Case Number: YC072653 Hearing Date: November 07, 2019 Dept: B

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

KENNETH L. CREAL, et al.,

Plaintiffs,

Case No.:

YC072653

vs.

[Tentative] RULING

AMITISS NASIRI,

Defendant.

Hearing Date: November 7, 2019

Moving Parties: Plaintiffs Kenneth L. Creal, et al.

Responding Party: None

Motion for Sanctions

The court considered the moving papers.

RULING

The motion is DENIED.

BACKGROUND

On February 1, 2018, plaintiffs Kenneth L. Creal and Kenneth L. Creal, an accountancy corporation filed a complaint against Amitiss Nasiri for libel based on a negative Yelp review.

On March 2, 2018, Nasiri (self-represented) filed a cross-complaint for IIED, invasion of privacy, intentional breach of fiduciary duty, negligence per se, and injunctive relief.

On June 10, 2019, plaintiffs filed a First Amended Complaint for (1) defamation per se, (2) defamation per quod, (3) trade libel, and (4) intentional infliction with prospective economic advantage.

On August 30, 2019, the court denied defendant Nasiri’s special motion to strike.

LEGAL AUTHORITY

CCP §128.7(b) states: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and the other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .”

CCP §128.7(c) states: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction under the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation . . . .”

CCP §128.7(d) states: “A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by other similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation. (1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b). . . .”

“’The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request.’” Liberty Mut. Fire Ins. Co. v. McKenzie (2001) 88 Cal. App. 4th 681, 692 (citation omitted). “It therefore follows that to avoid the sanctions sought pursuant to Code of Civil Procedure section 128.7, it is not sufficient for the offending party to simply take action to correct or withdraw the challenged pleading . . . . The offending party must also give notice to the moving party that it has taken that step. Absent that notice, the moving party has no knowledge that the problem has been resolved and consequently it will proceed (as it had warned the offending party it would do) with filing the sanctions motion with the court.” Id.

Sanctions under section 128.7 are discretionary. The court is not required to impose a monetary sanction or any sanction at all. See CCP §128.7(c); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal. App. 4th 408, 421.

“If warranted,” the court may award the prevailing party its reasonable expenses and attorney fees “incurred in presenting or opposing the motion.” CCP §128.7(c)(1).

“A trial court is to apply an objective standard in making its inquiry concerning the attorney’s for party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7.” Optimal Markets, Inc. v. Salant (2013) 221 Cal. App. 4th 912, 921. “A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute. However, the sanctions statute “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative through sensible way. . . .’” Peake v. Underwood (2014) 227 Cal. App. 4th 428, 441 (citation omitted).

DISCUSSION

Plaintiffs request sanctions and reasonable attorney’s fees and costs against defendant and cross-complainant Amitiss Nasiri and her attorney of record, Paul Carter of Bergkvist Bergkvist & Carter in the amount of $5,661.65. Plaintiffs argue that defendant’s motion for reconsideration is without factual or legal merit and was filed primarily for an improper purpose to harass plaintiffs, delay discovery, and delay the trial.

The court finds that in filing the motion for reconsideration, defendant did not violate §128.7(b).

The motion is DENIED.

Plaintiffs are ordered to give notice of the ruling.