Weaponizing the Litigation Process - When Litigation Results in the Taking of Hostages

• Publication year: 2021
• Author: By Hon. Reva Goetz (Ret.) *

WEAPONIZING THE LITIGATION PROCESS - WHEN LITIGATION RESULTS IN THE TAKING OF HOSTAGES

By Hon. Reva Goetz (Ret.) *

MCLE Article

I. INTRODUCTION

Trusts and estates cases can be in existence for years or even decades. Given the myriad of issues raised in each case, one can very easily keep litigation going, which makes them ripe for litigation abuse. However, the remedies preventing a party from "weaponizing" litigation are sorely lacking, except in very limited, specific circumstances.

Having the honor and privilege to serve in a judicial capacity, I became a witness to, and unwilling participant in, litigation where parties were held hostage by litigation. Often the hostage-takers are those whose malfeasance is what caused the litigation in the first place. Working in the justice system is very rewarding. But when it is used as a weapon, the damage done financially and emotionally is more than a mere byproduct of the actual wrath being meted out by the aggressor. It makes the legal system a complicit partner.

More recently, as a neutral assisting families and others to resolve their differences and avoid litigation, I have been involved in these situations both at the outset (before litigation ramps up) and during the litigation.

I hear from people with whom I have mediated and attorneys who litigated cases in front of me years after I was involved with their cases. Some of these cases have been ongoing for over a decade.

In some instances, the hostage-taking litigant's chances of prevailing are remote at best and they may not have a scintilla of a chance of recovering their attorney's fees and costs. It seems like they are only in the litigation for the purpose of further damaging, engaging with, or punishing the opposing side for seeking assistance from a court or asserting themselves in the legal arena.

There are some circumstances where the only way to get some relief from the constant legal sparring is to take the case to trial. Yet, if the wronged party prevails, the aggressor party can continue the litigation after trial by filing motions for reconsideration, requesting hearings for court processes emanating from the result at trial and demanding additional hearings. After exhausting the trial court processes, the losing party can seek relief by way of the appellate process can prolong the litigation process for years. All of this uses financial and emotional resources, both of which are often in limited supply for those against whom this onslaught is brought.

What can be done to limit or end the damage done by embarking on the legal journey when the opposing side is intent upon using the legal process to further punish the already damaged party? What are the consequences for the parties who want to end the litigation but cannot do so without severe financial or emotional consequences? Is there a way to extricate themselves from litigation?

While protections against abuse of the legal process are built into various areas of law by statute, including vexatious litigants, nowhere in the Probate Code, is there an attorney's fee provision to address a situation where the aggrieved party has limited resources and may not be able to afford to litigate their claims.

In this article, I will survey some of the limited statutory protections that are available and explain why they are insufficient to deal with this problem of hostage-taking litigants in probate litigation matters, including some real-life scenarios I dealt with on the bench. I will conclude by providing some suggestions which may deter some of these actions in the future.

II. LIMITED STATUTORY PROTECTIONS

In certain parts of the litigation system statutory remedies exist to address some abuses of the process.

A. Protections in the Discovery Process

Once a case and response are filed, the discovery process begins. This can provide an opportunity for the opposing side to do one of two things to delay litigation. It can fail to comply with the requested discovery, or it can propound extensive discovery of its own.

Statutory law provides specific rules to follow and remedies that arise from misuse or abuse of the discovery process. The Code of Civil Procedure requires that counsel and/or the parties meet and confer to discuss discovery disputes.¹ The statutes provide redress for misconduct during the discovery process, including evidentiary sanctions and issue sanctions.²

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Once discovery has been properly served, it is possible for the opposing party to obstruct the process by either not responding, objecting to the propounded discovery, providing incomplete responses, and/or failing to comply with the code requirements. The reality is that this requires the propounding party to incur attorney fees to pursue the discovery and delays the litigation process as redress is sought.

When the court finds that the response to propounded discovery is lacking, after counsel meet and confer and if a motion to compel is warranted, the discovery statutes mandate the award of attorney fees. However, the applicable statutes are qualified with the following language, "The court shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully opposes a motion to compel...., unless it finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of a sanction unjust."³

Despite these remedies, time often passes before the abuses may be addressed based on statutory time requirements and any delay getting the matter before a court. The time delay, if one has an elder for a client can be prejudicial because the elder's health or memory may become impaired which works to the advantage of the delaying party.

B. Bad Faith or Frivolous Actions

In civil cases, there are often prevailing party statutes awarding attorney fees and costs to the prevailing party in the event a case without merit is pursued. This acts as a check and balance to deter people from bringing litigation without there being a substantial basis for filing it in the first place. However, the Legislature has provided limited remedies for those who embark on litigation that is solely brought for the purpose of harassing parties or who unnecessarily delay proceedings in a case. Code of Civil Procedure section 128.5 addresses the filing of frivolous actions or causing unnecessary delay. Code of Civil Procedure section 128.7 addresses actions brought for an improper purpose, that are not warranted by law or lacking evidentiary support. In my experience, requests for enforcement pursuant to sections 128.5 or 128.7 in probate cases are virtually non-existent.

Section 128.5 is framed in a permissive posture in that it provides that a trial court may order a party or party's attorney or both to pay any reasonable expenses, including attorney fees incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.⁴ "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.⁵ "Frivolous" is defined as "totally and completely without merit or for the sole purpose of harassing an opposing party."⁶ Liability under section 128.5 is in addition to any other liability imposed by law.⁷ for acts or omissions within the purview of this section.

Code of Civil Procedure section 128.7, subdivision (b) provides that by signing, filing or later advocating a pleading, petition, verification or other similar paper, the attorney or unrepresented person is...