Judge: Armen Tamzarian, Case: BC583713, Date: 2023-08-09 Tentative Ruling

Case Number: BC583713    Hearing Date: February 9, 2024    Dept: 52

Defendant Shara Koplowitz’s Motion for Sanctions

            Defendant Shara Koplowitz moves under Code of Civil Procedure section 128.7 for $5,593.91 in sanctions against plaintiff 7219-7225 West Sunset LLC and its counsel Robert Scott Shtofman.  Defendant contends plaintiff violated section 128.7 by filing its “notice of motion for reasonable attorney’s fee and costs as prevailing party on cross-complaint” on August 14, 2023.

Safe Harbor

            Defendant followed the safe harbor procedure required under section 128.7.  “Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”  (CCP § 128.7(c)(1).)  The proof of service attached to the moving papers states defendant electronically served this motion on defendant on December 21, 2023.  Defendant filed the motion on January 18, 2024.  That was 28 days later.  Plaintiff had 28 days to withdraw the motion for attorney fees.  It did not. 

Plaintiff’s opposition argues defendant failed to provide safe harbor—but then asserts defendant’s counsel falsely claimed on January 16, 2024, that he had not filed the motion.  (Shtofman Decl., Exs. 2, 4.)  On January 16, defendant’s counsel Robert Gentino wrote, “Because I have not filed the 128.7 sanctions motion, there is no motion to withdraw” and, “I reiterate: the motion has not been filed.”  (Ibid.)  That was true.  He filed the motion on January 18, two days later.  Moreover, he had not filed the motion yet because he was allowing safe harbor.  The moving party can only do that by serving the motion at least 21 days before filing it.  (CCP § 128.7(c)(1).)  In other words, the opposition complains that defendant did comply with the safe harbor requirement.

Plaintiff’s Motion for Attorney Fees Was Legally Frivolous

Code of Civil Procedure section 128.7(b) provides, “By presenting to the court, whether by signing, filing, submitting, or later advocating, a … written notice of motion, or other similar paper, an attorney … is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the motion is not brought for an improper purpose, does not make frivolous claims, and has evidentiary support. 

Under section 128.7(c), “a court may impose sanctions for filing a [paper] if the court concludes the [paper] was filed for an improper purpose or was indisputably without merit, either legally or factually.”  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 (Peake).)  “A claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ ”  (Ibid.)  “In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.  [Citation.]  A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ ”  (Ibid.)

Plaintiff’s written notice of motion for attorney fees on August 14, 2023, was indisputably without merit.  The motion sought attorney fees on the basis that plaintiff was the prevailing party because defendant/cross-complainant voluntarily dismissed her cross-complaint.  As the court stated in its order on January 16, the parties already litigated the issue of whether plaintiff was the prevailing party multiple times.  Plaintiff lost every time.  “The claims … and other legal contentions” in plaintiff’s motion were not “warranted by existing law.”  (CCP § 128.7(b)(2).) 

Any reasonable attorney would agree it was totally and completely meritless for a party to move for attorney fees after it (1) was already found, several times, to not be the prevailing party, and (2) had judgment of over $150,000 entered against it.  During the arbitration proceeding, plaintiff’s assertion that it was the prevailing party might not have been frivolous.  But that assertion was completely meritless once the court confirmed the arbitration award and entered judgment against plaintiff in July 2023.  It was frivolous for plaintiff to continue asserting it was the prevailing party. 

Collateral Estoppel and Res Judicata

            Plaintiff’s opposition argues this motion is barred by the doctrines of collateral estoppel and res judicata.  Both doctrines require a separate proceeding before this one.  (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)  “Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.  Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ ”  (Ibid., italics added.)  A prior order in this action cannot result in collateral estoppel or res judicata within the same action.

Code of Civil Procedure Section 1008

            Plaintiff further argues that, because the court denied defendant’s prior motion for sanctions on January 16, this motion seeks reconsideration in violation of Code of Civil Procedure section 1008.  Defendant does not seek reconsideration of the court’s order issued January 18.  In the prior motion, defendant sought sanctions under Code of Civil Procedure section 128.5 for plaintiff’s memorandum of costs.  In this motion, defendant seeks sanctions under Code of Civil Procedure section 128.7 for defendant’s notice of motion for attorney fees.  The court denied the prior motion because it found insufficient evidence that plaintiff’s counsel acted in bad faith.  Unlike section 128.5, for sanctions under section 128.7 “it is not necessary to show the party acted with an improper motive or subjective bad faith.”  (Peake, supra, 227 Cal.App.4th at p. 449.)

Disposition

            Defendant Shara Koplowitz’s motion for sanctions under Code of Civil Procedure section 128.7 is granted.  The court hereby imposes $5,593.91 in sanctions against plaintiff 7219-7225 West Sunset LLC and its counsel Robert Scott Shtofman.  Plaintiff and its counsel are jointly and severally liable for the sanctions.