This case was last updated from Los Angeles County Superior Courts on 07/14/2021 at 21:48:51 (UTC).

BRIAN WHITAKER VS 370 NORTH CANON DRIVE, LP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Case Summary

On 08/31/2020 BRIAN WHITAKER filed a Civil Right - Other Civil Right lawsuit against 370 NORTH CANON DRIVE, LP, A CALIFORNIA LIMITED PARTNERSHIP. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7430

  • Filing Date:

    08/31/2020

  • Case Status:

    Other

  • Case Type:

    Civil Right - Other Civil Right

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

WHITAKER BRIAN

Defendants

370 NORTH CANON DRIVE LP A CALIFORNIA LIMITED PARTNERSHIP

ALO LLC A CALIFORNIA LIMITED LIABILITY COMPANY

TASHMAN MANAGEMENT LLC A CALIFORNIA LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

HANDY RUSSELL

Defendant Attorney

HOLLAND ANDREW PATRICK

 

Court Documents

Response (name extension) - Response to Motion for Sanctions

4/20/2021: Response (name extension) - Response to Motion for Sanctions

Minute Order - Minute Order (Hearing on Motion for Sanctions)

4/21/2021: Minute Order - Minute Order (Hearing on Motion for Sanctions)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

5/28/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

6/7/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Declaration (name extension) - Declaration Declaration of Dinah Ortiz in Support of Motion for Attorneys' Fees and Entrance of Judgment

6/7/2021: Declaration (name extension) - Declaration Declaration of Dinah Ortiz in Support of Motion for Attorneys' Fees and Entrance of Judgment

Declaration (name extension) - Declaration Declaration of Brett Silveira in Support of Motion for Attorneys' Fees and Entrance of Judgment

6/7/2021: Declaration (name extension) - Declaration Declaration of Brett Silveira in Support of Motion for Attorneys' Fees and Entrance of Judgment

Motion for Attorney Fees - Motion for Attorney Fees

6/7/2021: Motion for Attorney Fees - Motion for Attorney Fees

Declaration (name extension) - Declaration Declaration of Mark Boennighausen in Support of Motion for Attorneys' Fees and Entrance of Judgment

6/7/2021: Declaration (name extension) - Declaration Declaration of Mark Boennighausen in Support of Motion for Attorneys' Fees and Entrance of Judgment

Motion for Sanctions - Motion for Sanctions

12/3/2020: Motion for Sanctions - Motion for Sanctions

Memorandum of Points & Authorities - Memorandum of Points & Authorities

12/3/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Proof of Service by Mail - Proof of Service by Mail

12/3/2020: Proof of Service by Mail - Proof of Service by Mail

Answer - Answer

11/16/2020: Answer - Answer

Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

10/21/2020: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

Answer - Answer

10/14/2020: Answer - Answer

Proof of Service by Substituted Service - Proof of Service by Substituted Service

9/14/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Summons - Summons on Complaint

8/31/2020: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

8/31/2020: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

8/31/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

17 More Documents Available

 

Docket Entries

  • 08/26/2021
  • Hearing08/26/2021 at 10:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 06/07/2021
  • DocketMotion for Attorney Fees; Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 06/07/2021
  • DocketDeclaration Declaration of Dinah Ortiz in Support of Motion for Attorneys' Fees and Entrance of Judgment; Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 06/07/2021
  • DocketDeclaration Declaration of Brett Silveira in Support of Motion for Attorneys' Fees and Entrance of Judgment; Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 06/07/2021
  • DocketMemorandum of Points & Authorities; Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 06/07/2021
  • DocketDeclaration Declaration of Mark Boennighausen in Support of Motion for Attorneys' Fees and Entrance of Judgment; Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 06/07/2021
  • DocketHearing on Motion for Attorney Fees scheduled for 08/26/2021 at 10:00 AM in Spring Street Courthouse at Department 25

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  • 05/28/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: BRIAN WHITAKER (Plaintiff); As to: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 05/27/2021
  • DocketOpposition to Defense Memorandum of Costs; Filed by: BRIAN WHITAKER (Plaintiff)

