BULLOCK v. Coddington, Hicks & Danforth, Objector and Appellant. (1990)

Objector and appellant Coddington, Hicks & Danforth (Coddington), attorneys for defendants Howard F. and Erik L. Vultee (defendants), appeals from an order requiring them to pay $250 to the law offices of Joseph W. Carcione, Jr. (Carcione), the attorneys for plaintiff and respondent Albert Bullock (plaintiff), as sanctions pursuant to Code of Civil Procedure section 128.5.

Coddington contends:  (1) the trial court abused its discretion by awarding sanctions based on Coddington's failure to meet and confer with Carcione prior to filing opposition to a motion to inspect defendant Erik Vultee's juvenile records;  (2) adequate notice and opportunity to be heard were  not provided before sanctions were imposed;  and (3) the order did not recite sufficient reasons for the award of sanctions.   Plaintiff responds that the sanctions are proper in all respects and he urges us to impose additional sanctions of $1,200 upon Coddington for pursuing a frivolous appeal.   We affirm the order and will provide appellant an opportunity to be heard to show cause why he should not be further sanctioned for bringing a frivolous appeal.

I. Statement of the Facts and Proceedings

The instant appeal arises out of an action for personal injuries based on a hit and run automobile accident.   Carcione pursued discovery in the personal injury action on behalf of the plaintiff.   Under instructions from Coddington, defendant Erik Vultee refused to answer any questions about the accident on the basis of the privilege against self-incrimination.   The attorneys also engaged in unsuccessful attempts to reach a settlement.

During this period there was a question concerning whether Coddington's client was the driver of the car which injured the plaintiff and whether the defendant would admit liability.   In order to determine the latter, on March 16, 1989, Carcione sent Coddington a letter which included the following:  “Without revealing any specifics, you told me that your client continues to face the prospect of potential criminal charges arising out of this particular accident.”

After waiting three months for a response which came by neither call nor letter, it became necessary for plaintiff to file (on June 16, 1989) a formal petition for “leave to inspect and copy the juvenile traffic court records of defendant Erik Vultee concerning an automobile accident which took place on June 25, 1987, on the grounds that these records are relevant to the instant litigation.”   The petition, which was prepared by Carcione, did not request any sanctions.   Characteristically, Coddington neither telephoned nor otherwise informally contacted Carcione concerning the petition.

Instead, a month later on July 12, 1989, he formally filed a 17–page written opposition on behalf of defendants.   In those opposition papers, Coddington stated:  “The true facts are that defendant Erik Vultee was a passenger in the truck which collided with plaintiff's parked automobile, and Erik Vultee was not even awake when the driver of his vehicle allegedly fled the scene.   Erik Vultee was never charged ․ for any crimes resulting from this incident.  (Declaration of Erik Vultee, attached.)   Also, the documents sought by plaintiff, even if they did exist, are completely irrelevant to any issue raised in the instant litigation as Erik Vultee admits liability and only contests plaintiff's claims for damages.  (True copy of Erik Vultee's  Amended Answer, Exhibit A;  Erik Vultee's Code of Civil Procedure § 998 Offer, Exhibit B.)”  (Emphasis in original.)   The opposition includes a request for $750 in sanctions for a “frivolous and bad-faith tactic and for the abuse of the discovery process.”

Seven days later on July 19, 1989, Carcione responded with a 32–page opposition to defendants' sanction request claiming he was “ ‘sandbagged’ into filing the instant petition.”   Their reply requested modest sanctions of $450 on the ground that defendants' “counsel has lead the undersigned on a wild goose chase.   His claim for $750 in sanctions is an outrage, under these circumstances.”

The next day a hearing was held on the motion and requests for sanctions.   The trial court opened the hearing by satisfying itself there was no necessity for the court to search for a juvenile file regarding the accident.   It then stated to Coddington's associate:  “It appears to me that this entire barrage of paper could have been avoided if you'd called up Mr. Carcione and told him that there was no file.   Instead, you've managed to start a paper war, and ․ I would like you to explain to me why I should not grant Mr. Carcione's request․   What I'm merely interested in ․ is why you or Mr. Coddington didn't call up Carcione's office and say, ‘Hey, the kid didn't get a ticket.   He hasn't got a juvenile matter pending.’  [¶] Why didn't that occur?”

Coddington answered that they did not think it was appropriate to admit facts which put their client in criminal jeopardy or to assist the plaintiff when Carcione was uncooperative.   Carcione stated that until the opposition to the motion was filed, they had been led to believe that Erik Vultee was the driver and that there was a juvenile court file regarding the incident.   Therefore, they proceeded with the motion.   Moreover, on June 9, prior to filing the motion, they requested permission to obtain any juvenile record.  “And we never would have brought this motion if we were advised that there was no record.”

