However, A Waiver—But Only One Endorsed Through A 2-1 Panel Opinion Split By The 2/5 DCA.
1100 Wilshire Property Owners Assn. v. Wilshire Commercial LLC, Case No. B285336 (2d Dist., Div. 5 Aug. 23, 2019) (unpublished) is a case where a court-appointed referee sanctioned plaintiff HOA $31,065 for taking a frivolous legal position in connection with a board of directors election, one at odds with the referee’s own previously expressed interpretation of HOA election cumulative voting rules. (The winning side asked for $117,075.50 in fees and costs.) Referee’s sanction award was affirmed on appeal, but drew a split opinion on whether the winning side had to provide “safe harbor” notice under CCP § 128.5 given the intermediate difference of opinion on the safe harbor issue as expressed in San Diegans for Open Government v. City of San Diego, 247 Cal.App.4th 1306, 1316-1317 (2016) and Nutrition Distribution, LLC v. Southern SARMs, Inc., 20 Cal.App.5th 117, 126-127 (2018). The majority believed that the issue was waived, because the losing side did not even raise it—"Such arguments to depart from precedent are routinely made, and made precisely for the reason why we hold forfeiture applies: to preserve an issue for appeal.” (Slip Op., pp. 15-16 n. 10; Justice Baker, author of majority opinion.) In dissent, Justice Moor would have found no waiver applied because San Diegans was the only decision around such that losing side’s failure to object was forgivable.