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In Hilger v. Moore, 56 Mont. 146, 168, 182 P. 477, 481, Mr. Justice Holloway speaking for the court said: "In the Camp Sing Case, the court reviewed at great length the several provisions of article 12, explained their purpose, and reached the conclusion, in effect, that all the restrictions imposed upon the Legislature by that article are restrictions with reference to property taxation.
Summary of this case from Cottingham v. St. Bd. of ExamOpinion
E031934.
10-30-2003
JAMES F. HILGER, Plaintiff and Appellant, v. LERNER, MOORE, MAMMANO, STRASSER & SILVA et al., Defendants and Appellants.
Martin & McCormick, John D. Martin, and Kathy J. McCormick for Plaintiff and Appellant. Cotkin, Collins & Ginsburg, Joan M. Cotkin, and Terry L. Kesinger for Defendants and Appellants.
INTRODUCTION
Plaintiff sued defendants for legal malpractice after defendants represented plaintiff in two workers compensation matters. Defendants moved for summary judgment. The trial court granted the motion, on the ground plaintiff was unable to prove he suffered any damages from defendants alleged negligence. Plaintiff appeals from a judgment entered in favor of defendants.
Defendants also moved for sanctions against plaintiff and his attorneys pursuant to Code of Civil Procedure section 128.7, arguing that plaintiffs lawsuit was frivolous. They sought the full amount of their attorneys fees incurred in defending the complaint. The motion for sanctions was denied, on the ground that section 128.7 did not apply to a complaint and on the further ground that the statute was not intended to allow a party to recover all of its attorneys fees incurred in an action. Defendants cross-appeal from the order denying their motion for sanctions.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We affirm the judgment, because we agree with the trial court that plaintiff failed to raise a triable issue of material fact that he sustained any damages as a result of defendants alleged professional negligence. We remand the matter to the trial court for further consideration of defendants motion for sanctions.
FACTS AND PROCEDURAL HISTORY
A. Background
From May 1997 to October 2000, defendants, attorney Lawrence Lerner (Lerner), and Lerner, Moore, Mammano, Strasser & Silva, a Professional Corporation (the firm), represented plaintiff in two workers compensation matters. Plaintiff claimed he sustained injuries to his knees, back, and psyche while employed as a warehouse worker between 1993 and 1997. Lerner and the insurers for plaintiffs employers sent plaintiff to specialists in the fields of orthopedics, pain management, and psychology.
During the pendency of the workers compensation actions, plaintiff presented himself as a completely disabled person suffering from pain, dragging one leg, and unable to ambulate without the assistance of a walker. He also presented himself as being under the influence of alcohol and addicted to pain medication. On August 8, 2000, his deposition was taken. He appeared at the deposition limping and "partially intoxicated." Throughout the deposition, he portrayed himself as significantly disabled.
Unbeknownst to plaintiff, the insurers had taken sub rosa videotapes of him in June and July 2000. In the videotapes, plaintiff appeared to be engaged in conduct without a hint of physical disability.
It is undisputed that on August 17, 2000, plaintiff was offered $ 200,000 to settle his workers compensation claims. It is also undisputed that the offer was withdrawn on August 28, 2000. The parties dispute the timing of the offer relative to the insurers review of the sub rosa videotapes. Lerner maintains that the offer was withdrawn after the insurers viewed the sub rosa videotapes. Plaintiff maintains that the offer was made after the insurers viewed the sub rosa videotapes. In any event, the offer was withdrawn.
At a mandatory settlement conference on October 5, 2000, plaintiff signed a compromise and release, accepting $10,000 in "new money" to settle his claims. The insurers also agreed not to seek reimbursement of any of the monies previously paid to or on behalf of plaintiff, and not to refer plaintiff to "any agency for further [proceedings]." The settlement was approved by the Workers Compensation Appeals Board.
In addition to the $10,000 sum, the settlement agreement indicated that plaintiff had received temporary disability payments, permanent disability payments, and other payments totaling $83,600.67, and had incurred and had paid on his behalf medical and hospital bills totaling $ 16,960.23.
In July 2001, plaintiff sued defendants for professional negligence. The complaint alleged that Lerner and the firm were negligent in failing to properly prepare the case for trial, and in advising and/or forcing plaintiff to accept the $10,000 settlement.
