ELECTRONICALLY FILED BY

LAW OFFICES OF GEORDAN GOEBEL Superior Court of California,

GEORDAN GOEBEL [State Bar# 149513] County of Monterey
2 ASHLEY STANDER [State Bar# 307562] On 3/7/2017 11 22:05 AM
155 Granada Street, Suite M-2
3 Camarillo, CA 930 I 0-7725 By Lisa Dalia, Deputy
(805) 482-8879 Fax
4 (805) 482-7966 Phone

5 Attorney for Plaintiffs,

STATE FARM GENERAL INSURANCE CO
6

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF MONTEREY

10

II STATE FARM GENERAL INSURANCE ) Case No.: 16CV002381

COMPANY, )
12 ) OPPOSITION TO MOTION FOR
Plaintiff, ) SANCTIONS
13 )
vs. ) DATE: March 17,2017
14 ) TIME: 9:00 a.m.
CITY OF CARMEL-BY-THE-SEA; and DOES I ) DEPT: 15
15 through I 0, inclusive, )
)
16 Defendants. )

17
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18 Plaintiff State Farm General Insurance Company opposes defendant City of Carmel-by-the-

19 Sea's ("the City") motion for sanctions.

20 1. STATE FARM'S COMPLAINT IS BASED UPON THE CITY'S VIOLATION OF ITS

21 OWN ORDINANCE.

22 A judge may order a party or counsel, or both, to pay the reasonable expenses, including

23 attorney fees, incurred by the other party "as a result of bad-faith actions or tactics that are frivolous

24 or solely intended to cause unnecessary delay." CCP 128.5(a) (emphasis added) "Frivolous"

25 means either: "totally and completely without merit"; or "for the sole purpose of harassing an

26 opposing party." CCP 128.5(b)(2); see Marriage of Flaherty (1982) 31 C3d 637, 649-650

27 (sanctions for "frivolous" appeal).

28 An objective standard applies in determining whether a lawsuit is frivolous: "(A) suit

OPPOSITION TO MOTION FOR SANCTIONS

 indisputably has no merit only where any reasonable attorney would agree that the action is totally

2 and completely without merit." Finnie v. Town of Tiburon ( 1988) 199 CA3d I, 12; Chitsazzadeh v.

3 Kramer & Kaslow (20 11) 199 CA4th 676, 683-684.

4 Despite the City's attempt to show otherwise, State Farm's lawsuit is based upon clear facts

5 and applicable law. This is not a situation where plaintiff is attempting to: assert a claim which

6 doesn't legally exist, pursue a claim where it has no factual or legal grounds for so doing, lacks

7 standing, seeks relief which cannot be granted, attempts tore-litigate a claim after it has been fully

8 adjudicated against it, etc. None of the "usual suspects" for a sanctions motion are present.

9 Here, the City has provided no basis as to how State Farm allegedly participated in any bad-

10 faith action or tactics. The legal issue involved here, whether the City breached one of its Codified

11 duties, is in dispute - but that dispute does not mean that plaintiff's complaint is frivolous.

12 As is fully set forth in plaintiffs opposition to the concurrently pending demurrer, the City

13 exercised dominion and control over the trees within its jurisdiction. The City required permits to

14 remove trees. The City's code provides that, following the submittal of a permit application, the

15 City Forester "shall review all trees on the site and in the adjacent right-of-way" (City Code

16 17.48.060). The tree at issue was one that should have been seen by the City's Forester in his

17 inspection of the property, as it was situated a few feet away from the trees outlined in the permit.

18 2. THE CITY'S MOTION FOR SANCTIONS IS FRIVOLOUS AND IN BAD FAITH.

19 The City, conveniently, views its own code section, Municipal Code 17.48.060, as not

20 giving rise to a legal duty. However, plaintiff's complaint is based upon the clear language of the

21 section, giving rise to an affirmative duty. Just because the City has a different reading of the code

22 section, does not mean that plaintiffs action is meritless, and certainly does not warrant a motion

23 for sanctions against plaintiff.

24 In good faith, plaintiff attempted to address any factual discrepancies alleged by the City by

25 amending its complaint. Plaintiff has attempted to meet the City's objections to its pleading by

26 amending its complaint, in order to achieve resolution to the action on the merits. Nevertheless,

27 since plaintiff didn't roll over and surrender to the City, it filed this sanctions motion.

28 Ill

2
OPPOSITION TO MOTION FOR SANCTIONS
 3. CONCLUSION.

2 The City's frivolous sanctions motion should be denied. Plaintiff's complaint is brought in

3 good faith, and is supported by the facts and the law.

5 DATED: March f, 2017

6 By:
A~S~L~E~~A~N~D=E=R~,---------

7 Attomeys for Plaintiff,

STATE FARM GENERAL INSURANCE CO.
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OPPOSITION TO MOTION FOR SANCTIONS