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JAMES M. DOMBROSKI, ESQ. (SBN 56898)
LAW OFFICE OF JAMES M. DOMBROSKI
7/ z
Post Office
Petalurria,
Box 751027
CA 94975 LED
MATEO COUNTY
Tel: (707) 762-7807 sAN
Fax: (707) 759-0419
THOMAS I.SABERI, ESQ. (SBN 169652)
LAW OFFICE OF THOMAS
(Dmflmulbwmg
I. SABERI
1045 Airport Blvd., Suite 12
So. San Francisco, CA 94080
Telephone: (650) 588-2428
Facsimile: (650) 873-7046
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
A831”
ANDY SABER], CASE CIV. NO. CIV 536294
Plaintiff, MEMORANDUM OF POINTS AND xva
AUTHORITIES IN REPLY TO
vs.
OPPOSITION TO MOTION FOR AWARD
LES STANFORD CHEVROLET CADILLAC, OF SANCTIONS AND EXPENSES
vvvvvvvvvvvv
INC, et al., PURSUANT TO C.C.P., SECTION 128.7
NNNNNNNMNAAAAJA—xd—x.‘
AGAINST JAMES ATTRIDGE AND THE
Defendants. LAW OFFICE OF JAMES ATTRIDGE
mNQUI-wa—‘OCGNODUIth-éo
DATE: July l, 2019
AND RELATED CROSS-ACTION Iv TIME: 9:00 a.m.
CIV536294 DEPT: 3—Law and Motion
MPAR Ii .
InRepl
TRIAL: POST-DISMISSAL
Memorandum and Authorities
of Points
JUDGE: Hon. Susan Greenberg
ACTION COMMENCED: 11/ 1 8/1 5
“9“?thqu
mummuu
PRELIMINARY STA'I'EMENT
No declaration or evidence of any kind was submitted in opposition to the present
motion. No prior declarations or evidence filed in this action are attached to the opposition or
otherwise incorporated therein by reference as an exhibit. The opposition isdevoid 0f evidence.
//
1
MEMORANDUM 0F WINTS AND AUTHORITIES
REPLY TO OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANCTIONS
‘
IN
MATERIAL FACTS
The facts and grounds for relief are set forth in the original moving papers. Since the
evidence submitted in support thereof is not contested by presentation of evidence in opposition
to this motion, such facts may or should be accepted as true.
With respect to the timeless of the present motion, unlike Mr. Attridge’s motion for
(Dm'flmm-th-A
sanctions pursuant to C.C.P., Section 128.5, the present motion for sanctions pursuant to C.C.P.,
Section 128.7 was promptly filed afier Mr. Amidge filed his motion. The present motion was
served by overnight delivery on April 11, 2019, meaning that the 21-day grace period would
havg elapsed on May 3, 2019, assuming an additional 2 days were allotted based on service by
_71o The moving
overnight delivery. The moving papers were actually received on April 12, 2019.
papers were then not filed with the court until the grace period had elapsed.
Moreover, because
12
the heafing on Mr. Attridge’s motion for sanctions was held significantly after the grace period
13
elapsed, Mr. Attridge had the requisite 21 -day grace period to withdraw his motion, but he did
14
[do
not .so.
15,
At the hearing on May 17, 2019, this court denied Mr. Attridge’s motion for sanctions. It
16
period was
found that the motion was legally and procedurally deficient because no 2] -day grace
17
afforded, and because there was absolutely no explanation as to why Mr. Amidge and his client
18
waited two years to file the motion for sanctions after the Complaint and Amended Complaint
19
'
In the opposition to the 128.5 sanction motion, Plaintiff and the opposing
had been served.
20
parties pointed out that Mr. Attridge had delayed moving for sanctions and had afforded no grace
21
period and made the argument that the delay in doing so was to allow Mr. Attridge to build up
22
his claim for attorney’s fees for the motion.
23
The court’s order on the 128.5 motion appears to state that because of the failure to
24
25 comply with the safe harbor provisions, the court was not required to address other potential
arguments or defects in the motion. It did, however, note that the motion for sanctions under
26
128.7 also failed to provide a basis for calculating the fees being claimed. There was no
27
28 declaration establishing how 200 hours were claimed to have been expended.
2
MEMORANDUM OF POINTS AND AUTHORITIES
[N REPLY T0 OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS
While this court relied on two of the points raised in opposition to the motion, i.e.,lack of
grace period coupled with delay in making the motion, and lack of factual basis for
determination of the fees being claimed, there were, in fact, other legal defects in the moving
papers filed by Mr. Attridge, which are delineated in the original moving papers on this motion.
