Monday, May 22, 2006
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Court Finds Attorney’s Appeal of Sanctions Untimely
By a MetNews Staff Writer
Orders for the payment of monetary sanctions, other than in connection with discovery, in limited civil cases are immediately appealable, the Fourth District Court of Appeal ruled Friday.
The court’s Div. Two held that the appeal of nine monetary sanction orders in the total amount of $24,750 by now-suspended Sherman Oaks attorney Joel Drum was untimely. However, because the court found that the case involved uncertainty in the law with respect to the appealability of such monetary sanctions and presented special circumstances, it treated the late appeal as a petition for an extraordinary writ, and denied the writ.
Drum filed a complaint for subrogation alleging damages of $6,086.89 on behalf of an insurance carrier in 1998. A year after judgment was entered in favor of the carrier, the defendants moved to quash service of the summons for lack of personal jurisdiction.
The court set a status conference for March 21, 2000, at which Drum failed to appear. The court continued the conference and issued an OSC why Drum should not be sanctioned for his failure to appear on the original conference date.
When Drum failed to appear on the continued conference date, the court continued the conference again, and sanctioned him in the amount of $250.
This began a pattern which was repeated many times over with Drum being sanctioned, in increasing amounts, a total of nine times, and having missed an additional 12 hearings at which he was not sanctioned.
The case was ordered dismissed on Sept. 29, 2004.
On Oct.29, 2004 Drum appealed the sanction orders claiming that Riverside Superior Court Judge Lawrence W. Fry was biased and abused his discretion in imposing multiple sanctions against him.
Presiding Justice Manuel A. Ramirez, writing for the court, noted that the Legislature has specifically provided that sanctions could be directly appealed in unlimited cases only if the amount exceeds $5,000, but that no similar provision exists for limited cases.
Thus, Ramirez held that the “collateral order” rule, which allows direct appeals of orders for monetary amounts which are collateral to the main issue being litigated, governs sanction orders in limited cases..
As directly appealable orders, appeals from such orders are untimely if not brought within 30 days of service or mailing of the notice of entry thereof, or within 90 days of entry, Ramirez wrote.
However, Ramirez said:
“We do not, in determining that the Legislature has not acted to alter the common law exception for monetary sanctions orders in limited civil cases, intend to suggest that such alteration would not be a good idea. On the contrary, the policy behind limiting a multiplicity of appeals of collateral monetary sanctions orders is just as strong in limited civil cases as it is in unlimited civil cases. This case provides a good example, as there would have been nine separately appealable sanctions orders to burden the appellate division of the trial court.”
Ramirez also said that the trial court did not abuse its discretion in imposing a series of increasing monetary sanctions upon Drum for failing to appear at the hearings, where the alternative would have been to dismiss the case. The trial court was acting in accord with public policy and the court rules in seeking to avoid imposition upon the client of the consequences of its attorney’s failures to appear, he wrote.
According to the State Bar, Drum received a three-year actual suspension
in 2005 for failing to return client files, including 175 files to a different insurance company, after the clients fired him.
The case is Drum v. Superior Court, 06 S.O.S. 2475.
Copyright 2006, Metropolitan News Company