Appellate Judges

Every Civil Litigant in Claremont, California Looking for a Good Lawyer Should Retain Paul Mahoney

Judges are yet to accept the fact that the people are armed with more tools than ever before, to disrobe the corruption within the Judiciary.

C.A. Fines Lawyer $2,000 for Impugning Court’s Integrity

Petition for Rehearing Implies Justices Bowed to Will of Real Estate Development Company and in Vague Language Attorney Mahoney Associated Members of Panel With Lawyer Thomas V. Girardi

JUN 14, 2021 | REPUBLISHED BY LIT: JUN 15, 2021

Div. Three of the Fourth District Court of Appeal has imposed a $2,000 contempt fine on a Claremont attorney—$1,000 for accusing the court of being under the domination of The Irvine Company, a major real estate development outfit, and $1,000 for likening the justices to Thomas V. Girardi, a lawyer on involuntary inactive bar status.

The Irvine Company is wholly owned by Donald Bren, said to be the wealthiest real estate developer in the nation, with assets of $16.4 billion.*

Girardi, a former trial lawyer, is facing multiple allegations, in lawsuits and in abated State Bar proceedings, of cheating clients, on a large scale.

Lawyer Paul M. Mahoney of Mahoney & Soll LLP was adjudged in contempt based on slaps he took at the members of Div. Three in a petition for rehearing filed March 16.

Mahoney expressed indignation that the justices, in an unpublished March 2 opinion by Acting Presiding Justice William W. Bedsworth, rejected contentions he had put forth on behalf of a subcontractor that sued a contractor, under Civil Code §8814, for penalties based on late payments.

* Donald Trump is not America’s richest real estate tycoon — it’s another Donald who’s worth almost $17 billion; Donald Bren owns one-fifth of Orange County, an area five times the size of Manhattan. – Business Insider.

March 2 Holding

“[W]e decide a subcontractor is not entitled to prompt payment penalties under section 8814 when the trier of fact decides it has not completed the work,” Bedsworth said in that opinion.

In seeking a rehearing, Mahoney intimated that the contractor prevailed based on contacts with a third party—understood to be the Irvine Company—“who…wields a lot of legal and political clout in Orange County.”

After being ordered to show cause re contempt, Mahoney said he had merely “mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple.”

The lawyer also said in the March 17 petition:

“Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi.”

The opinion declaring Mahoney to be in contempt was filed Thursday and made public on Friday. Although it is a “By the Court” opinion, the writing style is that of Bedsworth.

In the petition for rehearing, the opinion says, Mahoney “cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one,” adding:

“Instead he filed nine pages of text that more closely resembled a rant than a petition.”

The insinuation in the petition of subservience to The Irvine Company and the follow-up barb, the opinion sets forth, “would serve as a perfect exemplar in any law school class in which the instructor was attempting to illustrate the phrase ‘impugn[] the integrity of the court.’ ”

Another Insult

It continues:

“Nor can we find any other way to interpret his comparison of the courts in this case to Los Angeles Attorney Thomas Girardi—whose alleged transgressions have received a great deal of media attention of late—than as an insult to the integrity of the court.”

Pointing to “the muddled language” of the passage, the opinion says:

“We tried to figure out whether he was saying that we were indistinguishable from Girardi and his ilk or that we ignored conduct such as his, but finally abandoned the effort because either one was contemptuous.”

This advice to appellate lawyers is provided:

“If you think the court is wrong, don’t hesitate to say so. Explain the error. Analyze the cases the court relied upon and delineate its mistake. Do so forcefully. Do so con brio; do so with zeal, with passion.

We in the appellate courts will respect your efforts and understand your ardor. Sometimes we will agree with you. That’s why you file a petition for rehearing—because they are sometimes granted.

“But don’t expect to get anywhere—except the reported decisions—with jeremiads about ‘society going down the tubes’ and courts whose decisions are based not on a reading of the law but on their general corruption and openness to political influence.”

 

2005 Decision

A footnote observes:

“Our District Courts of Appeal are not especially thin-skinned.”

It says that the 2005 decision in In re Koven “was the only published decision we could find of this type, and inquiries to other Courts of Appeal turned up no unpublished cases,” remarking:

“Thankfully, this does not come up much.”

In the Koven decision, attorney Debra L. Koven was, like Mahoney, ordered to pay two $1,000 contempt fines. Her remarks concerning justices of Div. Six of this district’s Court of Appeal included an allegation that two of them refused to recuse themselves because “the fix was in.”

