Filed 5/26/20 Sargent v. Board of Trustees of CSU CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THOMAS R. SARGENT,

Plaintiff and Respondent,

v.

BOARD OF TRUSTEES OF CSU,

Defendant.

VALINDA KYRIAS,

Appellant.

A157335, A157415

(Sonoma County

Super. Ct. No. SCV-255399)

After respondent Thomas R. Sargent prevailed in a trial against his former employer, a dispute arose between him and his attorney in that action, appellant Valinda Kyrias. Kyrias filed notices of judgment liens based on the judgment Sargent had secured against his employer, which the trial court struck as invalid. The trial court also awarded attorney fees Sargent incurred in responding to the notices, and it granted a request to disqualify Kyrias as counsel. In her appeals from the trial court’s orders, Kyrias raises no valid legal or factual basis to set them aside. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Sargent became involved in a dispute with his employer after he claimed he was punished for raising safety concerns. Kyrias began representing Sargent in connection with that dispute in February 2014, and in May 2014 Sargent filed a complaint against the Board of Trustees for the California State University (CSU). In September, attorney Dustin Collier joined as co-counsel (and continues to represent Sargent in this appeal). A month after Collier joined as co-counsel, in October 2014, Sargent and the two law offices then representing him entered into a representation agreement (the 2014 representation agreement).

Following a trial, a jury in March 2017 found in Sargent’s favor and awarded him damages. That jury verdict and the subsequent awards of attorney fees and costs are the subject of pending appeal Nos. A153072 and A154926.

In January 2019, Kyrias filed a motion to be relieved as counsel in the trial court. In the declaration supporting the motion, she attested that “[t]he relationship of trust and confidence essential to the attorney-client relationship has ceased to exist.” But she did not seek to be relieved as counsel in the appellate proceedings.

Also in January 2019, Kyrias served Sargent (through attorney Collier) with three notices of lien, and she also filed them with the Sonoma County Recorder’s Office and with the trial court. The notices were written on Judicial Council forms titled “NOTICE OF LIEN (Attachment—Enforcement of Judgment).” Although Kyrias had neither sued Sargent nor obtained a judgment against him, in each notice she identified herself as the “judgment creditor,” identified Sargent as the “judgment debtor,” and checked a box to indicate the lien was based on Code of Civil Procedure 708.410 et sequitur. She listed three different amounts on the forms: $387,895 on one notice based on the judgment in Sargent’s lawsuit against CSU, $95,898.18 on one notice based on the award of costs, and $3,905,165.04 on one notice based on the award of attorney fees, for a total of more than $4.3 million.

Attached to each notice filed with the recorder’s office and served on Sargent’s counsel was a copy of the 2014 representation agreement. Copies of the notices also were served on opposing counsel, along with the 2014 representation agreement. Attorney Collier provided Kyrias with a written demand to retract and release her lien notices, but she did not respond.

On February 14, Sargent moved to strike the lien notices and to release the property subject to the notice. He also sought “sanctions” under sections 697.660, subdivision (d) (authorizing an award of attorney fees in connection with seeking release of a lien), 128.5 through 128.7 (incidental powers of the court), and the court’s inherent powers. Sargent submitted a declaration of counsel setting forth the number of hours spent on the motion and the firm’s billing rates, and requested “a sanctions award” of fees incurred for the work performed in connection with the lien notices.

Kyrias opposed the motion to strike. She pointed to multiple clauses in the 2014 representation agreement that she claimed justified seeking relief. She also described a conflict that had arisen between her and attorney Collier in connection with their representation of a different plaintiff in a separate lawsuit against CSU.

