Cagle v. Armour CA2/3 ( 2024 )

Filed 9/12/24 Cagle v. Armour CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TIBREA L. CAGLE, B334400
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 21STCV19648
AMOR L. ARMOUR,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael E. Whitaker, Judge. Affirmed.
D’Egidio & Pedroza and Irving Pedroza; Gelb Law
and Yisrael Gelb for Plaintiff and Appellant.
Bradley Arant Boult Cummings and Michael W. Knapp
for Defendant and Respondent.
_________________________
Plaintiff Tibrea L. Cagle appeals an order imposing
monetary sanctions of less than $5,000 against her and her
attorney, Irving Pedroza of D’Egidio & Pedroza, APC. (See Code
Civ. Proc., § 904.1, subd. (b).)1 Defendant Amor L. Armour moved
for terminating and monetary sanctions under section 128.7
on the ground that plaintiff and her attorney had improperly
maintained the action without an evidentiary basis for plaintiff’s
claims. Defendant’s evidence supported the request for
sanctions, and plaintiff offered no evidence in opposition until
after the trial court entered an order of dismissal terminating
the action between the parties. On this record, the trial court
did not abuse its discretion. We affirm.
BACKGROUND
Consistent with our standard of review, we state the facts
established by the evidence in the light most favorable to the
trial court’s ruling. (Peake v. Underwood (2014) 227 Cal.App.4th
428, 441 (Peake) [sanctions under section 128.7 reviewed for
abuse of discretion and presumed correct]; Haraguchi v. Superior
Court (2008) 43 Cal.4th 706, 711 [under abuse of discretion
standard, “trial court’s findings of fact are reviewed for
substantial evidence”].)
Plaintiff filed this lawsuit in May 2021. Her form
complaint alleges defendant negligently operated a motor vehicle
“thereby causing grievous and serious bodily injuries and
damages” to plaintiff.2
1 Statutory references are to the Code of Civil Procedure.
Rule references are to the California Rules of Court.
2 The complaint also named as defendants Maven Drive,
LLC (the company that rented the vehicle to defendant) and
Maven LSG, LTD LSR (the company that owned the vehicle).
2
In June 2022, after plaintiff and her counsel Pedroza
refused to verify plaintiff’s discovery responses and unilaterally
cancelled her deposition with less than a day’s notice, defendant
filed a motion to compel and request for sanctions. On
October 18, 2022 (before the hearing on defendant’s motion),
plaintiff amended her complaint to substitute Ki Hwan Kim
for one of the doe defendants who was allegedly responsible
for plaintiff’s injuries. On November 8, 2022, the trial court
granted defendant’s motion to compel, finding plaintiff abused
the discovery process. The court ordered plaintiff to provide
verifications and appear for deposition within 30 days.
Plaintiff was finally deposed on December 13, 2022, after
twice demanding $15,000 to settle the case while refusing to
appear for her deposition within the court-ordered timeframe.
She testified that two drivers other than defendant struck and
injured her while she crossed the street. Plaintiff had amended
her complaint to add one of those drivers—Kim—as a defendant
months earlier. And she had sued the other driver—Laura
Harrier—in a separate lawsuit sometime earlier. Plaintiff
testified Kim’s white van struck her as she crossed the street,
and then Harrier’s white car backed over plaintiff’s head while
she lay in the road, causing all of plaintiff’s alleged injuries.3
She confirmed her injuries did not affect her memory and
her testimony reflected her full recollection of the incident.
After these defendants successfully removed the action to federal
court, plaintiff dismissed them from the lawsuit as part of a
stipulation for remand. In November 2021, the federal court
granted plaintiff’s unopposed motion for remand.
3 According to plaintiff, Harrier had been chasing plaintiff
down the street trying to hit her before Kim’s van struck her.
3
After plaintiff’s deposition, her counsel Pedroza
acknowledged plaintiff had identified two drivers other than
defendant who struck her and caused her injuries. In view
of the admissions, Pedroza asked if defendant would agree to
a dismissal in exchange for a costs waiver. Defendant’s counsel
agreed and prepared a confirming email, which he sent to
Pedroza that evening. Plaintiff did not dismiss the action
against defendant.
For the next two months, defendant’s counsel made
repeated attempts to reach Pedroza regarding the dismissal.
