Judge Holly J. Fujie, Case 21STCV13788 2022-08-09 Tentative Ruling

This action arises out of an employment relationship. On April 12, 2021, Plaintiff filed a complaint (the “Complaint”) alleging seven causes of action for violations of the Fair Employment and Housing Act (“FEHA”). Only the first cause of action for hostile work environment was alleged against Moving Defendant. On April 13, 2022, all of the named Defendants in this action filed a motion for summary judgment (the “MSJ”). The Court, in its tentative ruling on the MSJ, found that Moving Defendant had established that the first cause of action was barred by the statute of limitations and at the July 19, 2022 hearing on the MSJ, Plaintiff dismissed Moving Defendant.

On July 18, 2022, Moving Defendant filed a motion for sanctions against Plaintiff’s counsel (the “Motion”) pursuant to California Code of Civil Procedure (“CCP”) section 128.5 on the grounds that Plaintiff’s counsel: (1) signed, filed and submitted a Complaint containing claims known to be time-barred and objectionably unreasonable; (2) prosecuting the time-barred claim; and (3) opposing the MSJ to the first cause of action.

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.)

An objective standard is used when determining if section 128.5 sanctions are appropriate; that is, a motion is totally and completely without merit only where¿any reasonable attorney¿would agree that the action is totally and completely without merit. (Finnie v. Town of Tiburon¿(1988) 199 Cal.App.3d 1, 12.)

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

(B) 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 [CCP] 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.

The safe harbor provision applies to frivolous pleadings but does not apply to other types of alleged sanctionable conduct. (See In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 147; Nutrition Distribution, LLC v. Southern SARMS, Inc. (2018) 20 Cal.App.5th 117, 127-30.)

The Motion argues that Plaintiff was on notice that the claim against Moving Defendant was time-barred when Moving Defendant filed an answer to the Complaint. During the course of the litigation, Plaintiff conducted 22 depositions of witnesses including Moving Defendant and obtained information regarding her claims against Moving Defendant during each deposition. (Declaration of David Szwarcsztejn (“Szwarcsztejn Decl.”) ¶ 3.) In addition, Plaintiff propounded written discovery requests on Moving Defendant including: 19 requests for production attached to his notice of deposition; 45 requests for production in addition to those attached to the deposition notice; 35 special interrogatories; 49 form interrogatories; and 35 requests for admission. (Szwarcsztejn ¶ 4.) Moving Defendant argues that these discovery efforts were extensive and that a reasonable attorney would have been aware that the claim against Moving Defendant was time-barred due to Plaintiff’s failure to exhaust her administrative remedies before filing the Complaint with respect to his alleged conduct.

Plaintiff’s opposition (the “Opposition”) does not address the Motion’s arguments regarding the merits of her claim against Moving Defendant. The Opposition’s sole argument is that Moving Defendant failed to comply with the safe harbor provision included in CCP section 128.5. Moving Defendant’s reply (the “Reply”) does not dispute that Moving Defendant failed to comply with the safe harbor provision but argues that compliance was not necessary because the Motion seeks sanctions for conduct that falls outside of the safe harbor provision.

The Notice of Motion and Motion describe conduct that is encompassed within the safe harbor provision—the filing of the Complaint and opposition to the MSJ—as well as conduct that does not require compliance with the safe harbor provision—prosecuting the time-barred claim against Moving Defendant despite its lack of merit. Moving Defendant was therefore required to comply with the safe harbor provision in order to seek sanctions in connection to the filing of the Complaint and opposition to the MSJ and the Court finds that Moving Defendant is not entitled to sanctions for this conduct due to the failure to comply with the provision. Moving Defendant was not, however, required to comply with the provision with respect to conduct related to prosecuting the FEHA claim against Moving Defendant, such as discovery. Due to her failure to respond to the Motion’s substantive arguments regarding the lack of merit of her claim against Moving Defendant, the Court finds that Plaintiff has conceded these arguments to Moving Defendant. (See Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021 (issues not addressed in opposition briefs are conceded to the moving party).) Accordingly, Moving Defendant has adequately demonstrated that he is entitled to sanctions in connection to Plaintiff’s prosecution of her claim.

Moving Defendant seeks sanctions in the amount of $151,024.60, which represents $149,067 in attorney’s fees and $1,957.60 in costs that were incurred to defend this action. (Szwarcsztejn Decl. ¶ 8.) These amounts, however, are not broken down in a way that would allow the Court to determine what fees and costs were incurred for what activities; nor has Moving Defendant provided any evidence of his counsel’s hourly rates or other information that would allow the Court to evaluate whether this amount is reasonable.

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

Hon. Holly J. Fujie

Judge of the Superior Court