Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. RCV092365. Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kevin Jen-Kang Yang and Lee Yang, in propria persona, for Plaintiffs and Appellants.
Seyfarth Shaw, T. Larry Watts, and Ann H. Qushair for Defendant and Respondent.
OPINION
RICHLI, J.
This action arises out of a worker’s compensation proceeding that plaintiff Kevin Jen-Kang Yang filed against his former employer, Union Bank of California. His wife, plaintiff Lee Yang, acted as his designated representative in that proceeding.
In this separate civil action, the Yangs assert causes of action for disability discrimination, defamation, intentional and negligent infliction of emotional distress, and violation of Code of Civil Procedure section 2025.430 (concerning failure to proceed with a deposition). With respect to defendant Robert Buch, they allege that Buch — an attorney representing Union Bank — scheduled, took, and cancelled depositions in the worker’s compensation proceeding in ways that inflicted emotional distress on them.
Buch filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (SLAPP motion), arguing, among other things, that the Yangs’ claims against him were barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) The trial court granted the motion. It then granted Buch’s motion for attorney fees. Meanwhile, it denied three successive motions for sanctions against Buch; in connection with the third motion, it awarded Buch sanctions against the Yangs.
The Yangs appeal. We will hold that the Yangs failed to file a notice of appeal from the order granting the SLAPP motion; as a result, we lack jurisdiction to review that order in this appeal. We will further hold that the Yangs have not shown that the trial court erred by awarding Buch attorney fees, by denying their motions for sanctions, or by awarding Buch sanctions against them. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2005, the Yangs filed this action, naming as defendants Union Bank, Vincent Tabata, and Robert Buch. However, only the third and fourth causes of action — for intentional and negligent infliction of emotional distress, respectively — were asserted against Buch.
Buch promptly filed a SLAPP motion, asking the trial court to strike the third and fourth causes of action. Meanwhile, however, Union Bank and Tabata had filed a demurrer to the complaint. The trial court overruled their demurrer in part but sustained it in part, including as to the third and the fourth causes of action. It “declined to rule” on the SLAPP motion, explaining, “[T]he motion was rendered moot by [the] order sustaining the demurrer . . . .”
The Yangs then filed an amended complaint. Buch responded by filing a new SLAPP motion. On May 4, 2006, the trial court granted the second SLAPP motion with respect to the entire amended complaint as against Buch. On its own motion, it also purported to dismiss the amended complaint as against Buch.
The Yangs filed a motion for reconsideration. The trial court denied the motion.
Buch then filed a motion for attorney fees. The trial court granted the motion; it awarded Buch $9,700 in attorney fees.
On August 22, 2006, the trial court entered judgment against the Yangs and in favor of Buch. The Yangs filed a motion for new trial, but the trial court denied the motion.
On September 20, 2006, the Yangs filed a notice of appeal.
Additional procedural events relevant to the Yangs’ motions for sanctions will be discussed in part II.D, post.
II
DISCUSSSION
A. The Exclusive Jurisdiction of the WCAB.
Buch attempts to preempt all of the Yangs’ contentions by arguing that the trial court did not have jurisdiction of this action at all, because it was within the exclusive jurisdiction of the Workers’ Compensation Appeals Board (WCAB).
As relevant here, the WCAB has exclusive jurisdiction of proceedings:
“(a) For the recovery of compensation, or concerning any right or liability arising out of or incidental thereto. [¶] . . . [¶] . . .
“(e) For obtaining any order which by Division 4 the appeals board is authorized to make.
“(f) For the determination of any other matter, jurisdiction over which is vested by Division 4 in the Division of Workers’ Compensation . . . .” (Lab. Code, § 5300.)
In general, workers’ compensation exclusivity does not extend to claims against third-party tortfeasors. (Lab. Code, § 3852; Privette v. Superior Court (1993) 5 Cal.4th 689, 697.) “[T]he Labor Code does not purport to alter the correlative rights and liabilities of persons who do not occupy the reciprocal statuses of employer and employee. Our workmen’s compensation laws were not designed to relieve one other than the employer from any liability imposed by statute or by common law. . . . The employee’s right to recover against a third person is not affected by the fact that the ‘person other than the employer’ is not a stranger but has entered into a consensual legal relationship with the employer. [Citations.]” (Baugh v. Rogers (1944) 24 Cal.2d 200, 214.)
