Pollock v. Superior Court

California Court of Appeal Mar 13, 1991 No. G010561Published

Before: Crosby

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Holding. An attorney cannot maintain an independent action for breach of contract or tort against opposing counsel to recover for judicial sanctions imposed in a prior proceeding; such grievances must be addressed through reconsideration, appeal, or statutory enforcement motions.

Issues

Whether an attorney may sue opposing counsel for breach of contract or fraud to recover judicial sanctions imposed in a prior litigation.
Whether the litigation privilege bars an independent tort or contract action against opposing counsel for conduct occurring during judicial proceedings.

Disposition. Peremptory writ issued

Quotations verified verbatim against the opinion

“Under no stretch of the imagination do his remedies include an independent action in contract or tort against opposing counsel.”

“Simply put, the public policy of this state is not served by permitting attorneys to sue one another for omissions or representations made as officers of the court during the course of litigation.”

“They may not, however, be tried de novo under the guise of a breach of contract or tort action.”

[28]

Opinion

CROSBY, J.

Plaintiff, an attorney miffed at the imposition of sanctions, attempted to recoup the loss by suing opposing counsel in a new action for breach of contract and fraud. Defendants petitioned for extraordinary relief when their demurrer and motion to strike were overruled. They are entitled to it.

The present lawsuit had its genesis in a Los Angeles Superior Court case in which plaintiff Steve A. Silverstein, Inc., and defendants Arthur J. Pollock and his firm, Pollock & Keleher, represented opposing parties. According to Silverstein’s complaint, the attorneys agreed to a settlement and dismissal of the Los Angeles matter: “[D]ue to an ongoing trial and vacations,” plaintiff relied on defendants to advise the court of the settlement and to take an upcoming mandatory settlement conference off calendar. Defendants allegedly failed to do so, and “sanctions [against plaintiff were] imposed wrongfully and ignorantly by the court.”

For the alleged breach of contract, Silverstein seeks general damages “which include, but are not limited to, judicial sanctions against plaintiff and the costs associated with enforcing the contract through this court action . ...” As a result of defendants’ “despicable” fraud, Silverstein claims he was “sanctioned by the court for failing to appear at the [] Mandatory Settlement Conference and [was] further damaged by expending an as of yet undetermined sum of money in bringing this action . . . -”

Defendants demurred and moved to strike. Plaintiff filed written opposition, but did not appear for the hearing. The court overruled the demurrer and denied the motion: “You shouldn’t be confused. All that he had to allege was a contract, breach, and damages, and he did that. Okay? I don’t—I’m not going behind the reasons for it. I know that it’s a dispute between attorneys. But I’m not ruling on that. I’m not ruling on that.”

Plaintiff blithely concludes that he has alleged the textbook elements for breach of contract and fraud and essentially contends the court must view

Pollock v. Superior Court

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CROSBY, J.

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