Sanctions: Attorney’s Fees Requested Under CCP § 128.7 Denied Where Motion Not Clearly Targeted And Appeal Was Not Frivolous In Nature

 

Remittitur Cost Apportionment Issue Also Considered.

     The First District, Division 4, in a case it had seen before a couple of times (with the case eventually going to the state supreme court), had decided that an in pro per attorney could not collect an award of attorney’s fees in connection with CCP § 128.7 sanctions--a determination affirmed by the supreme court. A remittitur issued awarding costs to the successful appellant (who was a litigant’s attorney), but the winning attorney defending against the fee request wanted to recover fees as well under section 128.7.

     That request was denied by the lower court and affirmed in Musaelian v. Adams, Case No. A126240 (1st Dist., Div. 4 June 29, 2011) (unpublished).

     The first problem was that the moving party failed to describe the sanction being sought or name the parties to whom it was addressed. That was reason enough to deny the motion. Also, section 128.7 fees are only awarded to the prevailing party “if warranted.” Although finding no California case discussing this language, the appellate court located plenty of F.R.Civ.P. Rule 11 cases holding that fees incurred in defending a Rule 11 motion are infrequently granted unless the sanction was clearly frivolous. (See, e.g., E. Gluck Corp. v. Rothenhaus, 252 F.R.D. 175, 183 (S.D.N.Y. 2008); Richelson v. Yost, 738 F.Supp.2d 589, 602 (E.D.Pa. 2010); Haniotakis v. Nassan (In re Zion), 727 F.Supp.2d 388, 413 (W.D.Pa. 2010); G-I Holdings, Inc. v. Baron & Budd, 2002 U.S.Dist. LEXIS 15443 (S.D.N.Y. Aug. 21, 2002).)

     On the apportionment of costs on appeal between certain parties, the appellate court observed that this task generally resides only in the Court of Appeal. (Ramirez v. St. Paul Fire & Marine Ins. Co., 35 Cal.App.4th 473, 477-479 (1995).) However, the trial court did have authority to interpret the appellate remittitur, an apportionment interpretation upheld in this instance.

     Also, for you appellate practitioners out there, the ending discussion centered on whether the prior winning appellant seeking costs should recover interest on a loan used to fund a cash deposit for the appellate undertaking. It surveyed the tension in different cases (with a similar issue up for review in Rossa v. D.L. Falk Construction, S183523), but decided appellant had failed to meet his evidentiary burden to obtain entitlement to recovery of the claimed costs.