Civility Would Have Likely Averted the Whole Dispute, With Santa Ana Appellate Court Emphasizing Cooperation Rather Than Continued Litigation.
This is an interesting sanctions case, rife with cogent interminglings of discussions on the need for civility rather than continued litigation aggression when a transparent, inadvertent error was made during the course of a case.
Justice Bedsworth, writing for a 3-0 panel in Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc., Case No. G047376 (4th Dist., Div. 3 June 27, 2013) (published), reversed a $5,076 fee sanctions order imposed under CCP § 128.7 by a trial judge due to plaintiff’s failure to attach a correct copy of an agreement to a verified compliant resulting in a summary judgment motion which was denied after leave to amend was granted to attach the proper agreement. The fee sanctions were imposed when the lower court set a sua sponte OSC re 128.7 sanctions and then granted them against plaintiff’s counsel and in favor of defendant for the time consumed by the defense in bringing the summary judgment motion to supposedly “correct” the pleading attachment error.
The fee sanctions order was reversed for three reasons. First, the lower court did not give the 21 day “safe harbor” period for a cure of the defect, which runs from the date of service of the OSC order. Second, although plaintiff’s conduct was described as “lamentable inattention,” it did not rise to the level of bad faith because everyone knew–even quite late in the game–that the wrong agreement was attached. Third, sua sponte 128.7 sanctions can only be paid to the court, not to an opposing party.
That being said, Justice Bedsworth on behalf of the sitting panel, while recognizing the necessity of sanctions to level the playing field when needed (but with courts reluctant to use too quickly), did stress that a phone call and agreement to stipulate to an amendment might have solved the problem–a civility lesson he stressed at many times in the opinion. Our favorite quote: “Counsel here was not as culpable as counsel in Kim [v. Westmoore Partners, Inc.], 201 Cal.App.4th 267 (2011), but he did evidence a disturbing predisposition to pick up the sword before the ploughshare. We need to turn away from that kind of practice.” (Slip Opn., p. 9.)