Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super Ct. No. CGC-06-457054
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This case arises out of the alleged theft by defendant Helene Truly Osuna (Osuna) of $250,000 worth of jewelry from plaintiff Patricia Dobashi (Dobashi). Defendant R. Stephen Goldstein (Goldstein) is a former romantic partner of both women. Dobashi alleges that Goldstein was negligent in allowing Osuna access to a key to Dobashi’s home, and is therefore responsible for her loss, and that Goldstein breached an agreement to either recover or replace the jewelry.
Osuna is not a party to this appeal.
Dobashi contends that the trial court erroneously sustained Goldstein’s demurrer to her second amended complaint alleging a cause of action for breach of contract, and to her third amended complaint alleging a cause of action for negligence, without leave to amend. She appeals from the resultant judgment entered against her. Goldstein cross-appeals, claiming the court erred in denying his motion for sanctions. He further seeks sanctions on appeal.
We affirm all rulings of the trial court, and will deny the motion for appellate sanctions.
Factual Background
We observe initially that each party seeks to cast this action in very different terms. Dobashi portrays herself as the victim of a crazed stalker, whose actions were facilitated or enabled by Goldstein. Goldstein sees this as a frivolous action, motivated by jealous anger of a spurned girlfriend. Since we treat the demurrer as admitting the truth of all facts properly pled (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440), we set forth the facts as to the breach of contract cause of action as alleged in the second amended complaint, and the facts regarding the negligence cause of action from the third amended complaint.
Prior to November 1, 2003, Dobashi and Goldstein had been dating for about a year, and had both a personal and a professional relationship. She had given Goldstein a key to her residence. Goldstein had previously been romantically involved with Osuna. Osuna was purportedly “enraged” over Goldstein’s new relationship with Dobashi, and was “stalking” both Goldstein and Dobashi. Goldstein described Osuna as “crazy” and “a very sick person.” Unbeknownst to Dobashi, Goldstein continued to have a relationship with Osuna, allowing Osuna free access to his home.
On or about November 1, 2003, Dobashi discovered approximately $250,000 worth of jewelry missing from her residence, along with other items. There was no evidence of forced entry. Prior to that time, Osuna had stolen jewelry from Goldstein, which he had recovered. Following the burglary, Goldstein told Dobashi that he had discovered, prior to the burglary, that her key was missing from the top of his bedroom bureau. Dobashi alleged that Osuna entered her residence with that key and took the jewelry. Dobashi notified the police, but “Goldstein attempted to persuade [her] not to sue Osuna for taking her jewelry or to have her prosecuted for the theft thereof. Goldstein claimed that Osuna had not taken [her] jewelry.” However, after Dobashi’s “relationship with Goldstein ended in late November, 2003, she undertook to develop information to establish that Osuna was the one responsible for the theft.” Later, Goldstein told Dobashi that Osuna had used his key to Dobashi’s residence to gain entrance thereto and take her jewelry.
The Breach of Contract Claim
“In an effort to protect Osuna from legal actions by [Dobashi], on or about October 1, 2004, Goldstein promised to either recover the jewelry or to replace it himself. [¶] In reliance on Goldstein’s promise..., and in consideration of his offer, [Dobashi] did not pursue Osuna either through the civil courts or through the police. [Dobashi’s] reliance on Goldstein’s promise was reasonable as Goldstein is an attorney with a substantial practice in San Francisco, he had informed [Dobashi] that he knew Osuna for many years and had some obligation to her while she also had some to him. Furthermore, Goldstein appeared to have the assets to replace the jewelry in the event that he could not recover it from Osuna.”
Dobashi “was induced to rely on Goldstein’s promise because of his demonstration of apparent honesty about the theft and his willingness to recover or replace the loss. [¶] In a further effort to forestall plaintiff from any action, and in apparent partial fulfillment of his promise to either recover or replace the jewelry, in 2005, Goldstein presented [Dobashi] with three rings, which had been among the stolen items.” Dobashi pleaded her damages as the value of the jewelry, expenses of $20,000.00 “to which she was put by reason of the breach of contract,” and prejudgment interest.
