C.A. Imposes Nearly $30,000 in Sanctions for Frivolous Appeal

Friday, July 12, 2019

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C.A. Imposes Nearly $30,000 in Sanctions for Frivolous Appeal

Citing 1900 Superior Court Decision, It Files Opinion Nunc Pro Tunc to May 13

By a MetNews Staff Writer

The Court of Appeal for this district has imposed sanctions of nearly $30,000, jointly and severally, on two lawyers based on a frivolous appeal of a defense judgment based on terminating sanctions, in a case in which the court ordered that the opinion be “deemed” filed on May 13 for one purpose and otherwise be regarded as filed on Wednesday, when the Clerk’s Office stamped it.

Div. Four’s unpublished opinion—authored by Kim Dunning, a retired Orange Superior Court judge sitting on assignment—comes in a case stemming from a 2008 mishap that resulted in the amputation of the victim’s arm. Ensuing litigation bobbed between state and federal court, with five appeals from Los Angeles Superior Court decisions being consolidated by Div. Four on its own motion on July 19, 2016.

Lisa Turner was the injured party. Her injury occurred when she was in the shower of the Los Angeles home of her parents, Marian Turner and Cornelius Turner; the glass, which was not tempered, shattered, causing lacerations.

Cornelius Turner died after the matter was submitted at the end of oral arguments in Div. Four. Citing a 1900 California Supreme Court case, Dunning said the filing date of her opinion should be deemed to be May 13, 2019 as it relates to the decedent.

Lee, Ringgold Sanctioned

On appeal, Amy P. Lee of Monterey Park and downtown Los Angeles, represented Lisa Turner and her mother; Nina Ringgold of Northridge was the lawyer for the father. Among various determinations Wednesday, sanctions were imposed on Lee and Ringgold based on their appeal of the dismissal of an action against The Rule Company, Incorporated, an independent insurance broker that had arranged homeowner coverage for Lisa Turner’s parents.

Los Angeles Superior Court Judge Yvette M. Palazuelos had imposed terminating sanctions on the plaintiffs in that action based on their refusals to obey discovery orders.

Dunning’s opinion orders sanctions of $21,366 in favor of Rule—the amount it paid to its lawyer for filing a reply brief—and $8,500, payable to the clerk of the Court of Appeal. The $8,500 figure was based on an analysis of costs to the court in processing appeals as recited in a 2008 opinion.

The opinion says that the Turners “serially and cumulatively raise multiple challenges to the superior court’s jurisdiction” and declares that “[e]ach is devoid of merit.”

Dunning’s Explanation

Dunning wrote:

“Rule’s motion for terminating sanctions was heard approximately eight months after it was filed. Appellants had no merits-based opposition. Instead they relied on the jurisdictional claims they have never supported with any applicable legal authority. When Rule’s motion for terminating sanctions was granted and judgment was entered in its favor, appellants appealed, relying on the same meritless and unsupported jurisdictional claims. When this court advised it was considering the imposition of sanctions for a frivolous appeal, appellants’ counsel still relied only on the frivolous jurisdictional claims.”

She continued:

“Objectively, no reasonable attorney would pursue this appeal based solely on jurisdictional claims that are totally devoid of merit….Under these circumstances, the objective standard overrides any honest belief by counsel that grounds existed for this appeal.”

Ringgold and Lee are presently facing charges in State Bar Court based on allegedly maintaining unjust actions, disobeying court orders, and failing to report sanctions.

1900 Opinion

In declaring that the opinion was to be filed nunc pro tunc, Dunning cited the California Supreme Court’s Dec. 27, 1900 decision in McPike v. Heaton. There, a three-judge panel simply said:

“The judgment is reversed, and, the appellant having died since the submission of the appeal, the judgment of reversal will be entered nunc pro tunc as of August 24, 1900.”

Dunning wrote:

“These matters were argued and submitted for decision on May 10, 2019. On June 13, 2019, counsel for [Cornelius Turner] advised this court that her client had died; she requested a stay pending appointment of a personal representative. To date, no notice of appointment has been received. As these appeals were already under submission, however, a stay is not required. Pursuant to this court’s inherent power, and because there is no prejudice to any party, this opinion is deemed filed nunc pro tunc, effective May 13, 2019.”

Dunning cited McPike and added:

“For the purpose of all post-appeal matters, time shall run from July 10, 2019.”

Although opinions other than McPike have ordered a back-dating of the filing, Dunning’s opinion appears to be novel in ordering dual filing dates.

The case is Turner v. The Rule Company, B248667.

The California Supreme Court included orders similar to that in McPike in another case that year and in 1924, 1906, 1893, and in 1863. Inserted in an April 1, 1863 opinion is a notation by the reporter of decisions that “at the October Term of 1859,” the justices “directed its judgment to be entered as of the July Term, 1858, nunc pro tunc” in light of the death of a party, but had not had time to write an opinion.

The first California Supreme Court opinion in which back-dating was ordered appears to be Black v. Shaw, decided in 1862. Chief Stephen Johnson Field (later a justice of the U.S. Supreme Court) relied on three New York decisions—from an appellate court, an equity court, and a trial court.

“The death of the appellant after argument of his case upon *69 appeal does not constitute any ground for delaying a decision or departing from the ordinary course of procedure, except as to the entry of the judgment which may be rendered,” he wrote. “The entry should be of a day anterior to the appellant’s death.”

A few courts of appeal have ordered nunc pro tunc filings. An unpublished 2008 decision, citing Black v. Shaw, says that decisions “including appellate decisions affirming trial court orders, are typically entered nunc pro tunc to the day before the person died.”

Code of Civil Procedure §669, applicable to trial courts, provides:

“If a party dies after trial and submission of the case to a judge sitting without a jury for decision or after a verdict upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon.”