Salgado v. Fred Palla Farms CA5

Filed 11/6/26 Salgado v. Fred Palla Farms CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT BONIFACIO SALGADO, F090398 Plaintiff and Appellant, (Super. Ct. No. BCV-22-103478) v. FRED PALLA FARMS, INC., OPINION Defendant and Respondent. APPEAL from a post-judgment order of the Superior Court of Kern County. T. Mark Smith, Judge. Twin-Oak Attorneys, Kingsley Opia-Enwemuche, for Plaintiff and Appellant. Belden Blaine Raytis, T. Scott Belden and Chelsea K. Lewis, for Defendant and Respondent. -ooOoo- Plaintiff and appellant Bonifacio Salgado brought an employment action against defendant and respondent Fred Palla Farms, Inc. (Palla Farms). 1 During the discovery 1 Fred Palla Farms notes in its brief that its correct name is Alfred Palla Farms. phase, Palla Farms filed multiple motions to compel discovery responses from Salgado. Eventually, Palla Farms filed a motion for terminating sanctions based on Salgado’s discovery violations. The trial court granted the motion for terminating sanctions, dismissed the action with prejudice, and entered a judgment of dismissal. Salgado subsequently filed, under Code of Civil Procedure section 473, subdivision (b) (hereafter referred to as section 473(b) or § 473(b)), a motion for relief from terminating sanctions Salgado sought relief from the dismissal entered by the trial court. The court denied Salgado’s motion for relief from terminating sanctions on grounds it was untimely under section 473(b). Salgado appealed. We affirm. After this appeal was fully briefed, Palla Farms filed a motion for appellate sanctions against Salgado and his attorney, on grounds that the appeal is frivolous and that Salgado’s reply brief cites to fabricated legal authority. We agree that sanctions are appropriate, grant the motion, and impose sanctions in the amount of $5,000 on Salgado’s counsel. FACTUAL AND PROCEDURAL BACKGROUND Complaint and Discovery Process On July 10, 2023, Salgado filed a first amended complaint (FAC) against Palla Farms. The FAC alleged that Salgado was employed by Palla Farms “for over 20 years,” and that his employment was terminated on November 14, 2022. The FAC asserted multiple employment-related claims against Palla Farms, 2 including wrongful termination as well as harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA). 3 2 The merits of Salgado’s claims are not at issue in this appeal. 3 FEHA is codified as Government Code section 12900, et seq. 2.  During the discovery process, Palla Farms filed multiple motions to compel discovery responses from Salgado. On January 31, 2024, 4 the trial court granted three motions to compel filed by Palla Farms; the motions were unopposed. In addition, on May 28, the court granted three motions to compel further discovery responses filed by Palla Farms; these motions also were unopposed. The court ordered Salgado and his counsel to pay monetary sanctions to Palla Farms, as well. Palla Farms’s Motion for Terminating Sanctions; Entry of Judgment of Dismissal On July 24, Palla Farms filed a motion for terminating sanctions. Palla Farms noted in its motion that Salgado had not provided further discovery responses in violation of the trial court’s May 28 order. Palla Farms also noted that Salgado had failed to pay monetary sanctions in the amount of $1,930, “in violation of [the] [c]ourt’s orders to do so.” Palla Farms asserted that “[Salgado] and his counsel [had] repeatedly ignored their statutory obligations to participate in the discovery process[.]” Palla Farms requested the court “to impose terminating sanctions” for Salgado’s “continuing misuse and abuse of the discovery process and failure to obey the [c]ourt’s orders[.]” More specifically, Palla Farms requested “terminating sanctions … in the form of a dismissal with prejudice.” (Italics added.) Palla Farms also sought monetary sanctions in the amount of $2,560 for attorney fees and costs incurred in bringing the motion. While Palla Farms’s motion for terminating sanctions was pending, Salgado filed, on August 14, a request for dismissal without prejudice; the same day, the clerk entered the dismissal as requested. Palla Farms successfully moved to set aside the dismissal without prejudice obtained by Salgado, and on October 24, re-filed its motion for terminating sanctions. Salgado did not file an opposition to Palla Farms’s renewed motion for terminating sanctions. The trial court heard the motion on November 25; Salgado and his counsel did not appear at the hearing. 4 Subsequent references to dates are to dates in 2024 unless stated otherwise. 3.  