A California attorney is in professional trouble for calling the ruling of the female judge in his case “succubustic,” among a host of other insults.
The California Court of Appeal, Fourth District said it would report Benjamin Pavone of Pavone & Fonner LLP to the state bar.
Pavone represented the plaintiff in an employment law suit. The jury awarded his client $8,080 in damages for sexual harassment, but the court dismissed his fraud claim and rejected his claims seeking an injunction for unfair advertising and unfair business practices. His wage claim was resolved before trial.
The trial court denied Pavone’s request for an award of $146,634 in attorneys’ fees. In Pavone’s notice of appeal, he said the ruling was “disgraceful,” “succubustic,” validated the defense’s “pseudohermaphroditic misconduct,” and “prompt[s] one to entertain reverse peristalsis unto its four corners.” The last appears to be an oblique way of saying the ruling made him want to vomit.
Pavone also suggested the trial court tried to thwart service of the signed judgment on the plaintiff in an effort to evade appellate review.
The appeals court affirmed the denial of attorneys’ fees. Most of the opinion is unpublished, but the court released one section castigating Pavone for his misconduct.
“A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep,” the court said. “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”
“We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include” such language in his notice of appeal, the court said.
The court said it was bound to report Pavone under a section of California’s Business and Professions Code requiring attorneys to “maintain the respect due to the courts of justice and judicial officers.” The court also noted that Pavone’s notice would have run afoul of a new section of the California Rules of Professional Conduct barring attorneys from discriminating against persons on the basis of protected characteristics including gender had he filed the notice after the rule went into effect in November 2018.
The court will also report Pavone for language in his appellate briefs accusing the judicial officer of displaying “mindless antipathy” toward his client and intentionally refusing to follow the law. “There is no support in the record for such a serious charge,” the court said.
The case is Martinez v. O’Hara, Cal. Ct. App., 4th Dist., No. G054840, 2/28/19.
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