By separate motion filed on the same day as the motion to strike, Sargent sought to seal the three copies of the 2014 representation agreement that were attached to each notice of lien. Kyrias opposed that motion as well. She contended that because the representation agreement was never filed with the trial court, the motion was moot. Attorney Collier addressed this allegation at length in a declaration submitted in support of a reply brief: “Ms. Kyrias absolutely attached the agreement to the copies of the lien notices she served on Plaintiff, Plaintiff’s counsel, and Defendants’ counsel. Defendants’ counsel confirmed possession of the representation agreement when I emailed them demanding to claw it back, which I only did because Ms. Kyrias refused to take any steps to claw it back herself after we notified her it was improper and a breach of confidentiality to disclose it to them in the first place. In any event, if Ms. Kyrias’[s] claim that the agreement was not filed with the Court is accurate, it would appear she had an improper ex parte communication with the Court by serving documents that were materially different from [what] she filed with the Court.”

At a hearing on Kyrias’s motion to be relieved of counsel on February 22, Kyrias apparently was asked about the inconsistency between seeking to withdraw in the trial court but not in the appellate proceedings. Kyrias was invited to submit further briefing about the inconsistency but instead withdrew her motion.

A few days later, on February 26, Sargent filed a motion for an order disqualifying Kyrias as counsel. He argued that Kyrias violated her fiduciary duties by filing improper lien notices, breached the attorney-client privilege, and breached her duty of confidentiality by serving opposing counsel copies of the 2014 representation agreement. Kyrias filed written opposition to the motion.

Before a scheduled hearing on Sargent’s motions, the trial court issued tentative rulings. The court indicated that it intended (1) to grant the motion to strike and award Sargent attorney fees in connection with that motion, (2) not to rule on the motion to seal documents because it was moot given that the documents that Sargent sought to seal were not filed in the court, and (3) to grant the motion for an order disqualifying Kyrias as counsel. Regarding the motion to disqualify, the court noted that a client has an absolute right to fire his attorney for any reason, whether or not the client owes the attorney money.

The trial court held a consolidated hearing on all three of Sargent’s motions. As for the motion to disqualify, Sargent’s attorney noted that the trial court had focused in its tentative ruling on a client’s absolute right to fire an attorney, and argued that the court should go further. Counsel stated that there was “no dispute that [Kyrias] has served confidential, privileged documents pertaining to [Sargent] on defense counsel. . . . [S]he did serve them on our adversary.” Counsel further emphasized that Kyrias had taken positions adverse to Sargent by filing lien notices against him. Counsel asked for a determination that Kyrias had a conflict of interest so that Kyrias would not try to “essentially, leverage him into allowing her to stay on the team.” When the trial court asked for Kyrias’s position on the disqualification motion, she said that Sargent’s counsel had “just admitted to the reason I suspected why they were filing the Motion to Disqualify. That is so Mr. Sargent could avoid certain terms in the contract.” Kyrias stated, however, that “I do believe I’m not going to dispute the Motion to Disqualify, because I do believe the fact that the plaintiff filed the motion is a request to dismiss me in writing and that that satisfies the [2014 representation agreement]. I’m not going to dispute that.”

After the parties’ arguments, the trial court granted Sargent’s motion to strike Kyrias’s notices of lien, struck all three notices, and released the property purportedly subject to the notices. The court also denied as moot Sargent’s motion to seal the 2014 representation agreement, as no copies had been filed with the trial court. As for the motion to disqualify, the court noted that in its tentative ruling it had focused on a client’s absolute right to fire an attorney, and that it would modify that ruling to make additional findings. The court found that Kyrias breached the attorney-client privilege and violated her duty of confidentiality when she served defendants with copies of the 2014 representation agreement. The court further found that “the evidence before the Court has established that there is a conflict of interest that would prevent Ms. Kyrias from continuing to represent [Sargent].” Finally, the court stated that “I will impose the sanctions as stated,” and awarded $13,500 in attorney fees to Collier’s firm and $3,150 to another firm representing Sargent. Kyrias asked for the basis to award sanctions, and the trial court responded that authority had been set forth in Sargent’s moving papers and during argument.

The court issued two written order summarizing its findings. Kyrias appealed from the order striking the notices of lien and awarding attorney fees, which is the subject of No. A157335. She separately appealed from the order disqualifying her as counsel, which is the subject of A157415. The parties separately briefed the appeals. The court consolidated these appeals on its own motion for purposes of oral argument (which was waived after the court issued a tentative opinion) and opinion.

