Thursday, January 10, 2013
Court of Appeal Skewers Lawyer in Opinion Upholding Sanctions
By a MetNews Staff Writer
The Court of Appeal for this district yesterday harshly criticized a Torrance attorney in an unpublished opinion affirming a sanctions order for failure to appear in court.
Justice Madeleine Flier, writing for Div. One said Deirdre L. O’Connor “made false statements to the court” and that her conduct towards Los Angeles Superior Court Judge Daviann L. Mitchell “was disrespectful in the extreme.”
Mitchell following two order to show cause hearings, sanctioned O’Connor $500 for failing to appear on Sept. 13, 2011 at a hearing in Lancaster on a motion to quash a subpoena. The judge noted that O’Connor’s client had appeared, as did the attorney for the subpoenaed witness, but O’Connor did not.
According to the court’s recitation of facts, the hearing was set for 8:30 a.m.
When the case was called later, the court clerk announced that O’Connor had called at 9:17 to inquire as to whether there was a hearing that day, and when told there was, said she had not been noticed and would not appear.
The clerk said she called O’Connor back to inform her that the court was still inclined to hear the case, and to remind her that the hearing had been set and that the date was referenced in a Sept. 7 minute order dealing with a different motion. After the clerk gave that account, the judge noted it was1:50 p.m. and O’Connor was not present.
Noting that the trial judge had conducted lengthy hearings on the OSC and issued a seven-page sanctions, Flier said Mitchell had complied “in an exemplary fashion” with Code of Civil Procedure Sec. 177.5 which allows the court, after notice and an opportunity to be heard, to impose sanctions of up to $1,500 for violation of a court order.
Affirmance of a sanctions order under that section, Flier noted, requires that the procedural requirements have been met, and that there be substantial evidence to support the judge’s factual findings.
The justice said O’Connor had ample notice of the Sept. 13 hearing, based on the original notice, the Sept. 7 minute order, and the two telephone conversations she had with the clerk. Not only did she not appear, Flier noted, she failed to call back after the second conversation, even though she knew the court expected her to appear, have another lawyer appear, or call.
O’Connor’s denials she knew of the hearing are not credible, the justice said. Under the circumstances, opposing sanctions of only $500 constituted “the height of restraint,” Flier concluded.
The justice also rejected O’Connor’s claim at the OSC hearing that she was ill on Sept. 13. “One would think if she was ill and could not come to court for that reason, she would have said so” when she spoke to the clerk, Flier said.
The jurist went on to excoriate O’Connor for suggesting that she be compensated for time spent defending the sanctions order:
“This argument is peppered with adjectives describing the rulings of the court below as ‘preposterous,’ ‘bizarre’ and a ‘bizarre scenario.’ She characterizes some of Judge Mitchell’s comments as ‘[i]mproper, uninformed, unsolicited and inflammatory.’” Not only is this argument beyond the pale substantively, it is scandalous in its references to Judge Mitchell. Intemperate characterizations of the trial court are inexcusable...and lead us to striking this argument from the opening brief.”
O’Connor did not return a MetNews phone call.
The case is People v. Jeong, B237998.
Copyright 2013, Metropolitan News Company