Judge: Robert B. Broadbelt, Case: 19STCV20944, Date: 2023-05-22 Tentative Ruling

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Case Number: 19STCV20944    Hearing Date: May 22, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Carlton Cuse        

RESPONDING PARTY:       Plaintiff Dan Sackheim

Motion for Sanctions

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court rules on defendant Carlton Cuse’s evidentiary objections to the declaration of Dan Sackheim as follows:

Objection Nos. 1 and 3-5 are overruled.

Objection No. 2 is sustained.

DISCUSSION

Defendant Carlton Cuse (“Defendant”) moves the court for an order imposing nonmonetary sanctions against plaintiff Dan Sackheim (“Plaintiff”) by striking Plaintiff’s Complaint against Defendant pursuant to Code of Civil Procedure section 128.7.  Defendant requests this relief on the grounds that Plaintiff’s Complaint is without factual or legal merit and was filed for the improper purpose to harass Defendant.

Code of Civil Procedure “[s]ection 128.7 applies only in limited circumstances.  It ‘authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motion or similar papers.’  [Citation.]  Under that authority, trial courts may issue sanctions, including monetary and terminating sanctions, against a party for filing a complaint that is legally or factually frivolous.”  (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120 [internal citation omitted].)  “A claim is factually frivolous if it is ‘ “not well grounded in fact” ’ and it 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.]’  [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.”  [Citation.]’”  (McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 1205 [internal citation omitted].)  Sanctions under this section “may consist of, or include, directives of a nonmonetary nature . . . .”  (Code Civ. Proc., § 128.7, subd. (d).)

First, as a thresholder matter, the court finds that Defendant has complied with the safe harbor provision.

A motion for sanctions made pursuant to section 128.7 “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, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”  (Code Civ. Proc., § 128.7, subd. (c)(1).)  “[T]he law requires strict compliance with the safe harbor provisions.  [Citation.]  Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’”  (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551.)  

Defendant electronically served Plaintiff with this motion on March 24, 2023, and filed it with the court on April 20, 2023.  Thus, Defendant filed the pending motion after the 21-day safe harbor period (plus 2 court days for electronic service) expired.  (Code Civ. Proc., § 128.7, subd. (c)(1), § 1010.6(a)(3)(B).)

The court notes that Plaintiff contends that, because Defendant’s original motion did not comply with the safe harbor provision, Defendant is not permitted to cure this defect by withdrawing the original motion and refiling the pending motion.  However, Plaintiff has not cited any binding authority supporting this position.  The court therefore finds that Defendant has timely filed this motion for sanctions pursuant to the safe harbor provision set forth in section 128.7.

Second, the court finds that Defendant has not met his burden to show that Plaintiff’s claims against him are “presented primarily for an improper purpose, such as to harass” Defendant.  (Code Civ. Proc., § 128.7, subd. (b)(1).)  Defendant has not submitted any evidence or argument showing that Plaintiff filed this action against him for such a purpose.

Third, the court finds that Defendant has not met his burden to show that Plaintiff’s Complaint is factually or legally frivolous.  (Code Civ. Proc., § 128.7, subds. (b)(2), (b)(3).)

In his operative complaint, Plaintiff alleges two causes of action against Defendant for  (1) negligence, and (2) premises liability.  “The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)  “‘The elements of a cause of action for premises liability are the same as those for negligence.’”  (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.)  ““However, ‘[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.’”  (Sabetian v. Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1071.)

Defendant contends that Plaintiff’s causes of action for premises liability and negligence fail as a matter of law because (1) Defendant did not own, lease, occupy, or control the subject property, and Plaintiff cannot produce any evidence to the contrary, and (2) Defendant did not owe Plaintiff a duty of care.

In support of his motion, Defendant presents his own declaration, in which he states that (1) he was one of the writers and directors of Jack Ryan, but was not involved in the day-to-day planning or execution of Plaintiff’s day-to-day filming; (2) he did not have knowledge, oversight, or approval of Plaintiff’s filming plan; (3) he was not in Morocco when Plaintiff’s slip and fall accident occurred; (4) he does not own, operate, lease, or otherwise control the parking lot where the accident occurred; (5) he did not have any employees present at the scene of the accident and did not employ the individual Graham Roland; (6) he did not have any direct responsibility for safety on the set of Jack Ryan; (7) he did not manufacture, supply, or distribute the apple boxes that constitute the alleged dangerous condition; and (8) he did not employ Plaintiff at the time of the accident.  (Barcena Decl., Ex. N, Cuse Decl., ¶¶ 5-6, 8-11; FAC ¶¶ 13, 18, 23 [describing dangerous condition to be the wooden platform].)

