Rush v. Weinzettl

Opinion

GILBERT, J.

An attorney who is not of record files a motion on behalf of a party in an action. Does the trial court have jurisdiction to impose sanctions against such an attorney? Yes, because he represents a party even though he is not attorney of record.

[68]

Attorney Henry W. Bockman appeals an order imposing $500 sanctions against trim under Code of Civil Procedure section 128.5.

1

Here, the trial court had jurisdiction to impose sanctions, but we do not decide the merits of the appeal. Instead, we dismiss the appeal because section 904.1, subdivision (k) does not permit interim appellate review of monetary sanctions less than $750 imposed against a party or his attorney.

Facts

Plaintiff Brian Rush suffered personal injuries in an automobile collision in Thousand Oaks on February 1, 1990. On October 12, 1990, his mother, as guardian ad litem, brought an action for negligence against defendant Dieter Weinzettl. Attorney George N. Nicoletti represented the Rushes.

Nearly eight months later, the Rushes dismissed Nicoletti as their attorney. Mrs. Rush signed a substitution of attorney form and became a plaintiff in propria persona.

By a written agreement, Mrs. Rush employed Attorney Henry W. Bock-man to represent her and her son. Neither Mrs. Rush nor Bockman executed a written substitution of attorney for the court.

Shortly thereafter, Bockman filed a motion with the court seeking to file an amended complaint and an order declaring Attorney Nicoletti was not entitled to a lien upon the Rushes’ recovery. Bockman also sought court approval of his representation of the Rushes and his fee agreement with them. He appeared at a court hearing to argue these motions. Nicoletti retained an attorney to represent him and resisted Bockman’s motion, insisting he was entitled to some recompense.

The trial judge denied Bockman’s motion, without prejudice, because Bockman had not yet become counsel of record. The judge stated: “[Y]ou cannot file any document in this action purporting to represent anyone since you have no standing to do so.” Upon request of Nicoletti, the trial judge then imposed sanctions of $500 against Bockman pursuant to section 128.5. Bockman appeals this order.