Thursday, June 21, 2018
Court of Appeal:
Lawyer Can’t Be Monetarily Sanctioned Where Client, Only, Was the Subject of Motion
By a MetNews Staff Writer
The First District Court of Appeal has reversed a surprise order to an attorney to pay sanctions after she had departed as counsel in a dissolution of marriage case, with the appeals court declaring that because she was never put on notice that sanctions were being sought against her, personally, the order is void.
Tuesday’s unpublished opinion by San Francisco Superior Court Judge Ethan P. Schulman, sitting on assignment to Div. Four, relieves attorney Lorie S. Nachlis (as well as her law firm, Nachlis & Fink, included in the opinion under reference to “Nachlis”) from having to pay $5,500 to Vishal Grover, husband of their former client, Monaz Mehta.
Sanctions were imposed by Patrick Mahoney, a private judge with the dispute resolution firm of JAMS. Pursuant to a stipulation of the parties, and by order of the San Francisco Superior Court, Mahoney was empowered to preside over the matter.
A hearing on the motion for sanctions—stemming from Mehta’s motion to compel discovery, signed by Nachlis—was set for Feb. 2, 2015. Grover, in opposing the motion, sought sanctions against Mehta.
Seeks to Withdraw
Nachlis moved for leave to withdraw as attorney for Mehta, who was not paying her, and Mahoney set that matter for hearing, also, on Feb. 2. Mahoney, who was a San Francisco Superior Court judge from 2000-13, indicated in a Jan. 29, 2015 tentative ruling that he intended to deny Mehta’s discovery motion and impose sanctions.
At the Feb. 2 hearing, he relieved Nachlis as counsel, and proceeded to attend to other matters in the case, not including the discovery motion. He did consider that motion at a Feb. 23 hearing, not attended by Nachlis, and, by way of an order on Feb. 25, declared that a total of more than $17,000 in sanctions was to be paid to Grover, including the amount allocated to Nachlis for engineering what was found to be a meritless motion.
In announcing the reversal, Schulman said:
“By issuing an order sanctioning Nachlis—without first giving her notice that she might be personally ordered to pay sanctions, and that she needed to prove her own blamelessness, when Grover had requested sanctions against Nachlis’s client, Mehta—the trial court violated statutory and constitutional due process notice requirements and, in so doing, abused its discretion.”
The statutes that were violated, Schulman specified, were Code of Civil Procedure §2023.030, which authorizes discovery sanctions only “after notice to any affected…attorney, and after opportunity for hearing” and §2023.040 of that code requiring that a request for a discovery sanction “shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.”
With respect to the right to due process, under both the state and federal constitutions, the jurist wrote:
“When a person does not receive the requisite notice that sanctions may be imposed, the resulting order is void.”
Grover argued that Mahoney’s Jan. 29, 2015 tentative ruling effectively put Nachlis on notice that sanctions were being sought against her. Schulman responded:
“The tentative order did not explicitly state that the court was sua sponte considering granting a motion Grover did not make, i.e., a motion to sanction Nachlis. Therefore, the tentative order—entered after briefing on Grover’s sanctions motion was completed—did not satisfy the statutory or constitutional due process notice requirements by providing Nachlis fair warning and an opportunity to respond.”
The case is Mehta v. Grover, A146919.
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