Corralejo v. Quiroga

Opinion

THOMPSON, J.

Defendants’ counsel appeals from an order requiring him to pay $100 to plaintiff’s counsel pursuant to Code of Civil Procedure section 128.5.

Factual and Procedural Summary

Plaintiffs and cross-defendants Julian and Bertha Corralejo (plaintiffs) filed a complaint against the defendants and cross-complainants Consuelo and Gabriel Zapata and German Quiroga (defendants). The complaint was filed in the Municipal Court of Los Angeles on July 23, 1981.

The defendants filed a cross-complaint seeking damages in excess of the jurisdictional limitation of the municipal court. On November 24, 1981, the

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matter was ordered transferred to the Los Angeles Superior Court upon payment of transfer fees by the defendants.

On February 25, 1983, the plaintiffs filed a motion to dismiss the cross-complaint for failure of the defendants to pay the requisite transfer fees. One day prior to the time the motion was calendared to be heard, the defendants paid the fee.

The plaintiffs’ counsel did not receive any notice of the defendants’ payment of fees. Plaintiffs subsequently sought imposition of sanctions against the defendants under Code of Civil Procedure section 128.5. Plaintiffs contended that the defendants’ actions were dilatory and required the plaintiffs to suffer expenses of filing and appearing at the hearing to dismiss the cross-complaint.

The court below granted the plaintiffs sanctions under the following order: “Motion is granted. Sanctions of $100.00 from defense counsel to plaintiffs’ counsel are ordered. ...”

Discussion

Code of Civil Procedure section 128.5 provides: “(a) Every trial court shall have the power to order a party or the party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of tactics or actions not based on good faith which are frivolous or which cause unnecessary delay . . . . [1f] (b) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”