I. INTRODUCTION

Objectors and appellants Weil & Drage, APC, Jean A. Weil, and Anthony D. Platt

appeal from an order directing them to pay $5,000 in monetary sanctions. They contend

the trial court abused its discretion in issuing the order because the allegedly frivolous

motion for summary adjudication was based on newly discovered facts that were not

asserted in a prior motion for summary judgment.

Plaintiff and respondent Rudrich Family Management (Rudrich Family) has not

filed a respondent‟s brief in this matter. We therefore consider the appeal on the basis of

the record, the opening brief and oral argument, if any. (Cal. Rules of Court, rule

8.220(a)(2).)

II. FACTS AND PROCEDURAL BACKGROUND

In February 2009, Rudrich Family filed an action against RHA Engineering, Inc.,

(RHA) and other corporations and individuals, alleging causes of action for injunction,

negligence, private nuisance, and trespass to real property. The complaint alleged that

RHA had provided engineering services in connection with a 2004 subdivision project

adjacent to a mobilehome park owned by Rudrich Family, and water and dirt were

seeping through a retaining wall between the properties resulting in property damage.

Objectors represented RHA in that action.

In October 2009, objectors filed a motion for summary judgment or summary

adjudication (the first motion) on behalf of RHA on the ground that the action was barred

2 by applicable statutes of limitation. The separate statement of undisputed facts

supporting the first motion was based principally on Rudrich Family‟s responses to

special interrogatories 27 and 28 indicating that Rudrich Family first discovered evidence

of water seepage through the wall in June 2005. The separate statement of undisputed

facts supporting the first motion did not mention evidence of movement or deflection of

the wall or cracking in the wall.

The trial court denied the motion, determining that Rudrich Family “first learned

of „appreciable harm‟ from [RHA‟s] breach of duty in October of 2008,” (capitalization

omitted), and the complaint had therefore been brought within the two- and three-year

statutes of limitation for actions for professional negligence (Code Civ. Proc.,1 § 339,

subd. (1)) and injury to real property (§ 338, subd. (b)), respectively.2

Thereafter, objectors continued discovery, including taking additional depositions.

During the November 2010 deposition of Mike Aparacio, a licensed contractor, Aparacio

testified that he had visited the retaining wall accompanied by Jacob Rudrich, and “it was

readily ascertainable that the wall was not in vertical plum[b] but that it was considerably

leaning.” Aparacio described the wall as having “rotated out of plum[b],” and he advised

1 All statutory references are to the Code of Civil Procedure.

2 Although the trial court stated it was making a finding as to the date Rudrich Family first learned of appreciable harm, in ruling on the motion for summary judgment or summary adjudication, the trial court could appropriately merely determine that a triable issue of material fact existed. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

3 Jacob to “contact the [C]ity of Yucaipa.” He stated the wall was “grossly out of

plum[b],” meaning “[a] leaning of more than two percent of a 90 degree right angle.” In

a December 2005 exchange of emails with other members of the Rudrich Family,

Aparacio proposed the language of a letter that should be sent to the city.

Objectors also took the deposition of Lawrence Strahm,3 a professional engineer,

in September 2010. Strahm testified that he had visited the property in May 2006 and

had prepared a report dated August 22, 2006, based on his observations and findings from

that visit. He testified he had been asked “to come out and investigate the wall because

they had some indications that it was moving or failing.” During the visit, the on-site

manager pointed out cracking in the wall and told him that “cracks had worsened since

they had first been observed.” Strahm also reported seeing some lateral displacement of

the wall. He testified the owner had told him the lateral displacement “occurred

subsequent to grading” on the adjacent subdivision project. Strahm determined that the

top of the wall was out of vertical by one inch horizontally, and he measured the “lateral

bow in the wall” with a tape measure. He concluded the cracks and displacement

constituted “slight distress” in a specified portion of the wall and recommended to

Rudrich Family that “„the wall should be reviewed to assess stability.‟”

In March 2011, objectors filed a motion for summary adjudication (hereafter, the

second motion) again asserting that the cause of action for negligence was barred by the

3 Also referred to in the record as Lawrence “Straham.”

4 statutes of limitation in sections 339, subdivision (1) and 338, subdivision (b). The

separate statement of undisputed facts filed in support of the second motion was based

primarily on Aparacio‟s and Strahm‟s deposition testimonies as discussed above.

The trial court hearing the second motion found that the facts asserted in the

second motion were not newly discovered, because “it was incumbent on the lawyers to

get it in admissible form before bringing the [original] motion for summary judgment.”

The court further held that it was “inherently an issue of fact . . . [w]hen was it that

plaintiff knew or should have known.”

On May 27, 2011, Rudrich Family filed a motion for sanctions under section 128.7

on the ground that objectors‟ justification for the second motion was “knowingly false

and made in bad faith.” The trial court granted the motion and awarded sanctions against

objectors in the amount of $5,000.

