SONG v. SMATKO (1984)

Defendant Andrew J. Smatko appeals from a judgment entered after trial by jury in which plaintiff Ok-Jae Song was awarded $205,000 in damages because of medical negligence by defendant.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, age 47, visited defendant, a physician, in March 1978, complaining of pain and a small lump in her right breast.   Defendant performed a physical examination and had plaintiff undergo a mammogram.   Defendant told plaintiff the mammogram did not show any sign of cancer and gave plaintiff a prescription for pain, which was refilled in December, 1978, without an office visit.   From March, 1978, to early 1979, the lump grew larger.   In February 1979, plaintiff developed constant pain in her right breast.   Plaintiff returned to defendant on March 12, 1979, and was told to see a surgeon.   It was determined that her breast was cancerous and would have to be removed.   She underwent a mastectomy on March 21, 1979.   It was discovered that the cancer had metastasized to her bones.   By June 1982, cancer had spread to other parts of her body.

Plaintiff filed a complaint for damages for medical negligence on November 16, 1979.   Following trial by jury a judgment for plaintiff for $205,000 was entered on August 6, 1982.   Notice of entry of judgment was served by mail on defendant by plaintiff on August 11, 1982, and proof of that service of notice was filed with the court by the plaintiff on August 12, 1982.

On August 31, 1982, defendant served by mail and filed a notice of intention to move for a new trial under Code of Civil Procedure section 657.¹  On September 10, 1982, defendant filed his motion for a new trial and, in the alternative, requested that the court order that money damages for future damages be paid by periodic payments.   The motion and request were argued November 8, 1982 and denied on November 9, 1982.   In the minute order denying the request for periodic payments, the court stated that if it “․ were required by law to provide for periodic payments, the periodic payments would, under the evidence of this case, be ordered paid quarterly over the one year period commencing with the date of verdict.”

On December 8, 1982, defendant filed a notice of appeal “․ from the Judgment entered in this action ․ on August 6, 1982.”

On May 16, 1983, plaintiff filed a motion to dismiss the appeal for lack of diligent prosecution, which we denied on June 23, 1983.   The record on appeal was filed with us on December 28, 1983, and on that date defendant was notified by us that his opening brief was due 30 days from that date.   After obtaining a 60-day extension of time, defendant filed his opening brief on March 28, 1984.

In his opening brief defendant contends that (1) the trial court erred in not ordering that future damages be paid by periodic payments and (2) plaintiff's counsel uttered remarks during final argument which constituted misconduct requiring reversal because the case was closely balanced.   He did not address the timeliness of the notice of appeal except to assert that “A timely appeal was filed on December 8, 1982.”

On June 5, 1984, plaintiff filed a motion to dismiss the appeal for lack of jurisdiction due to the fact the notice of appeal was not timely filed, together with an application for an extension of time to file plaintiff's brief until three weeks after the court acted on the motion to dismiss.   This motion was denied by us, with the proviso that plaintiff had the right to brief the issue on appeal.

Plaintiff filed her brief on August 14, 1984.   Plaintiff contends that (1) this court is without jurisdiction to hear the appeal because the notice of appeal was not timely filed, (2) the issue of periodic payments for future damages is moot because the one-year period over which the court would have ordered them paid expired long before appellant filed his opening brief, (3) there was no misconduct by plaintiff's counsel, and (4) sanctions should be assessed against defendant and his attorneys because the appeal was taken solely for the purpose of delay and was also frivolous.   On the same date plaintiff made a motion for the immediate setting of oral argument, which we granted.

DISCUSSION

We have ordered that the entire superior court file be transmitted to us as part of the record on appeal.  (Cal.Rules of Court, rule 12(a).) ²

The Purported Appeal Must Be Dismissed For Lack Of Jurisdiction

Jurisdiction is the threshold issue in all judicial proceedings.

 While a tribunal always has jurisdiction to determine whether it has or does not have jurisdiction (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302, 109 P.2d 942), “[l]ack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter ․”  (Id., 17 Cal.2d at p. 288, 109 P.2d 942.)

 Plaintiff correctly contends that this court lacks jurisdiction to hear and determine this appeal because the notice of appeal was not timely filed.   The right to appeal is statutory.   If the statutory procedures for taking an appeal are not complied with, the appellate court has no jurisdiction to consider the appeal.  (See 6 Witkin, Cal.Procedure (2d ed. 1971), Appeal §§ 2, 4 at pp. 4019–4022, and authorities cited there.)

