Judge: Carolyn M. Caietti, Case: 37-2022-00052021-CU-BC-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00052021-CU-BC-CTL LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Jack Fischer, Nicole Baldwin, Stephanie Marie Atkinson, Eugene Raymond Long, Jr., Mark Raymond Raftery, Todd Griffin Glanz, Thomas George Routson's Motion for Sanctions is GRANTED IN PART AND DENIED IN PART.

Preliminary Matters In this motion, Defendants ask the Court to sanction Plaintiff and her attorney and: (i) award Defendants their attorney fees and costs; and (ii) dismiss the moving defendants from Plaintiff's First Amended Complaint.

Plaintiff's objections Nos. 1-7 are sustained as improper legal conclusions. Objection No. 8 is overruled.

There is no dispute Defendants complied with the safe-harbor provisions under C.C.P. sections 128.5 and 128.7.

Although not required, the Court reviewed and considered Plaintiff's unpermitted sur-reply in light of the relief sought in this motion.

Sanctions Under C.C.P. Section 128.5 The sanctions requested under C.C.P. section 128.5 are denied because there is no evidence of bad faith. (C.C.P., § 128.5(a); see, In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 134-35 (explaining conduct must be both frivolous and in subjective bad faith to support sanctions under section 128.5 and 'bad faith' as used in section 128.5 means an action or tactic undertaken for an improper purpose or motive, which is a subjective inquiry).) Sanctions Under C.C.P. Section 128.7 Every pleading must be signed by an attorney or, if not represented, by the party. (C.C.P., § 128.7(a).) By presenting same to the Court, an attorney or unrepresented party certifies that to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that certain conditions are met. (C.C.P., § 128.7(b).) These conditions include that the pleading: (i) is not being presented primarily for an improper purpose; (ii) the claims, defenses and legal contentions are warranted by existing law (or by a nonfrivolous argument for the extension, modification or reversal of existing law); (iii) the allegations and other factual contentions have evidentiary support; and (iv) denials Calendar No.: Event ID:  TENTATIVE RULINGS

3098447  56 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL of factual contentions are warranted on the evidence.

As explained in Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120–1121 (Cal. Rptr. citations omitted): 'Section 128.7 applies only in limited circumstances. It 'authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.' (Musaelian v. Adams (2009) 45 Cal.4th 512, 514.) Under that authority, trial courts may issue sanctions, including monetary and terminating sanctions, against a party for filing a complaint that is legally or factually frivolous. (§ 128.7, subds. (b)-(d); Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 263-264.) 'A claim is factually frivolous if it is 'not well grounded in fact' and 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.' [Citation.] 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.' [Citations.]' (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) 'A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.' (Peake v. Underwood (2014) 227 Cal.App.4th 428, 441 (Peake).) Like its federal counterpart, however, rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), 8 Code of Civil Procedure section 128.7 should be utilized only in 'the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.' (Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344.) 'Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, [section 128.7] sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous' (Peake, supra, 227 Cal.App.4th at p. 448), and instead 'should be 'made with restraint.' '[9] (Peake, at p. 448.) Indeed, even if a plaintiff could not successfully defend against either demurrer or summary judgment, that alone is insufficient to support the sanction of dismissal. (Ibid.)' To avoid sanctions under section 128.7, 'the issue is not merely whether the party would prevail on the underlying factual or legal argument,' but rather whether any reasonable attorney would agree that the claim is totally and completely without merit. (Peake, supra, 227 Cal.App.4th at p. 448.) 'Hence, the evidentiary burden to escape sanctions under section 128.7 is light.' (Kumar, supra, at p. 1126.) Plaintiffs 'need not amass even enough evidence to create a triable issue of fact as would be required' on a motion for summary judgment, 'or allege a valid cause of action, as required to overcome a demurrer. (Peake, supra; see also, Kumar, supra at p. 1126.) Here, Plaintiff's opposition provided sufficient evidentiary support to avoid sanctions with regard to Defendants Jack Fischer and Eugene Raymond Long, Jr. Attorney Fischer's involvement is demonstrated as he was a named attorney of record on Plaintiff's complaint, civil case cover sheet and proof of service of summons. (Declaration of Dieter Karl Rapp, at Ex. 2-4.) Attorney Long acknowledges preparing letters and drafting Plaintiff's complaint. Plaintiff maintains she never authorized the filing of the complaint. In opposition, Plaintiff maintains Attorney Long negligently prepared the DFEH Complaint by failing to include an allegation of sexual harassment. (Rapp Decl., at ¶ 15 & Ex. 11.) Thus, Plaintiff met her very low burden as to Attorneys Fisher and Long and should be able to develop and assert the facts and legal arguments regarding these defendants. On this basis, the motion is DENIED.

