ABITO vs BRUNK’S STEAKHOUSE INC

4. CASE # CASE NAME HEARING NAME ABITO vs BRUNK’S CVRI2600447 MOTION FOR SANCTIONS STEAKHOUSE INC Tentative Ruling:

Moving party: Plaintiff Ryan Abito (“Plaintiff”)

Responding party: Defendant Brunk’s Steakhouse (“Defendant”)

Plaintiff Ryan Abito began his employment with Brunk's Steakhouse, Inc. as a salaried General Manager on or about July 8, 2024, at the restaurant located at 4410 California Avenue, Norco, California. (Abito Decl., ¶ 2.) Plaintiff filed the Complaint in this action on January 15, 2026, asserting nineteen causes of action arising from that employment. (Burton Decl., ¶ 2.) As of the date of this motion, Defendant has not filed an Answer or any other responsive pleading to the Complaint. (Burton Decl., ¶ 3.)

Motion to Compel Arbitration. . On April 1, 2026, Defendant filed a Notice of Motion and Motion to Compel Arbitration and Stay Proceedings (which was denied on June 26, 2026.). On April 2, 2026, Defendant filed the accompanying Memorandum of Points and Authorities. No supporting declaration was attached to or filed with either document. The Declaration of Nicole Brunk submitted in support of the motion was not executed until April 7, 2026, five days after the Memorandum was filed and six days after the Notice of Motion. (Burton Decl., ¶ 4.)

Prior to filing, Defendant's counsel did not contact Plaintiff's counsel to meet and confer, request a conference, exchange correspondence, or otherwise communicate regarding the motion, the existence of an alleged arbitration agreement, or Defendant's intent to seek to compel arbitration. The first communication received from Defendant's counsel was an email sent on April 3, 2026, the day after the motion was filed. (Burton Decl., ¶ 5.)

Facially defective agreement. . Defendant's Memorandum represents to this Court that "Plaintiff executed a document titled 'Brunk's Steakhouse Voluntary Arbitration Agreement' . . . on or about July 2025." Plaintiff began his employment with Brunk's Steakhouse on July 8, 2024, a full year before the date the motion asserts the agreement was signed. (Burton Decl., ¶ 6.) The "Employee Name" and "Employee Signature" fields on the purported agreement read "ABIN. MY." That is not Plaintiff's signature, that is not his name as he writes it, prints it, or abbreviates it, and he did not sign that document. (Abito Decl., ¶ 5.)

The Employee Handbook Acknowledgment's "Employee Name (Print)" field reads "ABITURM," which is likewise not Plaintiff's handwriting or any form in which he writes his name. (Abito Decl., ¶ 6.) The date appearing on the signature line of the purported agreement reads "7/9/15," and the Handbook Acknowledgment reads "7/28/15" — approximately nine years before Plaintiff began his employment with Defendant in July 2024. Plaintiff did not sign any document in 2015 in connection with Brunk's Steakhouse and had no relationship with the company until July 2024. (Abito Decl., ¶ 7.)

This motion concerns the motion to compel arbitration filed by Defendant Brunk's Steakhouse, Inc. that rests on a document whose authenticity Plaintiff has categorically denied under penalty of perjury, whose facial contents are self-contradictory, whose

internal dates are nine years removed from Plaintiff's employment, and whose "signature" does not correspond to Plaintiff's name in any recognizable form.

Plaintiff now moves for an order imposing monetary sanctions against Defendant and its counsel of record pursuant to CCP §§ 128.7 and 128.5. Plaintiff requests sanctions in the total amount of $23,575.00, representing 41.0 hours of attorney time at $575.00 per hour, payable to Laurel Employment Law, APC, 808 Wilshire Boulevard, Suite 200, Santa Monica, California 90401, within thirty (30) days of the Order. This motion is made separately from any other motion or request, as required by CCP §§ 128.7, subdivision (c)(1) and 128.5, subdivision (f)(1)(A).

Plaintiff contends that: (1) CCP § 128.7is satisfied as the motion to compel arbitration was filed without adequate factual investigation; (2) the CCP § 128.7 safe harbor requirement is satisfied; (3) CCP § 128.5 is independently satisfied (a pattern of bad-faith litigation tactics); (4) the requested sanctions are reasonable and proportionate.

In Opposition, Defendant contends that (1) Plaintiff did not satisfy CCP § 128.7’s mandatory safe harbor; (2) CCP § 128.5 does not rescue the request; (3) the formation ruling does not establish knowing fabrication or an unreasonable inquiry; (4) the chronology located physical document, and Jacobs matter support good faith; (5) Plaintiff’s fee request is unallocated and causally deficient.

