Judge: Loren G. Freestone, Case: 37-2021-00042625-CU-FR-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2021-00042625-CU-FR-CTL MARIAM VS LA FRONTERA PARKING SOLUTIONS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Western Surety Co.'s motion for sanctions against Attorney Joseph La Costa is DENIED.

'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.' (Code Civ. Proc., § 128.5, subd. (a).) In 2017, the legislature amended section 128.5 to its present form to 'clarify that sanctions for actions and tactics under section 128.5 must be in subjective bad faith.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017–2018 Reg. Sess.) as amended Apr. 20, 2017); accord Sen. Com. on Judiciary, Analysis of Assem. Bill No. 984 (2017–2018 Reg. Sess.) as amended June 19, 2017.) Thus, sanctions are not warranted if the party or attorney was acting based on a 'good faith (albeit erroneous and even unreasonable) belief.' (See Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1073; see also Levine v. Pollack (1995) 37 Cal.App.4th 129, 139 [error to award fees under section 128.5 absent evidence of subjective bad faith in requesting trial continuance].) Here, Western moves for sanctions based on Attorney La Costa knowingly misrepresenting information at the September 21, 2023 trial call. Specifically, Western asserts that Attorney La Costa falsely represented that Defendant La Frontera Parking Solutions Inc. had been served with the first amended complaint, and that he could file a proof of service confirming that fact. Western asserts that this misrepresentation was in bad faith and solely intended to delay trial, causing it to unnecessarily incur attorney fees and court reporter costs associated with that hearing.

Although the hearing was reported, Western did not file a copy of the transcript. Instead, Western submitted a declaration from counsel that was drafted almost two months after the hearing. The court therefore ordered a copy of the transcript to confirm exactly what was stated at the hearing.

Upon review of the transcript, the court is unable to find that Attorney La Costa knowingly misrepresented that La Frontera has been served. Rather, his statements indicate confusion on this point ('They were sent it. I'm trying to figure out how the proof of service was done'; 'I believe I gave them another copy. I did not do a proof of service on that.'; etc.).

Nor were the fees and expenses incurred 'as a result of' the purported misrepresentation. Rather, trial Calendar No.: Event ID:  TENTATIVE RULINGS

3052917  54 CASE NUMBER: CASE TITLE:  MARIAM VS LA FRONTERA PARKING SOLUTIONS INC  37-2021-00042625-CU-FR-CTL was continued to allow Attorney La Costa an opportunity oppose Western's motion in limine and address the legal impact of having not served La Frontera with the first amended complaint. ('Well, I don't think I can dismiss this claim right off the bat without giving him an opportunity to at least brief it. So what I'm inclined to do is continue 30 days, and see where we are;' 'Because I don't know whether they actually can bring you in without the other side, that has to be researched and briefed on the other side, given that it would be a dismissal of the case.') For the reasons set forth above, the motion is denied.

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3052917  54