NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1621-22
P.J.L.,1
Plaintiff-Appellant,
v.
E.F.N., ESQ.,
Defendant-Respondent. ________________________
Argued January 14, 2025 – Decided June 2, 2025
Before Judges Sumners and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1973-22.
Patricia J. Lee, appellant, argued the cause pro se (Michael Confusione, on points two and three of the brief).
Mark A. Trokan, attorney, argued for respondent (Gordon Rees Scully Mansukhani, LLP, attorneys; Mark A. Trokan, of counsel and on the brief; Alexander L. Bakes, on the brief).
1 We refer to the parties by initials to protect the children's privacy. R. 1:38- 3(d)(12), (16). PER CURIAM
Plaintiff appeals the Law Division order dismissing her complaint against
defendant, the guardian ad litem of her two minor children, and sanctioning her
to pay defendant's attorneys' fees and costs of $26,713.06 under the Frivolous
Litigation Statute (FLS) N.J.S.A. 2A:15-59.1. We affirm.
I
During plaintiff's contentious divorce proceedings with her husband, a
Family Part judge appointed defendant, a licensed New Jersey attorney, as their
two children's guardian ad litem under Rule 5:8B(a) to assist the judge in
determining who would have custody of them. After the judge granted sole legal
custody to her husband, plaintiff collaterally attacked the decision by filing two
separate self-represented actions in the United States District Court that were
subsequently dismissed.2 Plaintiff, still self-represented, filed this action
seeking compensatory and punitive damages against defendant based on claims
of negligence, gross negligence, breach of fiduciary duty, intentional infliction
2 A federal district court judge dismissed plaintiff's judicial misconduct and federal civil rights claims against the Family Part judge due to judicial immunity. A different federal district court judge dismissed plaintiff's habeas petition, filed on the children's behalf, as an improper attempt to relitigate her child custody case in federal court. A-1621-22 2 of emotional distress, and conspiracy. Plaintiff's salacious allegations included,
but were not limited to, claims that defendant "disconnect[ed] any type of
custody from [her] . . . to give sole custody to the abusive father," turned a "blind
eye" to evidence that the children were "in extreme danger" from her "maniac"
husband, forced the children "to see a 'therapist' who locked them in her office
if they refused her 'therapy,'" and colluded with the judge "to the detriment of
[her] and her minor children."
Defendant moved to obtain an extension of time to file an answer to the
complaint. Plaintiff opposed the motion, stating in her letter to the trial judge
that "[defendant] should be removed as soon as possible in the underlying case.
Therefore, the actions of this instant case [are] to help facilitate this removal."
The day after plaintiff submitted her motion opposition, defendant's
counsel sent plaintiff a notice demanding that she voluntarily dismiss her suit
because her claims were frivolous and if she did not do so "[defendant] will
move for the entry of an appropriate sanction, including all of [defendant's]
attorneys' fees." See N.J.S.A. 2A:15-59.1; see also R. 1:4-8. The notice asserted
the complaint was meant to harass defendant into stepping down as guardian ad
litem and plaintiff's claims were precluded by defendant's immunity and
litigation privilege as guardian ad litem. The notice also advised plaintiff that
A-1621-22 3 "to the extent you are unsatisfied with [defendant's] services as GAL [(guardian
ad litem)], the proper course of action is for you to seek to remove her from her
position by way of petition in the [divorce proceedings]."
Before plaintiff responded to the frivolous litigation notice, defendant
moved under Rule 4:6-2(e) to dismiss the complaint with prejudice for failure
to state a claim upon which relief can be granted. About two weeks later,
plaintiff wrote to defendant's counsel advising she would not withdraw her
complaint. Plaintiff asserted "this lawsuit [is] a chance for the truth to come
out, and whether that results in [defendant's] removal or some other remedy is
for the courts to decide."
Following oral argument, the trial judge rendered an oral decision and
issued a written order dismissing the complaint with prejudice. The judge
determined defendant was entitled to litigation privilege, absolute judicial
immunity, and viewing the complaint as a claim for legal malpractice, plaintiff
failed to state a cognizable claim for relief. The dismissal was granted with
prejudice because the judge determined "no amendment [to the complaint] will
cure these pleading defects."
Almost two months later, the trial judge considered whether to impose
frivolous litigation sanctions against plaintiff because she refused to voluntarily
A-1621-22 4 withdraw her complaint.3 After hearing the parties' arguments, 4 the judge
granted the motion and directed defendant's counsel to submit an affidavit of
services pursuant to Rule 1:4-8. The judge expressed reluctance to award
defendant the full amount of attorneys' fees defendant incurred, surmising a
$5,000 sanction would adequately "send a message to [plaintiff] regarding the
inappropriateness of her actions," even if defending the complaint had cost
"easily three times that amount." Nevertheless, the court reserved decision until
it reviewed "the totality of the bills" and directed defendant's counsel to provide
an affidavit of services setting forth the attorneys' fees and costs she incurred
defending plaintiff's complaint.
