Fourth District, Division 3 Finds The Only Timely-Filed Declaration Was Devoid In Setting Forth The Attorney Work Performed Or Credible Fee Total to Support the Award.
The next case teaches that, after service of the CCP § 128.7 “safe harbor” motion, if you then file the motion after noncompliance by the putatively sanctionable party/attorney, you must present admissible proof of the work actually performed and of the corresponding amount of fees for which sanctions are being sought.
Marriage of Tang, Case No. G040994 (4th Dist., Div. 3 Mar. 19, 2010) (unpublished) involved a situation where wife and her attorney were sanctioned for filing an independent civil action for breach of fiduciary duty when the law was clear that the action needed to be filed with the family law dissolution court. The family law judge sanctioned them $20,500 under Code of Civil Procedure section 128.7. Though there was no doubt that the conduct was sanctionable, an inadequacy of proof submitted by husband in support of the sanctions request necessitated a reversal of the award, ruled the Fourth District, Division 3 (in a 3-0 decision authored by Justice Fybel).
To recover monetary sanctions, a moving party must submit admissible evidence in support of the amount of sanctions sought. The safe harbor provision of section 128.7(c)(1) does not prohibit the moving party from submitting such evidence at the same time as the moving papers or, at the very least, at the time of filing and service of reply papers. However, husband’s attorney, who submitted three declarations, filed the last two declarations in untimely fashion and without critical “penalty of perjury” language, even though the declarations were sufficiently detailed as far as supporting the amount of sanctions.
Because the second and third declarations had to be disregarded, that brought Justice Fybel and his colleagues to see if the first declaration could underpin the sanctions award. It could not. Reason? The first declaration, though signed under penalty of perjury, failed to describe the work performed and to identify the attorney’s fees incurred for which sanctions were being sought. So, a lack of proof doomed the sanctions award, with both parties ordered to bear their own costs on appeal.
For information on new and original Tang, click here.