Wednesday, October 19, 2016
Court of Appeal Holds:
Terminating Sanctions in LAPD Case Must Fall
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge abused her discretion by effectively dismissing a Los Angeles police sergeant’s challenge to his termination as a sanction for his attorney having filed an oversize brief, this district’s Court of Appeal ruled yesterday.
Div. Three, in an unpublished opinion by Justice Luis Lavin, expressed sympathy for Judge Joanne O’Donnell’s insistence that proper procedures be followed. But Caesar Gonzalez should not have been punished for his attorney’s errors, Lavin concluded.
Gonzalez, an 18-year veteran of the department, was discharged for, among other things, providing alcohol to and having sex with a minor, while off-duty. Chief Charlie Beck adopted the recommendation of the Board of Rights that Gonzalez be ousted.
Gonzalez’s attorneys, from the firm of Stone Busailah, filed a writ petition seeking to overturn the discharge, and an application to file an oversized brief. O’Donnell issued an order allowing each party to file a 20-page brief, rather than the 40 pages counsel had requested.
The petitioner’s attorney then filed a brief of just over 18 pages and an amended petition. The brief contained eight citations to about 100 pages of the administrative record, while explaining that “in the interest of brevity,” counsel had included discussion of the record in the amended petition, rather than in the brief.
Circumventing Page Limit
The city then moved to strike the factual references in the amended petition, saying counsel had violated state and local court rules by arguing those facts in the petition in order to circumvent the briefing limit the judge had set. Gonzalez’s attorney responded by filing an amended brief of less than 20 pages, including citations to the administrative record.
The attorney explained that he was a trial lawyer with little experience in writ practice, and admitted he had acted in a manner that was “procedurally improper.” He urged the judge not to penalize the client for counsel’s mistakes.
O’Donnell, however, ruled that counsel had made “a deceitful attempt to place the requisite citations to the administrative record before the court without running afoul of the” page limitation. Accepting the amended brief and allowing the city additional time to respond to it, as petitioner’s counsel suggested, was within the court’s discretion but would reward counsel’s attempt to circumvent the rules, she said.
Lavin, however, in his opinion for the Court of Appeal, said trial judges have inherent authority to control proceedings, by sanctions if necessary, but the Code of Civil Procedure “contemplates…flexibility” in the exercise of that authority. While counsel did initially violate the rules, he noted, it made subsequent efforts to right the wrong by filing an amended—and compliant—brief.
The trial judge erred, he said, both by failing to give the petitioner and his counsel notice that terminating sanctions were being considered, and in punishing the client for counsel’s error, particularly where counsel had made an effort to undo whatever prejudice the error had caused, and lesser sanctions were available.
The justice cited Code of Civil Procedure §575.2(b), which essentially provides that sanctions for violation of local rules by counsel be visited upon counsel and not upon the party.
“There is no indication in the record before us that Gonzalez knew about, approved, or assisted in counsel’s violations,” Lavin wrote. “To the contrary, counsel took full responsibility for his errors....By, in essence, imposing a terminating sanction on Gonzalez for his attorney’s violations of the court’s page-limit order and the local rules, the court violated section 575.2, subdivision (b).”
Deputy City Attorney Paul L. Winnemore represented the city in the case, which is Gonzalez v. City of Los Angeles, B264349.
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