The Negligence Claim
In the third amended complaint, Dobashi alleged that Goldstein’s negligence lead to the theft of her jewelry by Osuna. “After Dobashi gave Goldstein a key to her home, he told her that Osuna was crazy and that she had a history of stalking, stealing and breaking and entering. Yet, he left the key on his bureau in plain sight when Osuna was staying at his home. Goldstein told Dobashi (before her jewelry was stolen) that Osuna knew where Dobashi lived. Goldstein knew or should have known that Osuna was aware Goldstein had a key to Dobashi’s residence. [¶] Based on these circumstances..., Goldstein had a duty to prevent Osuna from gaining access to his key to Dobashi’s residence. Under these circumstances, it was reasonably foreseeable that, if Osuna had access to the key to Dobashi’s residence, she would use it to harm Dobashi in some way including stealing Dobashi’s property. [¶] The degree of certainty that Dobashi suffered injury because Goldstein gave Osuna access to his key to Dobashi’s residence is high because both Osuna and Goldstein admit that Osuna used that key to gain access to Dobashi’s residence and steal her jewelry. [¶] The connection is close between Goldstein’s conduct in allowing Osuna access to his key to Dobashi’s residence and the injury suffered by Dobashi by way of the loss of jewelry worth approximately $250,000.00. Goldstein knew that Osuna was stalking Dobashi, and that she knew where Dobashi lived and that she knew where Dobashi kept her jewelry. Goldstein also knew that Osuna had previously stolen jewelry from him and considered Osuna to be crazy, that Osuna wanted to cause harm to Dobashi and that Osuna knew that Goldstein had a key to Dobashi’s residence. Goldstein breached his duty to Dobashi by allowing Osuna to have access to his key to Dobashi’s residence. [¶]... [¶] Goldstein continues to breach his duty to Dobashi by refusing to tell Dobashi where her jewelry is located although he has admitted on two separate occasions that he knows where the jewelry is located.”
Procedural History
Dobashi filed her initial complaint against Goldstein and Osuna on October 18, 2006, alleging causes of action against both for conversion, against Osuna for trespass, and against Goldstein for breach of contract and fraud. Goldstein filed a demurrer to the complaint, as well as a motion to strike certain allegations. The court granted the motion to strike in part and sustained his demurrer with leave to amend, stating the following grounds: “1. The conversion claim fails to establish that [Goldstein] had knowledge of or agreed to the theft of the jewelry. [¶] 2. The breach of contract and fraud claims fail to allege damages as a consequence of the act pleaded.”
Dobashi then filed a first amended complaint, alleging causes of action against Goldstein and Osuna for breach of contract and conspiracy to commit conversion, against Goldstein for fraud, and against Osuna for trespass. On April 30, 2007, Goldstein again demurred and served a motion for sanctions under Code of Civil Procedure section 128.7 on the basis that the first amended complaint was filed for the improper purpose of harassing him and was unwarranted by the facts and law. On May 21, 2007, within the 21-day “safe harbor” provision provided in the statute, Dobashi dismissed the causes of action for conspiracy/conversion and fraud without prejudice. On May 22, 2007, Goldstein filed the motion for sanctions, along with a supplemental memorandum of points and authorities and a supplemental declaration.
“A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected....” (Code Civ. Proc., § 128.7, subd. (c)(1).)
The court sustained the demurrer as to the cause of action for breach of contract, with leave to amend “to allege damages resulting from Goldstein’s alleged breach of a promise to recover or replace Plaintiff’s jewelry.” The court denied the motion for sanctions.
The Honorable Paul H. Alvarado presiding.
Dobashi then filed a second amended complaint, alleging a cause of action for breach of contract against Goldstein, as well as causes of action against Osuna alone for conversion and trespass. Goldstein again demurred, and Dobashi moved for leave to file a third amended complaint adding a cause of action for negligence, and included a proposed third amended complaint. The court sustained the demurrer to the breach of contract cause of action without leave to amend. The court denied leave to file the proposed third amended complaint, but granted Dobashi the “opportunity to file within... 15 days of this Order an amended complaint that alleges facts based on this new theory [of negligence] sufficient to meet the criteria of Palma.”
