Judge: William A. Crowfoot, Case: 20STCV38239, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV38239    Hearing Date: July 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

SARMEN ESSAGHOLIAN,

                        Plaintiff(s),

            vs.

 

LETTER FOUR, INC., et al.,

 

                        Defendant(s).

 

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      CASE NO.: 20STCV38239

 

[TENTATIVE] ORDER RE:

MOTION FOR SANCTIONS

 

Dept. 27

1:30 p.m.

July 26, 2022

 

I.         BACKGROUND

On October 5, 2020, plaintiff Sarmen Essagholian (“Plaintiff”) filed this action against defendants Letter Four, Inc. (“Letter Four”), Lauren Adams (“Adams”), Jeremy Baker (“Baker”), Alfred Jr. Anderson (“Anderson”), Shieda Monique Brown Anderson, and Willie D. Campbel arising from a February 19, 2019 motor vehicle collision.

Plaintiff alleges Anderson caused the collision when he was driving the vehicle as an agent, servant, or employee of the other defendants.

Plaintiff asserts causes of action for negligence and negligent hiring, supervision, or retention of employee against Letter Four, Adams, and Baker (collectively, “Letter Four Defendants”).

On April 14, 2022, the Court granted the Letter Four Defendants’ motion for summary judgment.

On May 26, 2022, the Court denied Plaintiff’s motion for reconsideration of the Court’s order granting the motion for summary judgment.

On May 31, 2022, the Letter Four Defendants filed the instant motion for sanctions pursuant to Code of Civil Procedure section 128.7. Plaintiff opposes the motion.

II.        LEGAL STANDARD

Code of Civil Procedure section 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

  1. the document is 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 not 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 no evidentiary support;

  4. the denials of factual contentions are not warranted on the evidence.

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. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) 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.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.)

However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428. at 448.)

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client's claim was well- grounded in fact and to take into account the adverse party's evidence. (Ibid.)

III.      EVIDENTIARY OBJECTIONS

Having considered the objections to evidence deemed material to the disposition of this motion, the Court rules on Plaintiff’s evidentiary objections to the declaration of Sean A. Fredin as follows:

Objection Nos. 1, 2, 4: Overruled.

Objection Nos. 3: Sustained, hearsay.

Objection Nos. 5, 6, 7, and 8: Overruled. Those objections cite paragraphs that are not in the declaration of Sean A. Fredin, filed on May 31, 2022. For example, Objection No. 6 cites Paragraph 34 and contends that Paragraph states: “A true and correct copy of the 1099 independent contractor list is attached hereto as Exhibit 7.” However, Paragraph 34 in the declaration states: “Despite there being no facts of an independent contractor relationship, the law is clear that there is no vicarious liability in this auto accident case, even if that were true.”

III.      DISCUSSION

21-Day Safe Harbor Rule

A party’s motion for sanctions may not be filed until 21 days (“or any other period as the court may prescribe”) after it is served. (Civ. Code. Proc., § 128.7, subd. (c)(1).) This 21-day period allows the party against whom sanctions are sought an opportunity—i.e., a “safe harbor”—to withdraw or correct the challenged paper and thereby avoid sanctions.

Here, the Letter Four Defendants argue that the 21-day safe harbor period has been satisfied because Plaintiff and Plaintiff’s counsel failed to withdraw their motion for reconsideration filed on April 25, 2022, within that period. (Memorandum of Points and Authorities, filed May 31, 2022, p. 2:10-11.)

The Court disagrees.

The Letter Four Defendants served their notice of motion and motion on Plaintiff on May 5, 2022, via email. (Notice of Motion, filed May 5, 2022, last page – Proof of Service.)

Therefore, Plaintiff had 21 days from May 5, 2022, (until Thursday, May 26), plus two court days until (Monday, May 30), to withdraw the motion. (See Civ. Code. Proc., § 1010.6, subd. (a)(4)(B) [extending by two court days any duty to do any act after service of a document by electronic means].

The Court takes judicial notice of Plaintiff’s motion for reconsideration and notes that the hearing was scheduled for (and took place on) May 26, 2022. (Evid. Code, § 452, subds. (d), (h) [providing that a court may take judicial notice of court records of this state and facts that are not reasonably subject to dispute]; Minute Order dated May 26, 2022, Hearing on Plaintiff’s Motion for Reconsideration.)

Therefore, since Plaintiff’s motion was scheduled for and took place on May 26, 2022, before the 21-day harbor period expired on May 30, 2022, it follows that the Letter Four Defendants did not provide Plaintiff and her counsel with the statutory 21-day safe harbor period to withdraw the motion. The defendants could have served their moving papers earlier to allow Plaintiff and her counsel to withdraw the motion.

          Accordingly, the Letter Four Defendants’ failure to provide the statutory 21-day safe harbor period alone is sufficient to deny the motion.

IV.      CONCLUSION

The Motion for Sanctions is DENIED.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.