Judge: Bruce G. Iwasaki, Case: 22STCV19136, Date: 2023-05-01 Tentative Ruling
Case Number: 22STCV19136 Hearing Date: May 1, 2023 Dept: 58
Judge Bruce G. Iwasaki
Hearing
Date: May 1, 2023
Case Name: Keya Persley v. Leo Aguila et
al.
Case No.: 22STCV19136
Matter: Demurrer
Moving
Party: Defendants Trader Joe’s
Company, Leo Aguila, and Tim Woodland
Responding Party: Plaintiff Keya Persley
Tentative Ruling: The demurrer
is sustained as to the eighth, ninth, tenth, eleventh, fourteenth, fifteenth,
eighteenth, nineteenth, and twenty-first causes of action without leave to
amend.
Background
and procedural history
In
this employment case, Keya Persley (“Plaintiff”) sues Leo Aguila, Tim Woodland,
and Trader Joe’s Company (collectively, “Defendants’) for breach of express
written contract, breach of implied contract, breach of the covenant of good
faith and fair dealing, wrongful termination, discrimination, retaliation,
harassment, violation of California Labor Code section 230(c),(e), and (f) and
230.1, violation of Labor Code section 1198.5, whistleblower retaliation,
fraud, intentional infliction of emotional distress, negligence, assault, violation of Civil Code
sections 51 et seq., and 52.1, violation of Business and Professions Code
section 17200, and violation of the Consumer Legal Remedies Act.
Plaintiff alleges that she was
working at Defendants’ store and a customer physically attacked and threatened
her with derogatory, sexist, and racist language. She alleges Defendant Aguila was present but did
not adequately intervene. Aguila also
reportedly allowed those customers into the store, where they attacked
Plaintiff a second time when they were leaving.
A separate, similar incident occurred one day later during her lunch
break, and another manager also failed to intervene. The Complaint avers that the managers created
an unsafe and hostile work environment because they failed to protect Plaintiff
during what she describes as hate crimes.
This court previously sustained
Defendant Trader Joe’s Company’s demurrer (“first demurrer”) to the eighth
(violation of Labor Code section 230 et seq.), eleventh (fraudulent
inducement), fifteenth (violation of Civil Code sections 51 et seq. and 52.1),
and seventeenth (violation of the Consumer Legal Remedies Act) causes of
action. The court granted leave to amend
for Plaintiff to file an amended complaint on or before December 9, 2022.
Leo Aguila and Tim Woodland (Individual
Defendants) defaulted on October 10, 2022; however, this court vacated those
defaults on October 21, 2022.
The individuals demurred (“second
demurrer), and the court sustained their demurrer to the eleventh (fraudulent
inducement), twelfth (intentional infliction of emotional distress), fourteenth
(assault), fifteenth (violation of Civil Code sections 52.1) causes of action
for insufficient facts. The court did not grant leave to amend the assault
cause of action.
On
February 7, 2023, Plaintiff amended her complaint. All three defendants
demurred. Plaintiff filed an opposition and Defendants reiterated its arguments
in reply. The meet and confer requirements
are satisfied. (Wallin Decl., ¶ 3.)
Legal Standard
A
demurrer is an objection to a pleading, the grounds for which are apparent from
either the face of the complaint or a matter of which the court may take
judicial notice. (Code Civ. Proc., §
430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) The purpose of a demurrer is to
challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (§ 452.) The court “ ‘ “treat[s] the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law . . . .” ’ ”
(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) The court liberally construes the complaint
to determine whether a cause of action has been stated. (Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
Discussion
The
court denies Plaintiff’s request for judicial notice of the redlined comparison
of the original and first amended complaint.
Eighth Through Eleventh causes of action –
violation of California Labor Code sections 230 (c), (e), (f), and 230.1
As described more fully below, Labor
Code sections 230 (c), (e), (f) and 230.1 prohibit an employer from taking
adverse action against an employee who is a crime victim, including for
requesting or taking time off work to obtain relief.
