Judge: Richard Y. Lee, Case: 30-2021-01231426, Date: 2023-08-24 Tentative Ruling

Plaintiff, Stephanie Loput (“Plaintiff”), moves for an order awarding monetary sanctions in the amount of $9,580 against Defendant Man Staffing, LLC’s counsel, Rick Martin of Angel City Law, for his bad faith actions and tactics pursuant to Code of Civil Procedure section 128.5(a) and California Rules of Court, rule 2.30.

Plaintiff contends that monetary sanctions in the amount of $9,580 should be imposed against Defendant Man Staffing, LLC’s counsel, Rick Martin of Angel City Law, who has since withdrawn as counsel, for his frivolous conduct, gamesmanship, and unnecessary delays, which includes compensation for all the expenses Plaintiff has incurred that are attributable to his conduct, including the cost of bringing the instant motion and any other expenses attendant upon the delay of the deposition. Plaintiff asserts that Plaintiff planned to file her motion for summary adjudication in March 2023, and so attempted to first notice the deposition of Man Staffing, LLC’s person most knowledgeable (“PMK deposition”) for December 2022 on a date convenient to Man Staffing and Man Staffing’s counsel. Plaintiff provides that she agreed to continue the PMK deposition to a date in January and then to a date in February based on Mr. Martin’s representations that the date certain he had previously given no longer worked, but that Mr. Martin’s representations concerning the scheduling of the deposition were knowingly false as Mr. Martin never informed his client that any PMK deposition notice had been served, or that any PMK deposition had been scheduled. Plaintiff contends that Mr. Martin simply lied to a fellow officer of the court and that he could not possibly have intended the deposition to go forward without ever having cleared the date with or informing his client that a PMK deposition was scheduled such that Mr. Martin’s conduct is objectively unreasonable and frivolous, and were obviously in bad faith and solely intended to cause unnecessary delay. Plaintiff argues that Mr. Martin knew that the deposition had to take place so that Plaintiff could proceed with her dispositive motion, but that his gamesmanship has materially prejudiced Plaintiff, causing unnecessary delay and added litigation expenses, falling short of the standards required by the Rules of Professional Conduct, Rule 4.1.

Plaintiff additionally contends that she attempted to meet and confer with Mr. Martin regarding his frivolous conduct, gamesmanship and resulting unnecessary delays, but that he did not respond. Plaintiff further requests that the Court refer Mr. Martin to the State Bar, specifically the Office of Chief Trial Counsel.

Counsel at issue, Rick Martin, has filed a memorandum of points and authorities in opposition which asserts, in first person voice, that there was never any gamesmanship, bad faith, or ill will on counsel’s part; that there was no frivolousness on counsel’s part; that there was no intent to cause Plaintiff any hardship or prejudice her case; that any delay in taking the deposition or continuances were caused by poor scheduling, calendar conflicts, or miscommunications; that there was uncertainty between counsel and former client Man Staffing LLC as to counsel’s role and whether counsel was to remain as counsel at the time the deposition were being scheduled due to non-payment of retainer fees; and that Counsel did offer to pay for the cancellation fee incurred during to continuing the deposition, and Counsel paid the cancellation fee of $720 on or about April 2023. Counsel provides that he believes that the fair action is to compensate Plaintiff for fees and costs incurred with this motion, that Counsel will be reaching out to Plaintiff’s counsel to discuss this prior to the motion hearing, and that Counsel requests that the Court deny the motion for sanctions.

Code of Civil Procedure section 128.5 states, in part:  “[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).) Code of Civil Procedure section 128.5(b)(2) defines “frivolous” to mean “totally and completely without merit or for the sole purpose of harassing an opposing party.”

“Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard.” (Code Civ. Proc. § 128.5(c).)

