Judge Robert B. Broadbelt, Case Number: 19STCV31868, Date: 2023-10-12 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 19STCV31868, Date: 2023-10-12 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Motion for Attorney’s Fees and Costs Pursuant to Code of Civil Procedure Section 128.7

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

Plaintiff Ricardo Flores (“Plaintiff”) moves the court for an order awarding sanctions in favor of Plaintiff and against defendants Pine Enterprise, LLC, and Tony Chang (“Defendants”) in the amount of $1,760 pursuant to Code of Civil Procedure section 128.7 on the ground that Defendants “intentionally delayed filing their Motion for Summary Adjudication.” (Notice of Mot., p. 2:1-3.) Specifically, Plaintiff appears to contend that Defendants’ second motion for summary adjudication, which was heard by the court and denied on October 12, 2023, was frivolous. (Mot., p. 2:23-25.)

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).)

The court finds that Plaintiff has not met his burden to show that Defendants’ second motion for summary adjudication was either factually frivolous or legally frivolous. Although Plaintiff has argued that “a reasonable attorney would agree” that the motion was without merit due to (1) there having been no additional fact discovery following the court’s denial of the first motion, and (2) various issues taken with the evidence submitted by Defendants, Plaintiff has not presented sufficient evidence or argument showing that Defendants’ motion was not well grounded in fact or not warranted by existing law or a good faith argument for the modification or extension of existing law. (Kumar, supra, 71 Cal.App.5th at p. 1120.) The court further finds that Plaintiff has not presented sufficient evidence or argument showing that Defendants presented their motion for an improper purpose, such as to harass Plaintiff or cause unnecessary delay or a needless increase in the cost of litigation. (Code Civ. Proc., § 128.7, subd. (b)(1).)

Thus, the court finds that Plaintiff has not met his burden to show that Defendants’ second motion for summary adjudication was brought for an improper purpose or was factually or legally frivolous and therefore denies Plaintiff’s motion.

The court denies Defendants’ request for an award of monetary sanctions against Plaintiff pursuant to Code of Civil Procedure section 128.7, subdivision (h), because (1) a request “for sanctions under this section shall be made separately from other motions or requests[,]” and (2) Defendants made their request for sanctions under this subdivision against Plaintiff in their opposition papers (i.e., not separate from other motions).[1] (Code Civ. Proc., § 128.7, subd. (c)(1).)

The court denies plaintiff Ricardo Flores’s motion for attorney’s fees and costs pursuant to Code of Civil Procedure section 128.7.

The court orders defendants Pine Enterprise, LLC and Tony Chang to give notice of this ruling.

[1] The court also notes that Defendants did not establish that they complied with the safe harbor provisions before making such a request. (Code Civ. Proc., § 128.7, subd. (c)(1).)

ricardo flores ; Plaintiff, vs. pine enterprises, llc , et al.; Defendants.	Case No.:	19STCV31868

	Hearing Date:	October 31, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for attorney’s fees and costs pursuant to code of civil procedure section 128.7