Appeal from the Superior Court of the District of Columbia, (No. CAB5814-05), (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: King, Senior Judge
Before FISHER, Associate Judge, and KING and TERRY, Senior Judges.
Pamela Ginsberg appeals the trial court's award of attorneys' fees to appellees, Vilma Granados and her counsel, Paul Kiyonaga, Esq., Debra Soltis, Esq., and Kiyonaga & Soltis, P.C., made after the dismissal of a civil complaint filed against them on behalf of Ginsberg. The trial court held that the complaint claiming appellees acted negligently by acquiring and discussing Ginsberg's publicly available criminal record was "made without color, in bad faith, and for the purpose of harassing counsel." Ginsberg argues on appeal that (1) there was insufficient evidence to sustain the trial court's finding that she filed the lawsuit vexatiously and in bad faith, (2) the judicial proceedings privilege does not provide absolute immunity in this case, (3) the trial court improperly relied on materials outside of the record, (4) the Federal Youth Corrections Act ("FYCA") created "privity" between the parties, and (5) appellees breached a duty owed to her under the FYCA. Because Ginsberg's claim is wholly and clearly without any merit on several different grounds and because we are satisfied that the trial court could fairly conclude it was designed to harass appellees, we disagree and affirm.
On April 26, 2004, Granados' counsel filed a complaint ("Granados Complaint") alleging that Ginsberg, a supervisor at Brookville Supermarket, sexually harassed and engaged in abusive behavior toward Granados. The Granados Complaint also alleged that Brookville Supermarket negligently retained Ginsberg. During Ginsberg's deposition in the Granados litigation, appellees confronted her with a criminal conviction for carrying a dangerous weapon (CDW Gun) based on a guilty plea entered on June 15, 1984.On July 27, 2005, Ginsberg, through her counsel, Sol Z. Rosen, Esq., filed a complaint ("Ginsberg Complaint") asserting that Ginsberg's criminal conviction presented at the deposition had been set aside under the FYCA*fn1 and alleging that appellees illegally acquired and discussed Ginsberg's criminal record during her deposition. The Ginsberg Complaint contended that because Ginsberg's conviction had been set aside under the FYCA, use of the conviction constituted negligence per se.
Granados and her counsel filed a Motion to Dismiss the Ginsberg Complaint pursuant to Super. Ct. Civ. R. 12 (b)(6) on August 17, 2005. On January 18, 2006, the trial court granted that motion,*fn2 and on January 30, 2006, appellees filed a Motion for Attorneys' Fees pursuant to Super. Ct. Civ. R. 54 (d)(2)(B), claiming they were entitled to a fee award based on the bad-faith exception to the "American Rule." On November 20, 2006, the trial court awarded attorneys' fees in the amount of $2,484.37 to Granados, concluding that the Ginsberg Complaint was initiated in bad faith under the standard set forth in Jung v. Jung, 844 A.2d 1099, 1107 (D.C. 2004) ("The bad faith exception to the American rule allows a court to award attorneys' fees to the prevailing party if the defeated opponent acted in bad faith, vexatiously, wantonly, or for oppressive reasons.").
A finding of bad faith*fn3 is based on "whether the claim is entirely without merit and has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons." Cathedral Ave. Coop., Inc. v. Carter, 947 A.2d 1143, 1160 (D.C. 2008) (internal citations and quotation marks omitted); see also Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1375 (6th Cir. 1987) (noting that "findings that the claims advanced were meritless, that counsel knew or should have known this, and that the motive for filing the suit was for an improper purpose such as harassment" support a finding of bad faith). This court will review a finding of bad faith under the clearly erroneous standard, "and the decision to award fees will be reversed only for abuse of discretion." Fischer v. Estate of Flax, 816 A.2d 1, 12 (D.C. 2003) (quoting Goffe v. Pickard, 588 A.2d 265, 271 (D.C. 1991)). This court's review is "therefore confined to a determination of whether the [trial court] failed to consider a relevant factor, whether [it] relied upon an improper factor, and whether the reasons given reasonably support the conclusion." Jung, supra, 844 A.2d at 1109 (brackets in original; internal citation and quotation marks omitted).*fn4
"The mere fact the plaintiff did not prevail before the [trial] court does not necessarily imply that its conduct was'vexatious' or'wanton.'" Autorama Corp. v. Stewart, 802 F.2d 1284, 1288 (10th Cir. 1986); see also 6921 Georgia Ave., supra note 3, 954 A.2d at 972 (noting that an award of attorneys' fees under the bad-faith standard requires a showing of "extraordinary conduct which erodes the fairness of the judicial process.") (internal citation omitted); Estate of Delaney, supra note 3, 819 A.2d at 998 (holding that "a party is not to be penalized for maintaining an aggressive litigation posture, nor are good faith assertions of colorable claims or defenses to be discouraged.") (internal citation omitted). A court nonetheless may infer bad faith in circumstances where "an attorney... brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous." Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (internal citation omitted); see also Synanon Found., supra note 4, 517 A.2d at 40 ("A claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.") (quoting Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980) (per curiam)).
We begin our analysis by examining the merits of the claim in the complaint and conclude that the claim is without merit on at least three separate grounds. First, contrary to Ginsberg's assertions in the trial court and before us, the FYCA creates no duties on opposing counsel; second, the judicial proceedings privilege, which barred the claim in Ginsberg's complaint, clearly applies, and counsel for Ginsberg was fully aware of the existence and applicability of that privilege in these circumstances; and third, an action for negligence does not lie where, as here, appellees owed no duty to Ginsberg. Because the complaint could have been dismissed for any of these reasons, we conclude that in filing this complaint Ginsberg "was acting far outside the bounds of the law."
Chevalier v. Moon, 576 A.2d 722, 724 (D.C. 1990) (affirming the trial court's finding of bad faith); see Gen. Fed'n of Women's Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123, 1129 (D.C. 1988) ("It is difficult to imagine a case in which a claim wholly without color could be asserted without an improper motive."); see also ITT Indus. Credit Co. v. Durango Crushers, Inc., 832 F.2d 307, 308 (4th Cir. 1987) ("[T]he district court did not err in awarding attorney's fees... because [litigants'] removal petition was so patently without merit that the'inescapable conclusion' is that it was filed in bad faith."). In short, we are satisfied that no ...