Cohen v. General Motors Corp.

Opinion

McKINSTER, J.

After earlier affirming the trial court’s order of dismissal in an unpublished opinion, we now consider respondents’ request for imposition of sanctions pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 26(a). We conclude that the maintenance of this appeal beginning January 10, 1991, was frivolous and, accordingly, impose sanctions against appellant’s counsel.

Procedural Background

Appellants Cohen appealed from an order granting General Motors’ and Dixon Cadillac’s motion for dismissal brought under Code of Civil Procedure sections 583.410 and 583.420 for failure to serve them within two years. In an opinion filed May 31, 1991, this court affirmed the order, finding that the trial court had not abused its discretion in ordering the action dismissed.

This appeal was the second appeal filed by the Cohens arising from the same litigation. In the earlier appeal, we affirmed the trial court’s granting a

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similar motion to dismiss as to defendant Dietz Towing. That opinion was filed on January 10, 1991, case No. E007270.

On July 1, 1991, respondents Dixon Cadillac Company and General Motors Corporation filed a request for issuance of an order to show cause re: imposition of sanctions on appellant and her attorney Joseph Gimbrone for filing and maintaining a frivolous appeal. In response, we ordered the appellant Diane Cohen

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and her attorney appear and show cause why sanctions should not be imposed. Having heard the written and oral arguments of counsel, we conclude that maintaining this appeal beginning January 10, 1991, was frivolous and impose sanctions against appellant’s attorney.

Discussion

The imposition of sanctions is authorized by both the Code of Civil Procedure and the California Rules of Court. Code of Civil Procedure section 907 authorizes the imposition of sanctions for maintaining a frivolous appeal. It states: “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” California Rules of Court, rule 26(a) provides in relevant part: “Where the appeal is frivolous or taken solely for the purpose of delay . . . , the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.”