In Reply, Plaintiff contends that (1) CCP § 128.5 is the primary basis for sanctions because Defendant’s completed tactics could not be withdrawn or appropriately corrected; (2) Defendant’s safe-harbor authorities involve withdrawable papers, not completed tactics; (3) Defendant’s new “physical document” makes the record worse; (4) the chronology shows haste, concealment, and procedural pressure, not good-faith investigation; (5) Defendant still has not competent evidence that Abito signed the agreement; (6) Defendant’s “no knowing, fabrication” argument misstates the sanctions standard; (7) the fees are properly tied to the misconduct.

Analysis

I. Standard

A. Deny Motion under CCP § 128.7 for lack of compliance with safe- harbor provision

In cases filed after 1994, an attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied “certification” as to its legal and factual merit, and is subject to sanctions for violation of this certification. (CCP §128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) Thus, the attorney presenting the paper certifies that: 1) the pleading/motion was not brought for an improper purpose to harass or cause delay and increase costs of litigation; 2) the claims are warranted under existing law or a nonfrivolous argument for the extension of existing law; and 3) the allegations have evidentiary support. (CCP §128.7(b).)A motion for sanctions under §128.7 cannot be filed until 21 days after it has been served (the so-called “safe harbor” waiting period).

During this time, the party being served has the opportunity to correct the violation, and if it does

so, the sanctions motion cannot be filed or pursued. (CCP §128.7(c)(1).) The safe harbor provision is an absolute prerequisite and substantial compliance is not sufficient. (Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.)

1. Plaintiff did not comply with Safe Harbor Provision in CCP § 128.7

The conduct that makes up the aspect of the motion under CCP § 128.7 is: (1) the signature on the Agreement is not Plaintiff’s; (2) the Agreement’s date predates Plaintiff’s employment by nine years; (3) no original agreement has ever been produced; and (4) no supporting declaration accompanied the motion to compel arbitration at the time of filing. (See Motion, page 8, line 8, through page 9, line 12.)

As a threshold matter, Plaintiff contends that the safe-harbor provision has been complied with. Plaintiff explains that the safe harbor letter was sent by email to Ms. Lucente (defense counsel) at mlucente@lucentelawoffice.com on April 6, 2026, formally identifying the specific deficiencies described above and constituting formal notice pursuant to Code of Civil Procedure section 128.7, subdivision (c)(1). (Burton Decl., ¶ 11, Ex. 1.) More than twenty-one days elapsed since service without withdrawal or cure. (Burton Decl., ¶ 12.)

Per Plaintiff, this motion is brought separately from any other motion or request, describes the specific sanctionable conduct, and is filed after the safe harbor period has expired. All procedural requirements of section 128.7, subdivision (c)(1) are satisfied. This motion is brought as a separately noticed and separately filed motion, not embedded in an opposition, directly curing the procedural objection Defendant raised in its reply brief. (See Def.'s Reply to underlying arbitration motion, p. 10.)

In the Opposition, Defendant contends that Plaintiff did not satisfy CCP § 128.7’s mandatory safe harbor. According to Defendant, Plaintiff’s April 6 letter was not service of the motion. It said Plaintiff would later “initiate” the statutory process, expressly including future “service of a sanctions motion.” It also demanded documents within four days, not withdrawal or correction within 21 days. The letter predated the principal anomalies and later conduct challenged in the motion. The June 10 proofs of service show that Plaintiff served the actual motion on the same date it was filed or presented. According to Defendandt, Plaintiff’s party-initiated section 128.7 request is therefore procedurally barred.

In response, Plaintiff contends that the authorities cited by Defendant do not address completed, non-withdrawable AAA communications or unilateral arbitration conduct. However, Plaintiff does not appear to address the CCP § 128.7 safe harbor period as to prior conduct that cannot be withdrawn or corrected as appears to be the case here.

A CCP § 128.7 motion involves a two-step process. The moving party first serves the sanctions motion on the offending party without filing it. The opposing party then has 21 days to withdraw the improper pleading and avoid sanctions (the so-called “safe harbor” waiting period). At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (CCP § 128.7(c)(1); Primo Hospitality Group,

Inc. v. Haney (2019) 37 CA5th 165, 173-174, Martorana v. Marlin & Saltzman (2009) 175 CA4th 685, 698-699; see Broadcast Music, Inc. v. Structured Asset Sales, LLC (2022) 75 CA5th 596, 605-606, —sanctions motion improperly filed where issue (objectional document) was resolved during safe harbor period.)

