Sanctions Reversed & Vince Lombardi Approach To Litigation Rejected.

This is the first paragraph of the opinion: “Sanctions are a judge’s last resort. At bottom, they are an admission of failure. When judges resort to sanctions, it means we have failed to adequately communicate to counsel what we believe the law requires, failed to impress counsel with the seriousness of our requirements, and failed even to intimidate counsel with the fact we hold the high ground: the literal high ground of the bench and the figurative high ground of the state’s authority. We don’t like to admit failure so we sanction reluctantly.” Plaintiff’s counsel attached what was apparently thought to be the contract to the complaint. Defendant brought a motion for summary judgment, attaching the real final contract. Three weeks prior to the motion, plaintiff filed a motion to amend the complaint. The judge announced he would rule on the motion to amend at the same time he ruled on the summary judgment motion. The court granted the motion to amend and denied the motion for summary judgment. On its own motion, the court set an order to show cause re dismissal and sanctions because plaintiff “attached and incorporated into its verified complaint a purported agreement between [plaintiff] and [defendant] that was not a true copy of the alleged actual agreement between the parties.” At the hearing, the court awarded defendant $5,076 in sanctions pursuant to Code of Civil Procedure section 128.7. The appellate court reversed, noting defense counsel could have picked up the telephone or written a letter “and simply explained that [plaintiff] had the wrong document, expressed a willingness to stipulate to an amendment, and only if [plaintiff] had persisted in doing nothing, brought some sort of motion or other proceeding to correct the mistake. That would have been the civil and professionally correct thing to do. That seems to us to be what the authors of Section 583.130 had in mind thirty years ago when they wrote, ‘It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in brining the action to trial or other disposition.” In concluding its opinion, the appellate court rejected the “Vince Lombardi approach” [Winning isn’t everything; it’s the only thing]. Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (Cal. App. Fourth Dist., Div. 3; June 27, 2013) 217 Cal.App.4th 708, [158 Cal.Rptr.3d 743].