Wednesday, November 04, 2020

McCluskey v. Henry (Cal. Ct. App. - Nov. 2, 2020)

I readily admit that prosaic appellate opinions in California are probably not the highest priority for pretty much anyone in the post-election too-close-to-call-refreshing-my-screen-every-five-minutes era.  Still, we have some opinions coming out -- albeit not all that many.  So read them we shall.  There's (pretty much) always something interesting.

Like this one.  (Though it came out on Monday!)

It's pretty rare to get an attorney successfully sanctioned under CCP 128.7 who's competently trying to avoid sanctions.  There are a fair number procedural rules you've got to follow, and then there's the key substantive component of having to prove that what the other side's done is affirmatively frivolous.

Yet not only did the attorney get sanctioned, but for a fairly hefty amount:  over $22,000.

The sanctioned lawyer is Los Angeles attorney Michael Mogan.  Now he not only has to pay the tens of thousands of dollars in sanctions, but also has a published opinion that publicizes them to the world.  With the additional note that his appeal of the sanctions order against him "comes right up to the line of sanctionable conduct" as well.  ("Close to all of arguments offered by Mogan – 19 issues presented in question form – 'are not supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.' [Cites] By forcing us to examine those myriad arguments before rejecting them as having no factual or relevant legal support, Mogan has caused a 'useless diversion of this court’s attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'”)

Plus Mr. Mogan has to report the sanctions to the State Bar.

All in all, not a great result for him.