Judge: Robert B. Broadbelt, Case: 21STCV37377, Date: 2022-09-09 Tentative Ruling

Case Number: 21STCV37377    Hearing Date: September 9, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Billy Earley

RESPONDING PARTY:       Defendants Keith Landrum and Landrum Law Firm, LLP

Plaintiff’s Motion for Sanctions

The court considered the moving papers filed in connection with the motion for sanctions.  No reply papers were filed.

The court notes that, although an opposition was filed, there is no proof of service establishing that it was served on plaintiff Billy Earley.  The opposition was required to be filed and served at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  The court therefore disregards the opposition filed by defendants Keith Landrum and Landrum Law Firm, LLP for failing to provide evidence that plaintiff Billy Earley was timely served with their opposition papers.

DISCUSSION

Plaintiff Billy Earley (“Plaintiff”) moves the court for an order awarding sanctions against (1) defendants Keith Landrum and Landrum Law Firm, LLP (“Defendants”) and (2) Defendants’ counsel of record, Leslie V. Amponsah, pursuant to Code of Civil Procedure section 128.7.  Plaintiff seeks sanctions and “layperson fees” in the sum of $4,500 on the ground that Defendants brought a frivolous motion to strike portions of Plaintiff’s First Amended Complaint.  (Motion, p. 1, ¶ 1.)

The court denies Plaintiff’s motion for the following reasons.  (Code Civ. Proc., § 128.7.)

First, the court finds that Plaintiff failed to submit competent evidence establishing that he complied with the safe harbor provision set forth in section 128.7.  A party seeking sanctions under section 128.7 “must serve the motion on the opposing party without filing or presenting it to the court[,]” which initiates a 21-day hold or safe harbor period.  (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 124; Code Civ. Proc., § 128.7, subd. (c)(1).) 

Although Plaintiff states in his declaration that Defendants were served with Plaintiff’s motion on January 20, 2022, Plaintiff (1) did not state that he was the one who served Defendants, and instead generally stated that Plaintiff “had” Defendants served, and (2) did not file a Proof of Service reflecting that Defendants were served on that date.  (Earley Decl., ¶ 3 [“I had Defendants…served Plaintiff’s Notice of Motion and Motion for Sanctions…by certified mail”].)  The only Proof of Service submitted in connection with Plaintiff’s motion establishes that Defendants were served with the notice of motion and motion on March 25, 2022—three days before Plaintiff’s motion was filed with the court.  (Mot., pp. 19-20.)  Plaintiff was required to submit a valid Proof of Service demonstrating that Defendants were served in compliance with section 128.7, subdivision (c)(1), no later than five court days before the September 9, 2022 hearing.  (Cal. Rules of Ct., rule 3.1300, subd. (c).)  Based on the facts set forth above, the court finds that Plaintiff failed to submit competent evidence demonstrating that Defendants were served with Plaintiff’s motion 21 days before this motion was filed, and therefore denies Plaintiff’s motion for failing to comply with the safe harbor requirement.  (Code Civ. Proc., § 128.7, subd. (c)(1).)

Second, the court finds that Plaintiff failed to meet his burden of establishing that defense counsel violated section 128.7, subdivision (b).  Specifically, the court finds that Plaintiff has failed to establish that Defendants’ motion to strike was (1) frivolous and not warranted by existing law, or (2) filed for an improper purpose.  (Code Civ. Proc., § 128.7, subds. (b)(1), (b)(2), (c); Motion, p. 5, ¶¶ 18, 21, p. 6, ¶¶ 24-29.)  

Finally, the court finds that Plaintiff’s request for sanctions against Defendants is improper.  “[U]nder section 128.7, only an attorney or unrepresented party may be sanctioned.  It does not authorize sanctions against the represented party.”  (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221 [emphasis in original]; Levy v. Blum (2001) 92 Cal.App.4th 625, 637.)  As noted by Plaintiff, Defendants are represented by attorney Leslie V. Amponsah.  (Notice of Motion, p. 1:5-6.)  In addition, section 128.7 further provides that “[m]onetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).”  (Code Civ. Proc., § 128.7, subd. (d)(1).)  Thus, even if Plaintiff had met his burden of establishing that defense counsel presented an unwarranted and legally frivolous argument in Defendants’ motion to strike, Plaintiff is barred from obtaining monetary sanctions against Defendants based on defense counsel’s filing of Defendants’ motion to strike that was allegedly not warranted by existing law.  (Ibid.)

Based on the evidence and argument presented by Plaintiff in his motion and supporting papers, the court finds that Plaintiff has not met his burden of establishing that (1) he complied with the statutory safe harbor provision, and (2) sanctions are either authorized or warranted against Defendants and defense counsel under Code of Civil Procedure section 128.7.

ORDER

The court denies plaintiff Billy Earley’s motion for sanctions.  (Code Civ. Proc., § 128.7.)

The court orders defendants Keith Landrum and Landrum Law Firm, LLP to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 9, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court