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Howard v. DeWitt (Cal. Ct. App. - July 15, 2009)

By Shaun Martin

I will not claim that I read every unpublished decision of the Court of Appeal, even those from down here in San Diego. 'Cause I don't.

But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.

There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend. What's noteworthy about the opinion is the attorney-slap (and sanction) given to the insurer's counsel, Lance Orloff. Who's called out by name in the opinion.

I won't recount all the details of what Mr. Orloff allegedly did, which Justice McConnell describes at length. I will, however, present a taste of the Court of Appeal's reaction thereto:

"On March 26, 2009, this court, on its own motion, issued an order to show cause why we should not impose sanctions against Monterey and its counsel of record, Lance Orloff, for the misrepresentation of the appellate record in both the opening and reply briefs. On April 6, 2009, they filed a written opposition in which Orloff admitted he did not sufficiently review the facts and "relied on an unfortunate clerical error in the trial court's order". . . .

We conclude sanctions of $750 are in order for Orloff's misrepresentation of the appellate record. The misrepresentation is particularly egregious because Orloff is an appellate specialist with 22 years of experience, and he based Monterey's appeal principally on his erroneous rendition of the facts, thereby making the appeal largely frivolous and wasteful of this court's time and resources. Even if the misstatements of fact in the opening brief can be attributed to Orloff's failure to adequately review the record, in the reply brief he does not acknowledge his errors and instead persists in misleading the court."

I'm sure that a law firm partner can handle a $750 sanction. It doesn't even require reporting to the State Bar. But the verbal spanking? Ouch. That's gotta hurt. The only saving grace -- for which I'm certain Lance is (or at least should be) eternally grateful -- is that Justice McConnell left the opinion unpublished.

So he's got that going for him. Which is nice.

Full post as published by California Appellate Report on July 23, 2009 (boomark / email).