Professionalism and civility are increasingly being recognized as essential components of legal proceedings. Two recent California Court of Appeal cases, Medallion Film LLC et al. v. Loeb & Loeb (2024) 100 Cal.App.5^th 1272 (“Medallion”) and Masimo Corp v. Vanderpool Law Firm, Inc., G061829 (Cal. Ct. App. May 2, 2024) (“Masimo”) join a growing archive of higher court cases in which judges openly criticize the erosion of professionalism in legal proceedings. From pre-litigation communications to the discovery process, these cases demonstrate the detrimental effects of incivility on attorney discipline and financial outcomes. Whether incivility accompanies the loss of motions, sanctions, or even the reduction of an award, recent California Court of Appeal rulings suggest a growing intolerance of poor behavior in litigation. Increasingly, the higher courts are emphasizing that civility is not just a moral obligation, but a professional one that carries significant penalties for failure to comply.

Incivility and Prelitigation Communications

In 2014, the Medallion plaintiffs entered into an agreement with William Sadleir of Clarius Capital Group to assist in obtaining funding for film projects, receiving a fee from the funds raised through their contacts. Clarius agreed not to interact independently with these contacts. When Sadleir allegedly created another entity with the assistance of Loeb & Loeb to secure funding from BlackRock (a Clarius contact), the plaintiffs objected. The plaintiffs emailed BlackRock directly seeking payment of the consulting fee, and Loeb & Loeb responded, denying all legal ties between Clarius and the new entity. The assertions in the Loeb & Loeb letter later proved to be false, prompting the plaintiffs to sue Loeb & Loeb. Loeb & Loeb cited the litigation privilege, among other defenses, to the Anti-SLAPP motion. Initially, the trial court sided with Loeb & Loeb, but the Court of Appeal reversed this decision, finding the plaintiffs had shown a likelihood of success at trial as the claims were not protected under the litigation privilege.

Among other issues, Masimo underscores the ramifications of poor prelitigation communications. Litigation communications must be factual and made in good faith, and Loeb & Loeb’s defense was unsuccessful in part due to the lack of credible, upfront communications. The justices cited the Loeb & Loeb partner’s “bombastic and disproportionate response to an email not even directed to his client” in their decision, claiming the letter was not “made in good faith and serious contemplation but an attempt to dissuade the plaintiffs from making any further inquiries.” The inclusion of this in the published opinion indicates the court believes civility and honesty are not just about good manners, but also crucial to maintaining the integrity and efficiency of legal proceedings.

Challenges to Civility in the Discovery Process

Masimo v. Vanderpool concerns a discovery dispute and the failure to comply with document production requests. During litigation, the Masimo plaintiffs encountered significant and repeated resistance to the discovery process with defendants and their attorneys, the Vanderpool Law Firm (“Vanderpool”). Vanderpool objected on behalf of their clients to Masimo’s discovery requests based on various grounds (i.e., lack of standing, pending criminal matters, and violation of constitutional rights). Despite an agreement reached on behalf of a discovery referee to provide more comprehensive responses, Vanderpool continued to object without substantiation. Shortly after serving supplemental discovery requests, Vanderpool filed forms to withdraw as counsel for the defendants in the underlying case. Masimo then renewed its motion to compel and requested sanctions against all three initial defendants, as well as the Vanderpool Law Firm.

Vanderpool mounted a defense by arguing they had substituted out from the case and could therefore not be found liable for the lack of discovery response. The court rejected this argument, noting that “Vanderpool indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers.” The court also rejected Vanderpool’s claim that Masimo did not meet and confer before filing their motion to compel discovery, adding that Vanderpool was the one to refuse to meet and confer: “After dodging letters and emails, Vanderpool finally made its refusal to meet and confer explicitly in an email: ‘Your remedy is elsewhere, and an attorney with your billing rate should know that. We are not here to educate you.”

Much of the court’s decision centers on the lack of courtesy in Vanderpool’s discovery communications. Immediately after citing Vanderpool’s snarky email, the court laments that it has “in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades,” and cited several other recent decisions that trace “the deterioration in the way attorneys now address and behave toward each other” (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293).

The facts of this dispute were not in Vanderpool’s favor. However, it is impossible to ignore the lasting impression the tone of Vanderpool’s communications had upon the court. The decision cites the “condescending email [Vanderpool] sent to Masimo’s counsel,” the subject line of another email, which read “You are joking right,” and Vanderpool’s assertion that “In 30 years of practice this may be the stupidest thing I’ve ever seen. . . Quit sending us paper.” Of the 11-page decision, two and a half pages are devoted to the topic of civility. Incivility, the justices argue, is a form of bullying that gums up the work of the legal process and costs people money.

Promoting Civility in the Litigation Process

The Medallion and Masimo decisions underscore a broader call within the legal community for a return to more civil behavior. Measures such as the State Bar’s “Civility Toolbox,” and a requirement that new lawyers affirm to “dignified conduct” in their oaths have been implemented in recent years. Though incivility alone does not necessarily lead to attorney discipline (yet), higher court decisions continue to demonstrate the financial impact incivility can have, including a reduction of the prevailing party’s attorney’s fees award due to lack of civility (See Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908).

Lawyers must bear in mind that their behavior not only reflects their own character but also serves as a reflection of the legal profession and the judicial system at large. The California Court of Appeal has consistently affirmed that professional courtesy is both an ethical and statutory obligation. Whether manifested through impolite prelitigation communications or discovery gamesmanship, the California courts emphasize the significance of civility in maintaining the effectiveness of the legal process. The key message for business litigation is evident: ethical and civil legal approaches represent the smoother path towards an efficient and fruitful litigation journey. Attorneys and litigants must resist the temptation of unnecessary confrontations, prioritizing professionalism for the benefit of their mental well-being and financial interests.

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