California Court of Appeals, Second District, Fifth Division
from order of the Superior Court of Los Angeles County No.
BC587708, Michael J. Raphael, Judge. Reversed.
Libarle, in pro. per., for Objector and Appellant.
Collins Collins Muir & Stewart, Robert H. Stellwagen,
David C. Moore, Joshua A. Cohen, for Defendant and Respondent
filed a legal malpractice action, then retained a new
attorney. The attorney filed a declaration stating that he
represented the plaintiffs. A defendant in the action
immediately served the attorney with a motion for sanctions
under Code of Civil Procedure section 128.7 on the ground
that the complaint filed by prior counsel lacked
merit. After the motion for sanctions was
filed several months later, the trial court granted it. On
appeal from the order awarding sanctions, the attorney
contends that he was denied the notice and safe harbor
required under section 128.7, because the motion served on
him did not identify any specific conduct he had taken that
violated the statute. We conclude there is no evidence that
the attorney presented the complaint to the court within the
meaning of section 128.7 before he was served with the motion
for sanctions. A new attorney's filing of a declaration
merely notifying the court of a change in counsel does not
constitute presenting the complaint to the court under
section 128.7. We also conclude that a sanctions order cannot
be supported solely by evidence of conduct occurring after
the motion is served, because a motion for sanctions under
section 128.7 must describe the specific conduct taken by the
party to be sanctioned and allow a safe harbor period to
withdraw or appropriately correct the sanctionable conduct.
There was no evidence to support finding the attorney
violated section 128.7 before he was served with the motion
for sanctions, and therefore, we reverse the order awarding
AND PROCEDURAL BACKGROUND
Lawsuit between Primo and Americana
October 2007, Primo Hospitality Group, Inc., and its
principals Charlton Lui and Anthony Riviera (collectively
Primo), entered into a commercial lease with The Americana at
Brand, LLC (Americana) for space at Americana's mall.
Primo opened a restaurant in the space. In May 2009, the
floors sustained water damage.
firm of Novian & Novian, LLP, on behalf of Primo, filed a
negligence action against Americana and its management
company in 2010. Primo repaired the floor in May 2010, but
stopped paying rent in June 2010. After the floors were
damaged in a second incident, Primo vacated the space in
November 2010. Americana filed a cross-complaint against
Primo for breach of contract based on unpaid rent.
Novian firm withdrew on June 22, 2011. Primo retained the law
firm of Haney Roderick Torbett & Arnold, LLP (the Haney
firm), in August 2011. John Torbett was the principal
attorney of the Haney firm. Primo said a pressure-washing
company hired by Americana caused the water damage when the
pressure-washing equipment forced water under the threshold
of the door to the restaurant. Primo had repeatedly requested
that Americana stop pressure-washing, but Americana refused.
Primo said the Novian firm advised Primo to vacate the
premises and cease paying rent.
trial was held in 2012. The jury found in favor of Primo on
the causes of action for negligence, trespass, and nuisance.
The jury found in favor of Americana on the remaining causes
of action, including breach of the lease agreement. The trial
court entered judgment in favor of Primo against Americana in
the amount of $840, 000, and against the management company
in the amount of $560, 000. However, the jury found Primo was
liable to Americana in the amount of $1, 275, 250 for breach
of the lease agreement. The trial court awarded attorney fees
of $1, 250, 000 to Americana under the lease agreement.
10, 2015, Primo filed the present legal malpractice action
against defendants and respondents Steven Haney, Haney Law
Group (individually and as the successor to the Haney firm),
Haney & Young, LLP, and Darren McBratney (collectively
referred to as the Haney defendants) and Torbett. Primo
alleged that the defendants negligently formulated the
special verdict form in the underlying action against
Americana, because the form failed to ask whether Primo was
excused from performance under the lease. Primo also alleged
the defendants negligently failed to name certain entities as
defendants in the underlying action, including the company
that performed the pressure washing.
January 6, 2016, the defendants filed a motion for summary
judgment on the grounds that Primo could not establish
causation or damages. The jury in the underlying action, in
response to other questions, found Primo did not perform as
required under the lease, Americana performed as required by
the lease, all conditions for Primo to perform were met, and
Primo was not constructively evicted. Defendants also argued
that the entities who were not named as defendants in the
underlying action had no potential liability, or the failure
to name them was harmless.
22, 2016, Torbett filed a second motion for summary judgment,
joined in by the Haney defendants, on the ground that
Primo's claims were barred by the defense of unclean
hands. The motion argued that Primo made false
representations and concealed material information. For
example, Primo concealed that the Novian firm's advice
was to continue paying rent and not vacate the premises.
Primo decided to vacate and forfeit the lease because of
increased competition from other restaurants. As a result,
Primo could not assert constructive eviction for breach of
the lease agreement. Primo also failed to disclose that their
insurer concluded the water damage resulted from an
accidental appliance leak within the restaurant and the
insurer provided Primo with substantial insurance payments.
The evidence in support of the second motion for summary
judgment included correspondence received in discovery from
the Novian firm and Primo's insurance company.
for Sanctions ...