In early February 2023, Pedroza responded. He advised that
his firm had “no intention of pursuing this any further” and
that plaintiff was “aware” of counsel’s position. He said either
plaintiff would sign a substitution of attorney to represent herself
or he would withdraw from the case. He asked defendant’s
counsel to prepare a “waiver of costs release” to present to
plaintiff. Pedroza explained, “I have to do what I believe my
obligations to the client is [sic] without my office pursuing
this claim any further.” He reiterated, “we are no longer
going to pursue this claim against your client.” Later that day,
defendant’s counsel prepared a “stipulation for dismissal with
wavier of costs” and emailed it to Pedroza. Plaintiff did not
file the stipulation, and Pedroza did not move to be relieved
as counsel.
On March 20, 2023, defendant served plaintiff and Pedroza
with a motion for terminating and monetary sanctions under
section 128.7. Relying on plaintiff’s deposition testimony and
the communications with Pedroza, defendant argued plaintiff
and Pedroza knew plaintiff lacked evidentiary support for her
claims yet unreasonably continued to pursue them in violation
4
of section 128.7, subdivision (b)(3). Defendant maintained this
continuing conduct was part of a pattern of delay and deception
that plaintiff and Pedroza had employed to extract a nuisance
settlement from defendant. On April 17, 2023, after the 21-day
safe harbor period passed without plaintiff dismissing her
complaint or Pedroza moving to withdraw from the case,
defendant filed the motion for sanctions with the court.
Plaintiff opposed the motion but offered no supporting
declaration or other evidence. Her opposition brief argued
plaintiff’s claims could not have been frivolous because
defendant had offered a “policy limits” settlement that was
“later withdrawn prior to the Plaintiff’s deposition.” The brief
also denied that Pedroza had engaged in bad faith tactics,
acknowledging that plaintiff, “at her deposition[,] provided
testimony that no longer allows for Plaintiff’s counsel to continue
representing the Plaintiff,” while emphasizing that “Plaintiff’s
counsel has not engaged in any further discovery, or [settlement]
offers to the Defendant” since plaintiff’s deposition.4
On June 8, 2023, the trial court granted the motion,
finding terminating and monetary sanctions were warranted
against plaintiff and Pedroza for “advancing objectively factually
frivolous claims against Defendant, in violation of Section 128.7,
subdivision (b)(3).” The court explained: “Based on Plaintiff’s
admissions in her deposition that the subject car accident
involved two separate individuals other than Defendant,
Plaintiff’s factually devoid written discovery responses, and
Plaintiff’s failure to advance any meritorious argument in
4 Plaintiff’s attorney moved to be relieved as counsel the
same day plaintiff filed her opposition.
5
opposition to the motion defending the validity of her claims
against Defendant, the Court finds that Plaintiff’s ‘allegations
and other factual contentions’ advanced in her complaint do
not have evidentiary support.” The court ordered plaintiff and
Pedroza, jointly and severally, to pay sanctions in the amount
of $2,430, representing the attorney fees and costs defendant
incurred to bring the sanctions motion.
On June 9, 2023, the trial court entered an order of
dismissal with prejudice as to defendant.
The same day, Pedroza filed a declaration explaining
his and plaintiff’s reasons for filing and maintaining the action
against defendant. On July 10, 2023, plaintiff filed an ex parte
application for reconsideration, asking the court to revisit its
ruling in light of Pedroza’s declaration. The court rejected
the application, ruling plaintiff failed to satisfy the procedural
and substantive requirements for ex parte relief.
On August 10, 2023, plaintiff filed a request for voluntary
dismissal of the entire action. The next day, the trial court
entered an order of dismissal purporting to dismiss “MAVEN
LSG, LTD LSR, et al.” under section 581, subdivision (b)(3).5
On November 29, 2023, plaintiff filed a notice of appeal
from the order imposing monetary sanctions. (See § 904.1,
subd. (b).)
5 As noted, plaintiff dismissed Maven LSG, LTD LSR from
the action in late 2021 as part of a stipulation for remand from
the federal court. (See fn. 2, ante.) Section 581, subdivision (b)(3)
authorizes the trial court to dismiss an action “without prejudice,
when no party appears for trial following 30 days’ notice of time
and place of trial.”
