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Court of Appeal:
Sanction Unwarranted Though Pro Per Cited Fictitious Cases
Opinion Says Requested $10,000 Penalty Would Be Inappropriate Where Fabricated Jurisprudence Supposedly Stood for Correct Legal Principles, No Formal Motion Was Filed
By Kimber Cooley, associate editor
Div. Three of the Fourth District Court of Appeal yesterday declined to sanction a self-represented litigant over her citation to nonexistent case law in appellate briefing, acknowledging that the action was “serious and sanctionable” but declaring that the requested amount of $10,000 was “grossly excessive” where the fictitious jurisprudence was used to cite correct legal principles and the request was not raised in a formal motion.
The unpublished opinion, authored by Justice Thomas A. Delaney, follows Friday’s decision by Div. Three of this district’s Court of Appeal in Noland v. Land of the Free L.P. in which the court imposed a $10,000 sanction on attorney Amir Mostafavi for including fabricated quotations from real cases—and citations to fictitious ones—in his briefs, which were drafted with the use of artificial intelligence tools.
Delaney said that the citation of nonexistence cases “creates inefficiencies for lawyers and the courts” as well as “promotes cynicism about the legal profession,” but declared that “[a]lthough citation of fictitious cases is sanctionable conduct, we conclude sanctions are not warranted in this case.”
The question arose after a California mother, Nga Huynh, appealed from a 2023 order, issued by then-Orange Superior Court Commissioner Eileen Solis (now a judge of that court), determining that Nevada had exclusive jurisdiction over the former couple’s son under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Family Code §3400 et seq.. Joseph DeSimone, the child’s father, is a resident of the Silver State.
Fictitious Cases
Representing herself, Huynh asserted in her appellate brief that “In re Marriage of Handley”—a fictitious case—stands for the proposition that the applicable standard of review is abuse of discretion and that the decision in “In re Marriage of Atkins,” also nonexistent, establishes that the existence of a substantial wealth disparity between the parties is a relevant factor in determining the proper forum for child custody disputes.
DeSimone responded by filing a motion to dismiss the appeal, arguing that Nevada has exclusive jurisdiction over all stages of the case. After Huynh opposed the motion, he raised in a reply brief the request for sanctions, based in part on the fabricated citations,.
In yesterday’s opinion, joined in by Acting Presiding Justice Joanne Motoike and Justice Eileen C. Moore, the court concluded that a determination that Nevada has exclusive jurisdiction under UCCJEA is subject to appellate review in California but affirmed Solis’ order based on findings that Huynh forfeited her claims by failing to cite to the full record or to proper legal authority.
Delaney noted:
“DeSimone requests this court sanction Huynh for filing the appeal. He argues the appeal is frivolous because (1) the appeal is moot for lack of jurisdiction, as argued in his Motion to Dismiss, (2) Huynh failed to comply with the rules of appellate procedures by fairly summarizing the evidence or presenting cogent arguments, and (3) Huynh cited nonexistent cases.”
Sufficient Sanction
Addressing the first two arguments, the jurist remarked that “the appeal is not moot because we have…jurisdiction to review whether the Nevada family court has jurisdiction under the UCCJEA” and opined that forfeiture was a “sufficient sanction” for Huynh’s failure to present reasoned arguments on appeal.
Turning to the fabricated case citations, he pointed out that “substantial authority supports sanctions for such misconduct, even when committed by a self-represented litigant.” However, he opined:
“Nevertheless, we concluded sanctions are not warranted in this case. DeSimone’s request for sanctions was made not by formal motion, but in reply to Hyunh’s opposition to the motion to dismiss and referenced again in the respondent’s brief. Neither is appropriate.”
He continued:
“Moreover, the requested sanctions in the amount of $10,000 is grossly excessive in terms of what was necessary to correct the inaccuracy. Indeed, although fictitious, the cases were cited to support legal contentions that are correct statements of the law and supported by extant cases. This fact mitigates against the amount of the requested sanctions and sanctions in general. In addition, we recognize Huynh promptly removed the challenged citations in corrected filings after being apprised of her errors.”
Delaney added: “It is a serious and sanctionable action to cite fictitious cases on appeal. All parties, whether self-represented or not, must strive to include proper legal authorities in support of their arguments. Blind reliance on cases generated by artificial intelligence damages the litigant’s credibility with the court when the cases are fictitious. Responding to the fictitious cases wastes the limited resources of the courts. Although we decline to impose sanctions in this case, self-represented litigants who cite fictitious cases in future appeals may not be so fortunate to avoid monetary or other sanctions.”
The case is Huynh v. DeSimone, 23P000437.
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