Case Number: BC511210    Hearing Date: July 15, 2014    Dept: 46

Posted 7-14-2014 at 12:25 p.m.
Calendar Matter #7 on 7-15-2014 at 8:30 a.m.

Case Number: BC511210
GUADALUPE VARGAS VS WILSHIRE LAW FIRM ET AL
Filing Date: 06/10/2013
Case Type: Infliction of Emotional Distress (General Jurisdiction)
Status: Pending
Future Hearings

07/15/2014

MOTIONS: (1): Defendant’s Motion for Sanctions Against Plaintiff Pursuant to CCP § 128.7 [re: P’s Motion for Reconsideration of Court’s 02/10/14 Order];
(2): Defendant’s Motion for Sanctions Against Plaintiff Pursuant to CCP § 128.7 [re: P’s Motion for Reconsideration]; and,
(3) Defendant’s Motion for Sanctions Against Plaintiff Pursuant to CCP § 128.7 Re P’s Motion for Summary Judgment

TENTATIVE RULING: (1) Motion is unopposed and is granted in part
(2) Motion is unopposed and is granted in part
(3) Motion is unopposed and is granted in part

1. On 6/10/13, Guadalupe Vargas [“P”] filed her complaint for (1) Tortious Wrongful Discharge Discipline and Demotion in Violation of Public Policy; (2) Breach of Implied and/or Express Contract of Continued Employment; (3) Constructive Termination; (4) Breach of Implied K and Good Faith and Fair Dealing; (5) Defamation & Misrepresentation; (6) Ratification; (7) Future Loss of Warnings—Prospective Interference with Economic Advantage (P has done everything to Mitigate her Damages); (8) Punitive Damages—Exemplary Damages and (9) Conclusion—Compel Immediate Arbitration against Ds Wilshire Law Firm (hereinafter, “WLF”); Bobby Saadian (hereinafter, “Saadian”) and DOES 1-10.

2. On 8/27/13, Defendants answered the complaint.

3. On 6/18/14 the Court denied P’s MSJ.

4. On 6/24/14 the Court denied P’s Motion for Reconsideration. On 7/01/14 the Court denied P’s other Motion for Reconsideration.

5. Motion #1. Wilshire Law Firm [“WLF”] moves this Court, per CCP § 128.7 to levy monetary attorney’s fees and costs sanctions in the amount of $4,800.00 [calculated as follows: 4 hours preparing motion, 3 hours on reply and appearing, 2 hours reviewing and opposing P’s Motion for Reconsideration, 3 hours appearing at $395.00 per hour + $60.00 filing fee] against P upon the grounds that P’s Motion for Reconsideration of this Court’s February 10, 2014 Order is baseless in that it lacks any new or different facts, circumstances, or law.

6. WLF’s requests for judicial notice of Exhibits A-C (certified hearing transcripts) are GRANTED to the extent that the court may take judicial notice of these documents.

7. WLF’s motion is GRANTED IN PART pursuant to CCP §128.7. The Motion for Reconsideration Per California Code of Civil Procedure Section 1008 on February 20, 2014 was not based on new or different facts, circumstances, or law, and was filed in violation of CCP § 128.7(b)(1)-(2). The Court awards monetary sanctions in the reduced amount of $1,640.00 in order to deter repetition of this conduct by P.

CCP § 128.7(e) notice regarding first motion for reconsideration: Conduct of P that constitutes a violation of CCP §128.7: A party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. The moving party’s burden is the same as that of a party seeking new trial on the ground of ‘newly discovered evidence, material of the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. The motions filed by P for reconsideration merely asked for a different ruling on the same facts which is inappropriate under the law. Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

8. Safe Harbor. P was given adequate notice to withdraw the motion under the safe harbor provisions of CCP §128.7(c)(1)

8.a. CCP § 128.7(c)(1) includes a safe harbor provision, which states: “Notice of motion 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.” “Strict compliance with the statute’s notice provisions serves its remedial purpose and underscores the seriousness of a motion for sanctions.” Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538. “A party does not comply with the notice provisions of section 128.7 simply by sending a letter of its intent to seek sanctions to the offending party.” Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700. Failure to comply with CCP § 128.7’s safe harbor provision precludes an award of sanctions. Ibid.

