Judge Mary H. Strobel, Case 19STCP04166 2023-04-11 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Respondents City of Los Angeles (“City”); the County of Los Angeles Treasurer and Tax Collector (“County”); and Petitioner Lionel Wyatt, individually and as trustee, on behalf of the Wyatt Children’s Trust (“Petitioner”) each move to enforce a signed stipulated settlement dated June 1, 2022, pursuant to CCP section 664.6. In the alternative, City and Petitioner request that the court “vacate” the settlement and restore the action to the status quo before the settlement was entered. Petitioner also moves for sanctions against City and County pursuant to CCP sections 128.5 and 128.7.

Petitioner objects to the declaration of Drew Taylor as hearsay. (Oppo. to County Mot. to Enforce 3.) This objection is sustained as to paragraphs 5,6,10, 11, and 14 of the Taylor declaration, which rely on out-of-court statements of employees of the County Auditor-Controller and Tax Collector for their truth. Further, Taylor has not laid a foundation for the court to consider Exhibits B-D as official records. The hearsay objection to those exhibits is also sustained. (See Taylor Decl. ¶¶ 6-7, 10-11, 14, Exh. B-D and Evid. Code § 1280.)

On September 27, 2019, Petitioner Lionel A. Wyatt, in pro per, on behalf of himself and the Wyatt Children’s Trust, filed a petition for writ of mandate pursuant to CCP sections 1094.5 and 1085. Although multiple issues are raised in the petition, the primary claim is that City wrongfully sought to enforce a lien against Petitioner’s residential real property located at 7955 N. Fair Ave. Sun Valley 91351. The lien allegedly arose from “erroneous allegations of violations of the LAMC (Los Angeles Municipal Code).” (Pet. p. 1.) Petitioner alleges that County “has specifically and is illegally acting as the collections agent on behalf of the City of Los Angeles.” (Ibid.)

The Prayer of the petition seeks a writ of mandate that directs various action from Respondents, including:

3. That the adverse decision, failure to disposition or exercise jurisdiction over the matter and the subject so that the "unsecured judicial lie against the respondent and his estate be reversed, rescinded and vacated.

5. That the Court issue a Stay of all attempts to collect, satisfy or perfect the disputed "judgment lien" also determined and designated as a "special direct assessment, and specifically against the respondent Los Angeles County Tax Collector, (collection agent on behalf of all other respondents) pending the decision of the Writ Petition. That the Stay Order be directed to each and every respondent herein.

6. Order directing the City of Los Angeles and LADBS, to refund the sum of $502.49 and $938.49, in petition and appeal fees paid to respondents. (Pet. p. 51.)

On October 24, 2019, the court denied without prejudice Petitioner’s ex parte application for a stay of collections activity.

On March 10, 2020, the court overruled Respondents’ demurrers to the petition.

On April 10, 2020, Treasurer and Tax Collector filed an answer with 13 affirmative defenses.

On November 5, 2020, the court denied Petitioner’s motion for summary judgment.

On January 18, 2022, Petitioner filed his opening brief in support of the writ petition. The court received City’s opposition, County’s opposition, the administrative record (“AR”), and the supplemental administrative record (“SAR”). Prior to the settlement discussed below, the court had reviewed these materials and issued a tentative ruling on all issues in the petition except for certain bankruptcy issues, for which the court tentatively sought further briefing. (See City’s Motion to Enforce 6:15-19.)

On June 1, 2022, the City and Petitioner participated in a mandatory settlement conference before Judge William Fahey. Petitioner and City executed a settlement, the terms of which are discussed in the Analysis section below. City gave notice of the settlement.

On March 14 and 15, 2023, City and County filed separate motions to enforce the settlement. Petitioner has opposed both motions. City filed a reply. The court has not received a reply from County. Petitioner served the opposition to County’s motion on March 29, 2023, by electronic service. For a hearing on April 11, 2023, the electronic service of the opposition was untimely. (CCP § 1005(b); § 1010.6(a)(3)(B).) Nonetheless, finding no prejudice to County, the court will consider the opposition. County may reply orally.