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  • 05/11/2021
  • DocketMemorandum of Costs (Summary); Filed by: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant); As to: BRIAN WHITAKER (Plaintiff); Total Costs: 835.95

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21 More Docket Entries
  • 09/14/2020
  • DocketProof of Service by Substituted Service; Filed by: BRIAN WHITAKER (Plaintiff); As to: ALO, LLC, a California Limited Liability Company (Defendant); Proof of Mailing Date: 09/03/2020; Service Cost: 35.00; Service Cost Waived: No

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  • 09/08/2020
  • DocketProof of Personal Service; Filed by: BRIAN WHITAKER (Plaintiff); As to: Tashman Management, LLC, a California Limited Liability Company (Defendant); Service Date: 09/03/2020; Service Cost Waived: No

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  • 09/01/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/05/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/01/2020
  • DocketNon-Jury Trial scheduled for 02/28/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/01/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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  • 08/31/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 08/31/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/31/2020
  • DocketCivil Case Cover Sheet; Filed by: BRIAN WHITAKER (Plaintiff); As to: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 08/31/2020
  • DocketSummons on Complaint; Issued and Filed by: BRIAN WHITAKER (Plaintiff); As to: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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  • 08/31/2020
  • DocketComplaint; Filed by: BRIAN WHITAKER (Plaintiff); As to: 370 North Canon Drive, LP, a California Limited Partnership (Defendant); Tashman Management, LLC, a California Limited Liability Company (Defendant); ALO, LLC, a California Limited Liability Company (Defendant)

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Tentative Rulings

b"

Case Number: 20STLC07430 Hearing Date: August 26, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR ATTORNEYS’ FEES AND ENTRANCE OF JUDGMENT

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MOVING PARTY: Defendants\r\nALO, LLC, 370 North Canon Drive, LP, and Tashman Management, LLP

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RESP. PARTY: Plaintiff Brian Whitaker

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MOTION FOR ATTORNEYS’ FEES

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(CCP § 128.7)

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TENTATIVE RULING:

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Defendants ALO, LLC, 370 North Canon\r\nDrive, LP, and Tashman Management, LLP’s Motion for Attorneys’ Fees is DENIED.

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SERVICE: \r\n

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[X]\r\nProof of Service Timely Filed (CRC, rule 3.1300) OK

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[X]\r\nCorrect Address (CCP §§ 1013, 1013a) OK

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[X]\r\n16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

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[X]\r\n21-Day Safe-Harbor Period OK

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OPPOSITION: Filed on August 16, 2021 [X] Late [ ] None

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REPLY: Filed on\r\nAugust 19, 2021 [ ]\r\nLate [ ]\r\nNone

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ANALYSIS:

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I. \r\nBackground

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On August 31, 2020, Plaintiff Brian Whitaker\r\n(“Plaintiff”) filed a verified Complaint seeking damages for violations of the\r\nUnruh Civil Rights Act against Defendants 370 North Canon Drive, LP (“370 North\r\nCanon”), Tashman Management, LLC (“Tashman”), and ALO, LLP (“ALO”)\r\n(collectively, “Defendants”). Defendant ALO filed an Answer on October 14,\r\n2020, Defendant Tashman filed an Answer on October 20, 2020, and Defendant 370\r\nNorth Canon filed its Answer on November 16, 2020.

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On December 3, 2020, Defendants\r\nfiled a motion for sanctions pursuant to Code of Civil Procedure section 128.7 which\r\nwas set for hearing for April 21, 2021. On April 20, Plaintiff filed a response\r\nto that motion, stating he had not been properly served with the motion for\r\nsanctions and had only recently discovered it. (4/20/21 Response.)

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At the April 21 hearing, the Court\r\ndid not adopt its tentative ruling and continued the hearing to June 7.\r\n(4/21/21 Minute Order.) The Court ordered Defendants to serve and\r\nelectronically file their motion at least 20 days before the next scheduled\r\nhearing. (Id.) While on the record, the parties also agreed to accept electronic\r\nservice. (Id.)

