Case Number: BD530826 Hearing Date: May 09, 2016 Dept: 59

DEPT: 59

DATE: 5/9/16

CALENDAR #: 13

MATTER: RFO FOR C.C.P. SEC. 128.7 SANCTIONS OF AT LEAST $28,695 AGAINST PETITIONER & ATTORNEY FRANK SANDELMANN & HIS LAW FIRM; REQUEST FOR ATTORNEY FEES AND COSTS RE CIVIL SUIT

FILING DATE: 4/1/16

MOVING PARTY: Respondent, Michael Wilson

RESPONDING PARTY: Petitioner/Plaintiff, Mary Jones Wilson (“Plaintiff”, Frank Sandelmann and Dinsmore & Sandelmann LLP (“Sandelmann and his firm”)

CASE NUMBER: BD530 826

NOTICE: ok

TENTATIVE RULING: Grant, in part, as follows: (1) Make a finding that the award of $28,695 in sanctions, previously imposed on Petitioner, is also supported by Code of Civil Procedure 128.7 and (2) make said sum payable jointly and severally with Frank Sandelmann and his firm, Dinsmore and Sandelmann, LLP.

REASONING:
1. Respondent has complied with the safe harbor provision of Code of Civil Procedure 128.7(c)(1)which states:

A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but 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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(Code of Civil Procedure 128.7(c)(1) (emphasis added).)
On 3/10/16, moving counsel sent a copy of this RFO to Sandelmann & his firm, along with a cover letter indicating that Respondent intends to file the RFO if Petitioner does not voluntarily dismiss the civil action. (Exhibit B.)
Petitioner argues that the parties did not have an agreement authorizing service via email. However, by letter dated 12/3/15, Sandelmann and his firm advised moving counsel:

First, I note that despite my repeated requests, you continue to refuse to send me correspondence via e-mail, and instead, continue to fax correspondence to my office and then program your fax machine not to accept facsimiles sent from my office. This behavior, while unprofessional, is not unexpected in light of your prior actions. Nonetheless, I reiterate my request that you send me communications via e-mail, rather than facsimile.

(Exhibit 4 to Reply (emphasis added).)
Given that harsh request, e-mailing the RFO, which is a communication, was valid service. As it was done 22 days before the motion was filed on 4/1/16, Petitioner and Sandelmann and his firm received the safe harbor notice required by Code of Civil Procedure 128.7(c)(1).
2. The court has jurisdiction to rule on the motion and the motion is not moot, since it was served before the court sustained the demurrer without leave to amend on 3/30/16. In Day v. Collingwood (2006) 144 Cal.App.4th 1116, the court stated:

On appeal, the Banks court concluded that the “trial court erred in ruling that it ‘lost jurisdiction’ to award sanctions.” ( Banks, supra, 97 Cal.App.4th at p. 953, 118 Cal.Rptr.2d 803.) The Banks court noted that the trial court had misconstrued dicta in Cromwell v. Cummings (1998) 76 Cal.Rptr.2d 171, 65 Cal.App.4th Supp. 10, 13 ( Cromwell ) that suggested that a sanctions motion “brought” after a dispositive judicial ruling on an improper pleading is untimely. (See Banks, supra, 97 Cal.App.4th at p. 953, 118 Cal.Rptr.2d 803.) The Banks court explained that the effect of the safe harbor provision of section 128.7, subdivision (c)(1) is that a trial court’s ruling on an improper pleading bars consideration of a sanctions motion if the ruling is made before the sanctions motion “is served and filed.” ( Banks, supra, 97 Cal.App.4th at p. 954, 118 Cal.Rptr.2d 803, italics added.)

[7] The Banks court concluded that the defendants in that case “served the motion for sanctions and demurrer in proper sequence” and that the “trial court erred in ruling that the sustaining of the demurrer eviscerated [defendants’] right to seek sanctions.” ( Banks, supra, 97 Cal.App.4th at p. 954, 118 Cal.Rptr.2d 803.) Banks makes clear that a section 128.7 motion that is served in compliance with the section 128.7, subdivision (c)(1) safe harbor provision need not be filed until after a final ruling on a challenged pleading. ( Banks, supra, 97 Cal.App.4th at p. 954, 118 Cal.Rptr.2d 803.)

Respondents rely on a number of cases in which courts have concluded that a motion for sanctions under section 128.7 that is not served sufficiently in advance of a dispositive ruling on the challenged pleading fails to comply with the safe harbor provision set forth in section 128.7, subdivision (c)(1). (See, e.g., Barnes, supra, 74 Cal.App.4th at p. 128, 87 Cal.Rptr.2d 594 [“a section 128.7 sanctions motion served and filed by a defendant after judgment has been entered cannot properly be granted if the conduct alleged to be sanctionable is the improper filing and/or advocating of the plaintiff’s complaint”], Cromwell, supra, 76 Cal.Rptr.2d 171, 65 Cal.App.4th Supp. at p. 13 [concluding motion for sanctions filed three days after service of motion violated safe harbor provision of section 128.7].) FN4

However, for the reasons stated in Banks, neither Barnes nor Cromwell is dispositive in this case. Unlike those cases, Collingwood complied with the safe harbor provision of section 128, subdivision (c)(1). Collingwood served his motion for sanctions on April 8, 2005 and requested that respondents dismiss the action against him. The respondents did not dismiss the action against Collingwood within the 21–day safe harbor period. Because the trial court did not grant Collingwood’s motion for summary judgment until May 13, respondents had the full safe harbor period within which to dismiss the action.

