Judge: Theresa M. Traber, Case: 20STCV31559, Date: 2022-09-27 Tentative Ruling

Case Number: 20STCV31559    Hearing Date: September 27, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 27, 2022               TRIAL DATE: December 13, 2022

CASE:                         Graeme Joseph Kronsberg, et al. v. Michael Brett Wallen, et al.

CASE NO.:                 20STCV31559           

MOTION FOR SANCTIONS UNDER CODE OF CIVIL PROCEDURE § 128.7

MOVING PARTY:               Plaintiffs Graeme Joseph Kronsberg and Lynne Kronsberg

RESPONDING PARTY(S): Defendant Michael Brett Wallen

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a professional negligence action filed on August 19, 2020. Plaintiffs allege that Defendant, a licensed insurance broker-agent, was negligent in procuring and renewing Plaitniffs’ homeowners’ insurance policy.

Plaintiffs move for sanctions under Code of Civil Procedure section 128.7.

TENTATIVE RULING:

Plaintiffs’ motion for sanctions under Code of Civil Procedure section 128.7 is DENIED.

DISCUSSION:

Plaintiffs seek monetary sanctions in the amount of $25,610 against Defendant Michael Wallen and his counsel for filing a frivolous second motion for summary judgment.

Plaintiffs’ Requests for Judicial Notice

            Plaintiffs request that the Court take judicial notice of (1) Defendant’s first motion for summary judgment filed in this action; (2) Plaintiffs’ opposition to Defendant’s first motion for summary judgment; (3) the notice of ruling and tentative ruling on Defendant’s first motion for summary judgment; and (4) Defendant’s second motion for summary judgment. Plaintiffs’ requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

Compliance with the Safe Harbor Provisions of Code of Civil Procedure § 128.7(c)(1)

Plaintiffs seek sanctions under Code of Civil Procedure section 128.7. The safe-harbor provision of section 128.7 provides, in relevant part:

A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(Code Civ. Proc. § 128.7(c)(1).)

Plaintiffs complied with these provisions by serving Defendant with the motion on August 3, 2022. (Proof of Service.) Defendant therefore had until August 26, 2022 (21 days + 2 days for service by email) to withdraw the motion for summary judgment. Defendant did not do so, and Plaintiffs filed this motion on August 29, 2022. Thus, Plaintiffs met the requirements of both safe-harbor provisions.

Analysis

Plaintiffs seek sanctions under Code of Civil Procedure section 128.7 on the ground that Defendants’ second motion for summary judgment is frivolous and was presented for an improper purpose.

Under Code of Civil Procedure section 128.7, if the Court determines that subsection (b) has been violated, it 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(c).) Violations of subsection (b) include presenting a motion “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Code Civ. Proc. § 128.7(b)(1).) Sanctions under this section “shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (Code Civ. Proc. § 128.7(d).) The sanction may include, “if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.” (Id.)

Here, Plaintiffs have not shown that Defendants’ second motion for summary judgment is frivolous or presented for an improper purpose. To obtain sanctions on this ground, the moving party must show the “party’s conduct in asserting the claim was objectively unreasonable,” meaning that “any reasonable attorney would agree that [it] is totally and completely without merit.” (Bucar v. Ahmad (2016) 244 Cal.App.4th 175, 189.) Indeed, even “the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.)

Plaintiffs contend that Defendants’ second motion for summary judgment is frivolous because it seeks to relitigate issues already decided without showing that new facts or law were discovered that require reconsideration of the motion under Code of Civil Procedure section 437c(f)(2). That section states, in relevant part, that “[a]party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc. § 437c(f)(2).)

Plaintiffs’ argument that the motion is frivolous because it relies on many of the same material facts and concerns elements of the professional negligence cause of action that were at issue in the previous motion is not well-taken. Le Francois v. Goel, (2005) 35 Cal.4th 1094, on which Plaintiffs principally rely, is inapplicable. In that case, the defendant moved for summary judgment on the same grounds for both motions. (Le Francois, supra, 35 Cal.4th at 1097.) The same is true of Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, in which the motions were the same summary judgment motion asserting the same arguments and the same material facts, only differing in that they were before different judges. (See Bagley, supra, 73 Cal.App.4th at 1096-97.) Similarly inapplicable is Schachter v. Citigroup Inc. (2005) 126 Cal.App.4th 726, where the moving parties asked the court to reconsider its prior ruling on the basis of a non-precedential ruling by another judge on similar grounds. (Schachter, supra, 126 Cal.App.4th 732-33.) That is not the case with the motions at issue here. In this case, the parties litigated, and the Court decided, four issues:

1.      Whether there was a triable issue of fact regarding whether Plaintiffs were ever insured by Farmers, such that Defendant had a duty to obtain, to the extent available, the same coverage Plaintiffs previously had with Farmers.

2.      Whether there was a triable issue of fact regarding whether additional living expenses coverage was available from the CFP, such that Defendant’s failure to obtain that coverage constituted a breach of any duty.

3.      Whether there was a triable issue of fact regarding whether Plaintiffs could expect Defendant to procure any additional living expenses coverage, such that any failure by Defendant to do so would have caused Plaintiffs damage.

4.      Whether there was a triable issue of fact regarding whether fair rental value coverage would have provided any reimbursement to Plaintiffs if the fair rental value of the property was zero because it was destroyed, such that any failure by Defendant to do so would have caused Plaintiffs any damage.

(See December 7, 2021 Ruling on Motion for Summary Judgment.) By contrast, in the second motion filed by Defendant, Defendant raises three issues:

1.      Whether there is a triable issue of fact regarding whether CFP offered Additional Living Expenses coverage, such that any failure to procure that coverage could have caused any damages to Plaintiffs. (Plaintiffs RJN Exh. D: Motion p. 13:14-18.)

2.      Whether there is a triable issue of fact regarding whether Plaintiffs would have had the same financial recovery because they received their policy limits, such that Additional Living Expenses coverage would not have provided any additional funding. (Id. p.13:19-24.)

3.      Whether there is a triable issue of fact regarding whether Defendant had any duty to Plaintiff to procure coverage that Plaintiffs did not specifically request. (Id. p. 15:25-16:5.)

            Even under the construction most favorable to Plaintiffs, only the first issue raised in the second summary judgment motion could reasonably be construed as being the same grounds as an issue raised in the first summary judgment motion. One out of three issues being identical to an issue already decided is not sufficient to demonstrate that the motion in its entirety is frivolous or without merit. Where a second motion for summary judgment is not identical to the first and raises different legal theories, the motion is not a motion for reconsideration under section 437(c)(f)(2). (See Patterson v. Sacramento City Unified School District (2010) 155 Cal.App.4th 821, 827.) Plaintiffs have not shown that the circumstances here warrant sanctions under section 128.7

CONCLUSION:

            Accordingly, Plaintiffs’ motion for sanctions under Code of Civil Procedure section 128.7 is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: September 27, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.