6
DISCUSSION
1. Defendant’s Motion to Dismiss and for Additional
Sanctions
Defendant moves to dismiss plaintiff’s appeal and requests
that we impose additional sanctions against plaintiff and her
counsel. He argues this court lacks jurisdiction to consider the
appeal, both because plaintiff voluntarily dismissed the action
and because the appeal is untimely. He also maintains the
appeal is frivolous, warranting an award of additional sanctions.
We deny the motion.
This is the relevant procedural background: Pratik Shah
of Shah D’Egidio, APC filed the complaint on plaintiff’s behalf.
On October 18, 2022, plaintiff’s counsel filed a notice of firm
name change and notice of change of handling attorney. The
notice advised the firm’s name had been changed to D’Egidio
& Pedroza, APC and the attorney of record handling the case
would be Irving Pedroza.6 The filing confirmed the firm’s
mailing address and phone number had not changed, but
requested that all future communications be addressed
to Pedroza at the new firm name.
On June 9, 2023, the trial court signed and entered an
order of dismissal with prejudice as to defendant. The same day,
the clerk of the court served the order of dismissal on Pratik
Shah at Shah D’Egidio, APC.
On June 15, 2023, defendant filed a memorandum of costs
as the prevailing party.
6 Pedroza had represented plaintiff and signed discovery
responses on her behalf since March 2022.
7
On August 10, 2023, plaintiff filed a request for voluntary
dismissal of the entire action. The superior court clerk entered
the dismissal the next day.
On August 23, 2023, the court entered judgment in favor
of defendant and against plaintiff, awarding defendant $7,719.13
in costs as requested in his unopposed costs memorandum.
On November 29, 2023, plaintiff filed her notice of appeal
from the award of monetary sanctions.
Defendant argues plaintiff’s voluntary dismissal of the
action divests this court of jurisdiction to review the underlying
proceeding. The rule he relies upon is not applicable in this case.
“When an action is wilfully dismissed by the plaintiff
against one or more of several defendants the effect is the
same as if the action had been originally brought against the
remaining defendants.” (Cook v. Stewart McKee & Co. (1945)
68 Cal.App.2d 758, 761 (Cook), citing Page v. W. W. Chase Co.
(1904) 145 Cal. 578, 584.) “A wilful dismissal terminates the
action for all time and affords the appellate court no jurisdiction
to review rulings on demurrers or motions made prior to the
dismissal.” (Cook, at pp. 760–761.) “After such dismissal
the defendant is a stranger to the action.” (Id. at pp. 761–762
[defendant who was voluntarily dismissed from action had
no standing to appeal prior order overruling demurrer].)
The foregoing rule applies to a defendant who has been
voluntarily dismissed—it does not apply to the “remaining
defendants” or to a defendant who had already been dismissed
from the action. (Cook, supra, 68 Cal.App.2d at p. 761; see, e.g.,
Courtney v. Waring (1987) 191 Cal.App.3d 1434, 1439 [plaintiff’s
voluntary dismissal of “all other defendants” did not divest
appellate court of jurisdiction to review demurrer ruling in
8
favor of respondent-defendants].) As we have discussed, two
months before plaintiff filed her request for voluntary dismissal,
the trial court entered the sanctions ruling and a signed order
of dismissal with prejudice as to defendant. A written order of
dismissal, signed by the trial court, constitutes a final judgment
and, as a general matter, divests the superior court of jurisdiction
to alter the judgment with respect to those defendants affected
by the dismissal. (See APRI Ins. Co. v. Superior Court (1999) 76
Cal.App.4th 176, 181 (APRI) [“ ‘Once judgment has been entered,
. . . the court may not reconsider it and loses its unrestricted
power to change the judgment.’ ”]; cf. Wells Fargo & Co. v.
City and County of San Francisco (1944) 25 Cal.2d 37, 44 [“The
awarding of costs is but an incident to the judgment [citations],
and is therefore within the court’s jurisdiction to enter the
judgment.”].) Because the court entered a signed order
dismissing defendant from the action before plaintiff voluntarily
dismissed what remained of the action, plaintiff has standing
to challenge the sanctions ruling and we have jurisdiction to
consider her appeal. (Cf. Yancey v. Fink (1991) 226 Cal.App.3d
1334, 1342–1343 [“While a compulsory dismissal by order
of a court is a judicial act from which a plaintiff may appeal,
a voluntary dismissal by a plaintiff is accomplished by a
ministerial act of the clerk, filing from which no appeal lies.”].)
