Judge: Serena R. Murillo, Case: 21STCV25306, Date: 2023-02-08 Tentative Ruling
Case Number: 21STCV25306 Hearing Date: February 8, 2023 Dept: 29
TENTATIVE
Defendant Rush Truck Leasing, Inc.’s motion for sanctions
pursuant to CCP section 128.7 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
moves for sanctions under CCP section 128.7, arguing that the factual contentions in the compliant
lack evidentiary support and this suit is being prosecuted without a good faith
basis.
Defendant has failed to provide evidence of compliance with the
21-day safe harbor provisions under CCP sections 128.5 and 128.7. While
Defendant argues it served a copy of this notice of motion and motion to
Plaintiff’s counsel on December 13, 2022, the proof of service attached to the
motion indicates the motion was served on Plaintiff on December 16, 2022.
However, the motion was filed on December 21, 2022. Five days is not in
compliance with CCP section 128.7, which requires 21 days. The Court
notes that the letters sent to Plaintiff’s counsel dated March 7, 2022, March 23, 2022, April 22, 2022, July 8,
2022, November 8, 2022, and December 12, 2022 wherein defense counsel explained the basis of its position that
this case is not meritorious against its client and that he would be filing a
motion to dismiss are insufficient to trigger the 21-day period and show
compliance with the provisions as the letters were not formal noticed
motions. (Nolan Decl., Ex. B, D.) As a result, the motion is
denied.
Even assuming arguendo that Defendant had complied with the safe
harbor provisions, the
motion would
still be denied. First, sanctions under CCP section 128.7 are not mandatory. “[S]ection 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.) Second, 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.
The Graves Amendment provides in pertinent part:
(a) In general. An owner of a motor vehicle that rents or leases the
vehicle to a person … shall not be liable under the law of any State … by
reason of being the owner of the vehicle … for harm to persons or property that
results or arises out of the use, operation, or possession of the vehicle
during the period of the rental or lease, if—
(1) the owner … is engaged in the trade or business of renting or leasing
motor vehicles; and
(2) there is
no negligence or criminal wrongdoing on the part of the owner …
(49
U.S.C. section 30106.)
Plaintiff
is entitled to conduct discovery in this matter to see whether he may have had
an independent basis for negligence against Defendant Rush. For example,
Plaintiff may have wanted to investigate whether Rush inspected the equipment
prior to renting it or whether the driver of the tractor trailer was unfit and
Defendant Rush knew of the driver’s unfitness, among other things. Moreover,
the Court notes that discovery was provided to Plaintiff’s counsel in November
of 2022 according to Defendant’s November 8, 2022 letter to Plaintiff, and
thus, Plaintiff’s counsel may still be investigating the merits of the case. If
Defendant is eager to have the case dismissed, it may elect to file a motion
for summary judgment instead.
Conclusion
Accordingly, Defendant’s motion for sanctions
pursuant to CCP section 128.7 is DENIED.
Moving
party is ordered to give notice.