Filed 6/27/22 Kravchuk v. Talor Morrison of Cal ifornia , LLC CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered pu blished, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MARIIA KRAVCHUK , Plain tiff and Appella nt,

v.
TAYLOR MORRISON O F CALIFORNIA, LL C , Defendant and Responde nt. H0 4 88 5 8 ( Santa Clara County Super. Ct. No. 1 8 CV 3 2 2457 )

This action arose out of a failed San Jose residential sales transaction involving
ap pellant Mariia Kravchuk, as buyer, and respondent T aylor Morrison of California, LLC (Taylor) , as developer/ seller

. Kravchuk fil ed suit o n January 24, 2018 , alleging one
cause of action for breach of written contract against Taylor

. Two and one

- half year s later, on July 27, 2020, Kravchuk filed a second amended complaint . In that pleading,
she alleg ed seven causes of action, naming Taylor and eight additional defendants

. Taylor filed a demurrer to three causes of action of that pleading and a motion to strike certain allegations. Taylor then filed a mo tion for sanctions against Kravchuk under
Code of Civil Procedure section 128.7 1 (sanctions motion) for attorney fees and costs
incurred in the filing of the demurrer and motion to strike

. Before Taylor’s sanctions

1 Further statutory references are to the Code of Civil Procedure unless otherwise stated

.2

motion was heard, and after the court ru led on Taylor’s demurrer and motion to strike,
Kravchuk , o n November 30, 2020, filed a third amended complaint alleging the same seven causes of action and naming all nine defendants. On February 2, 2021, the trial

court granted the s anctions motion and a warded Taylor the total sum of $8,220. On appeal, Kravchuk contends that the trial court erred in granting the sanctions
motion. She makes three arguments. First, she asserts that Taylor’s notice of mo tion was defective and that this procedural error p recluded the granting of the sanctions motion. Second, she argues that her filing of the third amended complaint

— after the filing of the
sanctions motion but before it was heard by the court

— rendered the motion moot. Third,
Kravchuk contends that the und erlying allegations in the second amended complaint were based upon evidence and law, and therefore the imposition of sanctions was improper.
We conclude that the Kravchuk forfeited the claim that the no tice of motion for

s anctions was procedurally defec tive

. We hold further that the sanctions motion was not rendered moot by the filing of the third amended complaint. And we conclude that the trial court did not abuse its discretion by granting Taylor’s sanctions motion. Accordingly, w e will affirm the order imposing sanctions against Kravchuk in the sum of $8,220.
I. PROCEDURAL BACKGROUND
A

. Pleadings On January 24, 2018, Kravchuk, then represented by counsel, filed a Judicial Council form complaint aga inst Taylor alleging a claim for breach of written contract. On December 30, 2019, Kravchuk, as a self

- represented litigant, filed a first amended complaint alleging six causes of action against Taylor: (1) breach of contract; (2) breach of implied cove nant of good faith and fair dealing; (3) bad faith denial of contract; (4) unjust enrichment; (5) intentional interference with economic advantage; and (6) negligent interference with economic advantage. Taylor filed a demurrer to the first amended compla int that challenged the noncontract causes of actio n; Taylor also3

filed a motion to strike portions of the first amended complaint. In opposition to the demurrer and motion to strike, Kravchuk stated that she had filed a wrong version of the
first amended complaint and that the filing of the correct versi on would cure any claimed deficiencies. For this reason, on July 16, 2020, the court sustained the demurrer with
leave to amend. On July 27, 20 20, Kravchuk, as a self

- represented litigant, filed her s eco nd

a mended c omplaint , alleging seven causes of acti on and naming Taylor and eight new
defendants , namely, Joyce Lee , James Ganion (Ganion) , C ollinsworth, Specht, Calkins & Giampaoli, LLP (CSCG) , Ulich Balmuth Fisher LLP (UBF) , First American Financial Corp oration (First American) , Olivia Trelles , Tina Long o , and Taylor Beck

. The causes of action alleged were (1) breach of contract (against Taylor); (2) breach of implied covenant of good faith and fair dealing (against Taylor); (3) deceit (against all
defen dants); (4) civil conspiracy (against all defendant s except First American and
Trelles ); (5) aiding and abetting deceit (against all defendants); (6) intentional interference with economic advantage (against all defendants except Taylor); and (7) negligent interference with economic advantage (against all defendants except Taylor). Lee, Longo, and Beck we re employees of Taylor. Trelles was an employee of First
American. Ganion is an attorney who represented Taylor in the subject transaction, and
that whi le the transaction was pending and before Kravchuk’ s lawsuit was filed, Ganion

was a partner with UBF and then a partner with CSCG. Kravchuk alleged in the second amended complaint as follows: On or about March 9, 2017, Kravchuk and Taylor entered into a written contract (the Agreement) involving the pur chase and sale of 73 Montecito Vista Drive, Unit #1 in San Jose (the Property). Under the terms of the Agreement, the date of close of escrow for the transaction was “ ‘ following substantial completion of the Home on a date to be specified in a notice to b e provided by Seller to Buyer. Substantial completion of the Home shall be deemed to have occurred when a certificate of occupancy (or its4

equivalent) has been issued. ’ ” ( Bold i talics in second amended complaint.) Kravchuk alleged that neither walk

- thr oughs of the Property (referred to in the Agreement as

“ ‘New Home Orientations’ ”) nor the close of escrow should have been scheduled until after the City of San Jose (City) issued a Certificate of Occupa ncy (hereafter, COO) for the Property, which did no t occur until January 31, 2018. Before that date, the City rejected repeated attempts by Taylor to obtain a COO for the Property. Kravchuk alleged that, b eginning in October 2017, Taylor “engaged in [a] series of malicious actions towards [Kravchuk] by scheduling [walk

