Judge: Walter P. Schwarm, Case: 30-2020-01126846, Date: 2022-09-13 Tentative Ruling

Plaintiff’s (Belinda Provini) Motion for Sanctioins in the Amount of $8,140.00 Against Defendant City of Dana Point, Its Counsel of Record, Ricarda Baca, Mitchell Dean, and The Law Firm of Dean, Gazzo, & Roistacher, LLP Pursuant to Code of Civil Procedure Sections 128.5 and 128.7 (Motion), filed on 5-10-22 under ROA No. 225, is DENIED. 

Code of Civil Procedure section 128.5 states in part, “(a) A trial 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. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. [¶] (b) For purposes of this section: [¶] (1) ‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section. [¶] (2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party. . . . [¶] (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motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”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 states in part, “. . . (b) 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 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. [¶] (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. [¶] (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence [¶] (1) 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.”

Initially, the court notes that Plaintiff has not brought separate motions as required by Code of Civil Procedure sections 128.5, subdivision (f)(1)(A), and 128.7, subdivision (c)(1).  Instead, Plaintiff filed Plaintiff’s request for sanctions under Code of Civil Procedure section 128.5 and 128.7 as part of one motion.  Further, the Proof of Service attached to the Motion shows that Plaintiff served the Motion on 5-10-22.  Although the declaration in support of the Motion indicates that Plaintiff raised the issues regarding this Motion with Defendants’ (City of Dana Point) counsel (Zermeno Decl., ¶¶ 13 and 14 and Exhibit H), the court’s file shows that Plaintiff filed the Motion on 5-10-22.  Since Plaintiff did not comply with the procedural requirements of Code of Civil Procedure sections 128.5, subdivision (f), and 128.7, subdivision (c), the court does not have the authority to hear this Motion.  Therefore, the court DENIES the Motion because Plaintiff did not comply with the procedural requirements of Code of Civil Procedure sections 128.5, subdivision (f), and 128.7, subdivision (c).

Assuming the court has the authority to address the Motion, the court will address the merits of the Motion.  In connection with Plaintiff’s Motion to Vacate the Dismissal of Defendant City of Dana Point and Amend Her Complaint to Add the City of Dana Point as a Defendant (Motion to Vacate), filed on 1-18-22 under ROA No. 140, Plaintiff seeks a monetary sanction against Defendant and Defendant’s counsel “. . . for actions or tactics that were done in bad faith, and were frivolous, and/or solely intended to cause unnecessary delay under Code of Civil Procedure §§128.5 and/or 128.7. Without any reasonable justification or grounds, the City and its counsel of record: (1) misrepresented material facts to plaintiff and her counsel of record in order to obtain a voluntary dismissal; (2) once the true facts were revealed, refused to stipulate to Plaintiff amending the complaint to add back the City, after having expressly agreed to allow such an amendment; (3) failed to meet and confer in good faith on the issue; (4) forced Plaintiff to file a formal motion to vacate dismissal and amend her complaint, as well as an ex parte application seeking an order shortening time; and (5) opposed the motion despite having no reasonable grounds for opposition, and/or for the sole purpose of harassing Plaintiff and/or increasing the costs of litigation. Defendant and its attorney should be sanctioned for this conduct. for actions or tactics that were done in bad faith, and were frivolous, and/or solely intended to cause unnecessary delay under Code of Civil Procedure §§128.5 and/or 128.7. Without any reasonable justification or grounds, the City and its counsel of record: (1) misrepresented material facts to plaintiff and her counsel of record in order to obtain a voluntary dismissal; (2) once the true facts were revealed, refused to stipulate to Plaintiff amending the complaint to add back the City, after having expressly agreed to allow such an amendment; (3) failed to meet and confer in good faith on the issue; (4) forced Plaintiff to file a formal motion to vacate dismissal and amend her complaint, as well as an ex parte application seeking an order shortening time; and (5) opposed the motion despite having no reasonable grounds for opposition, and/or for the sole purpose of harassing Plaintiff and/or increasing the costs of litigation. Defendant and its attorney should be sanctioned for this conduct.” (Motion; 3:4-14 (Underscore in Motion.).)

The Motion to Vacate sought relief under Code of Civil Procedure section 473, subdivision (a). (Motion to Vacate; 5:12-17.)  The Motion to Vacate also stated, “Separate and apart from any statutory authority, the court also has the inherent, equitable power to set aside a dismissal on the ground of extrinsic fraud or mistake.” (Motion to Vacate; 5:26-27.)

On 5-26-20, based on a Settlement Agreement, Plaintiff dismissed Defendant (City of Dana Point) for this action without prejudice. (Zermeno Decl., ¶¶ 5, 6, 7, 8, 9, and Exhibits B, C, D, and E.) The dismissal was without prejudice. (Zermeno Decl., ¶ 9 and Exhibit E.) Plaintiff agreed to the dismissal because Defendant’s “. . . attorney represented that The City lacked ownership or control over ‘the area where the incident occurred’ . . . .” (Zermeno Decl., ¶¶ 6, 7, and Exhibits B and C.)  The Settlement Agreement contains a “Waiver of Statute of Limitations” provision. (Zermeno Decl., ¶ 8 and Exhibit D.) This provision states, “Defendant agrees to waive the statute of limitations only as it related to the trip and fall incident that occurred on or about May 18, 2019 and forms the basis of the matter . . . so that Plaintiff can bring Defendant back into the lawsuit should be a subsequent basis. . . .” (Zermeno Decl., ¶ 8 and Exhibit D.) “In 2021, a ‘subsequent basis’ arose to bring the City back as a defendant to the lawsuit.”  (Zermeno Decl., ¶ 10.)

