Thursday, July 5, 2018
C.A. Imposes $16,000 Sanction on Attorney For Appeal Based on Irrelevant Statute
By a MetNews Staff Writer
The Third District Court of Appeal on Tuesday imposed sanctions totaling $16,000 on an attorney for predicating an appeal on an inapposite statute.
Acting Presiding Justice Ronald B. Robie wrote the opinion which rejects the contention of Dorin Daniliuc that he should be spared the burden of paying his wife’s lawyer $7,000, and orders his attorney on appeal, George Fögy, to remit $10,000 to the wife and $6,000 to the clerk of the court, for a frivolous appeal.
Fögy took the position that the Sacramento Superior Court order to Daniliuc to pay fees to his wife’s attorney, Paul Cass, is invalid based on Cass’s failure to provide the notice specified in Family Code §272(c), which says:
“If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the attorney may enforce the order only if it appears of record that the attorney has given to the former client or successor counsel 10 days’ written notice of the application for enforcement of the order. During the 10-day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion.”
Contention Is ‘Absurd’
“This is not an enforcement action, it is an appeal from an order for attorney fees. Family Code section 272 does not apply. Husband’s assertion that attorney Cass cannot represent wife in this appeal because he has not provided written notice as required by Family Code section 272 is absurd. Any reasonable attorney would agree this argument also is ‘totally and completely without merit.’ ”
The wife, Michelle Daniliuc, sought an order to pay, as sanctions, the $22,550 in attorney fees and costs expended on the appeal, handled by Cass and by Cass Donald Harvey Latzer of Latzer & Fleming. Robie said:
“The degree of objective frivolousness in this appeal is high and the need to discourage like conduct in the future is great; however, given the limited record on appeal and uncomplicated nature of the issues raised, we conclude $22,550 is an excessive amount for sanctions. We find $10,000 to be an appropriate amount of sanctions.”
Appeal Lacks Complexity
The jurist went on to say:
“Courts, with increasing frequency, have imposed additional sanctions, payable to the clerk of the court, to compensate the state for the cost to the taxpayers of processing a frivolous appeal….The cost of processing an appeal that results in an opinion has been estimated to be approximately $8,500….However, where the legal issues involved in the appeal ‘are not at all complex,’ courts have found $6,000 to be an appropriate sanction.”
In light of the lack of complexity, he found a $6,000 payment to the court to be appropriate.
Robie noted that once the case is final, a copy of the opinion and a transcript of the oral argument would be forwarded to the State Bar.
The case is Marriage of Daniliuc, C084293.
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