Civil Action Was Part of Bitter Dissolution Dispute.
Husband, during the pendency of apparent bitter dissolution proceedings with his former wife, filed multiple civil lawsuits against wife, her parents, and her parents’ trust. Earlier, in one of the actions, the assigned civil judge refused to deem the matter related to the family law matter. Then, later on, the civil judge imposed both terminating and monetary sanctions of $9,120 against husband and his counsel under CCP § 128.7, prompting an appeal by both.
They were successful in Scarlatelli v. Gamut Construction Co., Inc., Case No. B252435 (Jan. 20, 2015) (unpublished).
Although the reversal is based on the peculiar facts of record, the appellate court found no bad faith simply from the fact a number of lawsuits had been filed or the procedural manner in which the lawsuits were filed, attorney strategic decisions which could not be necessarily “imputed” to client husband. Furthermore, the earlier decision to not transfer the case to family law court as a related matter could well lead counsel to decide the filing in civil court was the proper course of action. Finally, joinder of the trust and the trust representatives was not improper given that a transfer of title to property was being challenged and an inter vivos trust is recognized as a “probate avoidance” device.
As far as success rate, we will note that 128.7 challenges appear to have a higher degree of success than appeal of discovery sanction orders. The terminating sanction was seen as too draconian in Scarlatelli, with that determination also making it necessary to overturn the monetary sanctions against husband and his attorneys.