At the close of the hearing, the trial court orally ruled:  “I don't think you're [Carcione] entitled to be treated as you have been after you filed a motion, and I'm therefore going to impose sanctions, pursuant to [Code of Civil Procedure section] 128.5, on the defendants' counsel, in the sum of $250.”

On July 31, 1989, defendants, through Coddington, filed a 57–page motion for reconsideration of the order imposing the $250 sanctions.   The motion was opposed, and after a full hearing, it was denied.   At that hearing, Coddington partner Danforth stated that although they “knew that there  was no criminal prosecution ․ they [did] not know for sure that there aren't any criminal records.”

II. Imposition of Sanctions by the Trial Court

Coddington contends that the trial court “abused its discretion in awarding sanctions against Coddington for failing to meet and confer with plaintiff prior to filing [Coddington's] successful opposition papers.”   This contention lacks merit.

Code of Civil Procedure section 128.5 provides in pertinent part:  “(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․  [¶] (b) For purposes of this section:  [¶] (1) ‘Actions or tactics' include, but are not limited to, the making or opposing of motions․  [¶] (2) ‘Frivolous' means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.”

 On this appeal we must evaluate all the evidence and circumstances surrounding the questioned action with the goal of deciding whether the trial court abused its discretion.  (Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236–1237, 1239, 238 Cal.Rptr. 756;  Park Magnolia v. Fields (1987) 191 Cal.App.3d Supp. 1, 4, 236 Cal.Rptr. 900.)   The sanctions against Coddington are warranted if their failure to “meet and confer” with Carcione “was (1) totally and completely without merit, measured by the objective, ‘reasonable attorney’ standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard.”  (Bach v. McNelis (1989) 207 Cal.App.3d 852, 876, 255 Cal.Rptr. 232.)

 Based on the entire record, we conclude that the trial court did not abuse its discretion when it reached each of the following determinations:  (1) Coddington intended to harass plaintiff and cause unnecessary delay by failing to resolve the motion over the telephone or by a meeting;  (2) Coddington's reasons for such failure are totally and completely without merit under the objective test.

Furthermore, contrary to Coddington's arguments, the first amended answer does not admit liability.   In fact, it concludes with a prayer that “plaintiff take nothing against said defendants by his said Complaint.”   The offer to compromise for $5,000.01 pursuant to Code of Civil Procedure section 998 is also not an admission of liability.   Moreover, we note that an offer to admit liability as a vehicle owner is a very limited admission of liability.

 III. Notice and Hearing

Coddington contends that the trial court lacked jurisdiction to impose Code of Civil Procedure section 128.5 sanctions because the order was issued without adequate notice and opportunity for Coddington to be heard.   The contention is absurd.

Code of Civil Procedure section 128.5, subdivision (c), provides in pertinent part:  “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.”

 A failure to provide adequate notice or hearing is also a violation of due process.  (Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 930, 219 Cal.Rptr. 562;  O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961–962, 196 Cal.Rptr. 409.)   Both the statute and the due process clause create a flexible standard, and whether notice is adequate is to be determined on a case-by-case basis.  (Lesser v. Huntington Harbor Corp., supra, 173 Cal.App.3d at pp. 931–932, 219 Cal.Rptr. 562.)

 It is true that Coddington received but one day's notice of the motion for sanctions, but no motion to continue was advanced, and the record discloses that the parties received a full and adequate hearing.   Moreover, Coddington had a second opportunity to contest the sanctions at the hearing on his motion for reconsideration.   Accordingly, they were accorded due process and all statutory requirements were met.  (Fegles v. Kraft (1985) 168 Cal.App.3d 812, 815, 214 Cal.Rptr. 380;  M.E. Gray Co. v. Gray (1985) 163 Cal.App.3d 1025, 1033–1034, 210 Cal.Rptr. 285;  Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 647–648, 192 Cal.Rptr. 57.)

IV. The Order

 Coddington contends that the trial court “lacked jurisdiction to impose Code of Civil Procedure § 128.5 sanctions as it failed to recite in detail the conduct or circumstances justifying the award.”   Appellant is correct that the order does not strictly comply with the statute, but we find that omission harmless.

Code of Civil Procedure section 128.5, subdivision (c), provides in pertinent part:  “An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”   A lack of the specificity required by the statute is also a violation of due process.  (O'Brien v. Cseh, supra, 148 Cal.App.3d at p. 962, 196 Cal.Rptr. 409.)

 The trial court's order in the instant case is insufficiently specific because it merely provides:  “It is further ordered that defendants' attorneys, Coddington, Hicks & Danforth, shall pay the sum of $250.00 sanctions pursuant to C.C.P. § 128.5 to plaintiff's attorneys, Law Offices of Joseph W. Carcione, Jr., Inc.”

 However, a case will not be reversed for federal constitutional error, such as a violation of due process, if the appellate court is able to declare a belief that it was harmless beyond a reasonable doubt.  (Cal.Const., art. VI, § 13;  Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705;  9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 324–327, pp. 334–337.)

