Fegles v. Kraft

• Decision Date: 28 May 1985
• Docket Number: No. B006576,B006576
• Citation: 168 Cal.App.3d 812,214 Cal.Rptr. 380
• Court: California Court of Appeals Court of Appeals
• Parties: Suellen FEGLES, et al., Plaintiffs and Appellants, v. Harold Richard KRAFT, et al., Defendants and Respondents. Civ.

Page 380

214 Cal.Rptr. 380

168 Cal.App.3d 812

Suellen FEGLES, et al., Plaintiffs and Appellants, v. Harold Richard KRAFT, et al., Defendants and Respondents.

Civ. No. B006576.

Court of Appeal, Second District, Division 6, California.

May 28, 1985.

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 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, making or opposing motions without good faith."

Appellants argue that their tenacity does not amount to "frivolous actions, delaying tactics, or bad faith." Borrowing language from Karwasky v. Zachay, (1983) 146 Cal.App.3d 679, 681, 194 Cal.Rptr. 292, appellants argue this is not the case where "any reasonable attorney would agree such motion is totally devoid of merit. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 [183 Cal.Rptr. 508, 646 P.2d 179].)" It is possible that a "reasonable attorney" might agree that the initial opposition to the motion for change of venue could have some merit when first brought. Bearing in mind that "all that endures is change," that view might be subject to a reappraisal after one trial judge, and presumably a panel of at least two or three appellate justices, decided the motion lacked sufficient merit to be granted.

The contention by appellants that the motion was made in good faith loses some of its vitality by the conspicuous absence of compliance with Code of Civil Procedure section 1008, subdivision (b), which provides: "When the party who originally made an application for an order which was refused in whole or part, ... makes a subsequent application for the same order upon an alleged different state of facts, it shall be shown by affidavit what application was made before, when and to what judge, what order or decision was made thereon, and what new facts are claimed to be shown. For a failure to comply with this requirement, any order made on such subsequent application may be revoked or set aside on ex parte motion."

Counsel for respondents had the foresight to fill in the gaps so that the trial court had before it the full historical perspective concerning this ill-fated change of venue motion.

Appellants argue that section 1008, subdivision (b), applies when the identical motion is made in the same court as the first motion because the file would not immediately reveal to the judge that a similar motion had been made previously. Here, they argue that the face of the file reveals that the case had been transferred from Alameda Superior Court. Therefore, it was unnecessary to tell the judge something he already knew. ¹

Appellants cite Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 183 Cal.Rptr. 594, for the proposition that the court in certain cases may enter a ruling even though the requirements of section 1008, subdivision (b), have not been met. True. Here the court made a ruling even though the requirements of section 1008, subdivision (b), were not met.

We note that appellants had adequate notice of the motion for attorney's fees which was incorporated in respondent's opposition to the motion to retransfer the case back to Alameda County. Appellants also had ample opportunity to argue the case in San Luis Obispo before Judge Conklin. At the hearing, the judge wondered, as we do, when this moribund motion can be laid to rest and no longer resurrected to haunt the courts of either Alameda or San Luis Obispo Counties. We hope that Judge Conklin's ruling delivered the coup de grace.

At the hearing to retransfer the case to Oakland, Judge Conklin reviewed the history of the motion and wondered rhetorically as he addressed appellants: "[Y]ou are renewing a motion and requiring the defendant to meet that motion when the motion was made in Alameda County. [p] The motion to change venue was granted. It was taken up to the Court of Appeal. The Court of Appeal rejected the opportunity to change the ruling of the trial court."

Appellants argued that their present motion was different than the earlier one because plaintiffs had made the original motion for change of venue, whereas now it is appellants who are affirmatively moving that the venue be changed. Riding the momentum of this stunning argument, appellants argue that the circumstances had so changed that they were justified in bringing the motion. They point out that a treating doctor of one of the plaintiffs is in Lake Tahoe. Although travel time from Lake Tahoe to San Luis Obispo may be longer than it is to Oakland, Judge Conklin sagaciously...