On December 6, the trial court issued and filed a written order “granting [the] motion for terminating sanctions and entering judgment for [Palla Farms].” The court (1) granted Palla Farms’s motion for terminating sanctions; (2) struck Salgado’s FAC; (3) “entered” a “judgment on the merits in [Palla Farms’s] favor” in “the form of a dismissal with prejudice”; 5 and (4) “dismissed” the action “with prejudice.” Thereafter, on December 16, Palla Farms served on Salgado and filed, a notice of entry of judgment. The notice of entry of judgment specified that (1) “[a] judgment … was entered in this action on … December 6, 2024,” and (2) “[a] copy of the judgment … is attached to this notice.” A copy of the court’s December 6 order entering a judgment of dismissal with prejudice in favor of Palla Farms was attached to the notice of entry of judgment. Salgado did not take an appeal from the judgment of dismissal. Salgado’s Motion for Relief from Terminating Sanctions Salgado filed a motion for relief from terminating sanctions under section 473(b). Although Salgado’s section 473(b) motion did not specify the precise relief he sought, it appears he sought the reinstatement of his case upon complying with the court’s prior discovery-related orders. Salgado contends he “tendered” the motion “for filing on June 16, 2025” but it “was rejected on the basis of a clerical caption error.” The corrected motion was filed on June 18, 2025. The trial court heard Salgado’s section 473(b) motion on July 29, 2025, and denied it. The court’s post-hearing minute order simply notes, the “motion for relief from terminating sanctions is denied” (capitalization omitted), without delineating the grounds for denial. Further, the record on appeal does not contain a reporter’s transcript of the 5 The court’s order stated in this regard: “A judgment on the merits in [Palla Farms’s] favor is hereby entered in the form of a dismissal with prejudice.” (Italics added.) 4. hearing on the motion. 6 However, the parties agree the court denied Salgado’s motion for relief on the stated basis that, under section 473(b), the motion was untimely and the court lacked authority to adjudicate it. 7 Salgado appeals from the trial court’s post-judgment order denying his motion for relief from terminating sanctions. DISCUSSION I. Salgado’s Motion for Relief from Terminating Sanctions Was Untimely Salgado’s primary claim on appeal is that “the superior court erred as a matter of law by treating [his] section 473(b) motion as untimely.” (Capitalization omitted.) We disagree. A. Applicable Law Section 473(b) authorizes the trial court to grant a party relief from, inter alia, a judgment or dismissal entered in an action. The statute provides for both discretionary and mandatory relief. The discretionary provision of section 473(b) provides, in relevant part: “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the 6 An official court reporter pro tempore transcribed the motion proceeding. However, in his notice designating the record on appeal, Salgado indicated he would proceed on appeal without a record of the oral proceedings in the trial court. Accordingly, a reporter’s transcript of the hearing on his motion for relief from terminating sanctions is not part of the record on appeal. 7 For example, Salgado notes in his opening brief: “At the hearing on July 29, 2025, the superior court denied relief on the ground that the time to file the section 473(b) motion had elapsed.” Salgado also states in his opening brief: “[T]he superior court denied the motion as untimely because [it] concluded that the [m]otion was untimely.” In his reply brief, Salgado notes that the court denied his motion as untimely and indicated that it “therefore lacked jurisdiction to reach the merits.” Similarly, Palla Farms states in its brief: “The trial court denied Salgado’s motion for relief on the basis of lack of jurisdiction due to the untimeliness of the motion.” 5. party through the party’s mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (§ 473(b), italics added.) In short, “[u]nder the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616 (Leader).) “[T]he discretionary relief provision of [section 473(b)] only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ ” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-259.) The mandatory provision of section 473(b) provides, in relevant part: “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473(b), italics added.) In short, “[u]nder the mandatory relief provision … upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court 6. shall vacate any ‘resulting default judgment or dismissal entered.’ ” (Leader, supra, 89 Cal.App.4th at p. 616.) “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader, supra, 89 Cal.App.4th at p. 616 (first italics added).) The mandatory provision of section 473(b) is also known as the “ ‘attorney-fault’ ” provision because it is “ ‘confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.’ ” (Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 57 (Jimenez).) “[B]oth the mandatory and discretionary relief provisions of section 473(b) have maximum six-month limitations periods.” (Jimenez, supra, 97 Cal.App.5th at p. 58.) “[A] motion for relief under the discretionary relief provision of section 473(b) must be filed ‘within a reasonable time, in no case exceeding six months,’ after [a judgment, dismissal, order] or other proceeding was taken against the party or the party’s attorney.” (Jimenez at p. 53, quoting § 473(b) (second italics added).) Similarly, “[a] motion to vacate a default judgment [or dismissal] under the mandatory relief provision of section 473(b) is required to be filed ‘no more than six months’ after the default judgment [or judgment of dismissal] was entered.” (Jimenez at p. 53, quoting § 473(b) (second italics added).) “[T]he six-month limitations period of the mandatory and discretionary relief provisions of section 473(b) is either 182 days or six calendar months, whichever period is longer.” 8 (Jimenez, supra, 97 Cal.App.5th at pp. 54, 58 [“We conclude that the six- 8 Jimenez calculated the applicable 182-day period in that case by “computing the number of days in the time period … excluding the first day and including the last day, 7. month limitations periods of the mandatory and the discretionary relief provisions of section 473(b) mean the longer of six calendar months or 182 days.”].) “[A] court has no authority under [section 473(b)], to excuse a party’s noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 (Arambula); also see Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 [the “six-month time limitation [in section 473(b)] is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed”].) B. Standard of Review A trial court’s ruling on a discretionary motion for relief under section 473(b) is reviewed for abuse of discretion. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.) “To qualify for discretionary relief under section 473(b), the party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised that ground in a procedurally proper manner, within any applicable time limits.’ ” (Id. at p. 229.) The standard of review under the mandatory relief provision of section 473(b) is substantial evidence to the extent the applicability of mandatory relief turns on disputed facts, and independent review if the applicability does not turn on disputed facts and presents instead a pure question of law. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.) “The application of the statute of limitations to undisputed facts is a purely legal question subject to our de novo review.” (Jimenez, supra, 97 Cal.App.5th at p. 58 [applying independent review to the question of timeliness of section 473(b) motion].) which was not a holiday.” (Jimenez, supra, 97 Cal.App.5th at p. 58.) With respect to the six-calendar-month period, Jimenez indicated that where a default judgment was entered on March 9, 2021, a motion for mandatory relief from the default judgment filed on September 9, 2021 was timely. (Jimenez, at p. 54.) 8.  We may affirm on any basis applicable to the case, regardless of the grounds relied on by the trial court. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.) C. The Parties’ Positions In his opening brief, Salgado focuses on the mandatory relief provision of section 473(b). He states he “first submitted the section 473(b) motion on June 16, 2025[.]” He notes: “Here [Salgado] sought relief from the judgment entered on December 16, 2024 and the terminating dismissal embodied in that judgment.” He argues: “Because the judgment date controls the mandatory-relief request, [Salgado’s] motion was timely.” 9 Palla Farms responds that Salgado’s argument is based on a false premise. Palla Farms emphasizes that the underlying judgment of dismissal was entered on December 6, 2024, not December 16, 2024, as posited by Salgado. Palla Farms explains: “Here, six calendar months from December 6, 2024 was June 6, 2025. [Salgado] did not submit the motion until June 16, 2025, and the corrected motion was not file-stamped until June 18, 2025. [Citation.] [Salgado’s] motion therefore was not filed ‘no more than six months after entry of judgment.’ Nor was it filed within 182 days. December 6, 2024 to June 16, 9 Salgado further argues that “a judgment of dismissal entered as a terminating discovery sanction is a ‘dismissal’ for mandatory attorney-fault relief.” (Capitalization omitted.) He states: “In Rodriguez v. Brill (2015) 234 Cal.App.4th 715, [725] [(Rodriguez),] the Court of Appeal held that ‘mandatory relief under section 473(b) for “any … dismissal entered” encompasses dismissals entered as a terminating sanction for discovery abuse.’ ” He contends: “Under Rodriguez, [the dismissal in this mater] is a qualifying dismissal for mandatory attorney-fault relief.” Palla Farms does not dispute Salgado’s contention in this regard, noting: “[Palla Farms] recognizes [Rodriguez, supra, at p. 725] held that a dismissal entered as a terminating discovery sanction can qualify as a ‘dismissal’ for purposes of section 473(b)’s mandatory attorney fault provision. But Rodriguez does not eliminate the deadline, the proper-form requirement, or the causation requirement [in the mandatory provision].” For purposes of our analysis, we assume without deciding that the dismissal at issue here qualifies as a dismissal for the mandatory relief provision of section 473(b). 