Appeals panel files misconduct complaint against plaintiff’s attorney

A 4th District Court of Appeal panel has filed a misconduct complaint against a plaintiff's attorney for referring to the ruling of a female judicial officer as "succubustic."

The panel reported the attorney, Benjamin Pavone of Pavone & Fonner LLP, to the State Bar for "manifesting gender bias" and for issuing unfounded accusations that the trial court attempted to evade appellate review, according to a partial opinion published Thursday.

"We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period," Justice Richard D. Fybel wrote in the opinion. Justice Raymond J. Ikola and Justice David A. Thompson concurred. Martinez v. O'Hara, G054840 (Cal. App. 4th Dist. Feb. 28, 2019).

In response to the opinion, Pavone said in a statement, "It is not reasonable to assume a self-respecting lawyer will stand for being unfairly accused and morally impugned and not fight back."

In the underlying case, a jury awarded $8,080 in damages for a sexual harassment claim under the California Fair Employment and Housing Act. The plaintiff filed a motion for attorney fees, which was denied by Orange County Superior Court Commissioner Carmen Luege. In the plaintiff's notice of appeal, filed Feb. 17, 2017, Pavone called the lower court's ruling "disgraceful."

"The ruling's succubustic adoption of the defense position, and resulting validation of the defendant's pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners," Pavone wrote in the notice of appeal.

Pavone also claimed the plaintiff never received a copy of a signed judgment, alleging the court "cynically attempted to suppress notice of the judgment in order to thwart review."

The appellate panel found the trial court did not prejudicially err in denying the motion for attorney fees. Luege did not respond to a request for comment.

The panel also found Pavone's reference to the trial court ruling as "succubustic" violates the California Rules of Professional Conduct, which prohibit an attorney from unlawfully harassing or discriminating against persons on the basis of gender while representing a client. According to Webster's New World College Dictionary, a succubus is defined as "a female demon supposed to descend upon and have sexual intercourse with a man while he sleeps."

Further, the panel found Pavone's suggestions that the trial court intentionally tried to evade appellate review of its decision were made without any support in the record and thus constitute reportable misconduct.

Court of Appeal clerk Alex Reynoso confirmed in a phone call the report would be sent to Pavone and the State Bar by the end of the day Friday.

"The trial court drew first blood when it accused me of fabricating entries," Pavone said in his statement. "Upon scrutiny on appeal with the augmented record, that accusation fell apart. The panel conveniently ignores that fact. Notably, there is no indication the panel will refer the trial judge for discipline in light of its false accusations, ones far more serious than a vague sexual reference technically attacking the ruling, not the judge."