California Judge "Cited and Relied on a Fictitious Case" Submitted by Lawyer, Even Though …

From H.C. v. Contreras, decided yesterday by California Court of Appeal Justice Mark Snauffer, joined by Justices Bert Levy and Donald Franson:

Bethany G. sought a protective order protecting H. C., her minor son, from H. C.’s father, Rudy C. Numerous witnesses testified at a hotly contested hearing after which the parties filed closing briefs. Rudy’s brief, submitted by counsel, contained fictitious caselaw and misstated the law. Counsel for Bethany directly and swiftly pointed the errors out to the trial court.

The trial court declined to issue the requested order, but its ruling erroneously relied on a nonexistent case and a serious legal misstatement—the very same shortcomings Bethany had already noted. As explained below, we reverse for further proceedings….

After the evidence was presented, but before the trial court ruled, Rudy’s counsel filed a closing brief. Most pertinent here, the brief contains the following portions:

“2) Insufficient Evidence of Harassment or Disturbing the Peace

“Under Family Code § 6320, abuse can include harassment or disturbing the peace of the other party. However, California courts have held that the behavior must be persistent, egregious, and intended to disturb the victim’s peace. In Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788, the court emphasized that disturbing the peace should be understood as conduct that ‘destroys the mental or emotional calm of the other party.’

“In this case, the alleged incidents presented by Bethany do not rise to the level of severe, ongoing behavior required to meet the standard of ‘harassment’ or ‘disturbing the peace.’ The incidents presented lack the frequency, intensity, or impact required under the statutory definition and supporting case law, rendering them insufficient to constitute harassment or disturbing the peace.

“3) Failure to Demonstrate Reasonable Fear of Immediate Harm

“Family Code § 6203 also requires that abuse must place the petitioner in reasonable apprehension of imminent serious bodily injury. Petitioner has failed to demonstrate any legitimate, immediate fear of bodily harm that is objectively reasonable under the circumstances.”

Bethany, also through counsel, replied to the brief, pointing out the citation to Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788 did not exist. {Bethany’s counsel has identified a case, Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, which involved a father’s request to modify a custody order and is otherwise inapplicable to the present case.} Counsel also noted Family Code section 6203 did not require proving “legitimate, immediate fear of bodily harm that is objectively reasonable” before a restraining order may issue.

The trial court {Judge Irene A. Luna} issued a written ruling in Rudy’s favor. It contains the following pertinent portion [which is nearly identical to the brief submitted on Rudy's behalf -EV] ….

Here, in our view, the trial court committed at least two clear legal errors. First, the trial court cited and relied on a fictitious case, i.e., Enrique M. v. Angelina V. (2005) 15 Cal.App.5th 788. The error is underscored by the fact Bethany brought the fictitious citation to the court’s attention. The court ignored Bethany’s warning, and relied on it in its ruling. The trial court clearly incorporated this part of Rudy’s brief into its ruling because the ruling is a verbatim reproduction—save for changing “Bethany” to “Mother”—including a spacing typo.

Second, the trial court’s ruling reproducing Rudy’s brief misstated section 6203, the section defining abuse under the DVPA. Section 6203, subdivision (a) provides four independent circumstances constituting abuse:

“(1) To intentionally or recklessly cause or attempt to cause bodily injury.

“(2) Sexual assault.

“(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

“(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”

The trial court nonetheless ruled section 6203 “requires that abuse must place the petitioner in reasonable apprehension of imminent serious bodily injury.”

The ruling misstates the law. Section 6203 is written in the alternative and not the conjunctive. Each subsection alone can constitute abuse. Immediate bodily injury is not a prerequisite to issuing a protective order.

“We have no difficulty concluding that it is an abuse of discretion for a court to rely in material part on fictional case authorities in rendering a decision or making an order. Reliance on fake cases is fundamentally incompatible with an informed exercise of discretion controlled by genuine principles of law. It seriously undermines the integrity of the outcome and erodes public confidence in our judicial system. It can also hinder meaningful appellate review.” …

When faced with nonexistent case law and misconstrued statutes brought to its attention, the court incorporated the objectionable material into its final ruling. The court’s ruling is without doubt an abuse of discretion and our confidence in the outcome is sufficiently undermined to justify reversal. For all future proceedings in this matter, we direct the matter be assigned to a new trial judge.

With respect to Rudy’s counsel’s actions, “Business and Professions Code section 6068, subdivision (d), states it is the duty of an attorney ‘[t]o employ … those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.’ California Rules of Professional Conduct, rule 3.3(a)(1) and (2), prohibit an attorney from ‘knowingly mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer’ or ‘knowingly misquot[ing] to a tribunal the language of a book, statute, decision or other authority.’ A person’s knowledge may be inferred from the circumstances.”

The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion….

Amanda G. Hebesha, John P. Kinsey, and Stephanie Hosman (Wanger Jones Helsley PC) represent Bethany G.

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