DISCUSSION

A. Because Kyrias Had No Valid Basis to File Notices of Liens, the Trial Court Correctly Granted the Motion to Strike and Awarded Attorney Fees (A157335).
B.
Kyrias argues that the trial court should not have stricken her notices of liens because she merely created liens and was not trying to enforce them. We reject this argument because it is contrary to the steps Kyrias actually took in this case.

The Enforcement of Judgments Law (EJL), sections 680.101 through 724.260, is a detailed statutory scheme that governs the manner and extent to which civil judgments are enforceable. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) A judgment creditor is a “person in whose favor a judgment is rendered” (§ 680.240), and a judgment debtor “means the person against whom a judgment is rendered” (§ 680.250). Article 5 of the EJL (§§ 708.410—708.480) governs the procedure that a judgment creditor uses to secure a lien on a cause of action. (See In re Marriage of Katz (1991) 234 Cal.App.3d 1711, 1719.) “A judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action or special proceeding may obtain a lien” by “fil[ing] a notice of lien and an abstract or certified copy of the judgment creditor’s money judgment in the pending action or special proceeding.” (§ 708.410, subds. (a), (b), italics added.) Judicial Council form EJ-185—the form Kyrias used in this case—is a form that complies with the required elements of a judgment-lien notice. (Marriage of Katz, at p. 1719, fn. 8; § 708.420; 10 Witkin, Cal. Procedure (2020) Enforcement of Judg., § 25.)

A simple review of the form Kyrias used reveals why her lien notices were inappropriate and thus why the trial court struck them. She has not obtained a judgment against Sargent, and thus she is not a “judgment creditor” and Sargent is not a “judgment debtor” as they were identified on Kyrias’s forms. Her claim that the filing of the notices merely created liens is a non sequitur because there is no such process to “create a lien.” And while it is true, as Kyrias notes, that enforcement of a lien is stayed pending any appeal of the judgment (§ 708.480), she has no such judgment here that is stayed.

Kyrias relies on inapposite cases that address a separate procedure, for initiating attorney liens. (E.g., Valenta v. Regents of Univ. of Calif. (1991) 231 Cal.App.3d 1465, 1469—1470 [filing attorney lien in underlying litigation is permissible].) Sargent’s counsel acknowledged below that an attorney may claim a lien in pending litigation, provided a sample of such a notice to the court, and represented at the hearing on the motion that he had provided Kyrias with an exemplar of an attorney’s charging lien before filing the motion to strike the liens. The trial judge himself told Kyrias, “I can tell you there are examples of attorneys and Notice of Liens [sic]. I would say that it can be found in various books including, for example, the Rutter Group, Weil and Brown,” and its final order stated it was without prejudice to Kyrias filing a proper lien notice and cited applicable statutes. Whatever Kyrias’s entitlement to that separate procedure is not before us. The trial court correctly struck Kyrias’s notices of liens.

Finally, we reject Kyrias’s argument that the trial court lacked the authority to award attorney fees. The trial court’s written order granting Sargent’s motion to strike was prepared by Sargent’s counsel. Although the title of the order stated it included sanctions, the order simply stated that the court “award[ed] reasonable fees to Plaintiff, finding that Plaintiff is entitled to fees in this situation.” So although the order included “sanctions” in the title, the substance of the award was to grant attorney fees, as opposed to sanctions. The court’s order did not cite legal authority for the award of fees, but we agree with Sargent that the award was authorized under section 128.5, subdivision (b)(2). The statute provides that a court may order a party to pay reasonable attorney fees incurred by another party “as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (§ 128.5, subd. (a).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).) The statute further provides that “[e]xpenses pursuant to this section shall not be imposed except on notice contained in a party’s moving . . . papers . . . , after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.” (§ 128.5, subd. (c).)

