Judge: Michael E. Whitaker, Case: 21STCV26138, Date: 2023-03-22 Tentative Ruling

Case Number: 21STCV26138    Hearing Date: March 22, 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

MOTION

Plaintiff Francesco Ferrario (Plaintiff) moves for sanctions against Defendant Bjorn Lund (Defendant) pursuant to Code of Civil Procedure section 128.7 based on Defendant’s unsuccessful Motion to Strike Plaintiff’s Supplemental Expert Designations (motion to strike).  

Plaintiff argues the motion to strike was frivolous and filed for improper purposes:   to harass Plaintiff, unnecessarily delay litigation, and to increase the cost of the litigation. Defendant opposes the motion. 

ANALYSIS

Code of Civil Procedure section 128.7 states that a court may impose monetary sanctions on an unrepresented party or attorney [1] that presents a pleading, petition, motion, or other similar papers that does not meet the following criteria:  

(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.

(Code Civ. Proc., § 128.7, subd. (b)(1)-(4); see also Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976 [a violation of any of the criteria under subdivision (b) may give rise to sanctions].)  In addition, section 128.7 does not require a finding of subjective bad faith; instead it requires only that a court find that the conduct be objectively unreasonable.  (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.) 

Further, under Section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.)  A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.”  (Ibid.)  In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable.  (Ibid.)  A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.”  (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.”  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.) 

Here, on January 3, 2023, Defendant filed the motion to strike.  In that motion, Defendant argued that Plaintiff’s supplemental expert designations were not in compliance with Code of Civil Procedure section 2034.280. 

Plaintiff, in opposition to the motion to strike, and in support of the instant motion, contends that Defendant’s motion to strike was untimely. Plaintiff explains that the issue of whether Plaintiff’s supplemental expert designations complied with Section 2034.280 was unripe as Plaintiff’s statutory deadline for supplemental expert designations had not lapsed.  

Additionally, Plaintiff notes that on December 20, 2022, the Court granted Plaintiff’s Ex Parte Application for an order to continue the trial.  (See December 22, 2022 Minute Order.)  In the order, the Court continued the trial to April 12, 2023 and stated that “[a]ll discovery and motion cutoff dates, as well as all other dates, are to comport with the new trial date.”  (Ibid.)  As such Plaintiff had until February 21, 2023, to disclose his experts and thus Section 2034.280 was not yet applicable when Defendant filed the motion to strike.  Thus, Plaintiff contends that the procedural history of the litigation demonstrates bad faith on the part of Defendant. 

In opposition, Defendant argues Plaintiff’s motion for sanctions is moot based on Defendant’s withdrawal of the motion to strike on March 6, 2023.  Defendant avers that the motion to strike was withdrawn in a good faith effort to act reasonably.

However, the Court finds Defendant’s representation to be baseless.  The Court notes that Defendant did not seek to withdraw the motion to strike until after the Court posted the tentative ruling regarding the motion.  As such, the Court, in exercising its inherent authority to prohibit the withdrawal of the motion to strike after the posting of the tentative ruling, adopted the tentative ruling as the order of the Court.  (See March 6, 2023 Minute Order.)  In short, the Court concludes that Defendant’s motion to strike was not in fact withdrawn.

Equally important, Code of Civil Procedure section 128.7, subdivision (c)(1) requires that a motion for sanctions under section 128.7 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.”  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.) 

Thus, Defendant had 21 days after he was served with Plaintiff’s motion under Section 128.7 to withdraw the motion to strike and forestall the imposition of monetary sanctions.  Instead, Defendant waited until the day of the hearing on the motion to strike, and after the posting of the tentative ruling by the Court, to attempt to withdraw the motion to strike.  Accordingly, the Court does not find Defendant’s unsuccessful, belated attempt to withdraw the motion to strike to be a basis to deny monetary sanctions under Section 128.7.  (See, e.g., Eichenbaum v. Alon, supra, 106 Cal.App.4th at p. 975 [“belated abandonment of the case does not fulfill the object of the statute, and the policies favoring allowance of sanctions remain extant notwithstanding the dismissal”].) 

Defendant next argues that he had a firm basis laid out in case law and statute as to the original motion and thus his motion was not frivolous.  The Court finds this argument to be unpersuasive in light of the language of the Court’s December 22, 2022 order continuing all discovery deadlines to coincide with the new trial date.  (See December 22, 2022 Minute Order.)  The Court finds that the unambiguous order of December 22, which included expert discovery, called into question the arguments advanced by Defendant from the inception of the motion to strike.  If Defendant was uncertain about the December 22 order, he should have sought clarification from the Court instead of pursuing the motion to strike.  That would have been the most prudent course of action. 

For the reasons set forth above, the Court finds the imposition of monetary sanctions against Defendant’s counsel of record in prosecuting the motion to strike justified.  In particular, the Court finds that Defendant’s “claims, defenses, and other legal contentions” set forth in the motion to strike were not warranted by existing law (the Discovery Act vis-à-vis the Court’s December 22, 2022 order); Defendant’s “allegations and other factual contentions” advanced in the motion to strike did not have evidentiary support; and Defendant’s “denials of factual contentions” as related to the motion to strike were not warranted on the evidence.  In short, Defendant’s motion to strike was objectively frivolous, factually and legally. 

Accordingly, the Court shall impose monetary sanctions against Defendant’s counsel of record, Lisa Collinson, Phillip Hwang and Collinson, Daehnke, Inlow & Greco, jointly and severally in the amount of $1,810 pursuant to Code of Civil Procedure section 128.7.  This represents seven hours of attorney time expended by Plaintiff in opposing the motion to strike, preparing the motion for sanctions and appearing at the hearings on both motions, as well as the $60 motion filling fee.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion for monetary sanctions under Code of Civil Procedure section 128.7, and orders Defendant’s counsel of record, Lisa Collinson, Phillip Hwang and Collinson, Daehnke, Inlow & Greco, jointly and severally, to pay $1,810 in monetary sanctions to Plaintiff, by and through counsel for Plaintiff within 20 days of notice of the Court’s ruling.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.