Judge: Serena R. Murillo, Case: 20STCV17953, Date: 2022-09-29 Tentative Ruling
Case Number: 20STCV17953 Hearing Date: September 29, 2022 Dept: 29
Linda Ernest
v. Whole Foods Market California, Inc.
Motion for
Sanctions Pursuant to Code of Civil Procedure section 128.7 filed by Defendant
Mrs. Gooch’s Natural Food Markets Inc., erroneously sued as Whole Foods Market
California, Inc.
TENTATIVE
Defendant Mrs.
Gooch’s Natural Food Markets Inc., erroneously sued as Whole Foods Market
California, Inc.’s motion for sanctions is DENIED.
Legal
Standard
CCP section 128.7
states that a court may impose sanctions on a party or attorney that presents a
pleading, petition, motion, or other similar papers in the following
circumstances:
1) the document is 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 not warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
new law.
3) the allegations and other factual
contentions have no evidentiary support;
4) the denials of factual contentions are
not warranted on the evidence.
CCP section 128.7
permits the Court to impose monetary sanctions on an attorney or an
unrepresented party that violates any one of these requirements. (Eichenbaum
v. Alon (2003) 106 Cal App 4th 967, 976.) In addition, section 128.7
does not require a finding of subjective bad faith; instead it requires only
that the Court find that the conduct be objectively unreasonable. (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. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) 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.” (Ibid.) In
either case, to obtain sanctions, the moving party must show the party's
conduct in asserting the claim was objectively unreasonable. (Ibid.) A
claim is objectively unreasonable if “any reasonable attorney would agree that
[it] is totally and completely without merit.” (Ibid.) However, “section
128.7 sanctions should be ‘made with restraint’ [Citation], and are not
mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227
Cal.App.4th 428. at 448.)
After notice and a hearing, a court may impose sanctions on an attorney,
law firm, or party that violates Code Civ. Proc., section 128.7(b), subject to
the “safe harbor” conditions specified in Code Civ. Proc., section 128.7(c). (Id.;
Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 920.) A motion for sanctions under Code Civ. Proc., section 128.7
must be made separately from other motions and “shall describe the specific
conduct alleged to violate subdivision (b).” (Code Civ. Proc., § 128.7(c)(1).) A party seeking sanctions under Code Civ. Proc., section 128.7, follows a two-step procedure. (Optimal,
supra, 221 Cal.App.4th at p. 920.)
First, the moving party serves notice of the motion for sanctions on the
offending party. (Code Civ. Proc., §
128.7(c)(1).) Service of the motion starts a
safe harbor period during which the motion cannot be filed with the court. (Id.)
If the challenged paper, claim, defense, contention, allegation or denial is
not withdrawn or corrected within 21 days, the second step is to file or
present the motion for sanctions to the court (i.e., presentment). (Code Civ.
Proc., § 128.7(c)(2).)
“This permits a party to withdraw a questionable pleading without
penalty, thus saving the court and the parties time and money litigating the
pleading as well as the sanctions request. [Citations.]” (Optimal, supra,
221 Cal.App.4th at p. 920.) “While section 128.7 does allow for reimbursement
of expenses, including attorney fees, its primary purpose is to deter filing
abuses, not to compensate those affected by them. It requires the court to
limit sanctions ‘to what is sufficient to deter repetition of [the
sanctionable] conduct or comparable conduct by others similarly situated.’
[Citations.]” (Id. at pp. 920–921.)
Discussion
Defendant seeks sanctions pursuant to CCP section 128.7 against
Plaintiff and her counsel for filing a frivolous complaint against him.
Defendant requests reimbursement for fees and costs associated with defending
the complaint in the amount of $
$77,280.68.
Procedural Requirements
First, Defendant has not complied with the
safe harbor provision of CCP section
128.7(c)(1) as it served notice of this motion and filed the
motion on the same day, July 25, 2022. Service of the motion starts a safe
harbor period during which the motion cannot be filed with the court. (CCP section 128.7(c)(1).) Accordingly,
Defendant did not provide Plaintiff with a 21-day safe-harbor window to
withdraw the complaint or take corrective action. On this basis alone,
the motion must be DENIED.
Merits
Even if the motion was procedurally sound, Defendant’s arguments
are unavailing. Defendant argues that Plaintiff’s Complaint alleges that Whole Foods negligently
maintained its premises in such a way as to “cause plaintiff to slip on a
fruit, lose her balance and fall to the floor.” (Complaint, ¶ 8).
Plaintiff’s verified discovery responses state that plaintiff “tripped and
fell” at the subject store. Plaintiff then testified at deposition that she
slipped and fell in a sticky substance. (Depo of Plaintiff, pg. 82, lines
12-14; pg. 83, lines 1-19, pg. 84, lines 2-11. Pg. 86, lines 21-23, and
pg. 87, lines 2-4.)