For convenience of the Court, this reply
(Dmflwo‘I-th—K memorandum shall reiterate these legal deficiencies,
which form the gist of the basis for awarding sanctions against Mr. Attridge.
DISCUSSION
I
THE LEGAL DEFECTS IN THE MOTION BY
DEFENDANT AND ITS COUNSEL, MR ATTRIDGE,
SUPPORT AN AWARD OF SANCTIONS PURSUANT TO
£31., SECTION 128.7
“An attorney 0r unrepresentedparty who presents a pleading, motion or similar paper to
”
the court makes an implied
_L_L.A_.\_L_\_\._x_x_s
“certification as to itslegal andfactual merit; and 1‘ssubject to
”
sanctionsfor violation ofthz‘s certification. [Citations] (Emphasis added) (Cal. Prac. Guide Civ.
Pro. Before Trial Ch.-9(III)-C, Section 9:1 13S.)
An attorney presenting a motion certifies that it is not being presented for an improper
purpose, such as to harass or cause needless increase in litigation, that the legal contentions
and claims are warranted by existing law or by a nonfrivolous argument for extension or
change in the law, and that the factual contentions have evidentiary support. (Lg, Section 9:1 136;
N
m., Section
W
128.7(b); Eichenbaum V. Alon (2003) 106 Cal. App. 4th 967, 976, 131 Cal. Rptr.
2d 296, 302 [violation of any of these certifications gives rise to sanctions].)
An attorney’s subjective belief that a paper is legally tenable will not avoid sanctions if
the document is objectively without merit. (See: Civ. Pro. Before Trial Ch.
9(III)~C,
mVQOI$
NNNNN
Section 9:1 159.)
2
MEMORANDUM 0F POINTS AND AUTHORITIES
IN REPLY TO OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS
u—A
A. THE 128.5 MOTION FOR SANCTIONS IMPROPERLY COMBINED
RELIEF BASED 0N DENIAL 0F REQUESTS FOR ADMISSIONS AND IMPROPERLY
RELIED 0N DISCOVERY AS A BASIS FOR THE MOTION
On page 1, lines 12-17, of the notice 0f motion by Mr. Attridge and his client (it is
actually the second page, paragraph 3 thereof), Defendant and Defendant’s counsel asserts as a
,coooxloaouboom
ground for sanctions that Plaintiff served untruthful discovery responses. The paragraph refers
to 99.2., Section 233.420, but that code section is nonexistent, and it islikely it isactually
referring to 9492., Section 2033.420. To the extent the motion is relying on a de facto claim for
cost of proof expenses relating to requests for admissions, and to the extent it relies on
O
.A
.3 —¥
discovery responses at legally insufficient as a matter of law.
all, it is
I
L ‘
N
._x
g:__(_:_PJSection 1285mm )(A) provides:
“A motion for sanctions under this section shall be made
.A
w
Ah separately from other motions or requests and shall describe the
.AU1 specific alleged action or tactic, made in bad faith, that is frivolous
.AO) or solely intended t0 cause unnecessary delay.” (Emphasis added)
\l
..L
To the extent the moving papers are seeking expenses under Section 2033.420,
QLC__.I_’_.,
.Am as is inferentially stated in the third paragraph on page number 1 of the notice of motion. «
_x(0 Counsel for Defendant improperly combined other relief with his £313., Section 128.5 motion,
NO and the motion is therefore legally untenable.
N -*
In addition, to the extent the motion isseeking cost ofproof expenses under C.C.P.,
N Section 2033.420, such relief is not available to Defendant as a matter of law‘because there was
WI'N
N no trialin this action. (See discussion in original moving papers)
NA Furthermore, Mr. Attridge’s motion was legally untenable because itrelied, in part, on
Ul
discovery tesponscs. As noted in the original moving papers, C.C.P., Section 128.5(c) provides:
N‘N
03
“This section shall not apply to disclosures and discovery requests,
N ‘1
responses, objections, and motions.”
Nm
4
MEMORANDUM 0F POINTS AND AUTHORITIES
1N REPLY T0 OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS
(Also see: Cal. Judges Benchbook Civ. Préc. Before Trial § 17.5 ]
applies tojudicial
[”. . .It
arbitration proceedings (CCP § 128.5(0)), but not to disclosures and discovery requests,
resgonses, objections, and motions (CCP § 128.5(e).” (Emphasis added]; Cal. Prac. Guide Civ.
Pro. Before Trial Ch. 9>(III)—B, Section 9: 1010.6 [“By its terms, CCP § 128.5 does not apply to
(OWVGU'IhWN—k
disclosures and discovery requests, responses, objections and discovery motions. [CCP §
128.7(6)]” (Emphasis added).)
