Muega v. Menocal

• Decision Date: 15 October 1996
• Docket Number: No. A070676,A070676
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 8070 Leonora MUEGA et al., Plaintiffs and Appellants, v. Armando MENOCAL et al., Defendants and Respondents.

Page 697

57 Cal.Rptr.2d 697

50 Cal.App.4th 868, 96 Cal. Daily Op. Serv. 8070

Leonora MUEGA et al., Plaintiffs and Appellants, v. Armando MENOCAL et al., Defendants and Respondents.

No. A070676.

Court of Appeal, First District, Division 3, California.

Oct. 15, 1996.

[50 Cal.App.4th 871] Wade Vincent Shang, for Appellant.

Willis C. Silverthorne, Vincent B. McLorg and Michael C. Scanlon, Jr., San Francisco, for Defendants and Respondents.

PARRILLI, Associate Justice.

The trial court awarded respondent Jesusa Lagunera $1,905 in sanctions (CODE CIV.PROC., § 128.5 )¹ against Leonora Muega and Marinella Lim (collectively "appellants"). The court concluded appellants had prosecuted a frivolous complaint at a trial de novo following non-binding judicial arbitration. The trial court also denied appellants' motion to tax costs vis-a-vis Lagunera and respondent Armando Menocal. Muega and Lim have appealed and contend we must reverse these orders. We affirm.

I FACTS AND PROCEDURE

This case arises out of an automobile accident. Lagunera was driving a car in which Muega and Lim were passengers. As Lagunera was attempting to make a left-hand turn, Armando Menocal's car struck Lagunera's car from the rear. Lagunera, Muega and Lim were injured in the accident.

Lagunera, Muega and Lim initially retained attorney Wade V. Shang to jointly represent them in a personal injury action against Menocal. In the initial complaint filed on June 19, 1992, Lagunera, Muega and Lim were named as plaintiffs and Menocal was the only named defendant. In March of 1993 Lagunera substituted in Mr. Cattermole to represent her in the action against Menocal.

Attorney Cattermole propounded interrogatories to Menocal. In his answers Menocal contended Lagunera was solely responsible for the accident. Attorney Shang received these answers to interrogatories on June 12, 1993. According to Shang, this was the first time he had received any information Lagunera might be at fault in the accident. On June 15, 1993, Menocal filed an action for indemnity against Lagunera.

Realizing Lagunera might now be found at fault in the accident, attorney Shang requested permission to file a "supplemental complaint" naming Lagunera as a defendant in Muega and Lim's personal injury action. The trial court granted leave to file the supplemental complaint on July 28, 1993.

At a non-binding judicial arbitration hearing held on November 30, 1993, the arbitrator returned awards in favor of Lagunera for $9,000, Muega for $9,000 and Lim for $18,000, all against Menocal. The arbitrator specifically denied relief on Menocal's cross-claim against Lagunera, and awarded costs to Lagunera on the cross-claim. Thus, the arbitrator clearly indicated Lagunera was not at fault in the accident.

Both appellants (Muega and Lim) and Menocal filed requests for trial de novo. Although Menocal requested a trial de novo on all issues, appellants limited their request to a "TRIAL DE NOVO Supplemental Complaint ... against JESUSA LAGUNERA."

In July of 1994 Lagunera and Menocal settled their claims against each other. Lagunera dismissed her complaint against Menocal and Menocal dismissed his cross-complaint The trial de novo commenced on January 10, 1995. In his opening statement appellants' attorney (Shang) did not attempt to argue Lagunera was liable for the accident. Instead, he said: "Now, where [the] accident happened, what part of that road it happened in, [Ms. Lagunera] may or may not have been able to turn at that particular place in the street. That is one of the questions that is for you to determine, if it was proper for her to make a turn there. I will go by whatever the facts show to you and your decision on that particular point." In his opening statement the attorney for Menocal stated that his client had admitted liability for the accident, and the only issue before the jury was damages.

against Lagunera. The appellants' action maintained Lagunera as a defendant.

Immediately following the opening statements Lagunera made a motion for nonsuit which the trial court granted after counsel for appellants declined an invitation to amend his opening statement. The jury returned a verdict against Menocal, awarding Muega $4,000 and Lim $11,770.

