Judge Walter P. Schwarm, Case 30-2018-01002061 2022-08-09 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2018-01002061, Date: 2022-08-09 Tentative Ruling

Cross-Complainant’s (Nili Alai) Motion for Monetary and Terminating Sanctions Pursuant to Code of Civil Procedure Sections 128.5 and 128.7 Against Cross-Defendant Jocelyn B. Plummer and Her Counsel of Record Law Offices of Mark B. Plummerr PC, and Mark B. Plummer (Motion), filed on 4-19-22 under ROA No. 998, is DENIED without prejudice.

Code of Civil Procedure section 128.5 states in part, “. . . (f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures: [¶] (1) If after notice and a reasonable opportunity to respond, the court issues and order pursuant to subdivision (a), the court may, subject to the conditions below, impose an appropriate sanction upon a party . . . [¶] (A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay. [¶] (B) If 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motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”

Code of Civil Procedure section 128.7, subdivision (c)(1) states, “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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”

Li v. Majestic Industrial Hills LLC (2009) 177 Cal.App.4th 585, 590-591, provides, “Subdivision (c)(1) of 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. [Citation.]” (Footnotes 3 and 4 omitted.) [¶] 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.] ‘ “The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. [Citation.] This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleadings as well as the sanctions request.” ’ [Citations.]” “Because compliance with the safe harbor is a prerequisite to recovering sanctions, the burden is appropriately placed on the party seeking the sanctions to ensure the full safe harbor is provided. [Citation.]” (Id., at p. 594.)

In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 at footnote 7 (Corona), provides, “We cannot uphold the trial court's sanction award under Code of Civil Procedure section 128.7, because Claire did not comply with its strict procedural requirements, including that the motion ‘shall be made separately from other motions or requests . . . .’ (Code Civ. Proc., § 128.7, subd. (c)(1).) Claire's motion for sanctions does not comply because it was combined with her motion to establish arrears.” Similar to Corona, Cross-Complainant has not complied with Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A), because Cross-Complainant has brought motions pursuant to Code of Civil Procedure sections 128.5 and 128.7 as part of a single filing. This Motion does not comply with Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A), because Cross-Complainant has not brought separate motions as required by those sections. Therefore, the court DENIES the Motion based on Cross-Complainant’s failure to bring separate motions as required by Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A).

Evidence Code section 604 states, “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.” Evidence Code section 641 provides, “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

Cross-Defendant’s (Jocelyn Plummer) Opposition to Motion for Terminating Sanctions (Opposition), filed on 7-27-22 under ROA No. 1060, states, “As is obvious from Exhibit A, the moving party never served the “motion” 21-days in advance of filing the motion as required by Code of Civil Procedure §128.7(c)(1) . . . .” (Opposition; 5:14-15 (Emphasis and underscore in Opposition.) Cross-Complainant’s Reply (Reply), filed on 8-4-22 under ROA No. 1064, responds, “Filing of a proof of service creates a rebuttable presumption that service was proper.” (Reply; 5:18.)

Cross-Complainant has provided evidence that the Motion complies with the safe harbor provisions in Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A), based on the Proof of Service attached to the Motion. Since Cross-Complainant filed the Motion on 4-19-22, the Proof of Service shows compliance with Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A). Cross-Defendant (Jocelyn B. Plummer) has provided evidence that Cross-Complainant only served a four-page notice of the Motion, and did not serve the Motion as required by Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A). (Plummer Decl., ¶ 4 and Exhibit C.) Cross-Defendant’s evidence is sufficient to demonstrate the nonexistence of the fact that Cross-Complainant served the Motion on Cross-Defendant under Evidence Code section 604.

Although there may be some ambiguity in the language of the safe harbor provisions as to whether the motion or merely the “notice of motion” must be served 21 days before the motion is filed, the court will resolve this potential ambiguity in favor of providing the opposing party with more information regarding the grounds for the motion, not less.

The language of the safe harbor provisions is mandatory. “. . . [T]he usual rule with California codes is that ‘shall’ is mandatory and ‘may’ is permissive unless the context requires otherwise. [Citation.]” (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614.) Therefore, the court DENIES the Motion for failure to comply with Code of Civil Procedure sections 128.7, subdivision (c)(1), and 128.5, subdivision (f)(1)(A).

Based on the above, the court DENIES Cross-Complainant’s (Nili Alai) Motion for Monetary and Terminating Sanctions Pursuant to Code of Civil Procedure Sections 128.5 and 128.7 Against Cross-Defendant Jocelyn B. Plummer and Her Counsel of Record Law Offices of Mark B. Plummerr PC, and Mark B. Plummer, filed on 4-19-22 under ROA No. 998, without prejudice, to correct these procedural flaws.

Cross-Defendant is to give notice.