Weisman

Summary

The law firm of Shea & Gould, counsel for Sachiko T. Bower and Preferred Capital International, Inc. (Bower), appeals from an order requiring it to pay $2,500 to Crowley, Lebow & Cuneo, counsel for Frederick K. Weisman, Frederick Weisman Company, and Rare Properties, Inc. (Weisman), as sanctions under Code of Civil Procedure section 128.5 for filing a “frivolous” motion for a protective order.

*1234 We conclude that, in light of the special circumstances of this case and the broad discretion trial courts have to grant motions for a protective order, the motion was not so totally and completely without merit as to be “frivolous.” Further, there is no evidence in the record that the motion was brought in bad faith, for the sole purpose of harassing or causing unnecessary delay. Thus, the imposition of sanctions under section 128.5 was not warranted.

However, the| trial court did have authority under section 2019, subdivision (b)(1) (operative until July 1, 1987), to impose on Bower the requirement to pay Weisman’s reasonable costs and expenses in opposing the motion for a protective order. 2 Therefore, we reverse and remand the matter to allow the trial court…

I concur in the judgment. However, I have reservations about the rationale expressed by the court and the decision to publish this opinion.

Shea & Gould, Jerold Fagelbaum and John G. Connolly for Objector and Appellant.

Crowley, Lebow & Cuneo, Arthur J. Crowley, Mark A. Brodka and Sarah J. Hoover for Plaintiffs and Respondents.

OPINION

LUI, J. —

(1) (See fn. 1.) The law firm of Shea & Gould, counsel for Sachiko T. Bower and Preferred Capital International, Inc. (Bower), appeals from an order requiring it to pay $2,500 to Crowley, Lebow & Cuneo, counsel for Frederick K. Weisman, Frederick Weisman Company, and Rare Properties, Inc. (Weisman), as sanctions under Code of Civil Procedure section 128.5 for filing a "frivolous" motion for a protective order. [1]

We conclude that, in light of the special circumstances of this case and the broad discretion trial courts have to grant motions for a protective order, the motion was not so totally and completely without merit as to be "frivolous." Further, there is no evidence in the record that the motion was brought in bad faith, for the sole purpose of harassing or causing unnecessary delay. Thus, the imposition of sanctions under section 128.5 was not warranted.

However, the trial court did have authority under section 2019, subdivision (b)(1) (operative until July 1,…