AUSSIEKER vs CMS, INC, et al.

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

Tentative Ruling

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25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The motion of Plaintiff in pro per Mark Aussieker (“Plaintiff”) for an order granting sanctions against Defendant Homes Panorama LLC (“Homes Panorama”), pursuant to Code of Civil Procedure section 128.7, is ruled upon as follows.

Background

Plaintiff, in pro per, commenced this action by filing his complaint on January 13, 2025. Plaintiff alleges Defendants CMS, Inc. d/b/a Card Member Services (“CMS”) and Homes Panorama (collectively “Defendants”) have placed telemarketing calls to his phone without consent, thereby violating the Telephone Consumer Protection Act, 47 U.S.C. section 227. Plaintiff alleges that Defendants offered him “debt relief services,” engaged in credit card laundering, and engaged in deceptive telemarketing practices. Plaintiff alleges two “counts” against Defendants for (1) violation of the Telephone Consumer Protection Act and (2) Violation of the California Debt Settlement Providers Act, Civil Code section 1788.305.

On July 11, 2025, the Court granted Defendants’ initial “motion to quash service of process and defective subpoena” in part. (7/10/25 Order.) Following oral argument, the Court took the matter under submission, and later modified and affirmed its tentative ruling granting the motion to quash service of summons and denying Defendants’ other requests to quash the deposition subpoena and to dismiss the action. (7/11/25 Order re: Ruling on Submitted Matter.)

On September 25, 2025, the Court granted reconsideration (of the Court’s prior July 11, 2025, Order), and determined: “In light of the evidence presented, the Court’s Order dated July 11, 2025 granting Defendants’ motion to quash is VACATED and the motion to quash is DROPPED from calendar due to defective service.” (9/25/25 Order.) In its September 25, 2025, Order, the Court found:

Based on the evidence presented, the Court finds that Plaintiff was not properly served with Defendants’ motion to quash service of summons. Defective service deprives the court of jurisdiction to act. (See Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

Because the Court concludes that Plaintiff was not properly served such that Defendants’ motion to quash is deemed dropped, the Court shall not consider Plaintiff’s other arguments or otherwise rule on the issue of service of the summons and complaint. Indeed, to do so would be improper here given that no jurisdiction exists for the Court to rule substantively on Defendant’s motion to quash and Plaintiff does not waive such jurisdictional defect.

(Ibid.)

On September 25, 2025, Defendants filed their second “motion to quash service of process and defective subpoena.” The Court granted this motion to quash in part, and denied it in part, on February 23, 2026. (2/23/26 Order.) The Court granted the motion to quash service of summons as to CMS but denied it as to Homes Panorama. (Ibid.)

Legal Standard

Code of Civil procedure section 128.7 “applies in only limited circumstances.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120.) The statute “authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 514.) Under section 128.7, an attorney or unrepresented party who files “a pleading, petition, written notice of motion, or other similar paper” with the court certifies that the filing is not being presented primarily for an improper purpose, that the contentions contained therein are warranted and nonfrivolous, that the factual allegations have or are likely to have after reasonable opportunity for investigation evidentiary support, and that the denials of factual contentions are warranted. (Code Civ. Proc., § 128.7(b)(1)-(4).)

Violation of any of the certifications delineated in section 128.7(b) may give rise to sanctions. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.) “Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.)

The party moving for sanctions has the burden to show that sanctions are warranted. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422.) Moreover, even if the Court determines sanctionable conduct has occurred, the Court may within its discretion decline to impose any sanctions. (Id. at p. 421; Code Civ. Proc., §

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

128.7(c).)

The certifications are measured under an objective standard:

A claim is factually frivolous if it is “not well grounded in fact” and it is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.”

(Peake, supra, 227 Cal.App.4th at p. 440, citations omitted.)

Violation of this standard subjects an attorney to sanctions which are sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. (Code Civ. Proc., § 128.7(d).)

Discussion

Here, Plaintiff requests sanctions pursuant to Code of Civil Procedure section 128.7(b). In this regard, Plaintiff argues that “Defendant’s counsel signed and filed a Motion to Quash Service of Summons that was frivolous, procedurally defective, and unsupported by evidence (see dkt 9/25/2025). The motion ignored the valid Proof of Service of Summons (see dkt 7/10/2025) already on file with this Court, presented no supporting declaration, and was ambiguously styled as a joint motion from CMS and Homes Panorama LLC without identifying which party sought relief. These defects demonstrate that the filing was interposed solely for delay and harassment, in violation of § 128.7(b).” (Mov. MPA, pp. 2-3:19-1.)

Plaintiff concludes that he “has satisfied the elements required for sanctions: (1) signed pleading, (2) filed in court, (3) false certification, and (4) compliance with safe-harbor notice. For these reasons, Plaintiff respectfully requests that the Court impose monetary sanctions under CCP § 128.7 sufficient to reimburse Plaintiff’s costs and expenses in responding to the frivolous motion, and to deter similar conduct in the future.” (Id., p. 7:16-24.)

A party's motion for sanctions may not be filed until 21 days (“or any other period as the court may prescribe”) after it is served. This allows the party against whom sanctions are sought an opportunity—i.e., a “safe harbor”—to withdraw or correct the challenged paper and thereby avoid sanctions. (See Code Civ. Proc., § 128.7(c)(1); Broadcast

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

Music, Inc. v. Structed Asset Sales (2022) 75 Cal.App.5th 596, 605.) The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the statutory safe harbor period without penalty, saving the court and the parties time and money litigating the pleading as well as the sanctions request. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1003; Galleria Plus v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538; Li v. Majestic Industrial Hills LLC (2009) 177 Cal.