The Honorable Patrick Mahoney presiding.
Palma v. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.
On August 28, 2007, Dobashi filed a third amended complaint alleging a cause of action for negligence against Goldstein, and he again demurred. The court sustained the demurrer without leave to amend, on the basis that “Goldstein’s conduct did not create or increase the risk of harm to Dobashi.”
The Honorable Patrick Mahoney presiding.
Judgment was entered in favor of Goldstein on December 10, 2007. This timely appeal followed.
Discussion
“On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or conclusions of law. [Citation.] If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable.” (Stearn v. County of San Bernardino, supra, 170 Cal.App.4th at pp. 439-440.)
The Breach of Contract Cause of Action
Dobashi asserts that the court erred in sustaining the demurrer to her breach of contract cause of action against Goldstein. She first claims that the court was “jurisdictionally barred” from considering Goldstein’s “renewed demurrer to the breach of contract cause of action in the second amended complaint based on lack of consideration,” because Goldstein had not complied with the requirements of Code of Civil Procedure section 1008 for reconsideration of an interim order. She also avers that she alleged “sufficient consideration” in her contract cause of action in the second amended complaint.
Dobashi claims that Goldstein’s “renewed demurrer” to her breach of contract cause of action in the second amended complaint violated the provisions of Code of Civil Procedure section 1008, since it was being presented on the grounds which had “been twice overruled.” Her argument is that when the trial court sustained the demurrers to her initial complaint, and to her first amended complaint, with leave to amend in each instance to allege contractual damages, it implicitly overruled Goldstein’s arguments that the breach of contract cause of action failed for lack of the element of consideration. She contends that it is “axiomatic Judge Mahoney overruled Goldstein’s demurrer based on Simonian ... since, if he found that ground for the demurrer had merit, he would have sustained the demurrer on that ground....” She asserts, therefore, that the trial court was thereafter “jurisdictionally barred from considering Goldstein’s... demurrer to the breach of contract cause of action based on lack of consideration,” and consequently we must reverse the judgment. Not so.
That section provides in pertinent part “[w]hen an application for an order has been... refused in whole or in part... any party affected by the order may, within 10 days after service... of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend or revoke the prior order.” (Code Civ. Proc., § 1008, subd. (a).)
Simonian v. Patterson (1994) 27 Cal.App.4th 773 (Simonian).
In the first instance, Dobashi’s argument that Code of Civil Procedure section 472(d), requiring the trial court to state the grounds for the grant of a demurrer, impliedly overruled other grounds advanced by Goldstein was rejected in Gonzales v. State of California (1977) 68 Cal.App.3d 621, 627, disapproved on another ground in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 740. Further, Goldstein filed a demurrer to Dobashi’s second amended complaint, not a “renewed demurrer” to Dobashi’s first amended complaint. As the court in Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224 explained: “respondents were not obliged to comply with Code of Civil Procedure section 1008, subdivision (b), in bringing their second demurrer. That statute, which provides that any subsequent application for an order which was previously refused must be supported by an affidavit setting forth particulars concerning the initial motion and stating the new or different state of facts claimed to exist, is simply not relevant under the facts of this case. Respondents’ second demurrer was an appropriate responsive pleading to a new complaint.” (Id. at pp. 1232-1233, fn. omitted.) “[A]fter the specified causes of action were amended, [defendant] was free to demur to those causes of action on any ground.” (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96.) Because Goldstein demurred to the causes of action pleaded in the new second amended complaint, the provisions of section 1008 are inapplicable.
“Whenever a demurrer in any action or proceeding is sustained, the court shall include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer....” (Code Civ. Proc., § 472(d).)