- throughs] and dates for ‘Close of Escrow’ [(COE’s)] for [the] Property which should have occurred after (and not before) the issuance of [a] Certificate of Occupancy for [the] Property.” There were six
walk

- throughs and COE’s that Kravchu k claimed were scheduled wrongfully and “in bad
faith” by Taylor between October and December 2017. Taylor “fraudulently claimed” on November 9, 2017, that a COO for the Property had issued. On November 17, Ganion, on behalf of Taylor , in a notice of def ault to Kravchuk claimed that a COO had issued and “fraudulently attempted to compel” her to close escrow before a COO issued. On November 28, Taylor “wrongfully terminated” the Agreement based upon Kravc huk’s failure to close escrow by November 22. Also on November 28, defendants Taylor and
Lee “kept fraudulently claiming” that the City had issued a COO for the Property. On
December 11 and 19 , Ganion made further attempts “ to compel [Kravchuk] to close [ e ] scrow ” without the issuance of a COO, “while fra udulently claiming that [a] Certificate of Occupancy [had] issued.” On December 21, Ganion and Taylor demanded that Kravchuk immediately deposit into escrow the full purchase price “while fraudulently cla iming that [a] Certificate of Occupancy [had] issue d.” Kravchuk was ready, willing, and able to close escrow

. B ut Taylor sold the Property to a third party on January 25, 2018, for $832,842, or $163,097 more than the price in the Agreement. Taylor brea ched the Agreement by refusing to permit Kravchuk

t o close escrow on the Property as agreed.5

The claim for deceit was founded upon the communications by Taylor and Ganion alleged in the second amended complaint as stated above. Kravchuk alleged that the “[d]efendants intentionally misrepresented to [Kra vchuk] that the construction on [the] Property was completed and [the] Property was ready to be occupied, that it was authorized under [the] Contract to proceed with the walkthrough of [the] Property as of November 15, 2017, and that it possessed the right to sell [the] Property as the [COO] . . .
had been issued by the [ City ] .” Kravchuk also alleged that Ganion, CSCG, and Ulich “attempted to wrongfully compel [Kravchuk] to close [e]scrow on [the] Property by sending threats to [ her ] and wrongfully stating that [the] Property was (while it was not) allowed to be used and occupied and that [Kravchuk] would lose her deposit if [ she ] would not obey [Taylor’s] . . . demands and that [ she ] would be penalized for each day of not closing [e]scrow in the amount of $1,000 a day

. . . . ” Kravchuk made similar allegations in support of her civil conspiracy and aiding and abetting deceit claims. On August 24, 2020, Taylor filed a motion to strike the second amended

c omplaint, or, in the alternative, certain portions of that pleading. On the same date, Taylor filed a demurrer to the third, fourth, and fifth causes of action of the second amended complaint. As discussed in the next section, on November 12, 2020, the c ourt partially sustained Taylor’s demurrer and part ially granted its motion to strike.
B. Motion for Sanctions
On September 25 , 2020, Taylor served upon Kravchuk a motion for sanctions against Kravchuk pursuant to section 128.7

. The motion was filed with the court on October 21, 2020. 2 Taylor argued, in ter alia, that allegations contained in the second amended complaint were contradicted by deposition testimony and exhibits attached to

2 Taylor filed an amended notice of motion for sa nctions on December 2, 2020. Kravchuk filed a motion to augment the record to include this amended notice of motion, as well as her amended notice of appeal filed July 14, 2021. We grant Kravchuk’s motio n to augment the record.6

Kravchuk’s second amended complaint, and the allegations lacked factu al or legal support. Taylor sought monetary sancti ons in the total amount of $20, 772. The sanctions requested included (a) $12,552, which Taylor claimed represented the costs it incurred in addressing the second amended complaint by filing a demurrer and a motion to strike ; and (b) $8,220, representing T aylor’s costs in preparing the sanctions motion.
After the filing of the sanctions motion but before it was heard , the court ruled on Taylor’s motion to strike and demurrer relative to the second amended complaint. In an
order filed o n November 12, 2020, the court overruled Taylor’s demurrer to the third cause of action for deceit, and it sustained with leave to amend the demurrer to the fourth cause of action for civil conspiracy and fifth cause of actio n for aiding and abetting

. In the same order, the court denied Taylor’s motion to strike the second amended complaint in its entirety, and it granted in part and denied in part Taylor’s motion to strike specific allegations of that pleading. O n November 30, 2020, Kravchuk filed a third amended complaint alleging the same seven causes of action and naming all nine defendants. On January 7, 2021, Kravchuk filed “ ‘limited’ opposition” to Taylor’s sanctions
motion. (Capitalization omitted.) She argued th at (1) the motion was moot , and (2) Taylor’s underl ying arguments to the effect that Kravchuk’s allegations in the second amended complaint had no evidentiary or legal support were without merit. A hearing on the motion occurred o n February 2, 2021 . The record reflects that there were no appearances and that no party contested the court’s tentative ruling. The court adopted the tentative ruling at that time. The court granted the motion and awarded Taylor sanctions in the amount of $8,220. 3 The court h eld, inter alia, that certain allegations in the se cond amended complaint were “inherently inconsistent,” the evidence

3 The court denied withou t prejudice Taylor’s request for sanctions of $12,552 for its costs associated with the filing of its demurrer and motion to strike relative to the second amended complaint

