No doubt you have had these same thoughts: after hearing or reading something, you wonder what on earth was the person thinking? Were they on drugs or something? Where was their self-restraint or the little person inside their head yelling “NO!NO!NO! DON’T DO IT!”

This musing is brought about by a partially published opinion issued on February 28, 2019 by the Fourth Appellate District in Martinez v Stephen Stratton O’Hara et al, G054840 (Orange County Superior Court No. 30-2012-614932). Plaintiff sued the defendant for fraud, false advertising, unfair business practices, Labor Code violations, sexual harassment and a request for alter ego findings (Id. at 5) stemming from a several week employment relationship. While the lawsuit was filed in the Superior Court whose jurisdiction are matters in excess of $25, 000, after a jury trial the plaintiff was awarded $8,080.00 total in damages on his claim for sexual harassment. His other claims were either settled or dismissed. (Id. at  3-7.)

Plaintiff’s counsel moved for attorney fees in the sum of $146,634.00 and costs of $15,969.94.  After awarding costs of $7,044.93, the trial court denied the motion for attorney fees under California Code of Civil Procedure 1033(a) giving the court discretion to deny fees where the amount in controversy does meet the jurisdictional minimum (i.e., $25,000) of the Superior Court (Id. at 8-10). As the jury awarded only approximately $8,000 to plaintiff, the trial court determined that the matter should have been filed and tried as a limited civil case and pursuant to the just cited statute, denied fees to plaintiff. (Id. at 10-19.)

Plaintiff’s counsel appealed. But rather than using the form for the notice of appeal, counsel drafted his own notice:

Pursuant to Code of Civil Procedure section 904.1 et seq., Plaintiff Fernando Martinez hereby appeals from the lower court’s disgraceful order dated November 30, 2016, as incorporated into a reported judgment dated February 21, 2017, and [as] such, technically appeals from that judgment. 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. ‘Evidence of the docket entry reflecting the judgment is attached hereto as Exhibit A.’ ‘Plaintiff never actually received a copy of a signed judgment, though a stipulated judgment was prepared for the commission court’s signature, as it apparently cynically attempted to suppress notice of the judgment in order to thwart review.’( Id. at 20-21.)

The appellate court provided the pertinent definition:

Webster’s Third New International Dictionary (2002) at page 2282, column 3, defines the term “succubus” as “1: a demon assuming female form to have sexual intercourse with men in their sleep—compare incubus 2: demon, fiend 3: strumpet, whore.” (Capitalization omitted.)(Id. at 22).

Noting that pursuant to Business and Professions Code section 6068(b), attorneys have a duty to maintain respect for the courts and judicial officers, the appellate court noted that the above language in the notice of appeal, manifests not only gender bias, but accuses a judicial  officer of “intentionally refusing to follow and apply the law” (Id. at 21), for which there was no support in the record.  Further, counsel accused the judicial officer of trying to prevent plaintiff from receiving notice of the signed judgment to prevent a timely appeal.

In a footnote, the appellate court noted that had the new Rules of Professional Conduct been in effect in 2017, counsel would be in violation of Rule 8.4.1 which “…prohibits an attorney….from unlawfully harassing or unlawfully discriminating against person on the basis of protected characteristics including gender.” ( Id. at 22 N.1.)( The new rules took effect November 1, 2018.)

Thus, in compliance with California Code of Judicial Ethics Canon 3D(2), the appellate court instructed its clerk to refer counsel to the State Bar for his misconduct.

One can only imagine what the State Bar will do with this complaint. No doubt, it will make counsel an example for other would be creative attorneys of what NOT to file with a court. Zealous advocacy is one thing; but there are indeed limits to it.  Truth is, indeed, stranger than fiction at times.

…. Just something to think about.


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