Judge Ralph C. Hofer, Case 21STCV18257 2023-04-07 Tentative Ruling

Plaintiff Tracy Cui alleges that in September of 2020, plaintiff was operating a Snow Joe Electric 3-in-1 Blower/Vacuum/Mulcher in a foreseeable manner while vacuuming up leaves in her yard, when, suddenly, her hair became sucked into hidden air intake valves, causing her hair to be ripped out of her scalp as she struck her head against the subject product, knocking her unconscious.

The complaint alleges that defendant Snow Joe LLC is the manufacturer, designer, and/or distributor of the subject product, and defendant Home Depot, Inc. is the distributor and/or retailer of the subject product. The complaint alleges causes of action for strict product liability—defective design, negligence, strict product liability—failure to warn, and strict product liability—defective manufacturing.

The file also shows that in February of 2023, the parties entered into a Stipulation Re Good Faith Settlement and Mutual Waiver of Indemnity Claims, which was entered as the order of the court and filed on February 21, 2023. On February 24, 2023, plaintiff filed a Request for Dismissal of the action with prejudice as to Home Depot only, which was entered as requested the same date.

“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21 days after service of the motion, or any other period as the court may prescribe, the challenged paper...is not withdrawn or appropriately corrected.”

The declaration goes on to state that “Defendants’ counsel refused to withdraw the motion…” [Ryan Decl., para. 8]. A copy of a letter attaching a purported sanctions motion is attached as Exhibit F, but no copy of the actual motion is submitted. [Ryan Decl., para. 8, Ex. F]. The reported fact that the motion was not withdrawn appears to have occurred since the motion was purportedly served on February 7, 2023.

It appears obvious from the declaration and the face of the motion itself that whatever motion which was served on February 7, 2023 could not have been the same motion which was served in support of this motion for sanctions, as certain events which are reported in this motion had not yet occurred as of February 7, 2023, including the failure to withdraw the motion to continue trial. The current motion is also dated March 13, 2023, which would necessarily have to be different from a motion served on February 7, 2023, which should have been dated February 7, 2023 or some previous date, not a date which at that time was in the future. Moreover, the motion includes the current hearing date and notices a motion to be heard in Department D, when this action was still pending in Department 30 on February 7, 2023, and was not transferred to Department D until February 21, 2023. The proof of service attached to the current motion is dated March 13, 2023, not February 7, 2023.

In Hart, the court of appeal reversed the trial court’s entry of a sanctions order under CCP § 128.7 (which then provided a 30 day safe harbor period), on both the ground that the motion filed was not identical to the motion served, and on the ground that by the time the motion with new material was filed, starting a new safe harbor period, the matter had been dismissed, leaving the responding party nothing to withdraw in response to the new motion:

“Hart contends the sanctions motion violated the safe harbor provision of section 128.7, subdivision (c)(1). The statute requires service of the motion on the offending party at least 30 days before filing. During the safe harbor period, the recipient may avoid sanctions by correcting its conduct and withdrawing the offending paper, claim or contention. Hart is correct.

Preliminarily, we note the sanctions statute, section 128.7, is “modeled, almost word for word, on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.). In examining the provisions of section 128.7, California courts may look to federal decisions interpreting the federal rule.” (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467 [112 Cal.Rptr.2d 119]; see Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 132 [87 Cal.Rptr.2d 594].)

We turn first though, to Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10 [76 Cal.Rptr.2d 171] (Cromwell), an opinion issued by the appellate division of our own Orange County Superior Court. Cromwell held a defendant who filed his section 128.7 motion only 21 days after it was served on plaintiff's counsel violated the statute's safe harbor provision. The court went on to explain that even if the requisite 30-day period had elapsed, the request for sanctions was rendered moot by a ruling sustaining a demurrer without leave to amend. (Cromwell, at p. Supp. 13.) The court noted “the central purpose of the 'safe harbor' provision is to provide an adequate opportunity for withdrawal (i.e., voluntary dismissal) without penalty once the impropriety of the pleading and the consequence of nonwithdrawal have been made clear.” (Id. at pp. Supp. 14-15.) 414

The defendant argued letters to counsel giving advance notice of the sanctions motion were evidence that the moving party was in “substantial compliance” with the essential elements of the sanctions statute. In its discussion of the doctrine of “substantial compliance,” the court reviewed federal authority construing rule 11 of the Federal Rule of Civil Procedure, noting the safe harbor provision has been strictly construed: “ 'To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the [revised rule] provides that the ”safe harbor“ period begins to run only upon service of the motion.' [Citation.] By specifically requiring service of the 'motion' and 'notice of motion,' the Legislature made clear that the papers to be served on the opposing party are the same papers which are to be filed with the court no less than 30 days later.” (Cromwell, supra, 65 Cal.App.4th at p. Supp. 15, italics added.)