 It is a fundamental precept that the timely filing of an appropriate notice of appeal is an absolute prerequisite to the exercise of appellate jurisdiction (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670, 125 Cal.Rptr. 757, 542 P.2d 1349) and that failure to file a timely notice of appeal is fatal to a party's appeal.  (Id., 15 Cal.3d at p. 674, 125 Cal.Rptr. 757, 542 P.2d 1349.)

“If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made.  [Citations.]”.  (Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423.)

Our Supreme Court has recently ruled:

“ ‘[i]n the absence of statutory authorization, neither the trial nor appellate courts may extend ․ the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations].  Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver.  [Citations.]  If it appears that [an] appeal was not taken within the [statutory time], the court has no discretion but [to] dismiss the appeal ․’  (Estate of Hanley [1943] 23 Cal.2d at p. 123 [142 P.2d 423] [italics added];  accord Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 674 [125 Cal.Rptr. 757, 542 P.2d 1349].)”  (Pressler v. Donald L. Bren Co., (1982) 32 Cal.3d 831, 835, 187 Cal.Rptr. 449, 654 P.2d 219.)

The time for filing notice of appeal is prescribed by rule 2, which provides in pertinent part:

(a) [Normal time]  Except as otherwise specifically provided by law, a notice of appeal shall be filed ․ within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, ․ unless the time is extended as provided in rule 3.”

In the case at bench, the date of service of written notice of entry of judgment by the plaintiff on the defendant was August 11, 1982.   Thus the normal time for filing notice of appeal in this case expired 60 days later, on October 10, 1982.   In fact, defendant did not file his notice of appeal until December 8, 1982, which was 119 days after service of written notice of entry of judgment, and 59 days later than the time allowed unless the normal time was “․ extended as provided in rule 3.”   Thus defendant's notice of appeal was filed grossly late unless saved by the time extension provided by rule 3.

Rule 3 provides, in pertinent part:

“(a) [New trial proceeding]  When a valid notice of intention to move for a new trial is served and filed by any party, and the motion is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after either entry of the order denying the motion or denial thereof by operation of law, ․”

In the case at bench defendant seeks to predicate his justification for not timely filing his notice of appeal on the fact that on August 31, 1982, he did file a notice of intention to move for a new trial;  thus he claims, he obtained the extension provided by rule 3.

The filing and service of notice of intention to move for a new trial are governed by section 659 which provides in pertinent part:

“The party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, ․ either

“1. Before the entry of judgment;  or

“2. Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, ․ whichever is earliest; ․”

 As we have seen, written notice of entry of judgment was served by plaintiff upon defendant by mail (§ 1012) on August 11, 1982, and proof of that service was filed with the court on August 12, 1982.   Defendant's notice of intention to move for a new trial was not filed until August 31, 1982, which was 20 days after the triggering service by plaintiff (Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 185 Cal.Rptr. 208), and 5 days later than the 15-day limitation.   Therefore it was not timely filed, and was not a “․ valid notice of intention to move for a new trial ․” within the meaning of rule 3, and did not invoke the extension of time which might have been provided by rule 3.³  (See also Radford v. Crown City Lumber & Mill Co. (1958) 165 Cal.App.2d 18, 331 P.2d 438.)

Even if defendant's notice of intention to move for a new trial had been timely filed, and were valid, and had invoked the extension of time provided by rule 3, his notice of appeal would not have been timely filed and we nonetheless would be without jurisdiction to hear and consider this appeal on its merits.

Rule 3 provides that when a valid notice of intention to move for new trial is served and filed, and the motion is denied, the time for filing the notice of appeal is extended “․ until 30 days after either entry of the order denying the motion or denial thereof by operation of law, ․”  (Emphasis added.)

Section 660 which, inter alia, provides for the automatic denial of a motion for new trial, provides, in pertinent part:

“[T]he power of the court to rule on a motion for a new trial shall expire ․ 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, ․ or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial.”

