In Re Marriage of Gumabao

Summary

In this appeal, we determine that section 128.5 of the Code of Civil Procedure, enacted in 1981, empowers the trial court to award attorney’s fees as sanctions against an attorney who is aware of his inability to appear at the time set for trial, has an opportunity to but fails to take appropriate steps to notify opposing counsel of such inability, fails to adequately inform the court of the reasons for his delay in appearance, and fails to appear in court in accordance with his representations. In our view, the actions of the sanctioned attorney constituted tactics which caused unnecessary delay to the opposing party and her counsel. The trial court’s award of attorney’s fees under section 128.5 was justified.

Facts and Proceedings Below

On August 16, 1982, the petition for a marital dissolution between Spencer and Shirley Gumabao was set for trial at 9 a.m. in one of the departments of the Glendale branch of the Los Angeles Superior Court.

Despite several telephone calls from the office of Spencer Gumabao’s attorney, appellant Jim Bentson, to the superior court clerk assuring his appearance, Bentson never appeared for trial on August 16, and the matter was…