Plaintiff pleads
violations of Labor Code sections 230(c), (e), (f) and 230.1 against Defendant
Trader Joe’s Company only. Plaintiff alleges that Defendant discriminated and
retaliated against her by refusing to provide her with medical and
psychological care due to the perception that she required medical attention
for her injuries caused by hate crimes in violation of Labor Code sections 230
and 230.1. (First Amended Complaint, ¶¶ 67, 69, 70.) Plaintiff alleges that in violation of Labor
Code section 230(c), Defendant “discriminated against, retaliated against
Plaintiff, repeatedly refused Plaintiff time off, refused Plaintiff medical
care, denied her injury, disability and ability to obtain medical care,
cancelled her medical insurance, refused her any pay, refused to evaluate her
for accommodation and refused accommodation.” (First Amended Complaint, ¶ 149.)
Plaintiff makes the same allegations about Defendant regarding violation of
Labor Code section 230(e). (First Amended Complaint, ¶ 154.) Plaintiff alleges
that in violation of Labor Code section 230(f), Defendant refused any
evaluation and refused to provide time off or leave to Plaintiff. (First
Amended Complaint, ¶ 159.) Plaintiff alleges that in violation of Labor Code
section 230.1, Defendant did not provide Plaintiff leave. (First Amended
Complaint, ¶¶ 165, 166.) Plaintiff alleges that Defendants’ violations led to
her constructive termination. (First Amended Complaint, ¶¶ 150, 155, 161, 167.)
Arguing
the demurrer to the four separate violations together, Defendant Trader Joe’s contends that Plaintiff
has not alleged that any adverse employment action resulted from her missing
work to seek judicial relief or attend any judicial proceeding. (Motion, pgs.
5-6, lines 25-28, 1-4.) Thus, Labor Code sections 230 and 230.1 are
inapplicable to her. (Motion, pg. 6, line 5-6.) In opposition, Plaintiff argues
that Defendant misstated the law, she pleaded that she was a victim of hate
crimes because of her gender, she pleaded that she was a victim of stalking and
assault, and thus, she can seek relief under Labor Code sections 230 and 230.1.
(Opposition, pgs. 11, 12, lines 23-25, 21.) She argues that Defendant was
required to provide her time off or leave. (Opposition, pg. 12, lines 18-19.) In
reply, Defendant reiterates its arguments.
Labor Code section 230, subdivision (c)
states that an employer shall not discharge or in any manner discriminate or
retaliate against an employee who is a victim for taking time off from work to
obtain or attempt to obtain any relief. Relief includes, but is not limited to,
a temporary restraining order, restraining order, or other injunctive relief,
to help ensure the health, safety, or welfare of the victim or their child. (Ibid.)
Labor
Code section 230, subdivision (e) states that an employer shall not discharge
or in any manner discriminate or retaliate against an employee because of the
employee’s status as a victim of crime or abuse if the employee provides notice
to the employer of the status or the employer has actual knowledge of the
status.
Labor
Code section, subdivision (f) says that an employer shall provide reasonable
accommodations for a victim of domestic violence, sexual assault, or stalking
who requests an accommodation for the safety of the victim while at work. Reasonable
accommodations may include the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work telephone, changed work
station, installed lock, assistance in documenting domestic violence, sexual
assault, stalking, or other crime that occurs in the workplace, an implemented
safety procedure, or another adjustment to a job structure, workplace facility,
or work requirement in response to domestic violence, sexual assault, stalking,
or other crime, or referral to a victim assistance organization. (Lab. Code, § 230(f)(2).)
“Victim” includes a victim of stalking,
domestic violence, or sexual assault, a victim of a crime that caused physical
injury or that caused mental injury and a threat of physical injury, or a
person whose immediate family member is deceased as the direct result of the
crime. (Lab. Code, § 230(j)(6).)
Labor Code section 230.1 prohibits employers with 25 or
more employees from discharging, discriminating, or retaliating against an
employee who is a victim, for taking time off from work for the following
reasons: “(1) to seek medical attention for injuries caused by crime or abuse;
(2) to obtain services from a domestic violence shelter, program, rape crisis
center, or victim services organization or agency because of the crime or abuse;
(3) to obtain psychological counseling or mental health services related to an
experience of crime or abuse; (4) to participate in safety planning and take
other actions to increase safety from future crime or abuse, including
temporary or permanent relocation.”