Alternatively, defendant argues plaintiff’s appeal is
untimely because she filed her notice of appeal more than 60 days
after purported service of the June 9, 2023 order of dismissal and
the August 23, 2023 judgment awarding costs. Plaintiff contends
neither document was properly served, and therefore her notice
of appeal—filed within 180 days of entry of the dismissal order—
was timely. We agree with plaintiff.
9
Under rule 8.104, a notice of appeal must be filed on or
before the earlier of either (a) 60 days after the superior court
clerk or a party serves the appealing party with “a document
entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of
the judgment, accompanied by proof of service,” or (b) 180 days
after entry of judgment. (Rule 8.104(a)(1).) Under section 581d,
“[a]ll dismissals ordered by the court shall be in the form of
a written order signed by the court and filed in the action and
those orders when so filed shall constitute judgments and be
effective for all purposes.”
Defendant argues the superior court clerk’s service of the
June 9, 2023 order of dismissal triggered the 60-day deadline
for plaintiff to file her notice of appeal.7 Plaintiff acknowledges
the signed order of dismissal under section 581d constitutes a
“file-endorsed copy of the judgment” as specified in rule 8.104,
but she argues the 60-day deadline was not triggered because
the clerk addressed service of the document to Pratik Shah
at Shah D’Egidio, APC after plaintiff had filed a notice of firm
name change and change of handling attorney specifying that
all future filings should be addressed to Irving Pedroza at
D’Egidio & Pedroza, APC.
7 Defendant seems to suggest the court’s June 8, 2023
minute order granting his motion for terminating and monetary
sanctions “constitutes entry of judgment” as well; however,
defendant also acknowledges the order may “not satisfy” the
requirements of section 581d. Defendant is correct on the latter
point. Because the trial court did not sign the minute order,
it does not constitute a judgment under section 581d. (Cf. Muller
v. Tanner (1969) 2 Cal.App.3d 438, 440 [signed minute order
dismissing action is “treated as a judgment of dismissal and
as appealable” under section 581d].)
10
Section 1013 provides that “service by mail” is complete
when it is posted in an envelope “addressed to the person on
whom it is to be served, at the office address as last given by
that person on any document filed in the cause and served on
the party making service by mail.” (§ 1013, subd. (a), italics
added.) “This subdivision is applicable to the mailing by a court
clerk of notice announcing the entry of an appealable judgment
or order.” (Triumph Precision Products, Inc. v. Insurance Co.
of North America (1979) 91 Cal.App.3d 362, 365 (Triumph);
see Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1967)
255 Cal.App.2d 172, 174 (Valley Vista) [“A successful service by
mail requires strict compliance with the statute.”]; see also Alan
v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902
(Alan) [“documents mailed by the clerk do not trigger the 60-day
period for filing a notice of appeal unless the documents strictly
comply with [rule 8.104]”].)
“Where the envelope containing the notice is improperly
addressed, it is as though notice [was] never mailed by the clerk.”
(Triumph, supra, 91 Cal.App.3d at p. 365, citing Valley Vista,
supra, 255 Cal.App.2d at pp. 173–174.) Here, because the
clerk of the court did not address the order of dismissal to Irving
Pedroza at D’Egidio & Pedroza, APC, the mailing of the order
was not effective to trigger the 60-day deadline under rule 8.104.8
8 As noted, on August 11, 2023—the same day the clerk
entered plaintiff’s request for voluntary dismissal—the trial court
signed and entered an order of dismissal, listing the defendants
as “MAVEN LSG, LTD LSR, et al.” (See fns. 2 & 5, ante.)
Although the superior court clerk correctly addressed mail
service of the order to Pedroza at D’Egidio & Pedroza, we
conclude this order was insufficient to trigger the 60-day filing
deadline. As we have noted, “documents mailed by the clerk
11
(See Triumph, at pp. 364–365 [where “envelope containing
the notice [of entry of order granting new trial] had been
addressed to [appellant’s] attorney at the correct street address,
but had omitted the name of his law firm,” clerk’s mail service
did not trigger deadline to appeal].)