The 128.5 motion by Mr. Attridge was legally untenable because itpurported to combine
motions, based iton requests for admissions when there was n0 trial in the action, and because as
a matter of law, discovery cannot form the basis for 128‘5 motions. Whether or not this court
referred to these issues in itsruling on that motion, the fact remains that the legal untenability of
the motion is apparent in many contexts, and not merely those referred to by this court.
B. AS THIS COURT HAS ALREADY FOUND, THE 128.5 MOTION WAS
LEGALLY UNTENABLE BECAUSE IT WAS NOT FILED WITH DUE DILIGENCE
AND AFFORDED NO GRACE PERIOD
NNNN-xgagddéggé
Where a motion for sanctions under 94g}; Section 128.5 is predicated on having filed a
COMPLAINT, “a safe harbor procedure similar t0 that in § 128. 7 isavailablefor making or
$388§wméoomummhwmgo
opposing a written motion 0r Ihe/iling and service ofa complaint, cross-complaint, answer or
other responsive pleading that can be withdrawn 0r appropriately corrected. [CCP §
128.50)(I_)(B), (D); Nutrition Distribution, LLC v. Southern Sarms, Inc. (2018) 20 CASIh II 7,
127—130, 228 CR3d 73 7, 744-746” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(III)-B, Sebtion
gnome). The present motion was sewed and then filed with no grace period afforded
notwithstanding that itappears to be predicated on the filing of a Complaint.
5
MEMORANDUM 0F POINTS AND AUTHORITIES
IN REPLY T0 OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANC’I‘IONS
Q4943, Section 128.5(i)(1) provides that the court MUST consider whether the party
seeking sanctions has exercised due diligence. (Also see: Cal. Prac. Guide Civ. Pro. Before Trial
Ch. 9(III)-B, Section 9:1010d)
(OWNOOIAOON-k
On the face 0f the sanction motion by defendant it isapparent that defendant and his
counsel did not exercise due diligence. Moreover, the delay in asserting the claim is itself
evidence of the bad faith of Mr. Attridge who chose to chum his fees rather than making the
claim as to lack of factual merit to the pleadings in a motion for sanction that could have been
filed years earlier.
DATED: June 19, 2019
E OF JAMES M. DOMBROSKI
NNJ-‘Aad—t‘déa
6
MEMORANDUM OF POINTS AND AUTHORITIES
[N REPLY TO OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANCTIONS
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JAMES M. DOMBROSKI, ESQ. (SBN 56898) LAW OFFICE OF JAMES M. DOMBROSKI 7/ z Post Office Petalurria, Box 751027 CA 94975 LED MATEO COUNTY Tel: (707) 762-7807 sAN Fax: (707) 759-0419 THOMAS I.SABERI, ESQ. (SBN 169652) LAW OFFICE OF THOMAS (Dmflmulbwmg I. SABERI 1045 Airport Blvd., Suite 12 So. San Francisco, CA 94080 Telephone: (650) 588-2428 Facsimile: (650) 873-7046 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO A831” ANDY SABER], CASE CIV. NO. CIV 536294 Plaintiff, MEMORANDUM OF POINTS AND xva AUTHORITIES IN REPLY TO vs. OPPOSITION TO MOTION FOR AWARD LES STANFORD CHEVROLET CADILLAC, OF SANCTIONS AND EXPENSES vvvvvvvvvvvv INC, et al., PURSUANT TO C.C.P., SECTION 128.7 NNNNNNNMNAAAAJA—xd—x.‘ AGAINST JAMES ATTRIDGE AND THE Defendants. LAW OFFICE OF JAMES ATTRIDGE mNQUI-wa—‘OCGNODUIth-éo DATE: July l, 2019 AND RELATED CROSS-ACTION Iv TIME: 9:00 a.m. CIV536294 DEPT: 3—Law and Motion MPAR Ii . InRepl TRIAL: POST-DISMISSAL Memorandum and Authorities of Points JUDGE: Hon. Susan Greenberg ACTION COMMENCED: 11/ 1 8/1 5 “9“?thqu mummuu PRELIMINARY STA'I'EMENT No declaration or evidence of any kind was submitted in opposition to the present motion. No prior declarations or evidence filed in this action are attached to the opposition or otherwise incorporated therein by reference as an exhibit. The opposition isdevoid 0f evidence. // 1 MEMORANDUM 0F WINTS AND AUTHORITIES REPLY TO OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANCTIONS ‘ IN MATERIAL FACTS The facts and grounds for relief are set forth in the original moving papers. Since the evidence submitted in support thereof is not contested by presentation of evidence in opposition to this motion, such facts may or should be accepted as true. With respect to the timeless of the present motion, unlike Mr. Attridge’s motion for (Dm'flmm-th-A sanctions pursuant to C.C.P., Section 128.5, the present motion for sanctions pursuant to C.C.P., Section 128.7 was promptly filed afier Mr. Amidge filed his motion. The present motion was served by overnight delivery on