Defendant also argues that prior
to the instant lawsuit, plaintiff was engaged in another personal injury
action involving a trip and fall at Costco, 19STCV02197, represented by
the same counsel. Plaintiff gave deposition testimony in that lawsuit
sworn under the penalty of perjury. During the course of that deposition,
plaintiff was questioned about the alleged slip and fall at Whole Foods, which
is the subject of the instant lawsuit. (Deposition of Plaintiff in the matter Ernest
v. Costco Wholesale Corp. (“Plaintiff’s Costco Depo”), pg. 169, line 19 to
pg. 170, line 8.) When questioned about how the incident occurred,
plaintiff specifically testified that she did not slip or trip on anything and her
knee gave out, causing her to trip and fall. (Id.) Plaintiff also
specifically testified that she did not see anything on the floor that would
have caused her to trip or slip and fall. (Id.)
Defendant also argues that
Plaintiff’s treating physician, Dr. Mealer, was also deposed about what
plaintiff reported to him regarding the circumstances of the subject incident.
During that deposition, Dr. Mealer testified that plaintiff repeatedly told him
that her left knee gave out, causing her to fall on the day of the incident.
(Deposition of Dr. William Mealer, pg. 27, lines 3-21; pg. 35, line 16 to pg.
36, line 7; pg. 36, line 8 to pg. 37, line 12.) Plaintiff did not advise him
that anything else caused her to fall until a week before his deposition, over
two years after the incident had occurred.
In
opposition, Plaintiff argues that Defendant cites to a litany of deposition
testimony; but rather than provide this Court with the actual testimony,
Defendant chooses to summarize, albeit incorrectly, such testimony. Plaintiff
argues she clearly testified
that her shoe got caught as her right knee gave out. She
testified in the Costco deposition at issue as follows:
"Q.
Let's talk about the Whole Foods slip and fall. I have that slip and fall as
occurring on March 3, 2019. Does that comport with your recollection?
A. Yes.
Q. At the
time of the Whole Foods slip and fall, were you working as an Instacart
shopper?
A. Yes.
Q. How did
that slip and fall occur?
A. I was — I
was pushing a shopping cart with my right hand, and I was walking, and my knee
gave out. The toe of my shoe caught the floor as my knee gave out, and I went
flying.
Q. I'm
sorry. What part of your shoe caught the floor?
A. The toe
of my shoe caught the floor as my knee gave out.
Q. So it
wouldn't be the result of any obstruction on the floor at Whole Foods?
A. Not that I saw."
(Plaintiff’s Depo., 169:15-170:8, Exhibit 1.)
Plaintiff
argues that her deposition was taken in this case months after the Costco
deposition. Unlike the questions asked in the Costco deposition, defense
counsel in the current action did not ask "how did that slip and fall
occur." Instead, defense counsel asked:
"Q. And
so what's your testimony here today as to what caused you to fall?
"A. Something sticky on the floor."
(Plaintiff’s depo., Whole Foods action, 82:12-14, Exh. 2.)
The Court finds that the record does not reflect an adequate
basis for a finding that the complaint is frivolous to warrant sanctions of any
kind under Section 128.7, as the Court cannot say the complaint is indisputably
without merit. There is evidence that Plaintiff testified in the Costco case
that her foot was caught on the floor, after her knee gave out, which is not
entirely inconsistent with her foot being caught on a sticky substance, as she
testified in her deposition in this case. In the Costco deposition, Plaintiff
was not asked any further questions regarding whether the fact that her foot
was caught was the cause of her fall, as opposed to her knee giving out. While
Plaintiff states she did not see anything on the floor, that does not rule out
the fact that she may have felt something. Her statement is ambiguous and is
open to interpretation. Thus, the evidence does not conclusively demonstrate
that her knee giving out was the sole cause of her fall as Defendant
represents in its motion. The Court additionally notes that, “section 128.7
sanctions should be ‘made with restraint’ [Citation], and are not mandatory
even if a claim is frivolous.” (Peake v. Underwood (2014) 227
Cal.App.4th 428. at 448.)
Sanctions
Under Code Civ. Proc., section 128.7(c)(1), the Court may award monetary
sanctions to the prevailing party for the reasonable expenses and attorney's
fees incurred in presenting or opposing the motion. Monetary sanctions may be
imposed on a party that seeks relief under Code Civ. Proc., section 128.7, only
if the motion was frivolous or not objectively unreasonable. (Musaelian v. Adams (2011) 197 Cal. App. 4th 1251, 1258.)
The Court also does not find the motion at issue was frivolous as
Plaintiff’s testimony in the Costco case, as discussed above, was vague.
The Court also notes that Plaintiff requests leave to amend the motion.
To the extent Plaintiff seeks leave to amend, it must file a noticed motion
which complies with CCP section 1005 to provide Defendant with adequate time to
file an opposition.
Conclusions
Accordingly, Defendant’s motion for sanctions pursuant to CCP section
128.7 is DENIED.
Moving party is ordered to give notice.