This case was last updated from Los Angeles County Superior Courts on 10/10/2019 at 13:08:27 (UTC).

CLEAN UP AMERICA INC VS ARROW SERVICES INC ET AL

Case Summary

On 12/09/2016 CLEAN UP AMERICA INC filed a Contract - Business lawsuit against ARROW SERVICES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3454

  • Filing Date:

    12/09/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiff, Petitioner and Respondent

CLEAN UP AMERICA INC.

Cross Defendants and Appellants

MILTON DAVID S

RANDOLPH JANET

POTTER DEONTAY

Defendants and Respondents

ARROW SERVICES INC.

TAHMIZIAN KIRK

DALEY FRANK

ROTTMANN GLENN

DOES 1-50

CLEAN UP AMERICA INC.

POTTER DEONTAY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GRONEMEIER & ASSOCIATES P.C.

HICKAMBOTTOM ELBIE JESSE JR

BURT STEVEN WAYNE

Defendant Attorney

SWAROVSKI EVGENY

Respondent Attorney

GRONEMEIER & ASSOCIATES PC

 

Court Documents

Minute Order - Minute Order (Jury Trial)

1/24/2019: Minute Order - Minute Order (Jury Trial)

Minute Order - Minute Order (Jury Trial)

1/25/2019: Minute Order - Minute Order (Jury Trial)

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL MATTER IS CALLED FOR HEARING.)

5/9/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL MATTER IS CALLED FOR HEARING.)

NOTICE OF POSTING OF JURY FEES BY ARROW SERVICES, INC

1/19/2018: NOTICE OF POSTING OF JURY FEES BY ARROW SERVICES, INC

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

1/24/2018: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

NOTICE AND EX PARTE APPLICATION FOR RELIEF OF JURY TRIAL WAIVER; MEMORANDUM OF P&A, DECLARATION OF EVGENY SWAROVSKI, PROPOSED ORDER; PROOF OF EX PARTE SERVICE

1/31/2018: NOTICE AND EX PARTE APPLICATION FOR RELIEF OF JURY TRIAL WAIVER; MEMORANDUM OF P&A, DECLARATION OF EVGENY SWAROVSKI, PROPOSED ORDER; PROOF OF EX PARTE SERVICE

JOINT STATEMENT RE: MEET-AND-CONFER RE: PLAINTIFF'S MOTION TO COMPEL PMK DEPOSITION AND DEFENDANT'S MOTION FOR RELIEF FROM JURY WAIVER

2/2/2018: JOINT STATEMENT RE: MEET-AND-CONFER RE: PLAINTIFF'S MOTION TO COMPEL PMK DEPOSITION AND DEFENDANT'S MOTION FOR RELIEF FROM JURY WAIVER

SECOND AMENDED COMPLAINT FOR INDUCING BREACH OF CONTRACT; INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; AND FOR EQUITABLE RELIEF FOR UNLAWFUL BUSINESS PRACTICES PURSUANT TO BUSINESS &

2/9/2018: SECOND AMENDED COMPLAINT FOR INDUCING BREACH OF CONTRACT; INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; AND FOR EQUITABLE RELIEF FOR UNLAWFUL BUSINESS PRACTICES PURSUANT TO BUSINESS &

NOTICE OF HEARING OF DEMURRER; DEFENDANTS' DEMURRER TO PLAINTIFF CLEAN UP AMERICA, INC'S SECOND AMENDED COMPLAINT; ETC.

2/22/2018: NOTICE OF HEARING OF DEMURRER; DEFENDANTS' DEMURRER TO PLAINTIFF CLEAN UP AMERICA, INC'S SECOND AMENDED COMPLAINT; ETC.

OPPOSITION OF PLAINTIFFLCROSSDEFENDANT CLEAN UP AMERICA INC. TO. MOTION TO STRIKE O DEFENDANTLCROSS-COM PLAINANT ARROW SERVICES, INC.

3/13/2018: OPPOSITION OF PLAINTIFFLCROSSDEFENDANT CLEAN UP AMERICA INC. TO. MOTION TO STRIKE O DEFENDANTLCROSS-COM PLAINANT ARROW SERVICES, INC.

Minute Order -

3/22/2018: Minute Order -

RULING

6/21/2018: RULING

CROSS-COMPLAINT BY ARROW DISPOSAL SERVICES,INC; ETC.

6/26/2018: CROSS-COMPLAINT BY ARROW DISPOSAL SERVICES,INC; ETC.

NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF ARROW DISPOSAL SERVICES, INC. PURSUANT TO CODE OF CIVIL PROCEDURE ?425.16; ETC.