The party moving for sanctions has the burden of proving sanctionable conduct. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319-1320.) “If the party seeking sanctions satisfies its burden, the burden of producing evidence shifts to the party opposing the sanctions motion to refute the moving party’s prima facie case. The trial court has the discretion to consider further briefing and evidence before ruling on the motion.” (Id. at p. 1320.) “If the trial court determines sanctions are appropriate, it must determine the type and amount of sanctions and whether to impose sanctions on counsel, the client or both.” (Ibid.)

“The weight of authority requires a showing not only of a meritless or frivolous action or tactic but also of a bad faith taking of the action or tactic. The bad faith requirement does not impose a determination of evil motive and subjective bad faith may be inferred from the prosecution of a frivolous action.” (Childs v. Paine-Webber, Inc. (1994) 29 Cal.App.4th 982, 996.) “Whether an action is frivolous is governed by an objective standard:  any reasonable attorney would agree it is totally and completely without merit. [Citations.] There must also be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned. [Citations.]” (Levy v. Blum (2001) 92 Cal.App.4th 625, 635.) “Section 128.5 requires much more than a party acting with ‘no good reason’ to justify an award of sanctions. There must be showing not only of a meritless or frivolous action or tactic, but also of bad faith. [Citation.]” (Id. at pp. 635-636.) Subjective bad faith applicable under Section 128.5 is “without subjective good faith or honest belief in the propriety or reasonableness of such actions,” or an improper purpose. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135.)

Under Section 128.5, the court order must contain a detailed recital of the circumstances justifying imposition of sanctions. (Levy v. Blum (2001) 92 Cal.App.4th 625, 635; Corralejo v. Quiroda (1984) 152 Cal.App.3d 871, 874.)

Initially, the Court notes that footnote 1 of the instant Motion for Sanctions contends that Mr. Martin has since withdrawn as counsel. However, no evidence is presented to support this assertion, and no substitution of attorney for Defendant, Man Staffing, LLC (“Man Staffing”) appears in the Court’s file. Therefore, it appears from the Court’s file that Mr. Martin still represents Man Staffing.

Plaintiff contends that Mr. Martin engaged in bad faith actions that were frivolous and solely intended to cause unnecessary delay. Plaintiff provides that she attempted to schedule the deposition the PMK for Man Staffing three times on dates certain given by Mr. Martin which were convenient to him and his client, but that Mr. Martin represented that the dates did not work each time. (Declaration of Barbara DuVan-Clarke, ¶¶ 2-7, Exs. A-F.) Plaintiff counsel then states, “I subsequently learned that each of these representations concerning the scheduling of the deposition were knowingly false. New counsel for Defendant MAN, Marc Grismer, indicated that he and his client had never been informed of receiving any PMK deposition notice, and had never been asked to provide dates for such a deposition.” (Id., ¶ 8.) Plaintiff’s counsel states, “On information and belief, Mr. Martin never informed his client that any person most knowledgeable deposition notice had been served, or that any person most knowledgeable deposition had been scheduled.” (Id., ¶ 9.) Plaintiff’s counsel also states, “On information and belief, there was no ‘last minute personal matter’ preventing the deposition in January. Mr. Martin simply lied to me repeatedly.” (Id., ¶ 10.)

No objection to the statements in Plaintiff’s counsel’s declaration have been filed; however, the Court finds that the latter three statements, two of which are made “[o]n information and belief” based on hearsay, are not sufficiently supported by admissible evidence rendering them unreliable and prejudicial to Mr. Martin if he were to be sanctioned based on such statements.

“Trial courts possess some inherent power to exclude objectionable evidence on their own motion, but ‘[i]t has been suggested that this power should be exercised only where evidence is irrelevant, unreliable, misleading, or prejudicial, and that relevant and useful evidence that is merely incompetent under technical exclusionary rules ought to be received in the absence of objection by counsel.’ [Citations.]” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 173, emphasis in original.)

The Court finds that Plaintiff has not met her burden of proving sanctionable conduct, and that the burden does not shift to Mr. Martin. Plaintiff’s Motion for Sanctions against Mr. Martin is DENIED.

Clerk to give notice.