Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Wilfred J. Schneider, Jr., Judge. Petition granted., Super.Ct.No. J226724
Nolan F. King, in pro. per., for Petitioner.
A formal response to the petition for writ of mandate was not received; however, Judge Wilfred J. Schneider, Jr., submitted an informal letter response, which was filed on November 12, 2009.
No appearance for Real Party in Interest.
HOLLENHORST, Acting P. J.
In this matter, we have reviewed the petition, the respondent court’s informal letter response, and the reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
A court has the inherent power to control matters and behavior. It may also impose sanctions for “bad faith” actions or those, which cause “unnecessary delay”; these sanctions are compensating expenses payable to the other side. (Code Civ. Proc., §§ 128, 128.5.) However, the court does not have the “inherent” authority to impose punitive money sanctions. (Bauguess v. Paine (1978) 22 Cal.3d 626, 638; see also Andrews v. Superior Court (2000) 82 Cal.App.4th 779, 783.)
“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.
“Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” (Code Civ. Proc., § 177.5.)
“Due process mandates adequate notice and opportunity to be heard prior to the imposition of sanctions. [Citation.] The trial court may raise the issue of sanctions on its own motion but, in doing so, it must give notice of its intent to impose sanctions. [Citation.] That ‘notice must be given before findings are made and at a time preceding the trial judge’s decision whether, in fact, to impose sanctions.’ [Citation.] ‘[The] adequacy of notice should be determined on a case-by-case basis to satisfy basic due process requirements. The act or circumstances giving rise to the imposition of expenses must be considered together with the potential dollar amount.’ ” (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.)
In Barrientos v. City of Los Angeles, supra, 30 Cal.App.4th 63, the appellants were attorneys representing both sides of a civil liability lawsuit. Respondent, a superior court judge, imposed sanctions on them when they failed to settle the suit without giving them notice or an opportunity to address the court before the sanctions were imposed. Appellants paid the sanctions but sought review and contended that their due process rights had been violated by the sanctions order. The court agreed and held that respondent failed to comply with the due process requirements of giving notice and opportunity to be heard before imposing sanctions.
In this case, petitioner represented a client in a matter that was set for a pretrial settlement conference on July 7, 2009. His secretary called the court that morning to ask if the matter could be trailed a day or two. Based on this request, the trial court continued the matter for one day to July 8 to accommodate petitioner and to allow him to explain why he was not able to appear on July 7.
However, petitioner failed to appear on July 8, 2009, but had another attorney submit a declaration in which he stated that he was required to appear in other cases on July 8. In that declaration, petitioner detailed other commitments he had on that date. Thereupon, the trial court imposed sanctions in the amount of $250 because, as it explained, petitioner knew he would not be available on July 8 when the day before he said he would be. The court stated that it “did not allow [petitioner] to further explain his misrepresentation to the Court as revealed by the declaration.”
As the court acknowledged in its response, it did not afford petitioner notice and an opportunity to be heard prior to the imposition of sanction. It concluded that petitioner had misled the court. However, petitioner’s declaration states that he might have been able to make an appearance in the afternoon of July 8, 2009. Thus, for example, if given an opportunity to explain, petitioner might have been able to persuade the trial court that there had been a misunderstanding when his secretary communicated with the court staff the previous day. The trial court might well have concluded ultimately that petitioner’s conduct warranted sanctions, but its failure to afford petitioner due process compels us to grant the petition to set aside its order.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order directing petitioner to pay sanctions.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: McKINSTER, J., KING, J.