Like the first demurrer, there are no allegations that
Defendant discriminated, retaliated, or terminated Plaintiff because she
took time off from work to obtain relief of the type
enumerated in Labor Code section 230(c). Further, Plaintiff does not allege
that she sought the relief of the type enumerated in Labor Code section 230(c).
In addition, there are no allegations that Defendant discriminated,
retaliated, or terminated her because of her status as a victim of
a hate crime in violation of Labor Code section 230(e). Also, Plaintiff does
not allege that Defendant failed to provide her an accommodation for her safety
at work in violation of Labor Code section 230(f). Further, there are no
allegations that Plaintiff requested an accommodation specifically for her
safety at work. Additionally, there are no allegations that Defendant
discriminated, retaliated, or terminated her because she took time off
work for any of the enumerated reasons in Labor Code section 230.1.
Because Plaintiff fails
to plead any adverse employment action due to her victimhood, she fails to
state a cause of action under these statutes.
The demurrer to the eighth through eleventh causes of action is
sustained without leave to amend.
Fourteenth cause of action – fraud
“The
elements of fraud are (a) a misrepresentation (false representation,
concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c)
intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
(Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) As our Supreme Court explained, the facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645 (Lazar).) To properly allege fraud against a
corporation, the plaintiffs must plead the names of the persons allegedly
making the false representations, their authority to speak, to whom they spoke,
what they said or wrote, and when it was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Plaintiff pleads fraud against all defendants. Plaintiff
alleges that up to and including July 6, 2020, Defendants expressly promised
Plaintiff’s employment would continue if she performed satisfactorily and
obeyed all reasonable and lawful directions, rules and regulations of her
employment. (First Amended Complaint, ¶ 36.) Defendant Trader Joe’s Company expressly
promised Plaintiff that it would not act arbitrarily in dealing with Plaintiff,
she would not be arbitrarily transferred, and she was being considered for
promotion. (Ibid.) Plaintiff also alleges that Defendants had promised
her she would remain in their employ if she stayed with them during the then publicly
declared COVID related emergency. (First Amended Complaint, ¶ 37.) Plaintiff
alleges that Defendants made these representations to induce her to remain
employed by Defendant. (Ibid.) Plaintiff also alleges that Defendants
made these representations so that she would not report illegal conduct. (First
Amended Complaint, ¶ 182.) Plaintiff alleges that Defendants breached these
promises and her employment agreement. (First Amended Complaint, ¶ 183.)
Defendants argue that Plaintiff is repurposing
her fraudulent inducement claim, sustained in the first and second demurrer,
into a general fraud claim. (Motion, pg. 6, lines 10-11.) Defendants further
argue that her allegations are conclusory. (Motion, pg. 6, lines 12-14.) Citing
no authority, Plaintiff argues that she is not required to plead more than what
she pleaded. (Motion, pg. 13, lines 2-14.)
This
fraud cause of action is effectively identical to Plaintiff’s previous
dismissed fraudulent inducement claim. To overcome a demurrer, Plaintiff must
allege specific facts for each element of fraud. Here, she continues to make vague allegations
about what Defendants said to her without identifying who said it, when it was
said, and their authority to speak. (Lazar,
supra, 12 Cal.4th at p. 645 [complaint for fraud requires “ ‘pleading
facts which show how, when, where, to whom, and by what means the
representations were tendered.’ ” (original italics)].) In addition to the lack of specificity, the
Complaint fails to allege Defendants’ knowledge of the falsity or her
justifiable reliance.
The demurrer to the fourteenth cause of action is
sustained without leave to amend.
Fifteenth cause of action – intentional
infliction of emotional distress
Intentional
infliction of emotional distress requires “(1) extreme and outrageous conduct
by the defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff suffered severe
emotional distress; and (3) the defendant's extreme and outrageous conduct was
the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of
Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)
Plaintiff pleads intentional infliction of
emotional distress against all defendants. Defendants’ alleged misconduct is permitting
Plaintiff to be victimized by hate crimes. (First Amended Complaint, ¶ 187.) Plaintiff alleges that Defendants permitted
the conduct to continue and questioned Plaintiff’s conduct in the presence of
the parties who had assaulted her. (Ibid.) Defendants argue that this
cause of action is barred by the sham pleading doctrine because she added
details, namely paragraphs 49 and 50, that contradict her previous allegations.