 The purpose of the specific reasons requirement is to inform a party why sanctions were imposed against it and to assist the appellate court in determining whether the trial court abused its discretion.  (See Young v. Rosenthal (1989) 212 Cal.App.3d 96, 124, 260 Cal.Rptr. 369, U.S. appeal pending;  Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 920–921, 225 Cal.Rptr. 845;  Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1029, 215 Cal.Rptr. 708;  Fegles v. Kraft, supra, 168 Cal.App.3d at pp. 816–817, 214 Cal.Rptr. 380.)

The trial court's oral statements which are included in this opinion fully informed appellant of the court's reasons for imposing sanctions.   The record reveals that the sanctions were imposed because Coddington failed to meet, confer with, or otherwise contact Carcione before filing a formal written opposition to the motion to inspect juvenile court records.   That Coddington was well advised of the trial court's reasons is crystal clear:  their first contention here on appeal is that it was an abuse of discretion to award sanctions against them “for failing to meet and confer with plaintiff prior to filing [Coddington's] successful opposition papers.”

A cursory reading of the record strongly indicates that Coddington always had complete knowledge of the trial court's reasons.   This knowledge was acquired from the trial court proceedings and not from reflection after the appeal was filed.   Their own motion for reconsideration of the order for sanctions amply demonstrates such knowledge.   Therein they contend that Carcione's conduct “relieved defense counsel [Coddington] of any obligation, if any there were, to notify Mr. Carcione that no juvenile court records arising from the June 25, 1987, motor vehicle accident, in all likelihood, existed.”   The opening paragraph of the “Statement of the Facts” portion of Coddington's memorandum of points and authorities concludes with the following:  “․ the court found that no juvenile traffic court records existed and that defense counsel acted in ‘bad faith’ in failing to apprise  plaintiff's counsel of the nonexistence of such records.”   Furthermore, Coddington's own words in the accompanying memorandum of points and authorities belies its contention on appeal:  “Because of the well-established history of wholly uncooperative and unreasonable conduct by plaintiff's counsel throughout this action, defense counsel did not act in bad faith in electing not to meet and confer.”   Moreover, the reporter's transcript of the hearing on the motion for reconsideration discloses that Coddington's principal argument was that, because of Carcione's conduct, they should be excused from failing to meet, confer with, or otherwise contact Carcione before filing a formal written opposition to the motion to inspect juvenile court records.   Coddington has amply demonstrated they knew full well why the court imposed sanctions;  such knowledge was fundamental to their challenge of their propriety.

Accordingly, we conclude that the error was harmless beyond a reasonable doubt.   The cases which have reversed or remanded because of an inadequate order, despite the presence of oral findings, appear to have totally ignored this well-established rule that there is no reversal for harmless error.  (See, e.g., Conservatorship of Durham (1988) 205 Cal.App.3d 548, 552, 252 Cal.Rptr. 414;  Lieppman v. Lieber, supra, 180 Cal.App.3d at p. 921, 225 Cal.Rptr. 845;  Lavine v. Hospital of the Good Samaritan, supra, 169 Cal.App.3d at p. 1029, 215 Cal.Rptr. 708;  Fegles v. Kraft, supra, 168 Cal.App.3d at pp. 816–817, 214 Cal.Rptr. 380.)   Because of that failure, we find them unpersuasive here.

V. Sanctions on Appeal

 A study of this appeal leads us to question whether it has been prosecuted for an improper purpose—to harass and/or to delay.   We also question whether it has any possible merit, i.e., whether any reasonable attorney would agree that the appeal is totally and completely without merit.  (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)   Therefore, we are prepared to consider whether the appeal should be deemed “frivolous” and whether we should impose further sanctions on appeal;  we invite Carcione to submit within 10 days an itemized list of costs which were incurred as a result of the appeal.   Coddington may respond in writing within 10 days of the receipt of those claimed expenses.   The parties will also be allowed to present their positions orally at a hearing which will be provided for by separate notice.   At such hearing this court will not consider itself bound by the figure requested by Carcione, but may also consider imposing additional sanctions to make whole this court and its staff pursuant to Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17–18, 244 Cal.Rptr. 581.

In this present era of litigation explosion there is, simply speaking, NO time for us (or for already overburdened trial courts, for that matter) to be  involved with petty squabbles.   The diversion of our resources to settle such a contest seriously interferes with our ability to do justice to “[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.”  (Finnie v. Town of Tiburon, supra, 199 Cal.App.3d at p. 17, 244 Cal.Rptr. 581.)

VI. Conclusion

The order is affirmed.   The matter of sanctions on appeal will be resolved as hereinabove detailed and pursuant to further orders of this court.

ANDERSON, Presiding Justice.

POCHÉ and PERLEY, JJ., concur.