8/14/2018: NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF ARROW DISPOSAL SERVICES, INC. PURSUANT TO CODE OF CIVIL PROCEDURE ?425.16; ETC.

Appeal - Notice of Appeal/Cross Appeal Filed - Notice of Appeal/Cross Appeal Filed

12/6/2018: Appeal - Notice of Appeal/Cross Appeal Filed - Notice of Appeal/Cross Appeal Filed

Appeal - Ntc Designating Record of Appeal APP-003/010/103

12/19/2018: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Minute Order - Minute Order (Final Status Conference)

1/17/2019: Minute Order - Minute Order (Final Status Conference)

NOTICE OF CASE MANAGEMENT CONFERENCE

2/15/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

68 More Documents Available

 

Docket Entries

  • 10/10/2019
  • Hearing10/10/2019 at 08:30 AM in Department 36 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 10/08/2019
  • DocketNotice (of appeal and bankruptcy status); Filed by Arrow Services, Inc. (Defendant)

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  • 06/24/2019
  • DocketSubstitution of Attorney; Filed by Clean Up America, Inc. (Plaintiff)

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  • 05/09/2019
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Status Conference (reAppeal) - Held - Continued

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  • 05/09/2019
  • DocketMinute Order ( (Status Conference re: Appeal Matter is called for hearing.)); Filed by Clerk

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  • 01/25/2019
  • Docketat 09:30 AM in Department 36, Gregory W. Alarcon, Presiding; Jury Trial - Held

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  • 01/25/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

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  • 01/24/2019
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Jury Trial - Held

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  • 01/24/2019
  • DocketMotion in Limine (No.1); Filed by Clean Up America, Inc. (Plaintiff); Deontay Potter (Cross-Defendant)

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  • 01/24/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

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146 More Docket Entries
  • 02/15/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/15/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/23/2016
  • DocketSummons; Filed by Clean Up America, Inc. (Plaintiff)

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  • 12/23/2016
  • DocketFirst Amended Complaint; Filed by Clean Up America, Inc. (Plaintiff)

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  • 12/23/2016
  • DocketFIRST AMENDED COMPLAINT FOR INDUCNG BREACH OF CONTRACT: ETC.

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  • 12/23/2016
  • DocketSUMMONS ON FIRST AMENDED COMPLAINT

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  • 12/12/2016
  • DocketSUMMONS

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  • 12/12/2016
  • DocketSummons; Filed by Clean Up America, Inc. (Plaintiff)

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  • 12/09/2016
  • DocketComplaint; Filed by null

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  • 12/09/2016
  • DocketCOMPLAINT FOR INDUCING BREACH OF CONTRACT AND INTENTIONAL INTERTERECE WITH PROSPECTIVE ECONOMIC ADVANTAGE

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Tentative Rulings

Case Number: BC643454    Hearing Date: December 07, 2020    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

CLEAN UP AMERICA, INC., a California corporation,

Plaintiff,

v.

ARROW DISPOSAL SERVICES, INC., et al.,

Defendants.

Case No.: BC643454

Hearing Date: 12/7/2020

[TENTATIVE] RULING RE:

Cross-Defendants’ Motion for Summary Judgment on Cross-Complaint

ARROW DISPOSAL SERVICES, INC.,

Cross-Complainant,

v.

CLEAN UP AMERICA, INC., et al.,

Cross-Defendants.

Cross-Defendants Janet Randolph and Hon. Judge Milton’s Motion for Summary Judgment is granted.

 

Background

At the prior hearing on November 18, 2020, with reference to the court’s tentative ruling to place the summary judgment motion off calendar as moot, Moving Cross-Defendants Judge Milton and Janet Randolph contended that the motion was not moot, relying on Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253.

Moving Cross-Defendants’ point is well taken under Cravens, which holds that “a plaintiff may not frustrate the summary judgment statute by interposing a voluntary dismissal without prejudice in lieu of opposition to a defendant's motion.” (Id. at 255.) “The plaintiff who waits until a motion for summary judgment has been filed, and the time for opposition has passed, to attempt to dismiss his or her complaint, is subject to the trial court's continuing jurisdiction to hear and rule on the pending motion.” (Id.) Moving Defendants filed this summary judgment motion on August 5, 2020 with an original noticed hearing date of October 8, 2020. On October 6, 2020, Arrow Services, Inc. filed a Notice of Non-Opposition with reference to the dismissal of Moving Cross-Defendants on August 3, 2020. On October 7, 2020, the court rescheduled the motion to November 18, 2020. As of October 6, 2020 the time for opposition had passed and no opposition has been filed for the continued date. Based on the foregoing, the court proceeds to address the merits of Moving Cross-Defendants’ Motion for Summary Judgment.