(Motion, pgs. 6-7, lines 20-28; 1-8.) Plaintiff argues that her allegations do
not contradict the allegations in her original complaint, and thus, Defendants’
argument lacks merit. (Opposition, pg. 13, lines 19-21.)
Under
the sham pleading doctrine, plaintiffs cannot amend complaints to omit harmful
allegations, without explanation, from previous complaints to avoid attacks
raised in demurrers or motions for summary judgment. (See Hendy v. Losse (1991) 54
Cal.3d 723, 742–743 (affirming an order sustaining defendants' demurrer without
leave to amend when the plaintiff filed an amended complaint omitting harmful
allegations from the original unverified complaint.)
Here, the emotional distress claim is not barred
by the sham pleading doctrine because Plaintiff did not omit allegations in her
first amended complaint. Instead, she added allegations.
However,
like the second demurrer, the facts here are insufficient to support this cause
of action. Whether the alleged conduct is outrageous is
usually a question of fact. (So v.
Shin (2013) 212 Cal.App.4th 652, 672.)
Nevertheless, some cases have dismissed intentional infliction of
emotional distress claims on demurrer, finding that the conduct was not
outrageous. (Cochran v. Cochran
(1998) 65 Cal.App.4th 488, 494. [“the appellate courts have affirmed orders
which sustained demurrers on the ground that the Defendant's alleged conduct
was not sufficiently outrageous”]; Trerice v. Blue Cross of California
(1989) 209 Cal.App.3d 878, 883 [“While the outrageousness of a defendant’s
conduct normally presents an issue of fact to be determined by the trier of
fact . . . The court may determine in the first instance, whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery”].)
“An essential element of [a claim
for intentional infliction of emotional distress] is a pleading of outrageous
conduct beyond the bounds of human decency. [Citations.] Managing personnel is
not outrageous conduct beyond the bounds of human decency, but rather conduct
essential to the welfare and prosperity of society. A simple pleading of
personnel management activity is insufficient to support a claim of intentional
infliction of emotional distress, even if improper motivation is alleged. If
personnel management decisions are improperly motivated, the remedy is a suit
against the employer for discrimination.” (Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 80.)
Like
the second demurrer, at best, Plaintiff’s allegations amount to negligence and
a failure to act. “Absent an intent to
injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that
gives rise to liability under the ‘intentional infliction of emotional
distress’ tort.” (Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 210 [during a police stakeout, the
officer’s failure to warn victim of a stabbing did not constitute “affirmative
misconduct” and outrageous behavior].)
There are no allegations of any affirmative conduct here. Despite a
conclusory allegation that Defendants acted “deliberately and intentionally” to
cause Plaintiff to suffer harm, she fails to allege any facts showing a
specific intent to injure. Accordingly,
the demurrer to the cause of action for intentional infliction of emotional
distress is sustained without leave to amend.
Eighteenth cause of action – violation of Civil
Code section 51
The elements of a claim
for violation of the Unruh Civil Rights Act are: (1) defendant is a
business establishment, (2) defendant intentionally denied plaintiff
accommodations, advantages, privileges, facilities, or services, (3) defendant
was motivated to do so based on its perception that plaintiff belonged to a
statutorily defined group, (4) plaintiff was harmed, and (5) defendant’s
conduct was a substantial factor in causing plaintiff’s harm. (See Civ. Code, §
51; In re Cox (1970) 3 Cal.3d 205, 216.)
Plaintiff pleads violation of Civil Code
section 51, the Unruh Civil Rights Act, against all defendants. Plaintiff
alleges that Defendants’ alleged misconduct is the second hate crime she
experienced while she was on site during her lunch break. (First Amended
Complaint, ¶214.)
Defendants argue that the only change she made
in her first amended complaint regarding this cause of action is to allege that
she is also bringing this suit as a member of the public, and that this
conclusory allegation is not enough to repurpose her employment lawsuit. (Motion,
pg. 7, lines 9-22.) Plaintiff argues that she pleads that in her capacity as a
member of the public, she was a victim of a violent crime which occurred when
she was not working and while on Defendant Trader Joe’s Company’s premises. (Opposition,
pg. 14, lines 16-19.)
