LAKEPORT, Calif. – This week a state appellate court levied a substantial sanction on a local judicial candidate for filing an appeal in a family law case that the justices said was frivolous, involved delay tactics and cast aspersions on the performance of a Lake County Superior Court judge.
The First Appellate Court levied the $6,000 sanction against Lakeport attorney Judy Conard in an unpublished opinion released on Tuesday.
Conard is running for the Lake County Superior Court Department 1 bench this fall against fellow Lakeport attorney Michael Lunas.
Conard said Thursday that she was shocked and very disappointed by the decision.
“We obviously believed the appeal had merit or I would never have filed it,” said Conard.
She said she has never before had such a sanction placed against her.
The court’s decision won’t become final until the remittitur is filed, which Conard said she expected to occur by the end of October. At that point, she will have the option of appealing to the California Supreme Court.
The case in question involves Conard’s client, Theodore Parfet, and his former partner, Amy Tucker, who have a 7-year-old child together.
Last October, Parfet, who lives in Michigan, appealed an order that he pay the attorney fees Tucker incurred while she opposed his motions to modify child custody, visitation and child support, according to the decision, which can be read below.
Conard said they appealed the amount of attorneys’ fees, which at nearly $80,000 were in excess of what the interim fees were to be.
“If I had to do it over again, I would,” she said.
Tucker’s attorney, Lawrence Buchanan of Windsor, did not return a call seeking comment.
The sanction meted out against Conard appears to be unusual in its size and the severity of its language, based on reactions this week from members of the county’s legal community.
The three appellate justices found “the degree of objective frivolousness and delay is extremely high,” and that “pursuing a meritless appeal of an attorney fee award under the circumstances of this case flies in the face of the very purpose of the Family Code attorney fees statutes.”
The decision continued, “Unfortunately, the record before us contains strong evidence that delay tactics such as this are part of a larger and ongoing litigation strategy. Thus, the amount of sanctions must be sufficient to discourage like conduct in the future.”
Parfet was ordered to pay an additional $15,000 in sanctions to Tucker “for filing this frivolous appeal,” the justices ruled.
Finding that Conard had a professional responsibility not to pursue a frivolous appeal just because her client instructed her to do so, the justices said Conard violated her duties by facilitating the appeal “and by advancing arguments which exceed the bounds of both common sense and sound advocacy.”
As a sanction for facilitating the appeal, the appellate court ordered Conard to pay $6,000 to the clerk of the Lake County Superior Court, with both Conard and the court clerk ordered to forward a copy of the appellate opinion to the State Bar of California.
Laura Ernde, acting communications director for the State Bar of California, told Lake County News that attorneys who receive sanctions of more than $1,000 are generally required to report them to the State Bar.
She said any resulting investigation would be confidential unless and until the bar pursued formal disciplinary charges against the attorney.
State Bar records show that there are no public records of discipline or administrative action against Conard, who was admitted to the State Bar in 1985. Ernde said Lunas, a State Bar member since 1982, also has no public disciplinary or administrative action records.
A lengthy, contentious case
The main child support case was heard by retired Lake County Superior Court Judge Robert Crone Jr.
In January 2011, Tucker sought more than $7,700 in outstanding attorney fees and an advance of $30,000 for attorney’s fees and costs in order to conduct a trial on motions Parfet filed in the case.
Two months later, Judge David Herrick ordered Parfet to pay the unpaid balance of Tucker’s attorney fees plus pay the $30,000 advance.
Later that summer, Buchanan filed a declaration for attorney fees and costs in the sum of $79,115, $4,200 for expert witness fees and nearly $700 in deposition expenses.
In July 2011, Judge Crone heard the motion, found that Buchanan had made a prima facie showing of entitlement to the fees, and asked Conard “to support her contention that the amount of the fee request was unreasonable.” She asked for additional time, with the court giving her until the following month, when she filed the response.
In September 2011, Judge Crone ruled that Tucker’s expenditures “were reasonable under the circumstances in light of Parfet’s financial resources and demonstrated willingness to use those resources to fund litigation against Tucker.”
Court documents showed that on Oct. 12, 2011, Parfet filed a motion of appeal for Crone’s order, arguing that Crone abused his discretion by failing to review relevant evidence before granting attorney fees. The burden of proving that abuse was on Parfet, who the appellate court found failed to make the argument.
“Here, the trial court granted an attorney fees motion and there is no dispute on appeal that the award is supported by substantial evidence. More to the point, Judge Crone never made any statement which could be construed as a refusal to review Buchanan’s fee request. To the contrary, the record before us confirms that the trial court did review the relevant evidence,” the appellate justices wrote.
The court also found that Parfet’s case had “unsound” interpretation of case law, made contentions inconsistent with the case’s record, and failed to offer evidence to support his contention that Buchanan’s billing records were “clearly inaccurate” or that Parfet brought the alleged errors to the trial court’s attention.
“Despite his bold and inflammatory language, Parfet identifies only one allegedly obvious inaccuracy in the billing statements,” the justices wrote. “He contends that Buchanan ‘billed 21.5 hours for court time’ when the ‘Court records and Appellant’s records clearly show 12 hours.’”
The court went on to find that “Parfet’s claim that this trial court failed or refused to review the evidence relevant to the attorney fees motion prior to making its ruling is not supported by any evidence in this record. The record before us shows that Judge Crone was very familiar with every aspect of this case and that he properly exercised his discretion by making the attorney fees award that is the subject of this appeal.”
The justices also shot down other claims by Parfet that Crone abused his discretion by “procedural irregularities” regarding timely review of Parfet’s objections and that he denied Parfet the opportunity to file additional objections to a second proposed statement of decision that Tucker submitted to the court. The appeals court noted that Parfet again failed to provide evidence of his assertions.
In its analysis, the court cited case law that defines an appeal as being frivolous and warranting sanctions “when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit.”
The decision concluded, “This appeal is frivolous under both of these standards.”
It continued, “Every argument that Parfet made on appeal is based on a questionable if not patently erroneous interpretation of the record. Furthermore, Parfet relied on obviously inapposite case law and employed legal presumptions which are inconsistent with settled principles of appellate review. Finally, Parfet cast aspersions on the trial judge without any factual justification. Under these circumstances, any reasonable attorney would agree that this appeal is totally without substantive merit and therefore frivolous.”
The justices concluded that the only motive was delay, noting, “ ... every round of litigation that he has initiated has been delayed and exacerbated by his resistance to paying Tucker’s fees. This time around, there is evidence that Parfet and his counsel made representations about Parfet’s willingness to pay reasonable fees which were inconsistent with their actual litigation strategy, i.e., to resist paying any fees for as long as possible.”
With the decision coming about a month and a half before the election, Conard said she was “assuming it’s a test of my judicial temperament.”
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