1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS BARAJAS CENTENO, Case No.: 3:19-cv-02098-RSH-DEB 12 Plaintiff,

13 v. ORDER DENYING PLAINTIFF’S 14 CITY OF CARLSBAD; JORDAN MOTION FOR SANCTIONS WALKER; and DOES 1 through 10, 15 [ECF No. 266] Defendants. 16 17 18 On May 2, 2023, Plaintiff filed a motion to sanction defense counsel under Federal 19 Rule of Civil Procedure 11. ECF No. 266.1 For the reasons below, the Court denies the 20 motion. 21 I. Legal Standard 22 Under Federal Rule of Civil Procedure 11, an attorney who signs a pleading, written 23 motion, or other paper filed with the Court certifies that to the best of the attorney’s 24 knowledge, information, and belief, formed after an reasonable inquiry under the 25 circumstances: (1) the filing is not being presented for any improper purpose, such as to 26

27 1 All citations to electronic case filing (“ECF”) entries refer to the ECF-generated page 28 1 harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, 2 defenses, and other legal contentions are warranted by existing law or by a non-frivolous 3 argument the law should be changed; (3) any factual contentions have (or will have after 4 discovery) evidentiary support; and (4) any denials of factual contentions are warranted on 5 evidence or a lack of information. Fed. R. Civ. P. 11(b). 6 Rule 11 “provides strict procedural requirements for parties to follow when they 7 move for sanctions under Rule 11.” Radcliffe v. Rainbow Const. Co.,

, 788 8 (9th Cir. 2001). Specifically: 9 A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly 10 violates Rule 11(b). The motion must be served under Rule 5, but 11 it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or 12 appropriately corrected within 21 days after service or within 13 another time the court sets. 14 Fed. R. Civ. P. 11(c)(2). 15 “If, after notice and a reasonable opportunity to respond, the court determines that 16 Rule 11(b) has been violated, the court may impose an appropriate sanction on any 17 attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed. 18 R. Civ. P. 11(c)(1). “If warranted, the court may award to the prevailing party the 19 reasonable expenses, including attorney’s fees, incurred for the motion.” Fed. R. Civ. P. 20 11(c)(2). 21 II. Analysis 22 Plaintiff filed his motion for sanctions on May 2, 2023. ECF No. 266. Plaintiff argues 23 defense counsel violated Rule 11 by filing an objection [ECF No. 238] claiming that 24 Plaintiff “never served pretrial disclosures” because the objection was “filed in bad f[ai]th, 25 merely to harass plaintiff, and to add public expenses at the taxpayers’ deep pockets 26 without any legitimate reason but to harass plaintiff’s counsel.” ECF No. 266 at 4. 27 Defendant responded on May 3, 2023. ECF No. 267. 28 1 Plaintiff’s motion does not comply with Rule 11’s clear procedural requirements. A 2 motion for sanctions “must be served under Rule 5, but it must not be filed or be presented 3 to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or 4 appropriately corrected within 21 days after service or within another time the court sets.” 5 Fed. R. Civ. P. 11(c)(2). The 21-day safe harbor provision in Rule 11 is “mandatory.” 6 Radcliffe, 254 F.3d at 789 (9th Cir. 2001) (finding trial court abused its discretion by not 7 complying with Rule 11’s 21-day safe harbor) (citing Barber v. Miller,

, 710- 8 11 (9th Cir. 1998)). Here, Plaintiff did not serve his motion for sanctions on Defendant 9 prior to filing. See ECF No. 267 at 3; see also ECF No. 266 at 12-14. Therefore, the Court 10 denies Plaintiff’s motion. See Williams v. Navarro, No. 3:18-cv-1318-DMS-RBM, 2020

, at *4 (S.D. Cal. Nov. 19, 2020) (denying motion for Rule 11 sanctions 12 because “there is no evidence Plaintiff actually served the Motion for Sanctions on 13 Defendants and gave them twenty-one days to withdraw or correct any alleged defect in 14 their motion to dismiss briefing, as required by Rule 11’s safe harbor provision.”). 15 Plaintiff’s Rule 11 motion was not warranted by existing law, or by a non-frivolous 16 argument that the requirements of Rule 11 should be changed. 17 Plaintiff’s motion, filed less than two weeks before trial, also fails to comply with 18 the requirements of Local Civil Rule 7.1 and the undersigned’s Chambers Civil Procedures 19 § III(B) for setting a hearing date; and fails to comply with the Chambers Civil Procedures 20 § III(A) requirement of a conference of counsel prior to filing a noticed motion. In addition 21 to failing to provide notice of a hearing date that would establish the due date for an 22 opposition brief, Plaintiff improperly e-filed his Rule 11 motion as an “ex parte motion.” 23 ECF No. 266. Defendant then filed an opposition the following day. ECF No. 267. 24 Defendant was entitled to a full opportunity to respond to Plaintiff’s Rule 11 motion, and 25 should not have been forced to guess whether Plaintiff was (improperly) filing a noticed 26 motion without a hearing date or was instead (improperly) seeking ex parte relief in a 27 manner requiring an immediate response. The Court takes this opportunity once again to 28 | || advise Plaintiff that he must comply with the Local Civil Rules of this Court as well as the 2 || applicable Chambers Civil Procedures. 3 On a motion for sanctions, “the court may award to the prevailing party the 4 ||reasonable expenses, including attorney’s fees, incurred for the motion.” Fed. R. Civ. P. 5 || 11(c)(2). Here, Plaintiff's filing of a Rule 11 motion while failing to comply with the clear 6 requirements for such a motion warrants an award to Defendant, as the prevailing party, of 7 || Defendant’s reasonable expenses incurred in filing a next-day opposition to the motion. To 8 || the extent Defendant seeks recovery of such expenses, Defendant must file a request with 9 supporting affidavit. 10 II. Conclusion 11 For the reasons above, the Court DENIES Plaintiff's motion for sanctions, ECF No. 12 Defendant shall file any request for reasonable expenses by May 15, 2023, and 13 || Plaintiff shall file any response to Defendant’s request by May 22, 2023. 14 SO ORDERED. 15 Dated: May 8, 2023 [Reece S Howe 16 Hon. Robert S. Huie United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28