Judge Katherine Chilton, Case 20STLC02507 2022-08-17 Tentative Ruling

Defendant Jorge Hernandez’s Motion for Sanctions is GRANTED in the amount of $1,623.31.

On March 16, 2020, Plaintiff Nicole Jackson (“Plaintiff”), in propria persona, filed an action against Defendant Jorge Hernandez (“Defendant”) for general and motor vehicle negligence. The action arises out of an automobile accident that allegedly occurred on March 16, 2018. On April 15, 2020, Defendant filed an Answer denying all allegations in the Complaint.

On June 16, 2022, Defendant filed a Motion for Sanctions against Plaintiff, pursuant to Code of Civil Procedure § 128.5 and/or 128.7 (“Motion”). Prior to the filing of the Motion, Plaintiff filed an Opposition on June 15, 2022. On August 3, 2022, Defendant filed a Reply to Plaintiff’s Opposition.

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motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, the court on its own motion may enter an order describing the specific action or tactic, made in bad faith, that is frivolous or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).)

An attorney or unrepresented party who presents a motion to the court makes an implied certification as to its legal and factual merit, which is subject to sanctions for violation of this certification under Code of Civil Procedure § 128.7. (Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for conduct that violates any one of the requirements set forth in Code of Civil Procedure § 128.7(b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.)

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party 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 non-frivolous 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.

(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.

Only “an attorney or unrepresented party may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and 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.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.)

“The California Legislature essentially sought to replicate rule 11 [of the Federal Rules of Civil Procedure] when it enacted section 128.7.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of Code of Civil Procedure § 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (See Childs v. State Farm Mutual Automobile Insurance Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid. at 1025.)

In addition, Code of Civil Procedure § 128.7 “contains a safe harbor provision. It requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.] During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow correction or withdrawal of an offending document, section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.) (Emphasis added.)

Here, Defendant’s has filed the instant Motion on the ground that Plaintiff’s Motions to Vacate Void Order[1], filed on May 11, 2022, and set for hearing on June 23 and June 24, 2022 “are frivolous, in bad faith, and not warranted by existing law…because the attorneys who appeared at the hearings were all employees of the same law firm, Mark R. Weiner & Associates.” (Mot. p. 2.) In the Motions to Vacate Void Orders, Plaintiff argues that orders issued by the Court on February 10, 2022, and August 12, 2021, are void and should be vacated because Defendant was not represented by counsel of record and did not file a substitution of attorney. (5-11-22 Motions to Vacate Void Order.)

Defense counsel states that Plaintiff was informed about the attorneys who are employed by the law firm because the letterhead of a letter sent to Plaintiff listed the names of all associates. (Kim Decl. ¶ 2; Ex. A.) Defendant states that the attorney who appeared on Defendant’s behalf at both hearings is an associate of the same firm as counsel of record and her name is listed on the letterhead. (Mot. p. 3; Kim Decl. ¶2; Zabala Graham Decl. ¶¶ 1-3.) Defendant argues that sanctions are proper pursuant to Code of Civil Procedure §128.5 because the law regarding associates of the same firm representing a party without filing a substitution of attorney is “crystal clear” and “[t]he only purpose in bringing the motions is harass defendant and increase costs to defendant for having to oppose the frivolous motion.” (Mot. p. 5.) As a result of these motions, Defendant has incurred attorney’s fees and expenses in the amount of $1,783.48. (Ibid. at p. 5; Kim Decl. ¶ 6.)

Alternatively, Defendant seeks sanctions pursuant to Code of Civil Procedure § 128.7, because Plaintiff’s motions to vacate “court orders are utterly without merit and frivolous and her failure to withdraw the motions warrants the imposition of monetary sanctions.” (Mot. p. 6.). Defendant states that “Plaintiff has violated subdivision (b)(2) because, as discussed in Section II above, her motions to vacate the two court orders are not warranted by existing law or by a nonfrivolous argument for extension, modification, or reversal of existing law or the establishment of new law, i.e., her motions are legally frivolous.” (Ibid.) Defendant contends that if Plaintiff does not withdraw these Motions to Vacate Void Order, Plaintiff will incur attorney’s fees and costs in the amount of $1,783.48. (Ibid. at p. 7; Kim Decl. ¶ 6.)