Separate Statement

Code of Civil Procedure section 437c, subdivision (b)(1) provides that a motion for summary judgment or summary adjudication:

shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.

(CCP § 437c(b)(1); see also Cal. Rules of Court, Rule 3.1350(c) (“the motion must contain and be supported by the following documents: . . . (2) Separate statement of undisputed material facts in support of [moving party's] motion for summary judgment or summary adjudication or both . . . .”).) A separate statement must follow content requirements in California Rules of Court, Rule 3.1350(d) and format requirements provided in California Rules of Court, Rule 3.1350(h).

Moving Cross-Defendants have filed a separate statement satisfying the requirements of CCP section 437c(b)(1) with reference to supporting evidence.

Legal Standard

reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The court considers all of the evidence and all inferences reasonably drawn therefrom (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar)); views such evidence in the light most favorable to the opposing party; and accepts all inferences reasonably drawn therefrom. (Id.; see Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”).)

A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (CCP § 437c, subd. (p)(2).) Supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilarsupra, at 855.) 

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (CCP § 437c(o)(2).) To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at 849.)

A motion for summary judgment is granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c).) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475; Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 384.)

 

Discussion

Moving Cross-Defendants Judge David Milton and Janet Randolph move for summary judgment on the cross-complaint filed against them by Cross-Complainant Arrow Disposal Services, Inc. (“Arrow”) on June 26, 2018.

Moving Cross-Defendants assert, first, that there is no triable issue of material fact that the Arrow Cross-Complaint does not allege facts constituting a cause of action against them, because the law of the case is that the Arrow Cross-Complaint does not allege facts constituting a cause of action against them; this court’s ruling on Cross-Defendants’ anti-SLAPP motion denied the motion on grounds the allegations were only incidental or collateral not constituting a cause of action, which was affirmed by the Court of Appeal; and Arrow has stated in its anti-SLAPP opposition that the allegations in paragraph 1 were “dictum”.

Moving Cross-Defendants assert, second, that the allegations lack merit against each Moving Cross-Defendant. Last, Moving Cross-Defendant assert that there is no triable issue of material fact that the Arrow Cross-Complaint alleges conduct that, even if it were true, would be privileged litigation conduct.

The Cross-Complaint alleges against Judge Milton and Ms. Randolph:

Since the end of 2016 [Clean Up America, Inc.’s] sole purpose of existence is to file frivolous lawsuits against various legitimate business in by filing shakedown lawsuits with the purpose of extorting settlements. Cross-Defendants DEONTAY DAYMONT POTTER, JOY SHAUN POTTER, DAVID S MILTON, JANET RANDOLPH . . . are individuals residing on information and belief in Los Angeles County, California. THE INDIVIDUAL CROSS DEFENDANTS played various roles in the shakedown scheme: the Potters operated CUA, DAVID S MILTON financed the operation when it ran out of cash and JANET RANDOLH provided services free of charge when CUA experienced financial difficulties.

(Arrow Cross-Compl. ¶ 1.) Each cause of action in the Arrow Cross-Complaint is alleged against all defendants: (1) Unlawful Business Practices (Bus. & Prof. Code, § 17200), (2) Unfair Business Practices (Bus. & Prof. Code, § 17200), (3) Interference with Existing and Prospective Economic Relationship, and (4) Equitable Relief Under The Unfair Competition Law (Bus. & Prof. Code, § 17200).

This court in denying Moving Cross-Defendants’ anti-SLAPP motion found that the allegations in the Arrow Cross-Complaint paragraph 1 was “not the basis of any of the causes of action, focused instead upon unlawful practices in conducting business, including saving money by illegal dumping, and stealing customers.” (Ruling (Sep. 19, 2018), at p. 1.)

The Court of Appeal affirmed this court’s denial of the anti-SLAPP motion, and stated with respect to that motion:

We agree with the trial court that none of Arrow’s cross claims “arose from” the allegations involving the “shakedown lawsuits,” which are the only allegations that Milton and Randolph assert constitute “protected activity.” . . . Instead, each of Arrow’s cross-claims was explicitly based upon Clean UP’s alleged misconduct of illegal dumping and lying to Arrow’s customers. . . .