Defendants moved for summary judgment, and agreed to continue the hearing to allow plaintiff to conduct additional discovery. The motion was granted after a hearing on April 3, 2002, on the ground that plaintiff was unable to establish that he sustained any damages as a result of defendants alleged professional negligence.
B. Standard of Review
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) "The purpose of a motion for summary judgment is `to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. [Citations.] [Citation.]" (City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiffs causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. Once the defendant has met its burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts, or a defense thereto. The plaintiff may not rely upon the mere allegations in its complaint, but must set forth "specific facts" showing that a triable issue exists. (§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
"We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Where a trial courts evidentiary rulings involve only questions of law, we review the rulings de novo.
"We carry out our appellate function by applying the same three-step analysis required of the trial court. We first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving partys showing has satisfied his burden of proof and justifies a judgment in movants favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact." (Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1369.)
"Because a summary judgment denies the adversary party a trial, it should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.) The moving partys papers are strictly construed, the opposing plaintiffs papers are liberally construed, and doubts as to whether summary judgment should be granted are resolved in favor of the opposing party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
C. The Elements of Legal Malpractice
"`"The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professionals negligence. [Citations.]"" (Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1716.)
"A plaintiff alleging legal malpractice in the prosecution or defense of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the underlying action. [Citation.]" (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057, italics added.) This is the case-within-a-case or trial-within-a-trial method of ascertaining damages. Its purpose is to avoid damages based on pure speculation and conjecture. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834; accord, Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
"Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his attorneys negligence, he cannot establish a cause of action for malpractice. Breach of duty causing only speculative harm is insufficient to create such a cause of action. [Citation.] `[D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable. [Citation.]" (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-662.) Rather, "`"[d]amages to be subject to a proper award must be such as follows the act complained of as a legal certainty."" (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461.)
In Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514 (Marshak), the case-within-a-case method was applied to a plaintiffs legal malpractice action against his attorney, which was brought after the attorney recommended and the plaintiff agreed to a monetary settlement in the plaintiffs marital dissolution action. The plaintiff alleged his attorney negligently failed to object to the valuation of certain assets, which resulted in a loss of $337,000 through the settlement. As in the present case, the gravamen of the plaintiffs complaint was that his attorney advised him to settle the marital dissolution action for "`less than the case was worth." (Id. at pp. 1516, 1518.)
The Marshak court upheld summary judgment in favor of the attorney, because the plaintiff failed to proffer any evidence that he would have obtained a better result had he not agreed to the settlement. In response to the attorneys motion, the plaintiff proffered evidence that the assets were erroneously valued, but failed to proffer any evidence about the value of his case. It was insufficient to show that the assets should have been valued differently. Rather, the plaintiff was also required to show either that his wife would have settled for less than she did, or that he would have obtained a more favorable judgment following a trial. (Marshak, supra, 72 Cal.App.4th at pp. 1516-1519.)
D. Defendants Motion for Summary Judgment Was Properly Granted, Because Plaintiff Failed to Raise a Triable Issue of Material Fact on the Element of Damages
Defendants contend that there is no triable issue of fact, in the following regards: (1) plaintiffs claim that he might have recovered more than $10,000 had he gone to trial as opposed to settling is impermissibly speculative; (2) the $10,000 compromise and release is res judicata on the reasonableness of the settlement, because it was approved by the Workers Compensation Appeals Board; and (3) the standards of professional ethics required Lerner to recommend settlement as opposed to going to trial and exposing plaintiff to possible criminal prosecution given the apparent contradiction between plaintiffs deposition testimony and the sub rosa film.
We conclude that plaintiff failed to raise a triable issue of material fact on the element of damages. Accordingly, we do not address the other elements of plaintiffs cause of action for professional negligence, or defendants second and third contentions. In our analysis, we focus on the evidence presented by the sides on the issue of damages. We first address defendants evidence, and conclude that defendants met their burden of showing that plaintiff could not establish the element of damages. We then address plaintiffs evidence, and conclude that it was insufficient to raise a triable issue of material fact on the element of damages.
1. Defendants Evidence
In their motion, defendants claimed that "[p]laintiffs underlying case was nearly worthless following publication of the subrosa videotapes." (Italics added.) In support of this contention, they relied on Lerners declaration and the expert declaration of Charles R. Ibold, Jr. (Ibold).