.7

presented in the motion demonstrated that the allegations “lack[ed] evidentiary support,” and Kravchuk’s opposition did not refute Taylor ’s showing. Kravchuk filed a timely notice of appe al from the order granting Taylor’s
sanctions motion. 4
II. DISCUSSION
A

. Motions for S anctions Under Section 128.7 Under section 128.7, w hen an attorney or sel f

- represented litigant presents a pleadin g, motion or similar paper to the court , he or she makes an implied “certification” as to its legal and factual merit; that attorney or litigant is subject to sanctions for a violation of this certification. The purpose of section 128.7 is “to check abuse s in the filing of pleadings, petitions, written no tices of motions or similar papers.” ( Musaelian v.
Adams (2009) 45 C al. 4th 512, 514 ( Musaelian ) .) As is relevant here, by presenting a pleading , the litigant impliedly certifies that “ (1) [i] t is not bei ng presented primarily for an improper purpose, suc h as to harass or to cause unnecessary delay or needless increase in the cost of litigation [ ; ¶] (2) [t]he claims . . . and other legal contentions therein are warranted by existing law or by a nonfrivolou s argument for the extension, modification,

or reve rsal of existing law or the establishment of new law[; ¶] (3) [t] he allegations and other factual contentions have evidentiary support

. . . [; and ¶] (4) [t] he denials of factual
contentions are warranted on the evidence

. . . . ” ( § 128.7, subd. (b).) S ection 128.7 is

4 On March 3, 2021, Kravchuk f iled a motion for reconsideration (§ 1008) of the
c ourt’s order granting Taylor’s sanctions motion

. On July 9, 2021, the court denied the motion for reconsideration of the order granting the sanctions motion

. Thereafter, on July 14, 2021, Kravchuk filed a purported amended notice of appeal, identifying t he order denying her motion for reconsideration as the order from which the appeal was taken. (See Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1680 [order denying motion for reconsideration is n ot an appealable order].) Kravchuk does not presen t argument in her briefs concerning the court’s order denying the motion for reconsideration. She has thus abandoned any appeal of that order. (See Tanner v. Tanner (1997) 57 Cal.App.4th 419, 422, fn. 2 [a

ppellate court treat s as partial abandonment of a ppeal an appellant’s failure to challenge in opening brief an order specified in notice of appeal ]. )8

“ modeled, almost word for word, on rule 11 of the Federal Rules of Civil Procedure

. . .

. ” ( Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467 , disapproved of on other grounds by Musaelian , supra , 45 C al. 4th at p. 5 20 .) Under section 128. 7, “there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument f or the extension, modification, or reversal of exis ting law); and papers interposed for an improper purpose. [Citations.]” ( Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167 ( Guillemin ) .) The trial court applies “ an objective standard in making its inqu iry concerning the attorney ’ s or party ’ s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7. [Citations.]” ( Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 92 1 ( Optimal Markets ).) Unlike san ctions under section 128.5 that requires a finding of subjective bad faith, “section 128.7 imposes a lower
threshold for sanctions . . . that the conduct [merely] be ‘objectively unreasonable.’ ” ( Guillemin , supra , 104 Cal.App.4th at p. 167.) Thus, for i nstance, the trial court’s
determination of whether an action is frivolous under section 128.7 is made under an objective standard. (

Burkle v. Burkle (2006) 144 Cal.App.4th 387, 401.)
The statute includes a 21

- day safe harbor provision under which the par ty to correct or withdraw the offending conduct. ( § 128.7, subd. (c)(1).) By so providing,

“ section 128.7 is designed to be remedial, not punitive. [Citation.]” ( Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 591.) Thus, under the statu te ’s two

- step procedure , first, the moving party “ ‘ must serve a notice of motion for sanctions on the offending party at least [21] days before filing the motion with the court, which specifically describes the sanctionable conduct. ([§ 128.7, subd. (c)( 1).]) Service of the motion on the offending party begins a [21]

- day safe harbor period during which the sanctions motion may not be filed with the court. ( Ibid. ) If the pleading is withdrawn, the motion for sanctions may not be filed with the court. [ Citation.] If the pleading is not9

withdrawn, the m otion for sanctions may then be filed. [Citation.] ’ [Citation.]” ( Optimal Markets , supra , 221 Cal.App.4th at p. 920

. ) As a general rule, the appellate court reviews an award of sanctions under section
1 28.7 for abuse of discretion. ( Guillemin , supra , 1 04 Cal.App.4th at p. 167.) “ But where a question of statutory construction is presented in the course of the review of a discretionary decision, such issues are legal matters subject to de novo review. [ Citations.]” ( Optimal Markets , supra , 221 Cal.App. 4th at pp. 921

- 922.) In determining whether the trial court abused its discretion, “[w]e presume the trial court’s order is correct and do not substitute our judgment for that of the trial court. [Citat ion.] To be entitled to relief on appeal, the cour t’s action must be sufficiently grave to amount to a manifest miscarriage of justice. [Citation.]” ( Peake v. Underwood (2014) 227 Cal.App.4th 428, 441.)
B
. No Error by the Trial Court
We perceive from a review of her appellate briefs that Kravchuk asse rts three arguments

— two procedural and one substantive

— in support of her position that the trial court erred in granting Taylor ’s sanctions motion. First, Kravchuk argues that the notice
of motion was def ective because it did not bear the date and time of the hearing on the
motion. Second , she contends that her filing of the third amended complaint rendered the previously

- filed sanctions motion moot. Third, Kravchuk asserts that the trial court erred
in granting the motion, based upon reasoning she claim s was faulty, namely that Taylor’s failure to obtain a COO for the Property was not a contractual bar to its insistence that
Kravchuk close escrow. We address these arguments below.