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On April 28, Plaintiff requested\r\nthat the entire action be dismissed with prejudice. (4/28/21 Request for\r\nDismissal.) Dismissal was entered as requested on May 5. (Id.)

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On June 7, 2021, Defendants filed\r\nthe instant Motion for Attorney’s Fees and Entrance of Judgment (the “Motion”).\r\nPlaintiff filed a tardy opposition on August 16, which the Court has\r\nconsidered. Defendants filed a reply brief on August 19.

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II. \r\nLegal\r\nStandard

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An attorney or unrepresented party\r\nwho presents a motion to the court makes an implied certification as to its\r\nlegal and factual merit, which is subject to sanctions for violation of this\r\ncertification under Code of Civil Procedure section 128.7. (Murphy v. Yale Materials Handling Corp.\r\n(1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for conduct\r\nthat violates any one of the requirements set forth in Code of Civil Procedure\r\nsection 128.7, subdivision (b). (Eichenbaum\r\nv. Alon (2003) 106 Cal.App.4th 967, 976.)

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Code of Civil Procedure section\r\n128.7, subdivision (b) provides:

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(b) By presenting to the court,\r\nwhether by signing, filing, submitting, or later advocating, a pleading,\r\npetition, written notice of motion, or other similar paper, an attorney or\r\nunrepresented party is certifying that to the best of the person’s knowledge,\r\ninformation, and belief, formed after an inquiry reasonable under the\r\ncircumstances, all of the following conditions are met:

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(1) It is not being presented\r\nprimarily for an improper purpose, such as to harass or to cause unnecessary\r\ndelay or needless increase in the cost of litigation.

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(2) The claims, defenses, and other\r\nlegal contentions therein are warranted by existing law or by a non-frivolous\r\nargument for the extension, modification, or reversal of existing law or the\r\nestablishment of new law.

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(3) The allegations and other\r\nfactual contentions have evidentiary support or, if specifically so identified,\r\nare likely to have evidentiary support after a reasonable opportunity for\r\nfurther investigation or discovery.

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(4) The denials of factual\r\ncontentions are warranted on the evidence or, if specifically so identified,\r\nare reasonably based on a lack of information or belief.

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(3) The allegations and other\r\nfactual contentions have evidentiary support or, if specifically so identified,\r\nare likely to have evidentiary support after a reasonable opportunity for\r\nfurther investigation or discovery.

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(4) The denials of factual\r\ncontentions are warranted on the evidence or, if specifically so identified,\r\nare reasonably based on a lack of information or belief.

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Only “an attorney or unrepresented\r\nparty may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214,\r\n1221.)

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“Under section 128.7, a court may\r\nimpose sanctions if it concludes a pleading was filed for an improper purpose\r\nor was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th\r\n175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’\r\nand is legally frivolous if it is ‘not warranted by existing law or a good\r\nfaith argument for the extension, modification, or reversal of existing law.’\r\n[Citation.] In either case, to obtain sanctions, the moving party must show the\r\nparty's conduct in asserting the claim was objectively unreasonable.\r\n[Citation.] A claim is objectively unreasonable if ‘any reasonable attorney\r\nwould agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is\r\nrequired. (In re Marriage of Reese &\r\nGuy, supra, 73 Cal.App.4th at p. 1221.)

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“The California Legislature\r\nessentially sought to replicate rule 11 [of the Federal Rules of Civil\r\nProcedure] when it enacted section 128.7.” (Musaelian\r\nv. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law\r\nconstruing rule 11 is persuasive authority on the meaning of Code of Civil\r\nProcedure section 128.7. (Guillemin v.\r\nStein (2002) 104 Cal.App.4th 156, 167.) Under rule 11, even though an\r\naction may not be frivolous when it is filed, it may become so if\r\nlater-acquired evidence refutes the findings of a prefiling investigation and\r\nthe attorney continues to file papers supporting the client's claims. (See Childs v. State Farm Mutual Automobile\r\nInsurance Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a\r\nresult, a plaintiff's attorney cannot “just cling tenaciously to the\r\ninvestigation he had done at the outset of the litigation and bury his head in\r\nthe sand.” (Id. at 1025.)

