Judge: Holly J. Fujie, Case: 21STCV06362, Date: 2023-01-23 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV06362    Hearing Date: January 23, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendant The Board of Trustees of the California State University (“Defendant”)

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action arises out of an employment relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent, investigate and remedy harassment and discrimination; (5) whistleblower retaliation; and (6) reprisal/retaliation. 

On October 18, 2022, Defendant filed a motion to disqualify Beth Gunn (“Gunn”) as Plaintiff’s counsel (the “DQ Motion”). The DQ Motion argued that Gunn will likely be a necessary witness and her continued representation of Plaintiff would therefore violate the advocate-witness rule. On November 29, 2022, the Court denied the DQ Motion, finding that while Defendant may be entitled to obtain Gunn’s testimony, it had not demonstrated that such testimony would require her disqualification.

On November 17, 2022, Plaintiff filed a motion to seal (the “Motion to Seal”) exhibits filed in connection with the DQ Motion.  On November 28, 2022, Plaintiff filed a motion for sanctions (the “Sanctions Motion”).  The Sanctions Motion argues that the Court should impose sanctions pursuant to CCP sections 128.5 and 128.7 against Defendant because its pursuit of the DQ Motion was legally and factually frivolous, as well as intended to disrupt the discovery process, gain a tactical advantage, and damage Plaintiff’s reputation. 

EVIDENTIARY OBJECTIONS

Defendant’s objections to the Declaration of Beth Gunn (“Gunn Decl.”) filed in support of the Sanctions Motion numbers 1, 4-7, 10, 15, 25, and 27 are SUSTAINED.  Objections numbers 2-3, 8-9, 11-14, 16-24, 26, and 28-30 are OVERRULED.  Defendant’s objections to the evidence submitted with Plaintiff’s reply to the Sanctions Motion (the “Sanctions Reply”) are SUSTAINED in their entirety.  (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

MOTION FOR SANCTIONS

CCP section 128.5 provides for sanctions against a party who is guilty of “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (CCP § 128.5, subd. (a).)  “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.  (Id., subd. (b).)  A reasonable interpretation is that CCP section 128.5 also applies to entire actions not based on good faith that are frivolous or cause unnecessary delay in the resolution of a dispute.  (Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 930.)  CCP section 128.5 authorizes trial courts to order payment of reasonable expenses, including attorney fees, incurred as a result of a litigation opponent’s tactics or actions not based on good faith which are frivolous, or which cause unnecessary delay.  (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809.) 

Under CCP section 128.7,  by signing and filing a pleading, an attorney is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) it 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; (2) the claims, defenses, and other legal contentions therein 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.  (CCP § 128.7, subd. (b).)  A claim is factually frivolous if it is “not well grounded in fact” and it 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.”  (Peake v. Underwood, 227 Cal.App.4th 428, 440.)  In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable.  (Id.)  A claim is objectively unreasonable if any reasonable attorney would agree that is “totally and completely without merit.”  (Id. at 448 (citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650).) 

Preliminarily, the Court notes that the safe harbor requirement has been satisfied.  (See CCP §§ 128.5, subd. (f)(1)(B), 128.7, subd. (c)(1).) 

Plaintiff argues that Defendant used irrelevant and improperly discovered documents to support its DQ Motion, and that Defendant filed the DQ Motion primarily for tactical gain—to interrupt ongoing depositions and to deprive Plaintiff of his lead counsel. 

Although the Court denied the DQ Motion, the Court finds that sanctions are not presently warranted.  In ruling on the DQ Motion, the Court noted that while there may have been tactical reasons for its filing, Defendant’s arguments had substance.  The Sanctions Motion does not demonstrate that any reasonable attorney would agree that the arguments raised in the DQ Motion were totally and completely without merit.  (See Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)  The Court therefore DENIES the Sanctions Motion.  The Court additionally denies Defendant’s request for sanctions for its efforts opposing the Sanctions Motion. 

MOTION TO SEAL

            Defendant does not substantively oppose the Motion to Seal.  The Court therefore GRANTS the Motion to Seal.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) 

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the

hearing, the motion will be placed off calendar.

       Dated this 23rd day of January 2023