128.5 Sanctions Motion Did Not Comply With Procedural Prerequisites, While Her Status As Former Counsel Did Not Give Proper Opportunity To Contest The Fees Awarded Under CCP § 396b.
In Estate of Miller, Case No. G064476 (4th Dist., Div. 3 June 6, 2025) (unpublished), the underlying matter involved a dispute between two siblings over the estate of their deceased brother. One of the siblings moved to change venue, moving the case from San Bernardino to Riverside County. Another party sought sanctions for the venue change under both CCP § 128.5 and § 396b (the latter being the venue transfer fee-shifting statute) against moving sibling’s former attorney. The lower court granted $8,100 in fees under § 396b and the same amount under § 128.5, but it appears not to have done double-dip orders. Former attorney appealed and obtained a reversal, one as a matter of law and the other with a remand. The 128.5 order was reversed because it was not made in a separate motion and did not give compliant 21-day safe harbor notice (reversed as a matter of law). With respect to the 396b order, that was reversed because former attorney was not given proper notice of continued hearings in order to properly contest, although the reversal was done on a remand basis for the lower court to properly consider the 396b motion with proper notice to former attorney. Justice Gooding authored the 3-0 opinion.
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