Martinez v. Stratton O’Hara: What you say (to the Court of Appeal) can and will be used against you

By Brian I. Hamblet

In Martinez v. Stratton O’Hara et al. decided on February 28, 2019, the California Court of Appeal (Fourth Appellate District) concluded that the “Plaintiff’s attorney committed misconduct on appeal, including manifesting gender bias” in his comments about the trial court judge (which included calling the female judge’s actions “succubustic”) and reported him to the State Bar for discipline.


Following the termination of his employment, plaintiff Fernando Martinez sued defendants, alleging five employment-related claims. Plaintiff’s wage claim was resolved before trial and his fraud claim was dismissed when the trial court granted defendants’ motion for nonsuit during trial. A jury returned a verdict awarding a total of $8,080 in damages on the claim for sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). Following a bench trial of plaintiff’s remaining claims, seeking an injunction for unfair advertising and unfair business practices, the trial court found in favor of defendants.


Plaintiff filed an attorney fee motion under Government Code section 12965, subdivision (b) and Labor Code section 218.5, requesting $133,887 for “litigating the case” plus $12,747 for fees in bringing the motion, for a total attorney fee award of $146,634.  Plaintiff also submitted a memorandum of costs seeking $15,966.94.  The trial court awarded plaintiff costs of $7,044.93 but denied his motion for attorney’s fees. Judgment was entered in favor of plaintiff and against defendants in the amount of $8,080 plus $7,044.93 in costs. Plaintiff appealed.


It should be noted that, instead of using the Judicial Council Notice of Appeal form, Plaintiff’s counsel drafted and signed Plaintiff’s Notice of Appeal which stated in part: “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.”


The California Court of Appeal (Fourth Appellate District) affirmed the denial of attorneys’ fees.  In the unpublished portion of the decision, the Court noted that Code of Civil Procedure section 1033 (a) makes an award of costs discretionary in unlimited civil cases when the judgment awarded an amount of damages that is less than what may be recovered in small claims court.  The Court also noted that Plaintiff’s counsel (who did not keep contemporaneous records of the time he spent) had claimed fees that appeared “unreasonably inflated” which also “is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  For example, “the reconstructed time sheets plaintiff submitted show that on one specific day counsel billed 25 hours of work performed. On multiple days counsel billed in excess of 15 hours of work performed per day. These entries raise serious questions about the accuracy of counsel’s alleged reconstruction of the time he spent working on this case.”


In the published portion of the decision, the Court of Appeal turned its attention to Plaintiff’s Notice of Appeal as well as Plaintiff’s Appellate Briefs.

Regarding the Notice of Appeal – The Court noted that the term “succubus” is defined as “1: a demon assuming female form to have sexual intercourse with men in their sleep—compare incubus 2: demon, fiend 3: strumpet, whore.”

Regarding Plaintiff’s Appellate Briefs – The Court noted that “many statements…cannot be fairly characterized as acts of zealous advocacy in an effort to challenge the ruling on plaintiff’s motion for attorney fees. Instead, plaintiff’s appellate briefs repeatedly accuse the judicial officer who ruled on that motion of intentionally refusing to follow and apply the law. There is no support in the record for such a serious charge.”

Based upon these examples, the Court of Appeal found that that the false claims made in Plaintiff’s counsel’s Appellate Briefs amounted to a violation of Business and Professions Code section 6068(d), which provides a duty to maintain the respect due to the courts of justice and judicial officers.

The Court of Appeal also found that the derisive terms used in the Notice of Appeal violated Canon 3B(6) of the California Code of Judicial Ethics, which requires that lawyers refrain from “manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.”  The Court also noted that the advisory committee commentary accompanying canon 3D(2) instructs that California law imposes mandatory reporting requirements to the State Bar for lawyer misconduct.  Therefore, the Notice of Appeal’s reference to the ruling of the female judicial officer as “succubustic” constitutes a demonstration “by words or conduct, bias, prejudice, or harassment based upon . . . gender” and thus qualifies as reportable misconduct.

Lawyers and clients should be aware (if they are not already) that making false defamatory statements, particularly if they manifest prejudice, to the Court of Appeal – or indeed any court – will not only hurt your case, it might also lead to discipline before the State Bar.  As the Court of Appeal noted in closing, “We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words “disgraceful,” “pseudohermaphroditic misconduct,” or “reverse peristalsis” in the notice of appeal.”

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