Lastly, Milton and Randolph lament that it is “absurd” to force them to remain in the lawsuit when “there purportedly is no cause of action against them” because none of Arrow’s cross- claims is based upon their conduct. We agree. However, the question before us is whether the anti-SLAPP law is the proper procedural device for dismissing them from Arrow’s cross- complaint. For the reasons noted above, it is not. Whether other devices—such as a demurrer, motion to strike, motion for judgment on the pleadings or motion for summary judgment—are appropriate or, at this stage, timely, is beyond the scope of this appeal.

(Hickambottom Decl. ¶ 4, Exh. 1.)

Summary Judgment

The court finds Moving Cross-Defendants are entitled to summary judgment on the causes of action alleged against them on the Arrow Cross-Complaint.

As to Judge Milton, Moving Cross-Defendants have offered evidence that Judge Milton has not funded lawsuits involving Clean-Up America, Inc., Deontay Potter, and/or Joy Potter; the only item of value given to Clean-Up America, Inc., Deontay Potter, or Joy Potter, was legal advice and brief representation. (UMF 6; Milton Decl. ¶ 4.) In anticipation of arguments based on Arrow’s Opposition to Moving Defendants’ anti-SLAPP motion that explain the allegation against Ms. Randolph, Deontay Potter attests that he did not testify in bankruptcy proceeding that Judge Milton gave Clean Up America, Inc. any funding, but referred to “in-laws” giving funding, which was in reference to a different in-law, not Judge Milton. (Deontay Potter Decl. ¶ 3.) This shakedown allegation is the only allegation made specifically against Judge Milton. In addition, as noted by this court and the Court of Appeal, the shakedown allegations are not called out for any of the causes of action alleged in the Arrow Cross-Complaint. Moving Defendants meet the initial burden on summary judgment to negate Arrow’s claims against Judge Milton.

As to Ms. Randolph, Moving Cross-Defendants have offered evidence that Ms. Randolph worked as a paid consultant for Clean Up America, Inc. and did not voluntarily provide services free of charge, but rather stopped working for Clean Up America, Inc. in December 2016 because the company was ceasing operations and was behind in paying her, and hopes to obtain owed payment for her services. (UMF 8; Randolph Decl. ¶¶ 3-4.) Deontay Potter attests that Ms. Randolph was paid for her work until Clean Up America, Inc. ran out of money and owes her approximately $3,200 for her services. (Deontay Potter Decl. ¶ 4.) Next, in anticipation of arguments based on Arrow’s Opposition to Moving Defendants’ anti-SLAPP motion that explain the allegation against Ms. Randolph, Moving Defendants have offered evidence that Ms. Randolph is not a partner and has no equity interest in Clean Up America, Inc. and was not a management employee of Clean Up America, Inc. (UMF 9; Randolph Decl. ¶¶ 3, 6; Deontay Potter Decl. ¶ 3.) Last, Moving Defendants have offered evidence that Ms. Randolph did not prepare a Public Records Act request in September 26, 2017, and was not working for Clean Up America, Inc. after December 2016. (UMF 10; Randolph Decl. ¶ 5.) This shakedown allegation is the only allegation made specifically against Ms. Randolph. In addition, as with the allegations against Judge Milton, as noted by this court and the Court of Appeal, the shakedown allegations are not called out for any of the causes of action alleged in the Arrow Cross-Complaint. Moving Defendants meet the initial burden on summary judgment to negate Arrow’s claims against Ms. Randolph.

There is no opposition to the motion for summary judgment. Arrow filed a Notice of Non-Opposition on October 6, 2020, and had previously dismissed Moving Cross-Defendants from the Arrow Cross-Complaint on August 3, 2020.

Accordingly, Moving Cross-Complainants’ Motion for Summary Judgment is GRANTED.

 

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC643454    Hearing Date: November 18, 2020    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

CLEAN UP AMERICA, INC., a California corporation,

Plaintiff,

v.

ARROW DISPOSAL SERVICES, INC., et al.,

Defendants.

Case No.: BC643454

Hearing Date: 11/18/2020

[TENTATIVE] RULINGS RE:

Cross-Defendants’ Motion for Summary Judgment

ARROW DISPOSAL SERVICES, INC.,

Cross-Complainant,

v.

CLEAN UP AMERICA, INC., et al.,

Cross-Defendants.

Cross-Defendants Janet Randolph and Hon. Judge Milton’s Motion for Summary Judgment is placed off calendar.

Discussion

On July 6, 2020, this court placed off calendar a prior motion for summary judgment filed by Cross-Defendants Janet Randolph and Hon. Judge David S. Milton (“Moving Cross-Defendants”), without prejudice to Moving Cross-Defendants filing a renewed summary judgment motion without the deficiencies present in the prior-filed summary judgment motion.

