Schlichter v. Kennedy

Filed 11/17/25 CERTIFIED FOR PUBLICATION COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO

ORDER

MARK KEVIN SCHLICHTER, E083744 Plaintiff and Respondent, v. (Super.Ct.No. TRUPS2000158) GARY KENNEDY, Defendant and Appellant. The County of San Bernardino _______________________________________

THE COURT

We issued an order to show cause why attorney Jeffrey Dean Grotke (State Bar No. 231454) should not be sanctioned for “relying on fabricated legal authority.” (Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 445 (Noland); Code Civ. Proc., § 128.7, subds. (b)-(c); Cal. Rules of Court, rules 8.204(a)(1)(B), 8.276(a)(4); unlabeled rule references are to the California Rules of Court.) Grotke filed a written response to the order to show cause and also appeared at a hearing on the order, but he has failed to show cause why sanctions should not be imposed. I. Background A. The spurious case citations On May 29, 2024, Grotke filed a petition for writ of supersedeas (hereafter Writ) on behalf of the appellant in case No. E083744, Schlichter v. Kennedy. The petition was summarily denied. On January 9, 2025, Grotke filed the appellant’s opening brief (hereafter AOB) in the same case. The Writ included the following citations to cases that do not exist: (1) Estate of Layton (1938) 29 Cal.App.2d 599 (Writ p. 40), (2) Riddle v. Harmon (1865) 5 Cal. 491 (Writ p. 42), and (3) Estate of Kraus (1970) 8 Cal.App.3d 429 (Writ p. 30). The AOB also included citations to cases that do not exist: (1) Estate of Kraus (1970) 8 Cal.App.3d 429 (AOB p. 16) and (2) Estate of Hermon (1973) 16 Cal.App.3d 421 (AOB p. 31). The volume and page number citations all lead to cases with names that are different from those provided by Grotke: (1) Roy v. Roy (1938) 29 Cal.App.2d 596, (2) Jamson v. Quivey (1855) 5 Cal. 490, (3) Liberty Mut. Ins. Co. v. Colonial Ins. Co. (1970) 8 Cal.App.3d 427, and (4) Atkins v. Bisigier (1971) 16 Cal.App.3d 414. And the cited pages do not support the legal propositions for which Grotke cited them. Grotke did not cite any other legal authority to support any of the propositions for which he cited the nonexistent cases. (Writ pp. 30, 40, 42; AOB p. 16.)

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Cases with the case names provided by Grotke do exist, but the volume and page number citations for the actually existing cases are different from the volume and page number citations provided by Grotke: (1) Estate of Layton (1996) 44 Cal.App.4th 1337 or Estate of Layton (1933) 217 Cal. 451, (2) Riddle v. Harmon (1980) 102 Cal.App.3d 524, (3) Estate of Kraus (2010) 184 Cal.App.4th 103, and (4) Estate of Hermon (1995) 39 Cal.App.4th 1525. And the actually existing cases with those names do not support the legal propositions for which Grotke cited nonexistent cases with those names. On September 19, 2025, we provided the parties with a tentative opinion and gave them 12 days to request oral argument. On the same day, we issued an order directing Grotke to provide us with copies, from an official reporter, of the following four cases, and we identified the pages on which each case was cited in the Writ or the AOB: (1) Estate of Layton (1938) 29 Cal.App.2d 599 (Writ p. 40), (2) Riddle v. Harmon (1865) 5 Cal. 491 (Writ p. 42), (3) Estate of Kraus (1970) 8 Cal.App.3d 429 (Writ p. 30), and (4) Estate of Hermon (1973) 16 Cal.App.3d 421 (AOB p. 31). We gave Grotke five days to respond. On the sixth day, Grotke provided the court with copies of the actually existing cases with those case names: (1) Estate of Layton (1933) 217 Cal. 451, (2) Riddle v. Harmon (1980) 102 Cal.App.3d 524, (3) Estate of Kraus (2010) 184 Cal.App.4th 103, and (4) Estate of Hermon (1995) 39 Cal.App.4th 1525. Grotke did not explain why the volume and page number citations for the cases that he provided were different from the volume and page number citations in the Writ, the AOB, and our order. B. The order to show cause and response Neither party filed a timely request for oral argument in the appeal, so the cause was submitted on October 3, 2025. On October 16, 2025, we issued the order to show cause. Among other authorities, we cited rule 8.204(a)(1)(B), which provides that each point in every brief must be supported “by argument and, if possible, by citation of authority.” We notified Grotke of the problems with the four spurious case citations: His volume and page number citations lead to cases with different names from the ones he provided; the pages cited do not support the legal propositions for which he cited them; and the actually existing cases with the case names he provided also do not support the legal propositions for which he provided the spurious citations. We further notified him that the four spurious citations appear to have been fabricated by artificial intelligence (AI)—“‘what has become known as AI “hallucinations.”’” (Noland, supra, 114 Cal.App.5th at p. 443.) In response to the order to show cause, Grotke filed a declaration that he signed under penalty of perjury. (Grotke Decl. p. 7.) Grotke admitted: “[F]our authorities cited in [his] appellate briefing were mis-cited at the reporter/volume/page level. I accept responsibility for this error. It was not willful. It resulted from a breakdown in my citation-verification process during compilation from vLex (vlex.com).” (Grotke Decl. ¶ 2.) But he also said that after he received our September 19, 2025, order directing him to provide copies of the four cases, he “created a temporary membership with vLex (vlex.com), retrieved, and reviewed the decisions that appeared—by party name—to correspond to those authorities.” (Grotke Decl. ¶ 4.) 2