Judge: Robert B. Broadbelt, Case: 21STCV25781, Date: 2024-06-18 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.

Case Number: 21STCV25781    Hearing Date: June 18, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Joe Jennum          

RESPONDING PARTY:       Plaintiff Clark Maloney

Motion for Sanctions

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

EVIDENTIARY OBJECTIONS

The court rules on plaintiff Clark Maloney’s evidentiary objections, filed April 15, 2024, as follows:

            Objections Nos. 1-3 are overruled.

DISCUSSION

Defendant Joe Jennum (“Defendant”) moves the court for an order (1) dismissing all causes of action alleged against Defendant by plaintiff Clark Maloney (“Plaintiff”) in his Complaint, and (2) awarding monetary sanctions in favor of Defendant and against Plaintiff and his attorneys in the total amount of $75,696.06, consisting of $73,087.50 in attorney’s fees and $2,608.56 in costs.  Defendant moves for this relief pursuant to Code of Civil Procedure section 128.7 on the grounds that Plaintiff’s claims are without legal merit and his Complaint was filed for an improper purpose.

The court finds that Defendant has not met his burden to show that he complied with the mandatory safe harbor provision set forth in Code of Civil Procedure section 128.7.  (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 594 [“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”].)

“Notice of [a] motion [for sanctions under 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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”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.’  [Citations.]”  (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 [internal citations omitted].)

Defendant has presented evidence establishing that he served this motion on Plaintiff by email on February 13, 2024.  (Walsh Decl., ¶ 2; Walsh Decl., Ex. A, p. 1 [February 13, 2024 email attaching motion for sanctions].)  Twenty-one days from February 13, 2024, excluding the date of service of the motion, was March 5, 2024.  (Code Civ. Proc., § 12 [“The time in which any act provided by law is to be done is computed by excluding the first day, and including the last . . . .”]; Broadcast Music, Inc. v. Structured Asset Sales, LLC (2022) 75 Cal.App.5th 596, 599 [“When calculating the earliest possible day that a motion for sanctions can be filed, section 12 applies such that the day the motion was served is excluded and the last day is included”].)  The safe harbor period was thereafter extended by two court days for electronic service, i.e., to March 7, 2024.  (Code Civ. Proc., § 1010.6, subd. (a)(3)(B) [“any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days”]; Transcon Financial, Inc., supra, 81 Cal.App.5th at p. 551 [finding that section 1010.6 extended the safe harbor period by two court days].)  

Thus, the court finds, for an electronic service date of February 13, 2024, that (1) the safe harbor period expired on March 7, 2024, and therefore (2) the first day that Defendant could have filed his motion for sanctions was March 8, 2024.  (Broadcast Music, Inc., supra, 75 Cal.App.5th at p. 605 [“A sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires”].)  Defendant filed his motion for sanctions on March 6, 2024, before the safe harbor period expired.

For the reasons set forth above, the court finds that Defendant has not met his burden to show that he complied with the mandatory safe harbor period set forth in Code of Civil Procedure section 128.7 and therefore denies Defendant’s motion.  (Code Civ. Proc., § 128.7 subd. (c)(1); Li, supra, 177 Cal.App.4th at p. 594; Transcon Financial, Inc., supra, 81 Cal.App.5th at p. 551.)

ORDER

            The court denies defendant Joe Jennum’s motion for sanctions.

            The court orders plaintiff Clark Maloney to give notice of this ruling.

IT IS SO ORDERED.

DATED:  June 18, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court