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Court of Appeal:
Sanction Proper Though Meritless Motion Wasn’t Served
Judge’s Action Was Appropriate Where Opposition Was Filed, Opinion Says
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday rejected an inventive contention by a plaintiff/appellant who was socked with a $2,925 discovery sanction, and it chastised the objector/respondent’s lawyer for filing a motion for sanctions that plagiarized a magazine article.
Justice Martha K. Gooding authored the unpublished opinion.
The sanction was imposed on Gregory Kelly of Las Vegas who, representing himself, sued Marc Tow in Orange Superior Court. Kelly sought third-party discovery from Jin K. Hymers, who set forth objections.
Kelly advised Hymer’s lawyer that he had filed a motion to compel. Although the motion was not served, Hymers filed opposition.
At a hearing on the motion, Judge David A. Hoffer imposed the sanction, over Kelly’s protest that he was impervious to such a penalty because the motion had not been “made” as defined by Code of Civil Procedure §1005.5. That section says:
“A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled.”
Argument on Appeal
The litigant argued on appeal:
“Because the Notice and Motion were not served on Respondent in any manner, it was never ‘made’ pursuant to § 1005.5, and the trial court lacked jurisdiction to grant the requested relief for sanctions by Respondent….
“Without a ‘made’ Motion, there can be no Opposition, and Respondent’s request for sanctions was directly tied to this Motion.
“Accordingly, Respondent’s Opposition was legally infirm, and the request for sanctions made in the Opposition should have been denied.”
Representing Hymers, Pasadena attorney Scott Vick said in the respondent’s brief, citing the California Supreme Court’s 1860 decision in Reynolds v. Harris:
“The argument that Appellant makes—that the trial court lacked jurisdiction and that he should not be sanctioned because he did not serve a motion to which his adversary opposed on the merits—runs head-long into an unbroken line of settled case law dating back, at least, to a California Supreme Court case decided in i860 at the time that James Buchanan was the fifteenth President of the United States and before the Civil War began. In the 164 years that have since passed, legions of cases have followed this rule, which has not materially changed.”
Gooding’s Opinion
Agreeing with Hymers, Gooding wrote:
Section 1005.5 exists for the benefit of the opposing party. Any objection based on failure to properly serve the motion belonged to Hymers—the party to be served—not Kelly, the party responsible for service. Hymers prepared and filed an opposition addressing the merits of the motion, thereby waiving any objection regarding service….
“The trial court had authority to hear the motion and award sanctions.”
Points to Plagiarism
Gooding said in a footnote:
“In his opposition brief, Kelly asserted the ‘Legal Standard’ section of Hymers’s motion for sanctions…appears to plagiarize a 2017 article written by Janet Gusdorff….We take judicial notice of the existence of the article, which confirms Kelly’s assertion of plagiarism. With only a handful of insubstantial punctuation or word changes, this portion of Hymers’s motion is identical to the language of the article, and the copied portions do not appear in quotation marks and are not attributed to Ms. Gusdorff.
“To say the least, the unattributed use of another attorney’s material is of concern to this court. It is a serious breach of ethics and a violation of rule 8.4 of the Rules of Professional Conduct, which provides it is professional misconduct for a lawyer to ‘engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.’…Obviously, this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers”].) Because counsel readily took responsibility for the unattributed use of Ms. Gusdorff s language and apologized for what he described as an inadvertent error, we elect not to impose sanctions. We strongly caution counsel, however, to ensure no further acts of plagiarism infect his briefing in this or any other court.”
The jurist did not address the permissibility of copying passages from briefs in unrelated cases.
Denying sanctions, Gooding wrote:
“Although we reject Kelly’s argument, we do not find it rises to the level of an objectively frivolous appeal.
Kelly, in response to a request for comment, quoted the footnote and remarked:
“There appears to be a double standard with non- attorney, pro per parties and attorneys, when it comes to sanctionable conduct.”
Vick said:
“We are pleased with the panel’s decision agreeing that Mr. Kelly’s underlying motion was frivolous and sanctionable, and we await his payment of sanctions to us.
“After filing an opposition to Mr. Kelly’s brief, we filed a motion to sanction him on the grounds his appeal (just like his underlying motion to compel) was frivolous. The Legal Standard section of our separate motion for sanctions contained an accurate statement of the legal standard, but out of haste and inadvertence in rushing to file the motion, our opposition failed to cite the accomplished author of the article from which those case cites were obtained. There was no intent nor harm because the legal standard cited was correct. Citing to the author, as should have been done, would have made our arguments even stronger. This was simply a matter of failing to include one final citation.”
The case is Kelly v. Tow, G064417.
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