Judge: Colin Leis, Case: 20STCV09973, Date: 2023-02-01 Tentative Ruling

Case Number: 20STCV09973    Hearing Date: February 1, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendants Jenin Home Fashion, Inc., Jenin Home Furnishing, Inc., and Eyad Jebarah

RESPONDING PARTY:       Plaintiff Elias Barrera

Motion To Strike Plaintiff’s Disability Related Claims Under Code of Civil Procedure § 128.7 and for Sanctions in the Amount of $13,734.60

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff Elias Barrera filed this action on March 11, 2020 against Defendants Jenin Home Fashion, Inc., Jenin Home Furnishing, Inc. (collectively, “Jenin Defendants”) and Does 1 through 100.  The complaint asserts fifteen causes of action for violations of the Fair Employment and Housing Act (FEHA), California Family Rights Act, Labor Code, and the Unfair Competition Law, as well as intentional infliction of emotional distress and retaliation and wrongful termination in violation of public policy.

            On November 19, 2020, the court entered default judgment in the amount of $601,657.92 against Jenin Defendants, which the court set aside on March 4, 2021, due to improper service.

On July 9, 2021, Plaintiff filed doe amendments to the complaint naming Khalid Shalabi and Eyad Jebarah as Defendants. 

Jenin Defendants and Defendant Eyad Jebarah (“Defendants”) move to strike the following causes of action relating to Plaintiff’s disability discrimination claims: (1) First Cause of Action for Actual/Perceived Disability Harassment, Violation of Cal. Gov. Code § 12940 et seq., (2) Second Cause of Action for Actual/Perceived Disability Discrimination, Violation of Cal. Gov. Code § 12940 et seq., (3) Third Cause of Action for Actual/Perceived Disability Retaliation, Violation of Cal. Gov. Code § 12940 et seq., (4) Fourth Cause of Action for Violation of the California Family Rights Act, Cal. Gov. Code § 12945.2 et seq., (5) Fifth Cause of Action for Failure to Engage in the Mandatory Good-Faith Interactive Process, Cal. Gov. Code § 12940 et seq., (6) Sixth Cause of Action for Failure to Accommodate, Cal. Gov. Code §§ 12940 et seq., (7) Twelfth Cause of Action for Intentional Infliction of Emotional Distress, and (8) Thirteenth Cause of Action for Retaliation and Wrongful Termination.  In the same motion, Defendants request sanctions in the amount of $13,734.60.

Defendants seek an order to strike and to impose sanctions under Code of Civil Procedure section 128.7 on the grounds that Plaintiff has knowingly filed and prosecuted his disability related claims against Defendants without any basis.

LEGAL STANDARD

¿            Code of Civil Procedure section 128.7 “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.)  “Subdivision (b) requires that parties and their attorneys certify that pleadings or other written matters presented to the courts have merit, ‘to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.’”  (Id. at p. 516.)  One of the conditions to be met is that the pleading or motion is “not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”  (Code Civ. Proc., § 128.7, subd. (b)(1).)  If the court determines that the challenged filing lacks merit or has an improper purpose, the court may impose a sanction sufficient to deter the conduct.  (Code Civ. Proc., § 128.7, subds. (c) and (d).)  The court may award attorney’s fees and reasonable expenses to the party prevailing on the motion, when warranted.  (Code Civ. Proc., § 128.7, subd. (c)(1).)   

In seeking sanctions under  Code of Civil Procedure section 128.7, the moving party must serve the motion describing the sanctionable conduct on the offending party at least 21 days before filing the motion with the court. (Code Civ. Proc. § 128.7, subd. (c)(1).)  The offending party has 21 days to withdraw or correct the challenged pleading without penalty.  (Id.)  The safe harbor period is mandatory and, if sanctions are to be awarded, the full time period must be provided absent a court order shortening that time.  (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 595.)  Neither the court nor parties are permitted to disregard the 21-day prefiling requirement. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700 (Martorana).) 

DISCUSSION

A.    Defendants Did Not Comply with Section 128.7

Defendants did not serve Plaintiff with a copy of their motion before filing it, but instead sent a letter on August 31, 2022, notifying Plaintiff of their intention to seek sanctions under section 128.7.  (Hoodack Decl., ¶¶ 10, 22, Ex. 1.)  Defendants contend that this letter satisfies the 21-day safe harbor provision under section 128.7.  (Hoodack Decl., ¶ 22; see also Reply at 3:19-26.) Their contention is mistaken, however, because “[a] party does not comply with the notice provisions of section 128.7 simply by sending a letter of its intent to seek sanctions to the offending party. [Citation.]”  (Martorana, supra, 175 Cal.App.4th at p. 700.)  Because Defendants did not comply with Code of Civil Procedure section 128.7, the court denies their motion. Accordingly, the court need not address Defendants’ substantive arguments in support of their motion to strike.

B.     Plaintiff’s Request for Sanctions Against Defendants

Plaintiff seeks attorney’s fees against Defendants for costs incurred in opposing Defendants’ procedurally defective motion. (§ 128.7, subdivision (c)(1).) The court finds an attorney’s fee award as sanctions is warranted for two reasons.  First, Defendants’ motion violated the safe harbor provision under section 128.7. Second, Plaintiff is the prevailing party and incurred costs in opposing Moving Defendants’ motion.

Plaintiff seeks attorney fees of $16,764, based on 18 hours reading the motion, conducting research, and drafting an opposition; an anticipated 2 hours reviewing the reply; and an anticipated 2 hours preparing for and appearing at hearing.  (Silverman Decl., ¶¶ 18-20.) The amount Plaintiff seeks is in the same ballpark as the $13,734.60 in attorney’s fees that Defendants requested in their motion.  The court finds the hours Plaintiff claims are reasonable.  Plaintiff seeks an hourly rate of $762, which the court also finds reasonable.  (Silverman Decl., ¶ 21-27.)

CONCLUSION

The court denies Defendants’ motion for Code of Civil Procedure section 128.7 sanctions.

The court awards Plaintiff reasonable attorney fees and costs in the amount of $16,764 as the prevailing party. Defendants are ordered to pay Plaintiff this sum within 30 days of this order.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 1, 2023

_____________________________

Colin Leis

Judge of the Superior Court