Sanctions: Although Lower Court’s CCP § 128.5 Order Failed To Be Sufficiently Detailed In Writing, Bad Faith Finding Became Law Of The Case For The Remand Proceeding

$6,400 Sanctions Award Against Attorney Was At Issue For Going Away On A European Vacation Rather Than Reporting For Trial.

            In Mid-Centry Insurance Company v. Mazarei, Case No. G056643 (4^th Dist., Div. 3 June 27, 2019) (unpublished), plaintiff insurer was suing to recoup defense expenses to an insured, with the lower court determining that no duty of defense was owed.  That meant the matter was going to trial to see what should be reimbursed to the insurer.  The trial was continued several times, with defendants’ counsel not showing up for trial after losing an ex parte continuance request based on a fictional medical condition attributed to one of the defendants.

One of the defendants did show up for trial call, prompting the lower court to continue the matter for an OSC re sanctions against defense counsel and recognition that trial had to be continued because defendants had been “stranded.”

           Defense counsel did appear at the OSC, with the trial court imposing $6,400 in sanctions under CCP § 128.5.  However, the sanctions order was not detailed as required under section 128.5 such that a remand was in order.  But there was one important caveat:  given that the record below did show bad faith, that finding became law of the case and did not have to be revisited on remand.  (West Coast Development v. Reed, 2 Cal.App.4^th 693, 706 n. 6 (1992).) 

            Acting Presiding Justice Bedsworth authored the 3-0 opinion for a 4/3 DCA panel.