Judge Martha K. Gooding, Case 2020-01136878 2022-12-05 Tentative Ruling

Judge: Martha K. Gooding, Case: 2020-01136878, Date: 2022-12-05 Tentative Ruling

Motion for Sanctions

The Motion by Defendants Ruzhen He and Zejian Tao (collectively, “Defendants”) for sanctions against Plaintiffs Yong Han and Feijuan Xiong (collectively, “Plaintiffs”) and their attorneys Bin Li and James Howard, pursuant to Code of Civil Procedure (“CCP”) section 128.7 is DENIED.

Defendants filed the Motion on 6/10/22 seeking non-monetary and monetary sanctions against Plaintiffs under CCP section 128.7. (ROA 290.) At the request of the parties, the hearing on this motion was continued from 10/3/22 to 12/5/22. Neither party sought leave to file additional briefing that had not been filed before the original hearing date, and the Court neither requested nor permitted further briefing. (ROA 310 – 10/03/2022 Minute Order.) Nevertheless, Plaintiff filed an untimely opposition on 11/28/22, and Defendants filed a reply on the same day.

An attorney or pro per litigant who presents a pleading, motion or similar paper to the court makes an implied certification as to its legal and factual merit. (Code Civ. Proc. § 128.7(b).) Sanctions under CCP section 128.7 may be awarded if the court finds the paper submitted was frivolous, legally unreasonable or without factual foundation. (Code Civ. Proc. § 128.7(c).)

A party moving for sanctions under section 128.7 must comply with a two-step process.

First, the motion must be served on the offending party – but not filed. The offending party has 21 days after the motion has been served on it to withdraw the improper pleading and avoid sanctions. This is commonly referred to as the 21-day “safe harbor” provision.

Second, if the pleading is not withdrawn by the end of the 21-day “safe harbor,” the moving party may then proceed to file the motion. (Code Civ. Proc. § 128.7(c)(1).)

The purpose of Section 128.7 is to promote compliance and deter “frivolous” filings, not to punish the offender. Thus, the 21-day safe harbor is strictly enforced. “No sanctions can be imposed under a motion filed before expiration of the 21-day “safe harbor” no matter how improper the conduct sought to be sanctioned. (Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 9:1206.10, citing Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 418-419.) The burden of proof is on the moving party. (Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 9:1106, citing Cal. Evid. Code § 500.)

Here, Defendants originally proffered various documents in support of their moving papers, but none of their evidence includes proof that Defendants complied with the 21-day safe harbor period under subdivision (c)(1). (ROA 282 – Yu Decl. at ¶ 8.)

In support of their recently-filed reply, Defendants proffer, for the first time, evidence of a meet and confer letter that was sent to Plaintiff’s counsel on or about 5/19/22. (ROA 333 – Stewart Reply Decl. at ¶ 5, Exh. 1.) Defendants provided the Court a copy of the meet and confer letter, but not a copy of the motion that purportedly was attached to it.

A court generally will not consider new evidence raised for the first time on reply, because it offends the general rules of motion practice and deprives the non-moving party of a fair opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

But even considering the new evidence from Defendants, the Court concludes that the meet and confer correspondence fails to demonstrate that Defendants actually met the procedural requirements of the statute, because the motion Defendants purportedly served is not attached. (See Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15 [evidence of meet and confer correspondence did not establish actual compliance with sanctions statute and “substantial compliance” is not sufficient]; Hart v. Avetoom (2002) 95 Cal.App.4th 410, 412 [trial court abused its discretion in granting 128.7 motion that was different from the motion that was served, because this violates the “safe harbor” requirements of the statute].)

Thus, the Court denies the Motion on the merits, because Defendants failed to establish they satisfied the mandatory “safe harbor” provision of the statute.

Plaintiffs are ordered to give notice.