Additionally, Dobashi misunderstands the role of this court. Even if we were to assume that Judge Mahoney and Judge Alvarado based their earlier rulings on a determination that Simonian was inapplicable, it matters not. We review the ruling of the trial court, not the rationale underlying various orders, and render an opinion based on the correct rule of law. “[N]ow that the case is before this court, we are free to review both [judges’] orders and render an opinion based on the correct rule of law. We are not required to sustain an erroneous trial court ruling because it came first.” (Bennett v. Suncloud, supra, 56 Cal.App.4th at p. 97.) “ ‘ “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Thus, we reach the issue of whether Dobashi sufficiently alleged a cause of action for breach of contract. “ ‘A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.’ ” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031, quoting McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) A contract requires consideration; “a bargained-for exchange as formulated in the Restatement of Contracts....” (Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1248.) “ ‘To constitute consideration, a performance or return promise must be bargained for.... A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.’ ” (Id. at p. 1249, quoting Rest.2d Contracts, § 71.) “In view of the requirement of a bargained-for exchange, California courts have repeatedly refused to enforce gratuitous promises....” (Jara, supra, at p. 1249.)
Dobashi claims she “alleged sufficient consideration for Goldstein’s promise to recover or replace her stolen jewelry by forbearing from suing Osuna in civil court or having Osuna criminally prosecuted for the theft of her jewelry.” While an agreement “not to sue upon [a] claim... for a[ny] period of time” may constitute adequate consideration, the act of forbearance without an agreement to do so is insufficient. (Tiffany & Co. v. Spreckels (1927) 202 Cal. 778, 789-790 (Tiffany); Wine Packing Corp. of Cal. v. Voss (1940) 37 Cal.App.2d 528, 538.) Dobashi did not allege that she agreed to forbear.
We note, as did the trial court, that the decision to prosecute rests with the district attorney, not the alleged victim. (Ascherman v. Bales (1969) 273 Cal.App.2d 707, 708.)
In ruling on the demurrer, the trial court accepted Dobashi’s representation that she could amend her complaint to allege that she agreed to forbear from bringing a civil action against Osuna. Dobashi makes no such claim on appeal, instead arguing that the contract cause of action as pleaded alleged sufficient consideration.
The court sustained the demurrer without leave to amend the contract cause of action based on “the holdings in Simonian and Tiffany.” In Tiffany, the court considered a written agreement and alleged oral representations by which a husband agreed to reimburse plaintiff Tiffany for jewelry his wife had received from the company but had not paid for or returned. (Tiffany, supra, 202 Cal. at p. 782.) Based on this agreement, Tiffany did not bring legal action against the wife, but had not promised not to do so. The court held that had Tiffany “by any valid agreement bound itself not to sue upon its claims against Mrs. Spreckels for a period of time, no matter how brief, in consideration of Spreckels agreeing to pay its claim against Mrs. Spreckels, [it]... would have been sufficient.... The fact that it did forbear to sue without any agreement of forbearance does not constitute consideration.” (Id. at p. 790.)
The decision in Simonian is also instructive. In that case, the plaintiff was the ex-fiancé of defendant’s daughter. When the couple parted ways, defendant assisted his daughter in moving certain items from the home she had shared with plaintiff. Plaintiff claimed that some of those items were his, and alleged that defendant breached his promise to “see to it” that his daughter returned the items. He further alleged that he “ ‘reasonably relied upon [defendant’s] representations, to [his] detriment, based upon [his] friendship with [defendant]. In exchange for [defendant’s] promise of assistance, [plaintiff] refrained from filing this action... [for]’ a period of 24 days.” (Simonian, supra, 27 Cal.App4th at p. 778.) The court sustained the demurrer without leave to amend, holding that a “friend’s gratuitous promise to help a creditor-friend collect a debt from a third party is unenforceable as a matter of law, notwithstanding the creditor-friend’s forbearance from filing suit in reliance on the friend’s promise.” (Id. at p. 780.)
Likewise here, Dobashi did not allege in her second amended complaint that she made any forbearance agreement. Notably, she does not assert on appeal, as she did in the trial court, that she could have amended her complaint to allege such an agreement, or that the trial court erred in denying her leave to amend. Accordingly, Dobashi failed to state a cause of action for breach of contract because she did not allege any legally adequate consideration.
Given our holding, we need not reach the issue of whether Dobashi alleged legally adequate damages.
