Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. UDSS701928, Kenneth Barr, Judge.
Borton Petrini and Daniel L. Ferguson for Defendants and Appellants.
The Duringer Law Group, Stephen C. Duringer, and R. Scott Andrews, for Plaintiffs and Respondents.
OPINION
McKINSTER Acting P. J.
Plaintiffs and respondents Geneil and Theron Vines filed an unlawful detainer action against defendants and appellants Tropical Beverage, Inc. (Tropical), Mika International, Inc. (Mika), and others for breach of a commercial lease. Defense counsel moved the court to disqualify plaintiffs’ counsel, alleging that counsel had improper ex parte contact directly with a litigant, Jay Huss. Plaintiffs’ counsel defended the motion, explaining counsel’s reasonable belief that Huss was not a party nor affiliated with a party to the action. The trial court denied the disqualification motion and imposed sanctions against Tropical, Mika, and their counsel, both the firm (appellant Borton Petrini, LLP) and the attorney (appellant Jeffrey Dains). Tropical, Mika and the attorney appellants appeal the sanctions order. We reverse.
FACTS AND PROCEDURAL HISTORY
Plaintiffs apparently owned a disused bottling factory in Mentone, California. In 2007, they entered into a commercial lease with Tropical and Mika to rent the industrial and manufacturing space for five years. In July 2007, plaintiffs filed an unlawful detainer action, alleging nonpayment of rent.
Tropical and Mika answered that they had paid the rent due.
In August 2007, at a hearing on the matter, defense counsel, attorney Dains, asked to take up a matter in chambers; this was apparently the first mention of the alleged ground of disqualification of plaintiffs’ counsel. Evidently, defense counsel had prepared a letter to the California State Bar reporting plaintiffs’ attorneys for alleged misconduct.
After the conversation in chambers, which was not reported, the court stated: “I think it is sufficiently important based on what I have learned in private conversation with both Counsel that this issue be dealt with first and . . . I am going to continue the matter on the Court’s own motion in order to provide the opportunity to brief the issue.” The court ordered an abbreviated briefing schedule, and set the hearing on the motion for September 20, 2007.
Plaintiff’s counsel immediately thereafter filed a peremptory disqualification of the judge who had set the motion hearing. The matter was reassigned to another judge.
Defendants filed motion papers to disqualify plaintiffs’ counsel on the ground that plaintiffs’ attorneys had had “direct communication with James Huss aka Jay Huss, who is the owner and president of Mika International [i.e., a party to the action] and who they knew at all times relevant was represented by counsel.” Plaintiffs’ attorneys had allegedly e-mailed Huss with instructions to download the contents of the e-mail, and to reprint them on Mika’s or Huss’s letterhead and fax the letter back to plaintiffs’ counsel. Defense counsel claimed that the communications were designed to elicit false testimony. That is, plaintiffs knew or should have known that the original three-day notice to pay or quit had not been properly received, and contacted Huss to persuade him to testify falsely that he had received a proper notice. Defense counsel further claimed that plaintiffs’ attorneys had offered Huss an inducement for this false testimony, in the form of a promise that plaintiffs would not seek payment of damages in the unlawful detainer action from Huss, and would allow Huss to operate the bottling business, after the other parties were evicted, rent free for an agreement to share profits with plaintiffs.
Plaintiffs’ counsel opposed the disqualification motion. Counsel vehemently denied any wrongdoing and argued that the accusations were defamatory.
Plaintiffs’ counsel produced a letter purportedly written by Huss to plaintiff Theron Vines, dated July 9, 2007. First, the letter was sent directly to plaintiff, and not to plaintiffs’ counsel. Second, plaintiffs did not in fact engage counsel until July 10, 2007, after the letter had been written. Plaintiffs’ counsel could hardly have instructed Huss to download and reprint the contents of the letter, when they had not been retained until after the letter’s date. In addition, Huss failed to produce the alleged e-mail instructing him to download the letter.