On March 20, 2023, Petitioner filed his motion to enforce the settlement and motion for sanctions. City filed oppositions to the motion to enforce and motion for sanctions. County filed an opposition only to the motion for sanctions. Petitioner filed and served a joint reply to City’s oppositions and a reply to County’s opposition.

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (CCP § 664.6.)

City moves to dismiss the action on the grounds that City “has fully complied with its obligations under the June 1 Settlement, Petitioner has released all claims, and the suit is now moot and not justiciable.” (City Mot. 2.)

The LADBS Non-Compliance Lien. The verified petition alleges that City wrongfully sought to enforce a lien against Petitioner’s residential real property located at 7955 N. Fair Ave. Sun Valley 91351 (“Property”). The lien allegedly arose from “erroneous allegations of violations of the LAMC (Los Angeles Municipal Code).” (Pet. p. 1.) Pursuant to the authority granted by Los Angeles Administrative Code, Los Angeles Department of Building and Safety ("LADBS") asked the City Council to impose a lien for a total of $3,536.95 as a result of the alleged violations of the LAMC. A lien in that amount was recorded and appeared on Petitioner’s Annual Secured Property Tax Bill. (Taylor Decl. ¶ 2.)

The administrative record lodged with this court by the parties for the writ hearing similarly shows that, on October 24, 2016, LADBS issued a report to the Los Angeles City Council requesting that the City Council impose a lien of $3,536.95 against the Property for a “non-compliance code enforcement fee,” a “code violation investigation fee,” accumulated interest, and other charges. (AR 205-218; see also AR 277-281 [testimony of LADBS Staff Inspector Mark Rude].) Pursuant to the authority granted by Los Angeles Administrative Code, LADBS asked City Council to impose a lien for a total of $3,536.95 be recorded against the Property. (AR 205.) On May 2, 2017, following its Agenda, Los Angeles City Council heard the Report and confirmed a lien in the amount of $3,536.95 against the Property. (AR 221–42.) This lien in the amount of $3,536.95 was recorded on May 11, 2017 as Document No. 20170528639 and appears on Petitioner’s Annual Secured Property Tax Bill under an assessment titled “LA DBS NON COMP.” (AR 365–70; see also Salumbides Decl. Exh. I.)

The Settlement. On May 2, 2022, the court (Judge William Fahey) ordered City, Petitioner, and a representative of Los Angeles Department of Building and Safety with full settlement authority to appear for a mandatory settlement conference. (Minute Order dated 5/2/22 and Notice of Mandatory Settlement Conference filed 5/9/22.) On June 1, 2022, the City and Petitioner participated in the MSC with Judge Fahey. According to the minute order, County did not participate in the MSC. (See Minute Order dated 6/1/22.) Petitioner and City reached a settlement agreement and signed the “stipulation re settlement” before the court. The court retained jurisdiction to enforce the settlement pursuant to CCP section 664.6. (Atwood Decl. ¶ 2, Exh. A; Minute Order dated 6/1/22.) Drew M. Taylor, an attorney for County, declares that he signed the settlement agreement after the MSC. (Taylor Decl. ¶ 3, Exh. A.)

The complete terms of the June 1 Settlement (hereafter “Settlement”) are as follows:

IT IS HEREBY STIPULATED, BY AND BETWEEN THE PARTIES, THAT this matter is deemed settled pursuant to the following terms and conditions:

1. On or before September 1, 2022, Wyatt will pay the City of Los Angeles $1769, payable to the L.A. Department of Building & Safety. The City will then withdraw and release the lien on the subject property and provide Wyatt a copy of said release. Wyatt shall deliver the check to Ms. Atwood’s business address.

2. The City agrees to accept said sum as payment in full of all their claims, known or unknown, arising from the events described in the Petition with the knowledge that they will be barred from proceeding against Wyatt in the future regardless of what might happen.

5. The parties agree that they have reached a full and final settlement of all claims arising from the events described in the Petition. This agreement is binding and it contains the material terms of the agreement between the parties. Pursuant to Evidence Code section 1123, the parties acknowledge that this agreement is exempt from the confidentiality provisions of Evidence Code section 1152, et seq., and is admissible in evidence to enforce the settlement.

