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Court of Appeal, First District, California.

Arthur ROBERTS, Petitioner, v. THE SUPERIOR COURT of the City and County of San Francisco, Respondent; Gene ROLAND et al., Real Parties in Interest.

No. A054834.

Decided: March 09, 1992

Petitioner Arthur Roberts challenges attorney's fees awarded against him pursuant to section 128.5 of the Code of Civil Procedure .1

It appears from the exhibits furnished with the petition that petitioner was required to move from the premises he rented at 475-19th Avenue in San Francisco so that the premises could be renovated. Petitioner filed an action in small claims court against his landlord, Ernest Hui Bon Hoa, and the manager of the property, Gene Roland (doing business as Gene Roland Realty) requesting $5,000 as damages for “ ‘harassment, intimidation, destroying peaceful quiet enjoyment of my housing rented.” ’ After the claim was filed, the landlord sent petitioner the sum of $1,000 which was the maximum to which he was entitled for moving costs under the rent stabilization ordinance. Petitioner returned the money and amended his complaint to add a cause of action for $4,000 moving costs on the theory that he could ask for moving costs on behalf of three other persons. Judgment was entered for petitioner in the amount of $1,000 plus $13 in costs.

The defendants in the small claims action, real parties in interest herein, appealed and the matter was heard by respondent court which ordered judgment for real parties against petitioner for $0 puls $38 costs. Attached to the judgment was an explanation from which it can be inferred that real parties had already paid the $1,000 to petitioner and did not seek its return on the appeal.2 Also included in the explanation was the information that petitioner had presented evidence as to his claims against real parties at the trial de novo and that respondent court found the claims frivolous. The explanation of judgment concluded with the following remark: “Furthermore, the court finds that plaintiff's claims are totally frivolous, vicious and in bad faith. The court will, therefore, consider an order for payment of defendants' expenses, including attorneys' fees upon a properly noticed motion. (Section 128.5[ ].)”

Real parties thereupon filed a motion for attorney's fees pursuant to section 128.5. Attached to the motion was an itemization of time and charges for the preparation of the small claims appeal and the motion for sanctions. The total amount requested for fees and costs was $1,214.50.

Petitioner opposed the motion and attached his declaration attesting to his good faith in pursuing the small claims action.

On August 9, 1991, an order was filed awarding sanctions in the amount requested. In explanation of the award, respondent court reviewed the actions of petitioner which led the court to sanction petitioner. The court referred to the fact that petitioner had filed two other law suits involving the renovation of the premises. “The court is offended by the vicious tactics of Mr. Roberts and is of the opinion that he is misusing, and indeed abusing the process of this court for the sole purpose of extorting money from the defendants. All of Mr. Roberts' claims against the defendants are totally and completely without merit and therefore frivolous within the meaning of section 128.5․”

Petitioner filed the instant petition on September 4, 1991. At the direction of the Supreme Court we issued a writ of review and now reverse the order imposing sanctions.


Section 128.5, subdivision (a) provides: “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.”

The instant order suffers from the basic problem that real parties did not incur any of the expenses they claim “as a result of” any actions by petitioner. Petitioner did not file the appeal which resulted in the fees. A small claims plaintiff has no right to appeal. (§ 116.710.) Real parties filed the appeal themselves despite the fact that they had prevailed in the small claims action-except for the judgment of $1,000 for moving expenses which they apparently did not contest on the appeal. Thus, the conclusion seems inescapable that the expenses involved in pursuing superior court review were incurred as a result of real parties' own action.

Respondent court may well be correct that petitioner may have acted improperly in filing some portions of the small claims action. However, real parties incurred no expense in defending that action. If the other actions referred to by respondent court are frivolous, sanctions may be sought in those actions and ultimately petitioner could be designated as a vexatious litigant if such a designation is warranted. (See § 391, et seq.) However, section 128.5 does not provide a means to generally punish a litigant for actions outside the action in which the sanctions are imposed.

Real parties in opposing this petition contend that the petition is moot because the order of August 9, 1991, which petitioner challenges was replaced by an amended order dated September 9, 1991. The amended order is identical to the earlier order except that it corrects the address of the rented premises. The petition challenging the imposed sanctions is not moot.

The order imposing sanctions is reversed and the matter is remanded for the trial court to vacate its orders of August 9, 1991, and September 9, 1991, imposing sanctions.


1.  Unless otherwise indicated all further statutory references are to the Code of Civil Procedure.

2.  The court explained: “The court now finds that the defendants have fully complied with the terms of the San Francisco Rent Stabilization Ordinance with respect to moving costs; however, the court doubts that plaintiff has actually incurred $1,000 in moving expenses․ [T]he court finds that plaintiff is not entitled to any money other than the amount he has actually received for his moving expenses. It is possible that he should be required to repay defendants for costs not actually incurred.”



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