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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff, v. Steven Lloyd BATTLE, Defendant.

Edward M. COOK, Objector and Appellant, v. The SUPERIOR COURT of Los Angeles County, Respondent.

No B033041.

Decided: January 04, 1989

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Edward M. Cook, and Albert J. Menaster, Deputy Public Defenders, for objector and appellant. Edwin L. Miller, Jr., Dist. Atty., San Diego, Peter C. Lehman and Paul Burakoff, Deputy Dist. Attys., as amici curiae for objector and appellant. DeWitt W. Clinton, County Counsel, and Frederick R. Bennett, Asst. County Counsel, Los Angeles, for respondent.

Does Code of Civil Procedure section 128.5 1 (hereafter “section 128.5”) authorize the imposition of attorney's fees as a sanction in a criminal action?   We hold it does not and reverse an order imposing sanctions against a deputy public defender.


On November 17, 1987, Los Angeles County Deputy Public Defender Edward M. Cook failed to appear on time for various hearings scheduled in superior court.   When he did appear, Cook explained he was late because he was having his hair cut.   Cook was given notice of the court's intention to impose sanctions pursuant to section 128.5, subdivision (c), and a hearing was set in People v. Steven Lloyd Battle, Los Angeles Superior Court case number A038264, which was one of the cases in which Cook had failed to appear.

At a hearing conducted on November 19, 1987, Cook conceded he had “made a mistake” by creating a situation which prevented him from appearing on time for his cases.   The court ruled as follows:  “The Court finds that counsel [] Cook, a Deputy Public Defender, caused unnecessary delay in court proceedings by scheduling and participating in having his hair cut during the morning hours on November 17, 1987, a work day on which he had been assigned 11 matters on calendar in Department SO–F and approximately 10 matters on calendar in Department SO–D, all set for 9:00 a.m.

“[ ] Cook appeared in Department SO–D at approximately 9:50 a.m. and advised the court that his delay was caused by his having his hair cut.  [] Cook did not appear in Department SO–F until 1:30 p[.]m.   The 11 matters on calendar in Department SO–F ․ constituted nearly 60% of the court[']s calendar that day and all were pre-trial conference/trial setting matters.   His failure to appear in any court for 9:00 a.m. calendar call made him unavailable for consultation or resolution of the many matters on the various courts ['] calendars.

“The Court finds the conduct of [] Cook to be inappropriate and the delay caused by said conduct was unnecessary.

“The Court imposes sanctions pursuant to Section 128.5 of the [Code of Civil] Procedure against [] Cook in the amount of $250.00 payable to the County of Los Angeles on or before November 30, 1987.”


The sole issue on appeal is whether section 128.5 provides a proper basis for the award of attorney's fees as a sanction in a criminal action.2

Relying on the “plain meaning” rule of statutory construction (see, e.g., Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218–219, 188 Cal.Rptr. 115, 655 P.2d 317), respondent superior court (“respondent”) asserts that we need not look beyond the first three words of section 128.5 to conclude that the statute applies to “[e]very trial court,” whether civil, criminal, or otherwise.   Our task, however, is not quite so simple.

“Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.”  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

In Gonzales v. Superior Court (1935) 3 Cal.2d 260, 262, 44 P.2d 320, the Supreme Court held that Code of Civil Procedure section 473, which provides relief from default and appears in a part of the code entitled “Of Civil Actions,” does not apply to criminal prosecutions.  “The rationale of Gonzales is that only those parts of the Code of Civil Procedure which are expressly made applicable to penal actions are incorporated in the Penal Code.”  (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 291, 171 Cal.Rptr. 387.)   Thus, for example, Code of Civil Procedure provisions regarding peremptory challenges of judicial officers apply to “any civil or criminal action.”  (Code Civ.Proc., § 170.6, subd. (1).)  Conversely, Penal Code section 1046 specifies that “[t]rial juries for criminal actions are formed in the same manner as trial juries in civil actions.”

Section 128.5 does not specify the type of action to which its sanctions apply.   Since it is thus at least unclear whether the statute was intended to apply to criminal actions, we must look beyond its reference to “[e]very trial court” in order to determine the Legislature's intent.

“The cardinal principle of statutory construction is that, absent a single meaning of the statute apparent on its face, we must give it an interpretation based upon the legislative intent with which it was passed, and where the Legislature has expressly declared its intent, we must accept the declaration.  [Citation.]”  (Tyrone v. Kelley (1973) 9 Cal.3d 1, 10–11, 106 Cal.Rptr. 761, 507 P.2d 65.)

