Appellate Sanctions/Civility: $10,000 Sanctions Ordered Paid To Appellate Court Clerk For Lying To Court, Seeking Unwarranted Sanctions, Bullying Opposing Counsel, Showing No Remorse, And Vowing To Continue Such Practices

 

Civility To Both Other Lawyers and the Court, Cries Out Loud and Clear in Justice Bedsworth-Authored Opinion.

     Here is a very interesting decision that is going to be cited in what needs to be done in “proving up” for default judgment purposes, general civility to other lawyers and the court system, and appellate sanctions that are appropriate for the conduct listed in our first headline.

     Kim v. Westmoore Partners, Inc., Case No. G044216 (4th Dist., Div. 3 Nov. 29, 2011) (certified for publication), authored for a 3-0 panel by Acting Presiding Justice Bedsworth, involved the reversal of a $5 million default judgment against six defendants (or a total $30 million judgment) and is must reading in this area alone on the care that must be taken in “proving up” default judgments. However, there is more in this one. After defendants appealed from the judgments, plaintiff’s counsel requested an extension of time to file his respondent’s brief based on the complexity of the issues and conflicting counsel time commitments. Although the extension was granted by the appellate court, respondent’s counsel submitted a brief that was a near verbatim duplicate of another brief in a 2009 case that involved different circumstances (with counsel even signing the brief as representing the client in the earlier 2009 case). The brief had an identical assertion as in the prior brief that opposing counsel was guilty of falsely arguing the case and an identical assertion that the appeal was frivolous (the latter argument running afoul of the extension request being based on the complexity of the matter). Opposing counsel asked the appellate court to take judicial notice of the 2009 brief, which it did and issued a sua sponte notice that the court was considering imposition of sanctions against respondent’s counsel.

     This did get a response from respondent’s counsel, who denied any wrongdoing and reargued his sanctions request against the defendants. He also defended his right to copy prior work product and informed the appellate court that the sanctions notice was erroneous and likely should have been targeted at appellants’ counsel. At the appellate sanctions hearing, another attorney not aware of the sanctions notice appeared, which prompted the appellate court to send a second order to get respondent’s lead counsel to appear personally.

     The appellate court found numerous violations by respondent’s counsel: (1) failure to back up his appellate extension request properly (especially shown by filing a copycat of a 2009 brief rather than truly addressing complex issues); (2) failure to file a respondent’s brief compliant with the California Rules of Court (again corroborated by copying a prior brief that involved different circumstances); and (3) falsely accusing opposing counsel of making false arguments and requesting sanctions based on such a contention. Although opposing counsel did not request sanctions, the appellate court imposed sanctions of $10,000 on respondent’s counsel, upping the “conservative” $6,000 the same appeals court imposed in another case, DeRose v. Huerlin, 100 Cal.App.4th 158 (2002).

     Now, here is the passage on civility that we are sure will be often quoted in the future:

“ . . . Sanctions are serious business. They deserve more thought than the choice of a salad dressing. “I‘ll have the sanctions, please. No, on second thought, bring me the balsamic; I‘m trying to lose a few pounds.” A request for sanctions can never be so lightly considered as to be copied word for word from another brief – much less copied in reliance on facts from another case that do not obtain in the present one. A request for sanctions should be reserved for serious violations of the standard of practice, not used as a bullying tactic.

“Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It‘s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.

“We do not come to this conclusion lightly. Judges are lawyers, too. And while we have taken   on a different role in the system, we have not lost sight of how difficult it is to practice law. Indeed, at the appellate level, we are reminded daily how complex and recondite the issues that confront practitioners daily can be.

“So we are loath to act in any way that would seem to encourage courts to impose sanctions for mistakes or missteps. But for serious and significant departures from the standard of practice, for departures such as dishonesty and bullying, such steps are necessary. We will step onto the slippery slope and trust our colleagues on the trial court bench to tread carefully along with us. It is time to make it clear that there is a price to pay for cynical practices.

“If this be quixotic, so be it. Rocinante is saddled up and we are prepared to tilt at this windmill for as long as it takes.” (Sli Opn., p. 30.)

 

Rocinante.  Detail of the Cervantes Monument.  Madrid.  Wikipedia.