Motion,Ex Parte: ANDY SABERI VS LES STANFORD, ETAL

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                                Case Number: CIV536294

                                                          SUPERIOR COURT OF SAN MATEO COUNTY
                                                      400 County Center                         1050 Mission Road
                                                   Redwood City, CA 94063                 South San Francisco, CA 94080
                                                                     www.sanmateocourt.org

                                                                   Minute Order
              ANDY SABERI VS LES STANFORD, ETAL                                                                           CIV536294
                                                                                                               10/03/2019 9:00 AM
                                                                                                   Motion for Issue and Monetary
                                                                                                                            Sanction
                                                                                                              Hearing Result:    Held

              Judicial Officer: Davis, III, Leland                      Location: Courtroom 4C
              Courtroom Clerk: Rosa Vega                                Courtroom Reporter:      Annette Jaycox


              Minutes
              Journals
               - Party(ies) appeared by court call: Attorney James Dombroskii on behalf of Andy Saberi

               Appearance made on behalf of: BJ Interstate Autotransporters, Inc. by attorney: James Attridge.

               Argument presented by counsel. Matter submitted.
              Case Events
               - Tentative ruling adopted and becomes order:; MOTION FOR ATTORNEY FEES AS SANCTIONS AGAINST
               ANDY SABERI AND JAMES DOMBROSKI

               Defendant BJ Interstate Auto Transporters, Inc.'s (BJ Interstate) 8-16-19 "Motion for Attorney's Fees as
               Sanctions," filed pursuant to Code Civ. Proc.      128.5, is DENIED, for the reasons set forth below.

               First, the motion is a belated motion for reconsideration.       Code Civ. Proc.   1008(b).   On 10-10-18,
               Plaintiff dismissed its entire case against BJ Interstate.    Thereafter, on 4-5-19, BJ Interstate moved for
               sanctions against Plaintiff under Code Civ. Proc.      128.5, asserting the same arguments it now rehashes
               here.  BJ Interstate argued in the prior motion, inter alia, that Plaintiff knew or should have known from
               the day he filed this case, and certainly from the time Plaintiff filed his First Amended Complaint (FAC),
               that his claim(s) against BJ Interstate had no merit, and yet Plaintiff continued pursuing its case against
               BJ until two days prior to the scheduled trial date.     The Court already considered this argument and, on
               5-20-19, denied BJ's previous motion for       128.5 sanctions.   5-20-19 Minute Order.      The present motion
               is indistinguishable from the prior motion.     Because it was not filed within 10 days of the Court's 5-20-19
               Minute Order, it is untimely.    Code Civ. Proc.    1008.

               Second, and as separate grounds for denying the motion, as stated in the Court's 5-20-19 Minute Order,
               BJ Interstate failed to comply with     128.5's safe harbor provision.    As it argued in its prior motion for
               sanctions, BJ Interstate again contends Plaintiff persisted in pursuing a clearly meritless Complaint and
               First Amended Complaint (FAC), despite knowing that co-defendant Dedyk was insured at the time of
               loss, which purportedly barred any suit against BJ Interstate.        128.5 requires that the offending party be
               given an opportunity to withdraw the offending pleading.           128.5(f)(1)(B).  BJ Interstate has not alleged
               compliance with this procedural requirement.         Indeed, Plaintiff could not have withdrawn any offending
               pleading, because Plaintiff dismissed BJ Interstate from the case long before this motion was filed.

               Further, the motion appears based in part on Plaintiff's discovery responses.           128.5 does not apply to
               discovery requests, responses, objections and discovery motions.           128.5(e).
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                                                                                                                      Case Number: CIV536294


               For at least the foregoing reasons, the motion is DENIED.

               BJ Interstate's 9-26-19 Evidentiary Objection to Parag. 12 of the Dombroski Decl. is OVERRULED, and its
               related 9-26-19 "Motion to Strike" is DENIED.       The Court notes, however, that Parag. 12 of the
               Dombroski is irrelevant to the Court's ruling on this motion.

               Continuing the parties' seemingly never-ending request for sanctions against one another, Plaintiff
               requests sanctions against BJ Interstate for having had to oppose this motion.          In the Court's discretion,
               Plaintiff's request is DENIED.


               - Party shall prepare formal order consistent w/order herein; James Dombroski

             Future Hearings and Vacated Hearings
             December 10, 2019 9:00 AM Order to Show Cause Re: Dismissal of Entire Action
             Case Management Conferences, -




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