Like the first demurrer,
the Unruh Civil Rights Act does not apply because it was not the individual
defendants or Trader Joe’s Company that denied her accommodations, advantages,
privileges, facilities, or services, but rather the third-party customers. (First Amended Complaint, ¶¶ 61-62.)
Thus, the court sustains
the demurrer to the eighteenth cause of action without leave to amend.
Nineteenth cause of action – violation of Civil
Code section 52.1
Civil Code Section 52.1, the Tom Bane Civil
Rights Act, authorizes suit against anyone who by threats, intimidation, or
coercion interferes with the exercise or enjoyment of rights secured by the
state or federal Constitutions or laws without regard to whether the victim is
a member of a protected class. (Civ. Code § 52.1.) The test for whether a
defendant violates Section 52.1 for interference with a legal right by threats,
intimidation or coercion is whether a reasonable person, standing in the shoes
of the plaintiff, would have been intimidated, threatened, or coerced by the
actions of the defendants. (Richardson
v. City of Antioch (2010)
722 F.Supp.2d 1133, 1147; Winarto
v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289-90.)
Plaintiff pleads violation of Civil Code section 52.1 against all
defendants. She alleges that Defendants
have recklessly disregarded her rights and welfare by intimidation and
coercion. (First Amended Complaint, ¶ 220.)
Defendants make the same arguments as for violation
of Civil Code section 51. (Motion, pg. 7, lines 9-22.) Plaintiff argues that
Civil Code section 52.1 also applies in an employment context. (Opposition, pg.
14, lines 10-15.)
The
court incorporates its prior analysis and sustains the demurrer. The Bane Act
does not apply because it was not these individual Defendants or Trader Joe’s
Company that interfered with Plaintiff’s rights, but rather the third-party
customers. (First Amended Complaint, ¶¶ 61-62.)
The
demurrer to the nineteenth cause of action is sustained without leave to amend.
Twenty-first cause of action – violation of Consumer
Legal Remedies Act
The Consumer Legal
Remedies Act makes unlawful various “unfair methods of competition and unfair
or deceptive acts or practices undertaken by any person in a transaction
intended to result or which results in the sale or lease of goods or services
to any consumer.” (Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th
870, 880-881.) It proscribes 27 specific acts or practices.” (Id. at
881.) Thus, a plaintiff must allege that she
acquired a tangible good or service; that defendant engaged in a prohibited
practice under section 1770; that plaintiff was harmed; and that the harm
resulted from defendant’s conduct. (BAJI No. 4700.)
Plaintiff pleads violation of the Consumer Legal Remedies Act against
all defendants. Plaintiff
sues as a consumer of goods and services purchased from Defendant on or about
June 12, 2020, when she was not working. (First Amended Complaint, ¶ 226.) Plaintiff alleges that she
notified the Defendant of actionable conduct under Civil Code section 1770(a)(2),
(5), (7), (14), (18), and demanded remedy. (Ibid.) She also alleges that
Defendant advertised, marketed, and represented itself to Plaintiff and
consumers as providing a safe and fair place for consumers and its workers,
that it did not discriminate harass or retaliate based upon the factors stated
herein, which Defendants did not have a reasonable basis to know was true, and
which was not true. (First
Amended Complaint, ¶ 228.)
Like the first demurrer, Defendants argue this
law does not apply to Plaintiff because her claims arise from her employment
relationship with Trader Joe’s Company. (Motion, pg. 8, lines 14-22.) Plaintiff
argues that she sues as a consumer of goods and services purchased from Trader
Joe’s Company on or about June 12, 2020, when she was not working. (Opposition,
pg. 15, lines 16-29.) Plaintiff’s opposition recites her Complaint that
Defendants “did advertise, market and represent itself to Plaintiff and
consumers as providing a safe and fair place for consumers and its workers,
that it did not discriminate, harass or retaliate based upon the factors stated
here, which Defendants did not have a reasonable basis to know was true, and
which was not true.” (Opposition, pg. 15, lines 15-24.)
The
court incorporates its prior analysis and sustains the demurrer. Her
allegations, again, are conclusory. She does not allege what she bought from Trader
Joe’s as a consumer. Further, she does not allege how Defendants violated Civil
Code section 1770(a)(2),
(5), (7), (14), and (18).