App. 4th 585, 591 [safe harbor period indicates Code Civ. Proc. §?128.7 is remedial, not punitive]; Liberty Mutual Fire Ins. Co. v. McKenzie (2001) 88 Cal. App. 4th 681, 692; Malovec v. Hamrell (1999) 70 Cal. App. 4th 434, 441.) Strict compliance with the 21?day safe harbor period is required. (Transcon Fin., Inc. v Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551.)

Here, as stated above, Plaintiff’s motion is based upon Defendants motion to “quash service of process and defective subpoena,” filed on September 25, 2025. However, according to Court’s Register of Actions, the Plaintiff’s only motion for sanctions was filed on January 29, 2026, and the only filed corresponding proof of service indicates that the motion was served on the same date.

The Court notes that Homes Panorama has filed what is titled “OPPOSITION TO MARK AUSSIRKER’S MOTION FOR SANCTIONS UNDER CCP § 128.7(b).”[1] Notably, this opposition was filed on October 24, 2025, while Plaintiff’s instant motion was filed (and according to the corresponding proof of service, was also served) after, on January 29, 2026. No other opposition from Homes Panorama appears in the Court’s Register of Actions. The Court also notes, that according to the moving papers, Plaintiff represents that he “served a written demand and copy of this motion on October 4th, 2025, in compliance with the 21-day safe harbor requirement set forth in CCP §128.7(c).” (Mov.

MPA, p. 2:1-2.) Plaintiff also states, via his submitted supporting declaration that “[o]n 10/27/2025, my wife mailed defense counsel a copy of my sanctions motion and notice, advising that unless the Motion to Quash was withdrawn within 21 days, I would file the sanctions motion with the Court. Defense did not withdraw the motion within the safeharbor period. A true and correct copy of my safe-harbor service (with proof) is attached as Exhibit B. (Aussieker Decl., ¶ 8.) Plaintiff does not attach any “Exhibit B” to his declaration.

Given the lack of evidence regarding proof of service of the motion in October 2025, the motion is DENIED because Plaintiff has failed to establish compliance with section 128.7(c)(1)’s “safe harbor” service requirement.

Further, even if Plaintiff had established proper service to comply with the safe harbor provisions, the Court would deny the motion for sanctions on the merits. Motions for

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

sanctions typically follow or accompany a successful dispositive motion. (See, e.g., Musaelian v. Adams (2009) 45 Cal.4th 512, 515–516 [sanctions after successful demurrer to entire complaint]; Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 78 [sanctions after demurrer to entire complaint]; Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 181 [sanctions after suit dismissed by judgment on the pleadings].) Here, given the mixed result of the underlying motion to quash (granting it in part, see 2/23/26 Order) the Court, in its discretion, would not be inclined to grant this motion and award sanctions. (See Code Civ.

Proc., § 128.7(c); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421 [sanctions under Code Civ. Proc., § 128.7 are discretionary].) Specifically, Plaintiff raised no argument and submitted no evidence regarding proper service on CMS.[2] Moreover, in light of the proofs of service filed by Plaintiff on January 22, 2025—and the ambiguity regarding whether Plaintiff was relying on these Proofs of Service to support proper service of the Summons and Complaint— the Court does not find that the Motion to Quash filed on behalf of Defendant Homes Panorama was frivolous.

Finally, the Court would also deny monetary sanctions to the extent that Plaintiff requests “Plaintiff’s costs and expenses in responding to the frivolous motion, and to deter similar conduct in the future.” If “warranted for effective deterrence” the court may also award the moving party some or all of the attorney fees and other expenses “incurred as a direct result of the violation.” (Code Civ. Proc., § 128.7(d); see Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 977.) Here, Plaintiff has made no effort to identify expenses incurred (and their correlating amounts) as a direct result of the alleged violation.

To the extent Plaintiff seeks “preparation time,” because attorney fees are not “incurred,” a self-represented litigant may not recover an award of attorney fees as sanctions; this even includes attorneys who appear in pro per in response to a filing abuse. (Musaelian v. Adams (2009) 45 Cal.4th 512, 520 [holding that pro per litigants are not entitled to sanctions in the form of attorneys’ fees under section 128.7 even where the self-represented litigant is an attorney].) Further, as set forth above, any award of monetary sanctions would be unlikely to deter any future conduct, in light of the Court’s disposition of the underlying motion quash.

Disposition

Plaintiff’s motion for sanctions pursuant to Code of Civil Procedure section 128.7 is DENIED as set forth herein.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 03/09/2026 Hearing on Motion for Sanctions in Department 25

[1] The Court notes its concern regarding service of the pending motion, as it is unclear

whether Plaintiff served Counsel with the motion. However, because Defendant filed an Opposition, the Court deems the defects in service to be waived for purposes of this motion. [2] The Court notes a typographical error on page 4 of the Court’s 2/23/2026 Minute

Order, which should state as follows, with the correction in bold: “However, with respect to Defendant CMS, Plaintiff raises no argument and submits no evidence (or proof of service) regarding proper service on this Defendant in his Opposition. The Court’s review of the docket does not appear to show a filing of Proof of Service regarding Defendant CMS. Accordingly, Defendants’ motion to quash as to Defendant CMS is GRANTED.”