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Law Review: Strong retort for cluttering court

Ravn R. Whitington

Attorneys are not infallible. I know. Hard to believe. Mistakes are made. Deadlines are missed. Poor judgment is exercised. And attorneys are held accountable. Rarely though does a court of appeal issue a published decision taking an attorney to task for filing an appeal. 

Courts of appeal are institutions of decorum focused on settling novel issues of law. Factual absurdities in the cases reviewed are rarely called out. Parties and attorneys are treated with respect, even if unwarranted. But every now and then, an appellate court takes off the gloves. That is what happened in a recent decision from the California Court of Appeal, First Appellate District, Shiheiber v. JPMorgan Chase Bank

Here is how it went down. Attorney Denise S. Henderson represented Hanan Shiheiber in a foreclosure dispute with JPMorgan Chase Bank. In preparation for trial, Ms. Henderson violated various local court rules by failing to timely submit motions, jury instructions, witness lists, trial briefs and trial exhibits. Chase responded by filing a motion requesting monetary sanctions against Ms. Henderson in the amount of $37,587.50 for attorney fees and costs incurred dealing with the delays. The trial court concluded Ms. Henderson’s conduct was sanctionable, but because she did not act in bad faith, the court ordered a mere $950 in sanctions pursuant to Code of Civil Procedure section 575.2. 



This, seemingly, is where the matter should have ended. With begrudging, but silent, acceptance of nominal sanctions. But when given a final opportunity to be heard, Ms. Henderson became “very heated” and “rude,” “raised her voice to the point of yelling,” and “in a fit of pique, she abruptly ended her appearance by telephone before the hearing concluded, essentially hanging up on the trial court.” Surprisingly, and with commendable “patience and forbearance,” the trial court did not increase the amount of sanctions in response to the outburst. And, again, that should have been the end of it. Not so. 

Ms. Henderson appealed the order on the ground the trial court lacked authority to issue the particular sanctions. Appealing a $950 order is somewhat remarkable. Preparing and filing an appeal is a lengthy and thorough process. The effort, time, and cost of simply submitting the paperwork is of greater value than $950. Now, if a fundamental right was implicated, or a grievous error of law had been committed, the dollar amount is a secondary consideration. But here, such concerns were not present. And, curiously, nor were Ms. Henderson’s legal claims well-founded. The unfortunate combination resulted in an uncommon rebuke by the court of appeal. 



The court soundly rejected Ms. Henderson’s appeal, noting, “Henderson’s brief provided … virtually no assistance … and fails to meet basic standards governing appellate briefing.” The court did not stop there. It went on to emphasize the strain unmeritorious cases place on the judicial system.

“For all of the many potentially meritorious cases that come before us on appeal, this case, regrettably, reminds us once again of the futility and costs of aggressive but ultimately empty advocacy in the appellate courts…When counsel files an appellate brief in a civil case such as this that is so utterly lacking in content sufficient to persuade us of the claims they raise on appeal…it not only dooms their client’s appeal … It also clogs our appellate docket and inhibits our ability to timely review and decide other cases, including those involving interests of the utmost personal urgency and importance.” 

The court’s commentary is nothing short of scathing. But so too is it informative: Limited appellate resources should be preserved for consequential and exigent cases; attorneys are not beyond reproach; and, perhaps most importantly, know when to leave well enough alone. 

Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at whitington@portersimon.com or http://www.portersimon.com.


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