Attorney used the wrong defense

[surfsupinhawaii]

I had a lawyer that represented me in a civil limited case. The Plaintiff is trying to sue me for $17,000.00 I had sued the Plainitff in small claims and won. He counter sued me for the same amount. My Attorney filed a Demurer, it was heard by the Judge, sanctions were awarded, and The Demurer was sustained without leave to amend.
It is now gone to Appeal, the Plaintiff has filed his appellant Brief. He is stating that what he is suing for is a new subject. In the Demurer that my Attorney filed he cited CCP 128.5. It can only be used on or before Dec 1994. He should have used 128.6. The Judge allowed it to go through. I called this Attorney, he did'nt say much, he knows he made a mistake. I sent him the brief and he called to tell me that he did'nt know what to do. He and I parted ways after the Judgment. I have been in pro per since this time. I feel that he made a huge mistake. In the Appellants brief they are using this, saying that sanctions were unlawfully imposed pursuant to CCP section 128.5.

I am a General Contractor, if I do work for someone and it ends up breaking, I go and fix it. Can anyone tell me how I can have this changed to 128.6. I feel that this Attorney should be held responsible.

[aaron]

If the effect of both statutes would be the same, and that is properly indicated to the Court of Appeals in response to their appeal, the appellate court probably won't grant any relief.

[surfsupinhawaii]

In the response they quote 128.7. ( 128.5 and 128.6 )are the same except for the cut off date of 128.5 being Dec of 1994. They are stating that sanctions were unlawfully imposed pursuant to statute 128.5, that did not apply, as a matter of law to the case. In their brief they state that even if my lawyer had used CCp 128.7 it would not have worked. The problem is my lawyer did not mean 128.7 he meant 128.6. I need to see about getting it changed, I understand the mix up, but I believe the Plaintiff can use this and I would rather not have a guessing game. Does anyone know what motion to file to have this changed?