This, in our view, is where this train went off the tracks. The record confirms the motion filed in November 1998 was not the same motion served in December 1997. The November 1998 version contained additional declarations and supplemental points and authorities not present in the original version. In fact, a copy of December 1997 motion was attached as an “exhibit” to the revised version. This, in and of itself, should have been enough to put all concerned on notice that something was wrong. True, the two motions were similar, but the problem is they were not the same. “Close” is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute.

Avetoom's “new and improved” sanctions motion was both served and filed on November 20, 1998. The December 17 hearing date left no “safe harbor” during which Hart was free to modify or withdraw his complaint. To make matters worse, Hart had, by that time, already voluntarily dismissed his lawsuit, and there was no further action he could take to avoid an award of sanctions.

On this point, the case law is quite clear-allowing a party to serve and file a sanctions motion after the conclusion of the case would completely defeat the purpose of the safe harbor provision. We are reminded the “purpose of section 128.7 is to deter frivolous filings, not to punish parties. [Citation.] This purpose is forwarded by allowing the offending party to avoid sanctions altogether by appropriately correcting the sanctionable conduct after being alerted to the violation.” (Barnes v. Department of Corrections, supra, 74 Cal.App.4th at p. 133; Cromwell, supra, 65 Cal.App.4th at p. Supp. 14 [“sanctions under section 128.7 are not designed to be punitive in nature but rather to promote compliance with the statutory standards of conduct.”]; Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 443 *415 [82 Cal.Rptr.2d 712] [“[w]e can discern no situation in which sanctions following a voluntary dismissal or settlement would not be precluded by both the safe harbor provisions and the voluntary dismissal/settlement provisions [of section 128.7]”]; see Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406 [73 Cal.Rptr.2d 655] [party cannot wait until the conclusion of the case to file motions for sanctions].) It is difficult to imagine a more “appropriate correction” than voluntary dismissal.”

Here, there is no question that the motion which was filed with the court and served on March 13, 2023, cannot have been identical to the motion which was evidently served in February of 2023. The motion and particularly the declaration executed in March of 2013 are executed in what would have been the future and include information which could not have been included in any original motion, as the events reported had not yet occurred, including that the motion to continue trial had not been withdrawn. The current motion is accordingly, like the motion in Hart, a “new and improved” sanctions motion, which was both served and filed on March 13, 2023, leaving an insufficient “safe harbor” during which defendant was free to withdraw its motion to continue trial.

Here, while the moving papers do not include a copy of the motion which was served to confirm this discrepancy, it is likely the motion previously served did not include the April 7, 2023 hearing date, as court records show that the reservation for the motion hearing date was made on February 24, 2023, after the purported service of a motion for sanctions on February 7, 2023.

The opposition argues that the motion for sanctions is moot or premature. Specifically, the motion for sanctions is brought in connection with a motion to continue trial which was filed by defendant Snow Joe on January 26, 2023, noticed to be heard on February 22, 2023, in Department 30.

As noted above, the file shows that on February 21, 2023, Department 30 determined that this action was complicated, and at the direction of Department 1, reassigned and transferred the case to this department, Department D. The hearing on the motion to continue trial was advanced and vacated, “subject to being reset, continued or vacated at the direction of the newly assigned Independent Calendar Court.” [Minute Order, 02/21/2023].

This department has not reset, continued or vacated the hearing on the motion to continue trial, and it is not currently scheduled for a hearing date. The court finds it troubling that the motion for sanctions is nevertheless being pursued under such circumstances. The opposition does not indicate, however, that defendant intends to or has withdrawn the motion to continue trial, which could presumably be reset for hearing upon request. The motion for sanctions is not denied on this ground but is denied on the procedural points discussed above.

Plaintiff has failed to demonstrate to the satisfaction of the court that plaintiff has followed the mandatory requirements of CCP section 128.7 (c)(1). The motion filed and served on March 13, 2023 must necessarily differ from the motion purportedly served on February 7, 2023. See Hart v. Avetoom (2002) 95 Cal.App.4th 410, 413-414.

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