Nevertheless, “the [Workers’ Compensation] Act covers all disputes over the payment of compensation to injured employees, regardless of what type of entity refused or delayed those payments. [Citations.]” (Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 10.) Accordingly, exclusivity extends to claims against the employer’s insurer. (Id. at p. 6.) Moreover, when the employer is self-insured, it extends to claims against the employer’s independent administrator. (Id. at pp. 7-10.) However, it does not extend to an action for assault or intentional infliction of emotional distress against a private investigator hired by an insurer to investigate a claim. (Id. at pp. 6-7, citing Unruh v. Truck Ins. Exchange (1972) 7 Cal.3d 616, 625-626.) It also does not extend to an action for malpractice against a doctor who has allegedly exacerbated an industrial injury. (Unruh,at p. 626, fn. 11, citing Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230.)
Buch is analogous to a private investigator or a doctor. He is not an employer or an insurer; he is an independent contractor, albeit one hired by the employer to assist it with the employee’s claim. Moreover, the dispute between the Yangs and Buch does not involve the payment of or refusal to pay compensation. (Cf. Santiago v. Employee Benefits Services (1985) 168 Cal.App.3d 898, 905-906 [claims against attorneys for wrongful refusal to pay insurance benefits and for emotional distress arising out of refusal was within exclusive jurisdiction of WCAB].) The Yangs seek to recover for independently tortious acts that Buch allegedly committed in the course of litigation over a claim. Such claims are not within the WCAB’s exclusive jurisdiction.
Buch argues that the WCAB has exclusive jurisdiction to sanction both a party and a party’s attorney for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Lab. Code, § 5813, subd. (a).) The Yangs, however, are not claiming that Buch’s actions were frivolous or intended to cause delay; they are claiming that they intentionally or negligently inflicted emotional distress. The WCAB does not have jurisdiction to adjudicate such a claim.
Buch also asserts that the WCAB ordered Yang to appear at at least one deposition (on December 6, 2005). He therefore argues that allowing the Yangs’ action to proceed in superior court violated the statutory rule that “[n]o court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or award of the appeals board . . . .” (Lab. Code, § 5955.) Some of the Yangs’ claims, however, have to do with depositions other than the December 6 deposition. Other claims of theirs have to do, not with whether the December 6 deposition was properly set and noticed, but with how Buch conducted the deposition once it began. More generally, the WCAB simply decided whether the deposition should go forward. The issue in the trial court was whether the scheduling and conduct of the deposition constituted the infliction of emotional distress. These are two separate and distinct questions. Thus, as far as we can tell, at least on this record, a ruling in favor of the Yangs on the merits of their claims against Buch in this case would not in any way “review, reverse, correct, or annul” any order or decision of the WCAB.
We therefore conclude that the trial court had jurisdiction.
B. The Appealability of the Order Granting the SLAPP Motion.
The Yangs contend that the trial court erred by granting Buch’s SLAPP motion. We will conclude, however, that the Yangs failed to file a timely notice of appeal from the order granting the SLAPP motion. Accordingly, we cannot consider this contention in this appeal.
The trial court granted the SLAPP motion in a minute order entered on May 4, 2006. The May 4 order was, in itself, immediately appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13); see also Cal. Rules of Court, rule 8.104(d)(2) [the entry date of an appealable minute order, unless it directs that a written order be prepared, is the date it is entered in permanent minutes].) Thereafter on August 22, 2006, the trial court entered judgment in favor of Buch and against the Yangs. That judgment, too, was appealable. (Code Civ. Proc., § 904.1, subd. (a)(1).)
Buch argues that the May 4 order was additionally appealable because it dismissed the complaint as against him. He even argues that the August 22 judgment was a nullity and nonappealable because the complaint had already been dismissed. The May 4 order, however, was an unsigned minute order. A dismissal order must be signed by the court. (Code Civ. Proc., § 581d.) Hence, the May 4 order was not a final, appealable dismissal order. (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 253, fn. 4.)
On September 20, 2006, the Yangs filed a notice of appeal. It stated that the Yangs were appealing “from the following judgment or order in this case, which was entered on (date): August 22, 2006 [¶] . . . [¶]
“ An order o[r] judgment under Code of Civil Procedure section 904.1(a)(3)-(13)
“ Other (describe and specify code section that authorizes this appeal):
“Judgments of [sic] denying motions for sanctions under Code of Civil Procedure section 904.1[,] subdivision (a)[.]”
It does not appear that Buch or any other party ever properly served a notice of entry of the May 4 order. Accordingly, as of September 20, the time to appeal from the May 4 order had not yet run. The notice of appeal, however, did not specify the May 4 order. Rather, it specified the August 22 judgment.