Moving Cross-Defendants now again move for summary judgment on all causes of action alleged in the Cross-Complaint against them.

The cross-complaint filed June 28, 2018 by Arrow Disposal Services, Inc., alleged four cases of action against Cross-Defendants Clean Up America, Inc.; Deontay Daymont Potter; Joy Shaun Potter; Janet Randolph; and Hon. Judge Milton.

On August 3, 2020, Cross-Complainant Arrow Services, Inc. dismissed Moving Cross-Defendants Randolph and Milton from all causes of action alleged in the Cross-Complaint. Dismissal was entered the same day. On October 6, 2020, Cross-Complainant Arrow Services, Inc. filed a Notice of Non-Opposition to Summary Judgment on grounds of having dismissed Moving Cross-Defendants from the Complaint.

Accordingly, Moving Cross-Defendants’ motion for summary judgment has been rendered moot by the dismissal of Moving Cross-Defendants from the Cross-Complaint. (See Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808 (“A question may be deemed moot when, although it initially presented an existing controversy, the passage of time or the acts of the parties or a court decision have deprived the controversy of its life.”).)

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC643454    Hearing Date: July 06, 2020    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

CLEAN UP AMERICA, INC., a California corporation,

Plaintiff,

v.

ARROW DISPOSAL SERVICES, INC., et al.,

Defendants.

Case No.: BC643454

Hearing Date: 7/6/2020

[TENTATIVE] RULINGS RE:

Cross-Defendants’ Motion for Summary Judgment; Cross-Complainant’s Request to Set an OSC Re: Contempt; Cross-Defendants’ Request for Retroactive Presentation and Certification; Cross-Complainant’s Motion for Sanctions; Cross-Defendants’ Motion for Sanctions.

ARROW DISPOSAL SERVICES, INC.,

Cross-Complainant,

v.

CLEAN UP AMERICA, INC., et al.,

Cross-Defendants.

Cross-Defendants Janet Randolph and Hon. Judge Milton’s Motion for Summary Judgment is placed off calendar.

Cross-Complainant Arrow Services, Inc.’s Request to Set an OSC Re: Contempt is denied.

Cross-Defendants Janet Randolph and Hon. Judge Milton’s Request for Retroactive Presentation and Certification of MSJ Papers is deemed moot.

Cross-Complainant Arrow Services, Inc.’s Motion for 128.7 Sanctions is denied.

Cross-Defendants Janet Randolph and Hon. Judge Milton’s Motion for 128.7 Sanctions is denied.

Background

The motions herein concerned relate to Defendant/Cross-Complainant Arrow Services, Inc.’s (“Arrow”) filing of a Cross-Complaint in this matter against Plaintiff/Cross-Defendant Clean Up America, Inc. (“Clean Up”); Clean Up’s two owners, Deontay Daymont Potter; and Joy Shaun Potter; Hon. Judge David S. Milton (“Judge Milton”); and Janet Randolph (“Randolph”).

Following this court’s denial of Cross-Defendants’ Special Motion to Strike on September 19, 2018, Cross-Defendants appealed. The Court of Appeal of the State of California, Second Appellate District affirmed on December 27, 2019.

On January 7, 2020, Cross-Defendants Milton and Randolph filed a Motion for Summary Judgment, primarily on grounds that the Court of Appeal had settled the applicable law of the case in their favor. Cross-Complainant Arrow opposed on March 13, 2020 on grounds of the unauthorized practice of law by Cross-Defendants’ counsel Mr. Hickambottom and the law firm for Cross-Defendants at the time of filing of the motion, and contending that granting or hearing the motion on its merits would be error. (See Opp. to MSJ, at pp. 2-4.) Arrow requested monetary sanctions. (See Opp. to MSJ, at pp. 4-5.)

On February 11, 2020, Cross-Defendants Milton and Randolph moved for Section 128.7 sanctions against counsel for Arrow, on grounds the Cross-Complaint was presented for improper purposes, that its claims are unwarranted law or a nonfrivolous argument for its extension; and that the claims lack evidentiary support. (See Cross-Defendants’ Mot. for Sanctions, at pp. 2-3.)

A flurry of filings have followed.

First, on March 5, 2020, Cross-Complainant Arrow moved the court to set an Order to Show Cause hearing for Contempt and requested monetary sanctions against Cross-Defendants’ counsel, on the same grounds as its Opposition to Summary Judgment, the unauthorized practice of law by Cross-Defendants’ counsel Mr. Hickambottom and the law firm for Cross-Defendants at the time of filing of the Motion for Summary Judgment, as well as subsequent refusal to withdraw the Motion. (See Cross-Complainant’s Motion for OSC Re Contempt, at p. 2.) Cross-Defendants Milton and Randolph opposed on March 18, 2020, primarily on grounds that Cross-Complainant sought to exploit a collateral matter, and that Arrow does not have standing to exploit the unauthorized practice of law. (See Opp. to Mot. for OSC Re: Contempt at pp. 2-5.)

