Judge: Melvin D. Sandvig, Case: 22STCV27490, Date: 2024-03-07 Tentative Ruling

Case Number: 22STCV27490    Hearing Date: March 26, 2024    Dept: F47

Dept. F47

Date: 3/26/24

Case #22STCV27490

MOTION FOR SANCTIONS

Motion filed on 10/16/23.

MOVING PARTY: Defendant Calvin Klein Studio, LLC

RESPONDING PARTY: Defendant Plaintiff Carlotta Andrea Peart

NOTICE: ok

RELIEF REQUESTED: An order dismissing Calvin Klein Studio from the complaint with prejudice and/or imposing sanctions against Plaintiff Carlotta Andrea Peart and her attorneys of record, in an amount that this Court deems just and proper, including reasonable expenses and attorneys’ fees incurred by Calvin Klein Studio to defend against, and dispose of, the Complaint. 

RULING:

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiff Carlotta Andrea Peart’s (Plaintiff) purchase of clothing allegedly manufactured by Defendant Calvin Klein Studio, LLC (Calvin Klein Studio) from Defendant Macy’s Retail Holdings, LLC (Macy’s) on 9/4/20.  Plaintiff alleges that shortly after the purchase, while putting on one of the pieces of clothing, the manufacturer’s tag/label came loose and cut Plaintiff’s eye causing serious and permanent injury.  As a result on 8/24/22, Plaintiff filed this action against Macy’s and Calvin Klein Studio alleging various causes of action.

After being served with the Complaint, Calvin Klein Studio’s counsel informed Plaintiff several times that Calvin Klein Studio was improperly named as the defendant because it does not manufacture the product that was involved in the lawsuit, it does not sell the product that was involved in the lawsuit, and it has had nothing to do with the manufacture of Calvin Klein products for at least the last 15 years.  (Frimmer Decl. ¶¶3-5). Despite being informed of this fact, Plaintiff’s counsel refused to dismiss Calvin Klein Studio from the Complaint.  (Id. ¶6).  Since Plaintiff did not dismiss Calvin Klein Studio, it filed an Answer on 1/20/23.  (Id. ¶7).   Thereafter, Calvin Klein Studio’s counsel again contacted Plaintiff’s counsel about it being the wrong defendant and requesting that it be dismissed.  (Id. ¶8).  Again, Plaintiff’s counsel refused. Id.  On 10/3/23, Calvin Klein Studio’s counsel contacted Plaintiff’s counsel again requesting that Calvin Klein Studio be dismissed from this action.  (Id. ¶9).  Plaintiff still not dismiss Calvin Klein Studio from this action.  (Id. ¶10).

On 10/16/23, Calvin Klein Studio filed and served the instant motion seeking an order dismissing Calvin Klein Studio from the complaint with prejudice and/or imposing sanctions against Plaintiff Carlotta Andrea Peart and her attorneys of record, in an amount that this Court deems just and proper, including reasonable expenses and attorneys’ fees incurred by Calvin Klein Studio to defend against, and dispose of, the complaint. 

On 3/14/24, Plaintiff’s request to dismiss Calvin Klein Studio without prejudice was entered.  Plaintiff did not otherwise oppose or respond to the instant motion.  On 3/18/24, Calvin Klein Studio filed a Notice of Non-Opposition to the motion.  In the notice, Calvin Klein Studio requests an award of sanctions for its reasonable attorneys’ fees and costs incurred in connection with the motion and defending this action, along with any additional amounts the Court deems just and proper. 

ANALYSIS

The instant motion is made pursuant to CCP 128.5 and CCP 128.7.

CCP 128.5 provides, in part:

“(f)(1) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures:

. . .

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (emphasis added)

Similarly, CCP 128.7(c) provides, in part:

“(1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.” (emphasis added)

Here, the instant motion was filed and served on 10/16/23.  (See Frimmer Decl. ¶12, Ex.A).  As such, Calvin Klein Studio failed to provide Plaintiff with the required “safe-harbor” period before filing the instant motion. 

Even if Calvin Klein Studio had complied with the safe-harbor period, with regard to the monetary sanctions sought, it has failed to provide any information regarding the attorney’s fees and costs incurred.  Calvin Klein Studio’s attorney states that “[a] summary of the fees and costs incurred in defending the action is forthcoming and will be provided when this Declaration is filed with the Court.”  (See Frimmer Decl. ¶11).  No such summary has been filed. 

As noted above, Calvin Klein Studio has already been dismissed from the complaint, albeit, without prejudice. 

CONCLUSION

The motion is denied.