Foss v. Biscotti

Filed 9/18/07 Foss v. Biscotti CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Craig S. Kamansky, Judge. Reversed.

Rowley & Larrimore and Nicholas C. Rowley for Defendant and Appellant.

Gary Rand and Suzanne E. Rand-Lewis for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant Louis Biscotti and his counsel, Nicholas C. Rowley, appeal from an order directing them to pay attorney fees to Plaintiff and Respondent Brandon Foss after Biscotti brought an unsuccessful motion to set aside deemed admissions. Biscotti contends the trial court lacked authority to impose attorney fees as a sanction.

II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

In the underlying action, Biscotti was sued for medical malpractice. In April 2004, the plaintiff served a request for admissions on Biscotti. In June 2004, while Biscotti was defending himself in propria persona, the trial court granted the plaintiffs motion that the requests for admissions be deemed admitted.

In September 2004, Biscotti obtained counsel. In November 2005, Biscottis counsel filed a motion to set aside those admissions. The plaintiffs counsel opposed the motion and requested attorney fees and costs as sanctions. The trial court denied Biscottis motion and ordered Biscotti to pay attorney fees to the plaintiff in the amount of $6,740. The courts oral order stated, And in that regard, monetary damages of sanctions for reasonable attorney fees and costs of $6,740 against defendant Dr. Biscotti and/or his attorney. The minute order stated that sanctions would be imposed against Biscotti only. Specifically, the order stated, The court imposes sanctions on Dr[.] Louis Biscotti in the amount of $6740.00 payable to plaintiffs counsel on or before 04/05/06. The notice of ruling prepared by plaintiffs counsel stated, Plaintiffs[] request for sanctions, fees and costs associated with Defendant[]s Motion is granted and sanctions ordered against Defendant Biscotti and his counsel, Nicholas Rowley/Rowley & Rinaldelli in the amount of $6,740.00.

III. DISCUSSION

When, as in this case, a party fails to file a respondents brief, we will decide the appeal on the record, the opening brief, and any oral argument by the appellant. (Cal. Rules of Court, rule 8.220(a)(2).)

The plaintiffs request for sanctions did not cite any authority for an award of sanctions, nor did the trial court cite any authority to support its award of sanctions. We presume the trial court relied on its power to award sanctions under Code of Civil Procedure^[1]section 128.5, subdivision (a). Under that statute, the trial court may order a party, the partys attorney, or both to pay any reasonable expenses, including attorneys fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. ( 128.5, subd. (a).)

The filing of a motion may serve as the basis for such an order if the motion is totally and completely without merit or for the sole purpose of harassing an opposing party. (Code Civ. Proc.,  128.5, subd. (b)(1), (2).) However, [e]xpenses pursuant to this section shall not be imposed except upon notice contained in a partys moving or responding papers; or the courts own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order. ( 128.5, subd. (c).) On an appeal from an order imposing sanctions under section 128.5, this court reviews whether the trial court abused its broad discretion. (Olson Partnership v. Gaylord Plating Lab, Inc. (1990) 226 Cal.App.3d 235, 240.)

The purpose of the requirement that the trial court state its reasons for imposing sanctions is to allow the offending party to defend its conduct on appeal and to allow this court to engage in a meaningful review of the sanctions award. (Olson Partnership v. Gaylord Plating Lab, Inc., supra, 226 Cal.App.3d at pp. 240-241.) Here, however, the trial court made no findings that the motion was frivolous or meritless, and the trial courts order recited no conduct or circumstances justifying its order. (See Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 682-683 [holding that an award of sanctions violated due process when the trial court did not make findings that a motion was frivolous or brought solely to cause delay, and the trial courts order did not specify any conduct or circumstances justifying the order].)

We conclude the matter must be remanded so the trial court may either make appropriate findings or, in the alternative, deny an award of attorney fees. (See West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 707.)

IV. DISPOSITION

The order appealed from is reversed and the matter is remanded for further proceedings consistent with this opinion. Appellants to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Code of Civil Procedure.