CIV536294 ANDY SABERI VS. LES STANFORD, ETAL

ANDY SABERI BJ INTERSTATE AUTOTRANSPORTERS, INC
JAMES M. DOMBROSKI JAMES ATTRIDGE

MOTION FOR ATTORNEY FEES AS SANCTIONS AGAINST ANDY SABERI AND JAMES DOMBROSKI TENTATIVE RULING:

Defendant BJ Interstate Auto Transporters, Inc.’s (BJ Interstate) 8-16-19 “Motion for Attorney’s Fees as Sanctions,” filed pursuant to Code Civ. Proc. § 128.5, is DENIED, for the reasons set forth below.

First, the motion is a belated motion for reconsideration. Code Civ. Proc. § 1008(b). On 10-10-18, Plaintiff dismissed its entire case against BJ Interstate. Thereafter, on 4-519, BJ Interstate moved for sanctions against Plaintiff under Code Civ. Proc. § 128.5, asserting the same arguments it now rehashes here. BJ Interstate argued in the prior motion, inter alia, that Plaintiff knew or should have known from the day he filed this case, and certainly from the time Plaintiff filed his First Amended Complaint (FAC), that his claim(s) against BJ Interstate had no merit, and yet Plaintiff continued pursuing its case against BJ until two days prior to the scheduled trial date. The Court already considered this argument and, on 5-20-19, denied BJ’s previous motion for § 128.5 sanctions. 5-20-19 Minute Order. The present motion is indistinguishable from the prior motion. Because it was not filed within 10 days of the Court’s 5-20-19 Minute Order, it is untimely. Code Civ. Proc. § 1008.

Second, and as separate grounds for denying the motion, as stated in the Court’s 5-20-19 Minute Order, BJ Interstate failed to comply with § 128.5’s safe harbor provision. As it argued in its prior motion for sanctions, BJ Interstate again contends Plaintiff persisted in pursuing a clearly meritless Complaint and First Amended Complaint (FAC), despite knowing that co-defendant Dedyk was insured at the time of loss, which purportedly barred any suit against BJ Interstate. § 128.5 requires that the offending party be given an opportunity to withdraw the offending pleading. § 128.5(f)(1)(B). BJ Interstate has not alleged compliance with this procedural requirement. Indeed, Plaintiff could not have withdrawn any offending pleading, because Plaintiff dismissed BJ Interstate from the case long before this motion was filed.

Further, the motion appears based in part on Plaintiff’s discovery responses. § 128.5 does not apply to discovery requests, responses, objections and discovery motions. § 128.5(e).

For at least the foregoing reasons, the motion is DENIED.

BJ Interstate’s 9-26-19 Evidentiary Objection to Parag. 12 of the Dombroski Decl. is OVERRULED, and its related 9-26-19 “Motion to Strike” is DENIED. The Court notes, however, that Parag. 12 of the Dombroski is irrelevant to the Court’s ruling on this motion.

Continuing the parties’ seemingly never-ending request for sanctions against one another, Plaintiff requests sanctions against BJ Interstate for having had to oppose this motion. In the Court’s discretion, Plaintiff’s request is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.