6. The Court is requested to retain jurisdiction and this settlement agreement may be enforced pursuant to California Code of Civil Procedure section 664.6.

The Parties’ Performance of the Settlement. On Friday September 16, 2022, Petitioner e-mailed the City indicating he had mailed a check in the amount of $1,769 pursuant to the terms of the Settlement. (Id. ¶ 3, Exh. B.) Petitioner attached to his email a statement of the Los Angeles County Tax Collector showing a balance due of $6,491.45. (Ibid.) On September 20, 2022, Petitioner’s check was received by the City Attorney’s Office and it was then personally delivered to LADBS. (Id. at ¶ 4, Exh. C.) In a letter to LADBS, Deputy City Attorney Atwood stated: “Once the check clears, LADBS should ask the Los Angeles County Assessor to release the lien on the above-referenced property. LADBS should also record the release of lien with the County Recorder consistent with its normal practice.” (Ibid.)

City submits evidence that, after the check cleared, LADBS released all pending liens against the property with Assessor’s Parcel Number 2314-014-041, and known as 7955 North Fair Avenue, Los Angeles, CA 91352. (Salumbides Decl. ¶¶ 4-7 Exh. G-I.)

On November 10, 2022, LADBS executed a notarized Release of Lien (hereafter “Release of Lien”) stating:

The City of Los Angeles hereby gives notice that the certain lien in favor of the City of Los Angeles and against the real property described below, that was recorded on May 11, 2017 as Document No. 20170528639, is hereby released. The claim thereunder has been fully paid and satisfied.

The property subject to this Release of Lien is that certain real property located in the City of Los Angeles, County of Los Angeles, State of California, and is described as follows:

LADBS sent the Release of Lien to the Los Angeles County Registrar-Recorder’s Office for recording on property records on November 10, 2022. (Ibid.) The Release of Lien was recorded December 9, 2022. (Id. Exh. I.)

On December 2, 2022, the City contacted counsel for the Los Angeles County Tax Collector / Treasurer attaching the Release of Lien, explaining it had been mailed, and inquiring as to the status. (Atwood Decl. ¶ 5.) On December 8, 2022, counsel for the Los Angeles County Tax Collector / Treasurer informed the City that the lien on Petitioner’s property had been released. (Ibid.) On December 9, 2022, Daniel Rodriguez, Manager, Property Tax Roll Change Section, Property Tax Services Division, Department of Auditor-Controller sent City a screenshot of the tax roll for Parcel Number 2314-014-041 stating that the “Delinq Amt” for “LA DBS NON COMP” was “0.00.” (Id. at ¶ 7 & Exh. E.) That screenshot also showed the “Secured Amt” and “Total” for “LA DBS NON COMP” were both 1,768.47. (Ibid.)

On December 14, 2022, the City sent Petitioner a copy of the Release of Lien. (Id. ¶ 8, Exh. F.)

City contends that it has fulfilled its obligations in the Settlement by releasing the LADBS lien on the Property and providing Petitioner a copy of said release. (City Mot. 4-5.)

The Settlement required City to: (1) release the LADBS lien; (2) provide a copy of said release to Petitioner; and (3) accept $1,769 as payment in full for all claims arising from the events described in the petition. (Atwood Decl. Exh. A.) The Settlement did not specify the amount of the lien that was being released and was not limited to the original lien amount of $3,536.95. The Settlement is reasonably interpreted to apply to any penalties, fees, charges, or interest that were applied on Petitioner’s County tax account with respect to the LADBS lien. City concedes this interpretation, as discussed further below. (See City Oppo. to Mot. to Enforce 3-4.)

After Petitioner paid City the $1,769 required by the Settlement, City executed a notarized Release of Lien with respect to the Property. The Release of Lien refers to the LADBS lien at issue in the petition, which was originally for an amount owed of $3,536.95. (AR 365–70; see also Taylor Decl. ¶ 2 and Salumbides Decl. Exh. I.) On December 14, 2022, the City sent Petitioner a copy of the Release of Lien. (Atwood Decl. ¶ 8, Exh. F.) Accordingly, City partially performed its obligations under the Settlement to release the lien and provide Petitioner a copy of the release. Petitioner also performed his obligation under the Settlement to pay $1,769 to City.

