Case Number: SC128296 Hearing Date: November 27, 2018 Dept: M

CASE NAME: Chulak & Associates v. Denise Kurtzer

CASE NUMBER: SC128296

HEARING DATE: 11/27/2018

TRIAL DATE: N/A

NOTICE: OK

MOTION: Defendant’s Request for Sanctions under Cal. Code of Civ. Proc. §128.5

HELD: DENIED

TENTATIVE RULING

Background

Plaintiff attorney filed this action against his past client for unpaid legal fees. Plaintiff served Defendant with a complaint and summons via publication on April 4, 2018. Default was entered on April 16, 2018, but was set aside on May 24, 2018 for having been prematurely requested. Defendant requests sanctions under Cal. Code of Civ. Proc. §128.5 for Plaintiff’s premature filing for default. In return, Plaintiff also seeks sanctions against Defendant on the grounds that she evaded service of the summons and complaint.

Merits

Under Cal. Code of Civ. Proc. §128.5 a party that engages in frivolous “actions or tactics” or files a frivolous pleading, petition, or motion can be subject to monetary sanctions. A filing is frivolous if it is “totally and completely without merit.” Sanctions are also available as a result of actions or tactics made in bad faith or are solely intended to cause unnecessary delay.

Defendant argues that sanctions are appropriate for two reasons: first, because Plaintiff’s entry of default was premature, and second because Plaintiff failed to respond to a series of emails from Defendant’s counsel, thereby violating the “rules of civility.” (Motion to set aside default at pgs. 8:15-9:13.). As to this second accusation, Plaintiff’s counsel Michael T. Chulak responds that he only received one email (on March 28, 2018) from Defendant’s counsel Steve Losh and that email had a subject line stating “Denise Chulak,” a name not associated with any ongoing matter. Chulak also states that he was unaware that Defendant was represented by Steve Losh at the time the email was sent. (Declaration of Michael Chulak at ¶11). No evidence was submitted that attorney Losh attempted to call or send a letter to attorney Chulak informing him that Losh represented Defendant.

Requests for Sanctions are all DENIED. First, both motions for sanctions are procedurally improper in that CCP § 128.5(f)(1)(A) mandates that “[a] motion for sanctions under this section shall be made separately from other motions or request . . . .” Here, Defendant’s request for sanctions was included in her Motion to Set Aside Default and Plaintiff’s motion is included in its Opposition to Set Aside Default brief. Furthermore, Defendant’s motion did not fulfill the 21 day “Safe Harbor” provision of § 128.5(f)(1)(B), which requires that Plaintiff be given 21 days to withdraw his offending request for default before Defendant’s motion for sanctions can be filed.

Even if both parties had properly followed procedure in their sanctions requests, neither side proven to this Court that the accused improper actions arise to the level of “bad faith” actions or tactics “that are frivolous or solely intended to cause unnecessary delay.” § 128.5(a).

Motions DENIED.