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In addition, Code of Civil Procedure\r\nsection 128.7 “contains a safe harbor provision. It requires the party seeking\r\nsanctions to serve on the opposing party, without filing or presenting it to\r\nthe court, a notice of motion specifically describing the sanctionable conduct.\r\nService of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period.\r\n[Citations.] During this time, the offending document may be corrected or\r\nwithdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall\r\nnot’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow\r\ncorrection or withdrawal of an offending document, section 128.7 is designed to be remedial, not\r\npunitive. [Citation.]” (Li v. Majestic\r\nIndustry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.)

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“If warranted, the court may award to the party\r\nprevailing on the motion the reasonable expenses and attorney's fees incurred\r\nin presenting or opposing the motion. Absent exceptional circumstances, a law\r\nfirm shall be held jointly responsible for violations committed by its\r\npartners, associates, and employees.” (Code Civ. Proc., § 128.7, subd. (c)(1).)

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III. \r\nDiscussion

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Defendants seek attorney’s fees as sanctions under\r\nSection 128.7. (Mot., p. 4.) Defendants\r\nargue that on November 2, 2020, their attorney properly served Plaintiff’s\r\nattorney with a notice of the sanctions motion via email. (Mot., pp. 2-3.)\r\nBecause Plaintiff did not dismiss the action within the safe harbor period, Defendants\r\nfiled the 128.7 sanctions motion on December 3. (Id.) As discussed above,\r\nthe sanctions motion came up for hearing on April 21. (4/21/21 Minute Order.) The\r\nCourt posted a tentative ruling on April 20 finding the Complaint frivolous,\r\nbut continuing the hearing due to Defendants’ counsel’s failure to submit any\r\nevidence discussing the attorney’s fees incurred and sought. (Mot.,\r\nBoennighausen Decl., ¶ 6, Exh. A.) After hearing oral argument from both\r\nparties, however, the Court decided not to adopt its tentative ruling as the\r\nfinal order of the Court and instead continued the hearing to June 7 for de\r\nnovo consideration. (4/21/21 Minute Order.)

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Defendants explain that, as a result of the Court\r\nresetting the hearing for de novo consideration, Defendants’ counsel sent\r\nPlaintiff’s counsel a letter providing pre-filing notice of the sanctions\r\nmotion and advising of the June 7 continued sanctions hearing via email and\r\nFedEx on April 22, 2021. (Mot., p. 3, Boenninghausen Decl., ¶ 8, Exh. B.) Thus,\r\nthis notice began the new 21-day safe harbor period. Six days later, on April\r\n28, Plaintiff filed a request for dismissal of the entire action with\r\nprejudice, which was entered on May 5. Having dismissed the Complaint, the\r\narguably sanctionable conduct was corrected. As the Court in Hart v. Avetoom\r\n(2002) 95 Cal.App.4th 410, 414 explained:

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“On this point, the case law is quite clear – allowing a\r\nparty to serve and file a motion after the conclusion of the case would\r\ncompletely defeat the purpose of the safe harbor provision. We are reminded the\r\n‘purpose of section 128.7 is to deter frivolous filings, not punish parties.\r\n[Citation.] This purpose is forwarded by allowing the offending party to avoid\r\nsanctions altogether by appropriately correcting sanctionable conduct after\r\nbeing alerted to the violation.’ [Citations.] It is difficult to imagine a more\r\n‘appropriate correction’ than voluntary dismissal.”

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(Emphasis added.)

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Defendants argue that\r\n“[n]othing in Section 128.7 permits attorneys and their firms to avoid\r\nsanctions by dismissing an action after a motion is filed with\r\nthe Court,” repeatedly point out that Plaintiff waited 177 days after receiving\r\nthe proposed sanctions motion on November 2, 2020 to dismiss the Complaint, and\r\nargue the tentative ruling not adopted as the final order was “correct.” (Mot.,\r\np. 4; Reply, pp. 2-3, 7.) (Emphasis added.) Indeed, where the safe harbor\r\nperiod has expired and a sanctions motion has already been filed, dismissal of\r\nthe action will not avoid Section 128.7 sanctions. (Eichenbaum v. Alon (2013) 106\r\nCal.App.4th 967, 975-76 [stating that “[t]he availability of section 128.7\r\nsanctions against an offending party that has voluntarily dismissed its action\r\ndepends upon whether the sanctions motion was filed before or after the\r\ndismissal”].)

