Alliance Bank v. Murray

In Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, the trial court, in ordering the defendant to appear for a deposition, ruled that the plaintiff could seek terminating sanctions upon an ex parte application and two days written notice if the appellant did not comply with the order. (Alliance Bank, supra, 161 Cal.App.3d at pp. 3-4.) When the defendant did not attend the deposition, the plaintiff applied ex parte for sanctions and gave the requisite notice. (Id. at pp. 5-6.) After the defendant appeared (through his counsel) at the hearing on the application and opposed it on the merits, the trial court issued terminating sanctions against him by striking his answer and entering a default. (Id. at pp. 4-5, 7-9.) The appellate court held that the trial court's initial ruling -- which permitted the plaintiff to seek sanctions ex parte -- was "invalid for being in excess of the court's jurisdiction," but nonetheless affirmed the sanctions order. (Alliance Bank, supra, 161 Cal.App.3d at p. 6.) The court concluded that the defendant, by appearing at the hearing on the ex parte application and opposing it on the merits, had forfeited any contention regarding defective notice, and impliedly consented to "any exercise of jurisdiction in excess of the court's authority." (Id. at pp. 7-9.) In so concluding, the court distinguished an earlier case, Duggan, supra, 98 Cal.App.3d 735, in which the appellate court reversed terminating sanctions obtained ex parte as "invalid" and in excess of the trial court's discretion because the sanctioned party had been given no opportunity to oppose them (id. at pp. 738-739). (Alliance Bank, supra, 161 Cal.App.3d at p. 9.)