Prior Dismissal Of A Premature Appeal Did Not Retard Consideration Of This Appeal, Plus Be Careful To Observe Memorandum Page Limits!
Bush v. Cardinale, Case No. A158757 (1st Dist., Div. 4 Sept. 27, 2022; posted on Sept. 28, 2022) (unpublished) involved an appeal of a $2,000 CCP § 128.7 sanctions order against an attorney for filing a second amended cross-complaint in derogation of a prior lower court order requiring a motion for leave if new claims were added, as they were. The Court of Appeal affirmed the sanctions order.
Initially, it had to resolve a thorny appealability issue. A prior appeal of the order was dismissed (not indicating without prejudice) because it was premature. Normally, that dismissal would have been considered “with prejudice” if there is no indication otherwise, but there is an exception that allows an appellate court to consider a second appeal even though a prior appeal was dismissed as premature, the case here. The appeal could be considered on the merits.
However, there was no basis to overturn the sanctions award on the merits. But there is cautionary tale in this one. The sanctions opposition motion was 17 pages long which, under CRC 3.1113, can be considered a late-filed brief subject to being disregarded. (CRC 3.113(d), (g).) The trial court did not consider the excessive brief, and that decision was affirmed—so, litigators, be warned!
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