Judge William A. Crowfoot, Case Number: 23AHCV02077, Date: 2023-12-22 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02077, Date: 2023-12-22 Tentative Ruling

On September 11, 2023, plaintiff Michelle Wu (“Plaintiff”) filed this action against defendants Eileen Wang (“Wang”), Yaoning Sun (“Sun”), Yuntao Chen (“Chen”), Jennifer Cheung (“Cheung”), and American Southwest Chamber of Commerce USA (“ASCC”). On October 25, 2023, Cheung filed a motion for an undertaking in the amount of $50,000.

On November 22, 2023, Plaintiff filed this motion for sanctions and attorneys’ fees against Cheung and counsel of record pursuant to section 128.5 of the Code of Civil Procedure. Code of Civil Procedure section 128.5(a) provides that “[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.” “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motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”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 Civ. Proc., § 128.5(f)(1)(B).)

The express statutory language requires the party moving for sanctions to provide a 21-day safe harbor. Contrary to Plaintiff’s contention, this is not a mere technicality that can be cast aside with a nuanced examination of any context. Rather, “the law requires strict compliance with the safe harbor provisions.” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 [citing Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 593].) “Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’” (Id. [citing Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700].)

Even if the safe harbor period had been complied with, the Court is not inclined to find that sanctions are appropriate or that the amount in sanctions sought is reasonable. Plaintiff mainly complains that Cheung cited a non-existent code provision of the California Corporations Code, “section 5170” instead of correctly referring to “section 5710.” Plaintiff claims that this reference caused her attorney to search the Corporations Code for 4 hours. This is an unreasonable amount of time to spend on such a task given the technology and resources available today. Furthermore, the claim that Plaintiff’s counsel spent 4 hours addressing each of the faulty arguments made in Cheung’s motion for an undertaking is excessive, especially when considering that Plaintiff’s own opposition did not address them in depth (and likely did not need to, given the threshold issue of standing which the Court raised in its minute order denying the motion for an undertaking.”

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court 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.