Client Does Lose Attempt to Get Fees For Defending Against Sanctions Motion Because Such Recovery Is Not Automatic Under Section 128.7(c), With Lower Court Being Able to Conclude $95K Award Sufficed.
Genutec Business Solutions, Inc. v. Taus, Case No. G046062 (4th Dist., Div. 3 Jan. 30, 2014) (unpublished), a 3-0 decision authored by Presiding Justice O’Leary, involved dueling sanctions motions under Code of Civil Procedure section 128.7. Defendants lost their motion, but attorneys for the plaintiff received some $50,467.50 in fees for successfully opposing the defense sanctions motion and plaintiff won $45,000 for winning its counter-motion that the other side’s 128.7 motion was brought for an improper purpose (with this latter awarding being deemed automatic in nature once a conclusion of improper purpose is the decision).
Both sides appealed, with the plaintiff arguing in a cross-appeal that it should have obtained much, much more in fees for successfully defending against the defense sanctions motion.
The lack of an adequate record and reference to a 128.5 case doomed many of the defense arguments, because it meant their arguments were waived. Also, the record belied that the lower court was confused in making its rulings.
The defense argued that the award to the attorneys for defeating the sanctions motion was improper because the attorneys were acting in pro per for their own benefit. This contention was rejected because the record shows they were actually representing the client although the award inured to their ultimate benefit.
Client Genutec’s request that it should have been awarded more fees for successfully defending against the sanctions motion did not win either. The reason is that nothing in section 128.7(c) provides for a mandatory award of sanctions to the prevailing party, allowing the lower court to conclude the $95,000 sanctions was punishment enough.