In opposition, Petitioner concedes that “City of Los Angeles performed a portion of the agreement” and recorded the Release of Lien. (Oppo. 3.) However, Petitioner contends that City also “conspired and colluded with the county of Los Angeles, to thwart the settlement agreement.” (Ibid.) Petitioner contends that the County Tax Collector has not given him full credit for the release of the LADBS lien on the county tax roll. (Id. 3-4.)

In his declaration, Petitioner asserts that the Settlement required City to rescind the LADBS lien “in the approximate amount of $3,536; as well any and all associated penalties, fees, charges and interest that had accumulated on the tax account over the past 4 years.” Petitioner states that, as of December 21, 2022, that amount totaled $6,491.45. (Wyatt Decl. ¶ 3, citing Oppo. Exh. 1 and Sanctions Exh. 1 and 2.)

Petitioner states that certain “screen shot evidence” shows that only $1,768.48 was credited to his tax account with respect to the LADBS lien. (Oppo. 4; see also Wyatt Decl. ¶ 4, citing Oppo. Exh. 2.) The Secured Defaulted Tax Roll System screen shot that Petitioner cites shows that the “Delinq Amt” for “LA DBS NON COMP” was “0.00.” (Oppo. Exh. 2.) That screenshot also showed the “Secured Amt” and “Total” for “LA DBS NON COMP” were both 1,768.47. (Ibid.) This same evidence was submitted by City as Exhibit E to the Atwood declaration. (Atwood Decl. at ¶ 7 & Exh. E.) City and County do not dispute the authenticity of this evidence.

Since the LADBS lien was originally in the amount of $3,536.95, it is unclear why the Secured Defaulted Tax Roll System would only show a “secured amount” for the lien of $1,768.47. In the moving papers, City provided no explanation for this discrepancy. In opposition to Petitioner’s motion to enforce, City states: “Over the years since the lien was imposed, the County credited the City with a total of $1,768.39 from payments made by Petitioner. The City credited this to the Petitioner leaving only $1,768.56 remaining on the original lien.” (Oppo 3-4, fn. 1.) City does not submit a declaration from a knowledgeable City or County employee supporting this statement. Further, City does not explain why the Secured Defaulted Tax Roll System would show an amount due of $1,768.47, prior to the release, if Petitioner owed $1,768.56 on the lien.

In its opposition to Petitioner’s motion to enforce, City acknowledges that the Settlement encompasses interest that accrued with respect to the LADBS lien and also City’s cost for preparation of the administrative record. (City Oppo. to Mot. to Enforce 3-4.)[1] City represents that “at the MSC, the remaining due to the City based on the original lien was $1,768.56 and $4,435.06 in interest accrued” and that the “total lien balance due to county assessor” was $6,203.62. City represents that Petitioner made payments totaling $1,768.56 on the lien. According to City, “[t]he June 1 Settlement provided Petitioner would pay the City $1,769 and the City would forego $4,435.06 in interest and $2,291.87 which it incurred in preparing the Administrative Record in the underlying writ litigation.” (Ibid.) City did not submit a declaration of its attorney or any other person in support of these statements.

These statements in City’s opposition are not sufficiently explained and raise the following questions: When did the alleged $4,435.06 in interest accrue on the LADBS lien? How did City calculate that amount? Would that amount be collected by County like any other tax? Would it be considered part of the assessment for the LADBS lien (i.e. “LA DBS NON COMP”) on Petitioner’s tax bill or would it appear as some other charge on the tax bill? Should the payment credited to City on the LADBS lien have actually been applied to ad valorem taxes unrelated to the LA DVS lien?

In correspondence with Petitioner and in its opposition brief, City states the following: “The County is the governmental entity that addresses this on a property owner’s tax roll. Therefore, the County will have to explain what the delinquent balance refers to. The City simply does not have access to this information. The screenshot I sent you last month was from the County.” (City Oppo. to Mot. to Enf. 6; Petitioner’s Sanctions Motion Exh. 7.) To the extent City contends that it has no obligation to prove that the lien was actually released and fully removed from County’s tax accounting, the court disagrees.

