Karwasky v. Zachay

Opinion

BROWN (Gerald), P. J.

Attorney John Fay appeals an order imposing $250 sanctions against him.

Plaintiff Georgia Karwasky sued defendants Delbert Zachay and his employee Maurice Covington for her injuries in a fall at a trailer park owned by Zachay and managed by Covington. Karwasky alleged in her complaint Covington’s wrongful acts were in the course of his employment and directed by Zachay.

Attorney Judith Haller represented the defendants. Claiming Haller’s representing Covington was adverse to Zachay, Karwasky asked the superior court to disqualify Haller as Covington’s attorney. Karwasky also asked the court to order Zachay’s insurer not to pay for Covington’s defense. Asserting Karwasky’s motion was frivolous and not in good faith, defendants noticed a motion for $900 sanctions under Code of Civil Procedure section 128.5. After hearing the court denied Karwasky’s motion and ordered Karwasky’s Attorney Fay to pay Haller $250 sanctions for making a frivolous motion in bad faith without basis in law.

[681]

Under Code of Civil Procedure section 128.5 subdivision (a), the court may order a party’s attorney to pay reasonable expenses resulting from frivolous actions, including making motions without good faith. Fay contends the court abused its discretion in awarding sanctions here without evidence he acted in bad faith in seeking to disqualify Haller. He asserts mistaken legal judgment does not constitute bad faith. However, a motion is frivolous and in bad faith where, as here, any reasonable attorney would agree such motion is totally devoid of merit. (See

In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 649-650 [183 Cal.Rptr. 508, 646 P.2d 179].) In seeking to disqualify Haller, Fay alleged Haller had a conflict of interest in representing both defendants because Covington was Zachay’s employee and acted on Zachay’s orders. However, Fay made no showing whatsoever Haller had any such conflict. Fay presented no evidence and points to nothing in the record suggesting any such conflict existed. Further, Fay cited no authority the defendants’ employment relationship without more created any conflict under the facts alleged here. Indeed, Fay admitted to the superior court the absence of any statutory or case law supporting the motion to disqualify Haller. Moreover, given Karwasky’s allegations Covington’s wrongful acts were in the course of his employment, Covington’s liability, if any, may be imputed to his employer Zachay and covered by Zachay’s insurer; indeed, Zachay may have the duty to indemnify Covington. (See Lab. Code, § 2802.)