IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 7, 2010
PAULA SKERSTON, PLAINTIFF AND APPELLANT,
ROBERT NEWMAN, DEFENDANT AND RESPONDENT.
Appeal from an order of the Superior Court of Orange County, Kazuharu Makino, Judge. Reversed. (Super. Ct. No. 03-2009-00308503)
The opinion of the court was delivered by: Bedsworth, Acting P. J.
Skerston v. Newman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
STATEMENT OF FACTS
Appellant Paula Skerston filed a complaint against respondent Robert Newman for intentional infliction of emotional distress. Newman responded with a SLAPP motion.*fn1 The motion was granted and the case dismissed.
Newman asked for sanctions. He candidly acknowledged to the court that he was not entitled to attorney fees, since he had represented himself, and instead asked for sanctions under Code of Civil Procedure section 128.5.*fn2 The court granted them in the amount of $710, which represented filing fees.
This appeal has its genesis in an order by the trial court purporting to impose $710 in sanctions pursuant to section 128.5. Respondent Newman sought sanctions under that statute and the court granted them, explicitly relying upon that statute. Appellant contends the court "issued an order for sanctions under [section] 128.5 that fails to comply with the requirements under [section] 128.5." Specifically, she complains that the order fails to "recite in detail the conduct or circumstances justifying the order." (§ 128.5, subd. (c).)
The problem with this argument, the problem with the court's order, the problem with the request for sanctions brought below, is that section 128.5 is defunct. "Section 128.5 . . . was superseded for actions filed on or after January 1, 1995, by section 128.7." (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164.) The applicable statute would now appear to be section 128.7.
Obviously, the court had no jurisdiction to impose sanctions under a statute which was not operable. And application of section 128.7 to the case would not save the order, since that statute requires that the party to be sanctioned be given 21 days in which to withdraw or amend the offending filing, and that, "[w]hen imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed," neither of which was done here.
In Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 682-683, the court dealt with the converse of our case, an order summarily imposing sanctions after denying a motion under section 425.16, explaining, "the trial court did not make a finding the SLAPP motions were frivolous or brought solely for delay much less recite in detail the conduct or circumstances it believed justified imposing sanctions. The court merely stated it found the defendants' justification for their late filing 'unpersuasive.' 'Such a summary order violates dues process and precludes this court from determining whether the trial court abused its discretion in awarding sanctions' under sections 425.16 and 128.5." (Fn. omitted.)
Here the court's description of the basis for its order was similarly terse, "So sanctions will be granted, [$710]." And the order submitted by respondent simply says, "Plaintiff is ordered to pay Robert Newman sanctions pursuant to [section] 128.5 in the amount of $710.00 (seven hundred ten dollars) within 30 days." There may have been reason for sanctions, but it does not appear in the record, and it is clear the requirements of section 128.7 pertaining to notice and withdrawal of an offending document were never considered because that statute was never considered.
Under those circumstances, the order imposing sanctions must be reversed. Appellant is awarded costs on appeal.
WE CONCUR: FYBEL, J. IKOLA, J.