MARK BALABANIAN ET AL VS. KIERAN O' CARROLL ET AL

Matter on the Law & Motion/Discovery Calendar for Wednesday July 2, 2025, line 8, PLAINTIFFS MARK BALABANIAN, KRISTEN BALABANIAN'S Motion For Sanctions Against William Kronenberg For Failure To Appear At Mediation (tentative ruling part 1 of 2)

Plaintiffs Mark and Kristin Balabanian move for sanctions pursuant to Code of Civil Procedure 128.5 against defendants' lead counsel William Kronenberg for his failure to appear at an agreed mediation without notice to them. For the reasons stated herein the court grants the motion in part and orders Kronenberg to pay $9,975.50 in sanctions to the Balabanians.

The parties agree that they scheduled mediation with a neutral for May 27, 2025. Plaintiffs and their counsel attended. Defendants appeared through an insurance carrier representative and a junior associate; Kronenberg was in trial on another matter and did not appear. Only a portion of the mediator's time that day was used and the parties put the matter over for a second session.

Defendants argue that the Balabanians failed to comply with 128.5's safe harbor provision. The court disagrees. Subdivision (f)(1)(B) of 128.5 states that a party must give 21 days' notice of its sanctions motion "[i]f the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected . . . ." This provision does not apply because the alleged tactic is a past failure to appear at mediation; it cannot be withdrawn or appropriately corrected with notice.

Turning to the merits, the court concludes that sanctions are appropriate here. Section 128.5 permits the court to require one party to pay another's reasonable fees and costs incurred "as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." Mediation is a significant event in a case, and the declarations and exhibits submitted by the Balabanians indicate the parties plainly contemplated lead counsel would attend, as is typical for any mediation.

Kronenberg developed a conflict in early April 2025 and did not inform opposing counsel that he would be unable to attend the mediation. (Kronenberg Dec. paras. 3, 6.) Kronenberg states that this was an oversight. (Id. para. 6.) As in In re Marriage of Gumabao (1984) 150 Cal.App.3d 572, 577, regardless of his reasons, Kronenberg "fail[ed] to take the courteous step of notifying [opposing counsel] of his predicament," requiring counsel to prepare for and attend a wasted session. This was discourteous, frivolous, and caused unnecessary delay. (Id.)