Wax v. Infante

Opinion

KINGSLEY, Acting P. J.

This is the second installment of the dispute between the parties over an alleged debt owed by defendants to plaintiff. That dispute was purportedly settled by an agreement under which defendants executed a confession of judgment in favor of plaintiff. Plaintiff sued and recovered judgment on that confession. Defendants moved to set aside that judgment and the motion was denied. On appeal, this court reversed the order, holding that the confession of judgment was void as in violation of subdivision (b) of section 1132 of the Code of Civil Procedure.

(Wax

v.

Infante

(1982) 138 Cal.App.3d 138 [187 Cal.Rptr. 686].)

While that appeal was pending in this court, defendants brought a second motion in the trial court, alleging that it was based on newly discovered evidence not available at the time of the first motion. The trial court held that there was no new evidence and that the second motion was a mere attempt to reconsider the first ruling, then on appeal. The court both denied the second motion and assessed against defendants and their then attorney a penalty, under section 907 of the Code of Civil Procedure, of $900. That sum was paid to plaintiff by a check from defendant’s counsel.

1

Since the order herein attacked was against the attorney and appellants jointly, the payment by the attorney satisfied the order.

2

There is now nothing remaining for appellants to do. The case is moot and must be dismissed.

[1031]

Contending that the present appeal was frivolous, respondent asks us to impose a penalty for a frivolous appeal. As required by

In re Marriage of Flaherty

(1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179], we issued to counsel for appellant an order to show cause to show why a penalty should not be imposed. The response to that order was merely that because counsel thought that the attorney could not appeal from the order involved, an appeal by the clients was the only remedy to attack the order. Of course, since the order ran against the attorney as well as the clients, the attorney could have appealed. Had