8.b. Here, P filed the Motion for Reconsideration Per California Code of Civil Procedure Section 1008 on February 20, 2014. D WLF served the instant Motion on P on May 20, 2014 via US Mail and did not file it until June 16, 2014 (27 days difference), so therefore D complied with the safe harbor provision.

8.c. WLF has complied with the safe harbor provision. P has repeatedly filed improper motions in this case and sanctions are warranted in order to deter this behavior in the future. In addition, the hearing transcripts included in WLF’s requests for judicial notice indicate that the Court warned P that she would be subject to sanctions. RJN Exhibits A-C.

9. Calculation of Sanctions. In the court’s view, the amount of the fee request is overstated. D WLF requests $4,800.00 [calculated as follows: 4 hours preparing motion, 3 hours on reply and appearing, 2 hours reviewing and opposing P’s Motion for Reconsideration, 3 hours appearing at $395.00 per hour + $60.00 filing fee]. Ahdoot Decl., ¶¶3-5. However, no Opposition was filed, counsel’s office is in Encino which is 30 minutes from the courthouse, and all three of WLF’s 128.7 Motions are similar and will be heard on the same day (July 15, 2014). Therefore, the Court reduces the request and awards $1,640.00 [calculated as follows: 2 hours on Motion, 1 hour for appearance, 1 hour opposing P’s Motion for Reconsideration at $395 per hour + $60 filing fee].

10. Motion #2. WLF moves this Court, per CCP § 128.7 to levy additional monetary attorney’s fees and costs sanctions in the amount of $4,207.50 against P upon the grounds that P’s Second Motion for Reconsideration (filed on May 9, 2014) is baseless in that it lacks any new or different facts, circumstances, or law and was filed in violation of CCP § 128.7(b)(1)-(2) is GRANTED in PART. However, as the Court has already awarded sanctions for DLF’s other 128.7 motion being heard today, it should not find that additional monetary sanctions are needed to deter repetition of this conduct by P.

10.a. CCP § 128.7(e) notice regarding second motion for reconsideration: Conduct of P that constitutes a violation of CCP §128.7: A party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. The moving party’s burden is the same as that of a party seeking new trial on the ground of ‘newly discovered evidence, material of the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. The motions filed by P for reconsideration merely asked for a different ruling on the same facts which is inappropriate under the law. Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

10.b. Safe Harbor provision. P filed her Motion for Reconsideration Under CCP Section 1008(b) on May 9, 2014. WLF served the instant Motion on P on May 14, 2014 via US Mail and did not file it until June 18, 2014 (35 days difference), so therefore D complied with the safe harbor provision.

10.c. P’s Motion for Reconsideration Under CCP Section 1008(b) is baseless in that it lacks any new or different facts, circumstances, or law, and the Court should award monetary sanctions as a result. Per CCP § 128.7(i), section 128.7 shall apply to “any other pleading, written notice of motion, or other similar paper filed in that matter.” On April 30, 2014, the Court denied P’s Motion for Reconsideration by adopting its tentative ruling as the final ruling. According to the tentative ruling, the Court denied P’s Motion for Reconsideration on procedural grounds as the order was issued by Judge Murphy, not Judge Shaller. The Court also stated that the Motion was deficient and does not support a different ruling in that the motion is based solely on P’s disagreement with the ruling. In addition, a review of P’s Motion for Reconsideration shows that P failed to provide any new or different facts, circumstances, or law, but instead argued that the Court simply should have ruled in P’s favor. These are not the proper grounds by which a party brings a motion for reconsideration. Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. Accordingly, the Court finds that P’s Motion was presented primarily for an improper purpose and her claims or other legal contentions therein were not warranted by existing law or by a nonfrivolous argument for their extension, modification, or reversal. CCP § 128.7(b)(1)-(2). In addition, P has not opposed the instant Motion or provided the Court with any reason why her Motion for Reconsideration was proper.

