Metropolitan News-Enterprise


Monday, July 28, 2008


Page 1


Court of Appeal Tosses Sanctions for Violating in Limine Order


By SHERRI M. OKAMOTO, Staff Writer


Trial courts have no inherent or statutory authority to impose monetary sanctions for violation of an order in limine, the First District Court of Appeal has ruled.

Div. One Thursday reversed an award of nearly $2 million in attorney fees imposed as a sanction against a Westlake Village law firm in a toxic torts case for violation of an order barring any party from referring to the plaintiffs’ alleged damages during the liability phase of the trial. 

The plaintiffs were 32 individuals who lived or worked in the West College Avenue neighborhood of Santa Rosa. After the plaintiffs learned the water wells they used for drinking water had been contaminated, they retained the law firm of Gonzalez & Robinson to investigate the cause of the pollution and pursue compensation.

Plaintiffs later sued the city, state, and various entities that formerly owned or operated businesses near the West College Avenue neighborhood. The trial was bifurcated, and just prior to jury selection in the liability phase, all of the solvent defendants except the State of California, Southern Pacific Transportation Company, and Optical Coating Laboratory Inc. settled with plaintiffs.

Numerous Objections

During the trial, defendants made numerous objections, sustained by the court, that plaintiffs’ attorneys were violating the in limine order. Sonoma Superior Court Judge Allan D. Hardcastle warned plaintiffs’ counsel that they were risking mistrial and exposing themselves to sanctions, and eventually declared a mistrial based on plaintiffs’ counsel’s cumulative misconduct, observing that he had “never seen a case where the court’s orders were so blatantly disobeyed.”

Hardcastle awarded the defendants a combined total of $1,151,041.25 in attorney fees and costs as sanctions against plaintiffs’ attorneys and made a separate award to the state of $672,501.25 in attorney fees and $439,535.31 in expert witness fees jointly and severally against all plaintiffs.

He also reconsidered and granted motions for summary judgment by Optical Coating and the state that he had previously denied.

Summary Judgment Reversed

On appeal, however, the court, in addition to reversing the sanctions, concluded that there was sufficient, “[a]lthough not particularly strong” evidence that Optical Coating bore some responsibility for the contamination and overturned the grant of summary judgment in its favor.

Writing for the appellate court, Justice Sandra L. Margulies cited Bauguess v. Paine (1978) 22 Cal.3d 626 for the principle that a trial court’s inherent authority does not include the power to award attorney fees as a sanction for attorney misconduct absent specific legislative authorization or agreement of the parties.      

Although the Legislature later enacted Code of Civil Procedure Sec. 128.5, which broadened the courts’ power to award monetary sanctions in response to Bauguess, Margulies explained Sec. 128.5 is inapplicable to cases filed after 1995 because it was superseded by Sec. 128.7, which applies solely to attorney misconduct in the filing or advocacy of groundless claims made in signed pleadings.

Secs. 128(a)(4) and 187 also failed to provide the type of statutory authorization required under Bauguess because “generic statements of the court’s powers to formulate suitable procedures and command obedience to its orders do not by their own terms authorize any specific form of attorney sanction,” Margulies wrote.

No Agreement

Based on the record, Margulies concluded there was no plausible evidence that plaintiffs’ counsel agreed to the order  or that it be made applicable to all parties, and regardless, she continued, a mutual agreement by parties to an in limine order will not authorize imposition of monetary sanctions as a remedy unless the agreement specifically so provides.

The justice went on to reject the argument that the award to the state was supported by Sec. 1038, which permits an award of “defense costs,” including attorney fees and expert witness fees, when a public entity prevails in a tort action unless it was brought “with reasonable cause and in the good faith belief that there was a justifiable controversy.”

Margulies concluded that a reasonable attorney could have thought the plaintiffs’ claim against the state was tenable. The court declined, however, to reinstate the claim.

The plaintiffs’ evidence that the state had issued a cleanup and abatement order was insufficient to establish an inference that the condition addressed was likely to cause substantial injury to the public health or safety, Margulies wrote, and therefore failed to raise a triable issue of material fact.

Margulies also concluded that the trial judge did not abuse his discretion in awarding the state its costs under Sec. 998. While tenable, the justice explained, the claim was based on weak circumstantial evidence, supporting Hardcastle’s conclusion that the state’s settlement offer of $1,000 per plaintiff was reasonable.

Alan Charles Dell’Ario and Jacques LeBoeuf of Dell’Ario & LeBoeuf, and Jon B. Eisenberg and William N. Hancock of Eisenberg and Hancock, represented Gonzalez & Robinson, Joseph Gonzalez and Keith Robinson.

     Gonzalez called the court’s opinion “very welcome news,” expressed regret that two of his clients had passed away before the appellate court’s ruling and said he wished they could have heard the verdict.

He said he and his co-counsel “believed that at every step of the way” that they were complying with the trial court’s in limine orders, of which he stated there were about 30 in all.

“We felt they were onerous,” he said “I’ve never seen those kinds of orders before.” Regardless, he claimed “we did try to comply with the orders.” 

Andrew J. Waxler and Gretchen S. Carner of Waxler Carner Weinreb Brodsky represented Charles Cochran, who served as associated local counsel for plaintiffs.

Carner said her client was “extremely pleased” the sanctions had been reversed and that the case could proceed against Optical Coating. She said plaintiffs’ counsel was evaluating whether they should appeal the dismissal of the claim against the state.

Deputy Attorneys General Tyler B. Pon and David W. Hamilton represented the state, while John F. Barg and Jonathan Polland of Barg Coffin Lewis & Trapp represented Union Pacific Railroad Company and John V. Erickson and Robert S. Lawrence of Collette Erickson Farmer & O’Neill represented Optical Coating Laboratory, Inc. They could not be reached for comment.

Justices William D. Stein and Douglas E. Swager joined Margulies in her decision.

The case is Clark v. Optical Coating Laboratory, Inc., 08 S.O.S. 4447.


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