Panel rebukes firm for incivility but says it's right on the merits

A 2nd District Court of Appeal panel for the second time chided the plaintiffs' and appellants' attorneys with Frost LLP for incivility in an opinion acknowledging the firm was right on the briefings.

The firm's founding partner, Christopher Frost, said in a written statement Wednesday that they took the court's comments under advisement and noted they were correct on the merits. The justices reversed the trial court's grant of an anti-SLAPP motion in a lawsuit that Frost's client, WasteXperts, filed against the City of Los Angeles and another company, Athens Services.

"First," Div. 4 Justice Helen Zukin wrote for the unanimous panel this week, "unfounded attacks on the trial court and the opposition are always unacceptable and unwise. Counsel should not need a warning from any court on this subject."

"Second, counsel for WasteXperts had ample opportunity in this appeal to offer an apology and attempt to correct the issue. But they made no effort to do so in the four months that elapsed between WasteXperts I and the filing of Athens's respondent's brief, or by filing a reply brief thereafter," Zukin continued. Justice Audra A. Mori and Los Angeles County Judge Nicholas F. Daum concurred. Daum is sitting on assignment. WasteXperts Inc. v. Arakelian Enterprises Inc., B327712 (2nd Cal. App., Div. 4, filed March 14, 2025).

Frost wrote, "The court here criticizes the firm for repeating critical language (while acknowledging we were right on the merits) but does not note that this particular brief was filed before the prior criticism. We have a tremendous amount of respect for the court, which is important to emphasize, especially in the current environment."

Zukin went on to say, "In WasteXperts I, we quoted examples of comments and language from counsel's briefing that were unfounded and distracting. The opening brief in this appeal contains repeated instances of the same sort of editorial commentary, sometimes using the exact same words."

The justice also said there were several assertions in the opening brief in which the counsel's fervor "seems to have overcome their duty of candor to this court" per Rule 3.3 of the California Rules of Professional Conduct. She said that there were no citations in support of those statements.

"While counsel may not have been aware their statements were inaccurate, they should not have made statistical claims without citation to a survey, study, or other authoritative source," Zukin wrote.

Frost said in his emailed statement, "This ruling is a follow-up to a prior appeal in which we prevailed in the Court of Appeal, 3-0, with the court reversing the trial court's granting an anti-SLAPP motion against our client WasteXperts.

"We continue to believe that the court took great care to get it right in its decision reversing the anti-SLAPP motion. We take its comments under advisement and consider the issue of tone, balanced against our continued zealous advocacy for our clients, which again relates to briefs filed almost a year ago, to be resolved," he said.

WasteXperts offers waste and recycling services. The company sued the Los Angeles and Athens Services' parent company, Arakelian Enterprises Inc. on June 15, 2022. WasteXperts claimed that Arakelian Enterprises tried to prevent WasteXperts from entering commercial and multifamily properties to move and position waste containers.

"Although WasteXperts' work is purely onsite work conducted on private property, and operates within the bounds of the law, Athens' true fear is that it is losing hidden 'distance charges' related to onsite work versus garbage work that Athens performs offsite on public property," Frost wrote in the complaint.