Here, Sargent argued in his moving papers that Kyrias “should not be permitted to externalize the cost of her unlawful filing and recordation of the lien notices,” and cited section 128.5. Although the court’s order did not cite the statute, the award of attorney fees was in writing and recited in detail why Kyrias’s lien notices were unenforceable and were “improper and without support.” This was sufficient under section 128.5 to explain why Kyrias’s actions were frivolous for purposes of the statute and justified the fee award.

C. Kyrias’s Appeal of the Order Disqualifying Her as Counsel Lacks Merit Because She Fails to Address the Trial Court’s Findings (A157415).
D.
As we understand Kyrias’s argument in her appeal of the order disqualifying her as counsel, she does not challenge her removal as Sargent’s attorney. Instead, she objects to the specific factual findings that the trial court made in connection with its ruling. Kyrias asks us to remand to the trial court with an order that it enter its tentative order (which concluded only that Sargent had an absolute right to fire his attorney). We reject this specious argument.

The order disqualifying Kyrias as counsel stated that “she did breach the attorney-client privilege and violated her duty of confidentiality when she filed and served the defendants with copies of the original representation agreement between her and plaintiff without ever seeking or obtaining the plaintiff or her client’s consent.” Kyrias contends that the finding she “filed” the 2014 representation agreement was inconsistent with the ruling that she did not file the agreement with the trial court (thus making Sargent’s motion to seal moot). But the trial court’s reference to filing the agreement appears to be a reference to the filing of the liens with the recorder’s office (as opposed to the trial court) and thus the trial court made no inconsistent findings. In any event, the court’s key finding was that Kyrias served opposing counsel with the agreement. Kyrias never disputed below—either in her opposition paper or at the hearing on the motion—that she did so.

In her opening brief, Kyrias does not even acknowledge the trial court’s finding that she served opposing counsel with the 2014 representation agreement. Instead, she accuses Sargent of asking for factual findings “so he could breach certain Representation Agreement terms” and “avoid a lawsuit.” And she goes so far as to baselessly accuse the trial judge of violating the California Code of Judicial Ethics by failing “to uphold the integrity and independence of the judiciary; to avoid impropriety or its appearance in his duties; and to impartially and diligently perform his judicial duties, including by upholding the law.” Kyrias even contends that the trial judge’s finding “demonstrates a lack of probity, fairness, honesty, uprightness, and soundness of character.” Again, she makes these baseless accusations without once acknowledging, much less challenging or even explaining, the court’s actual finding—unchallenged below or on appeal—that she served the 2014 representation agreement on opposing counsel.

In his respondent’s brief, Sargent notes Kyrias’s failure to address the fact that she served on opposing counsel the 2014 representation agreement, a confidential communication protected by statute. (Bus. & Prof. Code, §§ 6149 [written fee contract is confidential communication], 6068, subd. (e) [attorney has duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client”]; Evid. Code, § 952 [confidential communication “discloses the information to no third persons”].) In reply, Kyrias does not dispute that she served the agreement on opposing counsel but contends that there is no evidence the agreement was covered by the attorney-client privilege. True enough, an agreement may lose its privilege “relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” (Evid. Code, § 958.) But any conflict between Kyrias and Sargent could not possibly justify sending a confidential communication to opposing counsel.

Because Kyrias does not seek to undo the outcome of the order disqualifying her as counsel and wholly fails to establish that the court’s factual findings in support of that order were erroneous, we reject her arguments.

DISPOSITION

Respondent Sargent’s October 31, 2019 request in both A157335 and A157415 for judicial notice of “[t]hree blank recorder cover pages . . .” (Exhibit 3) is denied.

Appellant Kyrias’s October 4, 2019 unopposed request for judicial notice in A157335 is granted.

Kyrias’s November 13, 2019 request for judicial notice in A157335 is denied.

In A157335, the April 29, 2019 order granting Sargent’s motion to strike and awarding attorney fees is affirmed.

In A157415, the April 29, 2019 order disqualifying Kyrias as counsel is affirmed.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Sargent v. Kyrias A157335-A157415