TENTATIVE RULING

 

Calendar:    11

Date:          1/13/2023 

Case No: BC 648515 Trial Date: None Set   

Case Name: Ellensohn v. City of Burbank, et al.

MOTION FOR SANCTIONS

Moving Party:            Plaintiff Mark Ellensohn 

Responding Party: Defendant City of Burbank 

RELIEF REQUESTED:

Costs and attorney’s fees of $6,805.00 against defendant City of Burbank and its counsel of record 

SUMMARY OF FACTS:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below. 

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road.  Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light.  On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s eye damage.   Plaintiff was further advised that he had sustained permanent vision loss and permanent damage.  Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity. 

The file shows that on January 28, 2021, plaintiff filed a Request for Dismissal without prejudice only as to defendant Verizon California, Inc., with the parties agreeing to waive costs and fees.  The dismissal was entered as requested the same date. 

On April 8, 2022, the court heard a Motion for Determination of Good Faith Settlement brought by defendant, cross-defendant and cross-complainant MCI Communications Services, LLC.  The motion was granted, and the court determined the settlement between defendant and plaintiff was entered into in good faith.   

On May 13, 2022, the court heard a motion brought by plaintiff for leave to file a Third Amended Complaint, which was granted in part and denied in part, and the TAC was filed on May 16, 2022.  

Defendants the City of Burbank and Burbank Water and Power filed a demurrer and motion to strike in response to the TAC, which was heard on July 29, 2022. 

The demurrer was sustained without leave to amend as to the third cause of action for premises liability, sustained with leave to amend as to the second cause of action for general negligence/gross negligence, and was otherwise overruled.  The motion to strike was granted with respect to the misidentification of the complaint as the “First” Amended Complaint, and was also granted without leave to amend as to the prayer for punitive damages as to moving defendants only.  The motion to strike was otherwise denied.   Plaintiff was permitted ten days leave to amend the second cause of action only.  

The file shows that on August 15, 2022, plaintiff filed and served the Fourth Amended Complaint.  

On August 30, 2022, plaintiff filed a “Notice of Errata re Revised Fourth Amended Complaint,” and attached a (Revised) Fourth Amended Complaint, which plaintiff indicated, “should be deemed the operative Complaint.”    

On August 31, 2022, the City of Burbank defendants filed an “Objection to Plaintiff’s Notice of Errata,” indicating that the Notice of Errata exceeded the bounds of a proper Notice of Errata and was an attempt to amend the FAC without leave of court, to evade a demurrer and motion to strike.   The City of Burbank defendants urged the court to refuse plaintiff’s Notice of Errata. 

The demurrer and motion to strike was filed on September 12, 2022, and was directed at the Fourth Amended Complaint, not the Revised Fourth Amended Complaint.  

On October 7, 2022, the court heard the demurrer and motion to strike directed to the Fourth Amended Complaint.

At the hearing, the court on its own motion ordered stricken the Notice of Errata and the attached Revised Fourth Amended Complaint. The court considered the demurrer and motion to strike in connection with the Fourth Amended Complaint filed on August 15, 2022, and the demurrer was sustained with leave to amend.

On October 28, 2022, the court heard a motion for sanctions pursuant to CCP section 128.7 brought by the City of Burbank against plaintiff’s counsel in which the City of Burbank defendants argued that counsel for plaintiff had improperly filed a Fourth Amended Complaint which  included a claim for negligence/gross negligence against the City of Burbank defendants which was not warranted by existing law and had no evidentiary support, and which included a prayer for punitive damages which was not warranted by existing law. 

The motion for sanctions was denied.  

Plaintiff in opposition to the previous motion for sanctions had requested monetary sanctions for the expense of having to oppose the motion for sanctions.  The court’s ruling on the previous motion states, “Monetary Sanctions sought in Opposition are DENIED.”  

The minute order addressed the request for sanctions in the opposition, and indicated it was “denied,” stating:

“The court notes that CCP section 128.7 includes a subdivision which provides that a motion for sanctions brought by a party for an improper purpose shall itself be subject to a motion for sanctions. However, plaintiff has not appropriately sought such affirmative relief by requesting it in opposition to the motion for sanctions. The sanctions requested in the opposition are not awarded. However, this ruling is without prejudice to any legal remedies which may be available to plaintiff or plaintiff’s attorney for sanctions.”

Plaintiff now brings a motion for sanctions under CCP section 128.7 to recover the sanctions previously sought in opposition to the City of Burbank defendants’ motion for sanctions, along with other sanctions. 

