Appellate Sanctions opinion

Do you have something SCANworthy to report? Send it in and odds are good it will be posted. Example: the submission below by appellate Lawyer Melinda Ebelhar of Collins Collins Muir + Stewart, about a published opinion yesterday that was also noted in today's DJ, MetNews, and the California Appellate Report blog.

It’s not often that you see a case where counsel for the plaintiff class is awarded zero dollars where the settlement in favor of the class has been valued by at least one expert at nearly a hundred million dollars.  It’s not often that you see the Court of Appeal grant a motion striking portions of a 103 volume appellant’s appendix and remanding the case to the trial court to determine how much to award the defense counsel on appeal for having to make the motion to strike in the first instance.  Yesterday a “perfect storm” of a decision issued from the Second District Court of Appeal, Division One, affirming that zero dollar award, granting that motion, and making that remand.

In a 3-0 published decision, Ellis v. Toshiba America Information Systems, Inc. (B220286, B227078), authored by Justice Johnson, the Court of Appeal held that the trial court did not abuse its discretion in denying any award of attorneys fees to plaintiff class counsel Lori Sklar.  Sklar, a sole practitioner working out of her home in Minnesota, initially sought nearly $25 million in legal fees.  A discovery battle ensued, with Sklar violating several court orders to produce materials and give deposition testimony to back up her claims that she had worked 11 or more hours a day every day, including Sundays and holidays, over a five-year period.  There was also evidence that she had destroyed and concealed evidence regarding her time, and engaged in “dissembling and outright distortions.”  The trial court ultimately concluded that Sklar had destroyed her own credibility and that it “could not trust” the time records she had produced, and awarded nothing for the value of her work.  The Court of Appeal affirmed.

That makes it a great case for anyone fighting an outrageous fee award request.  It’s also a fun case for us appellate geeks.  Sklar got caught submitting nearly 100 pages of documents in that 103 volume appendix which had not been presented to the trial court.  Exhibit 121, which ran over 2,000 pages of the appendix, were documents meant to support claims for time billed and worked on the case.  The Court of Appeal found that at least 96 pages of the version of exhibit 121 in the appendix were not in exhibit 121 as it had been presented to the trial court.  The Court granted the defense motion to strike those pages, and as part of its remand instructions ordered the trial court to determine the amount of attorneys fees to award the defense for having to go through that process.

See also discussion here: Show Me the Metadata!