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Civil Procedure

9th Cir. Nixes $63K Sanction, Says Attorney Who Admitted Error and Apologized Actually Did No Wrong

Posted Oct 28, 2011 4:45 PM CDT
By Martha Neil

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You can’t have chicken parmesan without chicken. And you can't have a sanction for violating a motion in limine in bad faith unless there's an actual violation, a federal appeals court ruled yesterday as it nixed a $63,687.50 fine imposed on a deputy Los Angeles city attorney.

Richard Arias admitted violating the court's evidentiary order in a civil trial over a fatal police shooting and apologized. But in fact the attorney did nothing wrong, wrote Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals in the majority's opinion. Although apparently barred by the trial court from saying that the suspect was armed at the time of the shooting, Arias was within permissible bounds when he speculated the officer might have been thinking the suspect had just shot someone else a short time earlier, recounts the Metropolitan News-Enterprise.

That didn't end the analysis, though, because the "foolish and unhelpful" admission by Arias meant the violation had to be deemed to be admitted on appeal, even though it didn't occur. However, the lack of a factual basis for the violation meant that the bad faith that had to exist to support the sanction was absent. Hence, without bad faith the sanction was inappropriate. Only if the violation had in fact occurred could bad faith be inferred from the surrounding facts and circumstances.

As the chief judge put it, “You can’t have chicken parmesan without chicken; you can’t have an amazing technicolor dreamcoat without a coat; you can’t have ham and eggs if you’re short of ham or eggs,” and likewise “you can’t have a bad-faith violation without a violation.”

The city had appealed contending that the transgression was inadvertent, fleeting and harmless.

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