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Appeal by Client of Sanctions Against Attorney Dismissed: Attorney Should Have Appealed

Tim Kowal     February 8, 2022

Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice of appeal.

Rubbing the attorney’s nose in it, the Third District Court of Appeal held the sanctions award was improper on legal grounds, and must be reversed. But the sanctions against the attorney remained.

The sanctions were imposed because the Lafferty plaintiffs and their attorneys sued the wrong defendant. The Lafferties sued Fleetwood, a mobile home company, for defects in their mobile home. But although Fleetwood had a California entity, its manufacturing business was in Indiana. The Lafferties refused to dismiss, forcing Fleetwood to obtain dismissal on summary judgment. Fleetwood then moved for and obtained sanctions against the Lafferties and their attorney under Code of Civil Procedure section 128.5.

But section 128.5 at that time only applied to actions brought before 1995. The Lafferties’ lawsuit, brought in 2006, did not apply. (The legislature later removed section 128.5’s date restriction. But that was after entry of the sanctions order.)

Sanctions Against Attorney Not Reversed Because the Attorney Did Not Join the Appeal:

What about the appellant Lafferties’ attorney? Unfortunately, he did not appeal the sanctions order. The court explained in a footnote:

“Even though the sanctions order also applies to attorney Timothy D. Murphy personally, he did not join in the notice of appeal and therefore cannot be afforded relief on appeal. (Cf*. In re J.F*. (2019) 39 Cal.App.5th 70, 75 [jurisdiction of the reviewing court is limited by the scope of the notice of appeal].)”

But Other Cases Have Excused Similar Defects in the Notice of Appeal:

The California Supreme Court recently directed courts to be more lenient than was Lafferty here, and to excuse the omission of the attorney in a notice of appeal of a sanctions order. In the January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 (covered in this blog here), the Court held that the omission of an attorney from the notice of appeal of a sanctions order was not fatal. Applying liberality in construing the notice of appeal, the Court held the appeal was saved because the client had not been sanctioned, the respondent could not possibly have been misled that the attorney obviously intended to appeal. The omission, due solely to inadvertence, could not defeat the policy of liberality in construing notices of appeal.

And on episode 23 of the California Appellate Law Podcast, for instance, discussed Alexi & Ani LLC v. Warren from the Fourth Appellate District, Division One, involving an appeal of a sanctions award against the Mark Gerragos law firm. The appeal was fraught with problems including the fact that it was an attempt to appeal a sanctions order that was unopposed at the trial court level. The notice of appeal failed to identify the proper party: it should have been the attorney, not the client, appealing the sanctions award.

But the Court of Appeal exercised its discretion to liberally construe the notice of appeal by referring to the civil case information statement to save the appeal. The Alexi & Ani court cited the Supreme Court’s K.J. decision.

The Lafferty opinion does not mention K.J.

I have discussed some other recent opinions in which the Court of Appeal applied the liberality doctrine to save an otherwise defective notice of appeal. (Westlake Village [omitting alter ego from notice]; Bennett [listing wrong order]; Fang [checking wrong box re type of appeal].)

The Upshot: Do not forget to name all appellants in the notice of appeal. But also be prepared to discuss the doctrine of liberality in construing the notice of appeal, and cite K.J. if any defects in the notice of appeal arise.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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