Defendant’s purported service of the August 23, 2023
judgment was likewise ineffective to trigger the 60-day deadline.
In a declaration offered in support of the motion to dismiss,
defendant’s attorney states he “served Plaintiff’s counsel with
the [judgment] via email on September 12, 2023.” However,
the copy of the email offered with counsel’s declaration does
not include the judgment, much less a proof of service stating
the date a filed-endorsed copy of the judgment was served.
(See rule 8.104(a)(1)(B) [requiring “filed-endorsed copy of the
judgment, accompanied by proof of service” to trigger 60-day
deadline]; see also § 1013b [stating methods by which proof
do not trigger the 60-day period for filing a notice of appeal
unless the documents strictly comply with [rule 8.104(a)(1)].”
(Alan, supra, 40 Cal.4th at p. 902.) This order of dismissal did
not clearly apply to defendant, who had already been dismissed
from the case. Moreover, the order referred to dismissal under
section 581, subdivision (b)(3)—the statute authorizing dismissal
“when no party appears for trial following 30 days’ notice of
time and place of trial.” (§ 581, subd. (b)(3).) In view of these
anomalies, this order was insufficient to trigger the 60-day
period. (See Alan, at p. 903 [“To interpret rule 8.104(a)(1)
as commencing the 60-day period for filing a notice of appeal
only when the clerk has sent a single, self-sufficient document
satisfying all of the rule’s conditions does not do violence to
the rule’s language.”].)
12
of electronic service may be made].) Counsel’s email was
insufficient to trigger the 60-day deadline.
Finally, defendant argues the appeal is frivolous and
requests we impose sanctions against plaintiff and her counsel.9
He bases the request on the same grounds he asserted for
dismissing the appeal, arguing plaintiff’s “Request for Dismissal
divest[ed] this Court of jurisdiction” and plaintiff “missed the
deadline to timely file her notice of appeal.” Having rejected
both arguments, we also deny defendant’s request for sanctions.
2. Plaintiff Has Not Demonstrated the Trial Court
Erred in Imposing Monetary Sanctions
Section 128.7 “authorizes trial courts to impose sanctions
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 (Musaelian).) Under this authority,
trial courts may issue sanctions, including monetary and
terminating sanctions, against a party or her attorney for filing
a complaint that is factually frivolous. (§ 128.7, subds. (b)–(d);
Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 263–264.)
A complaint is factually frivolous if a reasonable attorney would
agree it is not well grounded in fact because it lacks “evidentiary
9 Section 907 authorizes the imposition of appellate
sanctions “[w]hen it appears to the reviewing court that the
appeal was frivolous or taken solely for delay.” (See also rule
8.276(a)(1).) An appeal may be found frivolous and sanctions
imposed when the appeal “is prosecuted for an improper motive
—to harass the respondent or delay the effect of an adverse
judgment,” or “indisputably has no merit—when any reasonable
attorney would agree that the appeal is totally and completely
without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637,
646, 650.)
13
support” and is “[un]likely to have evidentiary support after
a reasonable opportunity for further investigation or discovery.”
(§ 128.7, subd. (b)(3); Guillemin v. Stein (2002) 104 Cal.App.4th
156, 167; Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189 [“[T]o
obtain sanctions, the moving party must show the party’s conduct
in asserting the claim was objectively unreasonable. [Citation.]
A claim is objectively unreasonable if ‘any reasonable attorney
would agree that [it] is totally and completely without merit.’ ”].)
“A court has broad discretion to impose sanctions if the moving
party satisfies the elements of the sanctions statute.” (Peake,
supra, 227 Cal.App.4th at p. 441.)