Next, on March 18, 2020, Cross-Defendants Milton and Randolph filed a “Notice of Retroactive Presentation” requesting acceptance of retroactive presentation and certification of the papers filed in support of the Motion for Summary Judgment, by Dale Gronemeier instead of Mr. Hickambottom. (See Retroactive Presentation and Certification of MSJ Papers by Dale L. Gronemeier, at pp. 2-3.)

Last, on March 26, 2020, Cross-Complainant moved for Section 128.7 sanctions, requesting the court strike the Motion for Summary Judgment and Cross-Defendants’ Motion for Sanctions and issue a reprimand and impose monetary sanctions against Cross-Defendants’ attorneys. (Cross-Complainant Arrow’s Mot. for Sanctions, at p. 2.) Cross-Defendants Milton and Randolph opposed on April 8, 2020, on grounds that Cross-Complainant Arrow’s motion for sanctions is an attempt to exploit a collateral matter of the unauthorized practice of law, and that the motion is frivolous. (See Opp. to Cross-Complainant’s Mot. for Sanctions, at pp. 2-10.)

I. Motion for Summary Judgment

Notice

As an initial matter, Cross-Defendants Milton and Randolph have not filed proof of service of the motion for summary judgment, separate statement, or Cross-Defendants’ evidence in support. As such, the court is unable to verify proper notice. (See CCP § 437c(a).) In light that Cross-Complainants have filed an opposition, and in an effort to manage the proceedings in this action, the court proceeds to address the motion.

Motion

Cross-Defendants Milton and Randolph move for summary judgment in part on grounds that the Court of Appeal has settled the applicable law of the case in their favor, as the allegations against Cross-Defendants Milton and Randolph concern only a purported scheme of shakedown lawsuits, and those contentions have not been alleged as causing Arrow’s injury, and as such are incidental and collateral allegations; thus no cause of action is asserted against Cross-Defendants Milton and Randolph. Cross-Defendants Milton and Randolph also moves for summary judgment that there are no triable issues of material fact against either Cross-Defendants as the factual allegations against each lack merit. Last, Cross-Defendants move for summary judgment on grounds of litigation privilege under Civil Code Section 47(2).

Cross-Complainant opposes not on substantive grounds but rather on grounds that granting or hearing the motion on its merits would be error, due to unauthorized practice of law by counsel and the law firm for Cross-Defendants at the time of filing of the motion. Cross-Complainant asserts the Motion was filed by counsel Elbie Hickambottom, Jr. who was ineligible to practice law from December 3, 2019 through January 21, 2020, who also participated in a meet and confer process. Cross-Complainant also asserts Gronemeier and Associates, P.C. has practiced law without filing a Certificate of Standing with the California State Bar from 1997 to present. Last, Cross-Complainant asserts both Mr. Hickambottom and Mr. Gronemeier, as well as Defendant Milton, were presented with evidence of each of the foregoing, but did not dismiss the Motion for Summary Judgment.

Cross-Defendants do not dispute the unauthorized practice of law by Mr. Hickambottom by signing the papers in support of the Motion for Summary Judgment, and Mr. Gronemeier for failing to register Gronemeier and Associates, P.C. with the State Bar. (E.g., Opp. to OSC Re: Contempt, Gronemeier Decl. ¶¶ 4-9, Hickambottom Jr. Decl. ¶¶ 4-6.)

“[C]ourts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.] ‘In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.’” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, as modified on denial of reh'g (Oct. 22, 1997); see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-78, modified (Mar. 20, 1992).) “The Legislature has also recognized the authority of courts to manage their proceedings and to adopt suitable methods of practice. (See Code Civ. Proc., §§ 128, 187.)” (Id.)

The court is faced with an issue of the management of proceedings, in light of the several motions following Cross-Defendants’ Motion for Summary Judgment. The court is aware that counsel for Cross-Defendants have now self-reported the issues of unauthorized practice to the State Bar. (E.g., Opp. to OSC Re: Contempt, Gronemeier Decl. ¶¶ 5-8, Hickambottom Jr. Decl. ¶¶ 4-7.)

Based on the foregoing, Cross-Defendants Milton and Randolph’s Motion for Summary Judgment is placed off calendar, without prejudice to Cross-Defendants. Cross-Defendants may file a renewed Motion for Summary Judgment without the foregoing deficiencies and with new hearing dates.