 Here, plaintiff served written notice of the entry of the judgment upon defendant on August 11, 1982.   The power of the court to rule on the motion for new trial (if it had been validly made) expired 60 days later, on October 10, 1982.   Thus, if rule 3 had applied, the time for filing notice of appeal would have been extended until 30 days after the motion was denied by operation of law, that is, until November 9, 1982.   Defendant did not file his notice of appeal until December 8, 1982, a month after his time would have expired under the extension of rule 3, if that had been available to him.⁴

 We conclude that, in the case at bench, the 60-day time for filing a notice of appeal prescribed by rule 2(a) was not extended by the provisions of rule 3 and that defendant had only 60 days from the date of service of written notice of entry of judgment, until October 10, 1982, to file his notice of appeal.   He did not file that notice until December 8, 1982, the 119th day, and his notice was not timely filed.

In view of our decision that we must dismiss this appeal for lack of jurisdiction, because notice of appeal was not timely filed, we do not reach the other contentions and arguments of defendant and appellant.

Sanctions

 Plaintiff and respondent has asked that this court impose sanctions in the form of penalties and damages upon defendant and defendant's counsel because this appeal was taken solely for the purpose of delay and was also frivolous.   In light of the holding in Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, at page 302, 109 P.2d 942, and of this court's inherent power to control its own procedures, prevent the abuse of its process, and to do all those things “․ requisite to its proper functioning․”  (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147, 74 Cal.Rptr. 285, 449 P.2d 221;  and see 1 Witkin, Cal.Procedure (2d ed. 1970), Courts, §§ 116–118, pp. 385–388 and authorities cited there), we conclude we may properly consider imposition of sanctions in this case.

Sanctions, in the form of damages and penalties, where appeals are frivolous or taken solely for delay, are authorized and governed by section 907 and by rule 26(a).

Section 907 provides:

“Frivolous appeal;  appeal for delay;  damages

“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”

Rule 26(a) provides, in pertinent part:

“Where the appeal is frivolous or taken solely for the purpose of delay or where any party ․ has been guilty of any other unreasonable infraction of the rules governing appeals, the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.”

 Thus sanctions may be imposed where an appeal is frivolous or taken solely for delay.  “[N]o determination of frivolousness is necessary when it is found that the [sole] purpose of appeal was delay.   Delay, as a motive, is specifically addressed and made sanctionable by statute.”  (Emphasis in original.)  (See Hersch v. Citizens Savings & Loan Assn. (1983) 146 Cal.App.3d 1002, 1012, 194 Cal.Rptr. 628.)

The meaning of “frivolous” requires further definition.   Webster's New Collegiate Dictionary (1979) defines frivolous as “1:  of little weight or importance 2 a:  lacking in seriousness: ․”  (P. 457.)   The American Heritage Dictionary (2d ed. 1982) defines frivolous as “1.   Unworthy of serious attention;  trivial․”  (P. 535.)

Although the term “frivolous” does not lend itself to easy definition, our Supreme Court has established guidelines by pointing out that California cases on the subject apply two categories of standards:  subjective and objective.

“The subjective standard looks to the motives of the appellant and his ․ counsel․  [T]he courts have frequently looked at the ‘good faith’ of appellant and have penalized appellants where the only purpose of the appeal was delay․  [¶] The objective standard looks at the merits of the appeal from a reasonable person's perspective.  ‘The problem involved in determining whether the appeal is or is not frivolous is ․ whether any reasonable person would agree that [it] is totally and completely devoid of merit, and, therefore, frivolous.’  [Citations.]  ․  [¶] The two standards are often used together, with one providing evidence of the other.   Thus, the total lack of merit of an appeal is viewed as evidence that the appellant must have intended it only for delay.  [Citations.]  [¶] ․  An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process.   Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts.”

(In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649–650, 183 Cal.Rptr. 508, 646 P.2d 179.)

The court then pronounced a rule to be applied in determining whether an appeal is frivolous, saying:

“Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.  [Citation.]”  (Id., 31 Cal.3d at p. 650, 183 Cal.Rptr. 508, 646 P.2d 179.)

Plaintiff urges in her brief that defendant's failure to timely file his notice of appeal, and his other procedures and tactics during the course of the appeal, are but parts of a greater pattern of deliberate delay.

With the foregoing precepts and contention in mind, we will review some of the procedures, actions and contentions of defendant and his counsel during the post judgment period and the pendency of this purported appeal.

