Plethora Of Procedural Issues Considered In 2/1 DCA Unpublished Opinion.
Enlisted men going through obstacle course. Daniel Field, Georgia. July 1943. Jack Delano, photographer. Library of Congress.
In Kerkorian v. Mandekie, Case No. B252861 (2d Dist., Div. 1 Apr. 26, 2016) (unpublished), an attorney’s fees award of $76,598.32 (the full request) was granted as a CCP § 128.7 sanction for the filing of a frivolous probate petition. Despite numerous procedural challenges, the 2/1 DCA rebuffed them in affirming the order as follows:
· Safe Harbor Period. Because the rescheduled hearing did allow for running of the 21-day safe harbor period, there was no infirmity on this ground.
· Failure to Indicate Hearing Date and Time In Original Motion Papers. This requisite only needs to be met if a motion date and time are ascertainable; they were not at first, but the rescheduled motion papers were compliant in indicating a location, date, and time.
· Failure to Serve Judicial Notice Request Contemporaneously With Motion Papers. Failure to do this does not render the motion defective (because a judicial notice request is technically not among the required motion “papers”), but the trial court can decide not to consider them at the hearing.
· Refusing to Read Opposition Memorandum After Page 15. For most civil law and motions, practitioners in California state court know that opposition memoranda are limited to 15 pages unless one is dealing with certain particular motions or the lower court allows for greater page limits. The trial judge here refused to read after page 15 of an excessive opposition brief. The appellate court found this was no abuse of discretion, determining that the 15-page limit did apply to probate proceedings. See CRC, rule 3.10.
· 128.7 Motions Contemplate a Hearing With Oral Argument. This principle was found applicable given the severity of a sanctions request.