VII. Motions for Sanctions and Removal of
Defendants' Counsel

A. Position of the Parties

In the complainants' January 20, 1995 response to the motion to dismiss by Call America, the complainants also moved for sanctions against Call America, and the removal of Call America's counsel.³² The complainants also request that Call America's counsel be reported to the State Bar for suspension or disbarment because of counsel's alleged "outrageous" conduct. The complainants filed nearly identical motions and requests with respect to Execuline et al. and its counsel on January 24, 1995. The only substantial difference between the two motions was that in the motion against Call America, the complainants alleged that Call America falsely accused the complainants of hacking. On February 16, 1995, the complainants filed an amended motion for sanctions and for removal of defendants' counsel with respect to Execuline et al. adding the argument that they had also falsely accused the complainants of hacking.

The complainants assert the following, among other things, in their motions:

"Throughout this case, defendants' counsel has engaged in unprofessional, bad faith representations designed for the purpose of diminishing Complainants in the eyes of the Commission and for the purpose of personal gain! Defendants' false pleadings display malicious and evil intent, are a fraud upon this Commission, constitute serious misconduct and can only now be rectified by the issuance of sanctions against defendants and the removal and disqualification of defendants' counsel and law firm from any further representation in this case. Complainants fully expect final adjudication of this issue to lie with the Supreme Court of the State of California!"

The complainants argue that the defendants have committed misconduct because they have "knowingly made false and ludicrous claims that Complainants are guilty of eavesdropping, intercepting, and wiretapping its own telephone calls." Instead of making allegations, the complainants assert that the defendants have made "positive, affirmative statements that Complainants have committed criminal acts, punishable with fines and jail time" (emphasis in original) without any evidence. The complainants also assert that defendants' counsel have refused to make reasonably diligent efforts to comply with the complainants' legally proper discovery requests.

Call America argues that the complainants' motions should be denied. With respect to the accusations of hacking, eavesdropping, intercepting, and wiretapping, Call America contends that those allegations are supported by Westcom's own exhibits and verified statements, and that such arguments are within the range of permissible argument and constitute a valid basis for urging the Commission to dismiss the complaint. As for the complainants' allegation regarding Call America's refusal to comply with the complainants' data request, Call America argues that its objections are being asserted in a manner that is permitted by the Code of Civil Procedure. According to Call America, the objections were based largely on the concerns generated by the complainants' admitted interference with outbound calls.

Execuline et al. asserts that its pleadings have merit and are largely based on Westcom's own statements and exhibits. As for the complainants' request that counsel for Execuline et al. be removed and be reported to the California State Bar, the defendants point out that Sunde himself is not an attorney, that no licensed attorney would cavalierly file such a motion, and that Sunde feels free to file such motions because he is not subject to discipline by the State Bar.

B. Discussion

The complainants believe that the defendants' motions to dismiss contain false and dishonest information which cannot be viewed as legitimate, aggressive pleadings. We have reviewed the allegations in the motions to dismiss, and the responses by the complainants. As discussed earlier, we are of the opinion that the complainants engaged in conduct which impinged upon the privacy rights of others, as shown by the documents attached to the December 7, 1994 amended complaint. In light of the complainants' own documents, and our analyses of the motions to dismiss, we cannot conclude that the allegations contained in the motions to dismiss were false or misleading. Nor can we conclude that counsel for Call America and Execuline et al. refused to make reasonably diligent efforts to comply with the discovery requests propounded by the complainants. Accordingly, the complainants' motions for sanctions, and motions that counsel for Call America and Execuline et al. be removed are denied.

With respect to the complainants' request that counsel for Call America, and Execuline et al., be reported to the State Bar, we do not believe that counsel for the defendants have engaged in any conduct which would cause us to report their actions to the State Bar. Therefore, the complainants' request is denied.

We note that the complainants' request that defendants' counsel be reported to the State Bar is additional justification to examine the participation of Westcom or Sunde in Commission proceedings. Since Sunde himself is not a member of the California State Bar, he is not bound by the California State Bar's Rules of Professional Conduct.³³ Despite this, he apparently feels free to allege that others, who are bound by such rules, violated those rules. This kind of advocacy by Westcom and Sunde should be placed in check. Thus, as discussed earlier, the presiding officer in each Commission proceeding in which Westcom or Sunde may make a future appearance should decide whether Westcom and Sunde should be required to be represented by a licensed attorney, or whether Westcom or Sunde should be allowed to act as a party's representative.

³² It is unclear from the complainants' motion for sanctions whether they seek sanctions against Call America and Execuline et al., or if the complainants seek sanctions against counsel for those defendants. Although the complainants request sanctions against the defendants, the complainants' arguments as to why sanctions should issue revolve around the statements made in the defendants' pleadings, and how counsel for the defendants have "presented evidence to this Commission that Complainants had committed criminal acts" and drafted false and misleading pleadings.

³³ Despite Sunde's status, he has used stationery which leaves the impression that he is licensed to practice law. For example, in Sunde's April 26, 1994 letter to the Commission's Docket Office in this proceeding, his September 19, 1994 letter to ALJ Wetzell in C.93-10-023, and his November 2, 1994 letter to ALJ Wong in C.92-07-045, the letterhead of these letters state: "J. Michael Sunde, Civil Litigation Before The CALIFORNIA PUBLIC UTILITIES COMMISSION." (Emphasis added; See 54 CPUC2d at p. 253.) It appears that Sunde later changed his stationery to read: "J. Michael Sunde, Representation Before The CALIFORNIA PUBLIC UTILITIES COMMISSION," as evidenced by Sunde's January 30, 1995 letter to Call America's attorney, his February 4, 1995 letter to ALJ Wong in C.92-07-045, and his July 8, 1996 letter to ALJ Wong in this proceeding.