Judge: Katherine Chilton, Case: 19STLC03852, Date: 2022-08-17 Tentative Ruling

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Case Number: 19STLC03852    Hearing Date: August 17, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR SANCTIONS

MOVING PARTY:   Defendant Impala Van Lines

RESP. PARTY:         None

MOTION FOR SANCTIONS

(CCP § 128.5)

TENTATIVE RULING:

Defendant Impala Van Lines’ Motion for Sanctions is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of August 15, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 15, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 18, 2019, Plaintiffs Allison Grigonis and Brian Forde (collectively “Plaintiffs”) filed an action against Defendant Impala Van Lines (“Defendant”) for breach of contract and general negligence.  Defendant filed an Answer on May 22, 2019, which was initially stricken, but was then reinstated on October 27, 2021.  (10-27-21 Minute Order.)

On May 4, 2022, the matter was called for trial; however, Plaintiffs and their attorney were not present, so the Complaint was dismissed without prejudice.  (5-4-22 Minute Order.)

On May 6, 2022, Defendant filed the instant Motion for Sanctions (“Motion”) in the amount of $4,700.  No opposition was filed.

II.              Legal Standard

Code of Civil Procedure § 128.5 permits a trial court to “order a party, a 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.” (Code Civ. Proc., § 128.5(a).)  Actions or tactics include, but are not limited to, filing or opposing motions, complaints, answers, or other responsive pleadings.  (Code Civ. Proc. § 128.5(b)(1).)  “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.”  (Code Civ. Proc. § 128.5(b)(2).)  Bad faith is determined using a subjective standard.  (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 139, 134-35.)

Expenses pursuant to § 128.5 cannot be imposed unless noticed in a party’s moving or responding papers, or on the court’s own motion after providing the offending party notice and an opportunity to be heard.  (Code Civ. Proc., § 128.5(c).)  An order imposing expenses must be in writing and must recite in detail the action, tactic, or circumstances justifying the order. (Id.)

Sanctions under this section may also be awarded if the offending party is provided a 21-day safe harbor to withdraw or correct its offending document or pleading.  Specifically, “[i]f 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, the court on its own motion may enter an order describing the specific action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is withdrawn or appropriately corrected.”  (Code Civ. Proc. § 128.5(f)(1)(D)(1).)  An award of sanctions may include an award of attorney’s fees incurred as a direct result of the offending party’s bath faith action or tactic. (Code Civ. Proc. § 128.5(f)(1)(D)(2).)

III.            Discussion

Here, Defendant states that sanctions should be imposed on Plaintiffs and their attorney for failing to notify the Court and Defendant that they would not appear at trial.  Defendant states that it prepared for trial since around April 14, 2022, and sent trial documents and settlement offers to Plaintiffs’ counsel.  (Mot. p. 3; Kavaller Decl. ¶ 3.)  Between April 14 and April 28, Defendant’s counsel sent six (6) emails to Plaintiffs’ counsel and attempted to communicate by phone but did not receive any response.  (Ibid.)  Furthermore, Defendant states that Plaintiff Alison Grigonis is an attorney and “[n]o doubt she had knowledge that she had no intention of traveling from San Francisco where she lives and is employed, to Los Angeles for trial.”  (Ibid. at ¶ 5.)

Defendant argues that “failure to notify the court or opposing counsel that the attorney is not going to or cannot appear ast [sic] trial” is an action or tactic made in bad faith.  (Mot. p. 6.)  He further argues that “Plaintiffs’ willful failure to notify it of their intention not to appear for trial was their way of retaliating” because Defendant’s liability in the case was limited.  (Ibid. at p. 7.)  Defendant primarily relies on two cases: In re Marriage of Gumabao (1984) 150 Cal.App.3d 572 and Wong v. Davidian (1988) 206 Cal.App.3d 264.  In Marriage of Gumabao, the Court found that sanctions were proper because counsel was aware of his inability to appear at trial, had an opportunity to inform the court and opposing counsel, but failed to do so.  Counsel’s conduct was considered a delay tactic and, despite having justification, counsel acted in bad faith and was frivolous in promising to appear and failing to do so.  (Marriage of Gumabao, 150 Cal.App.3d at 578.)  Similarly, in Wong, the Court imposed sanctions on counsel for not appearing at a hearing, failing to notify opposing party that he would be out of town, and not arranging for substitute counsel, while being fully aware of the upcoming hearing.  (Wong, 206 Cal.App.3d at 272.)  In Wong, counsel’s conduct caused opposing party to incur unnecessary expenses and travel for the hearing.  (Ibid.)

The Court finds that the instant case is distinguishable from Marriage of Gumabao and Wong.  In Marriage of Gumabao and Wong, there was sufficient information about the attorneys’ conduct to draw the conclusion that their actions amounted to “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc., § 128.5(a).)  In the instant case, the Court does not find any indication of bad faith similar to the cases discussed and does not find that Defendant has shown any such conduct on the part of Plaintiffs or their attorney.  Defendant’s contentions that Plaintiffs had no intention of traveling to Los Angeles for trial or that they did not appear as a means of retaliation are merely speculative and are not based on any evidence produced by Defendant.

The Court is also unclear whether Plaintiffs had notice of the scheduled trial.  At the October 27, 2021 hearing on Defendant’s Motion to Set Aside/Vacate Judgment, the Court set trial for May 4, 2022.  (10-27-21 Minute Order.)  Neither Plaintiffs nor their counsel were present at this hearing.  (Ibid.)  Defendant was ordered to provide notice and, on October 28, 2021, filed a Proof of Service indicating that Plaintiffs were served with the Minute Order on October 28, 2021.  (10-28-21 Proof of Service.)  However, the Court finds this Proof of Service defective because it states that it was signed on October 29, 2021, the day after the Proof of Service was filed. 

As the Court cannot determine whether Plaintiffs and their counsel’s conduct is sufficient for the imposition of sanctions, as set out by Code of Civil Procedure § 128.5(a), Defendant’s Motion for Sanctions is DENIED.

IV.           Conclusion & Order

For the foregoing reasons, Defendant Impala Van Lines’ Motion for Sanctions is DENIED.

Moving party is ordered to give notice.