Defendant Knew, Or Should Have Known, That His Notice Of Intention To Move For New Trial Was Not Timely Filed

 Lawyers are expected to know or discover the rules of the courts in which they practice, and the laws and rules governing the procedures which they employ, where the laws and rules are clear or readily ascertainable by standard research techniques.  (Smith v. Lewis (1975) 13 Cal.3d 349, 358, 118 Cal.Rptr. 621, 530 P.2d 589;  1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, § 151, pp. 162–163.)   The time for filing a notice of intention to move for new trial is established by law, is jurisdictional, and the courts have no power to relieve a party of his failure to file the notice in time.   (§ 659;  Radford v. Crown City Lumber & Mills Co., supra, 165 Cal.App.2d 18, 20, 331 P.2d 438.)

At the outset we note that defendant was put on notice that his notice of intention to move for a new trial had not been timely filed, as early as September 24, 1982, even if he had not known the controlling law before then.   The point of untimeliness was raised and the controlling law was cited and quoted in plaintiff's opposition to the motion for new trial, which was served upon defendant and filed with the court on September 24, 1982.   In defendant's response to plaintiff's opposition, served and filed in October, 1982, defendant's counsel states, in his supporting declaration, that the notice of entry of judgment had been received in his office on or about August 12, 1982, but that he had not personally discovered it until he returned from a vacation on August 30, 1982.   In the same declaration he continues by stating, “In the event the Court should rule that the Notice of Intent to Move for New Trial was not timely, ․”.  It is clear that when defendant received the opposition to the motion for new trial, on September 24, long before the motion for new trial was ever argued, defendant's attention was directed to the controlling law, he knew that the timeliness of his notice of intention had been challenged and he should have recognized that it was not valid, yet he persisted in the motion.   At that time, if not earlier, he was on notice of the need to promptly file a notice of appeal since his time to do so would expire on October 10, 1982.   The validity of his notice of appeal would depend entirely on the date of service of written notice of entry of judgment, which he conceded had been received by him on August 12.   Yet he did not file a notice of appeal until December 8, 1982.

Defendant Knew, Or Should Have Known, That His Notice Of Appeal Was Not Timely Filed

For the reasons set forth in the preceding section, relating to the motion for new trial, it is beyond cavil that defendant knew or should have known that his notice of appeal was not timely filed.   Yet he did file such an untimely notice, and in doing so he delayed until December 8, 1982, the 29th day following the trial court's futile order denying the fatally flawed motion for new trial which, if it had been valid, would have been denied by operation of law on October 10.

Periodic Payments Of Future Damages

 The subject of periodic payments of future damages is a false issue in this appeal.   No timely request for such payments was ever made, and no appeal was taken from the order denying defendant's invalid motion to modify the judgment to provide for them.   If that order had been appealable it would have been separately appealable under section 904.1, subdivision (b) which provides for appeals from orders made after judgment.   Defendant appealed only from the judgment entered August 6, 1982.  “An appealable order from which no appeal was taken cannot be reviewed on an appeal from the final judgment.  (C.C.P. 906; ․)”  (Emphasis in original.)  (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 34, p. 4049.)   The order denying the motion to modify the judgment to provide for periodic payments is not before us.   If it were, it would be without merit.   Yet defendant has made that subject his major effort in this purported appeal.

Subdivision (a) of section 667.7 provides, in part:

“In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exeeds fifty thousand dollars ($50,000) in future damages.”  (Emphasis added.)

 The section clearly requires a party desiring periodic payments of future damages to request the same prior to entry of judgment.   Defendant did not make such a request, and thereby waived his right to periodic payments.   (Civ.Code, § 3513;  cf. American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 365, 204 Cal.Rptr. 671, 683 P.2d 670.)

Defendant mentioned periodic payments for the first time in his motion for new trial which was served and filed on September 10, 1982,—35 days after judgment was entered.   That motion was not argued until November 8, 1982,—94 days after entry of judgment.   In that motion for a new trial defendant requested “․ in the alternative, in the event of denial of this Motion by the Court [this defendant] requests that the Court enter judgment, ordering that future damages awarded be paid by periodic payments, pursuant to ․” section 667.7, and “․ that the Court modify the judgment to provide for periodic payments ․”.

 The grounds upon which a motion for new trial may be made are set forth in section 657.   Those grounds do not include a party's failure to timely request periodic payments of future damages.   Nor is the court empowered to grant such relief as an alternative to granting a motion for a new trial.   The court could not have modified the judgment as defendant requested.   The judgment read as the court intended it to read;  defendant does not contend that it contains error, clerical or judicial.   While a court can always correct clerical errors in its judgments, judicial errors cannot be corrected by amendment.  (§ 473;  In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729.)

