Thursday, September 21, 2000
Page 6
PERSPECTIVES
(Column)
Some Sanctions Entail Frivolous Conduct—on the Part
of Judges Making the Orders
By ROGER M. GRACE
Now, don't get me wrong. This series of columns on sanctions is not a crusade against sanctions. To the contrary, I've been personally miffed in certain instances where sanctions were not awarded.
Sanction statutes obviously should exist. And where a statute requires imposition of a sanction except upon a particular finding—such as a discovery statute mandating that a court "shall impose a monetary sanction...unless it finds that the one ubject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust"—a sanction should not be withheld absent such a finding.
On the other hand, sanctions should not be meted out in Queeg-like manner for inconsequential deviations from rules not affecting the outcome of proceedings and not meaningfully impeding the operations of the court. Beyond that, to state the obvious, they should not be imposed where the party or attorney pelted with them has done nothing wrong. And they should not be unleashed except in compliance with statutory provisions.
Here are some of the Los Angeles Superior Court sanction orders that have been dealt with over the past decade by this district's Court of Appeal in published decisions:
•Memorable is the $2,500 sanction meted out by then-Los Angeles Superior Court Judge Edward Kakita jointly against the law firm Spray, Gould & Bowers and its client for filing a summary judgment motion that was one-and-a-half-line spaced rather than double spaced—even though a state rule expressly permitted one-and-a-half-line spacing. Kakita relied on a local rule indicating that double spacing was "preferred." Div. Four reversed in an opinion by then-Justice (now Presiding Justice) Charles Vogel in Tiffany v. State Farm Mut. Auto. Ins. Co. (1993) 14 Cal.App.4th 1763.
•Vogel had occasion to address a far more egregious order entailing a sanction in Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761. The plaintiff's lawyer, Geoffrey C. Mousseau, failed to sign the first amended complaint, as required by Code of Civil Procedure Sec. 128.7. The defendants moved to strike the complaint unless it were signed prior to the hearing on the motion. The plaintiff's new lawyer, Fred Rucker, signed a copy of the pleading and filed it. Then-Los Angeles Superior Court Judge Edward M. Ross struck the complaint and dismissed the action without leave to amend, denied reconsideration, and imposed sanctions on the plaintiff, personally, in the amount of $38,236.50. Vogel said that while Ross was statutorily authorized to strike the pleading based on the defect not being cured "promptly," he was not authorized to dismiss. "The court acted hastily and unreasonably," Vogel observed.
•Another case in which Vogel torpedoed an ill-considered sanction was Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63. Then-Los Angeles Superior Court Judge Eric Younger held an unreported final status conference/settlement conference in his chambers. He was displeased over the lack of progress in settling the case. Proceedings were then held in open court. He imposed a $1,500 sanction each on the plaintiff's lawyer, Steven B. Stevens, and the defendant's counsel, Honey A. Lewis, for supposed violations of rules—but added that the sanctions would be lifted if the case were settled. Vogel remarked: "[N]ot only did Judge Younger fail to comply with the due process requirements of giving notice and opportunity to be heard before imposing sanctions, but his underlying motive for the order was improper—to punish counsel for failing to settle the case....This record therefore establishes that the court used its power to impose monetary sanctions on counsel as a tool to coerce a settlement. This was improper."
•A similar due process issue arose in Eby v. Chaskin (1996) 47 Cal.App.4th 1045. Los Angeles Superior Court Commissioner Arnold Levin had imposed a $500 sanction jointly on attorneys Buffy Lyn Roney and Daniel Shanley. He omitted a step: hearing their side of the story. Notice and hearing were simply dispensed with. Although Shanley did not appeal the sanctions order, then-Court of Appeal Justice Elizabeth Baron said in her opinion for Div. Four that the sanctions were "so intertwined that the order is reversed with respect to both lawyers."
•Another Div. Four opinion relating to sanctions was penned by Justice Norman Epstein. He wrote for that panel in directing the Superior Court to vacate an order dismissing a lawsuit based on the plaintiff's failure to pay monetary sanctions. "The time has come to reassert a well-established but apparently not well-known rule about monetary sanctions in discovery," Epstein wrote in Newland v. Superior Court (1995) 40 Cal.App.4th 608. "The rule is that it is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction." The jurist said that a terminating sanction was "especially inappropriate in this case" because "[a]t worst," the plaintiff "was three days late in paying the money he owed." An attorney for the plaintiff, in open court, proffered a check in payment of the $750 in sanctions that had been imposed upon the plaintiff, minus $67.06 owed to the plaintiff by the defendant in connection with costs awarded in the case by the Court of Appeal. The check was rejected. Los Angeles Superior Court Judge Coleman A. Swart found that the tender was properly spurned because an award of costs on appeal "is enforceable in the court of appeals, I believe, and not here." That view, Epstein said, was erroneous.
