Judge: Mark C. Kim, Case: 19STCV16540, Date: 2023-04-06 Tentative Ruling

Case Number: 19STCV16540    Hearing Date: April 6, 2023    Dept: S27

1.         Background Facts

Plaintiff, Stephen Forde filed this action against Defendants, Brent M. Friedland, Seaside Real Estate Services, Todd Wohl, Braun International Real Estate, Randy Taylor, Reyna Taylor, Stephen Hawrylack, Ray Craemer, 628 W. Imperial LP, Jinyu Jia, Hao Xu, Kelvin Tran, and Trang Do on 5/13/19.  The complaint arises out of the relationship between Plaintiff, Taylor/Taylor, and Hawrylack, all of whom jointly own two properties, referred to in the complaint as Maple 1 and Maple 2.  Plaintiff and the Taylor/Hawrylack defendants have been engaged in litigation since 2011.  At ¶107 of the complaint, Plaintiff clarifies that the Court granted Taylor and Hawrylack’s request to appoint a receiver to sell both of the subject properties; the order was entered on 5/31/18. 

2.         Motion to Dismiss

a.         Relief Sought

Defendant, Trang Do moves to dismiss the complaint against her pursuant to CCP §128.7.  She contends all causes of action pled against her have been dismissed, and yet Plaintiff insists on seeking to have her default and default judgment entered. 

b.         Default

The Court entered Do’s default on 9/27/22.  On 12/09/22, the Court issued an order dismissing all defaulted defendants.  Thus, Do was dismissed on 12/09/22. 

To the extent this motion seeks an order of dismissal, it is denied as moot. 

c.     CCP §128.7

CCP §128.7 authorizes both monetary and non-monetary sanctions when a pleading is in violation of the section.  Do seeks a dismissal sanction as well as a monetary sanction in her motion. 

To the extent this is a motion for monetary sanctions, it is denied due to failure to comply with the safe harbor provision.  In Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4^th 535, 538, the Court considered a situation where the moving party served the opposing party with all of the moving papers and left the date, time, and department blank.  The moving party waited the required 21 days, then obtained a hearing date from the court, and filed and re-served the motion with the hearing information.  The court of appeals held this was insufficient, as the motion served was required to be EXACTLY the motion subsequently filed with the Court.  It is clear that the motion Do served is not EXACTLY the motion she filed, as the motion she filed contains a description of her safe harbor efforts, a declaration from her attorney with the original proof of service, etc.  This is not the proper procedure.  Do must serve the motion, with the date and time for the hearing on the front, then simply hold the papers for 21 days before filing them.  They must be exactly the same.  Because they are not, the Court cannot grant the motion. 

Additionally, because all claims against Do were dismissed on 12/09/22, there was nothing for Plaintiff to withdraw on 2/27/23 when Do filed this motion.  Pursuant to Broadcast Music, Inc. v. Structured Asset Sales, LLC (2022) 75 Cal.App.5^th 596, 605-606, the Court cannot grant a motion for sanctions pursuant to CCP §128.7 when the action has been dismissed. 

d.     Conclusion

The motion to dismiss is denied as moot; the case against Do has been dismissed.  The motion for monetary sanctions is denied due to failure to comply with the safe harbor period and also due to the fact that the case had already been dismissed when Do filed the motion. 

Do is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.