The Negligence Cause of Action
Dobashi claims that the court erred in sustaining Goldstein’s demurrer to her negligence cause of action. She asserts that Goldstein owed her a duty of care “to keep his key to Dobashi’s residence out of Osuna’s hands.”
“ ‘ “Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury.” ’ [Citation.] ‘ “While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine.” ’ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202, quoting Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1837-1838, italics omitted.)
In determining whether a party has a legal duty, “a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance. ‘ “ ‘Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention....’ [Citations.]” ’ [Citation.] Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. [Citations.] Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. [Citations.] ‘The basic idea is often referred to as the “no duty to aid rule.”... “As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” ’ [Citation.]” (Seo v. All-Makes Overhead Doors, supra, 97 Cal.App.4th at pp. 1202-1203.)
Recognizing this distinction, Dobashi argues that Goldstein’s failure to keep her residence key “out of Osuna’s hands” was an act of misfeasance rather than nonfeasance. She claims that Goldstein created or increased her risk of harm, because his “conduct [wa]s no different than if he had handed Osuna his key to Dobashi’s home, knowing Osuna might use the key to harm Dobashi.” To the contrary, Goldstein’s alleged conduct, compared to the theoretical act of actually giving the key to Osuna, illustrates the difference between nonfeasance and misfeasance. Goldstein’s alleged conduct was limited to placing Dobashi’s key on his own bureau in his own home. He did not create a risk to Dobashi or make her position worse in any way.
The court in Koepke v. Loo (1993) 18 Cal.App.4th 1444 (Koepke), on which the trial court relied, considered a similar situation and held there was no duty as a matter of law. In Koepke, Norman Logan and the defendant were former romantic partners, and the defendant owned a business that employed Logan. (Id. at p. 1447.) Thereafter, Logan and the plaintiff had a two-year romantic relationship. After the relationship ended, Logan told the defendant he was going to kill the plaintiff. (Ibid.) The defendant knew Logan possessed a handgun. She called Logan’s brother to tell him that Logan was planning to attack the plaintiff. (Ibid.) Logan’s brother called the plaintiff to relay the message. As the plaintiff was leaving her apartment to avoid Logan, he confronted her and held a gun to her head, but left out of fear police had been called. (Ibid.) The next day, Logan told the defendant he did not remember the assault because he had “ ‘blacked out’ in a drunken state.” (Ibid.) The defendant convinced him to seek psychiatric help and join Alcoholics Anonymous. Logan gave the defendant his gun and ammunition, which the defendant locked in her desk drawer. (Ibid.) The plaintiff obtained a temporary restraining order against Logan. The day before the hearing on the preliminary injunction, defendant called the plaintiff and tried to convince her not to go through with the hearing, stating “ ‘You don’t have to worry. I have the gun.’ ” (Ibid.) Approximately one month after the assault, Logan asked the defendant for his gun back. The defendant returned it to him because he appeared to be stable and was not threatening the plaintiff. The defendant did not inform plaintiff of the gun’s return. Two days later, Logan went to the plaintiff’s place of employment and shot her, then shot and killed himself. (Id. at p. 1448.)
Despite the egregious factual circumstances, the court held that defendant owed no duty to plaintiff. It explained: “the existence of duty is a question of law for court determination.... [¶] The determination of the existence of a duty involves more than simply the establishment of the likelihood of harm to a third person if the actor fails to measure up to a standard of reasonable conduct.... ‘In California, the general rule is that all persons have a duty “ ‘to use ordinary care to prevent others being injured as the result of their conduct....’ ”... [¶] While, as noted, one must always use ‘ordinary care’ so as to avoid ‘injury... to another’ (Civ. Code, § 1714), the common law establishes a different rule in terms of the control of others. As a general rule, ‘... one person [owes] no duty to control the conduct of another [citations], nor to warn those endangered by such conduct....’ (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435....) The creation of a duty, therefore, must rest upon some special circumstance warranting the imposition of a duty.” (Koepke, supra, 18 Cal.App.4th at pp. 1450-1451.) These circumstances include the common carrier/passenger, innkeeper/guest and shopkeeper/business invitee relationships. (Id. at pp. 1451-1452.)
