Inviting the court to error estopps appeal and may be sanctioned

A party that invites the trial court to commit error is estopped from challenging that error on appeal, but may be sanctioned for its bad faith in inducing that error.

In Diaz v. Professional Community Management, the Court of Appeals for the Fourth District sanctioned E. Sean McLoughlin and William A. Meyers $8,500 plus attorney’s fees for “sharp practices.”

Diaz sued his former employer Professional Community Management (“PCM”) for failure to make reasonable accommodation and retaliatory termination.

Eleven days before trial, PCM’s counsel held an ex parte hearing to shorten time to hear a motion to compel arbitration. The court denied the order.

PCM’s counsel then submitted a proposed order pursuant to the judge’s ruling. The proposed order caption on the first page read, “PROPOSED ORDER RE: DEFENDANT PCM’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON MOTION TO COMPEL ARBITRATION.”

However, in the final paragraph of that proposed order, PCM’s counsel wrote, “Accordingly, the Motion to Compel and PCM’s ex parte request to hear its Motion to Compel, whether on shortened notice or regular notice, are DENIED.”

Under these circumstances, when a court denies a motion before hearing it, that denial may be appealed immediately.

PCM’s counsel then appealed its own order. The counsel themselves had asserted that a motion that the court had not heard was denied. PCM’s counsel then noticed the court to stay the trial pending its appeal of its own proposed order.

Upon questioning by the Appeals Court, E. Sean McLoughlin and William A. Meyers claimed to have submitted the proposed order under California Rules of Court, rule 3.1312.

California Rules of Court, rule 3.1312(a) states in pertinent part “…the party prevailing on any motion must, within five days of the ruling, serve…a proposed order for approval as conforming to the court’s order.”

The Appeals court also asked counsel why they had included the statement that the motion itself was denied. Counsels stated that they believed that it had been denied.

The Appeals court did not find counsels E. Sean McLoughlin and William A. Meyers statements to be credible.

Based on this fact, and other findings that E. Sean McLoughlin and William A. Meyers acted in bad faith, the California Court of Appeals sanctioned the attorneys $8,500, plus Diaz’ costs.

Additionally, E. Sean McLoughlin and William A. Meyers must report the issuance of the sanctions to the California Bar pursuant to the Business & Profession Code, §§ 6086.7, subdivision (a), 6068, subdivision (o)(3).

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