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Employer Sexual Advance Case Ends with Plaintiff Lawyer’s Rebuke

California Court of Appeal: No “succubus” talk allowed (Photo by R. Scott Moxley)

A McDonald’s employee enticed by a fast-talking Orange County businessman to work as a home assistant and found himself the recipient of unwanted sexual advances emerged from civil litigation with an $8,080 verdict, which is far better than the result for his lawyer.

Benjamin Pavone of San Diego hoped his legal representation of Fernando Martinez would earn him more than $146,000 in fees and costs but instead found himself not just getting nothing but also sternly rebuked for making unprofessional comments in judicial forums.

Unhappy with rulings by a superior court judge, Pavone publicly labeled her “succubustic”—referring to a demon assuming a female form which has sexual intercourse with men in their sleep.

He also claimed a judge intentionally ignored the law by refusing to award him fees.

None of the comments amused justices at the California Court of Appeal in Santa Ana.

In siding with lower court judge on the fee request, a three-justice panel of Richard Fybel, Raymond Ikoka and David A. Thompson highlighted their disapproval of Pavone “manifesting gender bias” in his arguments and formally notified The State Bar of California for potential punishment.

“We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period,” they wrote in their 23-page ruling. “We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic,’ or ‘reverse peristalsis’ in the notice of appeal.”

The controversy began when high-school graduate Martinez of Escondido posted his resume on Monster.com in 2012 and received an email from Stephen Stratton O’Hara, who claimed he was a talent agent seeking interns willing to start at $35,000 a year in the real estate industry.

Later, O’Hara asked Martinez to send him his photograph and then offered him a $1,500 a month job to work at his home from 9 a.m. to 5 p.m. as a personal assistant.

“Around the third week of Martinez’s employment, O’Hara made sexual advances towards plaintiff and invited him to go with him on a gay cruise,” the appellate justices noted. “Shortly thereafter, Martinez wanted to end the personal relationship but sill work for O’Hara. The employment relationship nevertheless ended as well.”

Before handing over a final paycheck, O’Hara asked the assistant to sign a release that required him to “keep confidential all business and personal information” he learned on the job.

Martinez sued claiming rape, sexual harassment, fraud and wrongful termination.

The rape claim was dismissed and an attempted class action move, that consumed nearly four years, failed.

But after a March 2016 trial an Orange County jury found O’Hara liable for sexual harassment and awarded him $1,080 in economic damages and $7,000 in non-economic damages after concluding the defendant had not acted with “malice, oppression or fraud.”

State judge Carmen Luege believed Pavone “over litigated” the case and wasn’t entitled to O’Hara paying his fees that originally were tallied at $414,407 based on what she saw as “very unreliable” hourly records and calculations.

The appellate panel studied the record and agreed.

Pavone was admitted to the State Bar in 1996 after earning a law degree from UCLA School of Law.