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C.A. Affirms $5,472 Sanction Imposed on Federal Prosecutor, Acting in Pro Per
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has affirmed the imposition of a $5,472 sanction on a federal prosecutor, in his private litigation, for seeking reconsideration of an order without showing “new or different facts, circumstances, or law,” as required by Code of Civil Procedure §1008—but rejected his theory that the timeliness of appealing the monetary penalty imposed under §128.7 opens the door to contesting earlier orders.
Justice William Dato authored the unpublished opinion, filed Tuesday. While affirming the sanction ordered by San Diego Superior Court Judge Keri G. Katz, no additional sanction was imposed based on a frivolous appeal by Assistant U.S. Attorney Christopher M. Alexander of the Southern District of California.
He is assigned to the Major Frauds and Special Prosecutions Section and has been with the office for nearly 25 years.
Alexander sued Scripps Memorial Hospital La Jolla in connection with the care of his late mother; summary judgment was awarded Scripps; its costs were set at $43,302.51; Scripps has been trying to collect on the judgment since 2020, and Alexander has been resisting discovery.
Notice of Appeal
Dato observed:
“Here, Alexander’s notice of appeal indicates he is appealing from the ‘final judgment’ and from separately appealable orders. The reference to the final judgment in this case, entered in July 2016, is confusing because Alexander long ago appealed from that judgment and our decision in that matter has been final for many years.”
The pro per attorney also appealed from various post-judgment orders. Dato wrote:
“Alexander seems to assume that a party adversely affected by a postjudgment order can safely wait until the conclusion of all postjudgment proceedings, regardless of their nature, and then file an appeal challenging anything that has happened since the final judgment. But the only appealable order Alexander can point to, from which he timely sought to appeal, is the court’s April 2023 sanctions order. And that is not a second final judgment that sweeps up every trial court order since 2016.”
No Personal Service
With respect to the sanction, Alexander maintained that it was imposed because he was not personally served with the motion.
“The premise of Alexander’s argument is that a section 128.7 motion is akin to a contempt proceeding and must therefore follow procedural requirements applicable to such proceedings,” the justice wrote. “He cites no authority for the proposition, and for that reason alone we may reject his contention on its premise.”
He added that “we would reject Alexander’s contention for his inability to demonstrate prejudice from any issue concerning service of the motion.”
Addressing the merits of the challenge to the sanction order, Dato said:
“Alexander challenges the order denying reconsideration, but he does not address the basis of the court’s ruling: Because Alexander had earlier presented the August 2020 reporter’s transcript to the court, that transcript and its contents were not ‘new or different facts [or] circumstances’ so as to meet section 1008’s requirements.”
Declining to impose sanctions on appeal, he said that “although Alexander’s conduct may not have been admirable, particularly for an attorney,” it did meet the standard of “the most egregious conduct.”
The case is Alexander v. Scripps Memorial Hospital La Jolla, D082380.
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