Prelitigation Conduct Does Not Justify 128.5 Sanctions Award, But Combo Motion Also Justified The Result.
In Broadcast Music, Inc. v. Structured Asset Sales, LLC (Currency Corp.), Case Nos. B272418/B278379 (2d Dist., Div. 2 July 30, 2019) (unpublished), the appellate court reversed a $176,869 CCP § 128.5 sanctions award against a client represented by co-contributor Mike. His client appealed, obtaining a reversal with the benefit of experienced co-appellate counsel.
The sanctions award was reversed for two primary reasons. First, the moving party did not provide the 21-day safe harbor requirement of Nutrition Distribution, LLC v. Southern SARMs, Inc., 20 Cal.App.5th 117, 123-130 (2018). The losing side argued that the safe harbor provision did not apply because the opposing party’s conduct could not be withdrawn or corrected. However, its authorities only related to pre-litigation conduct (which was the germane alleged conduct), versus pendency of litigation conduct, such that they did not support the argument. Second, and alternatively, the respondent did not make the sanctions motion separately from a combined Civil Code section 1717 motion such that it was not permissible. Respondent argued that section 1717 gave an independent ground to sustain the fees award, but the problem was that the sanctions motion was not authorized and that section 1717 does not authorize sanctions fees. No appellate fees awardable to respondent because (1) no section 1717 fees were awarded at the trial level, and (2) the appellate court could not award for final appeals results which were not the subject of prior fee requests.
BLOG OBSERVATION—Mike’s co-counsel on appeal were Edward A. Hoffman (lead counsel), F. Jay Rahimi, and Matthew D. Kanin, all of whom he enjoyed working with along the way.
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