That panel directed the clerk to send a copy of the opinion to the State Bar, as did the court in Mahoney’s matter.

Koven expressed remorse and was placed on probation by the State Bar, with no actual suspension.

No Recantation

Last week’s opinion from the Orange County-based panel relates that Mahoney did not “recant at the hearing” on the order to show cause, reporting:

“We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it.

“The result is that we cannot even say, as did the Koven court, ‘We accept Koven’s apology. Nevertheless, we do not purge Koven of the contempts….’….

Unlike the Koven court…, we are confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument.

“We do not….This kind of over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop.”

Mahoney said Friday:

“I obviously disagree with the Court of Appeal, but as you know lawyers don’t have rights of free speech.”

The case is In re Mahoney, 2021 S.O.S. 2539.

xxx

JUN 3, 2021 | REPUBLISHED BY LIT: JUN 4, 2021

Appeal from a judgment and order of the Superior Court of Orange County, Craig L. Griffin, Judge.

Paul. M. Mahoney, in pro. per.

THE COURT:*

These contempt proceedings arise from a petition for rehearing filed by Attorney Paul Mahoney on behalf of his client Salsbury Engineering Inc., in which he impugned the integrity of both the trial court and this court. In that petition, he cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one. Instead he filed nine pages of text that more closely resembled a rant than a petition.

* Before Bedsworth, Acting P.J., Aronson, J., and Goethals, J.

We issued an order to show cause to give Attorney Mahoney an opportunity to explain why he “should not be held in contempt for language ‘impugning the integrity of the court in a document filed with the court.’ (In re Koven (2005) 134 Cal.App.4th 262, 271; see also In re Buckley (1973) 10 Cal.3d 237, 248.)”

In that order, we made clear the language the court felt impugned its integrity. We specified that:

“On March 17, 2021, Attorney Paul M. Mahoney and Mahoney & Soll LLP filed a petition for rehearing in this matter on behalf of appellant Salsbury Engineering, Inc. (Salsbury).

The petition did not analyze a single statute or decision. It made no effort to deal with the specific language of the contract at issue in this case, which supports the trial court’s ruling.

It made no effort to explain why notices of completion for the first two phases of construction were not recorded until the end of the JOST project, an indicator the parties involved viewed the project as integrated.

It made no effort to explain why retainage was not returned to Salsbury on completion of phases 1 and 2, as would have been expected if they had been regarded by the parties as separate contracts.

It made no effort to explain why, if these were separate contracts, the owner did not release to Consolidated Contracting Services, retention funds upon completion of each phase.

It made no effort to explain where we had erred in distinguishing the Hunt and Arntz cases upon which Salsbury had relied.

(Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464; Hunt v. Fahnestock (1990) 220 Cal.App.3d 628.)

“In short, rather than attempt to convince the court its reasoning was faulty, you indulged in an unprofessional rant that impugned the integrity of the court, including casting the following aspersions regarding the court’s opinion filed March 2, 2021:

“ ‘Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi.’ (Pet. at p. 6.)

“Insinuation that respondent Consolidated Contracting Services, Inc. (Consolidated) may have prevailed because it had contracts with a third party ‘who . . . wields a lot of legal and political clout in Orange County.’ (Pet. at p. 6.)

“‘. . . [B]ecause of a judicial slight [sic] of hand with no factual basis, this court has altered the landscape and created a windfall for Consolidated.’ (Pet. at p. 8.)

“Suggestion that this court did not ‘follow the law.’ (Pet. at p. 11.)

“Assertion that the court ‘ignores the facts’ in its opinion. (Pet. at p. 8.)

“Conclusion that this court ‘indiscriminately screw[ed]’ Salsbury. (Pet. at p. 11.)”

We expected contrition of the type displayed – but found inadequate – in In re Koven, supra. Instead, Attorney Mahoney “doubled down” on his original petition.

He asserted that he had merely,

“mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple.”

We are simply unable to read that statement as anything but a second insinuation that political clout accounted for the trial court’s actions and our affirmance of them.

When read in conjunction with his similar allegation in the petition for rehearing, this would serve as a perfect exemplar in any law school class in which the instructor was attempting to illustrate the phrase “impugn[] the integrity of the court.”

Nor can we find any other way to interpret his comparison of the courts in this case to Los Angeles Attorney Thomas Girardi – whose alleged transgressions have received a great deal of media attention of late – than as an insult to the integrity of the court.

He said,

“Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi.”

The only uncertainty about how contemptuous that statement is relates to the muddled language marked by our [sic]. We tried to figure out whether he was saying that we were indistinguishable from Girardi and his ilk or that we ignored conduct such as his, but finally abandoned the effort because either one was contemptuous.

