After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in Kuenzinger v. Doctors Med. Ctr. Modesto (D5, Dec. 22, 2021 no. F082272) 2021 WL 6064094 (nonpub. opn.) It was incomplete because the attorney failed to check one of the boxes.
Kuenzinger was a PAGA suit in which the trial court denied the employer’s petition to compel arbitration. The same employer had appealed and lost on the same ground in another case last year in a published opinion in Herrera v. Doctors Med. Ctr. of Modesto (2021) 67 Cal.App.5th 538, and lost again here.
But what was different in Kuenzinger is the appellant’s attorney failed to check the box in Part II of the CCIS form indicating that the appeal was entitled to calendar preference. The court held that the CCIS “is incomplete and inaccurate because Code of Civil Procedure section 1291.2 makes calendar preference mandatory. (See Bus. & Prof. Code, § 6068, subd. (d); Cal. Rules Prof. Conduct, rule 3.3, subd. (a)(1) [duty of candor].)"
While unusual, any “unreasonable violation” of the Rules of Court may be grounds for sanctions. Rules of Court, rule 8.276 makes the following acts sanctionable: “(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules." The act must be analyzed both objectively and subjectively. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).)
Here, the court found the violation was unreasonable both objectively and subjectively because the attorneys knew the appeal of an order denying arbitration was entitled to preference under Code of Civil Procedure section 1291.2 because they correctly checked the box and identified the statute in their CCIS in their prior appeal in Herrera.
The court sanctioned the appellant’s attorney $500, payable to the court.
Take the Civil Case Information Statement seriously. Because the court will.
Appeals Subject to Calendar Preference:
Not sure what kinds of appeals get calendar preference? Here is a list from the Rutter Guide:
There are other types of appeals that may be subject to discretionary calendar preference in the Court of Appeal, such as actions that were entitled to “trial setting” preference in the trial court, like:
(Thanks to Ben Shatz for referencing this case.)
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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