9. 2025 exceeds 182 days. Thus, even under Jimenez’s longer-of-two-periods approach, 10 [Salgado] was late.” (Italics added.) Palla Farms concludes that since Salgado’s motion was untimely, the trial court properly denied it. Salgado makes a few additional arguments. At one point in his brief, he confusingly contends, with respect to his section 473(b) motion, that the trial court’s “deadline calculation should … have begun with notice of entry of judgment[,] for [purposes of] mandatory relief[.]” (Italics added.) This argument contradicts his assertion elsewhere in his brief, that “if the motion sought mandatory attorney-fault relief, the six-month [limitations] period ran from entry of judgment.” (Italics added, boldface omitted.) As noted above, Palla Farms had served and filed a notice of entry of judgment on December 16, 2024, and Salgado initially attempted to file his section 473(b) motion on June 16, 2025. Salgado also contends that, “[b]ecause the superior court [erroneously] treated the motion as untimely[,] [it] never applied the correct mandatory-relief framework[.]” He argues the motion should have been granted because it was not only timely, but “was in proper form and supported by attorney fault.” (Capitalization omitted.) D. Analysis The question before us concerns the timeliness of Salgado’s motion for relief from terminating sanctions, under section 473(b). Where a motion for relief from a “dismissal” or “other proceeding” is made under the discretionary provision of section 473(b), it must “be made within a reasonable time, in no case exceeding six months,” after the dismissal or other proceeding “was taken.” (§ 473(b).) Where a motion for relief from a “default judgment or dismissal entered” is made under the mandatory provision of section 473(b), it must be filed “no more than six months after entry of judgment.” (§ 473(b).) Thus, a “six-month limitations period” 10 See Jimenez, supra, 97 Cal.App.5th at pp. 54, 58. 10. applies to both the discretionary and mandatory relief provisions of section 473(b) and this limitations period is “either 182 days or six calendar months, whichever period is longer.” (Jimenez, supra, 97 Cal.App.5th at p. 54.) Here, it cannot reasonably be disputed that the trial court issued an order granting Palla Farms’s motion for terminating sanctions on December 6, 2024, which order expressly entered a dismissal with prejudice and judgment of dismissal in favor of Palla Farms on that same date. 11 The clerk’s transcript contains the court’s written order signed by the court on and file-stamped December 6, 2024. The order specifies: “A judgment on the merits in [Palla Farms’s] favor is hereby entered in the form of a dismissal with prejudice.” In this matter, the limitations period applicable to a motion arising under either the discretionary or mandatory provisions of section 473(b) would be the longer of “182 days or six calendar months” from December 6, 2024. (Jimenez, supra, 97 Cal.App.5th at p. 54.) Given that Salgado first submitted his section 473(b) motion for filing on June 16, 2025—that is, more than 182 days as well as over six calendar months after the dismissal and judgment were entered on December 6, 2024—it was untimely. Accordingly, the trial court properly denied it. (Arambula, supra, 128 Cal.App.4th at p. 345 [“[A] court has no authority under [section 473(b)], to excuse a party’s noncompliance with the six- month time limit.”].) To the extent Salgado argues that the limitations period for either the discretionary or the mandatory relief provision of section 473(b) runs from the notice of entry of judgment, rather than from the entry of the judgment itself, his argument finds no support in the express terms of section 473(b). Moreover, Salgado has not provided any authority to support such a contention. (See Arambula, supra, 128 Cal.App.4th at p. 341 [“We 11 Salgado’s claim in his opening brief that “the order [on] terminating sanction[s] was entered on December 16, 2024” is demonstrably incorrect. 11. cannot insert qualifying language where it is not stated or rewrite the statute to conform to a presumed intention that is not expressed.”].) His contention therefore fails. Given our conclusion that the trial court properly denied Salgado’s section 473(b) motion on grounds it was untimely, we need not address Salgado’s argument that the court should have granted the motion because it “was in proper form and supported by attorney fault.” (Capitalization omitted.) Finally, we note that, to the extent Salgado makes additional arguments in his reply brief, these arguments are forfeited as they are not supported by requisite citations to the record and to relevant legal authorities. 