Judge: Deborah C. Servino, Case: 30-2020-01146777, Date: 2022-12-09 Tentative Ruling
Plaintiff Andrew Nelson’s motion for monetary sanctions pursuant to Code of Civil Procedure section 128.7 against Defendant Thomas Bommarito and his counsel of record, is denied.
Notice/Safe Harbor
Notice of a motion for sanctions pursuant to Code of Civil Procedure section 128.7 “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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1).)
Strict compliance, not substantial compliance, with the safe harbor notice provisions is required. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.) This serves the statute’s remedial purpose and underscores the seriousness of a motion for sanctions. (Galleria Plus, Inc. vs. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.) This applies to both the 21-day safe harbor period and the contents of the notice to be served. “Section 128.7 mandates that notices of motion ‘shall be served as provided in Section 1010.’ . . . Section 128.7’s incorporation of section 1010 is compulsory not permissive.” (Ibid. [emphasis in original].) A party is “prohibited by section 128.7 from filing the motion with the court until 21 days after service.” (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 593.) The papers to be served on the opposing party must be the same papers that are ultimately filed with the court no less than 21 days later. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007; Cromwell v. Cummings, supra, 65 Cal.App.4th Supp. at p. 15.)
Here, it appears that Plaintiff did not comply with the safe harbor provision. (See Proof of Service [ROA 354].) Plaintiff filed and served the instant motion on the same day. (Compare ROA 354 & 358.)
Merits
Even if the court considers the merits of the motion, the motion is denied. By presenting a pleading to the court, an attorney or unrepresented party is certifying that, to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances that all of the following conditions are met: (1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code Civ. Proc., § 128.7, subd. (b).)
If a pleading does not meet those conditions, a party may bring a motion for sanctions. (Code Civ. Proc., § 128.7, subd. (c)(1).) The purpose of permitting such a motion is remedial, not punitive. The goal is not to punish the offender but to promote compliance and deter frivolous filings. (Malovec v. Hamrell (1990) 70 Cal.App.4th 434, 440.)
If, after notice and a reasonable opportunity to respond, the court determines that Code of Civil Procedure section 128.7, subdivision (b) has been violated, the court may, subject to the certain conditions, impose an appropriate sanction upon the attorneys, law firm, or parties that have violated Code of Civil Procedure section 128.7, subdivision (b) or are responsible for the violation. (Code Civ. Proc., § 128.7, subd. (c).) The determination of violation is made under an objective standard. (Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71, 82.) But whether, upon such a finding, the court should grant sanction is a matter for the court’s discretion. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 420-421.)
A claim is “objectively unreasonable” if any reasonable attorney would agree that it is totally and completely without merit. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) It is unnecessary for the moving party to show that the party presenting the deficient pleading acted with an improper motive or subjective bad faith. But the fact that a party does not actually believe in the merits of his or her claim is relevant to the issue whether sanctions are warranted in a particular case. (Id. at p. 449.)
A sanction imposed for a violation of Code of Civil Procedure section 128.7, subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. (Code Civ. Proc., § 128.7, subd. (d).) In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence. (Code Civ. Proc., § 128.7, subd. (c); Musaelian v. Adams (2009) 45 Cal.4th 512, 519.)
Where the violation is meritless contentions of law (Code Civ. Proc., § 128.7, subd. (b)(2)) - as opposed to presenting the pleading to harass or making allegations of fact without evidentiary support or denials of fact not warranted by the evidence (Code Civ. Proc., § 128.7, subds. (b)(1), (b)(3), (b)(4)) - then monetary sanctions are not to be awarded against the client as opposed to the attorney filed the offending pleading. (Cromwell v. Cummings, supra, 65 Cal.App.4th Supp. at p. 13, fn. 4; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 407.)
Here, Plaintiff’s sanctions motion is based on his contention that Bommarito’s motion for reconsideration did not meet the requirements of Code of Civil Procedure section 1008 in that he did not bring the motion based upon new evidence not previously available, and was brought for the purpose of harassment and delay. (Mot., at pp. 5-6.) However, a different standard applies to a motion for reconsideration of a demurrer ruling because a demurrer is a pleading motion, rather than an evidentiary one. A motion for reconsideration of a demurrer need not be based upon newly discovered facts. (10/7/2022 Minute Order.) Given the history of the rulings on Bommarito’s demurrers, especially as to the specific allegations regarding how the caregivers came into Plaintiff’s hospital room, it was reasonable for Bommarito and his counsel to believe that the court would use its inherent power to reconsider its prior demurrer ruling. There is no evidence that Bommarito brought the motion for the purpose of harassment and/or delay. Accordingly, the motion is denied.
Bommarito shall give notice of the ruling.