Numerous documents were attached to Lerners declaration, including the $10,000 compromise and release agreement, an RJN Investigations report regarding the content of the sub rosa videotapes, medical reports, and plaintiffs deposition transcript taken in the workers compensation matters. Plaintiff objected to most of Lerners declaration on the grounds that it lacked foundation, constituted hearsay and inadmissible opinion, and violated the best evidence rule. (Evid. Code, §§ 702, 803, 1200, 1520.) No objections were made to Ibolds declaration.
The trial court sustained objections to the portions of Lerners declaration concerning what the sub rosa videotapes showed, what certain medical reports stated, what defense counsel in the workers compensation actions told Lerner, and the contents of the compromise and release. The objections were sustained to the extent that the above portions were submitted for the truth of the matter stated therein. To the extent that the portions went to Lerners state of mind relative to his reasoning for settling the case, the objections were overruled.
The trial courts evidentiary rulings on Lerners declaration were correct. Lerner described what the sub rosa videotapes depicted. He quoted from a medical report, referenced various comments made to him by defense counsel in the underlying workers compensation actions, and summarized portions of the compromise and release. To the extent that these portions of Lerners declaration were offered for their truth, they were inadmissible hearsay or oral testimony of the content of a writing. (Evid. Code, §§ 1200, 1523.)
However, the contents of plaintiffs deposition transcript, which was attached to Lerners declaration, constituted admissions, to the extent the testimony was based on plaintiffs personal knowledge. (Evid. Code., §§ 702, 1221.) Additionally, Lerner properly authenticated the compromise and release agreement, which spoke for itself.
Plaintiff testified in his deposition that he was disabled, in constant pain, unable to get around without the use of a walker, and dependent on codeine and alcohol. Lerner competently declared that in the last 18 months of his representation of plaintiff, plaintiff would come to his office using a walker, dragging a leg, looking disheveled, and partially under the influence of alcohol.
Lerner further stated that, after he received and reviewed the sub rosa videotapes and medical reports of Drs. Ma and Appleton, it was his professional view that the case should be settled in order to protect plaintiff from possible criminal prosecution. After Lerner shared the videotapes and medical reports with plaintiff, plaintiff told him to get what settlement they could. Thereafter, Lerner negotiated the compromise and release for $10,000 in new money.
Lerner also states that the insurers in the workers compensation matters earlier offered plaintiff a $200,000 settlement, and that on August 17, 2000, plaintiff signed an initial compromise and release agreement for that amount. He further states, however, that the offer was withdrawn on or about August 28, 2000.
Ibold is an attorney and certified specialist in workers compensation law. He is past president of the Southern California Workers Compensation Insurance Attorneys Association. He has been a member of the California Insurance Commissioners Workers Compensation Task Fraud and Waste Subcommittee. In forming his opinions, he reviewed various materials, including two of the sub rosa videotapes, some of plaintiffs medical reports, and plaintiffs deposition transcript.
Mr. Ibold opined that "Mr. Lerner negotiated the best possible settlement under the circumstances. Although Travelers [had] offered a substantial sum in August, 2000, of $200,000, which Mr. Hilger was prepared to accept, the offer was withdrawn and there was literally nothing Mr. Lerner could do to bring such an offer back after the videotapes were published by the Defendants in the Workers Compensation proceedings. That Mr. Lerner was able to negotiate a $10,000 `new money Compromise and Release and a waiver by the Defendants of any recovery of past payments demonstrates that Mr. Lerners conduct was well above the standard of practice expected of Workers Compensation practitioners in this community." (Italics added.)
Mr. Ibold further opined, "Thus, between the two options of withdrawing from the case and negotiating a reasonable settlement, the option which most benefited his client was the action taken by Mr. Lerner- that is, negotiating a reasonable settlement . [¶] . . . [¶] . . . In short, the videotapes were devastating to Mr. Hilgers case regardless of whether Mr. Hilger had objectively-verifiable and even compensable injury to both knees." (Italics added.)
This evidence was sufficient to meet defendants burden of showing that plaintiff could not establish the element of damages. The burden then shifted to plaintiff to raise a triable issue of material fact on the element of damages, that is, that plaintiff sustained actual as opposed to speculative damages.
2. Plaintiffs Evidence
In opposition to defendants motion, plaintiff submitted his own declaration, with various medical reports attached, and that of his attorney, John Martin, which attached portions of Mr. Lerners deposition taken in the present action.
