Judge: Steven A. Ellis, Case: 23STCV21931, Date: 2024-04-12 Tentative Ruling

Case Number: 23STCV21931    Hearing Date: April 12, 2024    Dept: 29

Defendant’s Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7

Tentative

The motion is granted in part.

Background 

Plaintiff Lesby Ochoa (“Plaintiff”) alleges that she was injured on September 12, 2021, at a location near 5200 Zoo Drive in Griffith Park when she tripped and fell on uneven and damaged pavement.  On September 12, 2023, filed the complaint in this action against American Southwestern Railway Association, Inc. (“Defendant”) and Does 1 through 100, asserting causes of action for general negligence and premises liability.  Defendant filed an answer on February 2, 2024.

Previously, Plaintiff, represented by the same counsel, filed a similar complaint on October 14, 2022, seeking to recover for what appears to be the same injury against GP Rah Enterprises Inc. and Does 1 through 100, under Case No. 22STCV33609.  (Torres-Brito Decl., ¶ 2; Request for Judicial Notice [“RJN”], Exh. 1.)  After Plaintiff was informed that the sidewalk at the location on which the accident occurred was owned and maintained by the City of Los Angeles, that case was dismissed with prejudice on September 13, 2023.  (Torres-Brito Decl., ¶¶ 3-4; RJN, Exh. 2.)

On December 6, 2023, Defendant sent a letter to Plaintiff that (among other things) stated that there was no merit in any claim against Defendant, requested that Plaintiff dismiss the claims in the case against Defendant, and advised that Defendant would seek sanctions under Code of Civil Procedure section 128.7 if Plaintiff did not do so.  (Torres-Brito Decl., Exh. G.)

Plaintiff did not dismiss the claims against Defendant.

Defendant prepared this motion for sanctions under Code of Civil Procedure section 128.7 and served it on Plaintiff on February 12, 2024.  After waiting for 21 days after service, as required by section 128.7, subdivision (c)(1), Defendant filed the motion on March 7, 2024.

No opposition has been filed.

Legal Standard

Code of Civil Procedure section 128.7, subdivision (b), states that by presenting a pleading or other document to the Court, 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 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 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.”

The Court may “impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”  (Code Civ. Proc., § 128.7, subd. (c).)  “Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”  (Id., subd. (c)(1).)

The sanction for violation of subdivision (b) “shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated” and may include nonmonetary sanctions, an order to make a payment of a penalty to the court, or “an order directing payment to the movant of some or all of the reasonable attorney’s fees and expenses incurred as a result of the violation.”  (Id., subd. (d).)  In addition, “[i]f warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.”  (Id., subd. (c)(1).) 

Sanctions may not, however, be awarded against a represented party for a violation of subdivision (b)(2).)  (Id., subd. (d)(1).)

Section 128.7 permits the Court to impose sanctions for a violation of any one of the requirements of subdivision (b).  (Eichenbaum v. Alon (2003) 106 Cal App 4th 967, 976.)  A finding of subjective bad faith is not required; instead, the Court may sanction conduct that is objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)

Sanctions may be imposed if the Court concludes that 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.) The Court of Appeal has noted, however, that sanctions under section 128.7 should be made “with restraint” and are not mandatory even when a claim is frivolous.  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.) 

Section 128.7 is modeled on Rule 11 of the Federal Rules of Civil Procedure, and so federal case law construing Rule 11 may be persuasive in interpreting and applying section 128.7.  (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2; Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.)   

A motion for sanctions under section 128.7 must be made separately from other motions, and the notice must first be served but not filed; the motion may be filed only 21 days after service and only if the challenged pleading or other document 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.  (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. (Ibid.) 

Preliminary Matters

The Court GRANTS Defendant’s request for judicial notice of the complaint in Case No. 22STCV33609 (Lesby Ochoa v. GP Rah Enterprises, LLC., et al.) and the request for dismissal with prejudice in that matter.

The Court finds that Defendant has satisfied all procedural requirements for the motion, including serving the motion but not filing it until after the expiration of the 21-day safe harbor period.

Discussion

The Court approaches this motion with caution and restraint, as directed by the Court of Appeal.  (See, e.g., Peake, supra, 227 Cal.App.4th at p. 448.)  Many defendants in civil litigation characterize the claims against them as “frivolous,” but the Court is cognizant that actual violations of section 128.7 are (thankfully) rare, and that a violation of section 128.7 requires a much greater showing that simply filing and prosecuting claims that may ultimately prove to be unsuccessful.

Having said that, Defendants has made out a clear prima facie case here for a violation of section 128.7, subdivisions (b)(2) and (b)(3).  In connection with investigation and discovery in the prior lawsuit, Plaintiff’s counsel was made aware of two critical facts: (1) the location of the accident; and (2) that the City of Los Angeles, and no one else, was the sole owner of the property on which the accident occurred and was solely responsible for the maintenance of the sidewalk on which Plaintiff tripped.  (Torres-Brito Decl., ¶¶ 2-9 & Exhs. B-F.)

From the evidence in the record, it appears that Plaintiff and Plaintiff’s counsel acknowledged that these two critical facts are true and, as a result, dismissed, with prejudice, their claims in the prior lawsuit against a private concessionaire.  (Id., ¶ 3.)  But then, despite that acknowledgment, Plaintiff then brought this lawsuit against another private concessionaire, who is no more responsible than the defendant in the first lawsuit under the acknowledged facts and existing law, rather than seeking whatever relief might be available against the responsible party (the City). 

That is a strong case for a violation by Plaintiff of section 128.7.

Plaintiff has not filed any opposition.  Plaintiff did not respond to the correspondence from Defendant that raised this issue on December 6, 2023.  During the 21-day “safe harbor” period, Plaintiff did not dismiss the complaint.  And Plaintiff did not file anything with the Court explaining why there was no violation of section 128.7 or otherwise asserting that sanctions are not merited.  The Court can certainly speculate about what arguments Plaintiff might have made, but Plaintiff’s silence in response to the motion is deafening.  (See Evid. Code, §§ 412-413.)

On this record, the Court finds that Plaintiff’s counsel violated Code of Civil Procedure section 127.8, subdivisions (b)(2) and (b)(3), by filing the complaint in this action, and by asserting in the complaint that Defendant is liable for the injuries she suffered, and that Defendant owned, operated, managed, and maintained the premises at issue, despite the actual knowledge of Plaintiff’s counsel that the injury occurred on property that is owned and exclusively controlled and maintained by the City of Los Angeles.

There is nothing in the record to support a finding at this time that Plaintiff herself violated section 127.8, subdivision (b), or is responsible for the violation by her counsel.

The Court finds that monetary sanctions are warranted and necessary to deter repetition of this conduct or comparable conduct by others similarly situated.  The Court sets sanctions in the amount of $1,575, calculated based on seven hours of reasonable attorney time incurred in presenting the motion and as a direct result of the violation, multiplied by counsel’s reasonable billing rate of $225 per hour.  (Code Civ. Proc., § 128.7, subds. (c), (c)(1), and (d); Torres-Brito Decl., ¶ 14 & Exh. J.)  The Court finds that this amount is appropriate under all of the circumstances, is warranted for effective deterrence, and is sufficient to deter repetition.

Conclusion

The Court GRANTS Defendant’s motion for sanctions.

The Court ORDERS George G. Mgdesyan, Esq.; Karapet Galajian, Esq.; and the Mgdesyan Law Firm, jointly and severally, to pay monetary sanctions to Defendant in the amount of $1,575, pursuant to Code of Civil Procedure section 128.7, within 30 days of notice.

Moving party to give notice.