12 (See Cal. Rules of Court, 13 rule 8.204(a)(1)(B) & C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [issue forfeited due to lack of record citations]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 [“any reference [to a matter in the record] in [a litigant’s] brief must be supported by a citation]; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration.”].) Salgado’s reply brief does not contain a single citation to the record. It also contains a citation for a nonexistent case, a citation that potentially represents an artificial-intelligence hallucination. 14 12 Similarly, we decline to consider any contentions raised by Salgado for the first time in his reply brief. (See, e.g., Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 607, 637, fn. 8 [“We do not consider arguments raised for the first time in a reply brief.”].) 13 Subsequent references to rules are to the California Rules of Court. 14 Specifically, Salgado’s reply brief cites to R&S Industries, Inc. v. Caton (1996) 47 Cal.App.4th 1145, 1149, a case that does not exist. After Salgado submitted his reply brief, Palla Farms filed a motion for sanctions based in part on the R&S Industries, Inc. v. Caton citation included in his reply brief (see fn. 15, post). Salgado filed an opposition in which his counsel acknowledged that the R&S Industries, Inc. v. Caton citation was “fabricated” and withdrew both the citation and “the sentence” it purportedly supported. Salgado’s counsel stated that the “citation” in question “did not and does not exist.” 12. II. Salgado’s Due Process Argument Fails Finally, Salgado directly challenges on due process grounds, the trial court’s prior December 6, 2024, order granting Palla Farms’s motion for terminating sanctions and the related judgment of dismissal. He argues the court’s order granting the motion for terminating sanctions and dismissing the action did not serve “the goals of fairness and due process” and seeks reversal of the related judgment. This appeal, however, does not arise from the court’s dismissal order and related judgment of dismissal. Rather, it arises from Salgado’s subsequent, post-judgment section 473(b) motion seeking relief from the court’s dismissal judgment. As explained below, Salgado’s due process challenge to the court’s prior order dismissing the action and to the underlying judgment itself, is untimely and inapposite. Under Rule 8.104, a notice of appeal must be filed on or before the earliest of 60 days after service by the court clerk or a party of a notice of entry or file-endorsed copy of the judgment, or 180 days after entry of judgment. (Rule 8.104(a)(1)(A), (B), & (C).) “This time limit is jurisdictional: ‘no court may extend the time to file a notice of appeal.’ ” (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 649; Rule 8.104(b).) Here, as noted, the underlying judgment was entered on December 6, 2024, and Palla Farms served and filed a notice of entry of judgment on December 16, 2024. The notice of appeal initiating the instant appeal from the court’s post-judgment order was filed on September 2, 2025. Under Rule 8.104, the notice of appeal was untimely for purposes of appealing the December 6, 2024, judgment. III. Palla Farms’s Motion for Sanctions Pending in This Court As mentioned, while this appeal was pending and after Salgado submitted his reply brief, Palla Farms filed a motion for sanctions in this court. Palla Farms contends Counsel added, elliptically: “The page and case name are real enough, but the date and parallel reporter citation are fabricated.” 13. in its motion that it is entitled to monetary sanctions because (1) this appeal is frivolous; (2) Salgado’s reply brief “relies on a fabricated case citation that does not exist in California courts”; and (3) Salgado’s reply brief does not provide requisite citations to the record and to relevant legal authorities for factual and legal points raised therein. (Boldface omitted.) Palla Farms seeks the imposition of sanctions, jointly and severally against Salgado and his counsel, in the amount of $18,330.20, to cover its past and estimated future appellate litigation fees and costs, inclusive. Salgado’s counsel filed an opposition to Palla Farms’s motion for sanctions. (Rule 8.276(d).) As explained below, we conclude sanctions are appropriate in this case. Code of Civil Procedure section 907 (hereafter, section 907 or § 907) provides: “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.” In addition, subject to certain procedural protections, Rule 8.276(a) authorizes this court to impose sanctions, including monetary sanctions, “on a party or an attorney” for: “(1) Taking a frivolous appeal or appealing solely to cause delay; (2) Including in the record any matter not reasonably material to the appeal’s determination; (3) Filing a frivolous motion; or (4) Committing any other unreasonable violation of these rules.” (Rule 8.276(a).) A. Lack of Requisite Record Citations in Reply Brief (Rule 8.204(a)(1)(C)) First, Palla Farms’s contention that Salgado’s reply brief does not provide requisite citations to the record is accurate. Indeed, we concluded above, based in part on rule 8.204(a)(1)(C), that Salgado had forfeited the arguments raised in his reply brief. 