Lost-in-the-Mail Excuse Loses in Court

Here are more cautionary tales for solo and small firm attorneys to read and remember, this time from California. The lessons from these two recent cases? First, come up with a better excuse for failing to file an answer to a complaint than that it might have been stolen from your mailbox, because it could cost you $1.7 million. And second, make sure that a motion to dismiss a fellow attorney's claim under California's SLAPP law has merit -- or you may receive a SLAPPdown.

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At least he didn’t claim the dog ate his homework. But Brea, Calif., attorney Harpreet Brar’s claim that his court papers were stolen from his mailbox had Santa Ana, Calif.’s 4th District Court of Appeal scoffing loudly. “If Brar had really been diligent about his answer, given the supposed likelihood of mail theft in his neighborhood,” Justice David Sills wrote on Wednesday, “he could have driven to a local post office and put the envelope inside a mailbox himself.” Justices William Rylaarsdam and Raymond Ikola concurred in the ruling, which upheld a default judgment against Brar of more than $1.7 million. Brar’s troubles began last year when the same panel summarily dismissed his appeal of a lower court’s denial of his motion to strike a complaint by the attorney general’s office. The AG accused Brar of using the state’s unfair competition law to “shake down” video stores and nail salons. When Brar failed to respond to the complaint, the AG requested — and got — the default judgment and an order for $10,000 in restitution to nail salon owners. That’s when Brar brought up mail theft, noting that several neighbors’ correspondence was also taken in the summer of 2004. He even said his electricity, telephone and satellite television had been disconnected because he hadn’t received his monthly bills. The 4th District didn’t bite, referring, instead, to Brar’s “remarkably theft-prone mailbox” and saying it was reasonable for the trial court to conclude he was lying. “Brar’s indifference to the absence of a conformed copy is grounds for a reasonable inference that Brar never put an answer in his mailbox in the first place,” Sills wrote. “The attorney general’s litigation,” he continued, “went directly to the way Brar was alleged to earn his living; it wasn’t some overdue electric bill. If he ever had incentive to make sure that an answer got filed in any case he worked on, it was certainly this case.” Sills didn’t let up there, though. He also noted that the State Bar has placed Brar on two years’ probation, and that he has begun targeting liquor stores with point-of-access pay machines that charge a fee by using his wife to file nuisance suits under the consumer legal remedies act. “Brar makes his living by the disruption of small businesses posed by the fact of litigation filed against them and their need to pay a nuisance settlement to avoid further distraction,” Sills wrote. “And while the attorney general’s litigation against him meant that the game was over,” Sills added, “a few extra settlements might still be eked out before the attorney general’s judgment became final. That need for time was certainly motive enough to fabricate a story about putting pleadings in a home mailbox and their all-too-convenient disappearance by way of a possible theft.” Brar, a graduate of Fullerton’s Western State University Law School, couldn’t be reached for comment. The ruling is People ex. rel. Lockyer v. Brar, 05 C.D.O.S. 10127. — Mike McKee CONTINGENT FEE SLAPPDOWN A lawyer fighting for his share in a fee splitting agreement was recently allowed by California’s 3rd District Court of Appeal to “SLAPP” his fellow attorney for backing out of a deal. Even though he was subsequently fired from a personal injury case before it went to trial, Christopher Olsen claims Joseph Harbison III, whom Olsen asked to serve as co-counsel on the case, backed out of an arrangement to share contingent attorney fees. The case was subsequently settled, and Harbison collected the attorney fees. Olsen, in turn, filed a complaint in an attempt to recover a portion of the fees. For more than a year, Harbison adamantly tried to get Olsen’s complaint dismissed, and eventually filed an anti-Strategic Lawsuit Against Public Participation motion. A trial court denied the motion “on the ground that it is dilatory, without good cause for failing to bring the motion earlier.” “The SLAPP statute,” the trial court wrote in its ruling against Harbison, “is intended to provide an aggrieved defendant with a shield through the prompt resolution of meritless claims prior to the significant expenditure of litigation resources, not a sword to be wielded whenever it becomes strategically convenient.” Harbison appealed the ruling to the 3rd District Court of Appeal, which promptly dismissed the lawyer’s request, stating in its Nov. 22 opinion that Harbison’s appeal is “frivolous because the claim of abuse of discretion indisputably has no merit.” Harbison was ordered to pay Olsen $16,727.50. The case is Olsen v. Harbison, C048750. — Julie O’Shea

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