The order denying the Yangs’ motion for new trial was not separately appealable. (See Code Civ. Proc., § 904.1, subd. (a)(4); Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) Filing the motion for new trial did extend their time to appeal from the May 4 order (Cal. Rules of Court, rule 8.108(a)); even absent the motion for new trial, however, their time to appeal had not yet expired.
California Rules of Court, rule 8.100(a)(2) provides that “[t]he notice of appeal must be liberally construed.” However, it immediately goes on to provide that “[t]he notice is sufficient if it identifies the particular judgment or order being appealed.” “‘Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.’ [Citation.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47, quoting Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045.)
“‘“[W]here several judgments and/or orders occurring close in time are separately appealable . . ., each appealable judgment and order must be expressly specified — in either a single notice of appeal or multiple notices of appeal — in order to be reviewable on appeal.”’ [Citation.]” (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171, quoting DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; accord, Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 3:119.1.) Here, the May 4 order and the August 22 judgment occurred close in time and were separately appealable. The Yangs’ notice of appeal specified only the August 22 judgment. Accordingly, we have no jurisdiction to review the May 4 order in this appeal.
A case like this one, in which an appellant specifies only one of several appealable orders, is distinct from a case in which the appellant mistakenly specifies a nonappealable order when there is also an outstanding appealable order. (E.g., Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780 [Fourth Dist., Div. Two].) In the latter case, both the mistake and the appellant’s intent to appeal from the appropriate appealable order are obvious. By contrast, in this case, any reasonable person reading the notice of appeal would have understood that the Yangs intended to appeal solely from the August 22 judgment.
As soon as we realized that there was an issue as to appealability, we issued an order giving the parties an opportunity to file further briefs addressing this issue. In it, we specified the issue with, we thought, great clarity. The Yangs’ only response was to file a certified copy of the May 4 order. They did not address the issue at all. We therefore conclude that they have waived any challenge to the analysis outlined in our order.
Our order stated in pertinent part:
In particular, the Yangs have waived any argument that the notice of appeal — despite its specific reference to the August 22 judgment — could somehow be construed as referring to the May 4 order. If only out of an excess of caution, however, we have considered whether either of the two checked boxes on the notice of appeal could be construed as such a reference. We conclude that they could not. The notice of appeal had already specified the order or judgment being appealed as one entered on August 22. The second checkbox then indicated that, in that appeal, the Yangs also intended to seek review of the earlier orders denying sanctions. Those orders were not separately appealable; they were quite properly reviewable in an appeal from August 22 judgment. The first checkbox simply cited a laundry list of 11 statutory categories of appealable orders. Admittedly, one of those was “an order granting or denying a special motion to strike under Section 425.16.” (Code Civ. Proc., § 904.1, subd. (a)(13).) Nevertheless, both checkboxes merely purported to describe the August 22 judgment specified above. It would have required telepathy to divine, by looking at the checkboxes, that the Yangs actually intended to appeal from the May 4 order.
We therefore lack jurisdiction to consider the Yangs’ challenge to the May 4 order granting the SLAPP motion.
C. Motion for Attorney Fees.
The Yangs contend that the trial court erred by granting Buch’s motion for attorney fees.
A defendant who prevails on a SLAPP motion is “entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c).) Such a fee award is “mandatory . . . .” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Preliminarily, the Yangs appear to be arguing that the trial court erred by granting the motion for attorney fees because it also erred by granting the SLAPP motion. “If an order is appealable, however, and no timely appeal is taken therefrom, the issues determined by the order are res judicata. [Citation.]” (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Thus, we must assume that the SLAPP motion was properly granted.
The Yangs also argue that there was no genuine attorney-client relationship between Buch and his counsel. “[B]y definition, the term ‘attorney fees’ implies the existence of an attorney-client relationship, i.e., a party receiving professional services from a lawyer. [Citations.]” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1092.) Thus, an attorney who represents him- or herself is not entitled to recover attorney fees in connection with a SLAPP motion. (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1209.) A law firm that is represented by its own attorneys likewise is not entitled to fees. (Id. at pp. 1210-1211.) “When they represent the law firm, they are representing their own interests. As such, they are comparable to a sole practitioner representing himself or herself.” (Id. at p. 1211.)
