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9 COUNTY OF MONTEREY
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18 Plaintiff State Farm General Insurance Company opposes defendant City of Carmel-by-the-
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
2 and completely without merit." Finnie v. Town of Tiburon ( 1988) 199 CA3d I, 12; Chitsazzadeh v.
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.
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
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.
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OPPOSITION TO MOTION FOR SANCTIONS
3. CONCLUSION.
2 The City's frivolous sanctions motion should be denied. Plaintiff's complaint is brought in
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OPPOSITION TO MOTION FOR SANCTIONS