Sixth District Affirms Fee Award Assessed Against Litigant Who Brought Section 128.7 Motion That Was Denied.
In Star Building Systems v. G.W. Davis, Inc., Case No. H032093 (6th Dist. June 27, 2008) (unpublished), plaintiff filed a first amended complaint, after a demurrer was sustained with leave, with an unjust enrichment claim that addressed the trial court’s concerns at the demurrer stage. Defendant believed that the new allegations lacked evidentiary support and filed a motion for award of sanctions under Code of Civil Procedure section 128.7, a provision allowing the trial court discretion to sanction a litigant and/or its counsel for filing a pleading that has been presented for an improper purpose, that is frivolous in nature, or that lacks evidentiary support or not likely to have such support after a reasonable opportunity is afforded for investigation. The trial court denied the section 128.7 motion and awarded plaintiff $9,750 in expenses and attorneys fees for having to oppose the motion. (Section 128.7(c) authorizes an award of attorney’s fees and expenses “if warranted” to the party who prevails on such a sanctions motion.)
Defendant appealed and lost his challenges to the fee award.
At the outset, the Sixth District, in a 3-0 opinion authored by Justice Elia, rebuffed the argument that the fee award was not appealable. Citing In re Marriage of Skelley, 18 Cal.3d 365, 368 (1976), the appellate panel found the order was a collateral order that was dispositive of the rights of party on a collateral matter that directed a monetary payment. This sufficed to satisfy the collateral order exception in the area of appealability.
Next, using the abuse of discretion review standard, the Court of Appeal found no abuse. Justice Elia found that defendant had not demonstrated that the pleading was frivolous and was largely dependent on underlying facts, some of which would likely be developed during discovery later on. Fee award affirmed, in the case of the aggrieved litigant appealing a section 127.8 motion denial.
(BLOG OBSERVATION—Defendant’s motion did appear premature. It would have seemed better to allow plaintiff to engage in discovery and then bring a summary judgment or section 128.7 motion once plaintiff could not demonstrate the evidentiary basis for the unjust enrichment claim.)