The converse, however, is not equally true — an attorney who is represented by his or her own law firm is entitled to fees. (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 220-223.) The nonparty members of the firm “represent[] not their personal interests or even those of their law firm, but the separate and distinct interests of [the party attorney] himself.” (Id. at p. 222, fn. omitted.) Under those circumstances, “[t]here can be no question an attorney-client relationship is also present . . . .” (Ibid.)
At trial, as in this appeal, Buch was represented by the law firm of Seyfarth Shaw and by T. Larry Watts, a partner in that firm. Although Buch, too, is a partner in Seyfarth Shaw, neither Seyfarth Shaw nor Watts was a party. Seyfarth Shaw and Watts were representing Buch’s interests, not their own. Accordingly, there was an attorney-client relationship sufficient to support an award of attorney fees.
The Yangs also argue that Buch did not show that he had an enforceable obligation to pay attorney fees. They assert (albeit without any supporting citation to the record, see Cal. Rules of Court, rule 8.204(a)(1)(C)) that Seyfarth Shaw was actually hired by Buch’s codefendant, Union Bank. A defendant who prevails on a SLAPP motion can recover attorney fees, however, even if his or her fees were paid by a third party. (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675-676.) Moreover, such a defendant can recover attorney fees even if his or her attorney has agreed to act pro bono and to recover fees, if at all, only out of an award under Code of Civil Procedure section 425.16, subdivision (c). (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 282-287.) “[A]ttorney fees can be recovered pursuant to a statute that allows their recovery, even where the client is not charged those fees, as long as there exists an attorney-client relationship . . . .” (Id. at p. 287.) As already discussed, such a relationship existed here.
Next, the Yangs argue that Watts committed perjury when he stated that an attorney-client relationship existed. Their argument is that, in his declaration in support of the motion for attorney fees, Watts stated, “I am . . . attorney of record for defendant Robert Buch in this action,” whereas in an earlier declaration, he had stated, “I am . . . a partner of Seyfarth Shaw, LLP, attorneys of record herein for defendant Robert E. Buch.” According to the Yangs, these two statements are contradictory. Actually, both Seyfarth Shaw and Watts were representing Buch. Watts is a partner in Seyfarth Shaw. A partnership cannot do anything except through its partners. (See Corp. Code, §§ 15904.02, 16301.)
The Yangs do not provide a record citation for the earlier declaration. Thus, they have wholly waived this argument. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) However, in the course of reviewing their contentions regarding their motions for sanctions (see part II.D, post), we were able to tell to which declaration they were referring. Thus, we also reject the point on the merits.
The Yangs then argue that Buch did not submit detailed time records. This is essentially an insufficiency of the evidence claim. “To prevail on a substantial evidence challenge, an appellant must lay out the contrary evidence and demonstrate why it is lacking. [Citation.]” (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015-1016.) “In the absence of an adequate summary of the trial record, we deem their evidentiary challenge waived and presume the evidence supports the trial court’s findings. [Citation.]” (Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1273.) The Yangs forfeited this claim by failing to discuss all — or, indeed, any — of the relevant evidence.
Actually, Buch’s counsel did submit detailed time records. In any event, detailed time records are not required. “An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. [Citation.]” (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293; accord, Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) Indeed, “ . . . ‘“[t]he knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer’s fee, even though there was no specific evidence on the subject.”’ [Citation.]” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167, quoting In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280, quoting Frank v. Frank (1963) 213 Cal.App.2d 135, 137.)
Finally, the Yangs point out that Buch’s first SLAPP motion was denied as moot. They argue: “Because each party prevailed on one special motion to strike, neither of the parties in this action should be viewed as a prevailing party for purposes of an attorney fee award.” The denial of the first motion as moot, however, does not mean that it lacked merit. If the Yangs had failed to amend their complaint, and if, as a result, the action had been involuntarily dismissed, Buch would have been entitled to assert that he had been the prevailing party on the SLAPP motion and that, as such, he was entitled to attorney fees. (White v. Lieberman (2002) 103 Cal.App.4th 210, 220.) Instead, the Yangs did amend. Buch therefore had to file a new SLAPP motion, specifically addressing the amended complaint. This does not change the fact that the mootness of the first motion did not mean that Buch was not the prevailing party. Certainly the Yangs were not the prevailing parties.
Separately and alternatively, the fact remains that Buch was the prevailing party on one SLAPP motion. There is no authority — and certainly the Yangs cite none — for “offsetting” the denial of one SLAPP motion against the granting of another. Even if the first SLAPP motion had been denied on the merits — which it was not — the Yangs would not have been entitled to recover attorney fees without filing their own motion for attorney fees; in it, they would have had to show that the first SLAPP motion was frivolous. (Code Civ. Proc., § 425.16, subd. (c).) If they had done so — and if they had been successful, which is a very big “if” — then they would have had an award of attorney fees that they arguably could have used to offset any award of attorney fees to Buch. But they did none of this.
