Judge: Ronald F. Frank, Case: 23TRCV00017, Date: 2023-12-07 Tentative Ruling
Case Number: 23TRCV00017 Hearing Date: March 1, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: March 1, 2024¿¿
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CASE NUMBER: 23TRCV00017
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CASE NAME: John Doe; John T.R Doe v. Mason
Swan Lewis, et al.
MOVING PARTIES: Defendant,
Mason Swan Lewis ¿
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RESPONDING PARTY: Plaintiff, John Doe
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TRIAL DATE: Not Set
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MOTION:¿ (1)
Motion for Terminating Sanctions
(2)
Motion for Monetary Sanctions
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Tentative Rulings: (1) Motion for
Terminating Sanctions is DENIED
(2)
Motion for Monetary Sanctions is DENIED
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I. BACKGROUND¿¿
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A. Factual¿¿
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On
January 4, 2023, Plaintiff, John Doe, by and through his Guardian Ad Litem,
John T.R. Doe filed a Complaint against Defendant, Mason Swan Lewis, and DOES 1
through 20. The Complaint alleges causes of action for: (1) Invasion of
Privacy; (2) Constructive Invasion of Privacy; (3) Intrusion into Private
Affairs; (4) Intentional Infliction of Emotional Distress; and (5) Negligence.
The
Complaint is based on the following set of facts: On or about February 6, 2022,
Plaintiff JOHN DOE and his father went to the Manhattan Country Club, of which
they are members. After exercising at the club, Plaintiff went to the men's
restroom and entered a stall to use the bathroom. While he was using the
bathroom, Plaintiff noticed that another individual, Defendant, entered the
bathroom and entered the stall directly next to Plaintiffs stall. Shortly
thereafter, JOHN DOE noticed a cell phone slide between the stalls multiple
times, seemingly taking pictures or videos of DOE using the bathroom. Upon
realizing what was happening, Plaintiff exclaimed "Creep!" and heard
LEWIS run out of the bathroom. When Plaintiff exited the bathroom, he spoke
with a club attendant who had seen Defendant flee from the bathroom. Plaintiff
and his father called the Manhattan Beach Police, who responded to the scene
and performed an investigation. Law enforcement confirmed that the perpetrator
was Defendant. Upon executing a search warrant of LEWIS' cell phone, the police
found a number of videos that LEWIS had taken of young men at the club,
including a video of Plaintiff using the bathroom. Plaintiff is informed and
believes that Defendant has been criminally charged for his conduct.
Defendant
now files a motion for terminating sanctions and monetary sanctions, contending
that a letter sent from Plaintiff’s counsel on June 6, 2022 contained
extortionate threats against him, and that Plaintiff brought a frivolous claim
against him when the civil complaint alleged that he “was the victim…of the
distribution of sexually explicit materials.”
B. Procedural¿¿
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On January 17, 2024,
Defendant filed a Motion for Terminating and Monetary Sanctions. On February
15, 2024, Plaintiff filed an opposition brief. On February 23, 2024, Defendant
filed a reply brief.
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¿II. ANALYSIS¿
Preliminarily, this Court notes that
it is absolutely unacceptable for Defendant to attach exhibits in a case
involving a minor, but fail to redact his name. This case, from the beginning,
has identified the minor child as “John Doe.” This Court requires that such
exhibits be redacted, and also requires that any future filings by Defendant
ENSURE that these documents are redacted.
A.
Motion
for Monetary Sanctions
Legal Standard
Code of Civil Procedure section 128.5 permits a trial court to
“order a party, a 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, subd. (a).) Actions or tactics
include, but are not limited to, filing or opposing motions, complaints,
answers, or other responsive pleadings. (Code Civ. Proc., § 128.5, subd.
(b)(1).) “ ‘Frivolous’ means totally and completely without merit or for the
sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd.
(b)(2).) Bad faith is determined using a subjective standard. (In re
Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 139,
134-35.)
Expenses pursuant to Section 128.5 cannot be imposed unless
noticed in a party’s moving or responding papers, or on the court’s own motion
after providing the offending party notice and an opportunity to be heard.
(Code Civ. Proc., § 128.5, subd. (c).) An order imposing expenses must be in
writing and must recite in detail the action, tactic, or circumstances
justifying the order. (Id.)