After the jury returned its verdict the parties filed the series of posttrial motions that are the subject of this appeal. First, Lagunera filed a motion for sanctions against appellants Muega and Lim (§ 128.5) on the ground appellants' complaint against Lagunera was "frivolous and totally without merit and ... was intended to harass, coerce, and to be malicious." Additionally, after Lagunera and Menocal filed their memorandums of costs, appellants filed a motion to tax those costs.

The trial court denied appellants' motion to tax costs as to both Menocal and Lagunera. The court granted Lagunera's motion for sanctions under section 128.5, but limited those sanctions to the amount of attorney fees ($1,905) "incurred by defendant Lagunera after the dismissal of [Menocal's] cross-complaint in preparation for the jury trial."

Appellants have appealed these posttrial orders. We affirm.

II DISCUSSION

A. The Sanctions Award

Appellants first contend we must reverse the order awarding $1,905 in sanctions against them under section 128.5. We disagree.

Section 128.5, subdivision (a), provides in part: "Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." The statute further explains that for the purposes of this section " 'Frivolous' means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party." (§ 128.5, subd. (b)(2).) The cases interpreting the cited provisions hold that section 128.5 has greatly extended the power of the trial court to award attorney fees and monetary sanctions in order to discourage frivolous litigation. (Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 304, 10 Cal.Rptr.2d 371; City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 537, 183 Cal.Rptr. 86, 645 P.2d 137 [reissued after vacation in City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 190 Cal.Rptr. 918, 661 P.2d 1072]; Mungo v. UTA French Airlines (1985) 166 Cal.App.3d 327, 333, 212 Cal.Rptr. 369.)

"It is well settled that the award of sanctions under section 128.5 is a discretionary act on the part of the trial court. (Dwyer v. Crocker National Bank (1987) 194 Cal.App.3d 1418, 1438 .) As the court stated in 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 19-20 : 'Under the appropriate standard of review of an order awarding sanctions under section 128.5, it is not the province of this court "to consider the record on appeal to determine if appellant's conduct meets the standards of frivolousness.... [p] ... Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary We find no "manifest miscarriage of justice" in this case. Here the trial court carefully considered the following facts in ruling on the motion for sanctions: First, the arbitrator had denied relief on Menocal's cross-complaint against Lagunera, and Menocal later dismissed that cross-complaint with prejudice. Second, at the trial de novo, appellants' counsel did not cite any facts in his opening statement upon which the trier of fact could find Lagunera liable. The trial court granted Lagunera's motion for nonsuit after appellants' counsel elected not to amend his opening statement. There was no error.

to reverse the trial court is insufficient if it presents facts which merely afford an opportunity [50 Cal.App.4th 874] for a different opinion: 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice; ...' [Citation.]" ' [Citation.]" (Tenderloin Housing Clinic, Inc. v. Sparks, supra, 8 Cal.App.4th at p. 304, 10 Cal.Rptr.2d 371, italics in original.)

In ruling on Lagunera's request for sanctions the trial court stated: "Taking the declarations of counsel at face value it appears that there could have been a good faith belief, at least prior to the arbitration proceeding in November 1993, that defendant Lagunera could have been held liable." The court noted it would be more difficult to hold this belief after the arbitrator ruled Lagunera was not at fault. However, "[a]fter [Menocal's] cross-complaint against Lagunera was dismissed by Menocal in July 1994 it would be difficult if not impossible to entertain a reasonable good faith belief that the facts developed during discovery and the arbitration proceeding would support liability ... against defendant Lagunera." The trial court consequently awarded Lagunera only those attorney fees he incurred after Menocal dismissed his cross-complaint against Lagunera (a total of $1,905). Lagunera had requested a total of $6,533.65 as sanctions.

We believe the trial court's decision is completely reasonable. The only reason appellants named Lagunera as a defendant in the first instance was because Menocal had claimed she was at fault. There is nothing in the record to indicate appellants had any independent reason to believe Lagunera was at fault. This is underscored by the fact the court granted nonsuit after appellants' opening statement at the trial de novo. In short, once Menocal dismissed his action against Lagunera, what little legitimate reason appellants had for maintaining an action against Lagunera disappeared. Therefore, the trial court could properly find appellants' action against Lagunera was "totally and completely without...