Ellis

SUMMARY

In this appeal, we must determine whether Code of Civil Procedure section 128.5 empowers the trial court to grant sanctions against an attorney who, on behalf of his client, demurs to a cross-complaint on grounds which are initially valid, but such validity evaporates upon opposing counsel’s concessions to all contentions raised by the demurrer. We hold that the trial court properly imposed sanctions on counsel for the demurring party under section 128.5 for “tactics or actions not based on good faith which are frivolous or which cause unnecessary delay.”

Proceedings Below and Facts

On October 19, 1981, a complaint was filed by Attorney Milton W. Kroah II (Kroah) on behalf of plaintiff Hugh C. Ellis (Ellis). The complaint named as defendants Roshei Corporation (Roshei), Wayne Hisey (Hisey) and Stan Rosenberg (Rosenberg) and sets forth five causes of action arising out of an alleged breach of contract and misappropriation of business concepts and ideas. An answer was filed on behalf of the defendants by Attorney Howard Erlich (Erlich).

Thereafter, on December 11, 1981, Erlich filed a cross-complaint on behalf of Hisey and Rosenberg alleging breach of statutory…