Fifth District Found That Absence of Sanctions Request in Motion for Reconsideration Meant the Award Violated Due Process.
Frequently, we have discussed sanctions awards that are vacated because they do not comply with due process. Here is another one, occurring in connection with a successful defense reconsideration motion regarding a tardy expert witness augmentation.
In Vargas v. Bakersfield Ranch Market, Case No. F055788 (5th Dist. July 6, 2009) (unpublished), plaintiff moved to augment her expert witness designation to name a new expert. Defendant opposed the motion and requested sanctions in its opposition, with the trial court granting the motion and denying the sanctions request. Because of scheduling issues that prevented the newly designated expert from being available for a deposition before the deadline set forth in the augmentation order, the defendant moved for reconsideration (but made no request for sanctions). The lower court granted the reconsideration motion, striking the augmented expert designation and imposed sanctions of $1,190 against plaintiff and her counsel. (The $1,190 apparently was an award of attorney’s fees to defense counsel.) Plaintiff moved for reconsideration of the sanctions award, which was denied. Plaintiff appealed, claiming the award was made without notice, in violation of due process.
The Fifth District, in a 3-0 opinion authored by Justice Hill, agreed.
Lack of Due Process
No agreement of the parties authorized any such fees. Defendant also failed to comply with the “safe harbor” procedures of Code of Civil Procedure section 128.7.
Although monetary sanctions are authorized for unsuccessful making or opposing of a motion to augment or submit a late expert witness list, such sanctions must comply with Code of Civil Procedure section 2023.040, which requires that the request must be specified in the pleading with particularity. In the case at issue, defendant was denied sanctions in its initial opposition and did not ask for sanctions (or reconsideration of the prior sanctions denial ruling) in the reconsideration papers. It was a due process violation, see Sole Energy Co. v. Hodges, 128 Cal.App.4th 199, 208 (2005), to not provide notice that sanctions were being sought in the reconsideration proceeding. Plaintiff had no opportunity to appear at the hearing and argue against imposition of sanctions, with the result that the sanctions award was stricken from the reconsideration order.