Judge: Mark C. Kim, Case: 21LBCP00396, Date: 2023-01-31 Tentative Ruling

Case Number: 21LBCP00396    Hearing Date: January 31, 2023    Dept: S27

1.     Background Facts

Plaintiff, Venice J. Gamble aka Venice Jaymes Gamble, II filed this action against Defendants, Long Beach Unified School District, et al. on 12/30/21.  In the required civil case cover sheet, Plaintiff erroneously identified this case as “other petition,” which resulted in assignment of an LBCP, rather than LBCV, case number.  The case is actually an “other complaint,” not “other petition.”  The original complaint included causes of action for injunctive and declaratory relief. 

On 6/06/22, Plaintiff filed his operative First Amended Complaint.  It names as defendants LBUSD, Dr. Jill Baker, Jay Camerino, Edward Samuels, Mona Merlo, Sashya Tullo, Johnathan Hayes, and Eddie Cruz.  It includes causes of action (each of which is pled against all named defendants) for:

·         Negligence

·         Negligent Supervision

·         Tortious Interference with Prospective Advantage

·         Unlawful Possession of Child Pornography

·         IIED

·         NIED

·         Abuse of Process

·         Violation of California Education Code §§200, et seq.

·         Negligent Hiring, Supervision and Retention of Employer

·         Writ of Mandate

·         Declaratory Relief

2.     Motion for Sanctions

a.     Papers Received

On 9/26/22, Plaintiff filed this motion for sanctions, setting it for hearing on 11/29/22.  The hearing on the motion was continued to 1/31/23.  On 11/14/22, Defendant filed opposition to the motion.

b.     Parties’ Positions

Plaintiff moves for sanctions pursuant to CCP §128.5.  Plaintiff contends he is entitled to sanctions due to Defendants’ bad faith in connection with (a) conspiracy to prevent Plaintiff’s son from attending prom, (b) bad faith settlement negotiations, (c) witness tampering, (d) violation of a court order, and (e) accusations of child abuse.

Defendants oppose the motion.  They argue sanctions are not available under §128.5 in the first instance because none of the conduct complained of qualifies as making or opposing a motion or filing and service of a complaint, cross-complaint, answer, or other responsive pleading.  They contend the motion is also substantively without merit.  They seek sanctions against Plaintiff for bringing the subject motion. 

c.     Initial Notes

The Court notes that Plaintiff reserved two hearings on motions for sanctions, both of which are scheduled for today’s hearing date.  Plaintiff only filed one motion, and there is only one motion on calendar.

The Court also notes that the parties, at the 1/12/23 hearing on Defendants’ demurrer, indicated the case is close to settlement.  The Court set an OSC re: dismissal (settlement) for 3/03/23. 

d.     Continuance of Hearing and Guidance

The Court is inclined to continue the hearing on this motion for sanctions to 3/03/23, to be heard concurrently with the OSC re: dismissal (settlement).  The Court is hopeful the parties will be able to resolve all issues, including issues presented by way of this motion, without the need for a ruling.  The Court wishes to provide the parties guidance concerning this motion in the hopes that the guidance will be helpful in settling the action.

First and foremost, because a pro per litigant does not “incur” attorney fees, he or she may not recover an award of attorney fees as sanctions.  Musaelian v. Adams (2009) 45 Cal.4th 512, 520.  Thus, to the extent Plaintiff is seeking an award of attorneys’ fees, those fees are not recoverable.

Second, it appears most of the costs Plaintiff seeks to recover are the costs of preparing for his son’s prom.  The statute contemplates an award of court costs, but the Court knows of no authority permitting an award of other costs.  Those other costs would be, at most, an element of damages in the lawsuit itself, but not the subject of a motion for sanctions. 

The Court does note that Defendants erroneously take the position that the motion must be summarily denied because Plaintiff is not complaining of conduct relating to the filing of a motion or other pleading.  However, any conduct in the course of litigation (other than in connection with “disclosures and discovery requests, responses, objections, and motions”) may be sanctionable if the court finds it to be “frivolous” or “solely intended to cause unnecessary delay.”   See CCP § 128.5(a); Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 649.  Notably, the portion of §128.5(f)(1) that requires a safe harbor IF the motion relates to making or opposing a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading suggests the motion need not necessarily relate to those acts. 

Despite the Court’s finding that sanctionable conduct need not directly relate to the filing of a motion or other pleading, the Court does find that conduct completely preceding the litigation, such as conduct relating to prom, would not be sanctionable under the statute, as it could not possibly be a “litigation tactic.” 

The Court is not expressing an opinion, at this time, concerning whether or not it would be inclined to impose sanctions in favor of Defendants in connection with the filing of the motion for sanctions.  The Court will consider that issue if and only if the hearing on the motion goes forward on 3/03/23. 

e.     Conclusion

The hearing on the motion is continued to 3/03/23.  The Court asks the parties to meet and confer and continue settlement negotiations with the above guidance in mind.  If the parties are able to resolve all issues prior to 3/03/23, the Court asks that they file a notice of settlement.  If they are unable to resolve their issues, the Court asks that each party file a short brief and/or declaration concerning the status of settlement negotiations and clarifying any issues relating to this motion at least one week prior to the continued hearing date. 

Defendants are 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.