Judge Kristin S. Escalante , Case Number: 22STCV01646, Date: 2023-05-10 Tentative Ruling

Judge: Kristin S. Escalante , Case: 22STCV01646, Date: 2023-05-10 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

Submission Instructions.

1. Please notify the courtroom staff by email not later than 4:00 p.m. the day before the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SMCDEPT24@lacourt.org. Please do not use any other email address. You must cc all other parties on the email.

2. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, case name and number, date of hearing and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions

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4. If all parties submit, the tentative ruling will become the final ruling after the hearing date. The moving party shall give notice of the final ruling.

5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court. Said document(s) will not be considered by the Court.

The Motion for Sanctions Pursuant to C.C.P. § 128.7 ID: 196541359196 filed by Defendants Matthew Ritvo and RH Properties on 04/18/2023 is DENIED.

Defendants Matthew Ritvo, and RH Properties (collectively “Defendants”) move for an order awarding reasonable expenses and attorneys fees of $41,591.00 against Plaintiff Sandra McBeth (“Plaintiff”) and her counsel Steven Tamer, jointly and severally. (Notice of Mtn., at p. ii..) Specifically, Defendants argue Plaintiff’s claims are no warranted by existing law and sanctions are warranted under Code of Civil Procedure section 128.7 (“Section 128.7”). (Notice of Mtn., at p. ii.)

By way of background, on January 14, 2022, Plaintiff, in pro per, filed her complaint Defendants alleging that Defendants conspired to deprive her of her real property located at 5532 West 62, Los Angeles California (“subject property”). Specifically, Defendant purportedly deeded the property to WM &Co on December 22, 2021. Then on December 29, 2021 Ritvo claimed to have obtained ownership of the subject property after having closed escrow. In January 2022, RH Properties by and through Ritvo posted a three-day notice to quit on the subject property. Plaintiff also states that she currently has an appeal pending against Defendant to gain and recover title to the subject property.

Defendants, in turn, demurred to the complaint and the court construed the motion as both a demurrer and request for stay “pending resolution of the appeal in McBeth v. New Penn Financial, LLC dba Shellpoint Mortgage Servicing, Los Angeles Superior Court Case No. BC680711” (hereinafter McBeth v. Penn). (Minute Order, Sept. 14, 2022.) The court granted the stay. The court then lifted the stay on January 20, 2023, in its entirety after a Remittitur was filed in the McBeth v. Penn case. (Minute Order, Jan. 20, 2023.) Plaintiff then filed for bankruptcy and the case was automatically stayed by the bankruptcy court. The court noted the automatic stay on February 6, 2023. (Minute Order, Feb. 6, 2023.) However, on March 7, 2023, Defendants filed a notice of order granting the motion for relief from the automatic bankruptcy stay. (Notice of Order, Mar. 7, 2023.) In the order, the bankruptcy court terminated the stay under 11 United States Code section 362 subdivision (a) as to Plaintiff and Plaintiff’s bankruptcy Estate. (Notice of Order, Mar. 7, 2023, at p. 2.)

Defendants’ 4/18/2023 request for judicial notice as to various documents filed and ruling issued in McBeth v Penn is granted. As to the complaint filed in McBeth v. Penn, the court does not take judicial notice of the complaint for the truth of the matters asserted within it, but only as to its existence. (RJN, Ex. A [McBeth v. Penn Compl.].)

Plaintiff’s 4/28/2023 request for judicial notice—requested within the opposition at page 2—the complaint filed in the first unlawful detainer (“UD1”) action regarding the subject property is granted.

Discussion

“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.” (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. In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. A claim is objectively unreasonable if any reasonable attorney would agree that it is totally and completely without merit.” (Burcur, supra, 244 Cal.App.4th at p. 189 [internal brackets, quotations, and citations omitted].) No showing of bad faith is required. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

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 Section 128.7. (Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) Thus, the Court may impose sanctions for conduct that violates any one of the requirements set forth in Section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.)

In addition, Code of Civil Procedure section 128.7 contains a safe harbor provision. The provision “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. During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. 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.” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591 [internal citations omitted].)

Here, Defendants’ motion is premature. Defendants argue that Plaintiff’s claims are barred by res judicata and/or collateral estoppel. The court notes that Defendants have demurred to the complaint on these grounds; however, the court has made no ruling as to the issue. Thus, Defendants’ motion is improperly premised on an argument that has not been heard by the court and is insufficiently argued in the present moving papers. Thus defendants have not establish the pleadings was filed for an improper purpose or with without merit. Plaintiff, in turn, opposes the motion on the grounds a jury verdict in an unlawful detainer action regarding the subject property establishes that Defendants do not have ownership of the subject property. Whether or what impact such a verdict has on this case is factual question is beyond the scope of the present motion; but, at a minimum, it is sufficient to demonstrate that Plaintiff’s claims are not “indisputably without merit, either legally or factually.” (See Bucur, supra, 244 Cal.App.4th at p. 189.)

As Defendants have not established Plaintiff’s claim is without merit, the court does not address the safe harbor exception to Section 128.7.