The court held that plaintiff and defendant “had, in fact, no relationship (other than the status of serial paramour and ultimate rejecter of... Logan).” (Koepke, supra, 18 Cal.App.4th at p. 1452.) “[W]hile professionals may have a duty to warn or take precautions to prevent injury to known, or even unknown, victims of their dangerous patients, this duty is based on special professional expertise and is not extended to nonprofessionals attempting to assist friends or subjects with problems.” (Id. at p. 1457.) We agree with the court in Koepke that “We would not want to write an opinion imposing on ex-cohabitants a continuing obligation of control of the conduct of discarded lovers.” (Id. at p. 1452.)
Likewise here, Goldstein had no duty to control Osuna’s conduct. There were no special circumstances pleaded which would impose such a duty on Goldstein, and Dobashi has not met her burden of demonstrating a reasonable possibility that she could amend her complaint to allege such circumstances. The court did not err in sustaining the demurrer to the negligence cause of action without leave to amend.
Sanctions
In his cross-appeal, Goldstein maintains that the trial court erred in denying his motion for sanctions against Dobashi. He has also filed a motion in this court seeking sanctions on appeal.
The Trial Court’s Denial of Sanctions
Goldstein maintains the trial court erred in denying his motion for sanctions under Code of Civil Procedure section 128.7, filed with his demurrer to the first amended complaint, because the court “applied the wrong legal standard.” He explains that the trial court’s initial failure to find that Simonian barred Dobashi’s breach of contract claim indicates that it erred when it denied sanctions.
Goldstein somewhat dismissively refers to Judge Alvarado as a “temporary judge.” Judge Alvarado is a retired judge of the San Francisco Superior Court, sitting on assignment.
Goldstein argues that we must conduct a de novo review of what he describes as an “error of pure law”;... “Judge Alvarado’s failure to take seriously his duty to evaluate the sanctions motion in light of Simonian v. Patterson....” A trial court’s award of sanctions under section 128.7 is discretionary. Accordingly, we review the denial of a motion for sanctions for abuse of discretion. (See Code Civ. Proc., § 128.7, subd. (c)(1); Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1130.) We do not substitute our judgment for that of the trial judge, but “presume the trial court’s order denying a request for sanctions... is correct.” (Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1345-1346.)
Goldstein maintains that the trial court initially erred when it sustained his demurrer with leave to amend to allege damages, rather than on the basis of lack of consideration, and therefore necessarily erred when it denied his motion for sanctions at that juncture. We disagree. Even had the trial court determined that Dobashi had not and could not allege consideration pursuant to Simonian, the conclusion that sanctions were warranted does not necessarily follow. A party may make a nonfrivolous argument for the extension, modification, or even reversal of existing law, without being subject to sanctions. The fact that the trial court, erroneously or not, did not sustain the demurrer specifically on the basis of Simonian, and granted leave to amend, is a “reliable indicator” that Dobashi’s first amended complaint was not so frivolous as to merit sanctions. (See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 819, citing Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383 [denial of a defense summary judgment motion demonstrates the existence of probable cause in the context of a malicious prosecution action].)
Abrogated by statute on another ground as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 545-550
Goldstein’s cavil that the trial court did not “take seriously his duty to evaluate the sanctions motion” is baseless. At the hearing on the motion for sanctions, the court explained to Goldstein’s counsel; “I don’t agree with you. [¶] I mean every time somebody is granted leave to amend, they should be sanctioned? [¶]... [¶] [It was Dobashi’s] belief that [there were] adequate damages pleaded for a breach of contract. And the Court didn’t agree that that was adequate, and so sustained the demurrer with leave to amend. And I heard argument as to why I should allow them to amend and they convinced me that there’s a basis upon which they can amend this complaint to plead damages.” Goldstein has failed to demonstrate any abuse of discretion in the trial court’s denial of his motion for sanctions.
Disposition
The judgment is affirmed. Each side is to bear its own costs on appeal.
California Rules of Court, rule 8.276(c) required this court to “give notice in writing if it is considering imposing sanctions.” We were not, and accordingly did not give notice or allow filing of opposition.
We concur: Jones, P. J., Simons, J.