18-UDL-00862 BELLA ROSES VENTURES, LLC VS. AGATON T. GUALBERTO, ET AL.

BELLA ROSES VENTURES, LLC AGATON T. GUALBERTO
JOANNA KOZUBAL

PLAINTIFF’S MOTION TO SANCTIONS PURSUANT TO CCP 128.5 TENTATIVE RULING:

Plaintiff Bella Roses Ventures, LLC’s Motion for Sanctions Pursuant to Code Civ. Proc. § 128.5 is DENIED.

First, the Notice of Motion does not properly identify the party and/or attorney against whom sanctions are sought. The statute permits sanctions against a party, or a party’s attorney (or former attorney), or both. The moving papers indicate Defendant Virginia Gualberto was represented during part of the relevant time period by attorney James Imperiale. The Notice of Motion does not provide proper notice unless it states the specific person or persons against whom sanctions are requested.

Second, the 6-10-19 Proof of Service does not demonstrate proper service of the moving papers. It states the papers were mailed to defendant Virginia Gualberto at 261 Topaz Way, San Francisco, Ca., 94131. The Topaz Way address is not identified in the Court file, which shows Virginia Gualberto as residing at 1460 Crystal Dr. in Hillsborough, Ca., which presumably is no longer a valid address. Virginia Gualberto has used attorney James Imperiale as her counsel, whose address is in San Diego (per the Court file), but Imperiale was not served with the papers. Based on the moving papers and the Court’s file, the Court cannot determine that 261 Topaz Way, San Francisco, Ca. is Defendant’s correct address for service.

Further, Plaintiff seeks sanctions based on six purportedly frivolous and/or harassing ex parte appearances, all of which were directed towards vacating a Judgment for Possession and/or obtaining a temporary stay of the Judgment. One of defendant’s stay requests was granted, which suggests the other stay requests were not clearly frivolous or intended solely to harass Plaintiff, with the possible exception of the 3-12-19 ex parte when defendant never appeared, and the 4-15-19 ex parte where defendant’s counsel appeared, but left without presenting papers. For this reason, Plaintiff has not met her burden of demonstrating grounds for sanctions under § 128.5. The fact that defendant sought ex parte relief during a time Plaintiff’s counsel was out of town does not demonstrate bad faith, given the obvious time sensitivity of the relief being sought.