Appellate Sanctions: Timely Notify The Court Of Appeal About A Settlement Or Risk Sanctions Being Awarded Against You Under CRC 8.276(a)

First District, Division Two Orders Appellant’s Attorney to Pay Clerk Administrator $6,000 for Failing to Notify Court of Settlement Until One Day Before Oral Argument of Appeal.

     California Rules of Court, rule 8.244(a)(1),(3) requires that appellants file a notice of settlement with the appellate court, with the expectation that an abandonment or request for dismissal of the appeal will follow in 45 days. The First District, Division Two gave recent teeth to this rule, sanctioning appellant’s counsel $6,000 for waiting until one day before the scheduled oral argument—about 10 months after the settlement in principle had been reached—to notify the appellate court about the settlement. The case is Huschke v. Slater, Case No. A117114 (1^st Dist., Div. 2 Dec. 2, 2008) (certified for publication).

          The basic time chronology went like this:

• July 27, 2007 -- appellant files her opening brief;
• October 1, 2007 – appellate court send oral argument waiver letter, expressly

            asking the parties to notify it if settlement discussions

            are underway;

• October 10, 2007- appellant requests oral argument;
• December 2007 – case is settled in principle;
• August 25, 2008 – court sets cause for oral argument on September 16, 2008;
• September 15, 2008 – one of appellant’s counsel’s associates notifies the

            Presiding Justice that the case settled in December 2007

           and requests that the appeal be taken off calendar.

     The Court of Appeal was not impressed with the failure to comply with rule 8.244 and asked both sides’ counsel to submit a joint declaration of explanation, mainly on why the notice of settlement was so dilatory. Appellant’s counsel contended that a November 2007 letter was sent to both the appellate court and respondent’s counsel about the settlement, but neither had a file copy of the letter nor otherwise had evidence of receipt.

     Using both Code of Civil Procedure section 907 [the frivolous/dilatory appeal provision] and California Rules of Court, rule 8.276(a)(1)-(4) [a catchall allowing imposition of sanctions for “committing any other unreasonable violation of the rules”], the appellate panel found that there was at least injury to the court such that sanctions were justified as against appellant’s counsel personally.

     What about the amount of the sanctions? The Court of Appeal borrowed heavily from a methodology used in the Second District’s decision in Marriage of Gong & Kwong, 163 Cal.App.4^th 510, 520 (2008) [reviewed in our post of May 30, 2008], which determined that it cost about $8,500 for appellate courts to work up a case through full opinion. Because most of the work to a tentative opinion had been done, $6,000 was found to be the appropriate sanction—the same amount ordered by the Gong & Kwong sister court.

     Message from this case: don’t dally in notifying the Court of Appeal of a settlement and don’t wait until the eve of oral argument—after resources have been expended—to notify the court of a major development (unless the settlement happened on the eve of argument).

     Law professor  Shaun Martin, in his December 2, 2008 blawg post about Huschke v. Slater, on California Appellate Report, links the reader to the website of San Francisco attorney Andrew Dimitriou, the unfortunate subject of the appellate sanctions, thereby drawing attention to Mr. Dimitriou's self-description:  "He has lectured extensively on legal ethics . . . ."