To prove that it has fully performed its obligations under the Settlement, City must show that the full amount of the lien, including accrued interest, penalties, fees, or charges, have been removed from the County tax rolls. City, not Petitioner, has the burden to prove compliance of its own obligations pursuant to section 664.6.

In its motion to enforce, County contends that it has “provided ample evidence to Mr. Wyatt that the lien relating to the LADBS direct assessment has been removed/zeroed out from the secured tax roll.” (County Mot. 2.) County relies on the declaration of Deputy County Counsel Drew Taylor. Petitioner contends Taylor’s declaration is hearsay. (Oppo. to County Mot. 3.) This objection is sustained as to paragraphs 5,6,10,11, and 14 of the Taylor declaration, which rely on out-of-court statements of employees of the County Auditor-Controller and Tax Collector for their truth. Further, Taylor has not laid a foundation for the court to consider Exhibits B-D as official records. The hearsay objection to those exhibits is also sustained. (See Taylor Decl. ¶¶ 6-7, 10-11, 14, Exh. B-D and Evid. Code § 1280.)

Taylor declares that a screenshot from the Auditor-Controller, Secured Defaulted Tax Roll System, shows that “$2069.19 is defaulted. $1949.11 of which is tax type 2, which is regular ad valorem property taxes that are imposed. Then there are additional $120.08 in direct assessments that are also defaulted.” (Taylor Decl. ¶ 11.) Taylor does not show personal knowledge concerning the information presented on the Secured Defaulted Tax Roll System or what items are included in the various “tax types.”

On March 29, 2023, County filed a declaration of Michael McComas in support of its opposition to Petitioner’s motion for sanctions. McComas declares, as follows: “I am the Assistant Operations Chief of the Secured Property Tax Division of the County of Los Angeles Treasurer and Tax Collector …. [¶] I have performed an investigation into the property tax payment history of the property located at 7955 North Fair Ave., Sun Valley, CA, APN: 2314-014-041…. As a result of my investigation, I find the Property is tax defaulted for unpaid taxes of the 2018 tax year. The sum of $3,697.81 remains outstanding. Interest and penalties will continue to accrue on the unpaid balance, as per statute, if not paid by April 27, 2023. Attached as Exhibit A is a true and correct copy of the Statement of Prior Years Taxes, as of March 28, 2023. The original tax amount from the 2018 tax year was $2,069.19…. I find the Property has the second installment due of current year taxes remains outstanding, with a sum of $2,205.90. Interest and penalties will begin to accrue on the unpaid balance, as per statute, if not paid by April 10, 2023. Attached as Exhibit B is a true and correct copy of the Substitute Secured Property Tax Bill.” (McComas Decl. ¶¶ 1-3.)

The court cannot determine from McComas’ declaration whether the amounts due include any accrued interest, penalties, fees, or charges that were incurred in connection with the LADBS lien at issue in the petition. McComas does not address that issue. He states that interest and penalties continue to accrue, and Exhibit A to his declaration shows that certain penalties were imposed on Petitioner.

Based on the foregoing, City partially performed its obligations under the Settlement. Specifically, City executed and recorded the Release of Lien and provided Petitioner a copy. Petitioner also performed his obligation under the Settlement to pay $1,769 to City. However, on this record, City has not proven that the full amount of the LADBS lien, including accrued interest, penalties, fees, or charges, have been removed from the County tax rolls. Accordingly, City has not shown full compliance with the Settlement. In light of this conclusion, a justiciable controversy remains between Petitioner, City, and County. Until this controversy is resolved, the action cannot be dismissed.

The court is inclined to continue the hearing for supplemental briefing and also for supplemental declarations from knowledgeable tax officials, as set forth in the Conclusion section below.

In the alternative, City requests that the court restore the action to the status quo before the settlement was entered. (City Mot. to Enforce 6; Pet. Mot. to Enforce 8.) City cites no case law supporting its request to restore the case to the status quo prior to the Settlement. Contract defenses such as fraud or lack of consideration may apply to a settlement entered pursuant to section 664.6. However, City develops no argument that any contractual basis to rescind the Settlement applies in this case.