Conclusion
The
court sustains the demurrer as to the eighth, ninth, tenth, eleventh,
fourteenth, fifteenth, eighteenth, nineteenth, and twenty-first causes of
action without leave to amend.
. . . . .
Judge Bruce G. Iwasaki
Hearing
Date: May 1, 2023
Case Name: Keya Persley v. Leo Aguila et
al.
Case No.: 22STCV19136
Matter: Motion for Sanctions
Moving
Party: Defendants Trader Joe’s
Company, Leo Aguila, and Tim Woodland
Responding
Party: Plaintiff Keya Persley
Tentative Ruling: The motion
for sanctions is denied.
Background and
procedural history
In this employment
case, Keya Persley (“Plaintiff”) sues Leo Aguila, Tim Woodland, and Trader
Joe’s Company (collectively, “Defendants’) for breach of express written
contract, breach of implied contract, breach of the covenant of good faith and
fair dealing, wrongful termination, discrimination, retaliation, harassment, violation
of California Labor Code section 230(c),(e), and (f) and 230.1, violation of
Labor Code section 1198.5, whistleblower retaliation, fraud, intentional
infliction of emotional distress, negligence, assault, violation of Civil Code
sections 51 et seq., and 52.1, violation of Business and Professions Code
section 17200, and violation of the Consumer Legal Remedies Act.
Plaintiff alleges that she was
working at Defendants’ store and a customer physically attacked and threatened
her with derogatory, sexist, and racist language. She alleges Defendant Aguila did not
adequately intervene. Aguila also
reportedly allowed those customers into the store, where they attacked
Plaintiff a second time when they were leaving.
A separate, similar incident occurred one day later when she was on her
lunch break, and another manager also failed to intervene. The Complaint avers that the managers created
an unsafe and hostile work environment because they failed to protect Plaintiff
during what she describes as hate crimes.
This Court previously sustained
Defendant Trader Joe’s Company’s demurrer to the eighth (violation of Labor
Code section 230 et seq.), eleventh (fraudulent inducement), fifteenth
(violation of Civil Code sections 51 et seq. and 52.1), and seventeenth (violation
of the Consumer Legal Remedies Act) causes of action. The Court granted leave to amend for
Plaintiff to file an amended complaint on or before December 9, 2022. No amended complaint was filed.
Leo Aguila and Tim Woodland (Individual
Defendants) demurred, and the Court sustained their demurrer to the eleventh
(fraudulent inducement), twelfth (intentional infliction of emotional
distress), fourteenth (assault), fifteenth (violation of Civil Code sections
52.1) causes of action.
On
February 7, 2023, Plaintiff amended her complaint. All three defendants
demurred. The Court separately rules on
that demurrer.
On
April 3, 2023, Defendants moved for sanctions under Code of Civil Procedure
section 128.5. Defendants argue that Plaintiff did not meet and confer in good
faith regarding their demurrer to Plaintiff’s first amended complaint and the previous
complaint. (Memorandum of Points and Authorities, pg. 4, lines 13-22.) Defendants
argue that Plaintiff ‘s arguments are meritless. (Notice of Motion and Motion,
pg. 2, lines 5-6.) They also could have avoided filing another demurrer. (Memorandum
of Points and Authorities, pg. 4, lines 23-24.) They seek $5,190.00 in
sanctions against Plaintiff’s counsel. (Decl. Motion Wallin, ¶ 7.)
Plaintiff
opposes the motion for sanctions. She argues that the purported failure to meet
and confer is not a sanctionable “action or tactic” under Code of Civil
Procedure section 128.5. (Opposition pg. 8, lines 13-15.) She also argues that she
met and conferred when she directed defense counsel to her previous filed
opposition papers. (Opposition, pg. 8, lines 19-20.) Plaintiff argues that it
was Defendants who did not meet and confer in good faith because they sent one
email that was a conclusory threat to request sanctions. (Opposition, pg. 8, lines
24-25.) Plaintiff also argues that the demurrer could not have been avoided
because of Defendants’ lack of good faith to meet and confer, misstatements of
law, and a misreading of the amended complaint. (Opposition, pg. 9, lines
17-19.) Finally, Plaintiff’s refusal to dismiss the challenged causes of action
was not frivolous. (Opposition, pg. 9, lines 22-23.) Plaintiff counters that
Defendants should be subject to sanctions under Code of Civil Procedure section
128.5(g) in the amount of $3,157.26.