1

. Objection to Any No tice Defect Was Forfeited Kravchuk argues that the notice of motion for sanctions was procedurally
defective under sections 128.7 and 1010. Under section 128.7, subdivision (c)(1), a notice of motion for sanctions “shall be served as provided in Section 1 010, but shall not be filed with or presented to th e court unless, within 21 days after service of the10

motion

. . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. ” Under section 1010, t he written “ notice of a
motion

. . . must state whe n , and the grounds upon which it will be made, and the papers, if any, upon which it is to be based .” (Italics added.) Specifically, she argues that the notice of motion for sanctions that Taylor filed o n October 21, 2020, was defective
because it did no t state “when [the motion would] be made” as provided in section 1010.
Kravchuk assert s that it was not until December 2, 2020

— after the superior court clerk had inserted the date and time of the hearing for the sanctions motion

— that Taylor served

an amen ded notice identify ing when the sanctions motion would be heard. Kravchuk contends that Taylor’s failure to include the date and time of the motion in the original
notice was a fatal defect. 5
Kravchuk f iled her opposition to the s anctions motion on Janu ary 7, 2021

— after Taylor had filed its notice of motion (October 21 , 2020) and its amended notice of motion

5 Taylor in its respondent’s brief acknowledges that when it served and filed the motion, it did not inc lude the date and time of the hearing in the notice of motion. Taylor explains that this omission was due to the superior court’s change in procedure as a result of the COVID

- 19 global pandemic . As stated by Taylor, “[a]t the time [Taylor] served its mot ion, the trial court accepted law and motion filing s electronically, and the hearing dates for motions were expressly not to be included in the moving papers’ captions. After being submitted to the trial court electronically, the court would process a sub mitted motion and then assign a hearing date, and m otions would be re

- noticed.” In support of this position, Taylor has filed a request for judicial notice of a notice and an order of the superior court issued in response to the COVID

- 19 pandemic , and sup erior court local rules (identified as e xhibits A t hrough E) . A dditionally, related to Kravchuk’s argument discussed in part B.3., post , Taylor attaches to the request for judicial notice certain provisions of the San Jose Municipal Code , and a bulletin i ssued by the San Jose Planning, Building & Code Enf orcement Department, Building Division (identified as
e xhibits F through K)

. Because we conclude that Kravchuk has forfeited her challenge to the noti c e of motion, we will deny Taylor’s request for judici al notice of the documents identified in the reques t as e xhibits A through E. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [judicial notice denied for materials not relevant to issues decided on appeal]

. ) We will grant Taylor’s request for judicial noti ce of the documents identified in the request as e xhibits F through K.11

(December 2, 2020) . She raised no objection to the sufficiency of the notice in her opposition

. Kravchuk ’ s failure to object below to this alleged notice defect precludes her from raising the challenge here. “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asser ted, where an objection could
have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or wai ver . . . . Often, however, the explanation is sim

ply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” ( Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184

- 185,
fn. 1, o riginal italics.) Although the failure to raise an objection in the trial court is often referred to as a waiver, strictly speaking, it is a forfeiture of the right to assert the objection on appeal. (

In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 , super seded on other grounds by statute as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962 .)
This forfeiture rule applies to unasserted procedural challenges to notices of motions. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) “A party who appears at the hearing on a motion and contests the motion on the merits without objecting to a defect or irregularity in the notice of motion ordinarily is deemed to waive the defect or irregularity, inc luding the failure to serve a notice of motion the prescribed number of days before the hearing. Courts have applied this rule where the party failed to object at the hearing [citations], where the objection was deemed inadequate [citations], and where th e party may have objected but failed to show prejud ice resulting from the defective notice. [Citations.] Courts applying the waiver rule generally have concluded that the party ’ s appearance at the hearing and opposition on the merits showed
that the noti ce ‘served its purpose,’ despite any defect [citati on s ], and that any defect in the notice did not prejudice the party’s preparation for the hearing and opportunity to be12

heard. [Citations.] ” (

Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333,
3 42

- 343 ( Arambula ) .) Thus, in In re Marriage of Falc one & Fyke (2008) 164 Cal.App.4th 814, 826 ( Falcone & Fyke ), a panel of this court considered an appellant’s challenge to an order imposing sanctions against her under section 128.7. The appellant asserte d on appeal that
she had received insufficient noti ce because, although she was served with the motion 21 days prior to the hearing, because the service was by mail, her safe harbor period should have been extended by five days. ( Falcone & Fyke , supra , at p. 826.) The appellant
failed to assert the notic e objection below, and this court held that she had therefore waived the challenge, concluding “[the appellant] had ample opportunity to raise the objection below. Her failure to do so deprived [the respo ndent] of the chance to argue
the issue or cure the alleged error and prevented the trial court from making any ruling on the poin t.” (

Ibid. ) Falcone & Fyke is on point. The circumstances that are the bases for Kravchuk’s challenge to the notice of motio n here were known to her well before she filed her opposition. She did not raise the challenge in her opposition papers, nor did she appear at the hearing to argue the matter. Kravchuk has forfeited the challenge to the notice provided in the sanctions m otion. (See Falcone & Fyke , supra , 164 Cal.App.4th at
p. 826; Arambula , supra , 128 Cal.App.4th at pp. 342

