Metropolitan News-Enterprise


Thursday, June 28, 2001


Page 1


Justices Claim Power to Impose Sanctions for Frivolous Motions


By a MetNews Staff Writer


This district’s Court of Appeal ruled yesterday that it has the authority to impose sanctions for the filing of a frivolous motion, and not just for the filing of a frivolous appeal.

The ruling comes in a legal malpractice action against the Glendale law firm of Ferns & Ferns and its successor, the Pasadena firm of Ferns, Garwacki & Adams.

Presiding Justice Joan Dempsey Klein of Div. Three noted that the Code of Civil Procedure specifically gives appeals courts power to impose sanctions for filing a frivolous appeal in Sec. 907, and gives trial courts power to impose sanctions for filing frivolous motions in the former Sec. 128.5(a) and the current Sec. 128.7, but fails to give express power to the Court of Appeal to sanction for filing a frivolous motion.

But Klein said the court was not troubled by that the absence of express authority.

Inherent Power

The court has inherent power to control its own proceedings, Klein said, which means that sanctions authority cannot be limited to frivolous appeals.

The presiding justice also noted that had the plaintiff in this case not withdrawn its motion for sanctions, “we would not have hesitated to impose sanctions.”

Dana Commercial Credit Corporation sued Ferns & Ferns for malpractice in 1987 in Los Angeles Superior Court.

Judgment was entered for Dana for $159,805.

The firm appealed, and Dana filed a motion to dismiss the appeal on the grounds that the firm submitted a brief “nearly devoid of legal authority,” had failed to get a clerk’s transcript, and had failed to cite the record.

The Court of Appeal granted dismissal last July in an order that said the firm had exhibited “a flagrant disregard of the rules relevant to the preparation and timely filing of a record.”

The firm then filed a motion to vacate the dismissal, but was denied. Remittitur issued in September, but the firm filed a motion to recall the remittitur, vacate the dismissal and reinstate the appeal.

The Supreme Court denied the firm’s petition for review in January.

In March, the firm filed another motion to recall the remittitur, claiming the corporation had procured the dismissal through fraud because the cover of the dismissal motion served on the firm’s counsel was captioned “motion for an extension of time to file respondent’s brief,” rather than motion to dismiss. The firm argued that since it did not oppose an extension of time, it did not respond to the brief.

Opposition Filed

Dana filed an opposition and requested $13,812 in sanctions. The corporation pointed out that the firm had already included the argument about not realizing it was a motion to dismiss in the petition for Supreme Court review, which was denied.

“Thus, the ‘fraud’ claim, based on an inconsistency between the caption and the contents of Dana’s motion to dismiss, had previously been raised and rejected,” Klein  said.

The motion was frivolous, and the court could impose sanctions for it, she concluded, but did not because the request was withdrawn.

Klein was joined by Justices H. Walter Crosky and Richard D. Aldrich.

The case is Dana Commercial Credit Corporation v. Ferns & Ferns, B133453.


Copyright 2001, Metropolitan News Company