Judge: Anne Hwang, Case: 22STCV17683, Date: 2024-11-05 Tentative Ruling

Case Number: 22STCV17683    Hearing Date: November 5, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            Defendant Tesla Energy Operations, LLC (“Defendant”) now moves for sanctions against Plaintiffs Puneh Kitchen, Jonathan Kitchen, and Jesse Kitchen’s (“Plaintiffs”) counsel of record, Thomas G. Stolpman and his law firm Stolpman Law Group (“Stolpman”) pursuant to Code of Civil Procedure section 128.5 and 575.2.

            No opposition has been filed.

LEGAL STANDARD

Code of Civil Procedure section 128.5 states in pertinent part: 

(a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. 

(b) For purposes of this section: 

(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section. 

(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. 

… 

(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures: 

(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party's attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

…

(2) An order for sanctions pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated.

A motion is “frivolous” and in “bad faith” where “any reasonable lawyer would agree it is totally devoid of merit,” such as when it is lacking any basis in statutory or case law or made without any necessary evidence to support it.  (Karwasky v. Zachay (1983) 146 Cal.App.3d 679, 681.)  There must also be a showing of subjective bad faith for sanctions under Section 128.5.  (See, e.g., In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220-21.)  The fact a motion lacks merit is not enough by itself to justify an award of sanctions under Section 128.5; it is error to award sanctions if it was not unreasonable for the moving party's attorney to think the issues raised were arguable, and there is no evidence of subjective bad faith or improper motive.  (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20; Bruno v. Superior Court (Gridley) (1990) 219 Cal.App.3d 1359, 1365.) 

Code of Civil Procedure section 575.2 states the following:

“(a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.

(b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.”

Furthermore, “[i]f a judge of a court adopts a rule that applies solely to cases in that judge's courtroom, or a particular branch or district of a court adopts a rule that applies solely to cases in that particular branch or district of a court, the court shall publish these rules as part of the general publication of rules required by the California Rules of Court. . . . Individual judges’ rules and branch and district rules are local rules of court for purposes of this section.” (Code Civ. Proc., § 575.1, subd. (c).)

            The Court’s Eighth Amended Standing Order provides in relevant part:

“Failure To Comply with Final Status Conference Obligations: The PI Hub Courts have the discretion to require any party or counsel of record who fails or refuses to comply with this Standing Order to show cause why the court should not impose monetary, evidentiary, and/or issue sanctions (including the entry of a default or the striking of an answer) (Code of Civil Procedure, section 575.2).”

(Eighth Amended Standing Order ¶ 12D.)

The Standing Order further states: “On the trial date, all parties and/or their trial counsel must appear in person with trial and exhibit binders in the PI Hub Court assigned to the case.” (Eighth Amended Standing Order ¶ 14.)

DISCUSSION

Here, Defendant seeks $16,587.22 in monetary sanctions based on Stolpman’s repeated failures to appear ready for trial in this action. Defendant lays out the following procedural history.

Trial was set in this matter for October 1, 2024. Stolpman failed to appear at the second final status conference on September 18, 2024, which caused the Court to set a third final status conference. Defendant contends this was part of a pattern of delay observed in August 2024, when Stolpman failed to work with Defendant to prepare the trial binder. Defendant’s counsel asserts that on August 21, 2024, they sent Stolpman their materials for the final status conference (Defendant’s witness list, exhibit list, and proposed statement of the case); Defendant also asked Stolpman to assemble the final documents. (Sidran Decl. ¶ 4.) On August 22, 2024, Stolpman sent Plaintiff’s jury instructions, but purported to not understand his office was to assemble the final documents. Defendant argues that due to this, the trial binder was not completed before the original final status conference on August 27, 2024. (Id. ¶ 5.) Defendant asserts that Stolpman ultimately cooperated in completing the joint exhibit and witness lists, and the trial binder was accepted at the third final status conference on September 23, 2024. (Id. ¶ 7.)

Then, on October 1, 2024, Stolpman arrived late for trial at 9:36 a.m. Stolpman was not ready for trial and did not have exhibit binders. (Min. Order, 10/1/24.) As a result, the Court, on its own, continued trial to October 2, 2024. Defendant asserts that Stolpman resides in Santa Barbara, and therefore should have known there would be traffic when traveling to Los Angeles in the morning.

Defendant argues these are frivolous tactics. Defendant seeks sanctions to recover attorney fees incurred on September 18, 2024 and October 1, 2024; Defendant’s counsel traveled from the Bay Area and San Diego, to Los Angeles and stayed overnight to prepare for the trial call. (Forbath Decl. ¶ 3; Sidran Decl. ¶ 12.)

However, based on the above, Defendant has failed to present enough evidence of Stolpman’s subjective bad faith when delaying with the preparing the trial binder before the final status conference and when he arrived late to trial on October 1, 2024.[1] However, the Court will consider Defendant’s alternative motion for sanctions under section 575.2.

Based on the history of this case above, Stolpman did not comply with the Court’s Eighth Amended Standing Order when he was not prepared and failed to appear at the final status conference on September 18, 2024 and failed to appear with the exhibit binders on October 1, 2024. Therefore, monetary sanctions are warranted.

Defendant’s counsel Tracy D. Forbath asserts 11.1 hours were billed for this motion for sanctions at a $425 hourly rate, and also asserts Associate Daniel R. Vellado billed 15.7 hours for working on this motion, at $300 per hour. (Forbath Decl. ¶ 8, 10-11.) Defendant’s counsel David R. Sidran also billed 2 hours for this motion at a $600 hourly rate. (Sidran Decl. ¶ 21, 24.) The Court finds that the amount claimed for this motion is excessive; the Court also notes there was no opposition, and counsel can appear at the hearing remotely. Therefore, the Court finds that five (5) hours of attorney time, at the $300 hourly rate is reasonable: $1,500.

Defendant’s counsel Sidran asserts that on October 1, he billed a total of 4.5 hours, and 1.5 hours for the September 18 FSC. His expenses for the October 1 trial attendance was $330. Defendant’s counsel Forbath asserts expenses for attending trial. The Court awards sanctions in the amount of $2,130 (3 hours of Sidran’s time for the FSC and trial, plus expenses). The Court does not award monetary sanctions for additional counsel to appear at trial, as only trial counsel was ordered to personally appear.

CONCLUSION AND ORDER

Therefore, the motion for sanctions is GRANTED in part. Counsel for Plaintiff shall pay $3,630.00 in monetary sanctions to counsel for Defendant within 30 days.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.