Two Appeals Demonstrate How Overall Equities Factor Into Appellate Sanctions Decisionmaking Process.
Here are two interesting appeals by a sanctioned client and attorney from lower court decisions, with appellate sanctions being sought by the respondents on appeal. The results are interesting and decided by Acting Presiding Justice Bedsworth on behalf of identical 3-0 panels in Nu v. Nguyen, Case No. G046839 (4th Dist., Div. 3 Sept. 4, 2013) (unpublished) and Truong v. Nguyen, Case Nos. G047039/G047151 (4th Dist., Div. 3 Sept. 6, 2013) (unpublished).
In Nu v. Nguyen, lower court sanctions under CCP § 128.7 were affirmed after plaintiff voluntarily dismissed her action because her story about a Vietnamese money transaction simply had too many contradictions between deposition and later declaration testimony–$22,292.04 in sanctions against plaintiff and her attorney were affirmed against plaintiff in this appeal. However, respondent sought appellate sanctions, which were denied. Reason? Respondent did not fully answer questions about where plaintiff’s money went and did not clear up her confusion about the transaction–a confusion also shared by the appellate court.
BLOG FAVORITE QUOTE IN THIS ONE–Justice Bedsworth quoting Abraham Lincoln, who famously said “No man has a good enough memory to make a successful liar.”
Then, in Truong v. Nguyen, plaintiff’s attorney hit with the $22,292.04 sanctions award appealed, but also appealed a $3,660 second sanctions imposed for bringing an untimely motion for reconsideration. Attorney lost the appeal of the $22,292.04 sanctions award because he appealed too late–he did not file a valid reconsideration motion, so the 60-day appeal period was not extended. (This decision is good reading on when a reconsideration motion must be timely filed after a notice of ruling.) However, appellate sanctions were not assessed against attorney for this appeal because, although untimely filed, the merits of the appeal had some semblance of sense given respondent’s inability to explain fully what happened to appealing attorney’s client’s money in the transaction at issue. However, attorney did not do so well on the $3,660 reconsideration motion second sanctions. This sanctions order was not appealable but should have been pursued through an extraordinary writ challenging the sanction, something not done. However, only token appellate sanctions of $100 payable to the court were levied against attorney given that the appellate court did not spent much time on the issue and it had to ask for supplemental briefing on the untimeliness of the reconsideration motion in the first appeal.
So, that is how justice panned out in this client/attorney appellate trifecta!