Judge: Donald F. Gaffney, Case: "Duarte v. Camden Development, Inc.", Date: 2022-09-07 Tentative Ruling

TENTATIVE RULING: 

For the reasons set forth below, Defendant Camden Development, Inc.’s Motion for Sanctions is DENIED.

Defendants’ first ground for the motion is based on a trial court ruling in Choi v. Winston (Exhibit G.)  Pursuant to CCP 2025.510 (b), sanctions were imposed because Plaintiff personally failed to appear at his deposition. 

Code Civ. Proc., § 2025.510 (b) provides that “The party noticing the deposition shall bear the cost of the 

transcription, unless the court, on motion and for good cause shown, orders that the cost be borne or shared by another party.” This statute has nothing to do with this case. If Plaintiff personally failed to appear at the deposition, sanctions would be appropriate. (CCP 2025.480 (j.) There is no statute to impose sanctions for the tardy notification that an interpreter would not be necessary.

The second basis for the motion is Code Civ. Proc., § 128.5 (a), which provides:  “A trial court may order a party, the party's attorney, or both, 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.”

Subsection (b) states: “For purposes of this section:

(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section. (2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.”

Plaintiff’s failure to timely notify Defendants that an interpreter was unnecessary does not qualify for sanctions under this statute. This failure was not an action or tactic defined in the statute. It was not frivolous as defined by the statute. As soon as Plaintiff realized the interpreter was unnecessary, he gave notice to opposing counsel. The deposition went forward on a timely basis.

Based on recent amendments to the statute, CCP 128.5 requires that Defendant demonstrate that Plaintiff acted in subjective bad faith, that is, personally intended to use improper tactics. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 C.A.5th 124, 134, 7 Witkin, Cal. Proc. 5th Trial § 230 (2020).) Defendant failed to prove that Plaintiff acted with subjective bad faith. 

Whether to award sanctions under this statue is discretionary. “The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court.” (Wallis v. PHL Assocs., Inc. (2008) 168 Cal. App. 4th 882, 893.)  Even if the statute applies, this court finds that imposition of sanctions would be inappropriate.

Plaintiff to give notice.