14.  Palla Farms highlights the fact that Salgado’s reply brief does not contain a single citation to the record, 15 and also includes demonstrably incorrect factual contentions. 16 The lack of appropriate record citations and inclusion of inaccurate facts in appellate briefs potentially constitutes an unreasonable violation of rule 8.204(a)(1)(C), which requires every factual reference to be supported by a citation to the record. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 30-31 (Pierotti).) Although we do not make such a finding here and focus on other, more serious violations embodied in Salgado’s briefs, the issue is a very close one. B. Lack of Citations to Appropriate Legal Authorities and Citation to Fabricated Legal Authority in Reply Brief (Rule 8.204(a)(1)(B)) Second, Palla Farms’s contention that Salgado’s reply brief does not support legal points with appropriate legal authorities and contains a citation to a nonexistent case, is also correct. Most importantly, Salgado’s reply brief cites to R&S Industries, Inc. v. Caton (1996) 47 Cal.App.4th 1145, 1149, a case that does not exist. Salgado’s counsel acknowledges in his opposition to the motion for sanctions that such a case “did not and does not exist,” and that the citation is “fabricated.” (Boldface omitted.) Counsel does not, however, specifically concede that the citation arose from an artificial intelligence hallucination. Counsel notes in his opposition that he withdraws both the fabricated citation and the proposition for which it was provided.17 15 Palla Farms suggests that the lack of any citation to the record in Salgado’s reply brief indicates that Salgado’s counsel may have “utilized artificial intelligence to draft the brief.” 16 For example, the reply brief incorrectly refers to the trial court’s December 6, 2024, order dismissing the action as an “unsigned, unlodged, and unentered” ruling. On the contrary, the order was signed by the trial court and entered a judgment of dismissal. 17 Palla Farms also notes that the fact that Salgado filed his 25-page reply brief “less than 26 hours” after Palla Farms filed its respondent’s brief is indicative either of the “use of artificial intelligence” or of the fact that counsel did not read the cases cited therein. 15.  The citation to R&S Industries, Inc. v. Caton amounts to an unreasonable violation of rule 8.204(a)(1)(B), which requires points raised in an appellate brief to be supported by citation to appropriate legal authorities. (See Schlichter v. Kennedy (2025) 116 Cal.App.5th 24, 33 (Schlichter) [“[Attorney] unreasonably violated rule 8.204(a)(1)(B) ‘by not support[ing] each point with citations to real (as opposed to fabricated) legal authority.’ ”].) Sanctions are permitted under Rule 8.276(a)(4), for unreasonable violation of an appellate rule, here rule 8.204(a)(1)(B). (See rule 8.276(a)(4); Schlichter, supra, 116 Cal.App.5th 24, 34; also see Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 445 (Noland) [“relying on fabricated legal authority is sanctionable”].) C. Appeal is Frivolous Finally, we agree with Palla Farms that this appeal is frivolous and subject to sanctions on that basis. Our Supreme Court delineated the standard for assessing whether an appeal is frivolous in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty). Flaherty emphasized the difficulties of distinguishing “merely meritless” appeals from frivolous ones, clarifying that “[a]n appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (Id. at pp. 646-648, 650 [“Counsel face the danger of being trapped between their obligation to their clients to diligently pursue any possibly meritorious claim, and their obligation to the judicial system to refrain from prosecuting frivolous claims.”].) Flaherty concluded that any definition of a frivolous appeal must be “surrounded by procedural protections … and sparingly applied,” to penalize “the most egregious conduct without deterring valid appellate claims.” (Id. at p. 649.) Flaherty formulated the following standard for assessing frivolous appeals: “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper 16. 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.” (Flaherty, supra, 31 Cal.3d at p. 650, italics added.) The Flaherty definition combines a subjective strand or prong (whether the appeal was prosecuted for an improper purpose) 18 and an objective strand or prong (whether any reasonable attorney would agree the appeal is wholly without merit). 