Plaintiff v. J&P Consulting, LLC

(Stanley Mosk Courthouse: Dept. 734) September 10, 2026 DEPARTMENT 734 LAW AND MOTION RULINGS

following tentative ruling is issued pursuant to Rule of Court 3.1308 at DATE \@ "h:mm am/pm" 12:22 PM on DATE \@ "MMMM d, yyyy" September 9, 2026. Rule of Court 3.1308(a)(1) provides that a "tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given." The Court does not desire oral argument on the motion addressed herein. Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1).

No later than 4:00 p.m. on DATE \@ "MMMM d, yyyy" September 9, 2026, the moving and opposing parties must provide notice to ALL OTHER PARTIES and the staff of Department 734 whether the party intends to (1) appear and argue the motion, or (2) submit to the tentative ruling. Notice to Department 734 should be sent by email to smcdept734@lacourt.org, with opposing parties copied on the email. The high volume of telephone calls to Department 734 may delay the Court's receipt of notice, so telephonic notice to 213-830-0776 should be reserved for situations where parties are unable to give notice by email.

Plaintiff alleges that Defendant has failed to comply with Proposition 65 warnings to individuals exposed to HC and Cannabis (Marijuana) Smoke prior to or during exposure. Patrons are presented with menus listing cannabis flower, pre-rolls, edibles, drinks, and extracts but containing no warnings or symbols advising that marijuana smoke or THC are chemicals known to cause cancer or reproductive harm. Plaintiff moves pursuant to Code of Civil Procedure Sec. 128.7 for sanctions against Defendant J&P Consulting, LLC and its counsel, Katchko, Vitiello & Karikomi, PC, based on the filing of paragraphs 48 and 49 of the Ninth Affirmative Defense in Defendant's Answer to Complaint filed April 30, 2026.

TENTATIVE RULING

Plaintiff's motion for sanctions pursuant to Code of Civil Procedure Sec. 128.7 against Defendant J&P Consulting, LLC and its counsel, Katchko, Vitiello & Karikomi, PC, is DENIED on procedural grounds.

ANALYSIS

Motion For Sanctions

Plaintiff moves pursuant to Code of Civil Procedure Sec. 128.7 for sanctions against Defendant J&P Consulting, LLC and its counsel, Katchko, Vitiello & Karikomi, PC, based on the filing of paragraphs 48 and 49 of the Ninth Affirmative Defense in Defendant's Answer to Complaint filed April 30, 2026.

The Second District held in a recently-published decision: Section 128.7, subdivision (c)(1) provides the " [n]otice of motion shall be served as provided in [s]ection 1010 ... ." (Italics added.) To comply with section 1010, a notice of motion " must state when ... it will be made ... ." (Sec. 1010, italics added.) Reading these two provisions together, a notice of motion seeking section 128.7 sanctions must reflect when the motion will be heard. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 537-538 [101 Cal.Rptr.3d 803] (Galleria Plus).) " Section 128.7's incorporation of section 1010 is compulsory, not permissive." (Id., at p. 538.)

If the notice of motion fails to specify when the motion will be made, the document is "render[ed] ... fatally defective. [Citations.]" (Ibid. [*7]) Here, the spaces in the October 25, 2024 notice of motion designated for the date and time it was to be heard were left blank, thereby triggering the fatal flaw under sections 128.7 and 1010 as well as Galleria Plus. . . . [*8] . . . The apparent flaw in the CRS did not relieve defendant of his obligation under sections 1010 and 128.7 to serve a notice of motion that reflects when the motion will be made.

Indeed, if we were to find Galleria Plus inapplicable simply because it was decided before the era of electronic filing, we would be required to ignore the unambiguous statutory dictates of sections 128.7 and 1010--something we cannot do. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 130 [247 Cal.Rptr.3d 114] [courts "'must follow'" unambiguous statutory language]; Perez v. Torres (2012) 206 Cal.App.4th 418, 423 [141 Cal.Rptr.3d 758] [if statutory language is clear, an appellate court "must follow the plain meaning"].)

Although defendant could not secure a hearing date from the CRS that was after the expiration of the safe harbor period, he could have filed an ex parte motion to request the trial court waive the timing restriction applicable to e-filed motions and allow defendant to set a hearing more than 21 days after service of the notice of motion. (J.N. v. Goldberg (2026) 120 Cal. App. 5th 544, 549-50 [bold emphasis and underlining added].)

Thus, per the Court of Appeal for this District, a moving party's failure to include the actual hearing date on a proposed Sec. 128.7 motion is a "fatal flaw" that requires denial of the motion. Plaintiff has not demonstrated that a copy of the proposed Sec. 128.7 motion was served upon Plaintiff 21-days prior to the September 10, 2026 hearing date with the September 10, 2026 hearing date included on the proposed motion served upon Defendant. As such, the motion for sanctions pursuant to Code Civ. Proc. Sec. 128.7 is DENIED on procedural grounds.

Case Number: 25STCV31741

Hearing Date: September 10, 2026

Dept: 734

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at DATE \@ "h:mm am/pm" 12:22 PM on DATE \@ "MMMM d, yyyy" September 9, 2026. Rule of Court 3.1308(a)(1) provides that a "tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given."