Di Grazia v. Anderlini

California Court of Appeal Feb 18, 1993 No. A055776Published

Before: Benson

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Holding. A judge challenged for cause under Code of Civil Procedure section 170.1 is a "party" to the ancillary disqualification proceeding, and therefore the trial court has jurisdiction to award sanctions under section 128.5 against a litigant who files a frivolous challenge.

Issues

Whether a trial court has jurisdiction to impose sanctions under section 128.5 in favor of a judge challenged for cause under section 170.1.
Whether a judge challenged for cause is a "party" within the meaning of section 128.5.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In view of the unique nature of proceedings under section 170.1, we find the challenged judge is such a “party”; therefore, on a proper finding the challenge is frivolous or made only to delay, a trial court may order payment of reasonable expenses”

“We hold that in such a proceeding, the challenged judge is a “party” within the meaning of section 128.5, and as such is entitled to seek sanctions where the challenge is frivolous or made only to delay the underlying action.”

[683]

Opinion

BENSON, J.

This appeal arises out of a probate action filed by Eva Di Grazia against several parties, including appellant, Philip R. Anderlini (Anderlini). In those proceedings, Anderlini challenged Judge Lynn O’Malley Taylor for cause, pursuant to Code of Civil Procedure section 170.1,

subdivision (a)(6)(C). After hearing, at which Judge Taylor was represented by Marin County Counsel (County Counsel), the trial court found the challenge was frivolous and ordered Anderlini to pay a reasonable attorney fee to County Counsel. Here, Anderlini contends the trial court lacked jurisdiction to award sanctions to an attorney representing atrial court judge challenged for cause under section 170.1. We affirm.

Facts and Procedural History

In the underlying probate action, trial was scheduled for September 23, 1991. Judge Taylor had heard several pretrial motions, and had denied Anderlini’s attempt to disqualify her under section 170.6. However, on September 16, 1991, one week before the date set for trial, Anderlini challenged Judge Taylor for cause under section 170.1. Anderlini alleged Judge Taylor was biased or prejudiced against his counsel, and requested she be removed from the pool of judges available to hear the probate action.

On September 24, 1991, Judge Taylor answered Anderlini’s statement of disqualification. She declined to recuse herself in the matter, and requested a hearing. She was represented by County Counsel, who prepared her answer and a memorandum of points and authorities in opposition to Anderlini’s statement. County Counsel, relying on section 128.5, argued the challenge was frivolous, and requested the trial court impose a sanction against Anderlini consisting of reimbursement to the County of a reasonable attorney fee.

On October 1, 1991, the trial court denied Anderlini’s challenge to Judge Taylor. In addition, the trial court found Anderlini’s challenge frivolous and made for the purpose of delay; it ordered Anderlini to pay County Counsel $3,000, which the court found was a reasonable attorney fee. Anderlini appeals from the portion of the order awarding sanctions.

Di Grazia v. Anderlini

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BENSON, J.

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