Judge Serena R. Murillo, Case 21STCV05760 2023-04-03 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV05760, Date: 2023-04-03 Tentative Ruling

Case Number: 21STCV05760 Hearing Date: April 3, 2023 Dept: 29

TENTATIVE

The Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7 filed by Plaintiff Elham Shirazi is GRANTED. Defendant Bluestar Trucking LLC and counsel of record Jennifer T. Tseng, H. Daniel Burrows, and Carmen R. Selame, are ordered to pay monetary sanctions in the amount of $810, jointly and severally, within 30 days of this order. Defendant’s request for sanction is DENIED.

Legal Standard

Code of Civil Procedure 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.

Code of Civil Procedure 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.)

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (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 section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) 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. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.) 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.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client’s claim was well-grounded in fact and to take into account the adverse party’s evidence. (Id.)

In addition, Code of Civil Procedure section 128.7(c)(1) requires that a motion for sanctions under Code of Civil Procedure section 128.7 be made separately from other motions and that notice of the motion must be served, but not filed with the Court, unless, within 21 days after service of the motion, the challenged paper is not withdrawn. This 21-day time period is known as a “safe harbor” period and its purpose is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591. 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. (Id.)

Discussion

Plaintiff moves the court to impose monetary sanctions in the amount of $10,690 against Defendant and counsel of record Jennifer T. Tseng, H. Daniel Burrows, and Carmen R. Selame, for pursuing the motion for reconsideration.

Procedural Requirements

First, Plaintiff has complied with the safe harbor provision of Code of Civil Procedure section 128.7(c)(1) as it served notice of this motion on January 10, 2023, and filed the motion after 21 days, on February 2, 2023. Accordingly, Plaintiff provided Defendant with a 21-day safe-harbor window to withdraw the complaint or take corrective action.

Merits

Plaintiff contends Defendant’s motion for reconsideration violated Section 128.7(b) as the motion was not supported by existing law under Code of Civil Procedure section 1008.

As previously noted by the court in denying Defendant’s motion for reconsideration, Defendant presented no new facts that it could not have presented in its opposition to Plaintiff’s motion to compel deposition.

Defendant argues it brought its Motion for Reconsideration in good faith, and honestly disclosed the basis for the motion. There were additional facts brought in the motion not disclosed in opposition to plaintiff’s motion to compel defendant’s ex- employee. While defendant noted at oral argument for the motion to compel the deposition, that Hailey was no longer employed by defendant, the Court stated it could not consider that fact as it was not part of the opposition to plaintiff’s motion to compel. Defendant therefore filed the motion for reconsideration with new and additional facts highlighting that Mr. Hailey was no longer employed by defendant, Bluestar Trucking, Inc.

However, as previously stated by this Court, these are not new or additional facts that could not have been presented earlier. “[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690].) “In addition, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance.” (Ibid. [citing New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213].) Where a party moving for reconsideration of an interim order fails to raise new or different facts or law, the Court lacks jurisdiction to consider the motion. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.) Further, the fact that the Court did not consider the argument made for the first time at oral argument is not a new or different fact. A “new” or “different” fact or circumstance wholly collateral to the merits of the initial motion is not sufficient to warrant reconsideration. (Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500.)

The court finds that Defendant’s counsel has violated Code of Civil Procedure section 128.7(b)(2) in proceeding with a motion for reconsideration which had no basis in the law at the time it was filed. The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup.Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198. The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (emphasis added) New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-213. A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; California Correctional Peace Officers Ass'n v. Virga (2010) 181 Cal.App.4th 30, 47, fn. 15.)

Defendant argues there was no bad faith on its part and “[t]here must also be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned.” (Sahafzadeh-Taeb v Taeb (In re Sahafzadeh-Taeb) 39 Cal.App.5th 124, 135.) However, that statement in In re Sahafzadeh-Taeb concerned the court’s interpretation of the standard under Code of Civil Procedure section 128.5, and not section 128.7. (Id.) The court there specifically noted that Code of Civil Procedure section 128.5 has a more stringent standard, requiring subjective bad faith, than the lesser standard applicable to Code of Civil Procedure section 128.7, requiring only that the conduct was objectively unreasonable. (Id., at 128.) As such, subjective bad faith is not required to be shown here as this is a motion for sanctions under Code of Civil Procedure section 128.7.

Monetary sanctions, if warranted, may be awarded for reasonable expenses and attorney’s fees incurred in presenting or opposing the motion for sanctions. (Code Civ. Proc., § 128.7, subd. (c)(1); Eichenbaum v. Avalon (2003) 106 Cal.App.4th 967, 977.) However, sanctions imposed for violation of Section 128.7, subdivision (b), “shall be limited to what is sufficient to deter repetition of this conduct or similar conduct by others similarly situated.” (Code Civ. Proc., § 128.7, subd. (d).) (Emphasis added.)

Counsel attests that he has spent 11 hours preparing for this motion, then an additional 5 hours for the motion for reconsideration. However, the time spent on the motion for reconsideration is not relevant for sanctions under Code Civ. Proc., § 128.7, subd. (c)(1). Only the time spent on this motion for sanctions is relevant. (Eichenbaum v. Avalon (2003) 106 Cal.App.4th 967, 977.) In addition, while Plaintiff seeks costs for the first certificate of non-appearance, those costs were already awarded in the motion to compel the deposition and thus, would be duplicative. Next, Plaintiff seeks costs for the second certificate non-appearance, however, again, those costs were not incurred in presenting this motion, and cannot be awarded here. Moreover, the Court finds Plaintiff’s request for 11 hours of attorney time excessive, and unreasonable. The Court finds three hours of attorney time at $250 per hour, plus $60 in filing fees for this motion, to be reasonable to achieve the goal of deterrence. As such, the court imposes sanctions against Defendant and counsel of record Jennifer T. Tseng, H. Daniel Burrows, and Carmen R. Selame, jointly and severally, in the amount of $810, to be paid within 30 days of this order.

Defendant requests sanctions against Plaintiff under Code of Civil Procedure section 128.5(f)(1)(a)(C), however, as discussed above, this motion was not brought under Code of Civil Procedure section 128.5. The request is therefore denied.

Conclusion

Based on the foregoing, the Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7 filed by Plaintiff Elham Shirazi is GRANTED. Defendant Bluestar Trucking LLC and counsel of record Jennifer T. Tseng, H. Daniel Burrows, and Carmen R. Selame, are ordered to pay monetary sanctions in the amount of $810, jointly and severally, within 30 days of this order. Defendant’s request for sanction is DENIED.

Moving party is ordered to give notice.