Judge: Lee W. Tsao, Case: 22NWCV00748, Date: 2023-01-19 Tentative Ruling

Case Number: 22NWCV00748    Hearing Date: January 19, 2023    Dept: C

KHAN v. HASNAIN, INC.

CASE NO.:  22NWCV00748

HEARING:  01/19/23

#3

TENTATIVE ORDER

Plaintiff’s CCP §128.7 motion for sanctions is DENIED without prejudice.

Opposing Party to give Notice.

Plaintiff moves to strike Defendants’ affirmative defenses and for monetary sanctions under CCP §128.7 on the grounds that Defendants’ affirmative defenses are unsupported by existing law, lack evidentiary support, and are being presented for the improper purpose of harassment and to delay and increase the costs of litigation.

In Opposition, Defendants’ current counsel indicates that he did not prepare the Answer challenged by the instant Motion. Defendants’ current counsel seeks leave to file an amended Answer to resolve the deficiencies outlined by Plaintiff in the instant Motion. Defendants further argue that Plaintiff’s arguments are improperly addressed via CCP §128.7, and should have been raised via Demurrer or Motion to Strike.

“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…is certifying 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 nonfrivolous 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.” (CCP §128.7(b). CCP §128.7(c) provides: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may…impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

“Code of Civil Procedure section 128.7 imposes a lower threshold for sanctions than is required under Code of Civil Procedure section 128.5. This is because Code of Civil Procedure section 128.7 requires only that conduct be ‘objectively unreasonable,’ while Code of Civil Procedure section 128.5 also requires a showing of subjective bad faith. [Internal Citation.]” (Gullemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

The Motion under CCP §128.7 is DENIED without prejudice. Defendants’ “bad” pleading does not rise to the level of sanctionable conduct that CCP §128.7 is meant to deter. The Court is unable to determine that Defendants’ Answer was filed for an improper or frivolous purpose at this time. As argued in Opposition, the arguments raised in the instant Motion would have been better resolved via demurrer attacking Defendants’ Answer or any part thereof. “A demurrer to an answer may be taken to the whole answer or to any one or more of the several defenses set up in the answer.” (CCP §430.50(b).) 

As of January 17, 2023, no Motion for Leave to File an Amended Answer has been filed/scheduled with this Court. However, given the liberal policy favoring amendment, and the lack of prejudice to Plaintiff (e.g., by a delay of trial), Defendants are granted leave to file a First Amended Answer. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

Defendants are ORDERED to file and serve a First Amended Answer within five court days from the date of the Court’s issuance of this Order.