Defendant's counsel subsequently submitted her counsel's affidavit of
services and accompanying invoices totaling $26,713.06 in attorneys' fees and
costs defending plaintiff's complaint. The affidavit also asserted that plaintiff
made frivolous complaints against defendant to the police and detailed plaintiff's
disclosure of information pertaining to the child custody dispute to third parties
3 Plaintiff appealed the order dismissing her complaint. However, we dismissed the appeal as interlocutory because defendant's frivolous sanctions motion was pending and plaintiff did not seek leave to appeal. See R. 2:2-4 and 2:5-6. 4 Plaintiff retained counsel to represent her at oral argument opposing defendant's sanction application.
A-1621-22 5 which ended up in nine articles on the internet. While the articles did not
identify plaintiff, her husband, or their children by name, they all referenced the
child custody dispute, describing accurate and intimate details about the
proceedings and the individuals involved.5
Following argument, the judge rendered an oral decision and issued an
order awarding defendant $26,713.06. The judge found plaintiff "unreasonably
refused to withdraw" her complaint despite receiving the frivolous litigation
notice, which adequately explained why defendant's litigation privilege and
absolute judicial immunity barred her claims. The judge cited plaintiff's letter
evincing her "intent to coerce [defendant] to voluntarily withdraw from the
underlying [child custody] matter as the court-appointed" guardian ad litem.
This purpose, according to the judge, was improper and justified sanctions to
deter similar suits in the future. The internet articles weighed significantly in
the sanctions, because the judge believed plaintiff had shared information about
her child custody case, which was sealed by the Family Part judge's court.
5 Six articles were published by a children victims' organization and authored by the organization's founder. Plaintiff's sister wrote the other two articles. Six articles named the custody trial judge, two named defendant, and one contained a drawing of defendant's likeness. One article is presented as a letter from "Protective Mother" to "her child's [g]uardian ad [l]item." A-1621-22 6 Plaintiff appeals the orders dismissing her complaint with prejudice and
awarding sanctions to defendant.6
II
Plaintiff contends the trial judge improperly dismissed her complaint.
Based upon our de novo review of a Rule 4:6-2(e) motion to dismiss, Watson v.
N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017), we disagree
because even accepting plaintiff's factual allegations as true, they "are palpably
insufficient to support a claim upon which relief can be granted." Frederick v.
Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder v. State Dep't
of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)).
Contrary to plaintiff's argument on appeal, her complaint only alleges
conduct related to her underlying child custody case. The judge properly held
that the complaint relates to defendant's role as guardian ad litem as her
allegations involve defendant's interaction with her, her husband, the children,
their children's healthcare providers, or the judge, in the context of the child
custody matter. As guardian ad litem, it was defendant's duty to help the judge
determine and promote "the best interests of the child" by, at a minimum,
6 Initially, counsel represented plaintiff on appeal. However, counsel later withdrew, resulting in plaintiff's self-representation. A-1621-22 7 "[i]nterviewing the child[] and [parents];" "[i]nterviewing other persons
possessing relevant information;" "[o]btaining relevant documentary evidence;"
and "[c]onferring with the [judge]." R. 5:8B(a)(1)-(3), (5). Because plaintiff's
allegations speak to defendant's guardian ad litem duties, the litigation privilege
shields defendant from plaintiff's suit. The privilege precludes "liability for
statements made . . . [during] judicial, administrative, or legislative proceedings
by a litigant or other trial participant." Russo v. Nagel, 358 N.J. Super. 254, 265
(App. Div. 2003). It "extends to all statements or communications in connection
with the judicial proceeding." Hawkins v. Harris, 141 N.J. 207, 216 (1995)
(quoting Ruberton v. Gabage, 280 N.J. Super. 125, 133 (App. Div. 1995)).
Defendant's litigation privilege protection covers not only her conduct but
her verbal statements or communications. Our Supreme Court declared the
privilege covers an "extraordinary scope," reflecting the "wide degree of
discretion" lawyers require to "advance the best interests of the administration
of justice" and "perform[] their duties in the course of judicial proceedings."
Loigman v. Twp. Comm. of Middleton, 185 N.J. 566, 587-88 (2006).
In addition, plaintiff's complaint is legally insufficient because
defendant's role as a court-appointed guardian ad litem entitles her to absolute
judicial immunity. We conclude that case law affording absolute judicial
A-1621-22 8 immunity to law guardians and court-appointed experts is instructive and
contrary to plaintiff's contention that defendant is not entitled to such immunity.
