Case Number: NC061031 Hearing Date: September 17, 2019 Dept: S27

INTRODUCTION

On February 14, 2018, plaintiff Aurora Lemere (“plaintiff”) filed this instant action against defendants Los Angeles Unified School District (“LAUSD”), Jan Murata, and Mattie Adams arising out of allegations regarding plaintiff’s employment as a teacher with defendant LAUSD. On May 8, 2017, defendant LAUSD filed a demurrer to plaintiff’s Complaint. On May 8, 2017, plaintiff filed a First Amended Complaint (“FAC”) asserting seven causes of action for:

(1) Violation of Education Code sections 44112-44113;

(2) Violation of Labor Code section 1102.5;

(3) Violation of Government Code section 12940(h);

(4) Violation of Government Code section 12940(j);

(5) Constructive Discharge;

(6) Intentional Infliction of Emotional Distress; and

(7) Negligent Infliction of Emotional Distress.

Defendant LAUSD now seeks an order awarding defendant LAUSD sanctions in the amount of $5,440.00 against plaintiff and her counsel of record, Douglas Spoors, pursuant to CCP section 128.7.

REQUEST FOR JUDICIAL NOTICE

Defendant LAUSD’s requests for judicial notice are granted pursuant to Evid. Code section 452(d).

ANALYSIS

CCP section 128.7 states in relevant part: “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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.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.” (CCP § 128.7(c)(1).)

Defendant LAUSD asserts plaintiff refuses to dismiss this present case disregarding the fact that this present case is nearly exactly the same as plaintiff’s case against defendant LAUSD in Case No. NC059903, which was dismissed. The dismissal in Case No. NC059903 was affirmed by the Court of Appeal. Defendant LAUSD asserts that despite numerous urgings by defendant LAUSD that this matter is improper and harassing, plaintiff insists on litigating this claim. Defendant LAUSD contends res judicata clearly bars this lawsuit as seen in defendant LAUSD’s demurrer filed May 8, 2017.

First, the court did not rule on the merits of defendant LAUSD’s demurrer as it is moot. Second, defendant LAUSD has not met its burden in establishing that plaintiff’s pleading warrants the award of sanctions. “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… [¶] A claim is factually frivolous if it is ‘not well grounded inf act’ 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.’… In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable… A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Bucur v. Ahmad (2016) 224 Cal.App.4th 175, 189.) Defendant LAUSD bases the grounds of this motion on its arguments in its demurrer to the Complaint, which the court found moot. Defendant LAUSD has failed to prove to the court that plaintiff’s FAC was filed for an improper purpose or was indisputably without merit.

Based on the foregoing, defendant LAUSD’s motion for sanctions is denied.