Defendants objected to plaintiffs declaration on the grounds it lacked foundation, constituted hearsay and inadmissible opinion, and violated the best evidence rule. (Evid. Code, §§ 702, 803, 1200, 1520.) The trial court properly sustained the hearsay objections, to the extent plaintiff iterated what various doctors told him concerning the nature and extent of his physical injuries and physical condition.
Plaintiff competently stated the following facts: In 1995, he began having serious problems with his knees. He was sent to Dr. Ahmed, who requested an MRI. In 1997, he filed a workers compensation action. In 1998, he saw various orthopedists and psychologists. A walker was prescribed. In October 1999, an arthroscopy was performed on his left knee. He was referred to a pain management clinic. In February 2000, he underwent an MRI on his back.
Plaintiff also competently stated that on August 10, 2000, Lerner communicated a $200,000 settlement offer to him. Although plaintiff thought that the sum was less than his case was worth, on August 17, 2000, he signed a settlement agreement for that sum. On August 28, 2000, Mr. Lerner told him the defendants had changed their mind, and would offer nothing.
There is nothing in plaintiffs evidence that shows that, had the case gone to trial, plaintiff could have achieved a result better than $10,000 in new money for his claims. Plaintiffs declaration does not contain any competent, admissible evidence relative to a permanent disability or what his compensation rating would have been. There is no admissible medical evidence to substantiate a rating at a workers compensation hearing in excess of the $10,000 amount. Nor is there any competent, admissible evidence indicating that plaintiff could have settled his case for more than the $ 10,000 amount.
Plaintiff places great emphasis on his evidence that the $200,000 settlement offer was made approximately 11 days after his deposition was taken and after the insurers had reviewed the sub rosa videotapes. Regardless of when the offer was made, plaintiff does not dispute that it was withdrawn. A withdrawn settlement offer is insufficient to raise a triable issue of material fact that plaintiff "suffer[ed] damage, i.e., appreciable and actual harm, as a consequence of his attorneys negligence." (Thompson v. Halvonik, supra, 36 Cal.App.4th at p. 661.)
Lerner stated in his declaration that one of the insurers "admitted [plaintiff] had a workers compensation injury to his knees," but both insurers "disputed the back and psychological injury claims even before the video tape was made." Again, regardless of the nature and extent of plaintiffs injuries, he has proffered no evidence to support an inference that the value of his case exceeded the $10,000 "new money" settlement.
In sum, nothing in plaintiffs evidence pointed to a "better result" on the horizon. Based on the evidence presented, plaintiffs damages claims are nothing more than speculation and conjecture. Therefore, summary judgment was properly entered in favor of defendants.
E. The Matter is Remanded for Further Consideration of Defendants Motion for Sanctions Pursuant to Section 128.7
In February 2002, defendants filed a motion for sanctions against plaintiff and his attorneys pursuant to section 128.7. They argued that plaintiffs claims were put forward for an improper purpose, were not warranted by existing law, were frivolous, and lacked evidentiary support. (§ 128.7, subd. (b).) They sought monetary sanctions in the amount of their attorneys fees incurred of $33,674.09. The trial court denied the motion after hearing on April 3, 2002.
The motion for sanctions was served on plaintiffs attorneys on November 15, 2001, shortly after defendants filed and served their motion for summary judgment. Defendants agreed to continue the hearing on both motions to April 3, 2002, to allow plaintiff time to conduct additional discovery. After Mr. Lerner was deposed, defendants counsel wrote a letter to plaintiffs counsel on December 11, 2001, requesting that plaintiff consider dismissing the complaint in exchange for a waiver of costs.
In denying defendants motion for sanctions, the trial court reasoned that the conduct proscribed under the statute was limited to presenting a "pleading" or similar paper and that a complaint did not constitute a pleading for purposes of the statute. "[A]sking plaintiff to withdraw all his claims is not the same as asking him to withdraw a specific pleading as contemplated by the section. All claims versus specific pleading or motion I think is the key here, so thats why Im denying that motion." The trial court further indicated that the statute was "not a means of recouping all the attorneys fees incurred in prosecuting the entire action."
Defendants contend that the trial court misinterpreted section 128.7. They argue that the trial court mistakenly concluded that (1) a complaint was not a pleading for purposes of the statute, and (2) the statute was not intended to allow a party to recover all of its attorneys fees incurred in an entire action.
