Also, Order Denying Sanctions Request Is Not Appealable In Itself, With A Writ Or Appeal After Final Judgment Being The Ways To Challenge Such An Order.
Plaintiff’s class action attorneys, who represented a client arising out of spiraling events from a minor alleged debt by Capital One, were sanctioned $125,690.56 under CCP § 128.5 (full request plus “fees on fees”) for pursuing a frivolous class action suit against a law firm which sent a Capital One dunning letter, premised on the theory that earlier settlement agreement language expressly released “attorneys” inclusive of Capital One’s attorneys. Attorneys appealed, and it is a good thing they did.
The 4/1 DCA, in Smith v. Hunt & Henriques, Case No. D076278 (4th Dist., Div. 1 Mar. 2, 2021) (unpublished), reversed as a matter of law. That occurred because it was not crystal clear that Capital One’s attorneys sending the dunning letter were included within the scope of or were third beneficiaries under the “attorneys” language in the settlement agreement such that the class action litigation could not be viewed as frivolous based upon the released language theory.
Attorneys also had requested that the lower court sanction the law firm for bringing its section 128.5 motion, a request which was denied. No appeal could be had from the order denying sanctions because it was only reviewable through a mandate writ petition (which might be consolidated with the underlying appeal) or from a later appeal of a final judgment in the action.
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