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Lawyer Can’t Be Sanctioned for Client’s Nonappearance for Trial, C.A. Holds
Order to Pay $1,500 Is Reversed; Justices Say Counsel Can Advise Client, but Can’t Force Its Representative Onto a Plane to Come to California
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has reversed a $1,500 sanction imposed on a lawyer based on his client’s representative declining to travel from New York to California while trial of the company’s fraud/contract action was trailing, insisting he would not come until the trial date was certain.
Tuesday’s unpublished opinion exonerates attorney William L. Buus whose office is in the City of Brea in Northern Orange County. It holds that a lawyer cannot be held vicariously liable for the client’s conduct—and, in particular, can’t compel a witness to get on a plane on a flight traversing the continent.
Sanctioning Buus was Orange Superior Court Judge Kimberly “Kate” Anne Knill, who was a chambers attorney for the Fourth District’s Div. Three at the time of her Feb. 27, 2018 appointment to the bench by then-Gov. Jerry Brown.
Trial had been scheduled to start on Thursday, Sept. 8, 2023, in Knill’s department but another trial was still in progress there and the parties were told that the case would go on the civil trailing trial list the following Monday—with appearances expected on one hour’s notice—which Buus said he imparted to his client.
Courtroom Available
On that Monday, Buus received a phone call from Knill’s courtroom clerk advising him that the case had been shifted to another department which was immediately available for trial; he explained that the representative for his client, plaintiff Samarian Products LLC, was in New York; he was told to tell it to the judge; he showed up in court shortly after 9 a.m. and explained the situation to Knill.
The judge ordered him to show cause at 11 a.m. why he should not be sanctioned under California Code of Civil Procedure §177.5, which provides, in part:
“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.”
Knill held Buus responsible for the client’s nonappearance, imposed the maximum sanction allowed under the code section, and had the matter reported to the State Bar.
The case settled, but the sanction order remained, and Buus appealed.
Argument on Appeal
Representing himself, the lawyer argued in his appellate brief:
“Although Mr. Buus informed the trial court why his client decided not to travel from New York to California to await trial, that is not a valid reason to impose monetary sanctions against him. He could not and should not have been expected to guarantee the presence of his client in court on any particular date, especially when his client made an informed decision not to travel to California while the case trailed. For that reason, the trial court’s order imposing monetary sanctions against Mr. Buus personally should be reversed or, alternatively, the amount of monetary sanctions should be reduced.”
He went on to say:
“Mr. Buus did nothing to warrant any sanction, much less one fixed at the maximum amount, rendering it reportable to the California State Bar.”
Appeals Court Opinion
The appeals court agreed. Acting Presiding Justice Eileen C. Moore wrote:
“The record does not support sanctions against Buus. Buus did not personally violate the court’s September 8 order. His client may have, but the circumstances do not support the court holding Buus responsible for the client’s decision not to appear. An attorney can only do so much when it comes to managing a client’s actions. An attorney can counsel, recommend, cajole, insist, and even beg, but one thing an attorney cannot do is physically force a client onto a plane to fly across the country. There is no evidence supporting an inference that Buus did not inform his client of the court’s order—he represented to the court that he did so, and there is simply no evidence to the contrary. Buus therefore fulfilled his duties, and we cannot find substantial evidence to support the conclusion that Buus knowingly or intentionally violated the court’s order.”
Moore added:
“Further, the sanctions order in this case raises troubling due process questions. Section 177.5 requires ‘notice and opportunity to be heard.’ The notice in this case was less than two hours. Buus clearly had no opportunity to file a declaration from himself or his client, or to offer any other kind of written opposition. We do not know exactly what was said or what opportunity to speak Buus was given at the OSC hearing, because no court reporter was present.
“We find the summary nature of this proceeding potentially inconsistent with due process, especially in light of the court’s decision to impose the maximum amount of sanctions, which was referred to the State Bar of California. Given that in the absence of a reporter’s transcript we cannot know if due process requirements were met, we conclude this is an independent reason to reverse the sanctions order.”
Lawyer’s Comment
Buus remarked Tuesday night:
“Although I think the opinion provides plenty of detail concerning my position on the court’s order, I will say that if it was a matter of merely paying a fine, I would have paid it and moved on. Unfortunately, though, the matter was also referred to the State Bar, so I felt obligated to appeal the order. And even though the State Bar investigator was professional and polite and closed his file quickly with little effort on my part, it was still an unsettling experience. Anyway, I’m pleased with the result.”
The case is Buus v. Khoilian, G063112.
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