Sanctions

The court declines to issue sanctions against Cross-Defendants, as requested by Cross-Complainant, on grounds that the Declarations in support of Cross-Defendants’ Motion were “presented in bad faith or solely for the purpose of delay.” (See CCP § 437c(j).) Counsel for Cross-Defendants have filed Declarations attesting that errors in unauthorized practice made by Mr. Gronemeier and Mr. Hickambottom were inadvertent, and the motion itself is based in large part upon the ruling from the Court of Appeal. (See Opp. to OSC Re: Contempt, Gronemeier Decl. ¶¶ 4-9, Hickambottom Jr. Decl. ¶¶ 4-6.)

II. Cross-Defendants’ Request for Retroactive Presentation and Certification

As Cross-Defendants’ Motion for Summary Judgment is taken off calendar without prejudice, with Cross-Defendants permitted to file a renewed motion without the foregoing deficiencies, Cross-Defendants’ request for retroactive presentation of its Motion for Summary Judgment and associated papers is moot.

III. Cross-Complainant’s Request for an OSC Re: Contempt

Cross-Complainant moves the court to set an Order to Show Cause Re: Contempt on grounds of counsel for Cross-Defendants’ unauthorized practice of law, and on grounds that, when given evidence of unauthorized practice, Cross-Defendants did not withdraw the Motion.

The court has the power to punish for contempt. (CCP § 178.) When a contempt is not committed in the immediate view and presence of the court, an affidavit shall be presented to the court of the facts constituting the contempt. (CCP § 1211.) “After notice to the opposing party's lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth.” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286, as modified on denial of reh'g (Oct. 24, 2000).)

Here, Cross-Complainant has provided the court a Declaration in support of its request for the court to set an OSC Re: Contempt. Cross-Complainant’s counsel attests that Gronemeier and Associates, P.C. was formed in 1997 and has failed to obtain or renew a certificate of registration with the State Bar of California (Swarovski Decl. ¶ 2); Mr. Hickambottom conducted a meet and confer conference, prepared, filed and presented to the court MSJ and related papers while not licensed to practice law (Id. ¶ 3); and during the deposition in another case of Judge Milton, counsel presented evidence of inactive status and lack of certificate of registration, and each refused to withdraw the Motion for Summary Judgment (Id. ¶ 4.)

Initially, the court notes that Judge Milton is not an attorney of record in this matter, but rather a Cross-Defendant on Arrow’s Cross-Complaint filed on June 26, 2018, and Cross-Complainant does not assert that Judge Milton has committed a false statement under penalty of perjury before the court. Accordingly, the motion for contempt against Judge Milton appears to be for refusal to withdraw a Motion for Summary Judgment, while being deposed in another case. Cross-Complainant has not provided legal authority to the court to find such act sufficient for contempt.

In relation to Mr. Gronemeier and Mr. Hickambottom, the court finds Arrow has not provided legal authority showing the instant circumstances are sufficient to constitute contempt; the authorities listed on pages 3-4 of its Motion support that the practice of law encompasses counsel’s actions, but not that those actions are sufficient for contempt.

In addition, no evidence before the court indicates that counsel’s errors were intentional; counsel’s declarations instead attest the errors were inadvertent. (See Gronemeier Decl. ¶ 4; Hickambottom Decl. ¶ 6.) In contempt proceedings, “[a]n intent to commit the forbidden act is as essential to guilt as in the case of a criminal offense.” (Application of Burns (1958) 161 Cal.App.2d 137, 142.) Without providing the specific legal basis to show contempt, Cross-Complainant fails to show that the instant circumstances suffice to show either sufficient intentional conduct for contempt or the legal sufficiency of the allegedly inadvertent conduct for contempt. Further, no evidence before the court indicates that the errors have impacted the matter in a meaningful way.

Based on the foregoing, the court declines to set an Order to Show Cause re: Contempt.

IV. Cross-Defendants’ Motion for Section 128.7 Sanctions

The purpose of sanctions under Code of Civil Procedure Section 128.7 is to deter filing abuses, not compensate those affected by them, such that the abusing party is sufficiently deterred from repetition of the sanctionable conduct, or comparable conduct by others similarly situated. (CCP § 128.7(d); Musaelian v. Adams (2009) 45 Cal.4th 512, 519.)