11. Motion #3 – WLF moves this Court, per CCP § 128.7 to levy monetary attorney’s fees and costs sanctions in the amount of $5,590.00 [calculated as follows: 2 hours preparing motion, 3 hours on reply and appearing, 5 hours reviewing and opposing P’s MSJ, 4 hours appearing at $395.00 per hour + $60.00 filing fee] against P upon the grounds that P’s Motion for Summary Judgment is baseless in that it lacks any facts, circumstances or law that would support Summary Judgment nor are any of the legal contentions therein warranted by existing law, or by a nonfrivolous argument for their extension, modification, or reversal of existing law or the establishment of new law. The motion is GRANTED in PART because P’s Motion for Summary Judgment was not based on a showing that there is no defense to the causes of action asserted in P’s Complaint but was instead filed in violation of CCP §128.7(b)(1)-(2). As the Court has already awarded sanctions for WLF’s other 128.7 motions being heard today a lesser amount of additional monetary sanctions are needed to deter repetition of this conduct by P. The fees are reduced to $1,245.00.

11. a. CCP § 128.7(e) notice regarding second motion for summary judgment: Under CCP § 437c(p)(1) a plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. As explained by the Court’s Minute Order from June 18, 2014, P’s Motion for Summary Judgment failed to meet this requirement in any way. “As a general rule, inadmissible evidence can neither support nor defeat a summary judgment” (Ibarbia v. Regents of Univ. of Cal. (1987) 191 Cal.App.3d.318, 1330) and “‘[g]eneralities and conclusions will not suffice in the moving party’s declarations’” (Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 22 n.17). “[D]eclarations of the moving party are strictly construed, those of the opposing party are liberally construed, and all doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on finding issues of fact; it does not resolve them.” Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143-1144.

11.b. Safe Harbor notice. P filed her Motion for Summary Judgment on February 20, 2014. WLF served the instant Motion on P on May 23, 2014 via US Mail (filed on June 18, 2014) so therefore D complied with the safe harbor notice provision.

11.c. Grounds for sanctions are shown. CCP “section 128.7 applies solely to attorney misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers.” Clark v. Optical Coating Lab. (2008) 165 Cal.App.4th 150, 164. A violation of any of the conditions of Section 128.7(b) (which includes (1) improper purpose, (2) frivolous claims, defenses or contentions, (3) lack of evidentiary support or likely support and (4) lack of evidentiary support or reasonable bases on lack of information as to denials), may support an award of sanctions. Eichenbaum v. Alon (2003) 106 Cal. App. 4th 967, 976. Courts have discretion as to whether to impose sanctions under Code of Civil Procedure Section 128.7, and will not be reversed absent arbitrariness or a manifest miscarriage of justice. Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422; Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698 (appellate courts “generally review orders for monetary sanctions under the deferential abuse of discretion standard.”); Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.

11.d. P’s “Motion for Summary Judgment was baseless in that it lacked any facts, circumstances, or law that would support Summary Judgment and there were no legal contentions therein warranted by existing law, or by a nonfrivolous argument for their extension, modification, or reversal of existing law or the establishment of new law.” Per CCP § 128.7(i), section 128.7 shall apply to “any other pleading, written notice of motion, or other similar paper filed in that matter.” P’s Motion for Summary Judgment was presented primarily for an improper purpose and P’s claims or other legal contentions therein were not warranted by existing law or by a nonfrivolous argument for their extension, modification, or reversal. CCP § 128.7(b)(1)-(2).

11.e. The Court awards sanctions for this Motion in the amount of $1,245.00, which is less than that which was requested. The sum is calculated as follows: 1 hour on Motion, 2 hours opposing P’s MSJ at $395 per hour + $60 filing fee.