Judge: Mark H. Epstein, Case: 22SMCV02691, Date: 2023-05-02 Tentative Ruling

Case Number: 22SMCV02691    Hearing Date: May 2, 2023    Dept: R

This one is a puzzler.  Defendant moves for sanctions under CCP section 128.7 on the ground that the complaint was filed in bad faith.  Specifically, this is a collections case.  Defendant contends that plaintiff has known since January 2021 that defendant has nothing to do with this account.  According to defendant, defendant is the victim of identity fraud and the account was opened by a thief.  Defendant contends that a police report was filed and plaintiff was informed of the fraud in January 2021.  Yet plaintiff insisted on bringing this suit and will not dismiss it.  Defendant states that he gave plaintiff notice of his intent to seek sanctions 30 days before filing the motion but plaintiff has not dismissed the suit.  On the other hand, plaintiff has not opposed the motion, which is odd for US Bank.

The court will inquire as to notice to be sure that US Bank had proper notice of the motion.  Even is so, however, the motion for sanctions is not the best way to achieve this goal.  Defendant ought to bring a motion for summary judgment.  Presumably, that motion will be unopposed and granted.  At that point, the court will entertain, contemporaneously with that motion, this request for sanctions.  At this point, however, to ensure that the sanctions motion does not become moot, the court ORDERS that the matter not be removed from the court’s docket pending agreement of the parties or resolution of the motion.  Plaintiff may, of course, drop the suit, but the sanctions motion will remain on calendar until and unless defendant agrees to remove it or the court rules on it.