We therefore conclude that the Yangs have not demonstrated that the trial court erred by awarding attorney fees to Buch.
D. Motions for Sanctions under Code of Civil Procedure Section 128.7 .
The Yangs contend that the trial court erred by denying their three successive motions for sanctions, as well as by awarding Buch attorney fees as sanctions against them in connection with their third motion.
1. Additional factual and procedural background.
On May 1, 2006, the Yangs filed their first motion for sanctions against Buch. On June 1, 2006, the trial court denied the motion.
On July 25, 2006, the Yangs filed their second motion for sanctions, this time against both Buch and his counsel. On August 16, 2006, the trial court denied the motion.
As mentioned earlier, on August 22, 2006, the trial court entered judgment in against the Yangs and in favor of Buch. On September 20, 2006, the Yangs filed a notice of appeal from the judgment.
Meanwhile, on September 11, 2006, the Yangs filed their third motion for sanctions, against both Buch and his counsel. In their opposition, Buch and his counsel requested an award of attorney fees as sanctions against the Yangs. On October 5, 2006, the trial court denied the Yangs’ motion. However, it ordered the Yangs to pay $2,000 in sanctions.
The Yangs filed a motion for reconsideration of the order denying their third motion for sanctions, but on November 9, 2006, the trial court denied the motion.
On November 13, 2006, the Yangs filed a notice of appeal from the order entered on October 5, 2006 (i.e., denying their third motion for sanctions) and the order entered on November 9, 2006 (i.e., denying their motion for reconsideration). We consolidated this with their earlier appeal.
2. Appealability.
Once again (see part II.B, ante), we questioned whether we could review the sanctions orders in this appeal.
A sanctions order that awards more than $5,000 is immediately appealable. (Code Civ. Proc., § 904.1, subds. (a)(11) & (a)(12).) A sanctions order that awards $5,000 or less, if entered before final judgment, is not immediately appealable; it is reviewable only in an appeal from the final judgment. The same is true of an order denying a motion for sanctions. (Code Civ. Proc., §§ 904.1, subd. (b), 906; Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055.) If entered after final judgment, however, either order is immediately appealable as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1121-1123; Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1343-1345.)
Here, the orders denying the first two motions for sanctions were entered before the final judgment. The Yangs filed a timely notice of appeal from the final judgment. The order denying the third motion for sanctions (and awarding sanctions against the Yangs) was entered after the final judgment; the Yangs filed a separate and timely notice of appeal from this order. The two appeals have been consolidated. We therefore conclude that we can review all three orders.
3. Merits.
a. The first motion for sanctions.
i. Additional factual and procedural background.
In their first motion for sanctions, the Yangs asserted that Buch had made false statements in two specified documents: (1) Buch’s declaration in support of his first SLAPP motion, and (2) Buch’s declaration in support of his second SLAPP motion.
For purposes of our opinion, we need not decide whether Buch or his counsel actually made any false statements.
The trial court stated three independent, alternative grounds for denying the motion: “[T]he moving parties presented no evidence in support of their positions. Additionally, the moving parties do not cite any legal authority or refer to any statutory basis for their request. I further agree with [Buch] that the issues raised by the Yangs are not significant.”
ii. Analysis.
In their opening brief, the Yangs do not discuss the trial court’s ruling that the allegedly false statements were not significant. “‘Courts will ordinarily treat the appellant’s failure to raise an issue in his or her opening brief as a waiver of that challenge.’ [Citation.]” (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 352, fn. omitted, quoting Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) We may sustain the trial court’s ruling for this reason alone.
The Yangs do argue that they introduced sufficient evidence in support of the motion. The only evidence they offered, however, consisted of the two assertedly false declarations. These were not properly authenticated (Evid. Code, § 1401, subd. (a)), and the Yangs did not request judicial notice of them (Evid. Code, § 453). But even more important, the Yangs did not introduce any evidence that the declarations were, in fact, false. They simply asserted, in their memorandum of points and authorities, that they were false. “‘[M]atters set forth in . . . memoranda of points and authorities are not evidence . . . .’ [Citation.]” (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735, quoting Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578.)