Comparatively however, the FAC against Defendants Nicole Baldwin, Stephanie Marie Atkinson, Mark Raymond Raftery, Todd Griffin Glanz and Thomas George Routson is factually and legally frivolous. In this motion, these defendants showed Plaintiff's conduct in asserting her claims against them was objectively unreasonable. They provided sufficient evidence that their involvement in Plaintiff's underlying case was very limited. None of the defendants worked over 20 hours on the case and their involvement concerned 'standard tasks.' Calendar No.: Event ID:  TENTATIVE RULINGS

3098447  56 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL Critically for the Court, Plaintiff's opposition completely ignores and fails to provide any evidence regarding the factual and legal basis for naming these defendants in her lawsuit. The opposition is largely conclusory. It contains legal statements but lacks legal analysis. Plaintiff does not articulate how these attorneys breached any duty of care owed to her or how they committed any of the acts described in paragraph 121 of the First Amended Complaint. The Declaration of Attorney Rapp is similarly silent as to: (i) how the allegations against these defendants have evidentiary support; (ii) what kind of inquiry he made as to their liability; or (iii) how he learned of their alleged involvement and how that involvement gave him reasonable cause to name them as defendants in the FAC. (See, Weil & Brown, et al, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group, June 2023 Update), at § 9:1163 (identifying factors affecting whether an inquiry was reasonable, including: how much time for investigation was available before filing, whether the attorney relied on a client for information as to the facts underlying the pleading, whether the attorney depended on forwarding counsel or another member of the bar, etc.).) Even the 61-page sur-reply is silent as to these defendants.

Thus, as to Defendants Nicole Baldwin, Stephanie Marie Atkinson, Mark Raymond Raftery, Todd Griffin Glanz and Thomas George Routson, Plaintiff and Attorney Rapp presented to the Court a First Amended Complaint with claims not warranted by existing law and factual allegations without evidentiary support. (C.C.P., § 128.7(b)(2)-(3).) C.C.P. section 128.7(c)(1) allows courts to 'impose an appropriate sanction upon the attorneys, law firm, or parties' that violated subdivision (b) and award to the party prevailing on the motion the reasonable expenses and attorney fees incurred in presenting the motion.

Here, Defendants ask for $10,025 in attorney fees, which includes fees incurred to conduct discovery, and Defendants' dismissal from the action. (ROA 58 – Declaration of Yasmeen Halim, at ¶ 7.) Plaintiff does not challenge the amount of fees sought or the dismissal as a sanction. The Court considered whether Defendants exercised due diligence and find they have. (C.C.P., § 128.7(c).) In light of the mixed result on this motion, the Court will award Defendants Nicole Baldwin, Stephanie Marie Atkinson, Mark Raymond Raftery, Todd Griffin Glanz and Thomas George Routson attorney fees in the amount of $4,000 for presenting this motion. [$10,025 minus fees incurred for discovery = $6,145 in fees incurred presenting the motion only; further reduced as only 5/7 defendants prevailed on the motion]. The Court will also order them dismissed from the case. On this basis, the motion is GRANTED.

Plaintiff's request for sanctions is denied.

For these reasons, the motion is GRANTED IN PART AND DENIED IN PART.

Concluding Orders Plaintiff and Dieter Karl Rapp are sanctioned under C.C.P. section 128.7 for the conduct described above.

Defendants Nicole Baldwin, Stephanie Marie Atkinson, Mark Raymond Raftery, Todd Griffin Glanz and Thomas George Routson are ordered dismissed from the case and that Plaintiff takes nothing from them by way of Plaintiff's First Amended Complaint.

Plaintiff and Dieter Karl Rapp are ordered to pay Defendant Nicole Baldwin, Stephanie Marie Atkinson, Mark Raymond Raftery, Todd Griffin Glanz and Thomas George Routson monetary sanctions in the amount of $4,000.

Pursuant to Business and Professions Code section 6086.7(a)(3), the Court is required to notify the State Bar of this order. Attorney Dieter Karl Rapp is hereby notified the matter will be referred to the State Bar. (Bus. & Prof. Code, § 6086.7(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

3098447  56 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

The Clerk of the Court is ordered to serve written notice of the Court's final ruling on: (i) all appearing parties; and (ii) the State Bar.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion papers.

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