- 343.) 6

6 We requested that the parties submit supplemental letter briefs addressing two questions: (1) whether Kravchuk asserted before the trial court that the notice of motion was defective ; and (2) assuming Kravchuk did not raise the issue below, whether it was waived (forfeited) on appeal. We have received and considered the parties’ letter briefs. Kravchuk acknowledges that she did not object to the notice at the trial level. She
asser ts , however, that an appellate court’s application of the waiver (forfeiture) doctrine is not automatic , and she requests that this court exercise its discretion to consider the notice issue here. We decl ine that request.13 2

. The Motion Was Not Moot
Kravchuk contends

— as she did below

— that the filing of her third amended complaint on November 30, 2020, rendered the sanctions motion (filed on
October 21, 2020) m oot. Kravchuk relies on J KC3H8 v. Colton (2013) 221 Cal.App.4th 468 ( J KC3H8 ) in support of her position. We reject Kravchuk’s claim that the sanctions
motion was moot. “ ‘ “[A]n amendatory pleading supe rsedes the original one, which ceases to perform an y function as a pleading.” ’ ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) . . . ‘Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.] ’ [Citation.] Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. [Citation.]” ( JKC3H8 , supra , 221 Cal.App.4th at p. 477.) The
J KC3H8 court was concerned with w hether the filing of an amended complaint rendered moot a special motion to strike the superseded complaint under the anti

- SLAPP statute (§ 425.16). The appellate court stated that “ an amended complaint [also] render [s] moot an anti

- SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross

- complainant may not seek to subvert or avoid a ruling on an anti

SLAPP motion by amending the challenged complaint or cross

- complaint in response to
the motion. [Citations.]” ( J KC3H8 , supra , at pp. 477

- 478.) But in J KC3H8 , because th e amended complaint was filed before the special motion to strike the original complaint was filed, the appellate court held that the motion to strike had been rendered moot because “there was no pending a nti

- SLAPP motion as the time of the amendment.” ( I d. at p. 478.) By analogy to the circumstances addressed by the court in J KC3H8 , supra , 221 Cal.App.4th 468 concerning the impact of the filing of an amended pleading upon a special motion to strike the su perseded pleading, whether a motion for sanctions u nder section 128.7 is rendered moot depends upon the timeline of the filing of the amended14

pleading and the sanctions motion. Here, Eichenbaum v. Alon (2003) 106 Cal.App.4th 967 ( Eichenbaum ) is instructiv e. There, in response to being served with a fourt h amended complaint, the defendant filed a demurrer, motion to strike, and a motion for sanctions under section 128.7. ( Eichenbaum , supra , at p. 972.) The sanctions motion was heard and submitted, but be fore the court issued a ruling, the plaintiff filed a voluntary dismissal without prejudice of the fourth amended complaint, thereby mooting the defendant’s demurrer and motion to strike. ( Id. at pp. 972

- 973.) The trial court held that the plaintiff’s fi ling of the dismissal did not deprive the court of jurisdiction to rule on the submitted motion, and it granted defendant’s motion for sanctions. ( Id. at p. 973.) The appellate court affirmed, rejecting the plaintiff’s argument that the filing of
the di smissal had deprived the trial court of jurisdictio n to rule on the sanctions motion. ( Eichenbaum , supra , 106 Cal.App.4th at p. 974.) The court observed that “[t] he availability of section 128.7 sanctions against an offending plaintiff that has voluntari ly dismissed its action depends upon whether the sa nctions motion was filed before or after
the dismissal. ” (

Id. at p. 975.) The Eichenbaum court noted that another court had

“ recently held that a defendant could not obtain section 128.7 sanctions by fil ing a motion for them after a voluntary dismissal [, concluding] . . . that to allow such a motion

‘ would completely defeat the purpose of the safe harbor provision. ’ [Citation.] ” ( Ibid. , quoting Hart v. Avetoom (2002) 95 Cal.App.4th 410 , 414.) Contrasti ng the procedural timing in Hart of the dismissal, the court in Eichenbaum held: “[T]he relevant considerations point exactly the opposite in a case, such as this one, where a voluntary
dismissal is taken after a motion for section 128.7 sanctions has bee n brought . In such a case, the defendant moves for sanctions only after the plaintiff has been allowed the
21

- day . . . safe harbor to rectify its sanctionable conduct, but has not done so. In these circumstances, belated abandonment of the case does not fulfill the object of the statute, and the policie s favoring allowance of sanctions remain extant notwithstanding the
dismissal. [Citation.]” ( Eichenbaum , supra , at p. 975 , italics added .)15

Similarly, in Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 183 ( Bu cur ), the plaintiffs filed two motions for sanction s under section 128.7, one relating to the complaint and the second related to the first amended complaint filed after service and filing of the first sanctions motion. The trial court granted the defenda nt’s sanctions motions, concluding that the plainti ffs’ pleadings were not supported by the facts, were filed for an improper purpose, and the plaintiffs failed to withdraw the pleadings during the safe harbor period. ( Bucur , supra , at p. 184.) The appel late court affirmed, finding, inter alia, that the “filing of the first amended complaint after expiration of the safe harbor period , and following full briefing on [the defendant’s] first motion for sanctions did not absolve [the plaintiffs] of section 12 8.7 sanctions relating to the filing of the origina l complaint. [Citation.]” ( Id. at p. 191, citing Eichenbaum , supra , 106 Cal.App.4th at pp. 975

- 976 , italics added ; see also Banks v. Hathaway, Perrett, Webster,
Powers & Chrisman (2002) 97 Cal.App.4th 94 9, 954 [“order sustaining a demurrer
without leave to amend does not bar a motion for section 128.7 sanctions unless the order is reduced to a judgment before the sanctions motion is served and filed”].) Here, the sanctions motion under section 128.7 was f iled by Taylor on
October 21, 2020. Kravchuk filed her third amended complaint on November 30, 2020. The hearing on the sanctions motion occurred on February 2, 2021. The filing of the third amended complaint did not render Taylor’s sanctions motion moo t. (See Bucur , supra , 244 Cal.App.4th at p. 191; E ichenbaum , supra , 106 Cal.App.4th at p. 975.) 7

