Foster v. Warner

Filed 6/18/08 Foster v. Warner CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Jeff Breibart, who formerly represented plaintiff Robert Foster in this action, appeals from a judgment making him liable for $3,925 in attorney fees and costs awarded to defendant Kate Warner under Code of Civil Procedure section 425.16, and jointly and severally liable with his former client for $865 in discovery sanctions. He contends that the attorney fee and cost award against him was unauthorized by law and that the trial court abused its discretion in imposing discovery sanctions on him. We agree with the former contention and will direct that the judgment be modified to make Warners attorney fee and cost award payable solely by Foster. We affirm the judgment as so modified.

I. BACKGROUND

Breibart formerly represented Robert Foster, the plaintiff in this litigation, who is not a party to this appeal. Breibart is no longer an active member of the California State Bar and is representing himself on this appeal, in pro. per.

Foster sued Debra Stevens and Kate Warner for libel and breach of contract. Foster, a construction estimator, had prepared a bid for the performance of corrective work on townhomes owned by Stevens and R. Grant Canfield. The bid had been requested by the attorneys for Stevens and Canfield in the context of prior construction defect litigation brought by them against the townhome developers and others. Warner was Canfields attorney in that litigation. Fosters present suit arose from a letter Warner sent to Foster in October 2004, on behalf of her client and Stevens, which she copied to other persons involved in the construction litigation. The letter described some of the asserted deficiencies in Fosters work product and advised him that neither Canfield or Stevens, nor their respective attorneys, would pay for his work. Foster alleged in his complaint that the letter was libelous on its face (first cause of action) and that Stevens was liable for breaching her contract to pay for Fosters services (second cause of action).

A. Fee Award Against Breibart

Warner filed a special motion to strike Fosters first cause of action under Code of Civil Procedure section 425.16, asserting that the first cause of action arose from a protected activitya statement or writing in connection with an issue under review by a judicial bodyand that Foster had no probability of prevailing on that cause of action due to the application of the litigation privilege. (See Code Civ. Proc.,[1]  415.16, subd. (e)(2); Civ. Code,  47, subdivision (b).) Warner also sought recovery of her attorney fees and costs under section 425.16, subdivision (c).[2]

In its tentative ruling, the court proposed to grant the motion to strike and further stated, Defendant is awarded $7,810.00 in attorneys fees and $40.00 in costs. ( 425.16[, subd.] (c). At the hearing, the trial court advised that it would adopt the tentative ruling since neither side had called to contest it. Warners counsel thereupon handed the court a proposed order granting the motion to strike and awarding Warner $7,810 in attorney fees and $40 in costs jointly and severally against Foster and Breibart. The trial court signed Warners proposed form of order on March 16, 2006.

On May 10, 2006, Breibart filed a Motion for Order to Correct Clerical Error in Order and Amend Order Nunc Pro Tunc that was set for hearing on June 8, 2006. Breibart argued that the March 16 order (1) did not conform to the courts tentative ruling because it awarded fees and costs jointly and severally against him and his client instead of awarding those items solely against Foster; and (2) had to be amended because Breibart was not a party and was not subject to sanctions under the provision cited in the order, section 425.16, subdivision (c).

On June 16, 2006, the court issued a written decision modifying its March 16 order to provide that instead of being jointly and severally liable for Warners attorney fees and costs of $7,810 and $40, Foster and Breibart would each be liable to Warner for one-half of those amounts.

B. Discovery Sanctions

On March 17, 2006, Stevens who was represented by Warner in this case, served Foster by mail with form interrogatories and a request for production of documents. The responses were due 35 days later, on April 21, 2006. (See  1013, subd. (a), 2030.260, subd. (a), 2031.260, subd. (a).) On April 28, 2006, Warner filed a motion to compel responses and for an award of monetary sanctions against Foster and Breibart. In her moving papers, Warner averred that Foster had failed to serve any response to the discovery requests, and failed to request any extension of time for doing so. She sought sanctions of $865 in attorney fees and costs for bringing the motion to compel.

