I. BACKGROUND 

Plaintiffs Justin and Amanda Webb (collectively, Plaintiffs”) filed this breach of contract action against defendants Justin Choi (“Choi”) and Bradley Blankenship (“Blankenship”) (collectively, “Defendants”) arising from the rental and destruction of a Winnebago. The First Amended Complaint (“FAC”) alleges the following. Plaintiffs and Choi entered into a rental contract dated July 11, 2022 for the rental period of August 27, 2022 to September 7, 2022. Blankenship signed an identical rental contract on July 11, 2022. On August 27, 2022, Blankenship picked up the Winnebago from Plaintiffs. On September 6, 2022, Plaintiffs learned that the Winnebago caught fire, and the driver and occupants of the Winnebago at the time of loss were persons unknown to Plaintiffs. Plaintiffs allege Defendants gave possession of the Winnebago to others without their consent, and the insurance company denied Choi’s claim under the Rental Endorsement on the policy Choi purchased for the vehicle because the Winnebago was not in Choi’s possession at the time of loss. As such, Plaintiffs seek to recover the value of the vehicle.  

Defendant Choi moves for sanctions pursuant to CCP §§128.5 and 128.7, arguing that Plaintiffs’ First Amended Complaint (“FAC”) is meritless, the allegations of when Choi signed the lease agreement are false, and that Plaintiffs and their counsel knew it was false.  

Plaintiffs oppose the motion. As of July 23, 2024, no reply has been filed.  

Choi argues that he signed a rental agreement after the motor home was rendered unusable from the fire, and that Plaintiffs used this copy as “proof” that Choi signed the motor home rental agreement before the fire. Choi avers that he signed the rental agreement to aid Plaintiffs’ with their insurance claim. Choi contends that the metadata of the rental agreement contained in the FAC’s Exhibit 1 demonstrates that Plaintiffs used his after-the-fact signature. Choi argues that consequently, the rental agreement is false and unenforceable, because at the time he signed the rental agreement, there was nothing to rent to Choi.  

Plaintiffs argue that the motion is procedurally defective because at the time of filing, Choi was in default. Plaintiffs argue that the subsequent setting aside of the default does not retroactively cure the defect of filing prior to the set aside. Plaintiffs also contend that under the “safe harbor” provision of section 128.7, Defendant failed to serve Plaintiffs at least 21 days prior to filing the motion because Choi served the motion on May 18, 2024, and filed it two days later on May 20, 2024. Plaintiffs assert that Choi rented the Winnebago from them, and that he had taken out an insurance policy to cover the period of time that it was rented from Plaintiffs. Plaintiffs argue that whether Choi signed the rental agreement in July or September 2022, that there is nothing prohibiting an earlier oral contract from being later reduced to writing. 

None filed. 

II. LEGAL STANDARD 

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).) 

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:  

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.)   

III. 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.) Plaintiff argues Choi served the motion on May 18, 2024, but filed the motion two days later on May 20, 2024. Choi preemptively addresses this, arguing that there is a conflict between sections 128.5 and 128.7’s requirement that moving party give notice of the date and time of the hearing and with the Los Angeles County Court’s rules requiring that a motion must be filed within 3 days of making the reservation or the reservation will be automatically cancelled. Indeed, the Court Reservation System (CRS) implemented this requirement as of February 26, 2024, and there does appear to be a conflict for practical consideration. At this time, the Court will not delve into this issue, as there are other reasons to deny the motion.   

As Plaintiff points out, entry of default cuts off a party’s right to appear in the action, including by filing pleadings, until default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) Default was entered against Choi on November 16, 2023, and entry of default was set aside on June 26, 2024. (Min. Order, June 26, 2024.) The instant motion was filed on May 20, 2024, prior to the setting aside of the default. By technicality, if Choi sought to file this motion, it should have been done after June 26, 2024. This, alone, is sufficient grounds to deny the motion. Nonetheless, the Court will briefly address the motion on the merits.  

Choi refers to “Exhibit A to Mr. Choi’s declaration” in support of the argument that Plaintiffs and their attorneys used an after-the-fact signed rental agreement. However, the Court is unable to locate any declaration by Choi, nor any “Exhibit A” in connection with this motion.  

Choi claims that sanctions should be imposed because Plaintiff falsely alleges that Choi signed the rental agreement before it was destroyed. However, the FAC alleges “Choi entered into a rental contract for the Winnebago dated July 11, 2022…” (emphasis added) The FAC does not mention when Choi signed the contract. The Court has reviewed the FAC’s Exhibit 1. In terms of metadata, it only demonstrates that Choi’s printed name and the printed date for plaintiff Justin Webb’s signature were entered on September 11, 2022, which is four days after the rental period had already concluded, and five days after the Winnebago’s destruction. Assuming, for the purposes of this, that Choi did sign the rental agreement after-the-fact, the FAC does not make any reference to when the contract was signed. Rather, the FAC only alleges that the rental contract was dated July 11, 2022. The Court does not see any obviously false allegations. 

Under section 128.5, “‘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.’” (Ibid).)  “‘Section 128.5 requires much more than a party acting with ‘no good reason’ to justify an award of sanctions.’” (Id. at 136.) “‘There must be a showing not only of a meritless or frivolous action or tactic, but also of bad faith.’” (Ibid.) Based on the foregoing, the Court cannot conclude that this action against Choi is indisputably meritless or frivolous, and that it was brought in bad faith. 

Under section 128.7, “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.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.) For the same reasons as above, the Court cannot conclude that this action against Choi to recover for the loss of the vehicle was objectively unreasonable, even with Choi’s argument that he only signed the rental agreement for insurance purposes without assuming liability. Choi provides no authority that the liability clause contained in the rental agreement, knowingly signed after the vehicle’s destruction to collect on insurance, would be unenforceable against him. 

IV. CONCLUSION 

Based on the foregoing, Choi’s motion for sanctions is DENIED. The Court further declines awarding Plaintiffs’ request for $8,623.63 in attorney fees and costs for opposing the motion. 

Moving Party is ordered to give notice. 

DATED: July 29, 2024