Superior Court of California

County of Los Angeles

Department 50

PRAXEDES E. RUNNING, et al.,

Plaintiffs,

vs.

COVINA IRRIGATING COMPANY, et al.,

Defendants.

Case No.: BC 623542
Hearing Date: June 26, 2018
Hearing Time: 8:30 a.m.
[TENTATIVE] ORDER RE: 

 

DEFENDANTS CITY OF AZUSA, GEORGE MORROW, CHET ANDERSON, FRAN DELACH, AND AZUSA VALLEY WATER COMPANY’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7

 

Background

Defendants the City of Azusa (the “City”); Azusa Valley Water Company (“AVWC”); George Morrow (“Morrow”); Fran Delach (“Delach”); and Chet Anderson (“Anderson”) (collectively, the “City Defendants”) move for the imposition of sanctions against Plaintiffs Praxedes E. Running (“Running”) and Praxedes E. Running Trust (jointly, “Plaintiff”) on the basis that Plaintiffs’ elder abuse cause of action against the City Defendants is without evidentiary support. Plaintiff opposes.

            Plaintiff’s Request for Judicial Notice

The Court notes that Plaintiff filed a Request for Judicial Notice concurrently with the opposition to the motion for sanctions, on April 2, 2018. However, the Request for Judicial Notice filed appears to be in connection with the opposition to the motion for summary judgment, not to the opposition to the motion for sanctions. The Court also notes that Plaintiff lists the items for which she is seeking judicial notice in her opposition, and that all of the items are documents filed in support of her opposition to the motion for summary judgment. To the extent that Plaintiff is asking the Court to look to the opposition to the motion for summary judgment to plug any evidentiary holes in her opposition to the motion for sanctions, the request is denied. “The doctrine of judicial notice is an evidentiary doctrine that permits the court to consider as established in a case a matter of law or fact that is relevant to an issue, without the necessity of formal proof of the matter by any party. […] The fundamental theory of judicial notice is that the matter that is judicially noticed is one of law or fact that cannot reasonably be disputed.” (Post v. Prati (1979) 90 Cal.App.3d 626, 633 [quoting Jefferson, California Evidence Benchbook (1972) Judicial Notice § 47.1, p. 833. (Italics in original.)]) The matters that Plaintiff seeks to judicially notice in the papers filed in support of her opposition to the motion for summary judgment are not indisputably true, so the Court declines to take judicial notice of them. To the extent that Plaintiff is merely asking the Court to judicially notice the fact that the opposition to the motion for summary judgment was filed, that request is also denied on the basis of irrelevance. (See Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341 [denying request for judicial notice as to irrelevant matters].)

Discussion

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.) “Subdivision (b) requires that parties and their attorneys certify that pleadings or other written matters presented to the courts have merit, ‘to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.’” (Id. at p. 516.) One of the conditions to be met is that the allegations and other factual contentions have “evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (Code Civ. Proc., § 128.7(b)(3).) To obtain sanctions under section 128.7, “the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 (internal citations omitted).)

In support of her elder abuse claim, Plaintiff alleges that the diversion of water from the canal was a taking of her water rights, which ultimately devalued her property. (See TAC, ¶¶ 68- 69.) Financial elder abuse occurs when a person “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,” or assists another in doing so. (Welf. & Inst. Code, § 15610.30(a).) An elder is any person residing in California, 65 years of age or older. (Welf. & Inst. Code, § 15610.27.)

The City Defendants contend that Plaintiff’s elder abuse claim lacks evidentiary merit against any of the City Defendants because none of the City Defendants had any knowledge of who she was before this lawsuit was initiated. (Howard Decl., ¶¶ 9-11, Exs. B – F.) According to the City Defendants, it is “inherent” to an elder abuse claim that “the defendant must know that his/her conduct is going to result in harm to an elder” and that “he/she must know the purported victim, or at least know that an elder is involved.” (Reply, p. 4: 25-27.) However, the City Defendants cite to no controlling case law to support these assertions. Indeed, a plain reading of the statute does not suggest that knowledge by the defendant of the purported victim or knowledge by the defendant that an elder is involved is required at all. The only elements are that 1) a person or entity takes…real or personal property, 2) of an elder…, 3) for a wrongful use or with intent to defraud. (Welf. & Inst. Code, § 15610.30(a)(1).) There is no requirement in the statute that a defendant must know that the victim is an elder. The same elements apply in determining whether a person or entity has assisted in financial elder abuse, and similarly, there is no requirement that a defendant must know that the victim is an elder.

