Judge: Kevin A. Enright, Case: 37-2016-00018510-CU-EI-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 06, 2023

10/06/2023  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  Eminent domain/Inverse condemnation Motion Hearing (Civil) 37-2016-00018510-CU-EI-CTL BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' motion for sanctions under Code of Civil Procedure sections 128.5 and 128.7 is DENIED.

DISCUSSION Background This case arises from a landlord/tenant dispute based on the alleged breach of two commercial lease agreements. The Court's September 5, 2023 ruling on Defendant's motion for summary judgment/adjudication recites the factual and procedural history of this action and is incorporated herein.

(ROA 573.) Defendant moved for summary judgment/summary adjudication. (ROA 530.) On September 5, 2023, after taking the matter under submission, the Court denied Defendant's motion. (ROA 573.) Plaintiffs move for sanctions under Code of Civil Procedure sections 128.5 and 128.7 on the grounds Defendant's motion was frivolous and made in bad faith.

Analysis C.C.P. section 128.5(a) authorizes trial courts to impose sanctions for bad faith actions or tactics 'that are frivolous or solely intended to cause unnecessary delay.' The subjective bad faith standard applies to section 128.5. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 134-135.) A 'frivolous' motion means a motion that is 'totally and completely without merit or for the sole purpose of harassing an opposing party.' (C.C.P., § 128.5(b)(2).) A motion a frivolous if 'any reasonable attorney would agree such motion is totally devoid of merit.' (Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th 1062, 1070.) 'C.C.P. section 128.7 authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers. Sanctions may include payment to the movant of attorney fees incurred as a consequence of the violation.' (Musaelian v. Adams (2009) 45 Cal.4th 512, 514.) A motion for sanctions under C.C.P. section 128.5 must comply with certain conditions and procedures, including a 21-day safe harbor period. 'If the alleged action or tactic is the making or opposing of a written motion ... 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3020539 CASE NUMBER: CASE TITLE:  BLACKBURN VS. COUNTY OF SAN DIEGO [IMAGED]  37-2016-00018510-CU-EI-CTL may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.' (C.C.P., § 128.5(f)(1)(B), emphasis added.) C.C.P. section 128.7 also requires a 21-day safe harbor period. (Id., § 128.7(c)(1).) The law requires strict compliance with the safe harbor provisions, and failure to comply 'precludes an award of sanctions.' (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551; see also Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 593.) Here, Plaintiffs concede they did not provide Defendant with the mandatory 21-day safe harbor period to withdraw the motion for summary judgment/adjudication. (ROA 589, Reply, p. 2: 5-25.) Thus, Plaintiffs are not entitled to sanctions under C.C.P. sections 128.5 or 128.7.

Plaintiffs acknowledge the Court cannot issue monetary sanctions but nevertheless request the Court exercise its inherent authority under C.C.P. sections 128, 128.5, and 128.7 to find that Defendant's motion for summary judgment/summary adjudication was frivolous and that Defendant's continued prosecution of the motion violated Business and Professions Code section 6068. (ROA 589, pp. 2: 22-3: 7.) However, Plaintiffs do not provide caselaw supporting their position the Court can make findings of frivolity and bad faith despite Plaintiffs' failure to comply with the safe harbor provisions under C.C.P.

sections 128.5 and 128.7.

Assuming arguendo the Court can make such findings notwithstanding Plaintiffs' noncompliance, the Court declines to do so here. Plaintiffs have improperly brought a single noticed motion for sanctions under both C.C.P. sections 128.5 and 128.7. (ROA 553, Notice of Motion, p. 2: 2-9.) 'A motion for sanctions under this section shall be made separately from other motions or requests. . . .' (C.C.P., § 128.5(f)(1)(A); see also id., § 128.7(c)(1) [setting forth identical language to C.C.P. § 128.5(f)(1)(A)].) This constitutes grounds for denial. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225, fn. 7.) Additionally, based on review of the parties' arguments, Defendant's motion for summary judgment/adjudication was neither frivolous nor 'totally and completely without merit or for the sole purpose of harassing an opposing party.' (C.C.P., § 128.5(b)(2); Rudisill, supra, 35 Cal.App.5th at p. 1070.) There is also insufficient evidence of bad faith. (Luke v. Baldwin-United Corp. (1985) 167 Cal.App.3d 664, 669.) Defendant's motion for summary judgment/adjudication was largely denied on procedural grounds, as Defendant's motion was based on facts that Defendant failed to include or support in its separate statement of undisputed material facts. (See ROA 573, pp. 3-4.) The Court finds no need to evaluate the merits of Defendant's motion at this time.

Based on the foregoing, Plaintiffs' motion for sanctions is DENIED.

If this tentative ruling is confirmed, the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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