Judge: Lisa R. Jaskol, Case: BC676306, Date: 2024-02-07 Tentative Ruling

Case Number: BC676306    Hearing Date: February 7, 2024    Dept: 28

Having considered the moving, opposition, and reply papers the Court rules as follows. 

BACKGROUND 

On September 19, 2017, Plaintiffs Nicolette Birdsong Wilson and Cedric Lamont Wilson filed this action against Defendants David Wayne Johnson (“Johnson”), Combined Transport, Inc. (“Combined”), and Does 1-100 for motor vehicle negligence, general negligence, and loss of consortium. 

On October 26, 2017, Combined filed an answer. On April 16, 2018, Johnson filed an answer. 

On April 12, 2021, Plaintiffs filed a first amended complaint adding claims for negligent supervision and negligence per se. 

On May 12, 2021, Johnson and Combined (“Defendants”) filed an answer. 

On April 26, 2022, the Court granted Defendants’ motion for summary adjudication of Plaintiffs’ third through seventh causes of action. 

On March 6, 2023, the case was transferred to Department E of the Torrance Courthouse for jury trial and continued to March 7, 2023. 

On March 7, 2023, Department E called the case for trial, discussed motions in limine and the witness list with counsel, and continued the matter to March 8, 2023.  On March 8, 2023, Department E ordered the parties to work on jury instructions and the witness list, participate in a mandatory settlement conference on March 9, 2023, and return to Department E on March 10, 2023 for motions in limine and jury trial if the case did not settle. 

On March 9, 2023, the Court continued the mandatory settlement conference to March 10, 2023.  The Court later continued the trial to March 15, 2023. 

On March 15, 2023, the Court ruled on motions in limine and continued the trial to March 16, 2023.  On March 16, 2023, the Court ruled on additional motions in limine, jury voir dire began, and trial was continued to March 17, 2023.  On March 17, 2023, voir dire resumed and the Court continued the trial to March 20, 2023. 

On March 20, 2023, voir dire continued and the Court continued the trial to March 21, 2023. 

On March 21, 2023, Defendants filed a motion to dismiss the case for failure to prosecute and an ex parte application to specially set the hearing on the motion.  The Court ordered Plaintiffs to file a response by March 22, 2023, and continued the trial to that date. 

On March 22, 2023, Plaintiffs filed an opposition to Defendants’ ex parte application.  The same day, Defendants filed a reply.  The Court set a hearing on the motion to dismiss for March 23, 2023, and continued the trial to that day. 

On March 23, 2023, the Court granted Defendants’ motion to dismiss.  On April 10, 2023, the Court signed a dismissal order.  On June 8, 2023, Plaintiffs filed a notice of appeal.  The appeal is pending.

On November 30, 2023, Defendants filed a motion for sanctions to be heard on February 7, 2024. On January 23, 2024, Plaintiffs filed an opposition. On January 31, 2024, Defendants filed a reply. 

PARTIES’ REQUESTS 

Defendants ask the Court to order Plaintiffs pay $1,000.00 in sanctions based on alleged bad faith tactics. 

Plaintiffs ask the Court to deny the motion and impose $3,850.00 in sanctions on Defendants. 

LEGAL STANDARD  

          Code of Civil Procedure section 128.5 provides in part: 

“(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. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. 

“(b) For purposes of this section: 

“(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section. 

“(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. 

“(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order. 

“(d) In addition to any award pursuant to this section for an action or tactic described in subdivision (a), the court may assess punitive damages against the plaintiff on a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action. 

“(e) This section shall not apply to disclosures and discovery requests, responses, objections, and motions. 

“(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures: 

“(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party’s attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence. 

“(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay. 

“(B) If 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, 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 may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected. 

“(C) If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. 

“(D) If 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. 

“(2) An order for sanctions pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the action or tactic described in subdivision (a). 

“(A) Monetary sanctions may not be awarded against a represented party for a violation of presenting a claim, defense, and other legal contentions that 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. 

“(B) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. 

“(g) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanction authority to deter the improper actions or tactics or comparable actions or tactics of others similarly situated. 

“(h) The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section. 

“(i) This section applies to actions or tactics that were part of a civil case filed on or after January 1, 2015.” 

(Code Civ. Proc., § 128.5.) 

DISCUSSION 

          With some exceptions, “the 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.” 

          The Court finds that Defendants’ assertion that Plaintiffs engaged in sanctionable conduct under Code of Civil Procedure section 128.5, leading to dismissal of the case for failure to prosecute, is likely to involve matters embraced in and affected by the judgment on appeal.  Therefore, the Court lacks jurisdiction to hear Defendants’ motion. 

CONCLUSION 

The Court DENIES the motion for sanctions filed by Defendants David Wayne Johnson and Combined Transport, Inc. for lack of jurisdiction.

The Court DENIES Plaintiffs' request for sanctions. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.