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Case of the Month Archive

October 2019

Sanctions were not appropriate as to husband. . .


In partial reversal, First District holds that trial court did not err by imposing CCP §128.5 sanctions on attorney who failed to appear for trial, after informing court clerk that she was ready to proceed to trial, due to another trial’s running longer than anticipated; sending an attorney to make a special appearance and ask for a continuance and telling client to inform the court that she would not be appearing did not mitigate counsel’s failure to timely inform the court of her inability to appear.


In re Marriage of Sahafzadeh-Taeb and Taeb

(August 26, 2019)

California Court of Appeal 1 Civil A152178 (Div 1) 251 Cal.Rptr.3d 610, 2019 WL 4012569, 2019 FA 1902, per Banke, J (Humes, PJ, and Margulies, J, concurring). Alameda County: Vilardi, J, affirmed in part and reversed in part. For appellant: pro per. For respondent: Mary Whipple, CFLS, (925) 344-5050. CFLP §§A.16.1, A.


In June 2016, and again in August 2016, Majgan Sahafzadeh-Taeb’s attorney filed requests for orders regarding property jointly owned by Majgan and her husband, Hamid Taeb. The trial court scheduled a readiness conference for January 30, 2017 and trial for February 7, 2017. On January 27, the parties’ attorneys informed the court clerk that they were ready to proceed to trial and asked to be excused from attending the readiness conference. Relying on counsel’s representations of readiness, the trial court granted their request and cleared her calendar for an all-day trial on February 7.


Hamid, Majgan, and Majgan’s attorney appeared for trial, but Hamid’s attorney, Michelle Trigger, did not appear. When the trial court questioned her absence, Hamid said that Trigger had another trial in Sacramento that was running longer than expected. Majgan’s attorney stated that Trigger had called her office and asked her to agree to a continuance, but she had refused because Trigger had failed to comply with other trial setting orders, including document production and filing a trial brief. The attorney asked the trial court to bar Trigger from presenting those documents at trial.


The court clerk then advised the trial court that a "a specially-appearing counsel was on his way" who would make a formal motion for a continuance, and Hamid stated that he had received a motion to give to the trial court. The trial court then waited for the attorney to appear. He soon arrived, but confessed that he was not ready to proceed to trial and was there only to request a good-cause continuance. When questioned, the special counsel was unable to explain why Trigger had previously said she was ready for trial and told the trial court that he had not read the moving papers. The court then gave counsel a half hour to get familiar with those papers and told Majgan’s attorney that she could seek attorney’s fees for having to sit around in the trial court while the special counsel was reading. The special counsel then advised the trial court that Trigger was delayed because her client "unexpectedly exercised his right to testify" which ed at additional trial days. Majgan’s attorney countered that Trigger knew of the client’s decision when she stated on January 17 that she was ready to proceed to trial. That, counsel claimed, coupled with Trigger’s failure to comply with other orders, amounted to tactical delay. The trial court than granted a 3-day continuance, and reiterated that Majgan’s attorney should seek fees.


At trial, Majgan’s attorney filed a notice of hearing, seeking CCP §128.5 sanctions of $3,575 in fees and costs for having to appear needlessly at the earlier trial. Counsel also sought an order excluding materials that Trigger failed to produce as required by a pretrial order. When Trigger acknowledged her failure to comply, the trial court granted the motion to exclude. At the end of the trial, the attorneys agreed to make closing arguments in written briefs, and the trial court told Trigger to include her opposition to fees as sanctions in her brief. In a proposed statement of decision issued on April 5, the trial court, among other things, ordered CCP §128.5 sanctions against Hamid of $1,575, and of $2,000 against Trigger. In objections filed re the statement of decision, Trigger claimed that the sanctions were unwarranted because she had not acted in bad faith, but had simply inconvenienced the trial court and opposing counsel.


When the trial court issued its final statement of decision and orders, it "devoted several pages" to explaining the circumstances surrounding the sanctions request and orders. It specifically 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 wouldn’t be, and her sending a specially-appearing counsel, who was clearly unprepared. The lower court repeated its prior order re sanctions.

Hamid and Trigger appealed their respective sanctions orders, and the First District affirmed as to Trigger, but reversed as to Hamid.


What happened. . .
The justices began by tracing the recent history of CCP §128.5, as affected by the enactment of CCP §128.7 in 1994. At that time, the justices explained, courts had issued CCP §128.5 sanctions only where there had been actions or tactics that were either frivolous or meritless and were taken in bad faith. After CCP §128.7 took effect, which "effectively hobbled" CCP §128.5, the new statute was interpreted to require only a finding of conduct that was objectively unreasonable. However, when the legislature revived CCP §128.5 in 2014, it added a new provision which required any sanctions imposed consistently with the standards set forth in CCP §128.7. Subsequently, in San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Fourth District held that an objective standard should be applied when a court considers ordering sanctions under either §128.5 or §128.7. To remedy the confusion as to the proper standard for each statute, the legislature enacted as urgency legislation, effective August 7, 2017, amendments to §128.5 intended 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.


An oldie but goody. . .
The panel reasoned that the current statute returns the law re §128.5 to the state existing prior to the opinion in San Diegans, that is that it authorizes sanctions for actions or tactics made in bad faith that are frivolous or solely intended to cause unnecessary delay. And, they found instructive In re Marriage of Gumabao (1984) 150 Cal.App.3rd 572, 198 Cal.Rptr. 90, 1984 CFLR 2487, 1984 FA 94, where the appellate court affirmed sanctions imposed on the husband’s attorney for failing to appear after having assured the court clerk in several phone calls that he would appear. The justices there reasoned that §128.5 sanctions are appropriate where an attorney who knows he or she will not be able to appear but fails to notify opposing counsel or the trial court of that fact or to appear as promised. The panel here also noted that Gumabao has been followed in several subsequent cases.


Trigger is shot down. . .
Trigger contended that the lower court had sanctioned her "because of circumstances beyond her control." The justices pointed out that the sanctions had been imposed for her failure to take appropriate action after learning that her trial would run longer than anticipated and for stating that she was ready to proceed when she knew she would be; she was not sanctioned for finding herself in a bind when the trial ran long. Her actions, the panel found, "were, by any measure, unjustifiable derelictions in her obligations to the court, as well as to opposing counsel, and thus constituted frivolous conduct." Moreover, the justices determined that Trigger had "engaged in this misconduct for an improper motive---to manipulate the court and to manipulate and harass the opposing party---and thus acted in bad faith." The panel also found that the trial court had explained its reasoning sufficiently and did not need to make a specific finding of bad faith where one was implied. None of this, however, could be laid at the feet of Trigger’s client; thus, the justices reversed the sanctions order as to Hamid. They unhesitatingly affirmed the sanctions order as to Trigger.





This opinion is must reading for any attorney. If he or she practices long enough, a situation will arise where counsel is overbooked, has to deal with an emergency, or encounters some roadblock to being able to appear as promised. This case tells you what to do to avoid getting a sanctions order like this one. At a minimum, don’t rely on your client to tell the court you can’t appear.


The trial court found fault with Trigger for sending an attorney to make a special appearance to ask for a continuance who was not prepared to proceed to trial. The justices don’t discuss this, but we can’t help but think that the lower court erred in finding fault with that. In our view, it is unreasonable to expect that degree of preparation from an attorney who is making a limited special appearance.



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