“[E]ven though an action may not be frivolous when it
is filed, it may become so if later-acquired evidence refutes the
findings of a prefiling investigation and the attorney continues
to file papers supporting the client’s claims. [Citation.] Thus,
a plaintiff’s attorney cannot ‘just cling tenaciously to the
investigation he had done at the outset of the litigation and
bury his head in the sand.’ [Citation.] Instead, ‘to satisfy [the]
obligation under [section 128.7] to conduct a reasonable inquiry
to determine if his [or her] client’s claim was well-grounded in
fact,’ the attorney must ‘take into account [the adverse party’s]
evidence.’ ” (Peake, supra, 227 Cal.App.4th at p. 441, quoting
Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir. 1994) 29 F.3d
1018, 1025.)10
10 “The Legislature enacted Code of Civil Procedure section
128.7 based on rule 11 of the Federal Rules of Civil Procedure
(28 U.S.C.), as amended in 1993 (Rule 11).” (Peake, supra, 227
Cal.App.4th at p. 440, citing Musaelian, supra, 45 Cal.4th at
p. 518, fn. 2.) “Therefore, federal case law construing Rule 11
14
“[S]ection 128.7 provides for a 21-day period during which
the opposing party may avoid sanctions by withdrawing the
offending pleading or other document.” (Peake, supra, 227
Cal.App.4th at p. 441; § 128.7, subd. (c)(1).) “By providing
this safe harbor period, the Legislature designed the statute
to be ‘remedial, not punitive.’ [Citation.] When a party does not
take advantage of the safe harbor period, the ‘statute enables
courts to deter or punish frivolous filings which disrupt matters,
waste time, and burden courts’ and parties’ resources.’ ” (Peake,
at p. 441.)
“We review a [section] 128.7 sanctions award under
the abuse of discretion standard. [Citation.] We presume the
trial court’s order is correct and do not substitute our judgment
for that of the trial court. [Citation.] To be entitled to relief
on appeal, the court’s action must be sufficiently grave to
amount to a manifest miscarriage of justice.” (Peake, supra,
227 Cal.App.4th at p. 441.) The appellant bears the burden
to overcome our presumption of correctness by affirmatively
demonstrating error on the record presented. (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1140–1141.)
Plaintiff contends the imposition of monetary sanctions was
an abuse of discretion for two principal reasons. First, she argues
a police report placing defendant at the incident scene establishes
she and her attorney had an objectively reasonable basis to
believe defendant could have been at least partially responsible
for her injuries when they filed the action. Second, with respect
to her attorney, plaintiff argues Pedroza cannot be sanctioned for
(28 U.S.C.) is persuasive authority on the meaning of section
128.7.” (Peake, at p. 440.)
15
failing to dismiss the action, even after plaintiff’s “self-sabotaging
deposition testimony,” because plaintiff “would not agree to the
stipulation to dismiss.”11
11 Plaintiff also argues Pedroza cannot be sanctioned
for failing to dismiss defendant from the action during the
safe harbor period because some federal courts have held Rule 11
sanctions cannot be imposed on attorneys who do not sign
offending papers or who fail to file papers, including a dismissal.
(See, e.g., Samuels v. Wilder (7th Cir. 1990) 906 F.2d 272, 275.)
However, other federal courts disagree with this interpretation
of Rule 11. (See, e.g., Mann v. G & G Mfg., Inc. (6th Cir. 1990)
900 F.2d 953, 959 [“After the complaint is filed, plaintiffs’ counsel
retain a continuing responsibility to review their pleadings and,
if necessary, to modify them to conform with Rule 11.”]; accord
Fahrenz v. Meadow Farm Partnership (4th Cir. 1988) 850 F.2d
207, 211, fn. 1 [“The crux of the district court’s order imposing
sanctions was that plaintiff’s counsel continued to pursue their
claims for some time after it would have been reasonable and
responsible to dismiss the claims. Under these circumstances
it was not an abuse of discretion for the district court to impose
sanctions pursuant to Rule 11.”].)