Here, the April 6, 2026,email from Plaintiff’s counsel to defense counsel does not comply with the safe-harbor provision of CCP § 128.7. The letter itself asks for the arbitration agreement that forms the basis of the underlying motion to compel arbitration, and goes on to state, in part:

Please be advised: if the agreement you produce does not align with what your motion represents — or if no authenticated, executed agreement exists — this filing will lack evidentiary support for its central factual contention within the meaning of Code of Civil Procedure § 128.7(b)(3). In that event, we will have no choice but to initiate the § 128.7 safe harbor process, including service of a sanctions motion, without further notice.

(Emphasis added.)

The safe-harbor period was not complied with, because the motion was not served on April 6, 2026 to start the 21-day window.

In the Reply, Plaintiff states that CCP § 128.5 is the primary basis for sanctions because Defendant’s completed tactics that could not be withdrawn or appropriately corrected and that is the situation addressed by CCP § 128.5.

B. CCP § 128.5

CCP § 128.5 allows a court to order a party or counsel, or both to pay the reasonable expenses, including attorney’s fees, incurred by the other party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Section 128.5(a) requires either: (1) bad faith actions or tactics or (2) a frivolous action. Actions or tactics includes “the making or opposing of motions or the filing and service of a complaint....” (CCP §128.5(b)(1).) Frivolous is “totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP §128.5(b)(2).)

Plaintiff contends that the record reflects a pattern of conduct that is bad faith within the meaning of section 128.5. "An evil motive is not required; subjective bad faith may be inferred from the prosecution of a frivolous action." (Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574.) Plaintiff specifies the five following acts that make up this aspect of the motion:

Act 1 — Deliberate exclusion of opposing counsel from AAA communications. On April 10, 2026, Ms. Lucente communicated directly with AAA regarding the Abito matter while deliberately omitting Plaintiff's counsel, despite being fully aware that counsel of record represented Mr. Abito. Erin Cole characterized the omission as "inappropriate" in writing; no response was offered. (Burton Decl., ¶ 13, Ex. 2.)

Act 2 — Unilateral initiation of AAA arbitration without a court order. Defendant initiated AAA Case No. 01-26-0001-7410 against Plaintiff before this Court ruled on the pending Motion to Compel Arbitration, and over Plaintiff's counsel's express written objection. Defendant also failed to disclose to the AAA the pendency of this Court's proceedings when filing. (Burton Decl., ¶ 14, Ex. 3.)

Act 3 — Unauthorized attempt to stay the entire civil action. On April 13, 2026, Ms. Lucente proposed a complete stay of this civil action pursuant to Code of Civil Procedure section 1281.4, in the absence of any order compelling arbitration or staying the action. (Burton Decl., ¶ 15, Ex. 3.)

Act 4 — Filing of a frivolous ex parte application, denied in its entirety. Defendant sought emergency judicial intervention to advance the arbitration hearing and stay all discovery, while refusing Plaintiff's offer to hold discovery in abeyance conditioned on full withdrawal of the ex parte. The Court denied the application in its entirety on April 17, 2026. (Burton Decl., ¶¶ 16–18.)

Act 5 — Requesting a discovery extension within thirty minutes of the emergency denial. Approximately thirty minutes after the Court denied the ex parte application, Ms. Lucente requested a two-week extension on the same discovery she had just characterized to the Court as a matter of emergency. Plaintiff's counsel denied the request the same day. (Burton Decl., ¶ 19, Ex. 4.)

As noted by Plaintiff, none of this conduct was capable of being "withdrawn or appropriately corrected" and therefore no separate safe harbor was required for this category of conduct. However, to the extent Plaintiff relies on the April 6, 2026 email letter discussed in connection with the CCP § 128.7 sanctions request, it does not satisfy the safe-harbor provision for CCP § 128.5 either, to the extent one is necessary.

Per Computer Prepared Accounts, Inc. v. Katz (1991) 235 Cal.App.3d 428, 438– 439, "submitting forged documents to a trial court is without a doubt . . . sufficient indication of 'bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.'" Here, Defendant not only filed a motion premised on a document whose authenticity is categorically denied and internally self-contradictory, but followed that filing with the series of tactics described above.

