Attorney Fees/Costs Order Was Not Supported By Statute And The Proper “Unit Of Prosecution” For Attorney’s Conduct At A Fifteen Minute Settlement Conference Was A Single Count Of Contempt.
In Moore v. Superior Court, Case No. G058609 (4th Dist., Div. 3 November 16, 2020) (published), while representing a client at a fifteen minute mandatory settlement conference, attorney displayed rude and unprofessional conduct. In fact, the settlement conference lasted only 15 minutes as a direct result of attorney’s behavior. The trial court conducted a contempt proceeding – finding attorney in contempt and fining him $900 each for four categories of misconduct: (1) yelling and interrupting the settlement officer and opposing counsel; (2) falsely accusing opposing counsel of lying without explanation; (3) refusing to engage in settlement discussions; and (4) blocking the settlement officer from invoking the aid and authority of the supervising judge by threatening that this would unlawfully divulge settlement information. The trial court also ordered attorney to pay opposing party’s attorney fees and costs pursuant to Code Civ. Proc., § 1218(a). Attorney appealed.
In a 3-0 opinion authored by Justice Goethals, the 4/3 DCA found attorney’s conduct demonstrated a total lack of respect for the court, the settlement officer, opposing counsel and the opposing party, and “was a continuous insult to the dignity and process of the court that continued throughout the 15-minute course of the settlement conference.” However, the panel overturned three out of four of the attorney’s civil contempt convictions, including the fees imposed for those three convictions, and reversed the trial court’s order on the attorney fees and costs.
As to the civil contempt convictions, the appellate panel followed the analysis provided for “unit(s) of prosecution” in In re Keller, 49 Cal.App.3rd 663, 667-669 (1975); Conn v. Superior Court, 196 Cal.App.3d 774, 788 (1987); and Koehler v. Superior Court, 181 Cal.App.4th 1153, 1169-1170 (2010) – reasoning that attorney could not be punished for multiple counts of contempt stemming from his behavior at the 15-minute settlement conference, and that attorney’s due process rights were violated by convicting him of four, separate counts of civil contempt when only one was identified in the trial court’s order to show cause.
As to the reversal of the attorney fees and costs ordered by the trial court pursuant to CCP § 1218(a), the appellate panel determined section 1218(a) did not apply in this case as the contempt at issue was not for violating a court order.
In a final statement by the 4/3 DCA, the panel noted, “[t]hough [attorney]’s petition is largely successful, that success should in no way be construed as an endorsement by this court of his behavior.”