The parties met and conferred regarding “. . . a stipulation to set aside the dismissal of the City and reinstate it as a defendant.  The City and its counsel refused to stipulate, without citing any authority or factual support for its refusal. . . .” (Zermeno Decl., ¶ 11 and Exhibit F.)  Plaintiff’s correspondence with Defendant states in part, “Attached please find a draft Stipulation to set aside Plaintiff’s voluntary dismissal of the City of Dana Point, reinstating your client as a party to the action. . . .” (Zermeno Decl., ¶ 11 and Exhibit F.)

Defendant’s Opposition to Plaintiff’s Motion for Sanctions (Opposition), filed on 8-30-22 under ROA No. 259, asserts, “Conversely, the City’s legal strategy to oppose the motion based on Section 473(b) also had merit. Opposing a motion to vacate when relying on an existing law is not frivolous. The decision to refuse to stipulate to vacate the dismissal and return as a defendant was based on the language of Section 473(b). Additionally, the refusal was not done to delay the litigation or in bad faith. It was done because the statute is unambiguous that a dismissal cannot be vacated when a party seeks relief after six months (as Provini did).” (Opposition; 11:25-12:3.)  Defendant’s Opposition to Plaintiff’s Motion Vacate the Dismissal of Defendant City of Dana Point and Amend Her Complaint to Add the City of Dana Point as a Defendant (Opposition to Motion to Vacate), filed on 4-19-22 under ROA No. 205, states, “Section 473(a)(1) is silent on setting aside a voluntary dismissal, such as the one that Plaintiff is seeking in the instant motion. Rather, Code of Civil Procedure section 473(b) governs setting aside a dismissal.” (Opposition to Motion to Vacate; 1:26-28.)  The Prior Opposition also states, “In both of the provisions, discretionary and the mandatory, of Section 473(b), the relief must be sought within six months. (CCP § 473(b).) Here, Provini did not seek relief from this Court until (19) months and 23 days after the Court entered the voluntary dismissal of the City. Plaintiff had until November 26, 2020 to seek relief under the statute. Yet, they delayed and did not file their motion until thirteen (13) months after the deadline to seek relief.” (Opposition to Motion to Vacate; 4:23-28.)

Peake v. Underwood (2014) 227 Cal.App.4th 428, 448 (Peake), explains, “As with Rule 11 (28 U.S.C.) sanctions, Code of Civil Procedure section 128.7 sanctions should be ‘made with restraint’ [citation], and are not mandatory even if a claim is frivolous. [Citations.] Further, when determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’ [Citations.]  Thus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions. [Citations.] [¶] 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.”

“Under Code of Civil Procedure section 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]  The court here imposed sanctions based on its finding that the claims were legally and factually frivolous. A claim is factually frivolous if it is ‘not well grounded in fact’ and it 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., at p. 440.)

Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120-1121 (Kumar), states, “ ‘A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.’ [Citation.] Like its federal counterpart, however, rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), section 128.7 should be utilized only in ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’ [Citation.] ‘Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, [section 128.7] sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous’ [citation], and instead ‘should be “made with restraint.” ’ [Citation.]  Indeed, even if a plaintiff could not successfully defend against either demurrer or summary judgment, that alone is insufficient to support the sanction of dismissal. [Citation.]” (Footnotes 8 and 9 omitted.)

Here, the court finds that Defendant’s conduct was not objectively unreasonable or frivolous within the meaning of Code of Civil Procedure sections 128.5 subdivision (b)(2), and Peake. First, the Settlement Agreement did not require Defendant to stipulate to the amendment to return Defendant to this action.  Second, Plaintiff labeled the Motion to Vacate as “Plaintiff’s Motion to Vacate the Dismissal of Defendant City of Dana Point.”  Third, the Motion to Vacate cited authority as to the court’s equitable power to set aside the dismissal.  Fourth, Plaintiff’s correspondence indicated that Plaintiff sought to set aside the dismissal. Fifth, although the court found that Defendant’s position lacked merit (5-3-22 Minute Order), the court does not find that Defendant’s position was objectively unreasonable or frivolous within the meaning of Code of Civil Procedure sections 128.5 subdivision (b)(2), and Peake.

Therefore, the court DENIES Plaintiff’s (Belinda Provini) Motion for Sanctioins in the Amount of $8,140.00 Against Defendant City of Dana Point, Its Counsel of Record, Ricarda Baca, Mitchell Dean, and The Law Firm of Dean, Gazzo, & Roistacher, LLP Pursuant to Code of Civil Procedure Sections 128.5 and 128.7 filed on 5-10-22 under ROA No. 225.

Defendant is to give notice.