Judge: Melvin D. Sandvig, Case: 24CHCV02120, Date: 2025-02-26 Tentative Ruling
Case Number: 24CHCV02120 Hearing Date: February 26, 2025 Dept: F47
Dept. F47
Date: 2/26/25
Case #24CHCV02120
MOTION FOR
SANCTIONS
Motion filed on 9/30/24.
MOVING PARTY: Defendant Advanced Cable Solutions, Inc.
RESPONDING PARTY: Plaintiff Tyler Worthington
RELIEF REQUESTED: An order
imposing sanctions pursuant to CCP 128.7.
Specifically, Defendant requests:
(1) An order dismissing Plaintiff’s
Complaint and that Plaintiff remove the sanctionable allegations in the
following paragraphs of the Complaint before any refiling, namely: 74-78,
80-89, 93-97, 102-109, 114-120, 122-129, 131-135, 138-141, 143-147, 149-153,
155-160, 162-167, 169-176, 178-179, 181-184, 186-191, 193-196; and
(2) Any other sanctions that the
Court deems appropriate.
RULING: The motion is denied. Plaintiff’s request for monetary sanctions is
denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises from Plaintiff Tyler Worthington’s
(Plaintiff) employment with Defendant Advanced Cable Solutions, Inc. (Defendant)
and the termination of such employment.
On 6/6/24, Plaintiff filed this action against Defendant
alleging causes of action for: (1) Breach of Written Contract, (2) Breach of
Oral Contract, (3) Breach of Implied Covenant of Good Faith and Fair Dealings,
(4) Promissory Fraud, (5) Wrongful Employment Termination in Violation of
Public Policy, (6) Retaliation (Government Code 12940(h)), (7) Disability
Discrimination in Violation of the FEHA (Government Code 12940, et seq.), (8)
Failure to Engage in the Interactive Process in Violation of the FEHA (Government
Code 12940, et seq.), (9) Failure to Provide Reasonable Accommodation in
Violation of the FEHA (Government Code 12940, et seq.), (10) Failure to Prevent
and/or Remedy Discrimination/Retaliation in Violation the FEHA (Government Code
12940, et seq.), (11) Misclassification of Employment (Labor Code 226.8), (12) Failure to Pay Minimum Wages (Labor Code 1194, 1197), (13)
Failure to Compensate for All Hours Worked (Labor Code 1198), (14) Failure
to Pay Overtime Wages (Labor Code 510, 1194, 1198, et seq.), (15) Failure to
Provide Meal Periods (Labor Code 226.7, 512), (16) Failure to Provide Rest
Periods (Labor Code 226.7), (17) Failure to Provide Accurate Wage Statements
(Labor Code 226), (18) Failure to Maintain Required Records (Labor Code 226,
1174),
(19) Failure to Timely Pay Wages During Employment (Labor
Code 204), (20) Failure to Pay Wages Upon Discharge of Employment (Labor Code
203) and (21) Violation of California’s Unfair Competition Act (Business &
Professions Code 17200, et seq.).
On 8/21/24, Defendant filed a declaration in support
automatic extension to file a demurrer to the original complaint because the
parties were unable to complete meet and confer efforts. On 9/30/24, Defendant filed the instant
Motion for Sanctions which seeks an order imposing sanctions pursuant to CCP
128.7. Specifically, Defendant requests:
(1) An order dismissing Plaintiff’s Complaint and that Plaintiffs remove the
sanctionable allegations in the following paragraphs of the Complaint before
any refiling, namely: 74-78, 80-89, 93-97, 102-109, 114-120, 122-129, 131-135,
138-141, 143-147, 149-153, 155-160, 162-167, 169-176, 178-179, 181-184,
186-191, 193-196; and (2) Any other sanctions that the Court deems appropriate. Defendant served the instant Motion for
Sanctions on Plaintiff, by email, on 9/26/24.
On 11/7/24, Plaintiff filed and served a First Amended
Complaint which eliminated the 12th cause of action for Failure to
Pay Minimum Wages (Labor Code 1194, 1197) and the 13th cause of
action for Failure to Compensate for All Hours Worked (Labor Code 1198). All other causes of action remain in the
First Amended Complaint. On 12/27/24,
Defendant filed another declaration in support of automatic extension which,
again, indicates that the parties were unable to complete the meet and confer process
before the demurrer deadline. On 1/27/25,
Defendant filed and served a demurrer to the 4th and 11th
– 19th causes of action in the First Amended Complaint.
On 2/10/25, Plaintiff filed an opposition to the instant
motion for sanctions. On 2/19/25,
Defendant filed and served a reply to the opposition.
ANALYSIS
CCP 128.7 provides, in relevant part:
. . .
“(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.
(c) If, after notice and a
reasonable opportunity to respond, the court determines that subdivision (b)
has been violated, the court may, subject to the conditions stated below,
impose an appropriate sanction upon the attorneys, law firms, or parties that
have violated subdivision (b) or are responsible for the violation. In
determining what sanctions, if any, should be ordered, the court shall consider
whether a party seeking sanctions has exercised due diligence.
