Sullwold

Robert Sullwold (hereafter Sullwold) and his employer Or-rick, Herrington & Sutcliffe (OHS) appeal from an order under Code of Civil Procedure section 128.5 directing them to pay legal expenses incurred by plaintiff Abbett Electric Corporation (AEC). The order was entered after the court declared a mistrial based on references in the jury’s presence to the alleged drinking of one of AEC’s employees. We reverse.

I. Facts

AEC brought this action to recover for electrical contracting services it performed on a building project in San Francisco. The owner, defendant Storek & Storek Environmental Center (hereafter Storek) was represented by appellants Sullwold and OHS. Storek cross-complained, alleging that AEC failed to perform in a timely manner and in some respects failed to perform at all.

On the 11th day of trial before a jury, Sullwold, as counsel for Storek, was cross-examining AEC’s president, J. Conrad Abbett. Abbett testified that AEC’s foreman, Jim Berg, had been late to work on the project more than once. Abbett was asked the reasons for Berg’s tardiness and testified that he understood Berg had just been divorced and “was upset about it and so forth.” Sullwold…