EULOGIO RODRIGUEZ VS NATIONAL CONCRETE WASHOUT

Tentative Rulings

Case Number: BC680087    Hearing Date: March 16, 2020    Dept: 29

Rodriguez v. National Concrete Washout, Inc.

Motion to Re-set FSC and Trial Dates by Plaintiff-in-Intervention Midwest Employers Insurance Co. is GRANTED. Trial is set for April 16, 2020 at 8:30 a.m. The final status conference is set for April 2, 2016 at 10:00 a.m. To the extent that discovery and motion cut-off dates had already passed at the time of filing the Notice of Settlement of the Entire Case, the dates are not reset. To the extent that the discovery and motion cut off dates had not yet expired by that time, the dates are to be determined by the new trial date.

Motion for Sanctions by Plaintiff-In-Intervention Midwest Employers Insurance Co. is GRANTED. The Court imposes sanctions in the amount of $900 on Plaintiff’s counsel of record, Hussein A. Chahine and Chahine Law, APC, jointly and severally, to be paid to moving party Plaintiff-in-Intervention Midwest Employers Insurance Co.

PROCEDURAL BACKGROUND

On 10/17/2017, Plaintiff Eulogio Rodriguez alleged that he tripped and fell as a result of a dangerous condition caused by the negligence of Defendant National Concrete Washout. On 9/9/2019, the Court granted Midwest Employer Casualty Company’s (“Midwest”) motion to intervene as a plaintiff under Labor Code section 3852 and 3853 and Code of Civil Procedure section 387 based on Midwest’s allegation that it had a right to subrogation because it paid worker’s compensation benefits to Plaintiff as a result of Defendant’s alleged negligence. The trial was continued to 2/27/2020. The final status conference was set for 2/14/2020.

On 2/4/2020, Rodriguez filed a “Notice of Settlement of Entire Case” on a judicial council form. Plaintiff checked the box on the form that stating: “The entire case has been settled. The settlement is conditional. The settlement agreement conditions dismissal of this matter on the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement. A request for dismissal will be filed no later than (date): See Attachement (sic) 1b.” All language except for the “See Attachment 1b” was part of the printed form; “see attachment 1b” was typewritten. Attachment 1b stated in typewritten language: July 1, 2020 – Plaintiff has settled his case with Defendants. Pending resolution of workers’ compensation lien with Plaintiff-in-Intervention.”

Having received a “Notice of Settlement of Entire Case,” the Court vacated the trial and final status conference dates. Midwest immediately filed a Motion to Re-Set FSC and Trial Dates on the grounds that it had not entered into a settlement with Defendant and thus Rodriguez’s statement that the entire case had been settled was false. Midwest also served a motion for sanctions under section 128.7

MOTION TO RESET FINAL STATUS CONFERENCE AND TRIAL

The Court grants the motion to reset the FSC and trial dates. Trial is set for April 16, 2020 at 8:30 a.m. The final status conference is set for April 2, 2016. The Notice of Settlement of Entire Case is stricken. To the extent that the discovery and motion cut off dates had not yet passed by that time, the dates are to be determined by the new trial date.

MOTION FOR SANCTIONS

Midwest seeks sanctions against Rodriguez’s counsel of record pursuant to Code of Civil Procedure section 128.7 for the wrongful filing of the notice of settlement of the entire case. Section 128.7(b) provides in relevant part:

“(b) By presenting to the court [various papers], an attorney is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

. . .

(3) The allegations and other factual contentions have evidentiary support . . . .”

Section 128.7(c) allows the Court to award sanctions for a violation of subdivision (b) is various conditions are met. Specifically, that subdivision provides in relevant part:

“(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys. . . that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

“(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.”

Here, the Court concludes that Midwest has exercised due diligence with respect to the situation here. Before Plaintiff filed the notice of settlement of the entire case, Midwest spoke to Plaintiff’s counsel and informed counsel that no settlement had been reached between Midwest and Defendant and that there was no basis for filing a notice of settlement of the entire case. Plaintiff nonetheless filed the notice. The notice was untrue because the action had not been settled between Midwest and Defendant and it was thus not a true statement that the entire action had been settled.

After the notice was filed counsel for Midwest against spoke to Plaintiff’s counsel demanding that the notice be retracted. Plaintiff’s counsel refused to do so. Midwest’s counsel thereafter filed the motion to reset the trial and the FSC and served Plaintiff with the motion for sanctions. Plaintiff had 21 days after the filing of those motions to withdraw the notice, but Plaintiff’s counsel refused to do so.

Plaintiff’s counsel provides no valid reason for filing a notice of settlement of the entire case. If the notice was filed in error, Plaintiff’s counsel could have withdrawn the notice. In opposition, Plaintiff does not claim that the filing was in error, or even address the representation in the notice that the “ENTIRE ACTION” had been settled.

The Court concludes that sanctions under section 128.7 are warranted here. In determining the amount of the sanctions, sanctions “shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” Code Civ. Proc. § 128.7, subd. (d). The Court has evaluated all of the facts and circumstances, and concludes, in the exercise of its discertion, that the amount sufficient to deter repetition of this conduct is $900. The Court imposes sanctions in the amount of $900 on Plaintiff’s counsel of record Hussein A. Chahine and Chahine Law, APC, jointly and severally, payable to moving party Plaintiff in Intervention Midwest Employers Insurance Co.

Moving party is ordered to give notice.