Judge Lee W. Tsao, Case Number: VC065875, Date: 2024-06-27 Tentative Ruling

Judge: Lee W. Tsao, Case: VC065875, Date: 2024-06-27 Tentative Ruling

Case Number: VC065875 Hearing Date: June 27, 2024 Dept: C

BELMAN v. GARCIA AND GALLARZO PROPERTY HOLDINGS, LLC

CASE NO.: VC065875

HEARING: 06/27/24

Former Defendant/Cross-Complainant MARIELA I. GARCIA’s Motion for Sanctions Pursuant to CCP §128.5 is DENIED.

Moving Party to give notice.

Initially, the Court must determine whether or not it has the authority/jurisdiction to adjudicate this Motion at this time. Opposing Party/Plaintiff argues that this Court lacks jurisdiction to adjudicate this Motion because this case is stayed pending appeal. “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (CCP §916(a).) Upon review of the Court’s docket in this matter, there does not appear to be any pending appeals or stays. Although an appeal was filed by Defendant Los Bagres Corporation on or about August 21, 2023, a Notice of Abandonment of Appeal was entered on October 31, 2023. The Court does not lack authority to issue a ruling on this Motion, and the Court will rule on the merits.

The relevant procedural history of this case is as follows:

· On June 14, 2023, a Judgment, reflecting a jury’s verdict, was entered. The June 14, 2023 Judgment awarded Plaintiff/Cross-Defendant/Cross-Complainant LORENA BELMAN (“Belman”) $197,750 from Defendants LOS BAGRES CORPORATION; JUAN ERASMO GARCIA; and GIZZELLE CABRERA, jointly and severally, plus recoverable costs in the amount of $31,005.42; and expert costs from Los Bagres Corporation and Juan Erasmo Garcia in the amount of $7,110.00; and attorney’s fees in the amount of $699,990.00.

· Belman moved to set aside the Judgment entered on June 14, 2023 “and/or” enter a new judgment notwithstanding the verdict; and also separately moved for new trial.

· On December 14, 2023 Judge Brian Gasdia took Belman Motion for Judgment Notwithstanding the Verdict; Motion for New Trial; and Motion to Set Aside/Vacate the Judgment under submission.

· On December 18, 2023, Judge Brian Gasdia issued a ruling denying both: Belman’s Motion to Set Aside Judgment and/or for Judgment Notwithstanding the Verdict; and Belman’s Motion for New Trial.

On November 16, 2023, Former Defendant/Cross-Complainant MARIELA GARCIA (“Garcia”) Defendants served the subject Motion for Sanctions, seeking sanctions under CCP §128.5 for Garcia’s filing of “frivolous” Motions for New Trial and for Judgment Notwithstanding the Verdict (“JNOV”). Garcia waited until the “safe harbor” period had passed, and then filed the subject Motion for Sanctions on December 15, 2023.

Garcia contend that Belman’s Motion for New Trial and JNOV Motions were filed in violation of CCP §128.5, in that they were patently frivolous and made in bad faith.

“(a) A trial court may order a party, the 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…... (b)…. (1) ‘Actions or tactics’ include…the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading…... (2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP §128.5(a), (b)(1-2).)

The fact that a motion or motions lack merit is not enough by itself to justify an award of sanctions under Section 128.5. It is error to award sanctions if it was not unreasonable for the moving party to think the issues raised were arguable, and there is no evidence of subjective bad faith or improper motive. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.) “[A] showing that a party’s action or tactic is totally and completely without merit does not settle the issue of whether the action or tactic was in bad faith. Such a showing is certainly evidence that the action is brought in bad faith [Citation], because a trial court is entitled to infer from the utter lack of merit that the party knew that it lacked such merit, and yet continued to pursue the action for some ulterior motive. However, the trial court may not be willing to draw the inference if it is convinced that, despite the complete lack of merit, the party was acting in the good faith (albeit erroneous and even unreasonable) belief that the action was meritorious. Thus, the inference of bad faith is one which the trial court may make, but it is not mandatory that it do so.” (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1073.)

The Motion for CCP §128.5 sanctions is DENIED. Based on the record before it, the Moving Party has not affirmatively established that Belman acted with subjective bad faith in filing and arguing the underlying Motion for New Trial and JNOV Motion. Although the Motions were ultimately unsuccessful, this fact is not enough to warrant sanctions under CCP §128.5.