant, Cross-complainant and Respondent.

65 Cal.App.5th 376

280 Cal.Rptr.3d 2

IN RE Paul M. MAHONEY on Contempt.

Salsbury Engineering, Inc., Plaintiff, Cross-Defendant and Appellant,

v.Consolidated Contracting Services, Inc., Defendant, Cross-complainant and Respondent.

G057832 (Consol. with G057966)

Court of Appeal, Fourth District, Division 3, California.

Filed June 10, 2021

As Modified June 16, 2021

Paul. M. Mahoney, in pro. per.

OPINION

THE COURT:^*

These contempt proceedings arise from a petition for rehearing filed by Attorney Paul Mahoney on behalf of his client Salsbury Engineering Inc., in which he impugned the integrity of both the trial court and this court. In that petition, he cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one. Instead he filed nine pages of text that more closely resembled a rant than a petition.

We issued an order to show cause to give Attorney Mahoney an opportunity to explain why he "should not be held in contempt for language ‘impugning the integrity of the court in a document filed with the court.’ ( In re Koven (2005) 134 Cal.App.4th 262, 271, 35 Cal.Rptr.3d 917 ; see also In re Buckley (1973) 10 Cal.3d 237, 248, 110 Cal.Rptr. 121, 514 P.2d 1201.)"

In that order, we made clear the language the court felt impugned its integrity. We specified that:

"On March 17, 2021, Attorney Paul M. Mahoney and Mahoney & Soll LLP filed a petition for rehearing in this matter on behalf of appellant Salsbury Engineering, Inc. (Salsbury). The petition did not analyze a single statute or decision. It made no effort to deal with the specific language of the contract at issue in this case, which supports the trial court's ruling. It made no effort to explain why notices of completion for the first two phases of construction were not recorded until the end of the JOST project, an indicator the parties involved viewed the project as integrated. It made no effort to explain why retainage was not returned to Salsbury on completion of phases 1 and 2, as would have been expected if they had been regarded by the parties as separate contracts. It made no effort to explain why, if these were separate contracts, the owner did not release to Consolidated Contracting Services, retention funds upon completion of each phase. It made no effort to explain where we had erred in distinguishing the Hunt and Arntz cases upon which Salsbury had relied. ( Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 54 Cal.Rptr.2d 888 ; Hunt v. Fahnestock (1990) 220 Cal.App.3d 628, 269 Cal.Rptr. 614.)

"In short, rather than attempt to convince the court its reasoning was faulty, you indulged in an unprofessional rant that impugned the integrity of the court, including casting the following aspersions regarding the court's opinion filed March 2, 2021:

"• ‘Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic ] ignored by the actions of people like Tom Girardi.’ (Pet. at p. 6.)

"• Insinuation that respondent Consolidated Contracting Services, Inc. (Consolidated) may have prevailed because it had contracts with a third party ‘who ... wields a lot of legal and political clout in Orange County.’ (Pet. at p. 6.)

"• ‘... [B]ecause of a judicial slight [sic ] of hand with no factual basis, this court has altered the landscape and created a windfall for Consolidated.’ (Pet. at p. 8.)

"• Suggestion that this court did not ‘follow the law.’ (Pet. at p. 11.)

"• Assertion that the court ‘ignores the facts’ in its opinion. (Pet. at p. 8.)

"• Conclusion that this court ‘indiscriminately screw[ed]’ Salsbury. (Pet. at p. 11.)"

We expected contrition of the type displayed – but found inadequate – in In re Koven, supra. Instead, Attorney Mahoney "doubled down" on his original petition. He asserted that he had merely, "mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple."

We are simply unable to read that statement as anything but a second insinuation that political clout accounted for the trial court's actions and our affirmance of them. When read in conjunction with his similar allegation in the petition for rehearing, this would serve as a perfect exemplar in any law school class in which the instructor was attempting to illustrate the phrase "impugn[ ] the integrity of the court."

Nor can we find any other way to interpret his comparison of the courts in this case to Los Angeles Attorney Thomas Girardi – whose alleged transgressions have received a great deal of media attention of late – than as an insult to the integrity of the court. He said, "Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic ] ignored by the actions of people like Tom Girardi."

The only uncertainty about how contemptuous that statement is relates to the muddled language marked by our [sic ]. We tried to figure out whether he was saying that we were indistinguishable from Girardi and his ilk or that we ignored conduct such as his, but finally abandoned the effort because either one was contemptuous.

Nor did Attorney¹ Mahoney recant at the hearing. We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it.

The result is that we cannot even say, as did the Koven court, "We accept Koven's apology. Nevertheless, we do not purge Koven of the contempts ...." ( In re Koven, supra , 134 Cal.App.4th at p. 265, 35 Cal.Rptr.3d 917.) Unlike the Koven court, which dealt with an attorney who had conceded her statements were "both improper and inexcusable on their face," and who "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," ( id. at p. 264, 35 Cal.Rptr.3d 917 ) we are confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument.

We do not. We have elsewhere lamented the fact modern law practice is "rife with cynicism, awash in incivility." ( Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293, 133 Cal.Rptr.3d 774.) This kind of over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop.

If you think the court is wrong, don't hesitate to say so. Explain the error. Analyze the cases the court relied upon and delineate its mistake. Do so forcefully. Do so con brio ; do so with zeal, with passion. We in the appellate courts will respect your efforts and understand your ardor. Sometimes we will agree with you. That's why you file a petition for rehearing – because they are sometimes granted.

But don't expect to get anywhere – except the reported decisions – with jeremiads about "society going down the tubes" and courts whose decisions are based not on a reading of the law but on their general corruption and openness to political influence. " ‘The judge of a court is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity and it is his bounden duty to protect the integrity of his court.’ [Citations.] ‘However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides.’ [Citation.]" ( In re Ciraolo (1969) 70 Cal.2d 389, 394-395, 74 Cal.Rptr. 865, 450 P.2d 241.)²

This isn't some New Age civility initiative....