Judge: Theresa M. Traber, Case: 21STCV29373, Date: 2025-01-15 Tentative Ruling

Case Number: 21STCV29373    Hearing Date: January 15, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 15, 2025                   TRIAL DATE: March 25, 2025

CASE:                         Sterile Pros, LLC v. Ocean Properties Inc., et al.

CASE NO.:                 21STCV29373           

MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

MOVING PARTY:               Plaintiff/Cross-Defendant Sterile Pros, LLC

RESPONDING PARTY(S): Defendant/Cross-Complainant Ocean Properties Inc.

CASE HISTORY:

·         08/20/21: Complaint filed.

·         10/25/21: Cross-Complaint filed.

·         11/06/24: Mistrial declared.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract. Plaintiff alleges that Defendants have refused to pay Plaintiff money owed on a contract for remediation of biohazardous material. Defendant Ocean Properties, LLC, as Cross-Complainant, alleges that Plaintiff/Cross-Defendant’s employees misrepresented themselves as employees of the Los Angeles County Medical Examiner’s Office and threatened to red-tag Defendant’s building to coerce Defendant into the contract.

            Plaintiff/Cross-Defendant Sterile Pros, LLC moves for sanctions against Defendant/Cross-Complainant and its counsel pursuant to Code of Civil Procedure section 128.5 following the Court’s declaration of a mistrial.

TENTATIVE RULING:

Plaintiff’s Motion for Sanctions is DENIED.

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DISCUSSION:

            Plaintiff/Cross-Defendant Sterile Pros, LLC moves for sanctions against Defendant/Cross-Complainant and its counsel in the amount of $21,240.65 pursuant to Code of Civil Procedure section 128.5 following the Court’s declaration of a mistrial.

Legal Standard

Under Code of Civil Procedure section 128.5 subdivision (a), a court may order a party, the party’s attorney, or both, to “pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. § 128.5(a).) “Frivolous” means “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc. § 128.5(b)(2).) “Bad faith,” under this statute, is subjective and requires the attorney to have acted with an improper motive. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 141.)

Analysis

Plaintiff seeks sanctions against Defendant Ocean Properties, LLC, and its counsel in the amount of $21,240.65 based on the misconduct of Defendant’s counsel which led to a mistrial.

            Plaintiff filed its Complaint in this action on August 20, 2021, alleging that Defendants refused to pay for Plaintiff’s services for remediation of biohazardous material from Defendant’s property. (See generally Complaint.) On October 25, 2021, Defendant Ocean Properties, LLC filed its Cross-Complaint, alleging that Plaintiff’s employees forced their way onto Defendant’s property, held themselves out as employees of the Los Angeles County Medical Examiner’s Office, and threatened to “red-tag” the property unless Defendant’s agent signed a contract for remediation services. (See generally Cross-Complaint.)

            A jury trial in this action commenced on November 5, 2024. (November 5, 2024 Minute Order.) After opening statements, Plaintiff called Matthew Montague to testify on Plaintiff’s behalf on direct examination. (Id. p.3.) Mr. Montague’s testimony continued into the second day of trial, November 6, 2024. (November 6, 2024 Minute Order p.2.) Defendant commenced cross-examination of Mr. Montague that same day. (Id.) Defendant’s counsel inquired whether Mr. Montague or any of Plaintiff’s employees had ever held themselves out as having the authority to “red-tag” a building. (Plaintiff’s Exh. A [trial transcript] p.48:6-13.) The witness answered “no.” (Id. p.48:14.) Defendant’s counsel then asked whether the witness or any of Plaintiff’s employees had ever represented that they were associated with the County Medical Examiner’s Office. (Id. p.48:15-17.) The witness again answered in the negative. (Id. p.48:18.) The witness also denied that he or any employee of Plaintiff had ever represented that they were “associated with the homicide detectives’ office” or that they had “claimed to have any kind of authority [they] didn’t have.” (Id. p.48:19-26.)

            Defendant’s counsel then offered a document for introduction into evidence, characterizing the document as “the criminal court conviction record of Matthew Scott Montague being convicted for impersonating an officer.” (Plaintiff’s Exh. A. p.49:1-4.) The actual document introduced was the record of proceedings from a 2005 misdemeanor prosecution against Mr. Montague for violations of Penal Code section 146a subdivision (a) (impersonation of a state deputy or clerk) and Penal Code section 415 subdivision (3) (disturbance of the peace by use of offensive language in public). (Plaintiff’s Exh. B. p.1.) As part of a plea agreement, Mr. Montague pled nolo contendere to the first charge, and the second charge was dismissed, in exchange for probation and a suspended sentence. (Id. pp. 2-3.)

            Counsel for the parties held a sidebar with the Court in chambers, outside the presence of the jury. (Plaintiff’s Exh. A. p.49:16-18.) During that proceeding, counsel for Plaintiff objected to the document as not having been previously presented to Plaintiff. (Id. p.49: 20-22.) Counsel for Defendant argued that the document was impeachment evidence. (Id. p.50:14-17.) After reviewing the document, the Court determined that the misdemeanor conviction was impeachment evidence on a collateral issue, and was therefore inadmissible. (Plaintiff’s Exh. A. p.59:7-11.) Moreover, the Court concluded that the misdemeanor convictions were so remote in time from the present case that they created a substantial danger of undue prejudice that outweighed their probative value. (Id. Exh. A. p. 59: 11:13.) Plaintiff’s counsel then orally moved for a mistrial, arguing the introduction of this evidence and the lengthy delay during the sidebar incurably tainted the jury’s evaluation of the case. (Id. p. 64:24-65:8.) The Court ultimately concurred with Plaintiff’s counsel and granted the motion based on misconduct by Defendant’s counsel in the form of collateral impeachment. (Id. pp. 71:2-72:4.)

            Plaintiff argues that Defendant’s counsel intentionally violated the Los Angeles Superior Court Local Rules and the California Rules of Court “for an advantage in trial.” In doing so, however, Plaintiff offers no evidence of any subjective bad faith—i.e., an improper motive—on the part of Defendant’s counsel which would support the imposition of sanctions under section 128.5. Plaintiff’s arguments in its moving papers are not evidence. Moreover, nothing in the record, including the transcripts offered by Plaintiff, demonstrates an ill intent or improper purpose driving the conduct of Defendant’s counsel. Rather, the transcripts offered show Defendant’s counsel offering a colorable—albeit erroneous and unpersuasive—arguments for the admissibility and propriety of the evidence. (See Exh. A. pp. 50-59.) Indeed, although the Court found attorney misconduct in granting the motion for mistrial, the Court did not, at that time, find that the record indicated intentional misconduct. (Plaintiff’s Exh. A. p. 71:6-7.) Plaintiff offers nothing which would lead the Court to depart from that perspective.

            The Court therefore declines to impose sanctions on the basis that Plaintiff has not demonstrated that any conduct by Defendant’s counsel was made in bad faith and either frivolous or solely intended to cause unnecessary delay.

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CONCLUSION:

Accordingly, Plaintiff’s Motion for Sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  January 15, 2025                                ___________________________________

                                                                                    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.