Annex British Cars, Inc. v. Parker-Rhodes

Opinion

KING, J.

In this case we hold that sanctions cannot be imposed upon counsel for violating a local court rule (Code Civ. Proc., § 575.2) unless the

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court provides counsel with an opportunity to be heard prior to the imposition of the sanction.

The law firm of Brekhus & Williams appeals from an order imposing a $150 sanction. Although we believe a sanction is appropriate, and that the sanction imposed was eminently reasonable, we reluctantly reverse with directions to the superior court to hold a hearing to allow counsel to be heard on the sanctions issue.

Attorney Barry Wester of Brekhus & Williams appeared to oppose a motion in the Superior Court of Marin County without having filed any written opposition as required by the court’s local rule. The trial court had learned from past experience that Brekhus & Williams may not file opposition to motions it believes to be nonmeritorious. The court pointed out to counsel that the local rule required written opposition to be filed, even to nonmeritorious motions, if counsel wanted to appear and argue against the motion.

The local rule at issue here, Marin Superior Court Law and Motion Policy section II, subdivision C, reads as follows:

“Effect of Late or Omitted Oppositions to

Motions—Opposition papers filed late will not be considered by the Court, and where this occurs, or where opposition papers are entirely omitted, no oral argument on the pending motion will be permitted unless the Court otherwise directs. Relief from the operation of this rule may be sought only by noticed written motion and may be conditioned upon payment of sanctions for non-compliance.”

On appeal Brekhus & Williams contends it did not appear to orally argue against the motion, but only to respond to any argument made by the moving party. How this can be characterized as anything other than oral argument is beyond comprehension.

When Wester appeared the court refused to hear argument, but instead said it would continue the hearing on the matter to allow written opposition to be filed. Wester responded, “Perhaps we were unfamiliar with the requirements.” The court then determined opposing counsel’s hourly billing rate and imposed a sanction of $150 because opposing counsel would have to appear at the continued hearing. The court expressly stated the sanction was payable by Brekhus & Williams and not by its client. A minute order stated that the matter was continued for written opposition and that “Mr. Wester’s office” was to pay a sanction of $150 to opposing counsel.