Susan Hilliard vs Anastacia Campbell et al

Case Number

22CV04533

Case Type

Hearing Date / Time

Mon, 07/14/2025 - 10:00

Nature of Proceedings

Motion re Terminating and Monetary Sanctions

Tentative Ruling

Susan Hilliard vs. Anastacia Campbell, et al.                     

Case No. 22CV04533

           

Hearing Date: July 14, 2025                                       

HEARING:              Defendants’ Motion for Terminating and Monetary Sanctions

ATTORNEYS:        For Plaintiff Susan Hilliard: Eric Kennedy, Berit Elam, Buchalter

                                    For Defendants Anastacia Campbell and Mark Campbell: Marc   S. Shapiro, Jonathan P. Cyr, Matthew C. Dingilian, Hanger, Steinberg, Shapiro & Ash

                                   

TENTATIVE RULING:

Defendants’ motion for terminating and monetary sanctions is denied. No sanctions are imposed against or in favor of any party.

Background:

The operative third amended complaint (TAC) filed by plaintiff Susan Hilliard on August 10, 2023, alleges six causes of action against defendants Anastacia Campbell (Anastacia) and Mark Campbell (Mark) (collectively, defendants) for: (1) conversion; (2) trespass to chattels; (3) aiding and abetting conversion; (4) aiding and abetting trespass to chattels; (5) negligence; and (6) aiding and abetting negligence. (Note: Due to common surnames and to avoid confusion, the court will refer to defendants by their first names. No disrespect is intended.)

As alleged in the TAC:

Plaintiff and defendants reside in the El Capitan Ranches development (El Capitan) which is located in the County of Santa Barbara, California. (TAC, ¶¶ 1-3.) Plaintiff raises, cares for, and owns parrots as pets, and has trained some of them to fly unrestrained and return to her. (TAC, ¶ 5.) One of Plaintiff’s parrots is a blue-throated macaw named Dread. (TAC, ¶ 6.) Plaintiff purchased Dread approximately 15 years ago, when he was a few months old. (TAC, ¶ 7.) Dread was highly socialized to humans and capable of flying unrestrained. (Ibid.)

After taking possession of her property in El Capitan, plaintiff sent an email through a resident group chat notifying her neighbors that she owned birds that were trained to fly free and remarking that any birds who may visit neighboring property should not be encouraged to hang around because they could cause property damage. (TAC, ¶ 8.) Plaintiff suggested that her neighbors shoo visiting birds away with hoses, towels, or by using a cap gun. (Ibid.) Anastacia responded to plaintiff’s email stating that she did not want parrots at her property and that she had a “BB” gun to get rid of them. (TAC, ¶ 9.)

On March 14, 2021, Dread and two of plaintiff’s other parrots were flying unrestrained at plaintiff’s property. (TAC, ¶ 10.) Around 1:15 p.m. that day, Anastacia sent a message through the group chat stating there was a parrot in her yard. (TAC, ¶ 11.) Thirty-three minutes later, Anastacia posted a video to the group chat “showing [Mark] stalking across [defendants’] property with a rifle in his hands” which “ends abruptly with the sound of a parrot in distress.” (TAC, ¶ 13.) At his subsequent deposition, Mark testified that “he was concerned the bird would damage his property and intended to use the gun to scare the bird off.” (TAC, ¶ 14.) At the same time that she posted the video of Mark, Anastacia sent another message to the group, stating there were now four parrots at her home, plaintiff went to defendants’ property to retrieve the birds. (TAC, ¶¶ 15, 16.) Dread was missing. (TAC, ¶ 15.) Because Anastacia arrived from the direction of the community dumpster to open the gate for plaintiff, instead of coming down her driveway, plaintiff believes that Anastacia disposed of Dread in the dumpster. (TAC, ¶ 16.)

Plaintiff believes that Mark shot Dread, injuring, or killing him.

Defendants filed their answer to the TAC on September 12, 2023, asserting a general denial and 19 affirmative defenses.

Arguing that each of plaintiff’s causes of action are frivolous, harassing, and legally untenable, defendants now seek terminating and monetary sanctions, in the amount of $96,394.88, against plaintiff and her attorney of record, pursuant to Code of Civil Procedure sections 128.5 and 128.7.

Plaintiff opposes the motion.

Analysis:

Code of Civil Procedure section 128.5, subds. (a) and (b) provide:

“(a) A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

“(b) For purposes of this section:

“(1) “ ‘Actions or tactics’ ” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “ ‘actions or tactics’ ” for purposes of this section.

“(2) “ ‘Frivolous’ ” means totally and completely without merit or for the sole purpose of harassing an opposing party.”

“ ‘The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court.’ [Citation.]” (Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893, as modified on denial of reh’g (Dec. 19, 2008).)

Code of Civil Procedure section 128.7 provides, in full:

“(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

“(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

“(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

“(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

“(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

“(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

“(1) 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. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

“(2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.

“(d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.

“(1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).

“(2) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

“(e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.

“(f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.

“(g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.

“(h) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.

“(i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.”

“Code of Civil Procedure section 128.7 should be utilized only in “ ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’ ” [Citation.] “ ‘Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, [section 128.7] sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous’ ” [citation], and instead “ ‘should be ‘ “made with restraint.” ’ ” [Citation.] Indeed, even if a plaintiff could not successfully defend against either demurrer or summary judgment, that alone is insufficient to support the sanction of dismissal. [Citation.]” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121.)

