Flag on the Play

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Football coach Vince Lombardi famously opined that, “Winning isn’t everything; it’s the only thing.”  This mantra captured the public’s imagination during Lombardi’s reign as coach of the Green Bay Packers in the 1960s, becoming a basic tenet of American sports.  But in Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc., 2013 Cal.App.LEXIS 513, the Fourth District Court of Appeal recently made it clear that the “Vince Lombardi” approach to law practice can draw the yellow flag.  As explained below, this is particularly true where a modicum of professional courtesy could obviate a summary judgment motion, the imposition of sanctions, and an appeal.

Interstate Specialty Marketing filed a complaint alleging a cause of action for breach of contract against ICRA Sapphire, Inc.  Attached to the complaint, however, was a prior iteration of the contract dated November 14.  Sapphire, of course, already had a true copy of the contract (dated November 26), which it attached to its cross-complaint.  Apparently not noticing the difference between the two documents, Interstate’s attorney subsequently filed a first amended complaint, again attaching the wrong document.  

Sapphire moved for summary judgment based solely on the document error, causing Interstate to finally realize its mistake (nearly a year after filing its original complaint) and bring an ex parte motion to formally amend the complaint to allege the correct document.  The trial court denied Sapphire’s motion for summary judgment and granted Interstate’s motion to amend.  But then the trial court went one step further.  On its own motion, the court set an order to show cause why sanctions should not be imposed for Interstate’s slowness in correcting its error. The trial court ultimately imposed sanctions on Interstate and its counsel, payable to Sapphire.  Interstate appealed.

On appeal, the court acknowledged that Interstate’s counsel could have been more diligent.  Nevertheless, the court reversed because the imposition of sanctions was incompatible with the sanctions statute (Code Civ. Proc., § 128.7).  But first the court paused to criticize Sapphire's counsel for exploiting his opponent’s carelessness.  Instead of deploying the "Vince Lombardi approach," the appellate court opined, Sapphire’s attorney should have done the “civil and professionally correct thing” by alerting Interstate that it had attached the wrong document, and then stipulating to an amendment.  In the court's view, a simple phone call could have avoided the whole mess.  "A little civility . . . could have resolved the problems in this case early on, saved everyone a lot of time, money, and toner, and spared us the unpleasant role of judicial scold this case has forced upon us."

Striking a balance between zealous representation of clients on one hand, and civility, courtesy, and cooperation on the other, is no easy feat.  Perhaps the takeaway in Interstate Specialty Marketing is that counsel would do well to remember that the law prefers a contest on the merits and, to that end, cooperation among opposing parties is sometimes appropriate.  Of course, the same cannot be said of opposing teams on a football field!