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Sherman v. Kinetic Concepts Inc.11/17/1998
too late.
That is not to say a default judgment would have been a proper sanction. It would have placed the Shermans in a better position than if discovery had been obtained in the first place. (See, e.g., McGinty v. Superior Court, supra, 26 Cal.App.4th at p. 210 ["The courts frown upon the extreme sanction of dismissal of a case for failure to make discovery, and recommend instead lesser sanctions of fines"].) But the trial court denied the motion for sanctions on the ground it could not grant relief after the Conclusion of the trial, thus it did not consider the merits of the request. It should have reached the merits and found monetary sanctions absolutely mandated.
The Shermans also sought sanctions under section 128.5, 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." (§ 128.5, subd. (a).) However, such expenses may not be imposed "except on notice contained in a party's moving or responding papers." (§ 128.5, subd. (b), italics added.)
The trial court narrowly interpreted the statute to require parties to raise the sanctions issue only in the first exchange of points and authorities. That interpretation is unreasonable. Bad faith tactics in supplemental and reply papers are equally as repugnant to the orderly conduct of legal proceedings as are bad faith tactics in the first round of papers. The point of section 128.5 is adequate notice: KCI had notice. Nothing more was required. The court should have decided the issue on its merits.
The judgment and the order denying the Shermans' requests for sanctions under sections 2023 and 128.5 are reversed. The case is remanded for a new trial. The court shall order sanctions in favor of the Shermans and against KCI in an amount at least sufficient to compensate the Shermans for the costs, including attorney fees, of the first trial. The court may exercise its discretion to determine whether additional sanctions are warranted. The Shermans shall recover their costs on appeal.
WE CONCUR: WALLIN, ACTING P.J. & RYLAARSDAM, J.
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