Judge: Upinder S. Kalra, Case: BC709021, Date: 2023-08-22 Tentative Ruling

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Case Number: BC709021    Hearing Date: August 22, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 22, 2023                                             

CASE NAME:            Lester Singer, et al. Greystar Real Estate Partners, LLC

CASE NO.:                BC709021

MOTION TO RECOVER ATTORNEY FEES (C.C.P. § 128.5)

MOVING PARTY: Defendant Greystar California, Inc.

RESPONDING PARTY(S): None

REQUESTED RELIEF:

1.      An order granting Defendant reasonable expenses, including attorney fees, in the amount of $51,087.00

TENTATIVE RULING:

1.      Motion for Attorney Fees pursuant to Code of Civil Procedure § 128.5 is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 6, 2018, Plaintiffs Lester Singer and Monica Mercado (“Plaintiffs”) filed a complaint against Greystar (“Defendant.”) The complaint alleged six causes of action: (1) Premises Liability, (2) Negligence, (3) Battery, (4) Assault, (5) Assault, and (6) Intentional Infliction of Emotional Distress. The complaint alleges that they were tenants of Watermarke. On February 4, 2018, they visited the 7th Floor, private tenants-only recreational area to meet with some other acquaintances who were also Watermarke tenants. They alleged that on the 7th Floor, unknown individuals aggressively confronted plaintiffs and their acquaintances. Mercado witnessed these unknown individuals beating Singer before fleeing. This physical altercation allegedly caused Singer to suffer major physical injury and both plaintiffs to suffer extreme mental anguish, pain and suffering. Plaintiffs allege on information and belief that the individuals who assaulted Singer were not tenants, but gained access to Watermarke through an Airbnb lodging arrangement.

On July 11, 2022, Plaintiff filed two Amendments to Complaint (Ficititious/Incorrect Name) naming Does 1 and 2 as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC.

On July 12, 2022, the scheduled trial was continued.

On August 17, 2022, Defendants filed a Demurrer, which was SUSTAINED, with leave to amend.

On March 6, 2023, the Court granted in part Plaintiff’s motion for leave to amend to correct the name of Defendant Greystar. 

On May 2, 2023, trial commenced in this action. On May 3, 2023, trial resumed in this action, and Defendant Greystar made an oral Motion for Judgment of Non-Suit, which was granted.

On May 19, 2023, Judgment was entered in Defendant Greystar’s favor. 

The current Motion for Attorney Fees pursuant to Code of Civil Procedure § 128.5 was filed on June 6, 2023. No opposition has been filed.

On June 28, 2023, Plaintiffs filed their notice of appeal of the Judgment entered on May 19, 2023.

LEGAL STANDARD:

Code of Civil Procedure § 128.5 authorizes every trial court to order payment of reasonable expenses, including attorney fees, incurred as a result of a litigation opponent’s tactics or actions not based on good faith which are frivolous or which cause unnecessary delay.  (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4^th 804, 809.) 

The motion is “frivolous” if it is “totally and completely without merit” or filed “for the sole purpose of harassing an opposing party.” (Code Civ. Proc. § 128.5(b)(2).) Before bringing a motion for attorney’s fees as a sanction under this statute, the moving party must comply with the “safe harbor” provisions of Section 128.5, subdivision (f)(1)(B). Moreover, a motion for sanctions under this section must be made separately from other motions or requests. (Code Civ. Proc. § 128.5 (f)(1)(A).) 

ANALYSIS:

Defendant Greystar moves for an award for attorney fees in the amount of $51,087.00 pursuant to Code of Civil Procedure § 128.5 on the basis that Plaintiff Monica Mercado’s remaining claim of negligent infliction of emotional distress was frivolously brought because she was unable to establish that she had a close relationship with the victim, under the law. (Motion at pg. 4.) It is further asserted that this was made evident when the Court granted Defendant’s motion for nonsuit. (Motion at pg. 3; Whirl Decl. ¶ 9.) Defendant Greystar asserts that Plaintiffs and their attorney of record acted in bad faith despite being aware of lack of legal viability in this cause of action. (Motion at pg. 4.)

However, the instant motion is procedurally defective because Defendant has failed to show that it abided by the Section 128.5’s 21-day safe harbor provision. Before bringing a motion for attorney’s fees as a sanction under this statute, the moving party must comply with the “safe harbor” provisions of Section 128.5, subdivision (f)(1)(B), when the “the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected.” The moving party is able to show compliance with this requirement by provide 21-days’ notice to the opposing party of their intention to move for sanctions under this statute if the opposing party refuses to withdraw their written motion or pleading. The proof of service submitted along with the moving papers show that the notice of motion was served on June 6, 2023, which was the same day that the motion was filed. (See Proof of Service filed June 6, 2023.) Furthermore, a review of the moving papers shows that Defendant Greystar did not provide notice to Plaintiffs as required under Section 128.5.

Accordingly, Defendant Greystar’s Motion for Attorney Fees pursuant to Code of Civil Procedure § 128.5 is DENIED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Attorney Fees Pursuant to Code of Civil Procedure § 128.5 is DENIED.
            Costs awarded per Memorandum of Costs in the amount of $40,364.80.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 22, 2023                      __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court