•Then there was the $2,500 sanction Los Angeles Superior Court Judge Harvey Schneider imposed on attorney B. Daniel Lynch for telephoning his courtroom clerk to obtain a date for a status conference without first consulting with opposing counsel. Reversing, Justice Richard Aldrich of Div. Three said no sanction could be imposed based on violation of a local rule because the only local rule even remotely in point (which bars ex parte communications with the judge or research attorney) did not bar routine communications with courtroom staff on scheduling matters. The case is Blum v. Republic Bank (1999) 73 Cal.App.4th 245.
•Aldrich also authored the opinion in Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054. There, Los Angeles Superior Court Judge David Yaffe imposed the ultimate sanction of dismissal because the complaint had not been served within two months, as required by a local rule. Aldrich pointed out that Yaffe failed to observe the requirement of Government Code Sec. 68608(b) that cases be dismissed as a sanction only "if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case." Aldrich noted there was "no evidence of prior sanctions against either the party or counsel" and also noted that there was no evidence that the plaintiff "was in any way responsible for the delay in service of the complaint on the defendants." The California Supreme Court in 1997 held that a case may not be dismissed for noncompliance with a local rule where the fault was that of counsel, the jurist recited.
•The fact situation in Kane v Hurley (1994) 30 Cal.App.4th 859 involved a $1,500 sanction being imposed on attorney Jonathan B. Cole based on a request he made for judicial notice. Los Angeles Superior Court Judge David Schacter deemed the request to be for the improper purpose of bringing inadmissible matter to his attention. Purporting to act pursuant to Code of Civil Procedure Sec. 128.5, Schacter imposed a $1,500 sanction on Cole, payable to the Superior Court. Justice Margaret Grignon of Div. Five noted that under Code of Civil Procedure Sec. 177.5, a sanction of up to $1,500 may be imposed in favor of the county for violations of a court order, but that no court order was implicated. She declared that the sanction in issue was not a recognized species. Grignon wrote: "Based on the clear language of section 128.5, its legislative history, and the enactment of subsequent related legislation, we conclude section 128.5 sanctions may not be awarded in favor of the trial court. Accordingly, the trial court acted in excess of its authority when it imposed sanctions payable to the court pursuant to section 128.5."
•When Los Angeles Superior Court Judge Ronald Sohigian was challenged for reelection in 1996, the spotlight was cast on sanction orders of his that were reversed in three unrelated cases handed down in 1991 by Div. One. Particular attention was lent the sanction order disapproved in Bergman v. Rifkind & Sterling, Inc. 227 Cal.App.3d 1380. Sohigian had imposed a $650 sanction on attorney Irv M. Gross, payable to the clerk of the Superior Court, for filing a memorandum of points and authorities that was 22-1/2 pages in length, while a local rule had set the maximum length at 15 pages. Div. One reversed in an opinion by Justice Miriam Vogel. She pointed out that the judge who previously sat in the department had given the green light to the filing of a brief in excess of 15 pages. Vogel continued: "We find most disturbing Judge Sohigian's effort to affect subsequent decisions by other trial judges by ordering Mr. Gross and all of the attorneys at his firm to show copies of the sanction order to 'all judicial officers from whom they may in the future seek an order permitting the filing of a memorandum in excess of 15 pages in this case, with [the sanction] section highlighted for ready reference.' The order is wholly inappropriate and offensive."
•Sohigian was also reversed in Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776 The case involved a $2,200 sanction he imposed on two defendants and their attorney, Terrance McKnight, stemming from a motion by one of the defendants to quash service on it. The appeals court, in an opinion by then-Justice Robert Devich of Div. One, said the sanction was improperly imposed on that defendant because the motion had merit. "The motion was not merely arguably meritorious," Devich wrote, "it was absolutely meritorious." The sanction as it related to the second defendant was improper, Devich said, because that defendant was not a party to the motion to quash.
•The least attention-grabbing Sohigian sanction was dealt with in Kodiak Films, Inc. v. Jensen 230 C.A.3d 1260. The court, in an opinion by Presiding Justice Vaino Spencer, held that Sohigian improperly conditioned relief from default on the payment by a faultless defendant of the plaintiff's legal expenses.
•The latest Sohigian sanction to be shot down has been discussed in previous columns. In Winikow v. Superior Court, Schroeder RPI, B138616 [82 Cal.App.4th 719], the trial judge imposed a $150 sanction on Century City attorney Jeffrey K. Winikow for disobedience of an order to serve a notice of a status conference on "all counsel of record." Winikow was the only counsel of record in the case.
Notwithstanding the July 27 Winikow decision, which Div. Four certified for publication, Yaffe on Aug. 24 imposed a $200 sanction on attorney Michael Rotsten for disobeying an order to serve a notice of a status conference on "all counsel of record." Rotsten was the only counsel of record in the case.
If you have a "horror story" relating to a monetary sanction, please send me a copy of the minute order and any related transcripts, memoranda of points and authorities, and declarations.
Tomorrow I'll offer a suggestion for a legislative change relating to sanctions.