Gillette v. Ruiz
Filed 11/6/13 Gillette v. Ruiz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JEFFREY
GILLETTE,
Plaintiff and Respondent,
v.
CARLOS
RUIZ,
Defendant;
HENRY
M. LEE et al.,
Real Parties in
Interest and
Appellants.
B244625
(Los Angeles Country
Super. Ct. No. LC087647)
APPEAL from
an order of the Superior Court of
County, Huey P. Cotton, Judge. Reversed.
Henry M.
Lee, Law Corporation, Henry M. Lee and Michelle Tran, for Appellants.
No
appearance for Respondent.
______________________________
Attorneys Henry M. Lee and
Robert Myong appeal from an order imposing sanctions in the amount of $3,500
against Lee and $1,500 against Myong for failure to file a notice of related
case. We agree with appellants that the
trial court abused its discretion in imposing sanctions and reverse the
sanctions order.
The underlying case stems from a dispute between
Jeffrey Gillette and Carlos Ruiz, who formed a partnership to buy land, build
on it, and sell the building. In 2009, Gillette
sued Ruiz for fraud and breach of
contract, alleging Ruiz mismanaged the property and misappropriated money
from the partnership. In December 2010,
a default judgment was entered against Ruiz. Ruiz unsuccessfully moved to set it
aside.
In March 2012, appellants filed a
complaint on Ruiz’s behalf in Los Angeles Superior Court, case No. BC480390, seeking to set aside the
default judgment and the subsequent sheriff’s sale of Ruiz’s interest in the
property. On June 1, Gillette filed
an ex-parte application to consolidate the two cases. Appellants filed an opposition on Ruiz’s behalf,
taking the position that the cases were not related. On June 21, the court ordered counsel for Ruiz
to file a notice of related case or risk sanctions. On June 22, Gillette filed such a notice. In July, the court ordered the cases related. In August, Gillette filed a motion to
consolidate and sought sanctions under Code of Civil Procedure section 128.7
(hereafter, section 128.7). He argued that
case No. BC480390 had been filed for an improper purpose. The court continued the motion to consolidate
until October 23 and issued an order to show cause (OSC) why sanctions in the
amount of $1,500 should not be imposed for failure to file a notice of related
case. The reporter’s transcript
indicates the OSC was issued against Ruiz, but the minute order states it was
against Ruiz’s counsel.
Michelle Tran, an attorney in Lee’s
law firm, responded to the OSC on Ruiz’s behalf and appeared at the October 5 hearing
on the OSC regarding sanctions. She told
the court that appellants were Ruiz’s active counsel when the decision not to
file a notice of related case was made and that Lee approved the response to
the OSC. The court stated it had given
counsel “a safe harbor in which to file a notice of related case,†and the arguments
in response to the OSC were “disingenuous†or “worse.†The court imposed $3,500 in sanctions against
Lee, $1,500 against Myong, and none against Tran. The sanctions were to be paid to the
court.
This timely appeal followed.
An
order imposing sanctions is reviewed for abuse of discretion. (Guillemin
v. Stein (2002) 104 Cal.App.4th 156, 167.)
The purpose
of section 128.7 is “to check abuses in the filing of pleadings, petitions,
written notices of motions or similar papers.†(Musaelian
v. Adams (2009) 45 Cal.4th 512, 514.)
The statute is intended to promote compliance rather than punish the
offender. (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 442.) To this end, sanctions may be awarded on a
party’s motion or on the court’s own motion, but only after the offender is
given 21 days to withdraw or correct the improper paper. (§ 128.7(c).) The 21-day “safe harbor†period begins when
the offender is served with a motion for sanctions, which may not be combined
with any other motion. (§ 128.7(c)(1).) Or, if the court is acting sua sponte, the “safe
harbor†period is triggered by service of an order that describes the
sanctionable conduct and directs the offender to show cause why sanctions
should not be imposed. (§ 128.7(c)(2).)
Both
Gillette and the court purported to proceed under section 128.7, but neither
complied with the letter or purpose of the statute. Although Gillette maintained that the
complaint in case No. BC480390
was improperly filed, he did not serve Ruiz with a separate motion for
sanctions requiring the withdrawal of the complaint within 21 days. Nor did the court issue an OSC identifying
the complaint as the offending paper. Rather,
the only sanctionable conduct the court identified was the failure to file a
notice of related case. Even assuming
section 128.7 applies to such conduct, compliance was rendered moot
by the fact that Gillette filed a notice of related case before the court
issued an OSC regarding sanctions. A
party is not required to file a notice of related case if another party has
already filed such a notice. (Cal. Rules
of Court, rule 3.300(k).)
The imposition of sanctions under the
circumstances was strictly punitive and contrary to the purpose of the
statute. (Cf. Malovec v. Hamrell, supra,
70 Cal.App.4th at p. 442 [if compliance is no longer possible, “imposition of
sanctions becomes strictly punitive, not an intended purpose of the
statuteâ€].) The court’s imposition of increased
sanctions on Lee for his approval of the response to the OSC also was
improper. (See Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 424
[frivolous response to sanctions motion not sanctionable where motion made in
violation of safe-harbor provision].)
The October
5, 2012 order imposing sanctions is reversed. Appellants to recover their costs on appeal.
EPSTEIN,
P. J.
We
concur:
MANELLA, J.
SUZUKAWA, J.
