Case Number: LC098579    Hearing Date: July 22, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MALIHE RABBANI,
Plaintiff(s),
vs.

TRADER JOE’S COMPANY, ET AL.,

Defendant(s).

CASE NO: LC098579

[TENTATIVE] ORDER DENYING MOTION FOR SANCTIONS

Dept. 92
1:30 p.m. — #37
July 22, 2014

Defendant, Trader Joe’s Company, Inc.’s Motion for Sanctions is Denied.

1. Allegations of Complaint
Plaintiff, Malihe Rabbani filed this action against Defendants, Trader Joe’s Company and Pepper Lane-Branham, LLC for damages arising out of a slip and fall incident. The operative FAC, filed on 1/11/13, contains causes of action for premises liability and general negligence. Plaintiff alleges Defendants’ property was dangerous as a result of a foreign substance on the floor and/or because the floor was inherently slippery, and that Defendants had actual and/or constructive notice of the foreign substance such that they should have remedied the condition or warned Plaintiff of same. The foreign substance has since been identified by Plaintiff as soup that Defendant was providing as samples to customers in the store.

2. Prior Rulings
On 1/30/14, the Court heard Defendant’s MSJ; the Court took the matter under submission. On 3/05/14, the Court issued an order denying the MSJ. On 7/03/14, the Court heard Plaintiff’s motion for reconsideration. The Court took the matter under submission, but issued a formal ruling later the same day. The Court denied the motion for reconsideration and imposed sanctions in the amount of $900 against Plaintiff and her attorney of record.

3. Motion for Sanctions
a. Background Facts
On 6/06/14, Defendant served a motion for sanctions on Plaintiff, seeking sanctions per CCP §128.7 for Plaintiff’s filing of a “frivolous” motion for sanctions. Defendant waited until the “safe harbor” period passed, and then filed the motion on 6/27/14. The Court denied the motion for reconsideration on 7/03/14.

b. Law Regarding §128.7 Sanctions
Section 128.7 requires that at least one attorney, or the party if he/she is not represented by an attorney, sign all pleadings, petitions, notices of motions and other similar papers. (CCP ¿128.7(a).) The signature indicates that the attorney, or party, certifies that: the paper is not being presented for an improper purpose; the legal contentions are warranted by law or non-frivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence. (CCP ¿128.7(b).) If the court determines, after notice or a reasonable opportunity to respond, that the attorney or party improperly certified the document, it may impose an appropriate sanction. (CCP ¿128.7(c).) In determining whether or not to order sanctions, the court is required to consider due diligence of the party seeking sanctions.

c. Parties’ Arguments
Defendant argues Plaintiff’s motion for reconsideration was filed in violation of CCP §128.7, in that it was patently frivolous. Defendant argues the fact that the Court had already entered judgment rendered the motion moot, and there were absolutely no new facts or law presented by way of the motion.

Plaintiff opposes the motion, arguing (a) the motion was effectively taken off calendar via the notice of appeal; (b) the Court lacks jurisdiction over the motion for sanctions due to entry of judgment; (c) the motion was not frivolous; and (d) the amount of sanctions requested is unreasonable.

d. Notice of Appeal
Plaintiff’s first argument is that the notice of appeal effectively mooted the motion for reconsideration. A motion for reconsideration is not proper after judgment has been entered. See APRI Ins. Co. v. Sup.Ct. (Schatteman) (1999) 76 CA4th 176, 181. The Court can, however, treat a motion for reconsideration as a motion for new trial once judgment has been entered. See 20th Century Ins. Co. v. Sup.Ct. (Ahles) (2001) 90 CA4th 1247, 1259–1260.

A stay on appeal does not affect the trial court’s jurisdiction to hear and determine a new trial motion … even after an appeal has been taken from the underlying judgment. Varian Med. Systems, Inc. v. Delfino (2005) 35 C4th 180, 191. In contrast, a stay on appeal from an appealable order deprives the trial court of jurisdiction to adjudicate a motion for reconsideration of that order, because the motion for reconsideration is not collateral to the appealed order. Young v. Tri–City Healthcare Dist. (2012) 210 CA4th 35, 51–53.

To the extent this was a motion for reconsideration, both entry of judgment and also the notice of appeal took the hearing on the motion off calendar. Notably, the Court’s prior ruling expressly indicated that the motion, itself, was moot. The Court went on to note that the motion also lacked substantive merit; this ruling, however, was only an additional ground for denial of the motion, and did not change the fact that the motion was moot.

Notably, the parties themselves, including Plaintiff, insisted on keeping the motion on calendar. To the extent the motion was moot, but Plaintiff insisted on keeping it on calendar, it cannot be said that Plaintiff “complied with the safe harbor provision” by filing a notice of appeal.

e. Lack of Jurisdiction
Plaintiff’s next argument is that the Court lacks jurisdiction over this motion due to the entry of judgment. Plaintiff cites Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 128 to support this position. The Court in Barnes, however, was concerned with compliance with the safe harbor provision of §128.7. The Court held that the motion did not provide a “safe harbor” because the case went to judgment during the safe harbor period, rendering the allegedly frivolous motion moot.

In this case, Plaintiff refused to take her motion for reconsideration off calendar in light of the entry of judgment. She refused, therefore, to acknowledge that her motion was moot. The circumstances, therefore, are not analogous.

c. Motion Not Frivolous
The Court already held, in connection with the underlying motion for reconsideration, that the motion itself was frivolous. This argument need not be entertained a second time here.

d. Amount of Sanctions
Plaintiff’s final argument is that the amount of sanctions sought, over $13,000, is unreasonable. The Court agrees. Notably, CCP §1008(b) provided a mechanism for obtaining sanctions. It was not reasonable to also file an independent motion for sanctions, incurring additional attorney preparation and time, while also seeking sanctions in connection with the motion itself. Notably, all of the arguments made in this motion were already made and argued in connection with the request for sanctions in the underlying opposition to the motion for reconsideration.

The Court is of the belief that it would be unreasonable to reward Defendant for pursuing sanctions through two different, alternatively available mechanisms at the same time. The request for sanctions is therefore denied.

Dated this 22nd day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court