Defendants
reiterate their arguments in reply.
Legal Standard
Safe harbor provisions
If
the alleged sanctionable conduct is the filing and service of a complaint, Code
of Civil Procedure section 128.5 has a safe harbor provision, which requires
that the moving party serve the motion on the sanctionable party at least
21-days before it is filed with the Court. (Code Civ. Proc., §§ 128.5, subd.
(f)(1)(B).) This affords the party an opportunity to cure the improper
pleading. (Ibid.)
The
21-day “safe harbor” provision is strictly enforced. “Substantial compliance”
is insufficient. (See Cromwell v. Cummings (1998) 65 Cal.App.4th
Supp.10, 15 [“Correspondence to opposing counsel which threatens sanctions of
an unknown nature at an unspecified time against unidentified persons, and
which lacks citation to controlling authority, does not fulfill these statutory
purposes.”].)
The
motion provided to the opposing party must be the same as the motion that is
filed with the court. (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.)
The notice served must contain a hearing date and must comply with all the
requirements of Code of Civil Procedure section 1010, including the time and
place of the motion hearing. (Code Civ. Proc., §§ 128.5, subd. (f)(1)(B); Galleria
Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 [document served
stating sanctions motion would be filed “on or after” specified date did not
provide notice of hearing date and did not satisfy “safe harbor”
requirement.].)
Sanctions
under Code of Civil Procedure section 128.5
A court may order a party 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.” (Code Civ. Proc., § 128.5, subd. (a).)
Frivolous means “totally and completely without merit or for the sole purpose
of harassing an opposing party." (Code Civ. Proc., § 128.5, subd. (b)(2).)
Bad
faith is “ ‘generally implying or involving actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or refusal to fulfill some
duty or contractual obligation, not prompted by an honest mistake..., but by
some interested or sinister motive[,]...not simply bad judgment or negligence,
but rather...the conscious doing of a wrong because of dishonest purpose or
moral obliquity;...It contemplates a state of mind affirmatively operating with
furtive design or ill will.’ ” (Pugh v. See’s Candies (1988) 203
Cal.App.3d 743, 764.)
The standard under section 128.5 is subjective
bad faith. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39
Cal.App.5th 124, 135 [“finding that the legislative history and amendments to
section 128.5 requires a “subjective bad faith standard.”].) Sanctions should
be awarded only in the clearest of cases, to penalize the most egregious
misconduct. (Optical Surplus, Inc. v. Superior Court (1991) 228
Cal.App.3d 776, 784-785.)
Discussion
Defendants’
counsel, Allison S. Wallin, declared that she served a copy of the motion and
its accompanying papers on March 9, 2023. (Decl. Motion Wallin, ¶
10.) Defense counsel filed the Notice of
Motion and Motion, Memorandum of Points and Authorities in Support, Declaration
of Allison S. Wallin, and Proposed Order Granting Motion for Sanctions on April
3, 2023. She served the papers on March 9, 2023. Thus, Defendants meet the
21-day safe harbor requirement.
Defendants
have the burden to show that Plaintiff’s pleadings were in bad faith,
frivolous, or otherwise examples of egregious conduct. The fact that the causes of action lack merit
is not enough to justify an award of Code of Civil Procedure section 128.5
sanctions. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) To be
sure, by referring Defendants to her previous opposition papers, Plaintiff concedes
that she relies on the same arguments this Court previously rejected. Such a peremptory response is not in keeping with
a meaningful effort to meet and confer. But while Plaintiff’s theories lack
merit, the Court cannot say that they are necessarily advanced in bad
faith.
Plaintiff’s
counter-request for sanctions is denied.
Her request fails to comply with the statute because a separate request
and motion were not made. (Code Civ. Proc., § 128.5, subd. (f)(1)(A).)
Conclusion
Defendants’
Motion for Sanctions filed on April 3, 2023, is denied.