ANALYSIS:

Plaintiff seeks sanctions against the City of Burbank and its counsel for the expense of having to oppose the previous motion for sanctions. 

CCP § 128.7 (c)(1) provides that "if warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion."   

Subdivision (h) provides, 

"A motion for sanctions brought by a party or a party's attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions.  It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated."

Here, plaintiff was the party prevailing on the previous motion.  Plaintiff argues that it was the prevailing party, and the motion for sanctions was brought for an improper purpose, specifically to harass plaintiff and plaintiff’s counsel and to cause unnecessary delay and needlessly increase the cost of litigation, while bullying plaintiff and plaintiff’s counsel, and that a sanction of reasonable expenses and attorney’s fees are warranted. 

There is no further legal authority cited under which a stand-alone motion for sanctions under CCP section 128.7 would not be subject to the mandatory safe harbor provisions of that section.  

Specifically, CCP section 128.7(c)(1) provides:

 “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.”  

This provision is mandatory.  Martorana v. Marlin & Saltzman (2009, 2nd Dist) 175 Cal.App.4th 685, 700.

This safe harbor was not provided here, as the motion for sanctions was filed and served on the same date.   

The sanctions statute itself provides that “if warranted,” the court “may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion."   However, it would appear that to avoid the requirements of bringing a stand-alone motion with a safe harbor period, a fully supported request for such sanctions must be made in connection with the hearing on the motion, and, in any case, it must be established that such an award is “warranted.”  

The previous opposition had requested sanctions, using very similar language to that used in this stand-alone motion.  However, the declaration of counsel submitted with the opposition did not submit any evidence supporting the sum of sanctions sought, or supporting what reasonable expenses and attorney’s fees were incurred in opposing the motion, as the subject was not addressed in the declaration.  [See Harper Decl., filed 10/17/2022].  There was also no safe harbor provided.  The request was accordingly denied on the ground the sanctions had not been appropriately sought in the opposition papers:

“The court notes that CCP section 128.7 includes a subdivision which provides that a motion for sanctions brought by a party for an improper purpose shall itself be subject to a motion for sanctions. However, plaintiff has not appropriately sought such affirmative relief by requesting it in opposition to the motion for sanctions.”

The new motion, while now submitting a declaration indicating what was incurred to oppose the previous motion, does not include evidence explaining why the previous motion was brought primarily for an improper purpose, and also appears to overreach by seeking the expense for filing this motion, and to deter further misconduct.  [See Harper Decl., paras. 4, 5].  It is not established why the previous motion for sanctions was such that the court would be warranted in awarding the expenses and fees to oppose it to plaintiff.  Plaintiff has also not supplied legal authority under which the safe harbor requirement is dispensed with in the circumstances here.   

The opposition argues that the current motion did not provide a safe harbor, as required under CCP section 128.7, as discussed above.   The City of Burbank also argues that the motion for sanctions, including the request for expenses and fees by plaintiff has already been heard and decided, as the court affirmatively denied the request for sanctions.  The opposition argues that since the issue of the offending pleading or motion is resolved, defendants would have no opportunity to take corrective action contemplated by the safe harbor provision, so an award of sanctions is not proper.  See Li v. Majestic Industry Hills LLC (2009, 2nd Dist.) 177 Cal.App.4th 585, 591-592.   The Second District in Li, in fact, observed: 

“The defendant may serve a section 128.7 motion seeking sanctions with its opposition papers, but is prohibited by section 128.7 from filing the motion with the court until 21 days after service. Unless the hearing on the underlying challenged motion is continued or an order shortening time to file the section 128.7 motion for sanctions is obtained, the merits of the underlying motion will likely be resolved by the court before the full safe-harbor period has expired.”

Li, at 592-593.

While Li did not involve a situation where sanctions were sought for opposing a CCP section 128.7 sanctions motion, the Second District did affirmatively hold that the burden to ensure that the safe harbor is provided, such as by having the underlying motion continued, or obtaining an order shortening time, would be on the party seeking sanctions:

“By including the safe harbor in section 128.7, the Legislature intended to foster compliance with its provisions and to conserve judicial resources otherwise spent adjudicating a sanctions motion by affording a prescribed period of time during which a party may correct or withdraw a frivolous or improper pleading or motion without any penalty. (See, e.g., Martorana, supra, 175 Cal.App.4th at p. 699, 96 Cal.Rptr.3d 172.) If the merits of the objectionable document are resolved by the court prior to the expiration of the safe harbor period, there is nothing left to correct or withdraw, thereby undermining the remedial purpose of the safe harbor provision. Because compliance with the safe harbor is a prerequisite to recovering sanctions, the burden is appropriately placed on the party seeking the sanctions to ensure the full safe harbor is provided. (SeeMalovec v. Hamrell, supra, 70 Cal.App.4th at pp. 441–442, 82 Cal.Rptr.2d 712.)

