17-CIV-05803 ROBERT LINDOW VS. DARREN WALLACE, ET AL.

ROBERT LINDOW DARREN WALLACE
PRO/PER RUIZ F. JESSE

MOTION TO SANCTION TENTATIVE RULING:

The moving parties (Defs) complied with the “safe harbor” requirement re 128.7 motions. In the Court’s discretion, Defendants Darren Wallace et. al.’s Motion for Sanctions against Plaintiff Robert Lindow, filed pursuant to Code Civ. Proc. § 128.7, is DENIED.

Normally, 128.7 sanctions are reserved for fairly blatant, bad conduct. See Rutter Group excerpts below:

[9:1211] Sanctions discretionary: Sanctions under CCP § 128.7 are discretionary. The court is not required to impose a monetary sanction or any sanction at all. [See CCP § 128.7(c); see Kojababian v. Genuine Home Loans, Inc. (2009) 174 CA4th 408, 421, 94 CR3d 288, 298]

[9:1212] Policy of restraint? Federal cases have adopted a policy of restraint in imposing sanctions under Rule 11, resolving doubts in favor of the party against whom sanctions are sought. It is treated as an “extreme” remedy and reserved for the “rare and exceptional case where the action is clearly frivolous.” [Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F2d 1336, 1344] It remains to be seen whether California courts will follow the same policy in imposing sanctions under CCP § 128.7.

Here, in the underlying motion, Plaintiff Lindow sought multiple forms of relief:

(1) he sought to introduce evidence (the grant deeds and notary documents) that was not presented to the Court in the context of the prior motion; and (2) he sought to stop Defendant from selling P’s personal property that had been left in the Aptos property (which he stated, in the declaration supporting the underlying motion, belong to him and have significant value).

As to issue No. 1 (above) (the additional evidence), as the Court’s Order denying his prior motion stated, this was an improper, and untimely, motion for reconsideration, which was both procedurally and substantively flawed. It was filed too late (beyond the 10-day rule under CCP 1008). And it is true, as Defendants argue, that none of those documents (the grant deeds and notary pages) constituted “new” evidence; nor did P explain, in his prior motion, how these documents constitute new evidence, or whether they were unavailable previously. Thus the motion was properly denied as a late and meritless motion for reconsideration. Apparently these two grant deeds were on Plaintiff’s computer. P gave no indication these documents were “new” or unavailable when the prior motion was litigated (when the Court issued the stay). P didn’t state/explain when, where, or how he obtained these “new” documents – or how any of it constitutes “new” evidence.

However, as to Issue No. 2 (above) (his personal property being sold), this at least appears to have been something new (since the prior motion), and P arguably has a legitimate interest in his personal items being sold/destroyed. In his declaration supporting the underlying motion, Plaintiff stated that, at a court hearing in a related case in Santa Cruz County, Plaintiff and an attorney who representing another party “entered into an agreement” that the Aptos home at issue in this case (in which Plaintiff’s personal belongings are apparently stored) would not be listed for sale. Plaintiff’s declaration states that “recently, the home was listed for sale,” along with P’s personal belongings, some of which apparently were auctioned off.

Given plaintiff the benefit of the doubt, this was legitimate grounds to seek a partial lift of the stay (to protect his personal belongings that he purportedly believed, based on the representations of another attorney, would not be sold). Although the motion was denied, this request was not clearly baseless. Under the circumstances, the Court declines to issue sanctions at this time.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.