Judge: Michelle C. Kim, Case: 21STCV18647, Date: 2023-08-17 Tentative Ruling

Case Number: 21STCV18647    Hearing Date: October 2, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

DUWAN NORRIS, 

Plaintiff(s),  

vs. 

 

BJ’S RESTAURANTS, INC., ET AL., 

 

Defendant(s). 

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      CASE NO: 21STCV18647 

 

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS 

 

Dept. 31 

1:30 p.m.  

October 2, 2023 

 

I. Background  

Plaintiff Duwan Norris (“Plaintiff”) filed this action against Defendant BJ’s Restaurants, Inc. (“Defendant”) for damages relating to Plaintiff’s alleged slip and fall on Defendant’s property.  

On May 8, 2023, the Court granted Defendant’s motion for summary judgment (“MSJ”).  

On May 22, 2023, Plaintiff filed a motion for new trial, which the Court denied on August 17, 2023.  

Thereafter, Defendant filed the instant motion seeking sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7, arguing that Plaintiff’s motion for new trial was frivolous and made in bad faith.  

Plaintiff’s opposition was due on or before September 19, 2023. Plaintiff filed her opposition and objections on September 26, 2023. The Court will not consider Plaintiff’s untimely documents.  

 

II. Request for Judicial Notice 

Defendant requests the Court take judicial notice of (1) Plaintiff’s Memorandum of Points and Authorities in support of Plaintiff’s motion for new trial, (2) Plaintiff’s opposition to Defendant’s MSJ, (3) Defendant’s Reply to Plaintiff’s Opposition to the MSJ, and (4) the Notice of Ruling of the MSJ served by Defendant. 

The requests are denied.  

 

III. Legal Standard 

  1. Code of Civil Procedure section 128.5   

Code of Civil Procedure section 128.5 provides that “[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(a).) “‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (Id., § 128.5(b)(1).)  “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Id., § 128.5(b)(2).)   

“‘A bad faith action or tactic is considered ‘frivolous’ if it is ‘totally and completely without merit’ or instituted ‘for the sole purpose of harassing an opposing party.’’”  (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135 (quoting Levy v. Blum (2001) 92 Cal.App.4th 625, 635).)  “‘Whether an action is frivolous is governed by an objective standard:  any reasonable attorney would agree it is totally and completely without merit.’”  (Id. (quoting Levy, supra, 92 Cal.App.4th at 635).)  “‘There must also be a showing of an improper purpose, i.e., subjective bad faith on the party of the attorney or party to be sanctioned.’”  (Id. (quoting Levy, supra, 92 Cal.App.4th at 635).)  “‘Section 128.5 requires much more than a party acting with ‘no good reason’ to justify an award of sanctions.’”  (Id. at 136 (quoting Levy, supra, 92 Cal.App.4th at 635-36).)  “‘There must be a showing not only of a meritless or frivolous action or tactic, but also of bad faith.’”  (Id. (quoting Levy, supra, 92 Cal.App.4th at 635-36).) 

  1.  Code of Civil Procedure section 128.7 

Code of Civil Procedure section 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers if the Court finds the following have been violated: 

   

  1. the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.   

 

  1. the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.   

 

  1. the allegations and other factual contentions have no evidentiary support;   

 

  1. the denials of factual contentions are not warranted on the evidence. 

   

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.)  

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.)  As a result, federal case law construing rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.)  Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.)  As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.)  This requires an attorney to conduct a reasonable inquiry to determine if his or her client's claim was well-grounded in fact and to take into account the adverse party's evidence. (Ibid.)   

 

IV. Discussion 

Pursuant to the “Safe Harbor” conferred by section 128.7, a party's motion for sanctions may not be filed until 21 days (“or any other period as the court may prescribe”) after it is served. This allows an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) Defendant served its motion on June 6, 2023, and after Plaintiff did not withdraw her motion for new trial, Defendant filed the instant motion on August 16, 2023. Plaintiff’s motion for new trial was heard on August 17, 2023. Therefore, Defendant provided Plaintiff and counsel with the statutory “safe harbor” period.  

Defendant argues sanctions under sections 128.5 and 128.7 are warranted because Plaintiff filed a baseless motion for new trial seeking for the purposes of seeking to relitigate the Court’s grant of Defendant’s motion for summary judgment on May 8, 2023. Defendant avers Plaintiff introduced additional evidence that she knew should have been presented in her opposition to Defendant’s motion for summary judgment, and improperly used the motion for new trial to have a second chance in opposing Defendant’s motion. Defendant argues this demonstrates that Plaintiff’s motion for new trial was factually and legally frivolous, and forced Defendant to incur substantial fees and costs to oppose the motion for new trial. Defendant seeks sanctions in the amount of $6,675 for Defendant’s attorneys’ fees and costs incurred in opposing Plaintiff’s motion for new trial, and for fees and costs related to the instant motion. 

Even though the Court denied Plaintiff’s motion for new trial on the grounds that Plaintiff did not successfully demonstrate the Court committed in error in law when ruling upon Defendant’s MSJ (Min. Order, Aug. 17, 2023), the Court is not persuaded that Plaintiff’s attempt and failure to set forth any statutory ground for new trial demonstrates bad faith within the meaning of section 128.5 to merit an award sanctions.  

Additionally, the primary purpose of section 128.7 is to deter filing abuses, and not to compensate those impacted by those abuses. “While section 128.7 does allow for reimbursement of expenses, including attorney fees, its primary purpose is to deter filing abuses, not to compensate those affected by them. It requires the court to limit sanctions “to what is sufficient to deter repetition of [the sanctionable] conduct or comparable conduct by others similarly situated.” (§ 128.7, subd. (d).).” (Musaelian v. Adams (2009) 45 Cal. 4th 512, 519.) Furthermore, “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. at 448.) Additionally, both sections 128.5 and 128.7 provide that a motion for sanctions under these sections shall be made separately from other motions or requests. Instead, Defendant improperly combined two separate motions into one. Even if Plaintiff’s motion for new trial was frivolous, the Court declines to issue sanctions either under section 128.5 or section 128.7. 

 

V. Conclusion  

Based on the foregoing, Defendant’s motion for sanctions is denied. 

 

Defendant is ordered to give notice. 

 

PLEASE TAKE NOTICE: 

  • The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance. 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 29th day of September 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court