56 Cal.App.5th 916
Cal. Ct. App.2020Background
- Tenants sued landlord Janet Berschneider; the parties reached a settlement that required court approval for a minor plaintiff on April 17, 2019.
- On May 22, 2019 attorney John B. Richards filed an ex parte application to shorten time for a motion to enforce the settlement, claiming delay in payment by respondent’s counsel Harry Safarian.
- Richards received settlement checks from Safarian on June 3, 2019 but did not inform the court; at the June 7 hearing he stated he had not "received word" from opposing counsel and did not disclose the checks.
- The trial court granted the motion, found Safarian in contempt, and ordered disbursement and monetary sanctions; Safarian’s counsel later moved for relief and for an order to show cause against Richards.
- The court vacated sanctions against Safarian, issued an order to show cause against Richards for lack of candor, and after a hearing (Order After Hearing dated July 15, 2019) found Richards in contempt/for lack of candor and imposed $5,310 in monetary sanctions.
- Richards appealed; the court of appeal dismissed any appeal from the contempt finding (not appealable) but held the sanctions order (over $5,000) was appealable and affirmed the sanctions.
Issues
| Issue | Richards' Argument | Respondent's Argument | Held |
|---|---|---|---|
| Appealability of contempt order | Contends trial court erred; appealed the contempt finding | Contends contempt orders are not appealable; review only by writ | Contempt orders are not appealable; appeal dismissed; writ is the proper remedy |
| Appealability of monetary sanctions | Implied challenge to sanctions order; argued lack of statutory basis/jurisdiction | Sanctions exceeded $5,000 so order is directly appealable under §904.1 | Sanctions order is appealable because amount exceeds $5,000; court reviewed and affirmed |
| Duty of candor / substantive basis for sanctions (subject-matter) | Argued he did not make false statements; court didn’t ask about checks; fees were still incurred so sanctions improper | Argues Richards knowingly concealed material fact (receipt of checks); misrepresentation falls within §128.5 misconduct | Court held attorneys owe affirmative duty to inform tribunal when material facts change; Richards’ concealment was a ‘‘half-truth’’ and sanctionable under §128.5; sanctions affirmed |
| Personal jurisdiction / service of OSC | Argued lack of personal service on ex parte application and OSC, so court lacked PJ | Richards’ filing opposing the ex parte application constituted a general appearance; PJ satisfied | Filing a written opposition addressing the merits was a general appearance under §410.50(a); court had personal jurisdiction |
| Adequacy of notice for OSC | Argued ex parte application did not adequately notify him of factual basis for OSC | Respondent’s ex parte detailed the request and factual basis; Richards litigated the merits without objecting | Issue waived by Richards’ failure to raise it below; even if considered, the ex parte materials gave adequate notice |
Key Cases Cited
- In re Buckley, 10 Cal.3d 237 (writ, not appeal, is the remedy to review contempt orders)
- In re Reno, 55 Cal.4th 428 (attorney’s affirmative duty to inform court when material facts change)
- Grove v. State Bar of California, 63 Cal.2d 312 (concealment or half-truths mislead the court as effectively as false statements)
- Jackson v. State Bar of California, 23 Cal.3d 509 (knowing misrepresentation to a court is presumed intentional and violates duties of an officer of the court)
- Young v. Rosenthal, 212 Cal.App.3d 96 (misrepresentation of material fact is sanctionable under §128.5)
- Serrano v. Stefan Merli Plastering Co., Inc., 162 Cal.App.4th 1014 (opposing a motion on the merits ordinarily constitutes a general appearance)
- Wallis v. PHL Associates, Inc., 168 Cal.App.4th 882 (trial court’s broad discretion in awarding sanctions reviewed for abuse)
- Imuta v. Nakano, 233 Cal.App.3d 1570 (court will not construe a notice of appeal as a writ petition in lieu of a proper writ)