In the Opposition, Defendant contends that attorney Brunks has now located a physical document, however, the new document does not cure anything and makes things more complicated. Here, the color copy attached as Exhibit A in the Opposition appears to show “MBIN. M” and a date of “7/19/15.” That differs from the version this Court already analyzed, where the Court observed that the signature looked like “ABIN. MY” and was dated July 9, 2015. Defendant now asks the Court to accept a newly located “physical document” with a different apparent non-name and a different apparent date, authenticated only by counsel, who is not a custodian, not a percipient witness, and not a handwriting expert.

In addition, the Opposition asks the Court to view each event in isolation. However, as noted by Plaintiff the events should be viewed as a chronology.

First, Defendant rushed the Motion to Compel Arbitration onto the docket before it had competent evidence to support it. Ms. Lucente admits the Brunk declaration was not signed until April 8, 2026, and was filed April 9, 2026, after the Motion to Compel Arbitration had already been filed. Defendant says the motion was filed because its responsive pleading deadline was approaching. That is a deadline explanation, not an evidentiary foundation.

Second, the supporting document was not merely weak. This Court found the document itself pointed toward fabrication. The Court found the “logical inference” from the impossible date, unrecognizable signatures, and CEO declaration offering no fact about when or how signing occurred was that the document was fabricated. That finding matters. Defendant’s problem is not that it lost a close arbitration motion. Defendant tried to force Plaintiff out of court on a document the Court found logically indicative of fabrication.

Third, Defendant then used that same disputed document to create procedural pressure outside this Court. Defendant admits it initiated the AAA proceeding on or about April 10. Defendant did so before any order compelling arbitration and over Plaintiff’s objection. Defendant also communicated with AAA about the Abito matter while omitting Plaintiff’s counsel. Those acts were not harmless administrative steps. They were an attempt to make arbitration a practical reality before this Court determined whether any agreement existed.

Fourth, Defendant’s later production makes the record worse, not better. The “physical” version now attached to the Lucente Declaration appears to show “MBIN. M” and “7/19/15.” The version the Court previously analyzed appeared to show “ABIN. MY” and “July 9, 2015.” A newly located version of the supposed agreement with a different apparent non-name and date does not corroborate Defendant’s position. It reinforces the reason sanctions are needed.

The “completed conduct” discussed by Plaintiff matters here because Defendant could not withdraw the harm caused by rushing a baseless arbitration record, initiating AAA, omitting counsel, and creating ex parte pressure after those acts occurred. Section 128.5 exists for precisely this type of bad-faith litigation tactic.

Again, submitting forged documents to a trial court is sufficient to support section 128.5 sanctions where the conduct constitutes “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Computer Prepared Accounts, Inc. v. Katz (1991) 235 Cal.App.3d 428, 438.) The same principle applies here. Plaintiff need not prove who fabricated the document to show that Defendant’s use of a facially suspect document, followed by rushed and concealed arbitral tactics, warrants deterrence.

Also, Defendant repeatedly argues that the Court did not identify who created or altered the document and did not find that counsel knew it was false before filing. But Plaintiff’s motion is not limited to intentional fabrication. It is based on objectively unreasonable filing and advocacy, plus bad-faith litigation tactics. The Court’s prior ruling matters. The Court found fabrication was the logical inference from the anomalies in Defendant’s proof. Defendant then continued litigating around that document with no

percipient signing witness, no competent authentication of the signature, and no explanation for the impossible date.

Plaintiff is right: Section 128.5 also permits the Court to infer bad faith from conduct. Defendant filed first, supported later, initiated AAA before an order, omitted counsel from arbitral communications, pressed an ex parte “emergency,” and then requested an extension immediately after losing. That sequence supports an inference of bad faith.

C. Impose sanctions under CCP § 128.5 in the amount of $6,325

The Court will limit sanctions to the conduct subject to CCP § 128.5, above. In other words, an award limited to the fees caused by that conduct and the fees incurred presenting this sanctions motion. The breakdown is found in the Declaration of Brendan J. Burton, page 9, lime 12-25. Starting with the entry at line 12 for final review, revision, and filing preparation (Opposition) for $862.50 plus the additional attorney time expended in connection with preparing and filing this motion in the amount of $5,462.50, for a total of $6,325, the amount requested for the CCP § 128.5 motion (with an hourly rate for counsel of $575.) Sanctions are ordered payable within 30 days of this order.

II. Evidentiary Objections

Sustain Plaintiff’s objections to the opposing Declaration of Marcella Lucente on grounds stated.