Accordingly, the trial court erred in concluding that Collingwood’s motion was moot because it was filed after the trial court had entered a dispositive ruling on the merits of the action.

(Day v. Collingwood, supra, 144 Cal.App.4th at 1128-1129.)
As set forth above, this RFO was served by email on 3/10/16. Therefore, even though this RFO was filed on 4/1/16, which was after the court sustained the demurrer without leave to amend on 3/30/16, the court has jurisdiction to rule on this request and the request is not moot, since it was served before the court’s ruling on 3/30/16.
3. Respondent has shown that the claims and/or other legal contentions in the civil action are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (Code of Civil Procedure 128.7(b)(2).) Petitioner knew the civil action was time-barred when she filed it, and the civil action was based on the same facts and controversy that was bifurcated for trial and set for TSC in the dissolution action when the civil action was filed. As in Burkle v. Burkle, Petitioner filed the civil suit while the dissolution action was pending, and the civil action “was bound to be dismissed . . . .” (Burkle v. Burkle (2006) 144 CA4th 387, 403, fn. 7.)
4. However, on 4/5/16, the court ordered Petitioner to pay, pursuant to Family Code 271, $28, 695, which is not only the same amount of attorney’s fees and costs requested herein, but also the exact same attorney’s fees and costs incurred by Respondent. Nevertheless, the court finds that the order previously imposed on Petitioner is also supported by Code of Civil Procedure 128.7. Moreover, the court now orders Sandelmann and his firm to pay these same attorney’s fees and costs joint and severally with Petitioner.
In Burkle v. Burkle, supra, the trial court ordered wife to pay sanctions of $32,950 under both Family Code 271 and Code of Civil Procedure 128.7:

. . . After the trial court in the civil action sustained Mr. Burkle’s demurrer, a hearing was held before Judge Lachs on the sanctions motion. Judge Lachs found that by filing her civil action, Ms. Burkle knowingly acted in a manner which frustrated the policy of the law to reduce litigation costs and encourage cooperation between litigants and attorneys. He ordered her to pay $32,950—which represents Mr. Burkle’s attorney fees and costs in connection with the civil action—to Mr. Burkle as sanctions under Family Code section 271. Judge Lachs also found Ms. Burkle’s contentions with respect to the proper forum for her action were frivolous, and ordered her and her attorneys to pay $32,950 to Mr. Burkle as sanctions under Code of Civil Procedure section 128.7.

(Burkle v. Burkle, supra, 144 CA4th at 393.)
Nevertheless, Respondent appears to request that Petitioner and Sandelmann and his firm to pay $28,695 in addition to the $28,695 already ordered. The law does not support such an order.
a. Re Family Code 271:
i. The plain language of Family Code 271 only provides for “an award of attorney’s fees and costs” and does not provide for a punitive award. (Family Code 271. See also Bidna v. Rosen (1993) 19 Cal.App.4th 27 (holding that former Civil Code 4370.6 (now Family Code 271) does not allow a party to obtain punitive damages); In re Marriage of Quay (1993) 18 Cal.App.4th 961 (holding that an award under Family Code 271 may include attorney’s fees and costs which were not incurred as a result of the sanctionable conduct).)
ii. Family Code 271 sanctions can only be assessed against the party, not the party’s attorney. (Marriage of Daniels (1993) 19 CA4th 1102, 1110; Hogoboom & King, Cal. Practice Guide: Family Law, Section 14:236. See also Family Code 271.)
b. Re Code of Civil Procedure 128.7:
i. Similar to Family Code 271, except under circumstances not applicable here, a money award under Code of Civil Procedure 128.7 is limited to attorney’s fees and costs. However, in contrast to Family Code 271, the court may only award, under section 128.7, attorney’s fees and costs incurred as a direct result of the sanctionable conduct. Code of Civil Procedure 128.7 states, in pertinent part:

(d) 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 others 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).
(2) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
. . .
(f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.

(Code of Civil Procedure 128.7 (emphasis added).)
ii. In contrast to Family Code 271, Code of Civil Procedure 128.7 sanctions may be imposed against the party’s attorney, not just the party. Code of Civil Procedure 128.7(c) states:

(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(Code of Civil Procedure 128.7(c) (emphasis added).)
Accordingly, the court may not order Petitioner and Sandelmann and his firm to pay an additional $28,695, as those attorney’s fees and costs have already been awarded under Family Code 271. Rather, the court is limited to: (1) Making a finding that the award of $28,695 in sanctions, previously imposed on Petitioner, is also supported by Code of Civil Procedure 128.7 and (2) Ordering Sandelmann and his firm to pay these same attorney’s fees and costs joint and severally with Petitioner.
5. Re Petitioner’s request for affirmative relief: Deny.
Even if the court were to deny this RFO, Petitioner has failed to show that this request was brought primarily for an improper purpose. Code of Civil Procedure 128.7(h) states:

A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.

(Code of Civil Procedure 128.7(h) (emphasis added).)

LAW: Code of Civil Procedure 128.7 states:

(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
(b) 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 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.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.
(1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but 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. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.
(d) 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 others 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).
(2) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.
(f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.
(g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.
(h) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.
(i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.

(Code of Civil Procedure 128.7 (emphasis added).)