Tuttle v. Combined Insurance

225 F. App'x 620

Opinions

MEMORANDUM

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I.

Michael Capíes, Combined Insurance’s attorney, appeals the district court’s order sanctioning him $5000 for violating California State Bar Rules of Professional Conduct Rule 5-310 by causing a person to leave the jurisdiction of the court and become unavailable as a witness.

II.

We review a district court’s imposition of sanctions for an abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); In re Keegan Management Co., 78 F.3d 431, 436 (9th Cir.1996). We will reverse a district court’s factual findings as to whether an attorney acted recklessly or in bad faith only if they are clearly erroneous. Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000). “So long as the district court’s view of the evidence is plausible in light of the record viewed in its entirety, it cannot be clearly erroneous, even if the reviewing court would have weighed the evidence differently had it sat as the trier of fact.” S.E.C. v. Rubera, 350 F.3d 1084, 1093-94 (9th Cir.2003).

III.

The salient facts are as follows:

Karen Tuttle sued her former employer, Combined Insurance Company, for sexual harassment. Tuttle personally contacted Marti Detrick, a Combined Insurance employee, and asked her to testify at trial. Tuttle arranged and paid for Ms. Detrick’s travel to the trial in Fresno.

Two days before Ms. Detrick’s scheduled testimony, Capíes contacted her and arranged a meeting with Combined Insurance’s legal team in order to “prepare her testimony for trial.” Elliot Hudson, Combined Insurance’s corporate counsel, participated in the meeting. During the meeting, Hudson and Capíes discussed the propriety of Tuttle’s contact with Ms. De-trick. Hudson informed Ms. Detrick that he could order her not to testify and to return home against her will, but that it was up to her whether to leave or stay. Capíes reiterated that she was free to decide whether or not to stay. Capíes also informed Ms. Detrick that Tuttle behaved improperly in flying Ms. Detrick to Fresno to testify, that she should do the right thing, and that her testimony was likely inadmissable as hearsay.

Ms. Detrick left the meeting and subsequently informed Hudson that she wanted to return home — Combined Insurance Company made the necessary arrangements. She later testified that she left Fresno because she was confused about what to do and partially feared for her job. She also stated that she felt pressured by “the corporate attorneys” not to testify.

The district court sanctioned Capíes and Combined Insurance $5000 each, finding that “their words and conduct directly or indirectly caused Ms. Detrick to leave the jurisdiction for the purpose of making her unavailable as a witness in the action.” Capíes appealed his sanction.

rv.

California State Bar Rules of Professional Conduct Rule 5-310 prohibits a bar member from “... advis[ing] or directly or indirectly causing] a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness herein.”

Here, the district court did not abuse its discretion when it determined Capíes, at least indirectly, caused Ms. Detrick to leave the jurisdiction. To be sure, it was Hudson, not Capíes, who more directly pressured Ms. Detrick by saying that he could order her home against her will. Capíes, however, told Ms. Detrick that she should not have been brought in for trial, that she should do the right thing, and that her testimony was likely inadmissible as hearsay. Due to these facts, the district court was “not convinced by counsel’s testimony that they did not intend to make Ms. Detrick unavailable.” The district court was within its discretion on both its credibility determination and its finding that Caples’s statements indirectly induced Ms. Detrick to leave the jurisdiction.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.