City’s motion is continued to a date to be selected at the hearing for supplemental briefing and declarations, as stated above.

County similarly contends that Respondents have performed their duties under the settlement and that the action should be dismissed. (County Mot. 2.) Petitioner contends that County lacks standing to enforce the Settlement because it did not participate in the MSC. (Oppo. 1-3.) The court finds it unnecessary to decide that issue. In the petition, Petitioner alleges that County is the “collections agent on behalf of the City of Los Angeles.” (Pet. p. 1.) County does not dispute that it is acting in that capacity. Petitioner’s claims against County are dependent on whether City has fulfilled its obligations under the Settlement. Accordingly, on this record, there is a justiciable controversy as to County for the same reasons discussed above. The court will order supplemental briefing and declarations.

Petitioner moves to enforce the settlement on grounds similar to those raised in his opposition to City’s and County’s motions to enforce. For reasons discussed, the court will order supplemental briefing and declarations on those issues.

In the alternative, Petitioner requests that the court rescind or “vacate” the settlement. (See Pet. Mot. to Enf. 6-9.) Petitioner does not show any basis for such relief.

Petitioner contends that the Settlement may be rescinded because he has not received adequate consideration. He states that City and County have refused to “fully comply” with the contract terms. (Id. 7-8.) This is not an argument about failure of consideration, but rather that City and County have not performed their obligations. Petitioner may move to enforce the Settlement on that basis, not rescind it. Petitioner received consideration for the Settlement, including City’s release of the lien.

Petitioner contends that the Settlement may be rescinded as a result of fraud. (Ibid.) Petitioner does not prove, with evidence, that City made any misrepresentations at the MSC or to induce the Settlement. This argument is not supported. To the extent Petitioner contends City has engaged in bad faith conduct in failing to perform the Settlement, that is a potential basis to enforce the Settlement, not rescind it.

Petitioner states that he mistakenly failed to recover certain appeal costs in the amount of $1,439. (Id at 8.) The argument is not sufficiently developed and lacks citation to evidence. Further, this argument does not relate to enforcement or rescission of the Settlement.

Petitioner’s motion to vacate or rescind the Settlement is denied. The court orders further briefing and declarations with respect to his motion to enforce.

Petitioner moves for sanctions in the amount of $500 against City on the grounds that (1) an unspecified “pleading” was filed for an improper purpose and designed to harass Petitioner, cause unnecessary delay, and increase the cost of litigation; (2) the claims and contentions made in an unspecified pleading are not supported by the record; (3) the claims and contentions are frivolous and in bad faith; (4) the claims and contentions are not supported by any evidence; (5) City in bad faith has refused to comply with the Settlement; and (6) Petitioner has sustained damages. (Mot. 1.) Petitioner moves for sanctions on similar grounds against County.

CCP section 128.5(a) states, in pertinent part: “A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Relevant terms are defined in section 128.5(b).

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

CCP sections 128.5 and 128.7 contain “nearly identical” safe harbor provisions. (CCP § 128.5(f)(1)(B) and § 128.7(c)(1).)[2] “Thus, a party seeking sanctions under sections 128.5 and 128.7 must follow a two-step procedure. [Citation.] First, the ‘moving party must serve on the offending party a motion for sanctions.’ [Citation.] Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion. [Citation.] That is because the offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period. (Citation.] Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion.” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550.)

“The moving party must file the motion ‘outside the safe harbor period,’ …. In other words, the ‘sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.’” (Transcon, supra at 551.)

Here, Petitioner apparently contends that City’s and County’s motions to enforce the settlement or declarations violate CCP sections 128.5(a) and 128.7(b). However, Petitioner did not comply with the 21-day safe harbor. Petitioner filed and served the motions for sanctions against City and County on the same day -- March 20, 2023. To comply with the safe harbor, Petitioner was required to file the motions on the 22^nd day after service. Petitioner failed to do so. This same analysis applies even if Petitioner challenges some other “pleading” filed by City or County in this action other than the motion to enforce. (See e.g. Motion 8:6-10 [referring to “duplicate pleadings” and “off the wall declarations”].)