The action was eventually terminated by settlement, and this appeal ensued.

Additional facts are set forth in the discussion of the issues.

III. DISCUSSION

“[A] party may not move for summary judgment based on issues asserted in a

prior motion for summary adjudication and denied by the court, unless that party

establishes to the satisfaction of the court, newly discovered facts or circumstances or a

change of law supporting the issues reasserted in the summary judgment motion.”

(§ 437c, subd. (f)(2).) Cal.App.4th 60 (Nieto), the court observed that a party‟s motion for summary judgment

fell outside section 437c, subdivision (f)(2) “as the prior motion was one for summary

judgment rather than summary adjudication . . . .”4 (Nieto, supra, at p. 72.) Here,

likewise, objectors‟ second motion falls outside the plain language of section 437c,

subdivision (f)(2) because the second motion sought summary adjudication, not summary

judgment. As in Nieto, however, we will address the issue on the merits.

In the present case, the trial court imposed sanctions under section 128.7 on the

ground that the second motion was frivolous. We apply an objective standard for

determining frivolity for purposes of section 128.7. (Guillemin v. Stein (2002) 104

Cal.App.4th 156, 167 (Guillemin).) “[T]here are basically three types of submitted

papers that warrant sanctions: factually frivolous (not well grounded in fact); legally

frivolous (not warranted by existing law or a good faith argument for the extension,

modification, or reversal of existing law); and papers interposed for an improper purpose.

[Citations.]” (Ibid.) Our sanction rule “must not be construed so as to conflict with the

primary duty of an attorney to represent his or her client zealously. Forceful

representation often requires that an attorney attempt to read a case or an agreement in an

innovative though sensible way. Our law is constantly evolving, and effective

4 In Nieto, the court held that the trial court did not abuse its discretion in determining that a second motion was permissible because the first motion did not address the elements of fraud, whereas the second motion “addressed this previously omitted issue.” (Nieto, supra, 181 Cal.App.4th at p. 72.)

6 representation sometimes compels attorneys to take the lead in that evolution.” (Id. at pp.

167-168.)

We therefore examine the record to determine whether objectors‟ conduct was

objectively reasonable. More specifically, we must determine whether the second motion

was based on new facts or merely on newly discovered evidence. In doing so, we

compare the statements of undisputed material facts submitted to support the first and

second motions.

Both motions asserted that Rudrich Family‟s claims were barred by the two-year

statute of limitations applicable to claims for professional negligence (§ 339, subd. (1))

and the three-year statute of limitations applicable to claims for negligent injury to real

property (§ 338, subd. (b).)

As recounted above, the first motion was based on Rudrich Family‟s responses to

special interrogatories stating that water seepage through the wall had been observed in

2005.

The second motion was based principally on Strahm‟s and Aparacio‟s deposition

testimonies as set forth above in the statement of facts. The focus of the second motion

was thus on those witnesses‟ observations of cracks and leaning of the wall observed in

2005 and 2006 and those witnesses‟ reports to and discussions with Rudrich Family

about those observations. Thus, this case is unlike Bagley v. TRW, Inc. (1999) 73

Cal.App.4th 1092. In that case, the plaintiff sued his former employer for various causes

of action based on his termination. (Id. at p. 1094.) The employer filed a motion for

7 summary judgment or summary adjudication, and the trial court granted the motion for

summary adjudication in part. (Id. at p. 1095.) The employer then brought a second

motion for summary judgment, which the trial court granted. (Id. at p. 1096.) The

appellate court reversed, holding that the second motion was improper because it was

identical to the original motion, although “reformatted, condensed, and cosmetically

repackaged.” (Id. at p. 1097.) The court observed that it had been “unable to find a

material fact in [the] second separate statement of undisputed facts [citation] that was not

included in its first separate statement of undisputed facts.” (Ibid.) Here, in contrast, the

statements of undisputed facts supporting the two motions are completely dissimilar.

Rather, this case is more like Jefferson v. Qwik Korner Market, Inc. (1994) 28

Cal.App.4th 990, an action for personal injuries based on a car driving over a concrete

curb onto the sidewalk in front of a convenience store. In that case, the court held that

declarations filed after the original motion for summary judgment contained new facts,

specifically, that the parking lot design met city standards, and there had been no

previous similar incident. (Id. at p. 997, fn. 4; see also Pender v. Radin (1994) 23

Cal.App.4th 1807, 1812 [holding that a renewed motion for summary judgment/summary

adjudication was proper because the defendant had discovered new facts in depositions of

plaintiffs after the first motion, and the new facts made a newly published case applicable

to the lawsuit].)

We conclude the second motion was not frivolous within the meaning of section

128.7.

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IV. DISPOSITION

The order appealed from is reversed. Parties shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J. We concur:

RAMIREZ

P.J.

MCKINSTER

J.

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