Defendant also submits (1) Plaintiff’s deposition transcript showing that Plaintiff testified that, on the day of the subject incident, Defendant was not Morocco, and (2) Plaintiff’s factually devoid discovery responses, which set forth only general facts about Defendant’s liability and do not expressly state specific facts regarding Defendant and his control over the subject property.  (Barcena Decl., Ex. E, Pl. Dep., p. 148:18-21; Barcena Decl., Ex. J, pp. 2:4-19 [Plaintiff’s factually devoid response to Special Interrogatory No. 48, which requested Plaintiff to “[s]tate all facts that support [his] contention that [Defendant] owned, operated, controlled, supervised, inspected, leased, maintained, designed, constructed, repaired, and/or managed the [subject premises] at the time of the” subject incident], pp. 20:6-23:17 [Plaintiff’s factually devoid response to Special Interrogatory No. 57, which requested Plaintiff to “[s]tate all facts that support [his] contention that [Defendant] had a duty to exercise reasonable care for the safety of Plaintiff in” owning and controlling the subject premises].)

In opposition, Plaintiff contends that his claims are legally sound and supported by the evidence.  Plaintiff submits evidence showing that Defendant’s involvement in Jack Ryan extended beyond his retention as a writer and director, including various articles and sources identifying Defendant as an executive producer and co-showrunner for the series.  (Schwimer Decl., Ex. A [Prime Video credits listing Defendant as executive producer], Ex. B [Amazon article stating that Jack Ryan was “set to be . . . executive produced by” Defendant], Ex. C [Skydance “about” page listing Defendant in cast and crew section], Ex. E [Amazon article naming Defendant as executive producer and co-showrunner].)  Plaintiff also submits the declaration of his counsel, who states that he reviewed interviews given by Defendant in which Defendant stated that (1) he was engaged in “the whole process of Jack Ryan,” including “doing all the day-to-day showrunning with Graham and being boots on the ground in Morocco[,]” (2) as showrunner, “you have to put your focus on the well-being and nurturing of all the people who are working on your show.”  (Schwimer Decl., ¶ 4.)  Further, Plaintiff states in his declaration that Defendant was the executive producer and showrunner of Jack Ryan, and thus was involved in the day-to-day planning or execution in Plaintiff’s filming, shared in the ultimate responsibility for the safety of the set, and had oversight of everyone working on set.  (Sackheim Decl.,¶¶ 5-6.)

The court finds that Defendant has not shown that Plaintiff’s claims against Defendant are legally or factually frivolous because Defendant has not shown, based on the evidence submitted in connection with this motion, that Plaintiff’s conduct in asserting his negligence and premises liability claims was objectively unreasonable.  (Kumar, supra, 71 Cal.App.5th at p. 1120.)

As set forth above, “[a] claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit.”  (Kumar, supra, 71 Cal.App.5th at p. 1120 [internal quotations omitted].)  Here, Plaintiff has submitted evidence showing that          (1) Defendant acted as executive producer and co-showrunner of Jack Ryan, and (2) as executive producer and co-showrunner, Defendant was involved in the day-to-day filming of Jack Ryan and was responsible for the safety of the set.  (Schwimer Decl., Exs. A, B, E; Sackheim Decl., ¶¶ 5-6.)  The court finds that a nonfrivolous argument could be made that Defendant, as a showrunner and executive producer that had a responsibility to maintain the safety of the set on which Plaintiff was injured and to oversee those working on site, (1) owed Plaintiff a legal duty of care under a general negligence theory, and (2) exercised some degree of control over the property, the safety of the set, and the people working on site, such that Defendant owed Plaintiff a duty of care under a premises liability theory and may have had notice of the alleged dangerous condition.  (Peredia, supra, 25 Cal.App.5th at p. 687 [elements of general negligence claim]; Sabetian, supra, 57 Cal.App.5th at p. 1071 [“A defendant’s control over property is sufficient to create a duty of care owed to persons using the property”].)

Thus, the court finds, based on the evidence submitted in connection with this motion, that (1) Plaintiff’s claims against Defendant are “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law[,]” and (2) Plaintiff’s “allegations and other factual contentions have evidentiary support or . . . are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  (Code Civ. Proc., § 128.7, subds. (b)(2), (b)(3).)

The court notes that it makes no finding as to whether Plaintiff will prevail on his claims against Defendant.  Instead, the court finds that, for purposes of this motion, a nonfrivolous argument can be made as to Defendant’s liability.  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448 [“when determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument” and instead turns on the objective test of reasonableness; “[t]hus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions”].)

Finally, Plaintiff requests that the court award him attorney’s fees in the amount of $31,840.  “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.”  (Code Civ. Proc., § 128.7, subd. (c)(1).)  The court finds that the circumstances presented do not support the imposition of sanctions and therefore exercises its discretion to deny Plaintiff’s request for an award of monetary sanctions.

ORDER

The court denies defendant Carlton Cuse’s motion for sanctions.

The court orders plaintiff Dan Sackheim to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 22, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court