Attorney triggers appellate court to clarify Section 128.5 sanctions

As litigators we are aware of the vagaries and unforeseeable pitfalls involved in taking a case to court. Knowing the unpredictable conditions under which we labor, it is surprising when attorneys allow themselves to alienate the judge they are appearing before by acting in ways that only make litigation dicier.

Attorney Trigger provides us with a good example of unhelpful behavior. It appears she decided to juggle a few too many cases at one time. This triggered a negative reaction by her trial judge, resulting in sanctions being imposed against her.

Trigger's case, In re Marriage of Sahafzadeh-Taeb and Taeb, 2019 DJDAR 8190 (Aug. 26, 2019), discussed Code of Civil Procedure Section 128.5, that old saw, revived in 2014, used for obtaining sanctions.

Sanctions were imposed against Trigger pursuant to Section 128.5 because she failed to appear for trial after informing the court clerk she was ready to proceed to trial. Her excuse for her non-appearance was that another trial ran longer than anticipated.

At first blush, a sanctions award against Trigger seems harsh. It is often difficult to know with exactitude how long a trial may take to complete. Judges are aware of this and often allow attorneys some latitude. Trigger had also taken some steps to assuage the judge. She sent another attorney in her place to make a special appearance and ask for a continuance, and she also told her client to inform the judge she would not be appearing due to the conflict with the other case.

Trigger shot herself in the foot with her trial judge, however, by failing to comply with trial-setting orders, including document production and filing a trial brief. Furthermore, she did not inform the judge soon enough about her involvement with another trial.

Following the court granting a three-day continuance, when the trial commenced, the opposing attorney filed a notice of hearing seeking Section 128.5 sanctions in the amount of $3,575 for having to appear needlessly at the earlier trial.

In granting the sanctions request, the court noted Trigger's failure to seek a continuance as soon as she was aware that her current trial would run longer, her statement that she was ready for trial when she knew she would not be, and her sending a specially-appearing counsel, who was clearly unprepared.

In the appeal of the sanctions award, the appellate court explained that when the Legislature revived that Section 128.5 in 2014, it added a new provision requiring any sanctions imposed to apply consistently with the standards set forth in Code of Civil Procedure Section 128.7. After it was revived, in San Diegans for Open Government v. City of San Diego, 247 Cal. App. 4th 1306 (2016), the 4th District Court of Appeal held that an objective standard should be applied when a court considers ordering sanctions under either Section 128.5 or Section128.7. However, the Legislature amended Section 128.5 in 2017 to make it clear that the appropriate standard to be applied in a sanctions order under the statute is subjective bad faith, not objective bad faith. Under this standard, sanctions are authorized for actions or tactics made in bad faith that are frivolous or solely intended to cause unnecessary delay. The appellate court in Trigger's case chose to publish the opinion "to make explicit that no vestige remains of the holdings in [San Diegans for Open Government] concerning the requirements of section 128.5."

Trigger triggered a cascade of problems for herself and her client first by overbooking herself. While it is often difficult to know how many cases we can handle at one time, how many of us are bold enough or perhaps foolish enough to schedule two trials back to back. Trigger also failed to comply with pretrial orders, erred by informing the court clerk she was ready for trial when she knew she was not ready, and erred again by sending her client to inform the court of her conflict. Yes, she also had an attorney specially appear and ask for a continuance. However, by then the damage had been done.

This is a good case to cite whenever you are put in the position of having to wait an unreasonably long time for opposing counsel, who has double booked himself or herself. 

Jeffrey P. Blum is an attorney in Los Altos.