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In this case, however, having\r\nheard and considered the parties' arguments regarding notice and service of the\r\nDecember 3 sanctions motion, the Court decided not to adopt its tentative\r\nruling and instead ordered Defendants to refile their sanctions motion de novo.\r\n(4/21/ Minute Order.) Plaintiff dismissed his Complaint after the motion was re-noticed\r\nand before the motion was re-filed, thereby achieving the purpose of Section\r\n128.7. Defendants then re-filed their sanctions motion, titling it as one for\r\nattorney’s fees, over one month after dismissal with prejudice was entered.\r\nBecause this Motion was filed over one month after dismissal, it must be\r\ndenied.

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Relying on Banks v. Hathaway, Perrett, Webster, Powers & Chrisman (2002) 97\r\nCal.App.4th 949, Defendants argue that filing a dismissal does not make the\r\nsanctions motion moot since there has been no judgment entered. (Mot., p. 4.) Banks, however, is distinguishable. In Banks, the defendant served notice of a sanctions motion\r\nthen filed a demurrer. (Banks v. Hathaway, Perrett, Webster,\r\nPowers & Chrisman, supra, 97 Cal.App.4th at p. 951.) Following\r\nthe court’s ruling sustaining the demurrer without leave, the defendant filed\r\nand re-served the motion for sanctions. (Id.) The\r\nmotion for sanctions was thereafter granted and the plaintiff’s attorney was\r\nordered to pay sanctions. (Id.) The court thereafter vacated its sanctions order and\r\nentered a dismissal based on the sustaining of the demurrer, reasoning that “\r\n‘[o]nce a court makes a dispositive judicial ruling, then the Court loses\r\njurisdiction, [and], as a matter of law, a [section] 128.7 motion is moot.” (Id.\r\nat p. 952.) In reversing, the court of appeals reasoned that the cases on which\r\nthe trial court relied were inapposite as they involved a motion for sanctions\r\nbeing filed after entry of judgment and in violation of the then 30-day safe\r\nharbor provision. (Id. at p. 953.) Thus, the Court held that “[t]he\r\ncorrect principle to be distilled…is that an order sustaining a demurrer\r\nwithout leave to amend does not bar a motion for section 128.7 sanctions unless\r\nthe order is reduced to a judgment before the sanctions motion is served and\r\nfiled.” (Id. at p. 954.)

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The instant case is significantly different in that, (1) the\r\nCourt ordered Defendants to refile their sanctions motion, requiring the safe\r\nharbor notice period to begin anew, and (2) in that Plaintiff dismissed the\r\nComplaint within the new safe-harbor notice period. Defendants cannot base this\r\nMotion on proper notice and service in November and December of the initial\r\nsanctions motion. Any arguments regarding the propriety of service of the\r\ninitial motion were necessarily addressed at the April 21 hearing, where both\r\nparties were present, when the Court concluded the sanctions motion had to be\r\nfiled de novo. (4/21/21 Minute Order.) Defendants did not seek reconsideration\r\nof that order and instead complied with it by re-serving notice of the\r\nsanctions motion on April 22. (See Mot., Boennighausen Decl., ¶ 8, Exh.\r\nB.)

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Having found that the safe-harbor period began anew on\r\nApril 22, 2021, after the Court ordered Defendants to re-file their sanctions\r\nmotion de novo, and having found that Plaintiff dismissed his Complaint within\r\nthe new-safe harbor period, this Motion, filed after the entry of dismissal\r\nwith prejudice, must be DENIED.

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IV. \r\nConclusion\r\n& Order

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For the foregoing reasons, Defendants\r\nALO, LLC, 370 North Canon Drive, LP, and Tashman Management, LLP’s Motion for\r\nAttorneys’ Fees is DENIED.

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Moving parties are ordered to give\r\nnotice.

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"
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