 The only procedure available to the defendant for the relief which he requested is a motion pursuant to section 473 for relief from a judgment taken against a party through his mistake, inadvertence, surprise or excusable neglect.   However, defendant made no such motion;  nor would the showing offered by defendant support a motion under section 473.

Delay In Perfecting Appeal

Defendant's not-timely notice of appeal was filed on December 8, 1982, and on December 17, 1982, he filed his notice designating clerk's and reporter's transcripts on appeal.

On May 16, 1983, plaintiff filed a motion to dismiss the appeal as neither reasonably nor diligently perfected, in violation of rules 4 and 10.⁵  Defendant filed opposition to that motion on May 23, 1983.   The factual information set forth in the following paragraph is taken from uncontroverted statements in the declarations filed in support of plaintiff's motion to dismiss and defendant's opposition to that motion:

By letter dated January 17, 1983, the reporter directly notified defendant of the estimated cost of preparing the reporter's transcript as designated.   Having had no response to her letter the reporter, on February 4, telephoned defendant and left a message in his absence.   On February 7 defendant returned her call, stating that he had not been authorized by his insurance company principal to pay the deposit for the transcript.   On March 15, 1983, defendant caused a check for the amount of the estimated cost of the transcript to be delivered to the court reporter.   Thus, those costs were deposited 47 days late.

On June 1, 1983, defendant also filed a “Motion To Be Relieved Of Default For Late Payment Of Court Reporter's Estimated Costs”, which we granted by order dated June 22, 1983 and, on June 23, we denied the motion to dismiss.   The record on appeal was filed December 28, 1983.

Delays In The Briefing Schedule

 On December 28, 1983, defendant was notified that the opening brief was due 30 days from that date.  (Rule 16(a).)   On January 25, 1984, defendant filed, and we granted, ex parte, an application for a 60-day extension of time, to March 28, 1984, in which to file his opening brief in order to accommodate the needs of appellate counsel who was associated of record on January 31, 1984.   It is the duty of later substituted attorneys to assess a case for merit.  (See People v. Beverly Bail Bonds (1982) 134 Cal.App.3d 906, 914, 185 Cal.Rptr. 36.)

Defendant's opening brief was filed on the last day of the extended time, March 28, 1984.   The lack of merit of defendant's contentions, and the lack of effort apparent from the presentation in the brief, compel the inference that the appeal is frivolous and was taken solely for the purposes of delay and to harass the plaintiff.  (Cf. People v. Beverly Bail Bonds, supra, 134 Cal.App.3d 906, 913–914, 185 Cal.Rptr. 36.)   The brief totalled 16 pages, the 16th page being a 2-line pro-forma conclusion.   The brief contained a 4-page “statement of facts”, 31/212 pages of which had nothing to do with defendant's contentions on appeal;  a 1-page “statement of the case”, 61/212 pages of argument on the subject of periodic payments which is not before us in this purported appeal, just over 3 pages of argument on the issue of alleged misconduct of counsel, which we have examined and found to be without merit and which defendant had not even mentioned in his untimely motion for a new trial;  and the 2-line conclusion on page 16.   Defendant's one and only mention of the filing of a notice of appeal was his naked representation, “A timely appeal was filed on December 8, 1982.” which is the last sentence in his “statement of the case.”

On April 20, 1984, plaintiff filed an application for a 30-day extension of time, until May 27, to file respondent's brief, in order to accommodate the needs of appellate counsel whom she planned to associate.   We granted the application.   Appellate counsel for plaintiff was associated of record on May 22, 1984, and we extended the time for filing her brief to June 17, 1984.

On June 5, 1984, plaintiff filed a motion to dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed, together with an application for extension of time to file her “respondent's brief” until after the motion to dismiss on jurisdictional grounds would be ruled upon.   On June 25, 1984 defendant filed opposition to the motion to dismiss for lack of jurisdiction urging that the ruling be deferred for consideration together with the merits of the case.   On June 28, plaintiff filed a closing memorandum of points and authorities and on July 2, defendant requested a further extension of time to file a response, which we denied.   The motion to dismiss was denied on July 24, 1984.

