Judge Thomas D. Long, Case 22STCV31501 2023-04-06 Tentative Ruling

On September 26, 2022, Plaintiff Diana Lands Nathanson filed this action against Defendant Alexander Gervasi aka Sacha Gervasi, alleging (1) sexual battery; (2) battery; (3) assault; (4) intentional infliction of emotional distress (“IIED”); (5) false imprisonment; (6) gender violence; and (7) harassment/hostile work environment.

On March 1, 2023, Defendant filed a motion for sanctions against Plaintiff and counsel under Code of Civil Procedure section 128.7. Defendant seeks terminating sanctions and attorney fees of $66,255.00.

No. 1: Sustained for lack of foundation. The declarant was not the sender or recipient of Exhibit 2’s letter.

No. 4: Sustained. Counsel declares that Exhibit 8’s text messages were authenticated by Plaintiff at her deposition, but the supporting testimony for authentication is not provided. Additionally, the Court will not consider Defendant’s provision of the deposition testimony filed with the Reply’s Declaration of Zachary T. Elsea because the Court generally will not consider new evidence submitted with a reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

By presenting a pleading to the court, an attorney is certifying that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) the pleading 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; and (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. (Code Civ. Proc., § 128.7, subd. (b).)

A motion for sanctions under this section must describe the specific conduct alleged to violate subdivision (b). (Code Civ. Proc., § 128.7, subd. (c)(1).) Any sanction imposed “shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated,” and it may include directives of a nonmonetary nature, an order to pay a penalty into court, or an award of attorney fees and expenses. (Code Civ. Proc., § 128.7, subd. (d).)

“To avoid sanctions under section 128.7, ‘the issue is not merely whether the party would prevail on the underlying factual or legal argument,’ but rather whether any reasonable attorney would agree that the claim is totally and completely without merit.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126 (Kumar).) To escape sanctions, the opponent “must make a sufficient evidentiary showing to demonstrate that he made a reasonable inquiry into the facts and entertained a good faith belief in the merits of the claim. [The opponent] need not amass even enough evidence to create a triable issue of fact as would be required if [the movant] had brought a motion for summary judgment, or allege a valid cause of action, as required to overcome a demurrer.” (Ibid.) “Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448 (Peak).)

As a preliminary matter, the parties spend substantial time arguing about Plaintiff’s deposition errata sheet. (Motion at pp. 16-17 & fn. 1; Opposition at pp. 13-14; Reply at pp. 5-12.) Defendant contends that the errata sheet was not timely served and is a sham; Plaintiff contends that it was timely due to the court reporter’s mailing errors and it makes proper changes. The Court does not decide this issue here because the Court concludes that the motion must be denied even without reference to the errata sheet or Plaintiff’s declaration.

Defendant asks the Court to dismiss Plaintiff’s complaint and award him attorney fees because this action “was filed exclusively for purposes of retaliation and harassment in violation of section 128.7(b)(1).” (Motion at p. 18.) Defendant points to the timing of Plaintiff filing this action, with the first mention of any inappropriate conduct by Defendant being made only after Defendant and his wife demanded their property from Plaintiff in Jessica De Rothschild, et al. v. Diana Lands, et al., Case No. 22STCV16977, filed on May 23, 2022. (Motion at p. 18.) During counsel’s discussions before filing Case No. 22STCV16977, Plaintiff’s counsel informed Defendant’s counsel: “I am drafting a complaint concerning sexual harassment and assault. . . . if they were not screwing her on the money, I don’t think she would have even told me . . . it may be better to resolve this all if possible.” (Motion at p. 8; Reynolds Decl., Ex. 7.) Defendant argues that “[i]t is now abundantly clear that [Plaintiff’s] claim was fabricated to try to pressure the Gervasis into dropping their claims against [Plaintiff].” (Motion at p. 18.) It may be true that Plaintiff would not have filed this action if Defendant did not file Case No. 22STCV16977 first. But Defendant cites no law supporting sanctions under section 128.7 based on just the timing of a lawsuit if it is otherwise brought for proper reasons.

Defendant also argues that Plaintiff’s claims lack evidentiary support. (Motion at p. 18.) Defendant relies on Plaintiff’s deposition testimony, which he contends “unequivocally refutes the allegations in the complaint.” (Motion at p. 19.) Plaintiff alleges that one assault occurred on July 9, 2021. (Complaint ¶ 19.) At Plaintiff’s October 28, 2022 deposition for Case No. 22STCV16977, she testified, “I don’t remember,” when asked if she had any in-person meetings with Defendant from May 2021 to Labor Day. (Motion at p. 12; Reynolds Decl., Ex. 1 at pp. 145-146.) This testimony in another action came in the middle of questioning about Plaintiff’s recollection of invoicing the other parties for appliances and how Plaintiff calculated the price for her services on that project.

