Metropolitan News-Enterprise


Friday, April 19, 2002


Page 3


Sanctions May Be Awarded After Demurrer Sustained—C.A.


By a MetNews Staff Writer


A trial judge may award sanctions for pleading a frivolous claim after a demurrer has been sustained, as long as a final judgment has not been entered, the Court of Appeal for this district has ruled.

Div. Six Wednesday reinstated a sanctions award against attorney Peter diDonato, who was ordered to pay attorney fees to James C. Van Trees III and the law firm of Hathaway Perrett, Webster, Powers & Chrisman.

DiDonato’s client, Thomas Banks, sued Van Trees two years ago for abuse of process, malicious prosecution and infliction of emotional distress. The complaint accused Van Trees of wrongfully levying on a judgment after Banks satisfied a prior judgment in full.

Van Trees demurred, and served Banks with a Code of Civil Procedure Sec. 128.7 motions for sanctions.

The statute permits imposition of sanctions against an attorney for the improper filing of “pleadings, petitions, notice of motions and other similar papers.” A paper is improper if it is filed for “an improper purpose,” makes frivolous legal arguments, or makes claims or denials that are factually unsupportable.

The law requires that the opposing party be given a 30-day “safe harbor” in which to withdraw the offending pleading or paper before the motion may be filed and heard in court.

DiDonato amended the complaint. Van Trees demurred again.

Ventura Superior Court Judge Thomas Hutchins sustained the demurrer. Two days later—more than three months after the Sec. 128.7 motion was served—the defendant filed the motion. Hutchins granted it, awarding sanctions in an amount to be determined at a later date.

Hutchins, however, later vacated the sanctions order on his own motion. He said in his order that the sustaining of the demurrer had been “a dispositive judicial ruling” that deprived the court of jurisdiction..

Justice Kenneth R. Yegan, writing for the Court of Appeal, disagreed.

Hutchins, Yegan suggested, was erroneously persuaded by dicta in a couple of Court of Appeal cases. The holdings in those cases only preclude imposition of Sec. 128.7 sanctions if judgment is entered before the motion is served and filed, Yegan said.

The defendant, Yegan elaborated, correctly realized that the “safe harbor” requirement “can be a trap for the unwary under the fast track rules if the sanctions motion is filed in tandem with a demurrer or motion for summary judgment.”

The trap is avoidable, he pointed out. Citing Rutter’s 2001 practice guide, Civil Procedure Before Trial, the jurist said the defendant had acted correctly in the case before the court by serving the sanctions motion, then waiting out the 30-day period before filing the demurrer and serving the Sec. 128.7 motion.

“Van Trees…served the motion for sanctions and demurrer in proper sequence,” the justice wrote. “The trial court erred in ruling that the sustaining of the demurrer eviscerated Van Trees’ right to seek sanctions.”

The case is Banks v. Hathaway, Perrett, Webster, Powers & Chrisman,  02 S.O.S. 1864.


Copyright 2002, Metropolitan News Company