The Yangs also argue that they did cite legal authority — in particular, Code of Civil Procedure section 2015.5 and Penal Code sections 118 and 126. None of these statutes, however, authorizes an award of sanctions. Their motion never mentioned Code of Civil Procedure section 128.7, which does authorize sanctions and on which the Yangs themselves relied in later motions. (See In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220-1221 [where motion for sanctions was brought under Code Civ. Proc., § 128.7, trial court erred by awarding sanctions under Code Civ. Proc., § 128.5].)
We also note that, even aside from the reasons the trial court stated, the motion had to be denied.
Under the so-called “safe harbor” provision of Code of Civil Procedure section 128.7, “[n]otice of motion shall be served . . ., but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . ., the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1).)
“The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. [Citation.] . . . [¶] In order to effectuate the safe harbor provisions, a party may not bring a motion for sanctions unless there is some action the offending party may take to withdraw the improper pleading. [Citation.] A sanctions motion may not be brought after the conclusion of the case or a dispositive ruling on the improper pleading. [Citation.]” (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 441, italics added, fn. omitted; accord, Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14; cf. Banks v. Hathaway, Perrett, Webster, Powers & Chrisman (2002) 97 Cal.App.4th 949, 953-954 [sanctions based on filing frivolous complaint could still be awarded after demurrer to complaint was sustained but before complaint was dismissed].)
When the Yangs filed the motion for sanctions, the trial court had already denied Buch’s first SLAPP motion as moot. Buch’s second SLAPP motion had already been granted. There had been a dispositive ruling on both of the challenged pleadings; there was nothing Buch could do to withdraw them. Thus, the Yangs’ motion was improper ab initio.
The Yangs therefore have not demonstrated that the trial court erred in denying their first motion for sanctions.
b. The second motion for sanctions.
i. Additional factual and procedural background.
In their second motion for sanctions, the Yangs reasserted that Buch had made false statements in his declaration in support of his first SLAPP motion and his declaration in support of his second SLAPP motion. This time, however, they also asserted that Buch and/or his counsel had made false statements in five additional documents:
(1) Buch’s reply in support of his first SLAPP motion;
(2) Buch’s reply in support of his second SLAPP motion;
(3) Buch’s opposition to the Yangs’ first motion for sanctions;
(4) Buch’s opposition to the Yangs’ motion for reconsideration of the order granting the second SLAPP motion; and
(5) Buch’s motion for attorney fees.
The trial court denied the motion for two independent and alternative reasons: first, “due to the failure to follow the safe harbor provision,” and second, because the challenged “pleadings have already been ruled on by the Court. So it would be impossible for the [d]efendant to now withdraw them.”
ii. Analysis.
The second sanctions motion did fail to comply with the 21-day safe harbor provision. The Yangs do not argue otherwise. They merely argue that the trial court erred by relying on Code of Civil Procedure section 128.7 to the exclusion of all of the other legal authority that they cited. However, even assuming the challenged pleadings did actually violate all of the cited statutes and rules, the Yangs still were not entitled to sanctions unless they complied with the procedural requirements of Code of Civil Procedure section 128.7.
Moreover, by the time of the hearing on the motion, the court had ruled on all of the challenged pleadings (indeed, it had ruled in favor of Buch). Thus, before the 21-day period had expired, it had become impossible for Buch or his counsel to withdraw them. The Yangs argue that they were not asking the trial court to redetermine any of the matters that it had already ruled on. The rationale, however, for the rule that “[a] sanctions motion may not be brought after . . . a dispositive ruling on the improper pleading” (Malovec v. Hamrell, supra, 70 Cal.App.4th at p. 441) is not that the court is being asked to redetermine anything. Rather, it is that the alleged offender no longer has any way of undoing the alleged offense. Certainly that was the case here.
Accordingly, the Yangs have not demonstrated that the trial court erred in denying their second motion for sanctions.
c. The third motion for sanctions.
i. Additional factual and procedural background.
On August 9, 2006, in an apparent effort to comply with the safe harbor provision, the Yangs served a document entitled, “Twenty-One Days Advance Notice of Motion for Sanction Against Defendant Robert Buch and His Counsel . . .” (the Advance Notice). (Capitalization altered.) It stated that the upcoming motion would be based on unspecified “false statements” in two documents: (1) Buch’s reply in support of his motion for attorney fees, and (2) Buch’s opposition to the Yangs’ second motion for sanctions.
That same day, the trial court granted Buch’s motion for attorney fees. On August 16, 2006, it denied the Yangs’ second motion for sanctions.