Discussion
Preliminarily, the Court is not
persuaded by Defendant’s arguments as they pertain to Code of Civil Procedure §
128.5. Here, Defendant argues that he should be awarded monetary sanctions for
a letter sent by Plaintiff’s counsel on July 6, 2022. The email from
Plaintiff’s counsel was in response to an email sent by Defendant, Mason Swan
Lewis, and reads: “…Your email below suggests you still have access to the Bay
Club (MB) and that you intend to frequent the Club. I will put an end to that
through this lawsuit and other means.” Defendant argues that this email was a
“extortion” under California Penal Code § 523. Before even discussing the
possibility of whether or not this was extortion, Defendant – choosing to move
under Code of Civil Procedure § 128.5 -- would need to meet the requirements
under that statute. As noted above, section 128.5 applies to “actions or
tactics, made in bad faith, that are frivolous or solely intended to cause
unnecessary delay.” (Code Civ. Proc., § 128.5(a).) “Actions or tactics”
include, but are not limited to, the making or opposing of motions or the
filing and service of a complaint, cross-complaint, answer, or other responsive
pleasing.” (Code Civ. Proc., § 128.5(b)(1).)
Here, Defendant appears to have
misunderstood this portion of the statute. There are no arguments as to why the
letter, sent in response to an email from Defendant himself, was an “action or
tactic” that per Section 128.5 is limited to documents filed with the court and
/ or service of the same. A letter or an
email does not fit into the statutory scheme.
The Court invites either side to cite precedents bearing on the issue of
whether a letter as distinct from a pleading can be the subject of a Section 128.5
sanction. Defendant attempts to argue
that this was a settlement demand, in bad faith, because of the phrase: “I will
put an end to that through the lawsuit and other means.” The Court does not
read this, as Defendant does, as a settlement demand. As such, the Court does
not believe that Defendant may move for monetary sanctions on the grounds that
it has not sufficiently brought a motion under Code of Civil Procedure § 128.5.
B.
Motion
for Terminating Sanctions
Legal Standard
An attorney or unrepresented party who presents a
motion to the court makes an implied certification as to its legal and factual
merit, which is subject to sanctions for violation of this certification under
Code of Civil Procedure section 128.7. (Murphy v. Yale Materials Handling
Corp. (1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for
conduct that violates any one of the requirements set forth in Code of Civil
Procedure section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106
Cal.App.4th 967, 976.)
Code of Civil Procedure section 128.7, subdivision (b)
provides:
(b)¿By presenting to the court, whether by signing,
filing, submitting, or later advocating, a pleading, petition, written notice
of motion, or other similar paper, an attorney or unrepresented party is
certifying that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances, all of the
following conditions are met:
(1)¿It is not being presented
primarily for an improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation.
(2)¿The claims, defenses, and other
legal contentions therein are warranted by existing law or by a non-frivolous
argument for the extension, modification, or reversal of existing law or the
establishment of new law.
(3)¿The allegations and other
factual contentions have evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.
(4)¿The denials of factual
contentions are warranted on the evidence or, if specifically so identified,
are reasonably based on a lack of information or belief.
Only “an attorney or unrepresented party may be
sanctioned” under the statute. (In re Marriage of Reese & Guy (1999)
73 Cal.App.4th 1214, 1221.)
“Under section 128.7, a court may impose sanctions if
it concludes a pleading was filed for an improper purpose or was indisputably
without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016)
244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well
grounded in fact’ and 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.] 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.’ [Citations.]” (Id.) No showing of bad faith is required. (In
re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p.
1221.)
“The California Legislature essentially sought to replicate rule
11 [of the Federal Rules of Civil Procedure] when it enacted section 128.7.” (Musaelian
v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law
construing rule 11 is persuasive authority on the meaning of Code of Civil
Procedure section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156,
167.) Under rule 11, even though an action may not be frivolous when it is
filed, it may become so if later-acquired evidence refutes the findings of a
prefiling investigation and the attorney continues to file papers supporting
the client's claims. (See Childs v. State Farm Mutual Automobile Insurance
Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a
result, a plaintiff's attorney cannot “just cling tenaciously to the
investigation he had done at the outset of the litigation and bury his head in
the sand.” (Id. at 1025.)