Plaintiff/respondent filed her brief on August 14, 1984, together with a motion to set the matter for oral argument immediately and opposition to any request by defendant for an extension of time to file a reply brief, both the motion and the opposition being based upon plaintiff's terminal illness and very short life expectancy.   Defendant replied and opposed plaintiff's request for early setting for argument and plaintiff's opposition to any extension of time for filing his reply brief.   We granted the motion for early setting and later granted defendant's application, filed September 7, 1984, to extend his time to file his reply brief until September 24, although that application was itself filed 3 days after his time to reply had expired.   Defendant finally filed his reply brief 7 days after the extended time, on October 1, 1984, after obtaining permission for the late filing.   Again defendant argued the subject of periodic payments, which is not before us, and spent many pages again reviewing the evidence even though the sufficiency of the evidence is concededly not an issue in this purported appeal.   As to the periodic payments, defendant incredibly asks the rhetorical question, “․ why [did plaintiff] refuse the periodic payment of future damages over the one year period defense counsel was agreeable to at the conclusion of the trial, ․ a time [which] would have lapsed by now if not resisted by [plaintiff's] counsel and the court?”.   That question is grossly specious.   The trial had been concluded and judgment entered on August 6, 1982.   The colloquy to which defendant refers in the above question took place 94 days later, on November 8, 1982, at the conclusion of argument on the motion for new trial and request for modification of judgment.   The matter of modifying the judgment to provide for periodic payments, which had not been requested before entry of judgment, was beyond the jurisdiction of the court.   Further, if defendant had wished to make periodic payments, as the question implies, he could have voluntarily made quarterly payments on account of the judgment and the entire judgment would have been paid by May 6, 1983 and the appeal could have been dismissed nearly eight months before the record was filed in the case and nearly eleven months before defendant filed his opening brief.   Clearly, that was not his intention or desire.

This Is An Appropriate Case For Sanctions

Our Supreme Court has stated that the imposition of penalties and sanctions for taking and prosecuting frivolous appeals “․ should be used most sparingly to deter only the most egregious conduct.”  (In re Marriage of Flaherty, supra, 31 Cal.3d 637, 651, 183 Cal.Rptr. 508, 646 P.2d 179.)   We have studied and evaluated the entire record in this purported appeal and find that it is a most egregious case.

The record reflects that at all times defendant has known that plaintiff is suffering from a far-advanced terminal case of metastasized cancer and has only a minimal life expectancy.   Defendant, at all times, has known that unless plaintiff can soon receive the benefit of her jury verdict she will never live to receive it.   Defendant's taking, and persistence in prosecuting, this purported appeal has deprived plaintiff of the only chance which she would have had to use her funds, awarded by the jury, to ease her living circumstances and to lessen the pain and anxiety of the final months of her life.

We have catalogued the many delaying actions taken by defendant in this purported appeal, including:  the untimely notice of appeal, the failure to timely deposit the costs of the reporter's transcript, the extensions of time to file defendant's briefs and his failure to comply with the time requirements of his reply brief, his opposition to the motion to dismiss and persistence in the appeal when the applicable law and controlling authorities were forcibly and clearly brought to his attention and any reasonable attorney would agree that the appeal was totally and completely without merit, and his opposition to the motion for early setting for oral argument.   As the court stated in Hersch v. Citizens Savings & Loan Assn., supra, 146 Cal.App.3d 1002, 1012, 194 Cal.Rptr. 628, “Defendant's motive[s] in this case [are] as easy to understand as [they are] difficult to hide.”

Defendant's motives in this purported appeal were delay and harassment.   For more than two years defendant has had the use of $205,000, plus costs, belonging to plaintiff, and has had the benefit of the use of that money in the financial markets where, it is common knowledge, those funds would earn substantially more than the 7%, and later 10%, payable by law on judgments.

Plaintiff also argued in her brief that defendant's delay was also in the hope that plaintiff would accept a discounted settlement, that she would settle the case for less than its value in order to receive the money before she died.   Defendant, in his reply brief, did not controvert that argument, nor did defendant's counsel deny it when the subject was raised during oral argument.

 We find that this appeal, and the persistence in prosecuting it, demonstrate that it was taken for improper motives,—to harass the plaintiff, to delay the effect of the judgment to the defendant's financial advantage, and as a bludgeon in an effort to obtain a discounted settlement.   Further, we find that this appeal is frivolous, it “․ indisputably has no merit—[that] any reasonable attorney would agree that the appeal is totally and completely without merit.”  (In re Marriage of Flaherty, supra, 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)

 All of the contentions of defendant throughout this entire appeal are refuted by clear and obvious controlling authority.   The record of this case reveals a shocking ignorance of, and conscious disregard for, the statutes and rules governing post-judgment remedies available to the defendant.   An attorney is charged with knowledge readily available to him through the simple process of looking up the law.   Given the plaintiff's now almost non-existent life expectancy, defendant's conduct is unconscionable, and sanctions are appropriate.

