That's What I Meant to Say

The trial court complied with its obligation to describe the conduct justifying sanctions and the basis for the sanction imposed even though it did not give an explanation at the hearing on the motion, said the Sixth District Court of Appeal in Hopkins & Carley v. Gens (Nov. 21, 2011, H032781), __ Cal.App.4th __ [2011 DJDAR 16802].

After an arbitrator awarded plaintiff $474,061.56 in attorney's fees, plus $6,950.00 in costs, defendant appealed from the Superior Court's order confirming the arbitration award and, separately, from the Superior Court's order denying his motion to vacate the award.  The former appeal was dismissed when defendant failed to pay his fees.  While the latter appeal was pending, defendant filed a motion in the trial court "for relief from judgment, pursuant to Code of Civil Procedure §473."

Plaintiff moved for sanctions under C.C.P. §128.7.  At the hearing on both motions the court denied defendant's motion and granted plaintiff's motion for sanctions, stating, "I do intend to impose sanctions against Mr. Gens in this matter, however not in the amount being requested.  Sanctions in the amount of $9,000 will be ordered."

On appeal defendant contended that the court's ruling failed to comply with §128.7(e), which provides, "When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed."  The court of appeal agreed with defendant that the court did not give a distinct explanation for the sanctions at the hearing, but said that it did so in its formal order, which was prepared and submitted by the plaintiff.  The order stated that defendant's motion was filed for an improper purpose and was not supported by existing law, and the amount of the sanction was sufficient to deter repetition of the violation and was based on the time expended by plaintiff in defending against the motion.

Defendant's dismissal of the court's order as a "form order" prepared by the plaintiff, which the court merely signed,  was of no moment, said the court, as there is no authority for the premise that the court cannot adopt such an order as its own.  Also, the order adequately described the wrongful act and explained why the amount of the sanction was chosen.

As to the merits of the sanction order, the court concluded that there was no abuse of discretion.  "Indeed, it appears that if this case involves any 'chill' bearing on the propriety of a sanctions award, it resides not in any tendency to inhibit zealous advocacy but in the enormous snow job that Gens and his attorneys have heaped upon their opponent, the trial court, and this court."