In addition, Code of Civil Procedure section 128.7
“contains a safe harbor provision. It requires the party seeking sanctions to
serve on the opposing party, without filing or presenting it to the court, a
notice of motion specifically describing the sanctionable conduct. Service of
the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.]
During this time, the offending document may be corrected or withdrawn without
penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.]
By mandating a 21-day safe harbor period to allow correction or withdrawal
of an offending document, section 128.7 is
designed to be remedial, not punitive. [Citation.]” (Li v. Majestic
Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.) (Emphasis
added.)
Discussion
Here, Defendant argues that
Plaintiff’s claim against him is frivolous alleged in his general allegations
that he was the victim of the distribution of sexually explicit materials.
(Complaint, ¶ 1.) Defendant notes that all five causes of action alleged by
Plaintiff are viable upon an allegation that Defendant took pornographic images
of Plaintiff and distributed them. Defendant argues that this is frivolous
because the Manhattan Beach Police Department only charged him with Penal Code § 647(d) and (j)(2). Thus,
Defendant argues that this acknowledges Plaintiff’s understanding that the
evidence obtained by the Police Department could not corroborate anything more
than misdemeanor invasion of privacy and loitering. Defendant argues that if
Plaintiff’s allegations were trye, Defendant would have been faced with a
plethora of felony charges, including, but not limited to, California Penal Code
§ § 311.1 18 [ distribution of obscene matter], 311.3 [ sexual exploitation of
a child], 311.4 [ unlawful use of a 19 minor], 311.5 [ unlawful creation or
promotion of obscene matter], 311.11 [ unlawful possession of 20 obscene matter
knowing it depicts a person under age of 18 years engaging in or simulating
sexual 21 conduct], and 647, subdivision G)(4) [unlawful distribution of sexual
materials].
However, this Court notes, as did
Plaintiff, that each of the causes of action do not require the distribution of
sexually explicit materials. In fact, this is not even a cause of action
identified by Plaintiff. The only discussion of “sexually explicit materials”
is in the first paragraph, and is confined to the one phrase in the middle of
the first general allegation.
A cause of action
for distribution of private sexually explicit materials was not pleaded in the
Complaint, and would require the proving that Defendant distributed sexually
explicit materials, but that none of the pleaded causes of action require such.
Further, in opposition, Plaintiff argues that the evidence, including
Defendant’s own testimony validate the pleaded fact that he distributed the
video of Plaintiff. Plaintiff contends Defendant’s testimony asserts that the
video was involuntarily loaded onto his desktop computer and that he did not
intend to save it. However, Plaintiff notes that in Defendant’s deposition he
left the club on the day of the incident, went on to his desktop computer,
found the video that he had made of John Doe using the bathroom, and named the
video using Plaintiff’s first name. Further, even if it is true that prior to
deleting a video on Defendant’s desktop, he named the file by the name of the
person in the video, in this case, John Doe’s first name, Plaintiff asserts
that the video was found by the police on an external hard drive is “distribution.”
Although a cause of action, or criminal charge of distribution may require
distribution to others, the term distribution can also mean to spread out or
scatter. Thus, an argument can be made that the scattering or spreading of the
devices or hard drives this video was saved on, despite Defendant asserting
that there was no hard drive and at first noting he immediately deleted the
video from his phone.
In order to
obtain such sanctions that Defendant seeks under section 128.7, 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. The Court does not believe that Defendant has shown this requirement.
The inclusion of five words found in the Complaint, and not required by any of
the causes of action, or even plead as its own cause of action is not grounds
for termination of the entire Complaint. As such, the Court will not issue
terminating sanctions as requested by Defendant which would effectively dismiss
the entire Complaint.
A dispositive
motion or some other evidentiary hearing such as a trial is the time to test whether
allegations have factual support. While the
Court appreciates the principle of zealous advocacy, a sanctions motion is not
the time or place for the Court to make determinations as to whether an
allegation in a Complaint is false, fraudulent, or mistaken.
Plaintiff’s
Request for Sanctions in Opposition
Plaintiff argues that the bringing
of this motion was frivolous. The Court disagrees. As such, the Court will not
award sanctions at this time.
IV. CONCLUSION¿¿
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For the foregoing reasons, Defendant’s
motion for issue sanctions and monetary sanctions is DENIED.
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Plaintiff is ordered to give
notice.¿¿¿¿
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