On August 23, 2006, the Yangs filed the Advance Notice. On September 11, 2006, they filed their third motion for sanctions.
In their opposition, Buch and his counsel requested sanctions against the Yangs.
On October 5, 2006, the trial court denied the Yangs’ motion, for two reasons. First, it stated: “[P]laintiff served an advanced notice of motion but . . . no memorandum of points and authorities or exhibits were attached. Where the sanctions motion filed with the court differs from that previously served on the opponent, the 21-day safe harbor period runs from the filing date, not the day of service.” Second, it stated: “A sanctions motion may not be brought after the conclusion of the case or a dispositive ruling on the improper pleading. Here, the Court has already ruled upon all of the motions which contained the allegedly false statements and judgment was entered in favor of Buch prior to plaintiffs’ filing this motion.”
In addition, the trial court imposed $2,000 in sanctions on the Yangs, “payable . . . within twenty (20) days.”
ii. Analysis: The denial of the Yangs’ motion for sanctions.
In response to the trial court’s ruling that the Advance Notice was defective, the Yangs seem to argue (though their brief is not entirely clear on this point) that Code of Civil Procedure section 128.7 only requires that the notice of motion be served in advance, not the motion as a whole. Actually, Code of Civil Procedure section 128.7 provides that “[n]otice of motion shall be served as provided in Section 1010” at least 21 days before the notice is filed. (Code Civ. Proc., § 128.7, subd. (c)(1), italics added.) Code of Civil Procedure section 1010, in turn, requires that a notice of motion must be accompanied by a copy of all papers on which the motion is based. This includes all supporting memoranda and declarations.
The Yangs also argue that they had already identified the allegedly false statements in their briefing in connection with their second motion for sanctions and Buch’s motion for attorney fees. Although, again, their brief is not entirely clear, presumably their point is that Buch and his counsel had actual notice as to which statements were in issue. It is settled, however, that “informal notice of an intent to seek sanctions in the future cannot serve as a substitute to the requirements set forth in [Code of Civil Procedure] section 128.7 for a formal noticed motion.” (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 136.)
Turning to the trial court’s alternative ruling — that there had already been dispositive rulings on the assertedly improper pleadings — the Yangs argue that the underlying motions were still pending during at least part of the 21-day period. As we will discuss, however, they did not remain pending long enough.
The Advance Notice was based on two assertedly false documents. One was Buch’s reply in support of his motion for attorney fees. On August 9, the Yangs served the Advance Notice; that same day, the trial court granted the motion for attorney fees. Accordingly, Buch and his counsel did not have any time, much less 21 days, to withdraw Buch’s reply. The Yangs note that the trial court did not actually enter the judgment (which included the award of attorney fees) until August 22. Even assuming, however, that this, and not August 9, was the relevant date, Buch and his counsel still had only 13 days, and not the full 21 days, to withdraw the reply.
The Advance Notice was also based on Buch’s opposition to the Yangs’ second motion for sanctions. The trial court did not actually deny the second motion for sanctions until August 16. Once again, this allowed Buch and his counsel only seven days, not the full 21 days, to withdraw this pleading.
Finally, the Yangs argue that barring a motion for sanctions once there has been a dispositive ruling on the underlying false or frivolous motion “defeat[s]” the intent of Code of Civil Procedure s]ection 128.7.
We recognize that the safe harbor provision creates an obstacle to bringing a motion for sanctions, at least when it is based on another party’s false or frivolous motion. In most, if not all cases, the underlying motion will be decided before the 21-day safe harbor period has expired, making it impossible to file the sanctions motion. This problem is even more acute when the motion for sanctions is based on false or frivolous opposition or reply papers. However, it is not insuperable — the party who wants to bring the sanctions motion can simply request a continuance of the hearing on the underlying motion. Typically, judicial economy will also be served by hearing both motions together. In any event, we see no other way to avoid the problem without nullifying the Legislature’s clearly expressed intent to provide a 21-day safe harbor period. (See Steinlage v. Mayo Clinic Rochester (D.Minn. 2006) 235 F.R.D. 668, 671 [“[p]laintiff argues that her noncompliance with the safe-harbor provision is justified because the intervening appeal . . . rendered compliance . . . futile . . . . The court disagrees. Rather, plaintiff’s inability to afford defendant an opportunity to withdraw or rectify the alleged misconduct renders Rule 11 inapplicable to the present situation”].)
Code of Civil Procedure section 128.7 was modeled on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.). Accordingly, federal decisions interpreting and applying rule 11 provide persuasive authority. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1168-1169.)
iii. Analysis: The award of sanctions against the Yangs.
