September 2012 - Bait-and-Switch Service
by Richard W. Millar, Jr.
All of us are familiar with a requirement that we serve copies of everything we file in court on the opposition. And, of course, before we go to court, we always read the opposition so that we can adjust our arguments or expectations accordingly. There are times when I have experienced, and I am sure many of you have too, a sense of, let’s call it, bewilderment, on reading or hearing a court’s tentative ruling. While I hasten to say that of course this has never happened in Orange County, particularly before the judges who read this column, it has, on occasion, happened elsewhere. I have wondered where did that come from? Was there something filed I didn’t see?
It’s also always open season with pro pers. Unless they are one of those whose penchant for filing has earned them the vexatious sobriquet, your chances of getting a copy in the mail of something a pro per has filed is somewhere between nil and maybe.
You know the drill: you go to court thinking there has been no opposition, only to find when you get there that some long, rambling, and often handwritten pro per opposition was filed. The judge, who does not want to read the handwritten diatribe any more than you do, will give the pro per a mild rebuke and then continue the hearing so you can digest the largely indigestible opposition.
I well remember one particular example, although it occurred over 40 years ago. A firm for which I worked did a great deal of collection work for a national bank. One of these cases had been filed in a justice court which had jurisdiction over amounts probably less than our current small claims limits. Be that as it may, the defendant was duly served and, after the statutory time had passed (I think it was ten days in that era), I sent in whatever it was I had to send in to get his default taken. A few days later, I got a notice back from the clerk that the default could not be entered because an answer had been filed. Well, in righteous high dudgeon, I called the clerk to complain that this scofflaw defendant had not served a copy of the answer on our office. The clerk politely explained that the defendant, who apparently knew the law better than I did, had filed (and the word “filed” was her terminology) an oral answer. “A what?” I think I said. The clerk then patiently explained that the code allowed a defendant in a justice court to simply give an oral answer. “What did he say?” I asked. But, alas the practice was simply to note that an oral answer had been filed with no record of its content.
From time to time, I have wondered if anyone ever filed one thing with the court, and served something different on opposing counsel. It was always a fleeting wonder as it seemed a little more than an absurd fantasy.
That is, until now.
Alden Banniettis was an insurance defense attorney in New York. (The use of the word “was” was not, as you will see, accidental.) Mr. Banniettis was also, it seems, a summary judgment enthusiast.
Mr. Banniettis filed one motion for summary judgment which was denied because the affidavit he submitted in support stated that it was signed by Ernst Horowitz, M.D., but the signature page (which did not contain an original signature) indicated it was signed by Paul Mostun, D.C.
Mr. Banniettis filed several more motions for summary judgment in other cases which the courts denied, finding that they differed from the motions served upon the defendant, and that the differences were substantial and intentional. In a motion for summary judgment, Mr. Banniettis filed on behalf of PDG Psychological P.C., the court found that it “had not been properly served” on the opposition. The lawyer attached a purported affidavit of one Phillip Goldstein, Ph.D. sworn to on June 20, 2004, while his proof of service indicated that it was served on the other side February 3, 2004.
In a case where he represented Oleg Barshay D.C., P.C. the court found that his summary judgment motion contained Dr. Barshay’s affidavit sworn to on June 14, 2004, which, with great prescience, had been served on February 3, 2004, causing the trial court to say, “Finally, the court is losing patience with [Mr. Banniettis] who appears to be oblivious to the procedures . . . with respect to filing with the court the same papers one serves upon the opposing side, as he continues to submit motions before the next affidavits are even executed and notarized.” It seems to me, he was just a little ahead of the game, but I digress.
In a motion for summary judgment on behalf of IVB Medical Inc., it was denied with the finding that a claim form he had served on defense counsel was not signed “yet, ‘[mysteriously] the claims forms annexed to the plaintiff’s papers filed with the court have a signature . . . .’” That led the court to note that it had “previously admonished [the respondent] for bait-and-switch tactics used when submitting papers to the court.”
Well, if there was any doubt that there was a pattern, there were another dozen (if I have counted correctly) similarly denied summary judgment motions, and Mr. Banniettis was ultimately sanctioned $34,000.
It didn’t end there, however, and a disciplinary proceeding ended up in the New York Supreme Court Appellate Division which noted that Mr. Banniettis demonstrated no remorse “and persists in blaming others for what he described as harmless clerical errors.” Finding his conduct went to the “very core of the judicial system,” he was disbarred.
I trust the court clerk took extra care to be sure that the copy of the order served upon Mr. Banniettis was the same as the original.
Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at email@example.com.