April 11, 2019, meaning that the 21-day grace period would havg elapsed on May 3, 2019, assuming an additional 2 days were allotted based on service by _71o The moving overnight delivery. The moving papers were actually received on April 12, 2019. papers were then not filed with the court until the grace period had elapsed. Moreover, because 12 the heafing on Mr. Attridge’s motion for sanctions was held significantly after the grace period 13 elapsed, Mr. Attridge had the requisite 21 -day grace period to withdraw his motion, but he did 14 [do not .so. 15, At the hearing on May 17, 2019, this court denied Mr. Attridge’s motion for sanctions. It 16 period was found that the motion was legally and procedurally deficient because no 2] -day grace 17 afforded, and because there was absolutely no explanation as to why Mr. Amidge and his client 18 waited two years to file the motion for sanctions after the Complaint and Amended Complaint 19 ' In the opposition to the 128.5 sanction motion, Plaintiff and the opposing had been served. 20 parties pointed out that Mr. Attridge had delayed moving for sanctions and had afforded no grace 21 period and made the argument that the delay in doing so was to allow Mr. Attridge to build up 22 his claim for attorney’s fees for the motion. 23 The court’s order on the 128.5 motion appears to state that because of the failure to 24 25 comply with the safe harbor provisions, the court was not required to address other potential arguments or defects in the motion. It did, however, note that the motion for sanctions under 26 128.7 also failed to provide a basis for calculating the fees being claimed. There was no 27 28 declaration establishing how 200 hours were claimed to have been expended. 2 MEMORANDUM OF POINTS AND AUTHORITIES [N REPLY T0 OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS While this court relied on two of the points raised in opposition to the motion, i.e.,lack of grace period coupled with delay in making the motion, and lack of factual basis for determination of the fees being claimed, there were, in fact, other legal defects in the moving papers filed by Mr. Attridge, which are delineated in the original moving papers on this motion. For convenience of the Court, this reply (Dmflwo‘I-th—K memorandum shall reiterate these legal deficiencies, which form the gist of the basis for awarding sanctions against Mr. Attridge. DISCUSSION I THE LEGAL DEFECTS IN THE MOTION BY DEFENDANT AND ITS COUNSEL, MR ATTRIDGE, SUPPORT AN AWARD OF SANCTIONS PURSUANT TO £31., SECTION 128.7 “An attorney 0r unrepresentedparty who presents a pleading, motion or similar paper to ” the court makes an implied _L_L.A_.\_L_\_\._x_x_s “certification as to itslegal andfactual merit; and 1‘ssubject to ” sanctionsfor violation ofthz‘s certification. [Citations] (Emphasis added) (Cal. Prac. Guide Civ. Pro. Before Trial Ch.-9(III)-C, Section 9:1 13S.) An attorney presenting a motion certifies that it is not being presented for an improper purpose, such as to harass or cause needless increase in litigation, that the legal contentions and claims are warranted by existing law or by a nonfrivolous argument for extension or change in the law, and that the factual contentions have evidentiary support. (Lg, Section 9:1 136; N m., Section W 128.7(b); Eichenbaum V. Alon (2003) 106 Cal. App. 4th 967, 976, 131 Cal. Rptr. 2d 296, 302 [violation of any of these certifications gives rise to sanctions].) An attorney’s subjective belief that a paper is legally tenable will not avoid sanctions if the document is objectively without merit. (See: Civ. Pro. Before Trial Ch. 9(III)~C, mVQOI$ NNNNN Section 9:1 159.) 2 MEMORANDUM 0F POINTS AND AUTHORITIES IN REPLY TO OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS u—A A. THE 128.5 MOTION FOR SANCTIONS IMPROPERLY COMBINED RELIEF BASED 0N DENIAL 0F REQUESTS FOR ADMISSIONS AND IMPROPERLY RELIED 0N DISCOVERY AS A BASIS FOR THE MOTION On page 1, lines 12-17, of the notice 0f motion by Mr. Attridge and his client (it is actually the second page, paragraph 3 thereof), Defendant and Defendant’s counsel asserts as a ,coooxloaouboom ground for sanctions that Plaintiff served untruthful discovery responses. The paragraph refers to 99.2., Section 233.420, but that code section is nonexistent, and it islikely it isactually referring to 9492., Section 2033.420. To