Judge: Michael E. Whitaker, Case: 18STCV02834, Date: 2023-01-09 Tentative Ruling

Case Number: 18STCV02834    Hearing Date: January 9, 2023    Dept: 32

PLEASE NOTE:   Parties are
encouraged to meet and confer concerning this tentative ruling to determine if
a resolution may be reached.  If the
parties are unable to reach a resolution and a party intends to submit on this
tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date
and time of the hearing, counsel’s contact information (if applicable), and the
identity of the party submitting on this tentative ruling.  If the Court does not receive an email
indicating the parties are submitting on this tentative ruling and there are no
appearances at the hearing, the Court may place the motion off calendar or
adopt the tentative ruling as the order of the Court.  If all parties do not submit on this
tentative ruling, they should arrange to appear in-person or remotely (which is
highly encouraged).  Further, after the Court has posted/issued a tentative
ruling, the Court has the inherent authority to prohibit the withdrawal of the
subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE
RULING

Plaintiff Mario Abernathy (Plaintiff) sued Defendants Allison
Elizabeth Brunell, Kenneth David Brunell, and Maria Anna Brunell (collectively,
Defendants) based on injuries Plaintiff claims he sustained from a
multi-vehicle collision. 

Defendants move for sanctions under Code of Civil Procedure section
128.7 in the form of recovering attorneys’ fees against Plaintiff as the
prevailing parties, arguing Plaintiff filed a lawsuit against them for improper
purposes, in bad faith, and wholly without merit.  Plaintiff opposes the motion.  Defendants reply.

Code of Civil Procedure section 128.7 holds in pertinent 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.

(2) On its own motion, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and directing an
attorney, law firm, or party to show cause why it has not violated subdivision
(b), unless, within 21 days of service of the order to show cause, the
challenged paper, claim, defense, contention, allegation, or denial is
withdrawn or appropriately corrected.

(Code
Civ. Proc., § 128.7, subds. (b)-(c), emphasis added (“safe harbor” provision).) 

Preliminarily, the Court notes that on October 7, 2022, the Court
entered a judgment of dismissal after it sustained a demurrer to the second
amended complaint (filed in Case No. 20STCV08478) without leave to amend on May
25, 2022.  Defendants’ motion for
sanctions was served on October 20, 2022, after the Court entered judgment for
Defendants and after the Court sustained Defendants’ demurrer to the amended
complaint without leave to amend. 

However, motions for sanctions under Section 128.7 are barred after the
action is terminated.  (See Malovec v.
Hamrell (1999) 70 Cal.App.4th 434.) 
In Malovec v. Hamrell, the Court of Appeal stated:

In order to effectuate the safe harbor provisions, a party may not
bring a motion for sanctions unless there is some action the offending party
may take to withdraw the improper pleading.  A sanctions motion may not be brought after
the conclusion of the case or a dispositive ruling on the improper
pleading.  Thus, a sanctions motion
challenging a complaint may not be brought following the sustaining of a
demurrer without leave to amend. Nor may a sanctions motion challenging an
amendment to a complaint to name Doe defendants be brought following the
dismissal with prejudice of the fictitiously named defendants. Neither may a
motion for sanctions for filing a bad faith or frivolous complaint be brought
following the granting of a defendant's motion for summary judgment. 

(Malovec
v. Hamrell, supra, 70 Cal.App.4th at p. 441 [cleaned up].)  The appellate court reasoned as follows:

By virtue of its nature, the safe harbor provision cannot have any
effect if the court has already rendered its judgment in the case; it is too
late for the offending party to withdraw the challenged pleading. Given the
futility of the safe harbor provision in this context, defendant deduces that
compliance is unnecessary. This is where we depart from defendant's logic.
Rather than excusing defendant's noncompliance, we instead hold that defendant
has given up the opportunity to receive an award of section 128.7 sanctions in
this case by waiting to file the motion until after the entry of summary
judgment. As stated above, a motion for sanctions under section 128.7 must be
served on the offending party for a period of safe harbor at least 30 days
prior to the  entry of final judgment or
judicial rejection of the offending contention. A party seeking sanctions must
leave sufficient opportunity for the opposing party to choose whether to
withdraw or cure the offense voluntarily before the court disposes of the
challenged contention.

(Id.
at pp. 441–442 [cleaned up].) 

            Accordingly, the Court denies Defendant’s
motion under Code of Civil Procedure section 128.7 as procedurally
improper.   To grant Defendants’ request for sanctions
would upend the public policy behind the “safe harbor” provisions of Section
128.7.