Costs, Sanctions: Trial Court Properly Denied CCP § 128.7 Sanctions Even Though Opposition Evidence Was Not Overwhelming; However, Costs Had To Be Awarded To Attorney Obtaining Dismissal Of Ex-Client’s Malpractice Complaint

Prevailing Attorney Fell Within Mandatory Category Of A Routine Costs Grant.

            This next matter involved a contentious domestic, non-divorce temporary restraining order situation where an attorney sued for recovery of unpaid fees by one side (a male in a relationship with an ex-girlfriend) where there were malpractice allegations that the attorney had an affair with a former girlfriend of client/provided confidential information to the former girlfriend.  In the end, client’s malpractice action was dismissed on a demurrer, but the superior court clerk refused to enter a routine costs award based on the dismissal—after the trial judge refused to award CCP § 128.7 sanctions against client based on the salacious allegations in the ex-client’s case.

            The 4/1 DCA, in Kelly v. Rutman, Case No. D076022 (4^th Dist., Div. 1 July 21, 2020) (unpublished), affirmed the sanctions denial but reversed the refusal to award routine costs.

            Without going into all the specifics, the inferences from the attorney-former girlfriend relationship—although not overwhelming—did allow discretion to the trial judge to deny section 128.7 sanctions based on the overall circumstances.  Not the same result on the routine costs issue.  Here, attorney was a prevailing party when the malpractice action was dismissed—ex-client obtained no relief and a dismissal was entered in attorney’s favor (Code Civ. Proc., § 1032(a)(2)), a precise category allowing attorney recovery of routine costs.