Judge: Marcella O. Mclaughlin, Case: 37-2023-00035338-CU-OE-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00035338-CU-OE-CTL MOODY VS ARTHROSI THERAPEUTICS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 12/29/2023

Plaintiff's motion for monetary sanctions is DENIED.

A. Plaintiff's evidentiary objections (ROA 49) are overruled.

B. Code of Civil Procedure section 128.7 provides for a 21-day 'safe harbor' period during which the opposing party may avoid sanctions by withdrawing the offending pleading or other document. Code Civ. Proc. § 128.7(c)(1). The papers to be served on the opposing party motion 'must be the same papers that are ultimately filed with the court no less than 21 days later.' In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 827. The papers must also comply with Code of Civil Procedure section 1010 – including setting forth the time and place of the motion hearing. See Code Civ. Proc. § 128.7(c)(1); see also Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538. '[T]he law requires strict compliance with the safe harbor provisions.' Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551.

Here, plaintiff served the sanctions motion on defense counsel via email on October 18, 2023. (Sperber Decl., Ex. 10.) However, plaintiff did not include a copy of the served motion as an exhibit. Thus, the court is unable to determine (1) whether the version served on October 18 was same version filed with the court on December 29 and (2) whether the notice of motion served on October 18 complied with section 1010.

Moreover, even if plaintiff had included a copy of the October 18 sanctions motion, that version could not possibly have been the 'same' version as the one filed with the court. All of the documents filed with the court were signed on December 27, 2023 – i.e., two months after service of the October 18 sanctions motion. Accordingly, plaintiff did not satisfy the safe harbor requirements. See Galleria Plus, 179 Cal.App.4th at 538 (holding notice was 'fatally defective' because it did not specify when the sanctions motion would be made).

'[T]he failure to comply with section 128.7's safe harbor provisions precludes an award of sanctions[.]' Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700. The motion for sanctions is therefore denied.

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