Judge: Elaine Lu, Case: 22STCV17709, Date: 2023-10-24 Tentative Ruling

Case Number: 22STCV17709    Hearing Date: January 11, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On May 31, 2022, Plaintiff Mary Lyndel Bates (“Plaintiff”) filed the instant employment action against defendants Optumcare Management, LLC (“Optum”) and Healthcare Support Staffing, Inc., a Florida corporation (“HSS”) (jointly “Defendants”). The complaint asserts seven causes of action for (1) Failure to Reasonably Accommodate Disability, (2) Failure to Engage in Good Faith Interactive Process, (3) Disability Discrimination under the FEHA, (4) Failure to Prevent Discrimination/Retaliation under the FEHA, (5) Religious Discrimination under the FEHA, (6) Retaliation, and (7) Wrongful Termination. 

On June 28, 2023, Defendants filed the instant motion for sanctions.  On December 27, 2023, Plaintiff filed an opposition.  On January 4, 2024, Defendants filed a reply.

Evidentiary Objections

In opposition, Plaintiff has submitted evidentiary objections to portions of the declaration of Monica H. Bullock.  However, these objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible.  (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)  Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process.  (People v. Coddington (2000) 23 Cal.4th 529, 644.)  Accordingly, Plaintiff’s evidentiary objections are overruled.

Discussion

            Defendants seek monetary sanctions of $10,000.00 against Plaintiff and Plaintiff’s Counsel for (1) failing to comply with the Court’s order for mediation, (2) failing to respond to over seventeen emails regarding mediation, (3) failing to allow Defendants to depose Plaintiff for over five and a half months, (4) filing frivolous motions to quash with no effort to meet and confer, and (5) “sending countless vexatious, belittling, and harassing emails with no bearing on the instant case[.]”  (Notice at p.2:14-15.)

            “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.”  (CCP §128.5(a).)  “[Code of Civil Procedure] section 128.5 empowers a trial court to manage the proceedings conducted before it and to grant sanctions in the appropriate situations where proceedings are instituted in bad faith, are frivolous or brought for purposes of delay.”  (Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 648.) 

Failure to Comply with the 21 Day Safe Harbor Provision

            “[A] party seeking sanctions under section[] 128.5 … must follow a two-step procedure.”  (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550.)  “If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”  (CCP § 128.5(b).)

            Accordingly, “‘the moving party must serve on the offending party a motion for sanctions. Service of the motion on the offending party begins a [21]-day safe harbor period during which the sanctions motion may not be filed with the court. During the safe harbor period, the offending party may withdraw the improper pleading and thereby avoid sanctions. If the pleading is withdrawn, the motion for sanctions may not be filed with the court. If the pleading is not withdrawn during the safe harbor period, the motion for sanctions may then be filed.’ [Citation.]”  (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.)  “The ‘21 days is not a notice period.... It defines when the target of a sanctions motion can act without penalty and withdraw’ an objectionable document.”  (Transcon Financial, Inc., supra, 81 Cal.App.5th at pp.550–551.)  “[T]he ‘sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.’ [Citation.]”  (Id. at p.551.)  “Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’ [Citation.]”  (Ibid.) 

            Here, Defendants contend that multiple motions to quash by Plaintiff were frivolous.  Accordingly, Defendants were required to comply with the 21-day safe harbor provision.  Defendants have failed to present any evidence that they properly complied with this requirement.  To the contrary, the proof of service indicates that service was made the same day as it was filed.  Accordingly, an award of sanctions is precluded.  (Transcon Financial, Inc., supra, 81 Cal.App.5th at p.551.)

The Instant Motion Fails on the Merits

            As a preliminary matter, Code of Civil Procedure section 128.5 does “not apply to disclosures and discovery requests, responses, objections, and motions.”  (CCP § 128.5(e).)  Therefore, only the alleged (1) failure to comply with the Court’s order for mediation, (2) failure to respond to over seventeen emails regarding mediation, and (5) sending of uncivil emails are even possibly sanctionable under Code of Civil Procedure section 128.5.

            “The pertinent language of Code of Civil Procedure section 128.5, subdivision (a) authorizes the award of attorney's fees ‘incurred by another party as a result of bad-faith actions....’ (Emphasis supplied.) Construing this language broadly in light of the legislative purpose of the statute, we conclude that it requires no more than a causal relationship between the offending legal action and the expenses incurred by the opposing party.”  (On v. Cow Hollow Properties (1990) 222 Cal.App.3d 1568, 1577.)

            Here, Defendants have failed to establish any causal relationship between their failure to comply with the Court’s order for mediation, failure to respond to more than seventeen emails regarding mediation, and sending of uncivil emails.  As to mediation, Defendants have failed to set forth any basis explaining how Defendants incurred significant legal fees – let alone their  claim of at least $10,000.00 in legal fees (Bullock Decl. ¶ 35) – as a direct result of not engaging in mediation.  To the contrary, a lack of litigation activity might logically lead to a decrease in legal fees.  The only indication of any cost is Defense Counsel claim that Plaintiff’s Counsel failed to respond to multiple emails regarding mediation.  (Bullock Decl. ¶ 6, Exh. 2.)  However, this claim is somewhat misleading because Plaintiff’s Counsel did respond to many of these emails.  (Bullock Decl., Exh. 2, [January 11, 2023 emails, January 27, 2023 emails, March 28, 2023 Emails, May 10, 2023 Emails]; Bullock Decl., Exh. 3.)  Moreover, Defendants fail to identify how the failure to engage in mediation was done in bad faith, is frivolous, or was solely intended to cause delay.   

            Similarly, as to the uncivil emails, the Court agrees that some of Plaintiff’s Counsel’s emails do appear to lack civility.  However, the emails do appear to be related to and part of ongoing discussions regarding mediation, discovery, and other matters in the case.  (Bullocks Decl., ¶¶ 7-33, Exhs. 3-25.)  Thus, it is unclear how these emails caused any additional cost to Defendants.  Further, there is no explanation as to why Plaintiff should be sanctioned, as requested in the motion, for conduct by Plaintiff’s Counsel in emails between counsel. 

            In sum, under Code of Civil Procedure section 128.5 there is no basis for sanctions as requested.  Nonetheless, this court places a very high value on civility, courtesy, and professionalism in the practice of law and the judicial process. The court expects all attorneys and parties to treat each other, witnesses, jurors, court personnel, the court, and others with the highest level of civility, courtesy, and professionalism, both inside and outside the courtroom. Parties and counsel should review, and at all times conform their conduct to comply with, the provisions of the California Code of Civil Procedure, the California Rules of Court, and the Los Angeles Superior Court Local Rules, Chapter 3, Civil Division Rules (“Local Rules”) that apply to unlimited civil actions in independent calendar courts, including Local Rule 3.26 (Litigation Conduct) and Appendix 3.A. (Guidelines for Civility in Litigation). All counsel and parties appearing in Department 26 shall conduct themselves at all times with dignity, courtesy and integrity. 

CONCLUSION AND ORDER

            Based on the foregoing, Defendants Optumcare Management, LLC’s and Healthcare Support Staffing, Inc.’s motion for sanctions is DENIED.

            Moving Parties to give notice and file proof of service of such.

DATED:  January ___, 2024                                                  _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court