7 Kravchuk asserts that the trial court erroneously stated in the order granting sanctions that the hearing on Taylor’s demurrer and motion to strike the second amended complaint were vacated because the filing of the third amended compla int rendered the proceedings moot. It is true that the court below in fact ruled on the demurrer and motion to strike on November 12, 2020, and Kravchuk thereafter filed a third amended complaint on November 30, 2020. But the erroneous recital of this pr ocedural matter concerning the hearing on the demur rer and motion to strike has no impact on the correctness of the trial court’s determination that the filing of the third amended complaint did not render the sanctions motion moot. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205,16 3

. Order Imposing Sanctions Was Not an Abuse of Discretion In its sanctions motion, Taylor focused upon several categories of allegations in
the second amende d complaint that it claimed were frivolous, lacking in evidentiary support, and/or lacking in legal support. We will address here f our categories of allegations made by Kravchuk in the second amended complaint. The allegations relate to (1) false stateme nts by the Taylor defendants 8 to Kravchuk concernin g the Property being ready to be safely occupied; (2) false statements by the Taylor defendants to Kravchuk that the City had issued a COO (Certificate of Occupancy) for the Property; (3) claiming that Tay lor had refused to allow Kravchuk to close escrow; and (4) a request for attorney fees incurred in the suit

.

a . Property Ready to be Safely Occupied Kravchuk alleged in the second amended complaint that, beginning in October 2017, Taylor “engaged in [a] series of malicious actions towards [Kravchuk]” by scheduling a series of walk

- throughs and escrow closings “[w]hile knowing that [the COO had] not issued for the Property and [the] City . . . [had] not approve[d the] Property to be safely used and occupie d.” Similar allegations to the effect that the Tay lor defendants falsely claimed that the City had approved the Property to be safely used and occupied appeared in at least four other paragraphs of the second amended complaint. 9
1225 [appellat e court “may affirm the court’s sanctions order on any ground supported by the record”].)

8 Because the allegations in the second amended complaint identify representations by Taylor and others, including counsel, on Taylor’s behalf, we refer to Taylor, Le e, Ganion, CSCG, UBF, Longo, and Beck collectively as the Taylor defendants.

9 In paragraph 52 of the second amended complaint, Kravchuk alleged that the Taylor “[d]efendants intentionally misrepresented t o [Kravchuk] that the construction on [the] Propert y was completed and [the] Property was ready to be occupied

. ” In paragraph 54, Kravchuk alleged that the Ganion, CSCG, and Ulich “attempted to wrongfully compel [Kravchuk] to close [e]scrow on [the] Prope rty by sending threats to [her] and wrongfully stat ing that [the] Property was (while it was not) allowed to be used and occupied . . .

. ” In paragraph 63, Kravchuk alleged that Taylor intentionally17

Taylor in its sanctions m otion presented evidence refuting these allegations through deposition testimony from Steve Kroot, a City building inspector. Significantly, that testimony was given on May 15, 2019, or 14 months before Kravchuk filed her second amended complaint. Kroot performed inspections of the Indigo development,
wh ich included the Property, Unit 1, that Taylor agreed to sell to Kravchuk. Kroot testified that on November 9, 2017, he went to 73 Montecito Vista Drive, the building that included Unit 1, signed off on t he electrical, plumbing, mechanical, and building o n the site, and indicated that “all the units were okay to occupy.” Kroot testified that by signing off on the building, the owners or tenants could then move into their units , and that they “would have h ad to be fully completed and livable

. ” Kroot also explained that a COO is generated for an entire building, not for each unit , and that the COO would be issued after final inspection for the entire building

. Kroot testified that after the units
have been inspected, they can be occupied even if no COO has issued for the entire building. Kravchuk submitted no evidence to contradict Kroot’s deposition testimony. Other than arguing that escrow could not close under the Agreement unless the City had
issued a COO or a temporary certificate of occupancy for t he Property, Kravchuk did not offer anything below to respond to Taylor’s position that she had no factual basis for alleging that Taylor had false ly stated that the City had approved the Property to be sa fely occupied. And in her appeal, Kravchuk does no t point to evidence in the record that

misrepresented to her (and all defendants were aware of Taylor’s deceit) by stating that the “ Property was allowed (while it was not) by [the] City . . . to be used and occupied.” And Kravchuk alleged in paragraph 64 that Taylor (with the defendants’ knowledge) “was fraudulently demanding [Kravchuk] to close [ e]scrow despite of the fact that [the] Property was not authorized by [the] City . . . to be used or occupied.”18

would support her multiple allegations that Taylor had falsely stated that the City had approved the Property to be safely occupied. 10

b
. City’s Issuance of COO for t he Property In the second amended complaint, Kravch uk alleged that on November 28, 2017, defendants Lee and Taylor sent a letter advising that she was in default in which Taylor “kept fraudulently claiming that [a] Certificate of Occupancy was issued for [ the] Property by [the] City of San Jose.” There ar e at least five other paragraphs of the second amended complaint in which Kravchuk alleged that Ganion, as Taylor’s attorney, falsely claimed that a COO had issued for the Property. The alleged false stat ements concerning the issuance of a COO, in all six paragraphs of the pleading , were reflected in w ritings attached to the second amended complaint. The writings were dated between November 28 and December 21, 2017. We have reviewed each of the exhibits , none of which
contain ed a statement to the effect that the City had issued a COO for the Property. Kravchuk submitted no evidence to support the veracity of her allegations in the
above

- mentioned six paragraphs of the second amended complaint. Kravchuk d id not offer anything to respond to Taylor’s positi on that there was no factual basis for alleging that Taylor had false ly stated that the City had issued a COO for the Property

. And in her appeal, Kravchuk does not point to evidence in the record that wo uld support her multiple allegation s that Taylor ha d falsely stated that the City had issued a COO for the Property.

