2018-00234097-CU-PO

Margarito Rodriguez vs. Sacramento Municipal Utility Distric

Nature of Proceeding: Motion for Sanctions

Filed By: Quinn, Stephanie L.

Sacramento Municipal Utility District’s Motion for Sanctions is denied.

This action arises out of injuries Plaintiff Margarito Rodriguez suffered on August 17, 2017 when he was providing tree trimming services at Defendant’s property. Plaintiff Margarito Rodriguez was allegedly electrocuted when his tree trimming tool came into

contact with a SMUD power line. Plaintiff Francisco Rodriguez, Margarito’s son witnessed the incident. Plaintiffs allege causes of action for negligence, premises liability, negligent infliction of emotional distress and loss of consortium.

This motion seeks sanctions against Irma Rodriguez for having filed the Complaint on June 1, 2018 naming herself as ROE 1 in the loss of consortium claim. Irma’s petition for relief from the government claims requirement was later denied on June 21, 2018.

(See ruling in Department 44, June 21, 2018, Case No. 2018-00233438) The ruling on the Petition for Relief from Late Claims is currently on appeal.

Prior to this hearing, SMUD filed a demurrer to the cause of action for Loss of Consortium, contending no cause of action was stated by Irma because she did not allege that she complied with the government tort claims act. The Court sustained Irma’s demurrer to the 5th cause of action with leave to amend in its October 3, 2019 submitted ruling. Therefore, the operative complaint to which this motion applies will be superseded by an Amended Complaint that is due October 19, 2018, the date of this hearing.

CCP 128.7 requires a safe harbor period before the motion is filed with the court. The proof of service in this case, at ROA #25, states that an Amended Notice of Sanctions and related papers was filed and served September 26, 2018. There is no Notice of Sanctions with an earlier service date in CCMS. A motion for sanctions pursuant to CCP 128.7 may not be filed until at least 21 days after it is served. Nothing in the moving papers refers to an earlier service date of the motion. In the reply, the points and authorities state that the motion was first hand served with the motion on August 23, 2018. However, there is no declaration supporting this fact and no proof of this service filed with the court.

Pursuant to CCP 128.7(c)(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.”

(emphasis added)

Thus, although the notice of motion states in part that if plaintiff does not withdraw her Complaint within 21 days of receipt of this notice, this motion will be filed with the court and heard on the date set forth above, SMUD appears to have filed the motion on the same date that it served the motion. Therefore, the motion is denied as procedurally defective.

Moreover, given that the court has given leave to amend the cause of action for loss of consortium, the Court does not find that plaintiff’s filing of the 5th cause of action for loss of consortium as frivolous. As of the date she filed the Complaint, there had not been a ruling denying her motion for relief from the claims requirement, therefore it cannot be said that the Complaint was frivolous at the time it was filed. In addition, the

Court granted plaintiff leave to amend her 5th cause of action she acted reasonably in not withdrawing the 5th cause of action before the hearing on this motion.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.