In his papers opposing Stevenss motion to compel, Breibart asserted that Foster had dismissed him as his attorney on March 17, and that he had no contact with Foster between March 17 and April 22, when Foster re-hired Breibart to represent him in this action.[3] Breibart received Stevenss discovery requests after being discharged and had forwarded them to Foster. According to Breibart, he informed Warner promptly of his resumed representation of Foster on Monday, April 24, and sent her a fax on April 26two days before she filed the motion to compeladvising that the discovery would be completed and delivered to her office by May 2. Warner denies this, asserting that she had no contact from Breibart or Foster regarding the outstanding discovery until May 2.

On May 2, Breibart personally delivered responses to the discovery requests to Warners office. It is undisputed that Breibart failed to provide verifications signed by Foster for either of the discovery responses he delivered on that date. According to Warner, she responded to Breibart by letter dated May 5, stating that the motion to compel would remain on calendar unless she received an original verification signed by Foster in her office by May 8. It is undisputed that no verification was provided until the June 8 hearing. Warners assertions regarding the May 5 letter and missing verification were first made to the trial court in Stevenss reply papers in support of her motion to compel, served and filed on May 31.

At the June 8 hearing on the motion to compel, Warner summed up her case for discovery sanctions as follows: I did not get the discovery until after my motion was prepared and filed. We gave him warnings. We gave him deadlines. We received none. [] We filed the motion. Then I get the discovery. [] The discovery is unverified. I write him a letter and say without verification its not discovery. Theres no verification in my hands as of this date. [] So as a result we were forced to file a motion. There was no discovery before the motion was filed. Under the code were entitled to an award of sanctions because we had to file the motion . . . .

The trial court granted the motion to compel and awarded discovery sanctions in the amount of $865 against Foster and Breibart and his law firm. Foster moved to vacate the order imposing discovery sanctions, arguing in part that (1) contrary to Warners claim, Breibart had communicated with her about the outstanding discovery before she filed her motion, advising her by fax sent on April 26 that the completed discovery would be delivered on May 2; and (2) Warner had never in fact sent him the purported May 5 letter giving him a deadline for supplying the missing verification and he did not learn of this inadvertent error until he received Warners reply papers five days before the June 8 hearing on the motion to compel.

The trial court denied Fosters motion to vacate, and entered a judgment in the following amounts: (1) in favor of Warner and against Foster and Breibart in the amount of $3,925 each (for attorney fees and costs incurred in bringing the special motion to strike); and (2) in favor of Warner and against Foster and Breibart, jointly and severally, in the amount of $865 (as a discovery sanction).[4] This timely appeal followed.

II. DISCUSSION

A. Section 425.16 Fee Award

Breibart contends that the $3,925 fee award imposed against him in connection with Warners successful special motion to strike the first cause of action was unauthorized by law and must be reversed. We agree.

An attorney fee award to Warner was mandatory under the first sentence of section 425.16, subdivision (c), since she was the prevailing defendant on a special motion to strike. The trial court believed it was authorized to assess part of the fee award to Breibart as sanctions under section 128.5, because that section is referenced in the second sentence of section 425.16, subdivision (c). However, to the extent that section 128.5 has any continued relevance to motions to strike,[5] it would only be relevant under the second sentence of section 425.16, subdivision (c), i.e., where the court has denied the special motion to strike and found it to be frivolous or solely intended to cause delay. It has no bearing on who may be assessed for mandatory fees awarded when the motion to strike is meritorious and is granted by the court. We therefore reject the trial courts stated basis for its assessment of fees against Breibart.

We find nothing in the statutory language to suggest that the Legislature intended in section 425.16, subdivision (c) to authorize an award of fees against the plaintiffs attorney following a successful motion to strike. The plaintiffs attorney is, after all, not a party to the proceeding. The court would only have power to impose liability on the attorney as a form of sanction for the attorneys misconduct. Statutes such as sections 128.5 and 128.7, do specifically authorize the imposition of liability on a partys attorney as sanctions. (See  128.5, subd (a), 128.7, subd. (c).) No such authorization may be read or implied into section 425.16, subdivision (c).

