Don’t Overlook the Civil Case Information Statement: Attorney Sanctioned for Incomplete CCIS

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:

• Probate proceedings. [CCP § 44]
• Child dependency proceedings under Welf. & Inst.C. § 300 et seq. (Welf. & Inst.C. § 395; In re M.M. (2007) 154 CA4th 897, 916, 65 CR3d 273, 287; and judgments freeing (or denying a recommendation to free) a child from parental custody and control under Fam.C. § 7800 et seq. (CCP § 45)). (Termination of parental rights appeals and juvenile dependency appeals in the expedited review project courts (see CRC 8.416(a)(1)) are processed on a fast track pursuant to special rules prescribed by CRC 8.416.)
• Proceedings to recover possession of real property. [CCP § 1179a]
• Arbitration proceedings. [CCP § 1291.2; Hedges v. Carrigan (2004) 117 CA4th 578, 582, 11 CR3d 787, 789-790]
• Proceedings for declaratory relief in medical malpractice insurance cases. [CCP § 1062.5]
• Contested election proceedings. [CCP § 44; Nguyen v. Super.Ct. (Nguyen) (2007) 150 CA4th 1006, 1009-1010, 58 CR3d 802, 804]
• Certain proceedings involving environmental impact (Pub.Res.C. § 21167.1) and general plans (Gov.C. § 65752).
• Certain proceedings involving property taxation or assessments (Rev. & Tax.C. § 5149). [See Rev. & Tax.C. § 4808]
• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) cases. [Fam.C. § 3454]
• Appeals from superior court decisions on Gov.C. § 71639.1 writ petitions in trial court labor relations disputes. [CRC 10.660(d)]
• Appeals from a superior court decision on a writ petition under Gov.C. § 71675 (release of budget and management information by Judicial Council). [CRC 10.803(d)]
• Appeals from an order dismissing or denying a petition to compel arbitration involving a claim under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.C. § 15657.03) in which a party has been granted a trial court preference. [CCP § 1294.4 (added Stats. 2016, Ch. 628); see CCP § 1294.4(a)]

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:

• Party over age 70 who has a “substantial interest in the action as a whole” and whose health is such that preference is necessary to prevent prejudicing his or her interest in the litigation (CCP § 36(a)—mandatory preference on application);
• Party (any age) suffering from illness or condition raising “substantial medical doubt of survival” beyond six months (CCP § 36(d)—discretionary preference on application supported by “clear and convincing medical documentation”);
• Party to personal injury or wrongful death action who is under age 14 and who has a “substantial interest in the case as a whole” (CCP § 36(b)—mandatory preference on application);
• Plaintiff seeking damages caused by defendant during commission of a felony for which defendant was convicted (CCP § 37—mandatory preference);
• Contested child custody proceedings (Fam.C. § 3023—mandatory preference);
• Eminent domain proceedings (CCP § 1260.010—mandatory preference).

(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 tkowal@tvalaw.com or (714) 641-1232.

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