C.A. Panel Says Opinion Is Ordered to Be Published As ‘Guidepost to the Bar’
By a MetNews Staff Writer
The Court of Appeal for this district on Friday imposed sanctions totaling $15,000 on an attorney and his client for filing a frivolous appeal, saying that the opinion is being certified for publication, in part, to provide an example to lawyers of what not to do.
Justice Kenneth Yegan of Div. Six wrote:
“This litigation started as an ordinary claim of breach of contract flowing from a business venture that went awry. We hopefully put this matter to rest. But we must opine on the duties of counsel as an officer of the court. We expect counsel to know and follow basic law relating to civil procedure. That did not happen here. We will impose sanctions for the filing of a frivolous appeal from a discretionary trial court ruling. We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal.”
“We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago.”
Yegan—who has a penchant for quoting his own opinions—pointed to his observation in the 1998 decision in Estate of Gilkison that the appeal “was ‘dead on arrival’ at the appellate courthouse.”
The jurist remarked:
“This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here.”
“For taking and prosecuting a frivolous appeal, sanctions are imposed on appellant and his counsel of record, jointly and severally, in the amount of $10,000 to be paid to respondent, and $5,000 to be paid to the clerk of this court. Upon issuance of the remittitur, the clerk of this court is ordered to forward a copy of this opinion to the State Bar….All sanctions shall be paid no later than 30 days after the date the remittitur is issued. In addition, respondent shall recover its costs on appeal.”
The attorney on appeal is former Los Angeles Deputy District Attorney Steven Slavitt, who was also the trial lawyer.
The appellant is Keith Avery, president of West Wind Works, LLC, and the respondent is Champlin/GEI Wind Holdings, LLC. The companies entered into an agreement under which they formed Champlin Hawaii, through which they would jointly develop a wind energy project in Hawaii.
At the outset, Avery had a five percent interest in Champlin Hawaii, but he later sold that interest to Champlin/GEI Wind Holdings.
Avery apparently stopped working on the project and Champlin/GEI Wind Holdings terminated their agreement, paying Avery $2,000 for his work to date. Asserting that he was owed more than that, Avery filed a mechanic’s lien in Hawaii.
Champlin/GEI Wind Holdings brought suit in Santa Barbara Superior Court for breach of contract and Avery cross-complained, asserting that Champlin/GEI Wind Holdings had sold Champlin Hawaii—in which he no longer had an ownership interest—without his knowledge or consent.
In response to Champlin/GEI Wind Holdings’s motion for summary judgment on the complaint and cross-complaint, Avery, failing to comply with requirements of Code of Civil Procedure §437(c), filed no timely opposition or separate statement of disputed facts. He did file opposition the day before the hearing on the motions, insisting that summary judgment on the cross-complaint should be denied because he wasn’t what he was owed.
At the hearing, Slavitt told Santa Barbara Superior Court Judge Thomas P. Anderle:
“We’re basically asking to amend the wording of the cross-complaint to conform with what our theory is and we’d like to present that at trial.”
That theory is that Avery is due additional compensation.
Anderle denied leave to amend, awarded Champlin/GEI Wind Holdings judgment on the cross complaint and on the cause of action in its complaint seeking a declaration that it owes Avery nothing.
Leave to Amend
The judge did not abuse his discretion in denying leave to anend, Yegan said, explaining:
“Although leave to amend should be liberally granted, the trial court has discretion to deny it when a party unreasonably delays making the request….Unreasonable delay may be found where a plaintiff (or cross-complainant) seeks leave to amend only after the defendant (or cross-defendant) moves for summary judgment on grounds addressed by the proposed amendment and the proposed amendment is based on facts previously known to the plaintiff.”
He added that “the proposed amendment would have been futile because appellant was not entitled to any additional compensation.” Avery had been paid for his work and had no ownership interest in the company, Yegan pointed out.
“Sanctions are warranted here because both appellant and his counsel had to have known this appeal was totally lacking in merit and unfairly delayed removal of the Hawaii mechanic’s lien,” Yegan wrote.
He set forth:
“The appeal here is frivolous because it indisputably has no merit. As we have explained, appellant’s opposition to the motion for summary judgment was untimely and insufficient because it did not include any supporting evidence. The oral request to amend the cross-complaint was equally inadequate because appellant did not file a motion to amend or the proposed amendment. The rules attendant to summary judgment and summary adjudication of issues are not arcane and should be known to a reasonable attorney appearing at a law and motion hearing. The procedure is set out, in detail, by statute. The rules are the subject of hundreds of appellate court opinions. Appellate counsel did not follow any of these rules. To rule in appellant’s favor on appeal, we would have to suspend Code of Civil Procedure section 437(c) and the rules on appeal. In light of these obvious inadequacies, any reasonable attorney would agree that the trial court properly granted summary judgment and that this appeal would not result in a reversal.”
The case is Champlin/GEI Wind Holdings, LLC v. Avery, 2023 S.O.S.1855.
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