No California court appears to have adopted this unsettled
aspect of federal Rule 11 jurisprudence, and we need not wade
into the debate here. The record shows that, consistent with
plaintiff’s deposition testimony, she and her counsel Pedroza
amended the complaint to substitute Ki Hwan Kim for one of
the doe defendants who was allegedly responsible for plaintiff’s
injuries. This evidence, especially when coupled with counsel’s
ongoing refusals to respond to defendant’s discovery requests
at the time, supports a reasonable inference that counsel knew
defendant was not responsible for plaintiff’s injuries when he
filed the amended pleading. Plaintiff’s and her counsel’s filing
of the amended pleading while continuing to maintain the action
against defendant plainly comes within the purview of our state
statute. (See, e.g., Peake, supra, 227 Cal.App.4th at pp. 439–440
16
Both arguments are insufficient to overcome our
presumption of correctness because plaintiff bases them
on evidence she offered after the trial court entered its order
dismissing the action against defendant. As noted, plaintiff
opposed defendant’s motion for sanctions but offered no
supporting declaration or other evidence. Her opposition brief
made no mention of a police report, arguing instead that her
claims could not have been frivolous because defendant earlier
offered a “policy limits” settlement. Further, while plaintiff
(or her counsel) acknowledged she had “provided testimony that
no longer allows for Plaintiff’s counsel to continue representing
the Plaintiff,” she said nothing about refusing to allow her
attorney to dismiss the action against defendant. Rather, her
opposition brief observed only that “a waiver of costs still has
to be approved and signed by the Plaintiff,” while emphasizing
that “no further discovery or demands from the defendant ha[d]
occurred” since the deposition. To the extent plaintiff offered any
evidence to support the arguments she now advances on appeal,
all the purported evidence was submitted with the Pedroza
declaration, which she filed after the trial court ruled on the
sanctions motion and entered the signed order of dismissal
as to defendant.12
[affirming sanctions against plaintiff and attorney where trial
court found plaintiff’s “claims were ‘utterly lacking in legal merit’
and [plaintiff’s and counsel’s] continued maintenance of the
claims warranted sanctions under [section] 128.7”].)
12 Plaintiff contends the trial court had these documents
on June 9, 2023 when the court entered the order of dismissal.
However, the reverse chronological register of actions shows
17
The trial court did not abuse its discretion by declining to
consider evidence that plaintiff submitted after the court signed
the dismissal order. As we explained with respect to defendant’s
motion to dismiss, a written order of dismissal, signed by the
trial court, constitutes a final judgment under section 581d and
divests the court of jurisdiction to reconsider its ruling once the
judgment has been entered. (See APRI, supra, 76 Cal.App.4th
at p. 181.) In APRI, the trial court signed an order dismissing
the defendant from the action before granting the plaintiff’s
motion for reconsideration of the dismissal. (APRI, at pp. 179–
181.) The APRI court issued a writ directing the trial court
to vacate the latter order, reasoning the lower court lacked
jurisdiction to grant reconsideration because its signed
dismissal order constituted a final judgment under section 581d.
(APRI, at pp. 180–181, 186.) The fact that the plaintiff had
filed her motion for reconsideration before the trial court entered
the dismissal order did not change this necessary conclusion:
“The issue is jurisdictional. Once the trial court has entered
judgment, it is without power to grant reconsideration. The
fact that a motion for reconsideration may have been pending
when judgment was entered does not restore this power to
the trial court.” (Id. at pp. 179–180, 182.)
The same rule applies here. Once the trial court entered
the signed order dismissing defendant from the action, it had no
jurisdiction to reconsider its sanctions ruling in light of Pedroza’s
late-filed declaration. If plaintiff and her counsel had evidence
relevant to the motion for sanctions, it was incumbent upon them
to file it with their opposition brief.
the court entered the dismissal order before plaintiff filed the
Pedroza declaration later that day.
18
The record properly before us establishes plaintiff and
her attorney knew they lacked evidentiary support to pursue the
action against defendant at least as early as plaintiff’s deposition.
Indeed, the trial court could have reasonably inferred they
knew the claim was objectively unreasonable earlier than that.
(See fn. 11, ante.) In her deposition testimony, plaintiff affirmed
that her injuries had not affected her memory and that she had
been able to give a full account of how the incident unfolded.
After plaintiff’s deposition, her counsel repeatedly acknowledged
plaintiff’s action against defendant lacked evidentiary support.
Nevertheless, despite twice receiving defendant’s agreement
to a waiver of costs, plaintiff did not dismiss the action. Even
after defendant served his motion for sanctions, plaintiff did
not withdraw her pleading, and her counsel did not move to
withdraw from the case during the 21-day safe harbor period.
On this record, we cannot say the trial court abused its discretion
by imposing monetary sanctions equal to the attorney fees
and costs defendant incurred to bring the sanctions motion.
(See Peake, supra, 227 Cal.App.4th at pp. 439–441.)
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DISPOSITION
The order is affirmed. Defendant Amor L. Armour is
entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
ADAMS, J.
20