Metropolitan News-Enterprise


Wednesday, December 3, 2008


Page 1


Court of Appeal Sanctions Lawyer for Lack of Settlement Notice


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal yesterday imposed $6,000 in sanctions against a San Francisco lawyer for failing to timely notify the court that a settlement agreement had been reached in the underlying dispute.

In granting the appellant’s unopposed request for dismissal, Div. Two ruled that sanctions against Andrew Dimitriou were warranted to compensate the court for the time and resources it had devoted to the “pointless appeal” due to Dimitriou’s violation of court rules.

Dimitriou represented Paula Slater in an appeal of Lake Superior Court Judge David W. Herrick’s order that Slater pay a discovery sanction of $6,382 in a dispute between Slater and Mark Huschke.

Waiver Notice Issued

Huschke’s attorney, Elizabeth Brekhus, informed the court that her client did not wish to file a responsive brief, and a standard oral argument waiver notice was subsequently issued by the appellate court.

The waiver specifically directed the attorneys to advise the appellate court immediately if settlement discussions were underway or being considered, or if there was any other basis for an early dismissal of the appeal.

Over 10 months later, the day before that set for oral argument, Dimitriou’s firm  faxed the appellate court a letter stating that the underlying case had been settled and requesting that the appeal be taken off calendar. 

That same day, the appellate court issued an order granting the request to take the matter off the calendar and directing counsel for the parties to file a joint declaration, under penalty of perjury, explaining why counsel had not informed the court that settlement discussions were underway.

In response, counsel filed a two-page joint declaration claiming that “settlement discussions were not underway or being considered” as of Oct. 1, 2007, and that the case did not settle until Nov. 20, 2007. The declaration also claimed that a letter was sent to the court by an unidentified person on an unspecified date informing the court of the settlement.

Joint Declaration

Because the joint declaration was not made under penalty of perjury, the appellate court issued an order directing counsel to file a new joint declaration under penalty of perjury, which counsel never did.

Brekhus and co-counsel Peter Brekhus, on behalf only of themselves, filed a letter and accompanying declaration under penalty of perjury stating that Dimitriou had agreed to take the necessary steps to dismiss the appeal and reassured them that the appellate court had been advised, by letter, of the settlement.

Dimitriou filed a letter and declaration claiming that he had received notice of oral argument “right before he left for vacation” and requested that his associate contact the court and “remind the court the case had settled.” 

He denied ever telling Brekhus that he “would take care of dismissing the appeal,” but asserted that either he or an associate had sent the appellate court a letter on Nov. 26 advising that his client “will dismiss her appeal” after “the settlement agreement is fully and properly executed,” which the letter indicated was likely to occur within a week.

A “file copy” of the unsigned letter, without a letterhead, was attached to the declaration, but neither the appellate court nor Brekhus had any record of receiving the letter, and Dimitriou offered no explanation of why he was unable to produce a signed copy of the letter on his firm’s letterhead.

Per Curiam Opinion

In a per curiam opinion by Presiding Justice J. Anthony Kline and Justices Paul R. Haerle and James R. Lambden, the justices explained that under California Rules of Court, rule 8.244, an appellant who has settled a civil case after a notice of appeal has been filed must immediately serve and file a notice of settlement in the Court of Appeal. The appellant then has 45 days to file a request to dismiss.

Rule 8.244 makes clear that the duty to file a notice of settlement and request to dismiss falls on the appellant, the justices wrote.

“[E]ven indulging the dubitable assumption that the letter of November 26, 2007 Dimitriou relies upon is a genuine ‘file copy’ and the original was actually sent by him to the court and opposing counsel,” the justices reasoned, the letter did not constitute a “notice of settlement” within the meaning of rule 8.244 because it indicated that the settlement agreement had not yet been finalized.

The justices also noted that Dimitriou’s request to dismiss was not filed “within [a] week” of the Nov. 26 letter, as he represented, or even within the 45-day period specified by rule 8.244.

Concluding that Dimitriou’s violation of rule 8.244 was an unreasonable violation of court rules which had “caused a waste of judicial resources,” the justices ordered Dimitriou to personally pay sanctions to the court to compensate it for the “current cost of processing ‘an average civil appeal.’” 

Brekhus said she found it “ironic” that the sanctions imposed by the court were “nearly the same figure the appellant was ordered to pay my client for the discovery violation,” but that the decision “ultimately…speaks to the duty to the appellant to inform the court when their appeal is mooted by a settlement.”

Dimitriou said he had not yet seen the opinion or received any notice on the matter, and declined to comment further.

The case is Huschke v. Slater, A117114.


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