168 Cal.App.3d 812, B006576, Fegles v. Kraft

Docket Nº:B006576
Citation:168 Cal.App.3d 812, 214 Cal.Rptr. 380
Opinion Judge:[10] Gilbert
Party Name:Fegles v. Kraft
Attorney:[7] Yanello & Associates and Mary T. Jackson for Plaintiffs and Appellants. [8] Jim D. Mills, George I. Lane and Richard A. Drace for Defendants and Respondents.
Case Date:May 28, 1985
Court:California Court of Appeals
 
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Page 812

168 Cal.App.3d 812

214 Cal.Rptr. 380

Suellen FEGLES, et al., Plaintiffs and Appellants,

v.

Harold Richard KRAFT, et al., Defendants and Respondents.

Civ. No. B006576.

California Court of Appeal, Second District, Sixth Division

May 28, 1985.

Page 813

Yanello & Associates Law Offices and Mary T. Jackson, Oakland, for plaintiffs and appellants.

Jim D. Mills, George I. Lane and Richard A. Drace, Fresno, for defendants and respondents.

GILBERT, Associate Justice.

Appellants Suellen and William C. Fegles appeal an order of the superior court awarding $450 in "reasonable expenses and attorneys' fees" to respondents who successfully opposed a motion by appellants for a change of venue. We reverse the order of the trial court, and remand.

FACTS

Appellants are plaintiffs in a personal injury action originally filed in Oakland, Alameda County, California, on November 17, 1982. Respondents are defendants in that action. They filed their answer to the complaint and also a motion to change venue to San Luis Obispo, the county of their residence. Appellants filed a counter-motion to retain the action in Alameda County because of inconvenience to 27 witnesses. After a hearing on the motions, the trial court in Oakland ordered the case transferred to San Luis Obispo. Appellants' petition for a writ of mandate was denied on May 27, 1983.

In June 1984, a year after the first motion for change of venue was made, respondents noticed a motion to file a cross-complaint. Appellants, undaunted by the two previous rulings against them on the venue issue, used the

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occasion to try again. On the same day they filed a motion to transfer the case from San Luis Obispo back to Oakland. The motion was based on essentially the same grounds as the motion made the previous year, only now it was alleged that 30 witnesses would be inconvenienced rather than 27. Also, one of the additional witnesses was a doctor in Lake Tahoe. The trial court denied the motion to transfer the case back to Oakland and awarded respondents $450 for the time they spent in opposing the motion.

DISCUSSION

The trial court made its order for attorneys' fees pursuant to Code of Civil Procedure section 128.5, subdivision (a), which provides: "Every trial court shall have the power to order a party or the party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of tactics or actions not based on good faith which are frivolous or which cause unnecessary delay. Frivolous actions or delaying tactics include, but are not limited to...

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