PUBLISHED OPINIONS
Tony Forberg has represented many clients in California Court of Appeals for the Second District and Ninth Circuit Court of Appeals. Mr. Forberg, on two occasions successfully argued, and prevailed in the following appellate cases, and the court opinions were certified for publication by California Court of Appeals for the Second District.In general, an opinion of a California Court of Appeal or the appellate division of the Superior Court can be cited as authority only if it has been certified for publication or ordered officially published (Rule 8.1115, California Rules of Court).
Elyaoudayan v. Hoffman, (2003) 104 Cal.App.4th 1421
Often, in cases where an oral settlement is placed on the record in the trial court, a written agreement will follow. If difficulties or unresolvable conflicts arise in drafting the written agreement, the oral settlement remains binding and enforceable. Having orally agreed to settlement terms before the court, parties may not escape their obligations by refusing to sign a written agreement that conforms to the oral terms. The oral settlement, like any agreement, “imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement."
Tliche v. Van Quathem, (1998) 66 Cal.App. 4th 1054
The Legislature granted the courts express statutory power to adopt local rules "designed to expedite and facilitate the business of the court" (Code Civ. Proc., § 575.1). With the legislative mandate to manage cases, the Legislature granted to the courts authority to impose sanctions for noncompliance with rules adopted to implement the Act. These include the power to dismiss actions or strike pleadings. (Gov. Code, § 68608, subd. (b).) However, in imposing the ultimate sanction of dismissal, judges are required to consider the history of the conduct of the case. Government Code section 68608, subdivision (b) provides: "Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purpose of this [Act]." Code of Civil Procedure section 575.2, subdivision (a) permits a court's local rules to prescribe sanctions, including dismissal of an action, for noncompliance with those rules. However, like Government Code section 68608, subdivision (b), there is an important limitation placed upon a judge's exercise of this power. This limitation is found in subdivision (b) of section 575.2 which provides: "It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto."
In harmonizing the Act with this provision of the Code of Civil Procedure, the Supreme Court explained, "Nothing in either the statutory language or the legislative history of the Act reflects a legislative intent to override section 575.2(b)'s limits on a court's sanctioning powers or to give courts expanded dismissal powers with respect to fast track rules. Instead, the words the Legislature chose reflect a contrary intent, i.e., to give courts only those sanctioning powers 'authorized by law.' (Gov. Code, § 68608(b).)"
Therefore, there are at least two limitations or restrictions on the trial court's power to dismiss an action for noncompliance with local rules: (1) dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party (Code Civ. Proc., § 575.2, subd.
(b); and (2) dismissal is appropriate only if less severe sanctions would be ineffective (Gov. Code, § 68608, subd. (b)).
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