Popkin

Moreover, even if the order is nonappealable, it should be treated as a petition for extraordinary relief. In Estate of Hearst (1977) 67 Cal.App.3d 777 [ 136 Cal.Rptr. 821 ], the court did so because the issue "involved a question of public importance appropriate for resolution." ( Id. at p. 781.) Questions involving the scope and meaning of Code of Civil Procedure section 128.5 have widespread implications for both the legal profession and the public it serves.

Park Magnolia v. Fields (1987) 191 Cal.App.3d Supp. 1 [ 236 Cal.Rptr. 900 ] is instructive. There a plaintiff, relying on a void default judgment, obtained a writ of possession against the defendant and then opposed defendant's motion to quash the writ. The appellate department of the superior court reversed the municipal court's denial of a request for sanctions. It based its decision on the definition pronounced in Karwasky v. Zachay (1983) 146 Cal.App.3d 679 , 680 [ 194 Cal.Rptr. 292 ]: A bad faith frivolous claim is one a hypothetical reasonable attorney would agree is totally and completely without merit. The Karwasky court noted: "`[T]he concept of good faith has to include the concept that motions are brought,…

Richard Popkin, Ruth Shamir and Jack Golan (Popkin) appeal from an order denying their motion to impose sanctions as prescribed by Code of Civil Procedure section 128.5 against Wells Properties and its attorneys, Schmiesing & Blied (Wells).

Facts

Popkin and Wells settled an action seeking an unpaid real estate commission. Under the terms of the agreement, Popkin would pay Wells $25,000 at a rate of $5,000 per month. Popkin also signed a stipulation for entry of judgment for $55,000. If any payment was late, Wells, at their sole discretion, had the right to declare a default and enter the judgment upon ex parte application without further notice. Payments were to be wire-transferred to Wells’s account on or before the 20th of each month.

Popkin made timely payments in November, December, and January. Popkin’s secretary, Annette Ochoa, delivered the February payment to Pop-kin’s bank on the 20th, but the bank’s wire service had closed for the day. Consequently, Wells’s account was not credited until the next morning.

February 21 was a day of frantic phone calls. Wells informed Popkin’s attorney that because the payment had not been timely received, they were searching…

OPINION Richard Popkin, Ruth Shamir and Jack Golan (Popkin) appeal from an order denying their motion to impose sanctions as prescribed by Code of Civil Procedure section 128.5 1 against Wells Properties and its attorneys, Schmiesing Blied (Wells). FACTS Popkin and Wells settled an action seeking an unpaid real estate commission. Under the terms of the agreement, Popkin would pay Wells $25,000 at a rate of $5,000 per month. Popkin also signed a stipulation for entry of judgment for $55,000. If any payment was late, Wells, at their sole discretion, had the right to declare a default and enter the judgment upon ex parte application without further notice. 2 Payments were to be wire-transferred to Wells's account on or before the 20th of each month. Popkin made timely payments in November, December, and January. Popkin's secretary, Annette Ochoa, delivered the February payment to Popkin's bank on the 20th, but the bank's wire service had closed for the day. Consequently, Wells's account was not credited until the next morning. February 21 was a day of frantic phone calls. Wells informed Popkin's attorney that because the payment had not been timely received, they were searching for…