Justices tell lawyers to pay up for wasting time with frivolous appeal

An appeal by attorneys at Lavely & Singer PC was so frivolous justices have demanded compensation for their wasted time, the court ruled.

The defendant-appellees, two men accused of intentional interference and fraud by a neighbor in a contentious property dispute, and their attorney Todd S. Eagan of Lavely & Singer were ordered Tuesday to pay $35,985 to plaintiff-appellee Donna S. Workman.

But in a rare extra step, the panel ordered them to submit an $8,500 payment to the court's clerk. Though not blasting the merit of the appeal directly, 2nd District Court of Appeal Justice Audrey B. Collins deferred to precedent, in which courts have found "with increasing frequency" states should be compensated for "the cost to the taxpayers of processing a frivolous appeal."

The appeal sought to overturn the lower court's dismissal of the defendant's motion to strike Workman's underlying case, in which she accused the defendants of interfering with the sale of the home, claiming they sent her an email notifying her of their intent to build a second floor and rooftop deck that would obstruct the homes "sweeping views" of Century City, Westwood, and downtown Los Angeles. Donna Workman v. Paul Colichman, B285945 (L.A. Super. Ct., filed Sept. 4, 2017).

Additionally noticing a real estate broker involved in the pending sale of the home, the defendants told Workman they'd notified their legal counsel and Workman would be similarly required to disclose news of the construction.

A deal fell through as a result of the interference, Workman said, and she subsequently received several offers well below her asking price from people she suspected were acting on behalf of the defendants.

Workman said in her complaint she sued after it became apparent no construction was planned, and their email was simply intended to interfere with the sale.

Reasoning the dispute was a matter of public interest through advertising materials associated with the real estate market, the defendants sought to have the case tossed under anti-SLAPP. But the lower court found the anti-SLAPP claim frivolous and denied their motion, prompting an appeal and Workman's request for sanctions.

Represented by attorneys Alan N. Goldberg and Peter Tran of Stern and Goldberg, Workman argued the appeal was a tactic to delay litigation and was as frivolous as the defendant's underlying anti-SLAPP motion. While the defendants again emphasized the obvious public interest in the case through the real estate marketing materials associated with the sale, the panel was similarly unconvinced of the relevance of public interest.

"By focusing on society's general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called 'synedoche theory of public issue in the anti-slapp statute,' where 'the part is considered synynomous with the greater whole.'" Collins wrote in an opinion backed by Justice Thomas L. Willhite Jr. and Presiding Justice Nora M. Manella.

But precedent had soundly rejected that theory, Collins added, at least in the context of the underlying case.

Neville Johnson, an entertainment attorney and partner at Johnson & Johnson PC not involved in the case, said he's not sure he's ever seen an appeals court not only directly order the payment of fees to an opposing party, but additionally order payment for the court.

It's rare enough for an appeals court to grant sanctions directly rather than punt it back to the lower court to determine, Johnson said. Given that the case will have a new judge on remand, due to the retirement of Los Angeles Superior Court Judge Gerald Rosenberg, it's possible there's further penalty in store for the defendants.

"Anti-SLAPP's been the bane of all plaintiff lawyers. It's a very powerful tool, and it absolutely causes delays because of the automatic right to an appeal if it's denied. And it's definitely abused," Johnson said. "This is a cautionary opinion -- there are consequences."