the extent the motion is relying on a de facto claim for cost of proof expenses relating to requests for admissions, and to the extent it relies on O .A .3 —¥ discovery responses at legally insufficient as a matter of law. all, it is I L ‘ N ._x g:__(_:_PJSection 1285mm )(A) provides: “A motion for sanctions under this section shall be made .A w Ah separately from other motions or requests and shall describe the .AU1 specific alleged action or tactic, made in bad faith, that is frivolous .AO) or solely intended t0 cause unnecessary delay.” (Emphasis added) \l ..L To the extent the moving papers are seeking expenses under Section 2033.420, QLC__.I_’_., .Am as is inferentially stated in the third paragraph on page number 1 of the notice of motion. « _x(0 Counsel for Defendant improperly combined other relief with his £313., Section 128.5 motion, NO and the motion is therefore legally untenable. N -* In addition, to the extent the motion isseeking cost ofproof expenses under C.C.P., N Section 2033.420, such relief is not available to Defendant as a matter of law‘because there was WI'N N no trialin this action. (See discussion in original moving papers) NA Furthermore, Mr. Attridge’s motion was legally untenable because itrelied, in part, on Ul discovery tesponscs. As noted in the original moving papers, C.C.P., Section 128.5(c) provides: N‘N 03 “This section shall not apply to disclosures and discovery requests, N ‘1 responses, objections, and motions.” Nm 4 MEMORANDUM 0F POINTS AND AUTHORITIES 1N REPLY T0 OPPOSITION T0 MOTION FOR C.C.P., SECTION 128.7 SANCTIONS (Also see: Cal. Judges Benchbook Civ. Préc. Before Trial § 17.5 ] applies tojudicial [”. . .It arbitration proceedings (CCP § 128.5(0)), but not to disclosures and discovery requests, resgonses, objections, and motions (CCP § 128.5(e).” (Emphasis added]; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9>(III)—B, Section 9: 1010.6 [“By its terms, CCP § 128.5 does not apply to (OWVGU'IhWN—k disclosures and discovery requests, responses, objections and discovery motions. [CCP § 128.7(6)]” (Emphasis added).) The 128.5 motion by Mr. Attridge was legally untenable because itpurported to combine motions, based iton requests for admissions when there was n0 trial in the action, and because as a matter of law, discovery cannot form the basis for 128‘5 motions. Whether or not this court referred to these issues in itsruling on that motion, the fact remains that the legal untenability of the motion is apparent in many contexts, and not merely those referred to by this court. B. AS THIS COURT HAS ALREADY FOUND, THE 128.5 MOTION WAS LEGALLY UNTENABLE BECAUSE IT WAS NOT FILED WITH DUE DILIGENCE AND AFFORDED NO GRACE PERIOD NNNN-xgagddéggé Where a motion for sanctions under 94g}; Section 128.5 is predicated on having filed a COMPLAINT, “a safe harbor procedure similar t0 that in § 128. 7 isavailablefor making or $388§wméoomummhwmgo opposing a written motion 0r Ihe/iling and service ofa complaint, cross-complaint, answer or other responsive pleading that can be withdrawn 0r appropriately corrected. [CCP § 128.50)(I_)(B), (D); Nutrition Distribution, LLC v. Southern Sarms, Inc. (2018) 20 CASIh II 7, 127—130, 228 CR3d 73 7, 744-746” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(III)-B, Sebtion gnome). The present motion was sewed and then filed with no grace period afforded notwithstanding that itappears to be predicated on the filing of a Complaint. 5 MEMORANDUM 0F POINTS AND AUTHORITIES IN REPLY T0 OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANC’I‘IONS Q4943, Section 128.5(i)(1) provides that the court MUST consider whether the party seeking sanctions has exercised due diligence. (Also see: Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(III)-B, Section 9:1010d) (OWNOOIAOON-k On the face 0f the sanction motion by defendant it isapparent that defendant and his counsel did not exercise due diligence. Moreover, the delay in asserting the claim is itself evidence of the bad faith of Mr. Attridge who chose to chum his fees rather than making the claim as to lack of factual merit to the pleadings in a motion for sanction that could have been filed years earlier. DATED: June 19, 2019 E OF JAMES M. DOMBROSKI NNJ-‘Aad—t‘déa 6 MEMORANDUM OF POINTS AND AUTHORITIES [N REPLY TO OPPOSITION TO MOTION FOR C.C.P., SECTION 128.7 SANCTIONS