O'BRIEN v. Cseh

Opinion

DALSIMER, J.

Defendant Bella Cseh, appeals from an order imposing sanctions of $150 in attorney’s fees on her pursuant to Code of Civil Procedure section 128.5. (All further statutory references are to the Code of Civil Procedure.) Defendant contends that the order is invalid because the notice requirements of due process and section 128.5 were not met and because the order does not detail justification for the imposition of sanctions with the degree of specificity required by section 128.5. We agree with both contentions and reverse the order.

Plaintiff, Louise Bertha O’Brien, filed a complaint for personal injuries against defendant on April 27, 1982. Defendant filed an answer on May 28, 1982. The case was ordered into arbitration on January 13, 1983. On March 21, 1983, the appointed arbitrator sent a letter to both parties notifying them that an arbitration hearing had been scheduled for April 13, 1983, at 6 p.m. On March 24, 1983, Richard Merrill, attorney for defendant, sent a letter to the arbitrator and a copy to plaintiff’s counsel notifying them that the date and time of April 13, 1983, at 6 p.m. was “not acceptable.”

[960]

On April 1, 1983, approximately a week later, plaintiff’s attorney, Nolan King, filed an “Ex Parte Application for Court Order Setting Arbitration Date” and “Request for Attorney’s Fees Pursuant to C.C.P. § 128.5” in Los Angeles Superior Court. The time for hearing was 11 a.m. that same day. The application included a declaration from Mr. King setting forth his reasons for seeking a court-ordered arbitration date and sanctions against defendant. Mr. King declared that, after receiving Mr. Merrill’s letter of March 24, 1983, indicating that the arbitration date was not acceptable, Mr. King contacted the arbitrator’s office and was told that the arbitrator was having “some difficulty” in contacting Mr. Merrill. Mr. King also declared that he had personally placed eight unanswered telephone calls to Mr. Merrill. Mr. King concluded from this that “[i]t appears that the defendants are trying to ‘Stonewall’ this arbitration and unless the Court orders a date certain, the arbitration will not take place. ”

Mr. King further declared that he had given “the necessary four-hour notice” by calling Mr. Merrill’s office on the morning of March 31, 1983, the day before, and advising two secretaries of the “date, time and place of this ex parte application.”