Defendants argue that the first and third causes of action, based on conversion, have no basis in law or fact. Defendants’ argument in this regard is essentially: “Plaintiff’s case fails because there is no indication or evidence that Defendants interfered with her property rights, a crucial element of Conversion claims. There is no evidence, only speculation and conjecture, that Defendants harmed Dread or contributed to his disappearance on the date he vanished.” (Motion, p. 7, ll. 15-18.)

Defendants next argue that the second and fourth causes of action, based on trespass to chattels, have no basis in law or fact. Defendants’ argument in this regard is essentially: “Here the present facts unveiled in discovery show there was zero interference with Plaintiff’s Property. But even if such an interference occurred, and assuming Dread can be claimed as property, there is zero indication of an intentional interference that was unconsented to by Plaintiff. . . [N]othing in the record shows that Dread even landed on Defendants’ property on the date he disappeared or that Defendants even encountered Dread the date he disappeared. Further, even if Dread was on Defendants’ Property, Plaintiff consented to Defendants to make loud noise to scare off any parrots landing on their property. As such, crucial elements of a trespass claim fail as a matter of both fact and law, and Plaintiff’s decision to pursue further litigation constitutes frivolous harassment.” (Motion, p. 8, l. 25 – p. 9, l. 6.)

Defendants’ final argument is that the fifth and sixth causes of action, based on negligence, have no basis in law or fact. Defendants’ argument in this regard is essentially: “[D]iscovery and testimony exchanged shows Plaintiff cannot establish that Defendants fired any weapons at Dread of the incident, that any trace of Dread can be found on Defendants property from the date of the Incident to present, or that Dread even entered Defendants’ Property on the date of the incident. Defendants were thus not in a position to breach any duty to Plaintiff or cause any damage on the date of the incident. Plaintiff’s claim hinges on her own speculation regarding Dread’s disappearance rather than any evidentiary support.” (Motion, p. 9, ll. 17-23.)

Common to all of defendants’ arguments is the premise that: “Dread disappeared four years ago, and the resulting litigation has yielded nothing showing Defendants are in any way connected to his disappearance. Plaintiff has claimed that she wants to know the “ ‘truth’ ” about what happened to Dread but cannot accept the simple truths that 1) Losing a pet is a part of life we all deal with; 2) She has produced no evidence Defendants were responsible for his disappearance; and 3) She may never know what happened to Dread. Defendants should not be tied up in frivolous and harassing litigation simply because Plaintiff cannot accept these truths.” (Motion, p. 6, ll. 13-20.)

In opposition to the motion, plaintiff argues that there is “substantial direct and circumstantial evidence uncovered through discovery in this case, which supports the allegations in Plaintiff’s Third Amended Complaint.” (Opp., p. 10, ll. 14-16.)

The evidence that plaintiff references in her opposition includes: (1) Three of plaintiff’s birds landed on the defendants’ property; (2) Defendants did not want the birds on their property; (3) Anastacia had threatened to use a BB gun if the birds landed on her property; (4) Mark was filmed approaching the area where Dread had landed carrying a .177 caliber rifle with a scope; (5) Mark admitted that he fired the rifle towards Dread [Note: the court is aware that Mark claimed he fired an unloaded airsoft gun towards the ground.]; (6) When plaintiff went to retrieve her birds, Dread was missing while the other two birds remained; (7) Defendants were reticent to allow plaintiff to inspect their property looking for Dread; (8) Dread had never gone missing in 15 years and would not left his companion birds voluntarily; (9) Mark was noticeably missing when plaintiff arrived to collect her birds; (10) Although Mark claims to have been on a bike ride, he has provided no evidence that he was; (11) Anastacia drove up behind plaintiff when plaintiff arrived at the defendants’ property such that it appeared she had left her home prior to plaintiff’s arrival; (12) Anastacia refused to allow plaintiff to conduct a thorough inspection of the property when she went to collect her birds, or at a later time; (13) Defendants were uncooperative in plaintiff’s search for Dread; and (14) Defendants were critical of plaintiff. (Opp., p. 11, l. 13 – p. 12, l. 9.)

In Reply, defendants essentially argue that plaintiff’s cited evidence is all conjecture and speculation, and that there is no actual evidence supporting any of plaintiff’s causes of action.

“Whether an action is frivolous is governed by an objective standard. But the statute also requires a finding of subjective bad faith, i.e., “ ‘a showing of an improper purpose’ ” [citation], to support a sanctions award. Although the prosecution of an action “ ‘totally and completely without merit’ ” is evidence of subjective bad faith, it does not settle the issue. [Citation.]” (Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 804.)

“When a tactic or action utterly lacks merit, a court is entitled to infer the party knew it lacked merit yet pursued the action for some ulterior motive. [Citation.] However, it is within a court’s discretion not to draw that inference if convinced the party was acting in the good faith belief the action was meritorious. [Citation.]” (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1505.)

Without commenting on the potential strength of the evidence, the court does find that the existence of some of the cited circumstantial evidence overcomes defendants’ motion. It cannot be said that any reasonable attorney would find that the action is clearly frivolous, legally unreasonable or without legal foundation. Further, defendants have failed to make a showing of bad faith.

The motion will be denied. No sanctions will be issued in favor of, or against, any party or attorney.