The City Defendants also cite to section 15610.30, subdivision (b), which provides that “[a] person or entity shall be deemed to have taken…property for a wrongful use if, among other things, the person or entity takes…the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, § 15610.30(b).) First, as with subdivision (a)(1), the plain language of the statute does not require that a defendant know that the victim is an elder. It does not even plainly require that the defendant “know” the victim beyond knowing that the underlying conduct is likely to be harmful to some victim. Second, subdivision (b) does not circumscribe all of the ways someone can engage in financial elder abuse; it merely provides that the wrongful use element is satisfied by a showing of knowledge on the defendant’s part that the underlying conduct is likely to be harmful to an elderly person. Therefore, the Court is not convinced that the facts as alleged by Plaintiff could not, as a matter of law, amount to financial elder abuse simply because none of the City Defendants knew Praxedes Running, knew Praxedes Running was elderly, or knew Praxedes Running owned the subject property. It is conceivable that a financial elder abuse claim could be stated and proven simply by showing that the City Defendants took certain actions to take the canal out of service knowing that taking the canal out of service would likely be harmful to the owner of the property that was previously serviced by the canal, as is alleged by Plaintiff in the operative complaint. In light of the foregoing, the Court finds that the City Defendants have not demonstrated that Plaintiff’s elder abuse claim was objectively unreasonable.

Additionally, the City Defendants contend that Plaintiff had a continuing duty to reevaluate the merit of the elder abuse claim as facts and circumstances arise in the course of litigating the lawsuit. (See Code Civ. Proc., § 128.7(b) […”or later advocating…”].) The City Defendants contend that after conducting depositions of the City Defendants which purportedly revealed that no elder abuse claim could be proven against them, Plaintiff refused the City Defendants’ request to dismiss the elder abuse claim. Plaintiff, in opposition, cites to various sections of the City Defendants’ deposition testimonies to show that it was unlikely that many of the individual City Defendants did not know of Plaintiff or her property. Plaintiff bases her theory of liability for financial elder abuse on two separate but related ideas: the first is that the City Defendants took her “old user” water rights when the water in the canal was diverted to an underground pipeline, and the second is that the City Defendants failed to maintain the canal after the water was diverted, causing damage to the canal. The City Defendants argue that the second theory cannot sustain an elder abuse claim, as there is no allegation of any taking, secreting, appropriating, obtaining, or retaining of property. Although the Court agrees, the standard is not whether a claim is legally sufficient but whether there is evidence to support the claim. Here, the Court finds that Plaintiff has offered some evidence to support her claim that the City Defendants’ participated in decisions to abandon the canal and had knowledge that abandoning the canal could harm the owners of the property along the canal. (See Thomason Decl., Exs. 22, 34, 33.)

As far as the taking of the water rights, there is no dispute that diverting water from the canal can constitute a taking of Plaintiff’s property. Therefore, the question is whether Plaintiff had evidentiary support for her position that she had “old user” water rights and that the water rights were taken for a wrongful use. A related question is whether any of the City Defendants assisted in the “taking” as members (or in the case of the individuals, representatives of a member) of the Committee of Nine. Again, the standard for this inquiry is whether any reasonable attorney would agree that the claim is totally and completely without merit. Plaintiff does not set forth the evidence in much detail to support her allegation that there was a “plan to secretly divert water…[for] financial gain to the members of [the Committee of Nine].” (Opp’n, p. 5: 24-25.) However, considering evidence that is presented, the Court finds that the City Defendants have not shown that the financial elder abuse claim was totally and completely without merit to warrant imposition of sanctions. The Court notes that the City Defendants also needed to show that the pleading was “presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” in addition to lacking in evidentiary support. (Code Civ. Proc., § 128.7(b)(1).) In light of that, the Court finds that the City Defendants have not made a sufficient showing that the elder abuse claim was presented primarily for an improper purpose.

In the opposition, Plaintiff seeks sanctions on the grounds that the instant motion was without merit, frivolous, and made for an improper purpose. (Code Civ. Proc., § 128.7(h).) The Court finds that Plaintiff has not shown that the motion was without merit, as Plaintiff herself failed to provide evidence to convincingly support her claim to “old user” water rights. Further, the Court finds that the motion was not frivolous or made for an improper purpose. The Court notes that section 128.7 was crafted to “strike a balance between competing interests: the need to control improper litigation ‘tactics’ and the desire to avoid chilling vigorous advocacy.” (Levy v. Blum (2001) 92 Cal.App.4th 625, 637.) Here, the Court finds that the litigation tactics utilized are better characterized as vigorous advocacy than wholly improper. Therefore, the request for sanctions is denied.

Conclusion

            Based on the foregoing, the City Defendants’ motion for sanctions pursuant to Code of Civil Procedure section 128.7 is denied. Plaintiff’s request for sanctions pursuant to Code of Civil Procedure section 128.7(h) is also denied.

            Plaintiff is ordered to give notice of this ruling.

DATED:  June 26, 2018                                    ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

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