Sanctions: $10,443 Sanction Against Plaintiff’s Attorney Under CCP § 128.7 Reversed For Dilatory Substituting Out/Withdrawal Of Case Because This Section Does Not Target Generalized Bad Behavior

No Flawed Pleading Being Pursued or Advocated, and Safe Harbor 21 Day Period Not Followed.

     Justice Bedsworth, on behalf of a 3-0 panel, reversed a $10,443 sanctions award against plaintiff’s attorney of $10,443 under Code of Civil Procedure section 128.7 founded on the lower court’s perception that the attorney should have substituted out or moved for a withdrawal quicker than he did because two of the three causes of action were later found to be without evidentiary support.

     In Newchurch v. ADP Dealer Services, Case No. G049776 (4^th Dist., Div. 3 Feb. 24, 2015) (unpublished), the appellate court found that the trial judge erred in not allowing the running of the full 21 day safe harbor “cure” period, with a “close enough” approach not working in this context. The panel did so by quoting from Hart v. Avetoom, 95 Cal.App.4^th 410, 414 (2002): “Close is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute.”

      Debutantes playing horseshoes.  Harris & Ewing, photographers.  1923.  Library of Congress.

      Secondarily, section 128.7 is targeted at flawed pleadings or advocacy of them, something not at issue in the attorney’s decision to delay getting out of a case in order to not prejudice the client in the trial court’s eyes.

    Infantryman prepares to hurl pineapple of inedible variety.  “American soldiers make good grenade throwers.”  Alfred T. Palmer, photographer.  1942.  Library of Congress.

     BLOG UNDERVIEW—Justice Bedsworth also noted that CCP § 128.5 (a statute which actually lapsed for a long period of time), as of January 1, 2015, is back in the picture, at least until its January 1, 2018 current sunset date.