The target of the Court's ire is (inactive) attorney Robert Thomas Fair. Mr. Fair agreed to a $350,000 settlement and then backed out of it. Spawning six years of contentious litigation and appeals.
Ending in today's $40,000+ award of sanctions.
The Court of Appeal and the trial court are undeniably correct that Mr. Fair agreed to settle the dispute, even if that settlement wasn't necessarily enforceable under Section 664.6. Here are the basic facts of the acceptance(s) -- which are pretty darn stark:
"Russo, plaintiffs’
attorney, sent the July 4 offer to Fair via email on the evening of July 4, 2013, stating that
it was plaintiffs’ “LAST AND FINAL OFFER,” and setting forth the 10 required terms
of the settlement. The final paragraph of the offer stated, “WE require a YES or NO on
this proposal, you need to say ‘I accept’ and I will work the balance of this holiday
weekend to get the paperwork drafted. . . . Let me know your decision.
The next day, July 5, at 10:17 a.m., Fair responded, “Jack, the facts will not in any
way support the theory in your email. I believe in Cameron. So I agree. Tom [F]air.”
At 10:28 a.m., Halliburton, another attorney for plaintiffs, sent an email to Fair
stating, “I don’t understand your email. Are you rejecting Jack’s settlement offer or
accepting it? Please be unambiguous, because I am about to file the complaint and ex
parte papers unless we hear an unambiguous acceptance.” . . .
At 1:02 p.m., Fair responded, “I said I agree. Took wording right from Jack’s
email. I agree.” At 1:04 p.m., Fair left a voicemail for Halliburton, stating that he had
not been able to respond earlier because he had been playing golf on a course that did not
allow cell phones and that “I agreed to your terms . . . I agreed. We have a deal . . . you
can stop proceeding at this point. . . .” At 1:07 p.m., Fair sent an email to Halliburton in
which he stated, “I do not believe you gave proper notice. Also I agreed with your terms.
You should [n]ot have filed. We clearly have an agreement. tom fair [sic].” At 1:36,
Fair sent an email to Russo, stating, “Filing does not obviate agreement/acceptance. Pls
[please] acknowledge.”
At 1:53 p.m., in an email to Fair, Russo stated, “This confirms full agreement, I
will work on the formal settlement paperwork which will conform to the settlement
agreement made today based on the 10 numbered paragraphs. . . . I will seek to get that
settlement paperwork to you for review by Monday with the goal of getting it all
finalized and signed next week. The settlement is otherwise binding under [section
664.6].” At 1:55 p.m., Fair sent a text message to plaintiffs’ counsel, stating “I have
accepted by phone and emai[l]. I said accepts which is the same as ‘agreed.’ You must
stop and you must tell the court we have an agreement.” At 2:09 p.m., Fair’s emailed
response to Russo’s 1:53 p.m. email confirming full agreement was “Ok.”"
Uh, I pretty much cannot even imagine any more of an obviously binding agreement. There was a deal. Period. Which is why the trial court properly granted summary judgment on that point.
As for the sanctions order: Wow. Check this out:
"In the present case, “[a]lthough we recognize sanctions should be used sparingly
to deter only the most egregious conduct [citation], we find them warranted here.”
(Kleveland, supra, 215 Cal.App.4th at p. 557.) That is because defendants’ arguments on
appeal are not “supported by a careful reading of the record or the law nor could these
arguments be reasonably characterized as presenting unique issues or arguing for
extension, modification, or reversal of existing law.” (Kleveland, at p. 557.)
First, the history of this matter is relevant to our determination of the propriety of
sanctions. [Cite] This case began almost six years ago, with a
settlement offer to which Fair—a licensed attorney—agreed in writing some six times. [Cite]
Additional prior conduct is also relevant to our sanctions determination, including
defendants’ repeated attempts to arbitrate this matter, together with a tardy appeal to this
court of one of the trial court’s orders denying their motion to arbitrate, despite their
failure to appeal the denial of their initial motion to arbitrate. [Cite] In addition, the trial court granted plaintiffs’ special motion to
strike a cross-complaint filed by defendants, after finding that defendants’ claims did not
constitute protected speech and defendants were not likely to prevail on the merits
because all of the claims in the cross-complaint were protected by the litigation privilege.
[Cite] We affirmed the court’s order on appeal. [Cite] As we stated in our 2018 opinion affirming
the grant of the anti-SLAPP motion, defendants “offered misleading quotes, taken out of
context from the demand letter,” to argue that plaintiffs’ attorney was threatening
criminal prosecution for Fair’s alleged Ponzi scheme if Fair did not agree to pay plaintiffs
$350,000, whereas he in fact “threatened no such thing.” [Cite] Defendants raised a
similar argument in support of their motion for summary adjudication and in this appeal,
which provides further evidence of frivolousness. [Cite]
Defendants also offered misleading partial quotes from one of our own prior
opinions in this case in which we reversed the trial court’s judgment enforcing the
settlement against defendants, pursuant to section 664.6. They then relied on this
misleading language to argue that this court found that no settlement in fact occurred. . . . In both their anti-SLAPP appeal and the present appeal,
defendants have distorted the language and intent of our own 2014 opinion to support
their claim that we held in that opinion that no settlement had been reached, which we
explicitly stated in that opinion we were not doing. . . .
In addition, in their supplemental briefing opposing sanctions, defendants purport
to demonstrate the merit of this appeal by asserting that “there are several potential triable
issues of material fact regarding the existence, actual terms, and enforceability of the
parties’ purported July 5, 2013 settlement agreement.” They then repeat in summary
form the same completely meritless arguments raised in the trial court and in their
opening brief on appeal, in which they offered selective facts, misrepresented the record,
and/or argued completely inapplicable law. . . .
For all of these reasons, we conclude that “any reasonable attorney would agree
that the appeal is totally and completely without merit” and would not have raised the
arguments defendants make on appeal, which are merely rehashed in the supplemental
briefing in opposition to imposition of sanctions. [Cite] In light of this conclusion, we need not directly address plaintiffs’ additional
arguments that there is evidence demonstrating that defendants filed this appeal for the
subjective purpose of delay because we find that the history of this case and the
indisputable “total lack of merit” of this appeal provide strong evidence of defendants’
subjective intent, i.e., that they “ ‘must have intended it only for delay.’ ” [Cite]
In short, we are persuaded, by clear and convincing evidence, that the pursuit of
this appeal was frivolous, and warrants sanctions."
Remember: This is a published opinion. That's gotta hurt.
Plus, the Court of Appeal not only sanctions Mr. Fair, but also his attorneys. Which is a reminder not to take on frivolous appeals brought by litigious clients. Particularly lawyers.
A total smackdown by the Court of Appeal.