We agree with defendants that the trial court misinterpreted section 128.7 as not applying to a complaint. As we explain, a complaint is a pleading for purposes of the statute. (§ 128.7, subd. (i).) And violations of the statute generally include the signing, filing, or later advocacy of a complaint presented primarily for an improper purpose, that is unwarranted in law, or that is lacking in evidentiary support. (§ 128.7, subd. (b)(1)-(3).)
As we further explain, the statute is not a general, attorneys fee-shifting statute, like section 1021.1. Nevertheless, the statute provides that sanctions may "consist of, or include," "an order directing payment to the movant of some or all of the reasonable attorneys fees and other expenses incurred as a direct result of the violation." (§ 128.7, subd. (d), italics added.)
The trial courts exercise of discretion in granting or denying a motion for sanctions is reviewed for an abuse of discretion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) But the trial courts interpretation of a statute is a question of law, subject to de novo review. (Mart v. Severson (2002) 95 Cal.App.4th 521, 530.) Here, the trial court did not exercise its discretion, because it misinterpreted section 128.7 as not applicable to a complaint.
Section 128.7, subdivision (b), provides, in pertinent part, that "[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) [The complaint] is not being presented primarily for an improper purpose . . . . [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [& para;] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."
Although section 128.7, subdivision (b), does not include the word "complaint," a complaint is a pleading within the meaning of the statute. Section 128.7, subdivision (i), states that "[t] his section shall apply to a complaint or petition filed on or after January l, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter." (Italics added.)
Additionally, section 422.10 provides that "[t]he pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints." (See also Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 82 [noting that section 128.7 provides remedies for presenting a speculative complaint].)
In the present case, plaintiffs complaint was filed in 2001. Thus, section 128.7 applies to plaintiffs complaint and to any other pleading, written notice of motion, or similar paper filed in the present action.
In concluding that section 128.7 does not apply to a complaint, the trial court appears to have read subdivision (b)s use of the word "pleading" too restrictively. The trial court also relied on Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619 (Murphy). But Murphy does not support the conclusion that section 128.7 does not apply to a complaint. Rather, Murphy held that section 128.7 does not apply to actions filed before July 1, 1995.
In Murphy, the plaintiffs original complaint was filed in 1991. In March 1995, the plaintiffs filed a motion for leave to file an amended complaint. The trial court imposed sanctions against the plaintiffs for filing the motion to amend, pursuant to section 128.7. On appeal from the order imposing sanctions, the plaintiffs argued that section 128.7 only applied to actions filed on and after January 1, 1995. The court agreed. It reasoned that "[w]hile the language of section 128.7 applying the section `to a complaint or petition filed on or after January 1, 1995 might permit concluding an amended or supplemental complaint `presented to the court after January 1, 1995, would be subject to its requirements, such a reading of the statute cannot be squared with the explicit language that section 128.5 controls actions or tactics which `arise from a complaint filed . . . before December 31, 1994." (Murphy, supra, 54 Cal.App.4th at pp. 623-624.)
Regarding recovery for attorneys fees, section 128.7, subdivision (d), limits the type and amount of monetary and other sanctions which may be imposed for violations of subdivision (b). It provides that "[a] sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanctions may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys fees and other expenses incurred as a direct result of the violation." (Italics added.)
Monetary sanctions may not be awarded against a represented party for violating section 128.7, subdivision (b)(2). (§ 128.7, subd. (d)(1).) Monetary sanctions may, however, be awarded against a represented party for violating subdivision (b)(1) or (3).
Section 128.7 therefore is not a general, attorneys fee-shifting statute. Rather, "[i]ts focus is on deterring the offending party, not compensating the offended party." (Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 368.) Nevertheless, a monetary sanction may include a movants attorneys fees incurred as a "direct result of [a] violation" of subdivision (b). (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467.)
In view of the foregoing, the matter is remanded to the trial court to determine whether sanctions are warranted against plaintiffs attorneys for violating section 128.7, subdivision (b)(1) through (3), whether sanctions are warranted against plaintiff for violating subdivision (b)(1) or (b)(3), but not subdivision (b)(2), and whether an award of all or a portion of defendants attorneys fees incurred as a direct result of the violations, is an appropriate sanction. We express no view on how the trial court should exercise its discretion in ruling on these issues.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. The matter is remanded to the trial court for further consideration of defendants motion for sanctions, pursuant to section 128.7, consistent with the views expressed in this opinion.
We concur: McKinster, Acting P.J. and Richli, J.