Due Process

Our Supreme Court has ruled that the basic protections of due process must be followed before sanctions can be imposed for prosecuting a frivolous appeal.   (In Re Marriage of Flaherty, supra, 31 Cal.3d 637, 652, 183 Cal.Rptr. 508, 646 P.2d 179.)

“In proper cases, the imposition of penalties for prosecuting a frivolous appeal may be fair and may serve the useful purpose of deterring similar conduct.   However, such sanctions should be imposed rarely and only if the mandates of procedural due process are obeyed.  [¶] ․  [T]he rudiments of fair play include notice, an opportunity to respond, and a hearing․  Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the attorney an opportunity to respond to the charge, and holding a hearing.   Further, when imposing sanctions, the court should provide the attorney with a written statement of the reasons for the penalty.”  (Id., 31 Cal.3d at p. 654, 183 Cal.Rptr. 508, 646 P.2d 179.)

 In the case at bench, the mandates of due process have been scrupulously observed.   Defendant was given fair warning that sanctions were being requested by plaintiff in that plaintiff devoted 10 pages of her “respondent's brief” to her demand for sanctions.   Defendant had an opportunity to respond to the demand for sanctions, and did so respond in his reply brief.

In addition all counsel of record were notified by the court prior to oral argument that they should be prepared to respond to questions and to argue their positions as to plaintiff's contention that sanctions in the form of penalties and damages should be imposed on defendant and defendant's counsel because this appeal was taken solely for the purpose of delay, and was also frivolous.   At oral argument defendant availed himself of the opportunity to be heard on the question.

This opinion constitutes our written statement of the reasons for the penalty imposed.

Amount Of Damages And Penalties

At our request counsel for plaintiff prepared, served and filed with us verified statements of the costs, expenses and attorneys fees incurred and accrued by them after the date of entry of judgment and until the date of oral argument.   Subtracting from those statements the items which will be recoverable by plaintiff as parts of her costs on appeal we have determined that plaintiff has incurred and accrued $12,638.00 in otherwise non-recoverable costs, expenses and attorneys fees since the entry of judgment.

We also find that, on the date of the filing of this opinion, $41,000.00 is a just amount, rationally related to the amount of the judgment, the circumstances of the parties and the purposes of section 907 and rule 26(a).

DECISION

The appeal is dismissed for lack of jurisdiction.

We add to plaintiff's costs on appeal, damages in the sum of $41,000.00, together with attorneys fees and expenses in the amount of $12,368.00, making a total of $53,368.00 in damages which are added to the costs on appeal.

Plaintiff is also awarded her costs on appeal as regularly provided by law and the rules of this court.

FOOTNOTES

1.   References to sections are to the Code of Civil Procedure unless otherwise specified.

2.   References to “rules” are to California Rules of Court unless otherwise specified.

3.   Contrary to another assertion by defendant, the 5-day extension of time provided by section 1013 does not apply.   That section specifically provides:  “․ such extension shall not apply to extend the time for filing notice of intention to move for new trial. ․”  (Emphasis added.)  (See also Code Civ.Proc., § 659;  Huber Tool Works, Inc. v. Marchant Calculators, Inc. (1962) 204 Cal.App.2d 822, 23 Cal.Rptr. 10.)

4.   We note that the trial court ruled on the motion for new trial after it would have been denied by operation of law if validly made.   The court's ruling had no effect and did not extend defendant's time for filing his notice of appeal.  (See Mellin v. Trousdell (1949) 33 Cal.2d 858, 860, 205 P.2d 1036.)

5.   Rule 4(c) provides that the notice to prepare transcript shall not be effective for any purpose unless, within 10 days after being notified directly by the reporter, the appellant shall deposit with the clerk the amount of the estimated cost of preparing the transcript.Rule 10(c) provides that if the appellant fails to procure the filing of the record within the time allowed the appeal may be dismissed on motion of the respondent or on the court's own motion.

DANIELSON, Associate Justice.

KLEIN, P.J., and ARABIAN, J., concur. Hearing denied;  REYNOSO, J., dissenting.