Nor did Attorney1 Mahoney recant at the hearing. We tried to nudge him toward a more temperate position but were unsuccessful.  Every time he seemed ready to moderate his stance, he would change direction and return to it.

The result is that we cannot even say, as did the Koven court, “We accept Koven’s apology. Nevertheless, we do not purge Koven of the contempts . . . .”

(In re Koven, supra, 134 Cal.App.4th at p. 265.)

Unlike the Koven court, which dealt with an attorney who had conceded her statements were “both improper and inexcusable on their face,” and who “apologizes for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself,” (id. at p. 264)

we are confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument.

We do not. We have elsewhere lamented the fact modern law practice is “rife with cynicism, awash in incivility.”

(Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293.)

This kind of over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop.

If you think the court is wrong, don’t hesitate to say so. Explain the error. Analyze the cases the court relied upon and delineate its mistake. Do so forcefully. Do so con brio; do so with zeal, with passion.

We in the appellate courts will respect your efforts and understand your ardor. Sometimes we will agree with you. That’s why you file a petition for rehearing – because they are sometimes granted.

But don’t expect to get anywhere – except the reported decisions – with jeremiads about “society going down the tubes” and courts whose decisions are based not on a reading of the law but on their general corruption and openness to political influence.

“‘The judge of a court is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity and it is his bounden duty to protect the integrity of his court.’ [Citations.] ‘However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides.’ [Citation.]”

(In re Ciraolo (1969) 70 Cal.2d 389, 394- 395.)2

This isn’t some New Age civility initiative.

Recognition of the need to protect the institutional respect accorded the courts is a concept that goes back to the Middle Ages. Society’s need for confidence in its courts – and the concomitant requirement not to undermine that confidence – was an accepted truism at a time when Latin was still the lingua franca of our profession.

Edward Coke, who made the arguments in 1581 that resulted in the Rule in Shelley’s case we all studied so assiduously, knew the necessary distinction between questioning a decision and questioning the institution as,

“De fide et officio judicis non recipitur question sed de scientia, sive sit error juris, sive facti.” (Bacon’s Maxim, number 17.)

As interpreted most commonly,

“The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error either of law or fact.

2 Our District Courts of Appeal are not especially thin-skinned. Koven, decided 16 years ago, was the only published decision we could find of this type, and inquiries to other Courts of Appeal turned up no unpublished Thankfully, this does not come up much.

The lawdoth so much respect the certainty of judgments, and the credit and authority of judges, that it will not permit any error to be assigned which impeacheth them in their trust and office, and in willful abuse of the same; but only in ignorance and mistaking either of the law, or of the case and matter of fact.”

(Black’s Law Dict., 5th ed. 1979), p. 380, col. 1.)

This was already considered axiomatic by Sir Francis Bacon (1561-1626) who included it in his collection of legal maxims five centuries ago.  It was a given, a matter about which there simply could not be any argument.

And, as a general rule, it still is.

Practicing law without understanding this is like practicing medicine without understanding the circulatory system.

We publish this decision as a cautionary tale. The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse.

This isn’t who we are.

We are professionals. Like the clergy, like doctors, like scientists, we are members of a profession, and we have to conduct ourselves accordingly. Most of the profession understands this. The vast majority of lawyers know that professional speech must always be temperate and respectful and can never undermine confidence in the institution.

Cases like this should instruct the few who don’t.

Respect for individual judges and specific decisions is a matter of personal opinion. Respect for the institution is not; it is a sine qua non.

Contempt of court is a criminal violation under Penal Code section 166. It is punishable by a fine of up to $1,000 per count and/or six months in jail.

(Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1240.)

We find Attorney Mahoney in direct contempt under subdivision (a)(1) for his implication that the court below was influenced by the political influence of the Irvine Company (1 count) and for his aspersion that the court was indistinguishable from or inclined to ignore the unethical conduct attributed to Attorney Thomas Girardi (1 count) and order him to pay a fine of $1,000, each for a total of $2,000, payable in the clerk’s office of this court within 60 days after this decision becomes final for all purposes.

Pursuant to Business and Professions Code section 6086.7, the clerk of this court is directed to forward to the State Bar a copy of this judgment of contempt.

Upon the finality of judgment, the clerk shall issue the remittiturs in case numbers G057832 and G057966.

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Every Civil Litigant in Claremont, California Looking for a Good Lawyer Should Retain Paul Mahoney
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