Law guardians are appointed by the court and form "an integral part of the
judicial process" in child custody disputes and "are cloaked with absolute
judicial immunity." Delbridge v. Off. of Pub. Def., 238 N.J. Super. 288, 301-
02 (Law Div. 1989), aff'd o.b., A.D. v. Franco, 297 N.J. Super. 1 (App. Div.
1993). Similarly, court-appointed experts have absolute judicial immunity
because courts must "be able to rely on the [experts'] findings and . . .
recommendations," which would not occur if the experts are unwilling or
"reluctant to perform their assigned task with complete candor" for "fear of
reprisal by parties . . . who are, in the end, disappointed with the result or with
the recommendations provided to the court." P.T. v. Richard Hall Cmty. Mental
Health Care Ctr., 364 N.J. Super. 546, 557-59 (Law Div. 2000), aff'd o.b., 364
N.J. Super. 460 (App. Div. 2003). Absolute judicial immunity for law guardians
and court-appointed experts applies equally for a guardian ad litem.
Like law guardians and court-appointed experts, a court-appointed
guardian ad litem "acts as an independent fact finder, investigator and evaluator
as to what furthers the best interests of the child." Div. of Youth & Fam. Servs.
v. Robert M., 347 N.J. Super. 44, 69 (App. Div. 2002) (citing The Official
A-1621-22 9 Comments for R. 5:8A and R. 5:8B). Defendant's guardian ad litem
responsibilities with the children entitles her to absolute judicial immunity as
she was serving "the function of resolving disputes between parties, or of
authoritatively adjudicating private rights." Malik v. Ruttenberg, 398 N.J.
Super. 489, 496 (App. Div. 2008) (quoting Antoine v. Byers & Anderson, 508
U.S. 429, 433 n.8 (1993)). Defendant's immunity "attaches at the outset of [the]
proceedings" and provides complete protection "from suit." Id. at 496 (quoting
Mireles v. Waco, 502 U.S. 9, 11 (1991)). Defendant does not have to be a judge
or "law guardian," as plaintiff argues, to be cloaked with absolute judicial
immunity given that all the allegations against her relate to her role as guardian
ad litem assisting the trial judge in deciding the children's custody.
In addition to the defendant's litigation privilege and absolute judicial
immunity, plaintiff's claims essentially constitute a legal malpractice cause of
action. Even though plaintiff did not designate these claims as legal malpractice,
she asserted defendant owed her damages for violating the Rules of Professional
Conduct––the hallmark of a legal malpractice action. See, e.g., Cortez v.
Gindhart, 435 N.J. Super. 589, 607-08 (App. Div. 2014) (subsuming claims of
breach of contract and breach of fiduciary duty into a legal malpractice claim
where a client sued his lawyer for improper billing). As defendant never
A-1621-22 10 represented plaintiff, the parties did not have "an attorney-client relationship
creating a duty of care by the defendant attorney." Gilbert v. Stewart, 247 N.J.
421, 442 (2021) (internal quotation and citation omitted). Thus, plaintiff's
negligence, gross negligence, and breach of fiduciary duty claims were properly
dismissed with prejudice and could not be amended to avoid dismissal because
there is no attorney-client relationship establishing a duty defendant owed
plaintiff.
III
Plaintiff contends the judge erred in awarding sanctions to defendant. She
claims the judge overlooked her explanation that the complaint was not meant
to "help facilitate" defendant's withdrawal. She contends she raised the
possibility of defendant's removal to stress her emergent concerns that her
children's safety warranted denying defendant's request for additional time to
file an answer. She argues her reply to the frivolous litigation notice was meant
to explain that her complaint sought to uncover the truth behind defendant's
conduct towards her children. She contends she did not act in bad faith in filing
her complaint and her conduct "bespeaks an honest attempt to press a perceived
claim" for "which she advanced colorable legal argument[s] at every step." She
cites Tagayun v. AmeriChoice of N.J., Inc., 446 N.J. Super. 570, 580 (App. Div.
A-1621-22 11 2016), for the proposition that frivolous litigation sanctions are unwarranted
when a party is simply "wrong about the law and loses [their] case." Lastly,
plaintiff argues the trial judge erred by awarding an excessive amount in
attorneys' fees and costs and should reduce the award to $5,000. She contends
nothing in the record supported the judge's reasoning for awarding the full
amount of reasonable attorneys' fees sought, because the judge relied on articles
it baselessly assumed were written, submitted, or approved by her. She contends
she did not write any of them, and the record at best shows the author of one
article interviewed her sister. She points out that nothing in the record showed
she made frivolous complaints to the police.
