Donald Martin vs. Theodore Cristodore
Nature of Proceeding:
Filed By:
Motion for Sanctions
Kassouni, Timothy V.

Defendants Theodore and Maria Cristodore’s motion for sanctions pursuant to CCP § 128.7 is denied.

Defendants’ request for judicial notice of the correction notice issued by the Sacramento Metropolitan Fire District is granted.

Defendants seek sanctions pursuant to CCP § 128.7 as a result of Plaintiffs Donald and Martin’s motion for relief pursuant to CCP § 473 which was denied by the Court on December 4, 2013. The Court found that the motion, though styled as one seeking relief pursuant to CCP § 473, in essence was a motion for reconsideration of the Court’s June 4, 2013, ruling finding that a fence within Plaintiffs’ easement did not violate the parties’ 2009 stipulated judgment. Essentially Plaintiffs, represented by new counsel, sought to argue that their former counsel failed, through mistake, inadvertence, or excusable neglect, to timely present all relevant evidence to the Court which would have led the Court to issue a different ruling in June 2013.

At the outset, the Court did not consider Defendants’ “supplemental” points and authorities as those were not presented during the 21-day safe harbor period set forth in CCP § 128.7.

Defendants argue that “Plaintiffs have impermissibly filed an untimely motion to reconsider couched as a 473 motion with no new facts, law or circumstances that could not have been raised in the prior motion, in violation of Code of Civil Procedure section 1008(b). As such, the new motion is brought for an improper purpose to harass Defendants and needlessly increase the cost of litigation.” (Motion 2:13-17.) Code of Civil Procedure section 128.7 requires attorneys (or parties if they are unrepresented) to certify, through their signatures on documents filed with the court, that every pleading, motion or other similar paper presented to the court has merit and is not being presented for an improper purpose. (§ 128.7, subd. (b)(1)-(4); Musaelian v. Adams (2009) 45 Cal.4th 512, 516.)

If, after notice and a reasonable opportunity to respond, the court determines the certification was improper under the circumstances, it may impose an appropriate sanction. (§ 128.7, subd. (c).) By presenting papers to the Court, the attorney certifies that he or she has read the papers and “to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances:” it is not presented primarily for an improper purpose, that it is warranted under existing law “or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” and that the allegations and factual contentions have evidentiary support. (CCP § 128.7.)

Sanctions are available under CCP § 128.7 where a paper is frivolous, legally unreasonable or without factual foundation. “The actual belief standard…requires a well-founded belief. We measure the truth-finding inquiry’s reasonableness under an objective standard and apply this standard both to attorneys and to their clients.” (Bockrath v. Alridch Chem. Co., Inc. (1999) 21 Cal.4th 71, 82.)

Here, the Court finds that the underlying motion, while ultimately unsuccessful and ultimately found to be another motion for reconsideration (the Court previously sanctioned Plaintiffs for the prior reconsideration motions), was not brought “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” or otherwise violates CCP 128.7. Indeed, the Court only found the motion to be another motion for reconsideration because the requirements of CCP § 473 were not met. The Plaintiffs maintained that the failures of former counsel to present all of the relevant evidence, which would have showed that the fence violated state and local fire code regulations, placed them in the difficult predicament of violating a Court order or state and local regulations.

Under these circumstances, the Court cannot say that the underlying motion was primarily brought for an improper purpose or otherwise in violation of CCP 128.7 such that sanctions are appropriate, despite the fact that it was denied. Indeed, while Plaintiffs’ prior counsel may have sought reconsideration and even relief pursuant to CCP § 473, it was not objectively unreasonable for prior counsel to attempt to argue that former counsel did not adequately address the issue raised by the underlying motion, specifically, the alleged conflict between the June 3, 2013, order and state and local regulations. The Court finds that Plaintiffs’ counsel, having reviewed the record after being retained by Plaintiff subsequent to the June 3, 2013 Order, which does not specifically mention state or local fire code regulations could reasonably believe that a motion pursuant to CCP § 473 on the basis that former counsel failed to adequately present evidence of an apparent conflict between the Order and such regulations was reasonable and not brought primarily for an improper purpose. This underlying motion was not one that this Court believes any reasonable attorney would find totally devoid of merit. Indeed, as seen from Plaintiffs’ request for judicial notice, Plaintiffs were recently issued a notice to correct the location of the fence by the Sacramento Metropolitan Fire District.

Under such circumstances, it cannot be said that the underlying motion meets the standard for sanctions under CCP § 128.7, specifically, that the action was presented primarily for an improper purpose, that the allegations/factual contentions are not warranted by existing law or a nonfrivolous argument for extension of existing law, and that the allegations/factual contentions do not have or are not likely to have evidentiary support. Further, the Court is aware of Defendants’ argument that sanctions are available where a motion for reconsideration is not properly made. (CCP 1008(d).)

But sanctions for a violation of CCP § 1008 are only available “as allowed by Section 128.7.” (Id.) As set forth above, the Court founds that sanctions were not appropriate under Section 128.7.

Finally, the Court received Plaintiffs’ “motion to strike new arguments in the defendants’ reply papers in support of the motion for an award of sanctions” seeking to strike Defendants’ arguments in reply that sanctions were permissible pursuant to CCP § 128.7(b)(2) [claims/defenses/contentions warranted by existing law or nonfrivolous argument for extension of law] and (b)(3) [allegations/contentions have evidentiary support] on the basis that the moving papers only argued that sanctions were permissible because the underlying motion was brought for an improper purpose to harass Defendants and needlessly increase the cost of litigation. Plaintiffs are correct that Defendants did not base their motion on these two subdivisions and thus it would be unfair to consider any arguments raised in reply for the first time based on those subdivisions. In any event, as can be seen from the above, regardless of the particular subdivision, sanctions are not appropriate under CCP § 128.7.

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.