10 Kravchuk’s principal argument on the merits of the parties’ dispute is, as it was below, that regardless of Kroot’s testimony, escrow could n ot close on the Property and it could not be legall y occupied until a COO or a temporary certificate of occupancy (TCOO) for the Property had been issued by the City. Taylor dispute s these contentions. Because we conclude that the trial court did not abu se its discretion in finding a lack of evidentiary basis for Kravchuk’s allegations that (1) Taylor falsely stated that the City had found the Property ready to be safely occupied, (2) Taylor had falsely stated that a COO had issued for the Property, (3) T aylor had refused to permit Kravchuk to close
escro w; and (4) she was entitled to recover attorney fees , we need not address the merits of Kravchuk’s COO/TCOO argument here

.19 c. Refusal to Permit Kravchuk to Close Escrow Kravchuk alleged in the second amended complaint in her breach of contract claim that Taylor “with [the] help of other co

- conspirators . . . br eached [the] Contract by refusing to allow [Kravchuk] to close escrow on the purchase of [the] Property.” This allegation was contradicted by documentary evidence attached as exhibits to Kravchuk’s pleadi ng , as well as by other evidence presented in Taylo r’s sanctions motion. On November 17, 2017, Ganion sent a letter to Kravchuk’s counsel , Alex Gortinsky, in which he, inter alia, stated that (1) Kravchuk was in default ; (2) Taylor wanted to give “ [Kravchu k] another opportunity to purchase the home”; (3) e xtension fees were owed under the Agreement, but they would be waived by Taylor if Kravchuk closed escrow by November 22; (4) Kravchuk needed to facilitate a prompt close of

escrow ; and (5) “Taylor

. . . w ants [Kravchuk] to buy the home.” In a letter to G ortinsky dated December 11, 2017, Ganion advised that although escrow was canceled because of Kravchuk’s failure to move forward, Taylor was prepared to give her another opportunity if she stated unequivoc ally that she would close escrow by December 28. G anion again

wrote to Gortinsky on December 18, 2017, urging that “if [Kravchuk] really does wish to buy the home , then [Taylor] needs her to prove it” by signing escrow documents by
December 22.
In her de position , Kravchuk was asked to list all reasons th at she did not proceed with the transaction. Her response was “[b]ecause I was not sure that the house is complete because they did not allow me in.” In response to the follow

- up question of
whether ther e was “[a]nything else,” Kravchuk testified, “That’ s it. At [the ] present

moment [,] . . . I can’t remember anything else.” This position was contradicted by documentary evidence and discovery. As to whether Taylor denied Kravchuk access to the Property f or a walk

- through, Krystyna Taryanik testified that she inspected the Property on Kravchuk’s behalf on November 8, 2017, pointed out items that needed repair in a list that she signed, and later20

did a second inspection of the Property to determine if the listed items had been
addressed. 11 Kravchuk admitte d in a verified response to requests for admissions that the individual performed a walk

- through of the Property on Kravchuk’s behalf on
November 8 and that the individual signed a form confirming that wal k

- through and identifying potential repair items ob served. Further, in connection with Taylor’s
communications to encourage Kravchuk to move ahead with closing escrow, Ganion
advised Gortinsky on December 18 and 21 , 2017, that Taylor would permit another walk

through, albeit not as a condition of closing escrow. Kravchuk ’s attorney, Gortinsky, was also advised, at least as early as November 17, 2017 (in Ganion’s letter attached to the second amended complaint), that the Property was habitable and that the City had signed off for its occupancy on November 8. Kravchuk’s allegation in the second amended complaint that Taylor “breached [the] Contract by refusing to allow [Kravchuk] to close escrow on the purchase of [the] Property” is further called into ques tion by additional correspondence not part of the
p leading that was included in Taylor’s sanctions motion. On November 17, 2017 , Gortinsky wrote to Ganion stating that Kravchuk was willing and able to close escrow, but that she had certain demands, includ ing the scheduling of a final walk

- through, Taylor’ s waiver of extension fees under the Agreement, reimbursement of Kravchuk’s travel expenses ($1,900), payment of attorney fees, and two additional weeks’ notice fo r the closing of escrow. Similarly, Gorti nsky advised Ganion in an e

- mail of January 10, 201 8, that Kravchuk’s demands for completing the transaction included a
30

- day notice for closing escrow, a final walk

- through, and reimbursement of legal fees of approximately $3,800.