In reply, Petitioner seems to argue that he gave City and County sufficient time to respond to the motion. Petitioner also argues that section 128.7 “does not provide for a ‘safe harbor’ when pursuing a legit sanctions motion.” (Reply 1-2.) Petitioner’s arguments are not persuasive. “[T]he law requires strict compliance with the safe harbor provisions. Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’” (Transcon, supra at 551.) There is no exception from the safe harbor based on the merits of the sanctions motion.

While the argument is not fully developed, Petitioner may contend that he could not comply with the 21-day safe harbor and also have his motion for sanctions heard on the same date for which City and County scheduled the motions to enforce (April 11, 2023). Petitioner cites no authority that such circumstance is exempted from the 21-day safe harbor. Petitioner could have calendared his motions for sanctions for a date after April 11, 2023.

Petitioner’s motions for sanctions fail to comply with the 21-day safe harbor and are denied.

City also argues that the sanctions motion was not timely served and should be denied on that separate basis. (Oppo. 2.) City opposed the motion on the merits. Thus, untimely service is not, in itself, a basis to deny the motion. (See generally Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all.”].)

Petitioner Does Not Show Grounds for Sanctions As To Any Other Conduct of City or County

The 21-day safe harbor applies to City’s and County’s filing of a motion or other pleadings that can be withdrawn or appropriately corrected. (See CCP § 128.5(f)(1)(B); § 128.7(c)(1).) Petitioner also moves for sanctions on the grounds that City and County in bad faith have refused to comply with the Settlement; and Petitioner has sustained damages. (Mot. 1.) Later in his briefs, Petitioner argues that City and County engaged in frivolous or bad faith conduct in their “refusal to prepare the A/R”; objecting to fee waiver applications; and failure to serve pleadings timely. (Oppo. 8.)

To the extent any of these actions do not fall within the safe harbor, the court finds that Petitioner does not prove that such actions are sanctionable within the meaning of sections 128.5 and 128.7. For reasons discussed above, there remains a justiciable controversy between the parties as to whether the LADBS lien has been fully removed from Petitioner’s County tax records. However, the existence of such controversy does not prove that City and County engaged in any sanctionable conduct. The court finds that City’s and County’s arguments and cited evidence were not made in bad faith, were not frivolous, and were not solely intended to cause unnecessary delay. (CCP § 128.5(a).) City’s and County’s arguments and cited evidence also did not violate the certification requirement of section 128.7(b) for a paper filed with the court. Petitioner fails to support his argument that other actions, such as alleged refusal to prepare the administrative record, were made in bad faith, frivolous, or solely intended to cause unnecessary delay.

Petitioner’s and City’s requests to “vacate” the Settlement and restore the action to the status quo prior to the Settlement are denied.

City’s, County’s, and Petitioner’s motions to enforce the settlement are continued to a date to be selected at the hearing.

City and/or County should submit declarations from knowledgeable County tax officials regarding (1) the amount of the LADBS lien immediately before and after it was released by City; (2) how interest, penalties, fees, or charges related to the LADBS lien were calculated and applied on Petitioner’s County tax account; (3) whether all such interest, penalties, fees, or charges related to the LADBS lien have been removed or “zeroed” from his tax account; and whether Petitioner made payments which were credited to the LADBS lien instead of ad valorem taxes for 20108. Petitioner may also submit a supplemental declaration addressing these issues. The parties may each submit a supplemental brief of no more than 5 pages addressing these issues by a date to be set at the hearing.

The court will also discuss with the parties sending the case for further mandatory settlement conference in from of Judge Fahey.

[1] Petitioner has not argued that City has breached the Settlement by seeking payment for preparation of the record. Thus, the costs for preparation of the record are not at issue.

[2] As Petitioner points out in reply, City incorrectly referred in opposition to a safe harbor in CCP section “125.5.” No such statute exists. (City Oppo. 2.) However, since the motion was based on CCP section 128.5, it is clear City was referring to the safe harbor in section 128.5. City also correctly cited to section 128.5 in the first paragraph of its opposition.