Metropolitan News-Enterprise

 

Tuesday, August 5, 2025

 

Page 3

 

C.A. Reinstates Action Trial Judge Declared to Be Frivolous

Dissenter Says Majority Relies on Ground Not Raised by Appellant

 

By a MetNews Staff Writer

 

The Sixth District Court of Appeal yesterday reinstated an action based on alleged Labor Code violations, finding that a judge erred in dismissing it as a sanction for filing a frivolous lawsuit, with a dissenter maintaining that  his collogues were improperly reversing a judgment based on a theory that was not argued on appeal.

That reversal came in an collogues unpublished opinion by Acting Presiding Justice Cynthia C. Lie, joined in by Justice Daniel H. Bromberg. Justice Charles Edward Wilson dissented.

All three jurists were placed on the appeals court by Gov. Gavin Newsom.

Appellant Barry Black argued that Santa Cruz County Superior Court Judge Timothy Volkmann erred in issuing a terminating sanction, pursuant to Code of Civil Procedure §128.7, on the ground that the action was time-barred. While the case was in federal court before Black dismissed it, there was tolling, he insisted, between the time he filed a motion for leave to amend the complaint, with a copy of the proposed pleading attached, and judicial action on it.

Through that proposed amendment, he sought to pursue claims in the U.S. District Court Northern District of California under California’s Private Attorneys General Act (“PAGA”), contained in the Labor Code. When the motion was denied, he filed his state-court action.

Appellant’s Opening Brief

Black set forth in his opening brief:

“The trial court ruled that the filing of a proposed amended complaint along with a motion to amend had no effect on the statute of limitations, and dismissed the entire action as untimely. In so ruling, the trial court improperly focused on the fact that the motion to amend had been denied. However, the factors relevant to tolling the statute of limitations are judicial economy, fairness, and notice-and none of these factors depend on whether the motion to amend is granted or not. By ignoring these factors and improperly focusing on the immaterial issue of whether the motion to amend is granted or denied, the trial court erred and must be reversed….”

He cited as authority the Court of Appeal opinion from this district’s Div. Four in the 1976 case of Weiner v. Superior Court. Presiding Justice Gordon Files wrote:

“The question to be decided is whether a notice of motion for leave to amend a complaint, accompanied by a proposed pleading of a second and distinct cause of action not previously pleaded, stops the running of the statute of limitations as to the cause pleaded for the first time in the amendment. We have concluded that under the facts of this case the action on the second cause was ‘commenced’ when the notice of motion was filed, thereby stopping the running of the statute.”

If the tolling of five months and 12 days is recognized, the complaint in the Santa Cruz Superior Court would be timely.

Lie’s Opinion

Lie wrote that “[b]ecause the undisputed facts suggest that Black satisfies the requirements for equitable tolling, defendants did not carry their burden in the trial court of showing that the timing of Black’s complaint made it totally and completely without merit,” so as to satisfy the requirement of 128.7.

She said in a footnote:

“Because defendants failed in the trial court to show equitable tolling to be ‘objectively unreasonable,’ we need not address whether Wiener’s holding—that a successful motion for leave to amend filed with a proposed amended complaint stops the statute of limitations as to the claims raised for the first time in the proposed amendment…—extends to a motion for leave to amend that is (1) filed after removal to another jurisdiction and (2) ultimately denied.”

The justice noted that Black did not mention “equitable tolling” on appeal until the court asked for supplemental briefing but that, she said, is not an impediment to applying the doctrine. She declared:

“We decline to hold that objective reasonableness required Black to file a separate PAGA complaint in state court before the limitations period expired, notwithstanding his pending motion to bring PAGA claims in his federal suit….If the statute of limitations is not tolled when the forum chosen for a prior lawsuit proves incorrect, parties who are unsure of the correct forum will bring duplicative claims in multiple fora….The doctrine of equitable tolling should not be interpreted to encourage wasteful and unnecessary conduct.”

Wilson’s Dissent

Wilson said in his dissent:

“I would affirm the judgment because the statute of limitations on Black’s PAGA cause of action expired before he filed his complaint in this action, and Black did not carry his burden on appeal of establishing the elements of equitable tolling.

“In addition, Black failed to present any arguments on appeal regarding the propriety or application of Code of Civil Procedure section 128.7 that forms the basis of the majority’s holding. Accordingly, I would hold that Black forfeited any such arguments.”

Addressing Weiner, he said “the case did not hold that the filing of a motion for leave to amend, together with a copy of the proposed amended complaint, automatically tolls the statute of limitations or deems the amended complaint filed as of the date the motion was filed” and there, the proposed amended pleading was “filed” by the court while in federal court, there is no filing unless leave to amend is granted.

“Seeking leave to amend to add a cause of action is not the same as having actually filed it,” he observed.

Argument Forfeited

The dissenter, in discussing forfeiture of arguments relating to §128.7, said”

“…Black’s arguments on appeal were chiefly limited to Wiener and his assertion that the filing of a motion for leave to amend, with a copy of the proposed amended complaint, tolls the statute of limitations. He did not make any arguments regarding the objective unreasonableness aspect of section 128.7. He did not argue that the trial court either failed to conclude, or improperly concluded, that any reasonable attorney would agree Black’s filing was totally and completely without merit. Nor did he argue, for instance, that defendants’ motion for terminating sanctions pursuant to section 128.7 was an improper procedural vehicle, or that reversal is warranted because the trial court did not find Black’s filing of the complaint to be objectively unreasonable.”

He noted:

“Treating the trial court’s order as a dismissal order, I would construe Black’s  appeal as a challenge to the dismissal order based on statute of limitations grounds, rather  than as a challenge to the trial court’s order granting the motion for terminating sanctions.”

The case is Black v. Atlas Field Services, LLC, H051943.

 

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