On June 15, 2022, Defendant filed an Opposition to Defendant’s Motion. Plaintiff states that her Motions to Vacate Void Orders contain “several citations of relevant case laws and statutes” and Defendant has not “provided any relevant case laws to support this proposition” that “Plaintiff’s motions are in bad faith and frivolous.” (Jackson Decl. ¶¶ 2-6.) She states that Defendant has filed the instant Motion “in an attempt to frustrate and harass Plaintiff…in bad faith” and “[i]t is defendant, who has in fact, filed a frivolous motion.” (Ibid. at ¶ 4.)

In his Reply, Defendant states that Plaintiff’s “refusal to withdraw the motions even after the Court denied her identical June 9, 2022, motion and after defendant voluntarily extended the safe harbor period to allow plaintiff to review the Court’s order denying the June 9, 2022, motion warrants the imposition of sanctions under Code of Civil Procedure sections 128.5 and/or 128.7.” (Reply pp. 1-2.) Defendant argues that “[t]he only reason to keep the motions on calendar was to harass defendant.” (Ibid. at p. 3.) Defendant reiterates its arguments made in the Motion and states that “Plaintiff’s opposition to the sanction motion has no merit” because he has “cited to necessary authority to support his sanction motion” in the form of Code of Civil Procedure § 128.5 and 128.7 and cases discussing those sections. (Ibid. at p. 2.)

In making its determination, the Court refers to its June 10, 2022, Order denying Plaintiff’s Motion to Vacate Void Order, that was based on the same arguments as the Motions to Vacate Void Order discussed herein. (6-10-22 Minute Order.) In its Order, the Court determined that Defendant did not have to file a Substitution of Attorney because the attorneys representing Defendant at the hearings were from the same law firm as the counsel of record. (Ibid. p. 2.) Thus, the Court found that the prior orders were “neither void nor voidable” and denied Plaintiff’s Motion to Vacate Void Order. (Ibid.) On June 23, 2022, the Court reiterated its reasoning in denying yet another Motion to Vacate Void Order, stating that no formal substitution of attorney was necessary as attorneys appearing in the case were employed by the same law firm. (6-23-22 Minute Order.)

The Court finds that Plaintiff’s repetitive Motions to Vacate Void Order and refusal to withdraw these Motions when given an opportunity to do so, even after the Court’s Order, constitute “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5(a).) Thus, the Court finds the imposition of sanctions proper.

Defendant seeks $1,7983.48 in sanctions, based on $160.17 per hour billing rate, as follows:

a. $640.68 in attorney’s fees for four (4) hours of researching and drafting opposition to Plaintiff’s Motions to Vacate Void Order;

b. $160.17 for one (1) hour of appearance at June 23, 2022 hearing on Plaintiff’s Motions;

c. $160.17 for one (1) hour of appearance at June 24, 2022, hearing on Plaintiff’s Motion;

d. $480.51 in attorney’s fees for three (3) hours of researching and drafting the instant Motion for Sanctions;

The Court notes that there was no hearing on June 24, 2022. Therefore, the Court finds $1,623.31 in sanctions to be reasonable.

In her Opposition, Plaintiff requests sanctions against Defendant pursuant to Code of Civil Procedure § 128.5. (Opposition pp. 4-5.) The Court cannot consider this request, as a request for sanctions pursuant to § 128.5 must be made in a separate, noticed motion and comply with other requirements of the statute. (Code of Civ. Proc. § 128.5.)

For the foregoing reasons, Defendant Jorge Hernandez’s Motion for Sanctions is GRANTED in the amount of $1,623.31.

[1] There were 3 Motions to Vacate Order, but Defendant’s Motion for Sanctions is based on the two (2) Motions set for hearing on June 23 and June 24, 2022, because there was not enough time to comply with “safe harbor” period for the first Motion to Vacate Void Order. (See Kim Decl. ¶ 4.) The first Motion was denied on June 10, 2022. (6-10-22 Minute Order.) It appears that the second and third Motions to vacate order were decided simultaneously on June 23, 2022.