11 The Agreement provided that the identification of items that needed repair on a New Home Orientation List did not furnish a basis f or the buyer’s delaying the close of
escrow. Kravchuk was advised of this provision in Ganion’s letter of November 17, 2 017 , to her counsel.21

Kravchuk submitted no evidence or argument supporting a factual basis fo r her allegation that the Taylor defendant s refused to permit her to close escrow on the Property. And in her appeal, Kravchuk does not point to evidence in the record that would support her allegation th at Taylor breached the Agreement by refusing to per mit
her to close escrow.
d
. Prayer for Attorney Fees The second amended complaint included a prayer for attorney fees. In its sanctions motion, Taylor argued that the allegation had no evidentiary or lega l support. Under the terms of the Agreement, whic h was attached as an exhibit to Kravchuk’s second amended complaint , in the event of a dispute arising out of the Agreement, each side would bear her/its own attorney fees. Further, “[u]nder the
American rule, as a general proposition each party must pay his [or her] own attorney fees. This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his [or her] own attorney fees unless a statute or the
ag reement of the parties provides otherwise.” ( Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504, fn. omitted.) The original complaint filed by Kravchuk’s former attorney, Gortinsky, included a prayer for attorney fees in two locations of the pleading. Taylor’s counsel advised Gortinsky that these attorney fee allegations were subject to a motion to strike because the Agreement provided that each party would bear her/its own attorney fees. In
response, in March 2018, Gortinsky signed a stipu lation that allegations in the complaint regarding Kravchuk’s right to attorney fees were stricken. In her opposition, Kravchuk submitted no evidence or argument identifying a factual or legal basis for her prayer for attorney fees. Her response was that , because22

after the filing of the sanctions motion, she filed a third amended complaint in which she did not seek attorney fees, the question was moot. 12 We reject this argument. The prayer for attorney fees in the second amended complaint had no basis i n fact
or law. Her lack of entitlement to fee reco very if she prevailed in the litigation was acknowledged by her former counsel as early as March 2018, more than two years before
Kravchuk filed the second amended complaint. Further, her unsupported atto rney fee allegation necessitated Taylor’ s filing of a motion to strike. And, critically, she failed to

“ withdraw [] or appropriately correct []” the improper allegation concerning attorney fees
within the 21

- day safe harbor period before Taylor filed the sa nctions motion. (§ 128.7, subd. (c)(1).) Kravchuk ’s belated action of filing a third amended complaint did not moot Taylor’s motion insofar as it asserted that Kravchuk’s prayer for attorney fees was unjustified. (See Bucur , supra , 244 Cal.App.4th at p. 191.) 13

e . Conclusion
The trial court concluded tha t Taylor had established its claim for sanctions under
section 128.7. It held , inter alia, that Kravchuk’s contract allegations in the second amended complaint that Taylor refused to allow her to close es crow “are inherently inconsistent, and notwithstand ing, the evidence set forth in the motion demonstrates that they lack evidentiary support. Specifically, the evidence indicates that [Taylor] did not

12 Kravchuk’s appellate briefs contain no argument justifying h er prayer for attorney fees in the second amended c omplaint.

13 Taylor also argued below that Kravchuk was subject to sanctions for asserting without legal or factual basis a prayer “[f]or actual, compensatory, incidental and consequential damages according to proof, but not less than $1,000,000.00.” Taylo r argued that the allegations in the second amended complaint supported damages of no more than $163,097, the difference between the price Kravchuk agreed to pay under the Agreement and the price paid for the Property in January 2018 when Taylor sold to a third party. Kravchuk did not address this argument in her opposition. While Taylor’s argument appears on its face to offer an additional ground for awarding sanctions under section 128.7, the trial cour t did not address this issue. Accordingly, we do n ot consider it in determining whether the court abused its discretion in granting the sanctions motion.23

prevent [Kravchuk] from closing escrow but rather, was proactive in attempts t o facilitate
close o f escro w, and provided [Kravchuk] several reasonable opportunities t o do so. However, [Kravchuk] , i nstead o f taking action t o close escrow, submitted a list o f demands which were not conditions precedent t o clos e escrow under the terms o f the purchase agreement. [¶] In opposition, [Kravchuk] does not present facts t o refute this evidence, and the evidence was known t o [Kravchuk] prior to filing the [second amended complaint] .” The trial court concluded further that allegations supporting Kravchuk’s misrepresent ation claims that centered on whether Taylor had falsely stated that a COO
had been issued were refuted by Kroot’s deposition testimony, and that those facts had
been known to Kravchuk when she filed the s econd amended complaint. And the court
concluded t hat Kravchuk was aware that she had no factual or legal entitlement to attorney fees at the time she requested them in the second amended complaint. As discussed, ante , there were substantial grounds for concluding that Kravchuk
made a number of factual allegations in her second amended complaint that were “factually frivolous (not well grounded in fact).” ( Guillemin , supra , 104 Cal.App.4th at p. 167 .) These allegations concerned (1) alleged false state ments to Kravchuk concerning
the City advising that the Property was ready to be safely occupied; (2) alleged false statements to Kravchuk that the City had issued a COO for the Property; (3) claiming that Taylor had refused to allow Kravchuk to close escr ow; and (4) a prayer for attorney fees.
Additional ly, Kravchuk’s prayer for attorney fees was “legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law).” ( Ibid. ) The trial co urt did not abuse its discretion in awarding sancti ons against Kravchuk under section 128.7 to Taylor in the amount of $8,220. (See Guillemin , supra , at p. 167

. ) 14

14 Kravchuk does not challenge on appeal the amount of the sanctions award.24 I II
. DISPOSITION
The February 2, 2021 order granting respondent Taylor Morrison of Cali fornia, LLC’s motion for sanctions under Code of Ci vil Procedure section 128.7, awarding respondent sanctions in the sum of $8,220 to be paid by appellant Mariia Kravchuk , is
affirm ed._____________________________________ B AMATTRE

- MANOUKI AN, ACTING P. J.

WE CONCUR:

____________ ______________ DANNER, J.

__________________________ WILSON , J.

Kravchuk v. Taylor Morrison H0 4 88 5 8