Judge: Virginia Keeny, Case: 22VECV02215, Date: 2023-05-24 Tentative Ruling

Case Number: 22VECV02215    Hearing Date: May 24, 2023    Dept: W

plong v. rushmore loan management services, llc., et al.

DEMURRER to plaintiff’s FIRST AMENDED complaint

Date of Hearing:        May 24, 2023                         Trial Date:       None set.  

Department:              W                                            Case No.:        22VECV02215

Moving Party:            Defendant Andrea Garfield

Responding Party:     No Opposition filed.  

BACKGROUND AND PROCEDURAL HISTORY

On December 1, 2022, Plaintiffs filed an action against Defendants Andrea Garfield, and Does 1 through 50, inclusive, alleging (1) strict liability pursuant to Civil Code section 3342 and (2) negligence.

Plaintiff alleges that on or about November 29, 2020, Plaintiff was lawfully present on Defendant’s yard as a landscaper when Defendant’s pit-bull dog attacked and bit him, causing harm and injuries.

On March 2, 2023, Defendant filed the instant demurrer.

On April 25, 2023, the Court continued the hearing for demurrer to May 24, 2023. The Court also ordered Plaintiff to submit additional facts and law re: failure to file complaint within 2 years, with an opposition and reply to be filed per code. The Court also permitted Defendant to file a motion for sanctions and set the hearing for May 24, 2023.

On April 27, 2023, Defendant filed the instant motion for monetary sanctions.

As of May 19, 2023, no opposition has been filed.

[Tentative] Ruling

The Court grants Defendant’s demurrer to Plaintiff’s complaint.  The Court denies Defendant’s request for sanctions.

ANALYSIS

Demurrer

Personal Injury Claims

Code of Civil Procedure section 335.1 requires “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” to be brought within two years from the date the cause of action arose.

Defendant argues that Plaintiff’s complaint is barred by the statute of limitations pursuant to Code of Civil Procedure section 335.1 because the cause of action arose on November 29, 2020, but the action was filed on December 1, 2022, which is more than two years from the date of injury.

Plaintiff provides no opposing arguments.

The Court finds Defendant’s arguments to have merit. Plaintiff’s action is barred by the statute of limitations for failure to timely file the action for personal within two years from the date of injury.

Thus, the Court grants the demurrer as to Plaintiff’s complaint.

Motion for Monetary Sanctions

Defendant requests sanctions in the amount of $3,600.00 for attorney’s fees and costs associated with efforts to compel Plaintiff’s counsel to dismiss the complaint with prejudice.

The Court may impose sanctions for conduct that violates any one of the requirements set forth in Code of Civil Procedure section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.

Code of Civil Procedure section 128.7, subdivision (b) provides:

By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, 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 non-frivolous 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.

Only “an attorney or unrepresented party may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “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.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.)

Code of Civil Procedure section 128.7 “contains a safe harbor provision. It requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.] During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow correction or withdrawal of an offending document, section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.)

Defendant argues that Plaintiff’s counsel engaged in bad faith tactics by refusing to respond to Defense Counsel’s correspondence explaining why the Complaint fails and failing to file an opposition. Defendant contends that Plaintiff’s counsel filed and maintained an action which they knew was barred by the two-year statute of limitations, which is demonstrated by their failure to provide any case law or other legal justification for why the two-year statute of limitations was tolled.

Here, the Court finds that Defendant failed to satisfy the 21-day safe harbor requirement. Although Defense counsel engaged in meet and confer efforts for the demurrer, there is no showing that he served Plaintiff’s counsel with a notice of this motion for sanctions, describing the sanctionable conduct and gave Plaintiff 21 days to correct the issue. Although Defense counsel claims that Plaintiff’s counsel had sufficient time from his first meet and confer letter on February 16, 2023 to provide case law or other legal authority to toll the two-year statute of limitations or to dismiss the complaint, this does not satisfy the safe harbor provision under 128.7.

Thus, the Court denies Defendant’s request for sanctions.