32 Cal. App. 5th 853
Cal. Ct. App. 5th2019Background
- Plaintiff Fernando Martinez sued multiple defendants after termination, asserting employment-related claims including sexual harassment under FEHA; a jury awarded $8,080 on the FEHA claim.
- Plaintiff's wage claim settled pretrial; fraud claim was dismissed on nonsuit; remaining injunction/unfair business practice claims were decided for defendants after a bench trial.
- Martinez moved for attorney fees under Gov. Code §12965(b) and Lab. Code §218.5 seeking $146,634 (including fees for the fee motion); the trial court denied the fee award.
- Martinez appealed the denial of attorney fees. The appellate court affirmed the denial, finding the trial court properly exercised discretion under Code Civ. Proc. §1033(a) and followed Chavez v. City of Los Angeles.
- Separate from the merits, the panel found plaintiff’s appellate counsel Benjamin Pavone committed misconduct by filing a notice of appeal and briefs that used gender‑biased, disrespectful, and unsupported accusations against the trial judge.
- Pursuant to Canon 3D(2) of the California Code of Judicial Ethics and related authority, the court reported Pavone to the State Bar and directed the clerk to forward the opinion and filings to the Bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by denying Martinez's motion for attorney fees under Gov. Code §12965(b) and Lab. Code §218.5 | Martinez argued fees were recoverable for litigating FEHA and related claims and that the amount requested was reasonable | Defendants argued the trial court properly applied Code Civ. Proc. §1033(a) and Chavez to limit or deny fees; trial court’s factual discretion should stand | Court affirmed denial: trial court properly exercised discretion under §1033(a) and followed Chavez principles |
| Whether plaintiff's counsel committed reportable judicial‑misconduct warranting State Bar referral | Martinez (through counsel) advanced arguments and filings criticizing the trial judge, claiming procedural suppression of judgment and alleging intentional legal errors | Defendants implicitly maintained counsel’s filings were improper and unsupported; court reviewed filings against ethical canons and precedent | Court held counsel’s notice of appeal and briefs manifested gender bias and made unsupported accusations; these acts are reportable misconduct and counsel was referred to the State Bar |
Key Cases Cited
- Chavez v. City of Los Angeles, 47 Cal.4th 970 (2010) (fee‑award principles and appellate review of fee determinations)
- Ramirez v. State Bar, 28 Cal.3d 402 (1980) (attorney discipline for briefs falsely accusing judges of illegal conduct)
- In re Koven, 134 Cal.App.4th 262 (2005) (sanctions and Bar referral for appellate brief alleging deliberate judicial dishonesty)