Plaintiffs’ counsel maintained that it was Huss who had repeatedly contacted counsel, not the other way around. In these telephone calls, Huss had represented that he had no association with either Tropical or Mika, and that he feared for his safety and that of his family from the men who were in charge of Tropical and Mika. Attorney Scott Andrews averred that he had never spoken to Huss on the telephone except to follow up on a subpoena that had been sent to Huss. Attorney Duringer recounted one telephone call from Huss, in which Huss described the people involved in Tropical as “dangerous people” who had threatened to “ ‘take care of any attorney that went after them.’ ” Huss explained that he felt a duty to warn Duringer. Huss also stated that he was no longer associated with Mika.
Duringer verified by records of the Secretary of State that Huss was not listed as the president, or any other officer, of Mika.
Plaintiffs’ counsel denied the allegations stated in Huss’s declaration that Huss had many telephone conversations with plaintiffs’ counsel. Huss provided no dates when the conversations had allegedly taken place. Huss had claimed to call the Anaheim office to speak to attorney Stephen Duringer, but Duringer worked primarily in the Lake Arrowhead office.
The trial court denied defendants’ motion to disqualify plaintiffs’ counsel. The court further ordered both defendants and defendants’ counsel (jointly and severally) to pay sanctions in the amount of $8,776.25, for plaintiffs’ attorney fees in having to respond to the motion.
Defendants and defense counsel appeal the order of sanctions.
ANALYSIS
I. An Award of Attorney Fees as a Sanction Under Code of Civil Procedure Section 128.6 Was Improper
Plaintiffs’ opposition to the motion for disqualification requested attorney fees as a sanction pursuant to Code of Civil Procedure section 128.6. Defendants and defense counsel point out that Code of Civil Procedure section 128.6 is inoperative. (Stats. 2005, ch. 706.) In Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 810-811, the California Supreme Court explained that Civil Code section 128.6 was to become operative only upon expiration of Code of Civil Procedure section 128.7. The sunset date for section 128.7 was extended twice, before the most recent legislation extended its operative date indefinitely. (Stats. 2005, ch. 706, (Digest Assem. Bill No. 1742) § 3 [“This bill would delete the repeal date of January 1, 2006, contained in these provisions and thereby extend indefinitely the operation of these provisions”].) Thus, Code of Civil Procedure section 128.6 has never come into operation.
Consequently, to the extent the motion for attorney fees as sanctions was predicated upon Code of Civil Procedure section 128.6, the award was improper.
Plaintiffs’ counsel urges that defendants and their attorneys did not raise this issue or objection below. Nonetheless, the question whether such an award is statutorily permissible presents a question of pure law, which we review de novo. (See Brasher’s Cascade Auto Auction v. Valley Auto Sales & Leasing (2004) 119 Cal.App.4th 1038, 1048.) Inasmuch as the California Supreme Court held in Bauguess v. Paine (1978) 22 Cal.3d 626 that the courts have no inherent power to award attorney fees as sanctions (id. at pp. 634-639), such an award in the absence of statutory authority is beyond the jurisdiction of the court, and thus subject to review.
II. The Attorney Fees Sanctions Award Cannot Be Presently Sustained Under Code of Civil Procedure Section 128.7
Nor can Code of Civil Procedure section 128.7 be simply substituted; as defendants and their attorneys point out, section 128.7, subdivision (c)(1), requires service of a request for sanctions to comply with notice provisions of Code of Civil Procedure section 1010. In addition, it may not be presented “unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1); see also Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 423 [trial court may not ignore the safe harbor provision of § 128.7].)
In addition, Code of Civil Procedure section 128.7, subdivision (e), requires 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.” We agree with defendants and their attorneys also that this provision was not observed in the court’s ruling below.
Accordingly, the sanctions award cannot be upheld under either Code of Civil Procedure section 128.6 or 128.7.
DISPOSITION
The sanctions award against defendants and against their attorneys, Borton Petrini, LLP and Jeffrey Dains, is reversed. In the interests of justice, however, each party is ordered to bear its own costs on appeal.
We concur: GAUT J., MILLER J.