Judge: Michael E. Whitaker, Case: 23SMCV00360, Date: 2024-02-01 Tentative Ruling

Case Number: 23SMCV00360    Hearing Date: February 1, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

Defendant Amy Goldman (“Defendant”) moves for monetary sanctions against Plaintiff The Berman Law Group, APC (“Plaintiff”) to recover $18,449.06 in attorneys’ fees and costs incurred in connection with Plaintiff’s complaint, which Defendant contends is meritless and was brought in bad faith.  Plaintiff opposes the motion and Defendant replies. 

ANALYSIS

            Per Code of Civil Procedure section 128.5, “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc., § 128.5, subd. (a).)  “‘Actions or tactics’ include making or opposing motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (Code Civ. Proc., § 128.5, subd. (b)(1).)  “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.”  (Code Civ. Proc., § 128.5, subd. (b)(2).)  The Court must consider whether the parting seeking sanctions has exercised due diligence.  (Code Civ. Proc., § 128.5, subd. (f)(1)(c).)  Sanctions “shall be limited to what is sufficient to deter repetition of the action or tactic or comparably action or tactic by other similarly situated.  (Code Civ. Proc., § 128.5, subd. (f)(2).) 

            Here, Defendant argues that Plaintiff filed a frivolous complaint against her to recover attorneys’ fees two years after the parties agreed to arbitrate the issue.  Defendant further argues the complaint was meritless in any event because Plaintiff failed to countersign the retainer agreement, and thus the contract at issue was oral, not written, and governed by a 2-year statute of limitations, as opposed to a 4-year statute of limitations, which had already run by the time Plaintiff filed the Complaint. 

Defendant further contends that Plaintiff’s efforts in personally serving the Complaint via process server at Defendant’s place of business were excessively disruptive, as Defendant’s place of business provides psychotherapy to children involved in high conflict divorce proceedings, and the process server’s behavior in barging into Defendant’s private waiting room was traumatizing to Defendant’s clients who were seated in the waiting area at the time.  Defendant faults Plaintiff for not first attempting to serve Defendant via Defendant’s attorney or sending a notice and acknowledgement form.  Defendant also criticizes Plaintiff for “misrepresenting” in the complaint that there is a written contract at issue and the relevant statute of limitations period is four years.

            Plaintiff counters that, although arbitration proceedings were pending, Plaintiff’s counsel was concerned that those proceedings did not, in themselves, toll the statute of limitations.  When Defendant refused to enter into a tolling agreement, concerned about the impending 4-year statute of limitations deadline, Plaintiff filed and served Defendant with the breach of contract action.  (Berman Decl. ¶¶ 12-13.)  Plaintiff’s counsel contends that he believed in good faith that the contract at issue was written, and the applicable statute of limitations was four years.  (Berman Decl. ¶¶ 9, 14-15.) 

            Defendant raised the issue of the retainer agreement not being countersigned by Plaintiff, the contract at issue being oral as opposed to written, and the applicable statute of limitations being two years as opposed to four, for the first time in Defendant’s arbitration brief, which Defendant served on Plaintiff’s counsel on or about August 31, 2023.  In response, Plaintiff offered to withdraw the arbitration claim, on the basis that the 2-year statute of limitations applied, but Defendant refused to withdraw the counter-claim, so the arbitration hearing went forward.  (Berman Decl. ¶¶ 20-21.)  Plaintiff dismissed the entire action without prejudice on September 12, 2023.

            Based upon the record, the Court finds that Defendant has not demonstrated Plaintiff’s bad faith.  The facts demonstrate that Plaintiff acted in good faith in filing suit, which was based on a written agreement Plaintiff attached to the complaint, and once Defendant raised the issues of the missing countersignature and two-year statute of limitations, Plaintiff promptly investigated those issues and dismissed this lawsuit within two weeks. 

            Moreover, Plaintiff is not required to seek alternative methods of service.  The statutory authority is clear:  “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (Code Civ. Proc., § 415.10.)  Short of facts demonstrating that Plaintiff knowingly orchestrated service in a manner intended to be abusive, compliance with section 415.10 by sending a process server to Defendant’s place of business does not demonstrate bad faith warranting sanctions. 

CONCLUSION

Accordingly, the Court denies Defendant’s motion for monetary sanctions.  Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

DATED:  February 1, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court