Our Supreme Court recently recognized that "[s]ince its inception, the
FLS has served two purposes." Borough of Englewood Cliffs v. Trautner, ___
N.J. ___ (2025) (slip op. at 11) (citation omitted). First, the FLS "serves a
punitive purpose, seeking to deter frivolous litigation." Ibid. (quoting Deutch
& Shur, P.C. v. Roth, 284 N.J. Super. 133, 141 (Law Div. 1995)). Second, the
FLS "serves a compensatory purpose, seeking to reimburse 'the party that has
been victimized by the party bringing the frivolous litigation.'" Ibid. (quoting
Deutch & Shur, 284 N.J. Super. at 141). The FLS provides that a trial judge
may find frivolous litigation where the "nonprevailing party" advanced its claim
A-1621-22 12 in "bad faith, solely for the purpose of harassment, delay or malicious injury,"
or "knew, or should have known," its claim had no "reasonable basis in law or
equity and could not be supported by a good faith argument for an extension,
modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b)(1)-(2). This
is mirrored in our court rules which provide sanctions can be imposed against a
self-represented party whose pleading has an "improper purpose, such as to
harass" or asserts a claim lacking legal support. R. 1:4-8(a)(1)-(2).
A trial court's decision to order frivolous lawsuit sanctions is reviewed
under an abuse of discretion standard. Wolosky v. Fredon Twp., 472 N.J. Super.
315, 327 (App. Div. 2022) (citing McDaniel v. Man Wai Lee, 419 N.J. Super.
482, 498 (App. Div. 2011)). An abuse of discretion "arises when a decision is
'made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Applying these principles, we discern no abuse of discretion in the trial
judge's finding that plaintiff's litigation was frivolous, as it was supported by
credible evidence in the record and consistent with the law. The trial judge
properly rejected plaintiff's attempt to deflect her admission to filing the
A-1621-22 13 complaint to "help facilitate" defendant's withdrawal as guardian ad litem. We
see no abuse of discretion in the trial judge’s conclusion regarding to plaintiff’s
purpose for bringing the suit. That finding is amply supported by the record,
which had more than "a single line" showing this was plaintiff's true intent. In
the same letter where she admitted the suit was meant to "help facilitate"
defendant's withdrawal, she wrote, "[defendant] should be removed as soon as
possible." Her reply to the frivolous litigation notice reaffirmed her belief that
this suit could lead to defendant's dismissal as guardian ad litem. Thus, the
judge had "competent, relevant[,] and reasonably credible evidence" to find
plaintiff wanted to force defendant to withdraw as guardian ad litem from her
child custody case. See Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474,
484 (1974) (citation omitted). Plaintiff's unsuccessful actions in the federal
courts to overturn the Family Part judge's custody order further indicate the
harassing nature of her conduct.
Plaintiff's argument that her complaint did not constitute bad faith is also
unavailing. She incorrectly distinguishes her suit from Tagayun, where the
plaintiffs brought their claims when the underlying substantive law was
unsettled and did not clearly foreclose their legal arguments. 446 N.J. Super. at
578-79. Defendant's frivolous litigation notice to plaintiff clearly explained the
A-1621-22 14 litigation privilege and judicial immunity barred her claims because her
allegations arose from defendant's performance as the court-appointed guardian
ad litem. See R. 1:4-8(b)(1)(ii) (requiring the frivolous litigation notice to "set
forth the basis for [the] belief [that the pleading is frivolous] with specificity");
cf. Bove v. AkPharma Inc., 460 N.J. Super. 123, 154 (App. Div. 2019) (reversing
sanctions where the defendants' frivolous litigation notice omitted the exact
defense "on which [they ultimately] prevailed"). The frivolous litigation notice
correctly advised plaintiff that the proper course of action to remove defendant
as guardian ad litem was to petition the Family Part judge.
The imposition of frivolous litigation sanctions against plaintiff was not
based on her desire to regain custody of her children and ensure their health and
well-being. Nor should the sanctions be construed as reflecting the truthfulness
of plaintiff's allegations. As the trial court judge aptly observed: "The factual
accuracy of the allegations made by plaintiff is not an issue in this litigation or
in this motion."
We also do not question the trial judge's consideration of the internet
articles criticizing defendant and the child custody proceeding. The judge had
a clear sense of plaintiff's varied efforts to harass defendant, which we see no
reason to upset. The judge's finding that the articles were further evidence of
A-1621-22 15 plaintiff's harassment was credible. Yet, even without the internet articles, there
was a sufficient basis to award defendant the full amount of attorneys' fees and
costs she requested. Plaintiff decided not to comply with the demand to
withdraw her suit even though she was on notice that defendant had dispositive
defenses of litigation privilege and judicial immunity. Consequently, we will
not disturb the sanctions imposed.
To the extent we have not addressed any of plaintiff's arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-1621-22 16