Defendant also cites Plaintiff’s testimony about January 3, 2022, the date of the other alleged assault. (Motion at pp. 13-16; see Complaint ¶ 28.) Plaintiff met with Defendant at about noon on January 3, for about an hour or less. (Reynolds Decl., Ex. 1 at pp. 105-106, 109.) The meeting occurred in the conference room “[w]hich was their guest room,” in the house that was under construction. (Id. at p. 109.) They were “[s]upposed to go over the work that was done and go through the numbers that Bruder had just presented, a new budget with new numbers to finish.” (Id. at p. 110.) They did not do that because “We didn't get there. He wasn't interested in going over the numbers.” (Ibid.) Plaintiff testified that they “ate some Christmas candy” and “talked about the baby.” (Ibid.) They did talk about the project but did not go over the paperwork. (Id. at p. 111.) When asked if anything else happened during the meeting, Plaintiff replied, “I don’t know.” (Ibid.) She then asked to take a break for a minute. (Id. at pp. 111-112.) After returning, Plaintiff answered other questions before being asked, “Tell me everything you can remember occurring during the meeting.” (Id. at p. 117.) She responded, “We talked about the numbers. I showed him the budget. We talked about where everyone was on the project. We talked about the baby and how it was going. We talked about how Jessica was doing with the baby. We talked about Malibu and how Malibu was going and we looked a little bit about the numbers.” (Ibid.) According to Defendant, this testimony “clearly contradicts her allegation that Gervasi sexually assaulted her at the January 3, 2022 meeting.” (Motion at p. 16.) However, Plaintiff’s testimony does not contain any express contradictions, such as outright denials of Defendant’s misconduct. Instead, contradictions may at best be inferred from Plaintiff’s omissions. Additionally, some of the testimony is consistent with the Complaint in this action, which alleges, prior to the assault, “While in the office of the Hollywood Hills home, Gervasi showed a complete lack of interest in going over the cost of the project or any other information they had planned to discuss. Instead, he started opening all of the packages in a basket of holiday candy.” (Complaint ¶ 28.)

Defendant argues that Plaintiff’s deposition testimony in Case No. 22STCV16977 is even more egregious than the facts in Peak. (Motion at p. 19.) There, the party moving for sanctions argues that “the the undisputed evidence showed [defendant] had fulfilled his statutory and common law disclosure duties, and [plaintiff] had actual notice of facts disclosing prior problems with the subfloors.” (Peake, supra, 227 Cal.App.4th at p. 432.) Specifically, the plaintiff admitted facts showing that the real estate agent defendant provided the plaintiff with photographs and reports disclosing problems with the flooring. (Id. at p. 433.) But here, Defendant provides no such affirmative evidence that completely disproves Plaintiff’s claims. At best, he provides his denial of the assaults (Gervasi Decl. ¶¶ 27, 49), which creates an issue of credibility between the parties. This evidence is much weaker than the tangible proof of disclosure that eviscerated the plaintiff’s claims in Peake. Considering the entire context of this testimony that was given in Case No. 22STCV16977, a different case with different claims and allegations, the Court cannot conclude that it proves a complete lack of evidentiary support in this action.

Although not specifically referenced in Defendant’s meager two pages of argument (see Motion at pp. 18-19), Defendant’s factual background includes text messages that Defendant contends “reflect absolutely nothing out of the ordinary occurring around the time of the alleged assaults (or any other time).” (Motion at p. 8.) The Court sustains Plaintiff’s evidentiary objections to these unauthenticated text messages. Even if they were being considered, though, friendly text messages about confirming plans, sending holiday wishes, and discussing electrical projects—which are substantively unrelated to Plaintiff’s allegations, even if occurring on or near the dates of the assaults—do not prove that the allegations are false. They may be relevant to Plaintiff’s credibility for the events and her subsequent emotional distress, but the text messages themselves do not disprove the allegations.

Defendant does not describe any other specific conduct that violates section 128.7, subdivision (b). (See Code Civ. Proc., § 128.7, subd. (c)(1).)

In reply, Defendant also argues that Plaintiff provides no excuse for her Complaint’s “maliciousness,” “numerous unfounded assaults on [Defendant’s] character,” and “slanderous and unsupported allegation[s].” (Reply at p. 15; see Motion at p. 11.) However, on March 30, 2023, the Court granted Defendant’s motion to strike paragraph 1, line 1 (first sentence) and lines 6-8 (“In private . . . harassing conduct”), finding that they were irrelevant to Plaintiff’s claims. Defendant provides no explanation as to why this remedy is insufficient.

In sum, Defendant’s evidence may go to Plaintiff’s credibility, but it does not show that Plaintiff’s allegations completely lack evidentiary support. At best, it shows that there are triable issues of fact regarding her claims. Yet for this motion, Plaintiff “need not amass even enough evidence to create a triable issue of fact as would be required if [the movant] had brought a motion for summary judgment.” (Kumar, supra, 71 Cal.App.5th at p. 1126.)

Furthermore, Plaintiff’s counsel declares that he has known Plaintiff for approximately fifteen years, knows her to be a truthful and credible person, and engaged in privileged communications with her about additional information regarding the events. (Freedman Decl. ¶ 2.) Counsel filed and maintained this action based on the merits of Plaintiff’s case and not for any other purpose. (Freedman Decl. ¶ 3; Stiglitz Decl. ¶ 5.) In light of this evidence and Defendant’s lack of evidence that completely disproves Plaintiff’s allegations, the motion is denied.

The Motion for Terminating Sanctions and Monetary Sanctions in the amount of $66,255.00 against Plaintiff and Her Attorneys Bryan J. Freedman and Steven B.F. Stiglitz of Freedman + Taitelman, LLP pursuant to Code of Civil Procedure § 128.7 is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court