Judge: Michael E. Whitaker, Case: 18STCV06932, Date: 2023-04-14 Tentative Ruling

Case Number: 18STCV06932    Hearing Date: April 14, 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

Defendant Lyndon Parker (Defendant) moves for the Court to award sanctions against counsel for Plaintiff George Martinez.  Plaintiff has not filed an opposition to the motion.

Preliminarily, the Court notes that the motion is improper on two separate grounds. 

First, the Court finds the motion for sanctions made pursuant to Code of Civil Procedure sections 128.5 and 128.7 is procedurally defective for failure to comply with Code of Civil Procedure section 128.7, subdivision (c)(1), otherwise known as the safe harbor provision. 

Under Section 128.7, 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other period as the court may prescribe, the challenged paper, claim defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”  This 21-day time period is known as a "safe harbor" period and permits a party to avoid sanctions by withdrawing an improper pleading or motion during the safe harbor period.  (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 591.)  Here, Defendant served the notice of motion for sanctions on Plaintiff on February 15, 2023.  However, rather than waiting 21 days before filing said motion, Defendant filed the instant motion with the Court on February 16, 2023 and thus failed to comply with the “safe harbor” provision.

Further, the Court finds that Defendant’s statutory basis for filing the motion, Code of Civil Procedure sections 128.5 and 128.7, are not applicable to the conduct at issue as related to Plaintiff’s expert designation.  Code of Civil Procedure sections 128.5 subdivision (e ), and 128.7 subdivision (g), state “[t]his section shall not apply to disclosures and discovery requests, responses, objections, and motions.”  Here, Defendant requests sanctions based on Plaintiff’s purportedly false expert witness designation, in other words a faulty discovery response.  Accordingly, Code of Civil Procedure sections 128.5 and 128.7 do not apply.

Therefore the Court denies Defendant’s motion for sanctions for the foregoing reasons. The Clerk of the Court shall provide notice of the Court’s ruling.