First, courts do not have the inherent authority to impose attorney fees as sanctions; any such power must be expressly authorized by statute. (Bauguess v. Paine (1978) 22 Cal.3d 626 (Bauguess).) Bauguess reversed an award of attorney fees imposed as a sanction on an attorney for causing a mistrial. (Id. at pp. 633, 640.) The Bauguess court held specifically that a courts inherent power to exercise supervisory control over judicial proceedings does not include the power to award attorney fees as a sanction for attorney misconduct absent specific legislative authorization or agreement of the parties. (Id. at pp. 634640; see also Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809 [Bauguess . . . held that trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties]; Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 371373 [in partial reliance on Bauguess, invalidating rule of court that permitted courts to impose attorney fees in situations not specifically authorized by statute].) If section 425.16 contains no explicit language authorizing an award of fees as sanctions against the attorney who drafted or filed the dismissed causes of action, no such authorization may be implied.

Second, fees awarded to the party bringing a successful special motion to strike are not intended to sanction the losing side, but as a form of relief to the prevailing side. (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1209 (Witte).) The express purpose of section 425.16 is to protect parties from the potentially chilling burden of fighting groundless litigation arising from their exercise of free speech and petition rights. ( 425.16, subd. (a).) That purpose is directly furthered by relieving the defendant of the cost of getting the groundless complaint dismissed. (Cf. Witte, at p. 1209.) Thus, the moving party is automatically entitled to its fees when it brings a successful motion to strike. There is no requirement for any additional or express finding that the losing side has been guilty of bad faith, acting for an improper purpose, or any other form of misconduct.[6] This is in contrast to the fee award authorized when the special motion to strike is denied, which has the character of a sanction since it is not mandatory and does require a finding of misconduct or improper purpose. (Witte, at p. 1209.) Since an award to the moving party under section 425.16, subdivision (c), is not imposed as a sanction for any persons misconduct, there is no logical basis for assessing it against Breibart, who is not a party to the litigation.

Because there is no statutory or logical basis for assessing attorney fees to the plaintiffs attorney under section 425.16, subdivision (c), the portion of the judgment making Breibart liable for one-half of the fees awarded to Warner under that section must be reversed.

B. Discovery Sanctions

Breibart contends that the trial court erred by making him jointly and severally liable for the $865 discovery sanction award made to Warner on Stevenss behalf. He acknowledges that sections 2030.290, subdivision (c) and 2031.300, subdivision (c), provide statutory authorization for the imposition of discovery sanctions on attorneys.[7] However, Breibart argues that the evidence shows he acted with substantial justification and that the circumstances would make the imposition of sanctions on him unjust.

Breibart builds his case on the following asserted facts: (1) he was dismissed as Fosters attorney before he received Warners discovery requests, promptly forwarded the requests to Foster after he received them, and did not resume his representation until April 24, 2006; (2) promptly after resuming his representation of Foster, and before Warner filed the motion to compel, he informed Warner, without any response or objection from her, that the discovery responses would be forthcoming on May 2; (3) May 2 was the earliest practicable time to get the completed discovery to Warner due to the fact that Foster was away from the Bay Area during the entire preceding week; and (4) Warners purported letter of May 5 demanding signed verifications is not authentic; if she had in fact sent it to him he would have had no reason not to immediately supply the inadvertently omitted verifications.[8]

Warner came forward with evidence conflicting with Breibarts claims. She stated that she received no responses to her interrogatories and document requests until after the deadline for responding had passed and she had already prepared and filed her motion to compel.[9] According to Warner, Breibart finally delivered responses to the requests on May 2, 2006, but failed to provide any form of verification from his client. Warner avers that she sent Breibart a letter demanding an original signed verification on May 5 but he did not respond to it until June 8, the date the motion to compel was heard.

A trial court has broad discretion in imposing discovery sanctions, subject to reversal only for arbitrary, capricious, or whimsical action. (Colgate-Palmolive Co. v. Franchise Tax Bd. (1992) 10 Cal.App.4th 1768, 1788.) Here, Warners evidence, if credited by the trial court, was sufficient to show that Breibart acted without justification in failing to communicate with Warner and failing to ensure that she received complete verified responses to her discovery requests before she proceeded with her motion to compel. The court was not required to credit Breibarts claims that Warner was fabricating evidence, that he did properly communicate with Warner, or that he acted as expeditiously as he could under the circumstances to ensure compliance with Fosters discovery obligations. We cannot say on this record that the court acted arbitrarily, capriciously, or whimsically in resolving conflicts in the evidence in Warners favor, and in assessing Breibart along with Foster for the amount of $865 in discovery sanctions.

Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256 does not dictate a contrary result. Ghanooni held that monetary sanctions against a partys attorney require a finding that the attorney advised the party to engage in the conduct resulting in sanctions. (Id. at p. 261.) However, the burden in such cases is on the attorney to prove he or she had not advised the client to engage in the conduct resulting in sanctions. (Ibid.) Here, Breibart makes no claim and offers no evidence that his client is solely responsible for the conduct that occurred between April 24 and the date of the hearing. Breibarts failure to communicate during that period or provide a signed verification, as alleged by Warner, is sufficient by itself to support the award against him.[10]

Ten days after the courts written decision awarding sanctions was filed, Breibart requested findings of fact and conclusions of law for the Law and Motion Hearing held on June 8, 2006 . . . .[11] He filed a similar request after the court denied his motion to vacate the sanctions order. The court did not respond to either request. No response was required. The hearing was concluded within less than a calendar day, and no request for findings was made before the matter was submitted. Although the case law permits rare exceptions to the requirements of section 632, based in part on the magnitude and significance of the rights at stake (see Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660662), we do not find that exception applicable to this dispute over joint and several liability for an $865 discovery sanction.

The trial court did not abuse its discretion in making Breibart liable along with Foster for the discovery sanction in issue.

III. DISPOSITION

The portion of the judgment awarding Warner $3,925 in attorney fees and costs against Breibart is reversed, and the portion awarding discovery sanctions against Foster and Breibart is affirmed. Upon remand, the trial court is directed to enter a modified judgment making the $7,850 attorney fee award to Warner payable by Foster alone, and leaving intact the joint and several award of discovery sanctions against Foster and Breibart. The judgment as so modified is affirmed. Each side is to bear its own costs on appeal.[12]

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Swager, J.

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] Section 425.16, subdivision (c) provides in relevant part: [A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

[3] Breibart signed a substitution of attorney form on March 20, but it was apparently never signed by Foster or filed with the court.

[4] No issue has been raised on this appeal concerning the fact that the judgment awarded the $865 discovery sanction to Warner rather than Stevens, even though Stevens brought the discovery motion.

[5] Section 128.5, which formerly authorized the imposition of monetary expense sanctions, including attorney fees, for bad faith actions or tactics, was replaced effective January 1, 1995, by section 128.7, which provides a more limited authorization for the imposition of fees as sanctions for the filing of improper signed pleadings. (Id., subd. (a).) Section 128.7 includes various procedural prerequisites, including a 21-day waiting period to allow the opposing party time to withdraw a sanctionable pleading, that would be difficult to harmonize with section 425.16. (See Code Civ. Proc.,  128.7, subd. (c).)

[6] While the granting of a special motion to strike could be construed in some cases as an implied finding that the suit was brought to chill the plaintiffs valid exercise of constitutional rights (see 425.16, subd. (a)), the courts have rejected any notion that such a finding is required before the motion may be granted.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.)

[7] Section 2030.290, subdivision (c) provides in relevant part: The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. . . . Section 2031.300, subdivision (c) contains the identical language with the substitution of an inspection demand for interrogatories.

[8] Breibart also points out facts that he believes cast suspicion on the authenticity of the May 5 letter. Warner had otherwise communicated with him by fax, but in this one instance wrote a letter, dated on a Friday, that demanded delivery of signed verifications to her by the following Monday, May 8.

[9] Although Breibart produced a purported fax to Warner dated April 26 promising responses by May 2, the fax contains no markings indicating that it was sent or the date on which it was sent. Warner apparently denies having received it. In any event, Breibart never made a request, timely or otherwise, for an extension of time to respond.

[10] Breibart does disclaim responsibility for Fosters failure to communicate with Warner about the discovery requests before April 26, on the theory that he did not represent Foster between March 17 and April 24. Although we note that no substitution of attorneys was ever filed with the court, the discovery sanction against Breibart is justified by his conduct from April 24 forward.

[11] Breibart cited section 632, which provides in relevant part: In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.

[12] We deny Breibarts request for judicial notice and Warners request for sanctions on appeal.