The Yangs argue that the trial court erred by awarding sanctions against them, for four reasons.
First, they note that “[t]he trial court stated it lacked jurisdiction to hear the [third] motion [for sanctions] because the pleadings had been ruled on.” However, failure to comply with the safe-harbor provision is not literally jurisdictional. (Brickwood Contractors, Inc. v. Datanet Engineering, Inc. (4th Cir. 2004) 369 F.3d 385, 390-395.) It just means that the trial court would be in error if it granted the motion. The trial court has jurisdiction, nevertheless, not only to deny the motion, but also to award sanctions against the unsuccessful moving party. Code of Civil Procedure section 128.7 expressly provides that “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” (Code Civ. Proc., § 128.7, subd. (c)(1).)
Second, they argue that the trial court had no authority to order them to pay the sanctions within 20 days. According to the Yangs, “[t]he twenty-days requirement has offended the appellate court’s jurisdiction by destroying the status quo.” Absent the 20-day requirement, however, the sanctions would have been payable immediately. “[M]onetary sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. [Citations.]” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) Moreover, a money judgment is not automatically stayed by the filing of an appeal. (Code Civ. Proc., § 917.1, subd. (a)(1).) If the judgment debtor pays while the appeal is pending, the appellate court does not lose jurisdiction; assuming it eventually reverses the judgment, the trial court can then order the respondent to repay the appellant. (See generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 785-788, pp. 819-822.) Thus, the 20-day requirement actually benefited the Yangs.
Third, they argue, once again, that Buch and his counsel were self-represented and therefore incurred no fees. They rely on cases holding that a self-represented party cannot recover attorney fees. Those cases, however, arose under different attorney fee statutes, not under Code of Civil Procedure section 128.7. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 523 [Code Civ. Proc., § 425.16]; see also Trope v. Katz (1995) 11 Cal.4th 274, 292 [Civ. Code, § 1717].)
We do not agree that Buch was self-represented; as already discussed (see part II.C, ante), he was represented by Seyfarth Shaw and Watts. Moreover — and also as already discussed (ibid.) — a party can recover attorney fees even if his or her attorney was paid by a third party or was acting pro bono.
Even assuming Buch was self-represented, it has been held that a self-represented party can recover attorney fees under Code of Civil Procedure section 128.7. (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467-469; see also Abandonato v. Coldren (1995) 41 Cal.App.4th 264, 267-269 [self-represented party can recover attorney fees under Code Civ. Proc., § 128.5].) “ . . . ‘Holding that the attorney in that situation could not be compensated for reasonable expenses would create a separate and artificial category of litigants who would be inadequately protected against another party’s bad faith tactics.’ [Citation.] In other words, if the point of these statutes is to deter bad faith tactics and frivolous litigation, it makes no sense to declare such tactics acceptable against attorneys or nonattorneys representing themselves in such matters. [Citation.]” (Laborde,at p. 469, quoting Abandonato,at p. 269.)
Fourth and finally, they argue that Buch and his counsel failed to show that an award of $2,000 was reasonable by submitting detailed time records. Once again (see part II.C, ante), this is essentially an insufficiency of the evidence claim, which the Yangs have forfeited by failing to discuss all of the relevant evidence.
Actually, Buch’s counsel testified that he had spent about six hours on the motion; he estimated that he would need to spend another four hours. He also testified that his applicable billing rate was $460 an hour. He provided a range of comparable billing rates at other firms to show that this rate was reasonable. This evidence was more than sufficient to support the award. (See fn. 5, ante.)
Accordingly, the Yangs have not demonstrated that the trial court erred in denying their third motion for sanctions or in awarding attorney fees as sanctions against them.
III
DISPOSITION
The August 22, 2006, judgment is affirmed. The October 5, 2006, order is also affirmed. Buch is awarded costs on appeal against the Yangs.
We concur:
HOLLENHORST, Acting P.J., GAUT, J.
“The notice of appeal . . . specifically stated that the Yangs were appealing from a judgment or order entered on August 22, 2006. It did not specify the May 4 order. As a general rule, ‘where several judgments and/or orders occurring close in time are separately appealable . . ., each appealable judgment and order must be expressly specified . . . in order to be reviewable on appeal. [Citations.]’ (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 3:119.1.)
“IT IS THEREFORE HEREBY ORDERED that the parties may file further briefs on the question of whether we have jurisdiction to review the May 4 order in this appeal.”