When section 128.5 was enacted in 1981, it was accompanied by the following declaration of legislative intent:  “It is the intent of this legislation to broaden the powers of trial courts to manage their calendars and provide for the expeditious processing of civil actions by authorizing monetary sanctions now not presently authorized by the interpretation of the law in Baug[u]ess v. Paine (1978), 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942].” 3  (Stats.1981, ch. 762, § 2, emphasis added.)   This legislative declaration leads to the ineluctable conclusion that section 128.5 was not intended to apply to criminal actions.

Respondent attempts to avoid the import of the Legislature's specification of “civil actions” by arguing that the declaration of intent has two separate components—“to broaden the powers of trial courts to manage their calendars” and to “provide for the expeditious processing of civil actions․”  We find no support for this strained reading of the Legislature's straightforward expression of its intent.   Respondent's interpretation would illogically broaden the power of both civil and criminal trial courts, but provide for expeditious processing of civil actions only.   It would do violence to the requirement that a statute “be construed in context, keeping in mind [its] statutory purpose.”  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Respondent also argues that use of section 128.5 in criminal cases is expressly authorized by language in People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 204 Cal.Rptr. 563.   In Johnson, the trial court's dismissal of a misdemeanor charge after the prosecutor failed to appear was reversed for failure to give proper notice.   In dictum, the Johnson court observed that the prompt attendance of counsel could be ensured by informal administrative remedies, the power of contempt, and by the imposition of statutory sanctions such as section 128.5 and Penal Code section 1050.5.4  (Id. at p. 8, fn. 5, 204 Cal.Rptr. 563.)   However, the Appellate Department's casual and unsupported reference to section 128.5 does not provide an adequate basis to hold that the statute was intended to apply to criminal actions.

Finally, lest any question remain about the Legislature's intent, we have examined all available legislative materials regarding section 128.5 as originally enacted (Stats.1981, ch. 762, § 1) and as amended in 1985 (Stats.1985, ch. 296, § 1).  (Evid.Code, § 459, subd. (c);  Fogelson v. Municipal Court (1981) 120 Cal.App.3d 858, 861, 175 Cal.Rptr. 64.)   We observe that these materials are replete with references to the applicability of section 128.5 to civil actions but contain no suggestion that the statute might apply to a criminal action.

The cavalier attitude displayed by Deputy Public Defender Cook toward the court and his own clients was manifestly unacceptable.   While some form of sanction may well be appropriate, e.g., contempt,5 section 128.5 was erroneously employed in this case.6


The order under review is reversed.


1.   Section 128.5 provides:“(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.   This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.“(b) For purposes of this section:“(1) ‘Actions or tactics' include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint.   The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics' for purposes of this section.“(2) ‘Frivolous' means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.“(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers;  or the court's own motion, after notice and opportunity to be heard.   An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.“(d) The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section.”

2.   “The order imposing sanctions is appealable as a final order on a collateral matter directing the payment of money.  [Citation.]”  (Bauguess v. Paine (1978) 22 Cal.3d 626, 634, fn. 3, 150 Cal.Rptr. 461, 586 P.2d 942.)

3.   In Bauguess v. Paine, supra, 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d 942, the misconduct of a plaintiff's attorney caused a mistrial to be declared.   Although the attorney was found in direct contempt, the trial court declined to impose a penalty for contempt;  however, it ordered the plaintiff's attorney to pay $700 attorney's fees to the defendant as a sanction for causing the mistrial.   The order imposing sanctions was reversed by the Supreme Court on grounds that it was neither authorized by statute nor permissible under the trial court's supervisory powers.  (Id. at pp. 636–638, 150 Cal.Rptr. 461, 586 P.2d 942.)

4.   Penal Code sections 1050, subdivision (c), and 1050.5 authorize sanctions where a continuance is sought without good cause and counsel has not complied with the procedural requirements specified in Penal Code section 1050, subdivision (b).

5.   As the trial court relied solely on section 128.5, which is the only statute before this court, we express no opinion as to the applicability of any other statutory provision to the facts of this case.

6.   In light of this disposition, we need not discuss Cook's alternate contention that sanctions were impermissible because there was no showing that any expenses were actually “incurred by another party.”

DEVICH, Associate Justice.

SPENCER, P.J., and L. THAXTON HANSON, J., concur.

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