(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.
. .
.
(d) A sanction imposed for
violation of subdivision (b) shall be limited to what is sufficient to deter
repetition of this conduct or comparable conduct by others similarly situated.
Subject to the limitations in paragraphs (1) and (2), the sanction may consist
of, or include, directives of a nonmonetary nature, an order to pay a penalty
into court, or, if imposed on motion and warranted for effective deterrence, an
order directing payment to the movant of some or all of the reasonable
attorney's fees and other expenses incurred as a direct result of the
violation.
. .
.
(h) A motion for sanctions brought
by a party or a party's attorney primarily for an improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of
litigation, shall itself be subject to a motion for sanctions. It is the intent
of the Legislature that courts shall vigorously use its sanctions authority to
deter that improper conduct or comparable conduct by others similarly situated.”
Defendant failed to comply with the 21-day safe harbor
period set forth in CCP 128.7(c)(1).
With regard to the 21-day safe harbor period, Defendant contends that it
“placed Plaintiff on notice of these allegations on July 31, 2024;” that “[p]ursuant
to C.C.P. § 128.7, Plaintiff has had more than 21 days to withdraw the false,
unsubstantiated and scandalous allegations at issue;” and “[b]ecause Plaintiff
did not, [Defendant] had no choice but to file this Motion.” (See Motion, p.5:25-28; Higham Decl.
¶¶14-16). Defendant does not provide the
Court with a copy of the 7/31/24 letter it relies on for the purported safe-harbor
notice. The opposition to the motion
does not directly concede or refute receipt of the 7/31/24 letter. However, even presuming that Plaintiff
received the 7/31/24 letter before this motion was filed on 9/30/24, it does
not comply with the safe-harbor requirement of CCP 128.7(c)(1).
As noted above, the text of the statute itself provides
that the “[n]otice of motion” itself must be served, but not filed with the
court until 21 days after the service of such notice of motion. See CCP 128.7(c)(1). Further, case law interpreting CCP
128.7(c)(1) holds that “the statute is unambiguous” and “[a] sanctions motion
cannot be filed until the 22nd day after service of the motion, i.e.,
after the 21-day safe harbor period expires.”
Broadcast Music, Inc. (2022) 75 CA5th
596, 605-606; Barnes (1999) 74 CA4th 126, 130; Transcon Financial,
Inc. (2022) 81CA5th 547, 550-552.
Here, the proofs of service attached to the moving papers
establish that Defendant served the motion for sanctions on Plaintiff on
9/26/24, only 4 days before filing the motion papers with the court on 9/30/24. (See Proofs of Service attached to
Notice of Motion, Memorandum of Points and Authorities; Smith Declaration,
White Declaration). Defendant cites no
authority for the proposition that sending a letter, which purportedly set
forth the claimed deficiencies in the complaint (as noted above a Defendant has
not provided the court with a copy of the letter), more than 21 days before
filing the motion, satisfies the safe harbor requirement set forth in CCP
128.7(c)(1).
Since Defendant failed to satisfy the safe harbor
requirement before filing the instant motion, the Court must deny the motion. See Broadcast Music, Inc., supra;
Barnes, supra; Transcon Financial, Inc., supra.
Additionally, the motion, filed on 9/30/24, is moot
because the complaint which the motion addresses has been superseded, or in
effect withdrawn, by the filing of a First Amended Complaint on 11/7/24.
Even if the Defendant had complied with the safe-harbor
period and the filing of the First Amended Complaint did not render the motion
moot, the motion fails for lack of clear notice of the relief sought. See CRC 3.1110(a). Defendant asks that the Court dismiss Plaintiff’s
complaint and that Plaintiff remove the purportedly sanctionable allegations before
re-filing. It is not clear whether
Defendant is seeking some sort of dismissal with leave to amend or asking the
Court to make an order regarding a future pleading in some unfiled (related)
case. Defendant also provides no
authority for dismissing the entirety of Plaintiff’s complaint (i.e., including
causes of action which Defendant does not challenge in its pending demurrer to
the First Amended Complaint).
Plaintiff’s request for monetary sanctions under CCP
128.7(h) made in the opposition is denied.
(See Opposition, p.7:6-p.7:10).
As noted above, this subsection of the statute provides that “[a] motion
for sanctions brought by a party or a party’s attorney primarily for an
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation, shall itself be subject to a motion for
sanctions.” (emphasis added); CCP 128.7(h).
As noted above, a motion for sanctions under CCP 128.7, must be made
separately from other motions. CCP
128.7(c)(1). Here, Plaintiff has not
filed a separate motion.
CONCLUSION
The motion is denied.
Plaintiff’s request for monetary sanctions is denied.
Since the Court did not rely on the declaration of Tyler
Worthington in ruling on the motion, the Court finds it unnecessary to rule on
Defendant’s objections to that declaration.