What, then, should a party in [moving party’s] position do to preserve its ability to seek sanctions if the other side refuses to correct or withdraw a frivolous or improper motion or pleading? As suggested in one of the most widely used practice guides, [moving party] could have sought a continuance of the underlying hearing or an order shortening time to file its section 128.7 motion (in effect, an order reducing the safe harbor period). (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 9:1203 at p. 9(111)–26 [“Seeking an order shortening the 21–day ‘safe harbor’ period makes sense when sanctionable motion papers are filed by the opposing party and only 16 court days' notice of motion is given.... [¶] Alternatively, you can move to continue the hearing date on the offending motion so as to allow the 21–day safe harbor period to expire.”].) In this case, [moving party] neither moved for a continuance nor sought an order shortening time. 

Li, at 593-594, italics in the original, emphasis added. 

It is plaintiff’s burden here to ensure that the safe harbor period was provided to permit defendant the opportunity to withdraw its original motion for sanctions before that motion was determined on its merits.  This requirement was not done here, and the original motion for sanctions has been determined.    

It also appears in this circumstance that while the motion for sanctions was denied, it was not entirely without basis, as the court had previously found in connection with the previous demurrer that the Notice of Errata filed by plaintiff was not a technically correct way to amend the prior complaint without seeking advance leave of court or obtaining a stipulation.   The court reiterates its conclusion in its previous minute order denying the motion for sanctions by the City of Burbank defendants that the conduct by defendants in refusing to permit plaintiff to correct a pleading rather than force unnecessary law and motion was not within the level of professionalism expected by this court.  Specifically, the court had previously noted:

“Rather than further meeting and conferring, defendants filed a demurrer and motion to strike on September 12, 2022, directed to the Fourth Amended Complaint, not the Revised Fourth Amended Complaint, when defendants knew plaintiff was willing to file a revised pleading. While the submission of the revised pleading via Notice of Errata did not effectively withdraw or ‘appropriately’ correct the errors in the pleading, it evidences plaintiff’s willingness to do so. The court does not condone the practice here of defendants failing to permit the submission of an amended pleading under the circumstances, particularly given the obligation to meet and confer in good faith.”

[Minute Order, 10/28/2022, p. 6 of 8].  

Nevertheless, the motion for sanctions was partially successful in obtaining withdrawals and dismissals on the part of plaintiff, and the court cannot under the circumstances find that the previous motion for sanctions was entirely brought or pursued for an improper purpose.  This current motion for sanctions for opposing that motion accordingly is denied. 

The City of Burbank in opposition to this motion for sanctions seeks sanctions for the expense of opposing the motion for sanctions, arguing that the court may, on its own motion, and during a hearing already in progress, order a party to pay sanctions for a violation of CCP section 128.5.  The argument is that the motion for sanctions is utterly without merit and fatally flawed for failure to provide the safe harbor, and has wasted time and resources.  Relief is evidently sought under CCP section 128.5 to avoid the circumstance that City of Burbank is by this request essentially attempting to do what it is arguing plaintiff may not do here, that is, to obtain 128.7 sanctions without providing the requisite safe harbor.  This approach is inconsistent.   

In any case, the court has some concern that this motion for sanctions was made without establishing a clear legal basis for separately seeking sanctions which were not properly supported in the previous opposition, and after the underlying motion had been determined.  However, the court, as discussed above, recognizes the role of the City of Burbank in contributing to the situation, and also notes that the court did in its previous minute order deny the relief requested by plaintiff “without prejudice” to other legal remedies which may be available for sanctions.   Under the circumstances, the court cannot find that plaintiff’s attempt to correct the showing previously made by bringing this motion for sanctions is so unreasonable in connection with remedying that deficiency that sanctions for opposing it would be warranted.   The request for sanctions in the opposition is denied. 

RULING:

Plaintiff’s Motion for Sanctions Against City of Burbank and its Counsel Rodolfo Aguado III is DENIED.  

Request for sanctions in opposition is DENIED. 

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