19 (Flaherty, supra, 31 Cal.3d at pp. 649, 650.) Flaherty noted that the “two standards are often used together, with one providing evidence of the other,” as when “the total lack of merit of an appeal is viewed as evidence that [the] appellant must have intended it only for delay.” (Id. at p. 650.) Flaherty clarified, however, that a finding of frivolousness could rest on either prong. It explained, “[a]n appeal taken for an improper motive represents a time- consuming and disruptive use of the judicial process. (Ibid.) It added, “[s]imilarly, 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.” (Ibid.; see Malek Media Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834 (Malek) [“[a] finding of frivolousness may be based on either standard [objective or subjective] by itself”]; DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 179-180 [applying Flaherty prongs disjunctively]; Morales v. City and County of San Francisco (2025) 114 Cal.App.5th 43,54 (Morales) [finding of 18 This is a subjective determination: “The subjective standard looks to the motives of the appellant and his or her counsel.” (Flaherty, supra, 31 Cal.3d at p. 649.) 19 This is an objective determination: “The objective standard looks at the merits of the appeal from a reasonable person’s perspective.” (Flaherty, supra, 31 Cal.3d at p. 649.) 17. frivolousness can be based on either the objective or subjective prong; not “necessary” to apply both prongs to issue sanctions].) Taking the subjective prong of the Flaherty standard first, the record does not suggest that the instant appeal was brought for an improper dilatory purpose. Here, Salgado’s appeal arose from the dismissal of his entire action. Bringing the appeal appears to be a misguided, last-ditch effort by Salgado’s counsel to get the case reinstated. Indeed, both in the trial court and on appeal, counsel took responsibility for his role in the dismissal. 20 These circumstances do not indicate that the decision to bring the appeal was merely a dilatory tactic, unrelated to the goal of reinstating the case. We conclude the appeal is not frivolous under the subjective prong of the Flaherty standard. However, under the objective prong of the Flaherty standard, the outcome is different. Here, on December 6, 2024, the trial court (1) granted Palla Farms’s motion for terminating sanctions, and (2) entered the dismissal and related judgment. Thereafter, on June 16, 2025, Salgado submitted his section 473(b) motion for relief from terminating sanctions. The court denied Salgado’s section 473(b) motion on grounds it was untimely because, by June 16, 2025, the six-month or 182-day limitations periods applicable to the discretionary and mandatory provisions of section 473(b) had expired and were not subject to extension. An appeal taken from the court’s denial of Salgado’s section 473(b) motion under these circumstances is frivolous because any reasonable attorney would agree it is wholly without merit. (See Malek, supra, 58 Cal.App.5th at pp. 834-835 [“appeal may be objectively frivolous” when “appellant’s arguments rest on negligible legal foundation”].) Salgado’s counsel appears to have understood this himself. He based his challenge to the trial court’s ruling on the demonstrably false premise that the date of 20 For example, Salgado’s opening brief states: “Here, the dismissal disposed of Appellant’s case without any merits determination and was caused by counsel’s failure to comply with discovery obligations.” 18. entry of judgment was December 16, 2024, and his section 473(b) motion was therefore timely. However, judgment was in fact entered on December 6, 2024; the notice of entry of judgment was served and filed by Palla Farms on December 16, 2024. Counsel also obfuscated matters by referring to “entry of judgment” and “notice of entry of judgment” interchangeably, when these were two distinct events that occurred on different dates. 21 Salgado argues in his opposition to the sanctions motion that he had a reasonable basis to bring this appeal. His argument hinges on the limitations clause in the discretionary provision of section 473(b). A motion for relief under the discretionary relief provision of section 473(b) must be filed “within a reasonable time, in no case exceeding six months,” after “a judgment, dismissal, order, or [other] proceeding was taken.” (§ 473(b), italics added.) Salgado argues: “ ‘Taken’ is not defined by section 473(b), nor is the significance of the word ‘taken’ in this statutory context otherwise defined by statute. In the context of section 473(b) motions for relief, reasonable attorneys disagree over what event that term means—the trial court entering the terminating sanctions order or serving it.” Salgado adds: “An argument that the outer time limit under a remedial statute should be tied to notice of entry of that order rather than to a signing date of which the party may not have actual knowledge is, at worst, a losing argument. But it is not frivolous.” Salgado’s contentions are not persuasive because they target