Court Won’t Throw Out Surrogate’s Appeal


The 4th District Court of Appeal on Wednesday refused an unusual request to throw out legal briefs written by the attorney for surrogate mother Anna M. Johnson after allegations that the appeal contained “flagrant misrepresentation of facts” and “deceptive use of facts.”

The rare maneuver marked an escalation in legal hostilities between the attorneys representing Mark and Crispina Calvert and the attorneys for Johnson.

The Calverts, who were the genetic parents, hired Johnson to carry their child and won custody of the baby boy after a highly emotional and legally contentious trial last fall. Johnson has appealed, and her case is expected to be heard this spring.


Johnson’s attorneys, Richard C. Gilbert and Diane Marlowe, filed a voluminous legal appeal last month.

The Calverts’ attorneys, Christian R. Van Deusen and Robert R. Walmsley, responded by asking the appeals court to throw out Gilbert’s brief or order him to rewrite it before the case is heard.

In court documents, Walmsley said the brief was longer than allowed by court rules, contains “irrelevant and immaterial facts not contained in the record” and “is misleading to the point of being deceptive.”

Gilbert’s brief includes “flagrant misrepresentation of facts, without appropriate citation, and deceptive use of the facts,” Walmsley wrote.

In a one-page order released Wednesday, Presiding Justice David G. Sills refused to throw out the brief. But Sills ruled that the Calverts may later ask the court to impose sanctions--fines--against Johnson’s attorneys payable either to the Calverts, the appeals court or both.

In addition, Sills gave the Calverts an extra 30 days to file their legal response.

Walmsley said he believes that the brief was an improper attempt to “prejudice the court” and said he would probably seek sanctions.

In court documents, Gilbert said the brief was in no way misleading or deceptive, contained proper citations and only contains facts supported by the record.

However, Gilbert apologized for and asked the court to strike from his brief one section that dealt with a newspaper article written after the lower court issued its ruling on the case.

Gilbert also told the court that Walmsley’s request was only intended to cause delays, and he asked the justices to overlook any legal defects in the interest of having the baby’s fate decided quickly.