Code of Civil Procedure, section 1010, requires that a notice of a motion state when it will be made. (CCP § 1010.) The safe harbor provision in section 128.7 requires a 21-day prior service requirement for the offending party to correct any error. The two-step process requires the moving party first serve the sanctions motion on the offending party without filing it. (See CCP § 128.7(c); Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698-99.) The opposing party then has 21 days to withdraw or correct the improper pleading and avoid sanctions. (Id.) At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (Id.)

Cross-Defendants have not provided compliance with the 21-day safe harbor provision required by CCP Section 128.7.

Cross-Plaintiffs provide the pre-filed motion dated and served on January 15, 2020. (Opp., Swarovsky Decl. ¶ 2, Exh. 2.) The motion states that it would be filed “unless, within 21 days of the service of this motion,” the cross-complaint was dismissed against Milton and Randolph. (Opp., Swarovsky Decl. ¶ 2, Exh. 2, at p. 2 (Notice of Motion).) There is no reservation ID and the hearing date is listed as April 1, 2020. (Id. at p. 1.)

Counsel for Cross-Defendants states the pre-filed motion specified an April 1, 2020 date, but when that date was unavailable, the filed motion gave notice of the April 21, 2020 date. (Reply, at p. 3.) There is no indication of the date on which the motion would be filed. (See Opp. at p. 2.)

The failure to provide the date on which the motion would be filed provides grounds for denial, when no hearing date is provided. (See Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 (failure to provide future date of filing CCP § 128.7 motion, along with failure to specify the motion’s hearing date, rendered motion fatally defective for failure to comply with notice requirements).) Here, the pre-filed motion specified an April 1, 2020 hearing date, but as noted by Counsel for Cross-Defendants, that date was not available. In addition, the pre-filed motion does not state the date the motion was filed. Accordingly, the pre-filed motion does not satisfy the notice requirements of the safe harbor provision.

The motion then filed in this court on February 11, 2020 states that the motion would be brought on April 1, 2020 if Cross-Complainant did not withdraw its cross-complaint against Milton and Randolph; while also listing the hearing date as April 21, 2020. (Compare Mot at p. 2 with Mot. at p. 1.) The notice states the motion would be brought in 21 days if Cross-Complainant did not withdraw its cross-complaint against Milton and Randolph; but the Motion is filed concurrently therewith, and both the Motion and Notice are dated the same date. The proof of service shows service of both by email on February 11, 2020, the same date as filing with the court. As such, the filed motion as filed does not comply with the safe harbor provision.

Based on the foregoing, Cross-Defendants Milton and Randolph’s Motion for Section 128.7 Sanctions is denied.

The court may award to the party prevailing on the sanctions motion its reasonable expenses and attorney fees for presenting or opposing the motion. (CCP § 128.7(c)(1).) Cross-Complainant requests $1,400.00 in attorney’s fees for opposing the instant motion. The court finds such award not warranted in the present circumstances and declines to award attorney’s fees.

V. Cross-Complainant’s Motion for Section 128.7 Sanctions

Procedure

As noted above, the safe harbor provision in section 128.7 requires a 21-day prior service requirement for the offending party to correct any error. The two-step process requires the moving party first serve the sanctions motion on the offending party without filing it. (See CCP § 128.7(c); Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698-99.) The opposing party then has 21 days to withdraw or correct the improper pleading and avoid sanctions. (Id.) At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (Id.)

Cross-Complainant’s motion includes proof of service showing service by facsimile and email on March 4, 2020, and that Cross-Complainant filed the motion with the court on March 26, 2020.

Cross-Defendants oppose in part that Cross-Defendants took appropriate curative steps to attempt to correct the issue by filing the request for retroactive presentation of the papers in support of summary judgment. (Opposition, pp. 8-9.) Cross-Complainant’s motion was filed on March 4, 2020, and the request for retroactive presentation was filed on March 18, 2020, within the 21-day window. Whether these were appropriate curative steps is in dispute. In light of the foregoing, the court proceeds to address the merits of Cross-Complainant’s motion.

Evidentiary Objections

Cross-Defendants’ Opposition contains, on page 12, an embedded objection to evidence included in the Declaration of Evgeny Swarovski attached to Cross-Complainant’s motion. Such objection should be provided in a separate document. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:102.6; Younger & Bradley, Younger on California Motions (2019 ed.) § 2:51.) Both objections are overruled.

Motion

Under Code of Civil Procedure Section 128.7, “a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) “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.”’ (Id. [quoting Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167].) To obtain sanctions, a moving party must show the opposing party's conduct in bringing the claim was “objectively unreasonable,” meaning that “‘any reasonable attorney would agree that [it] is totally and completely without merit.”’ (Peake, 227 Cal.App.4th at 440 [quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650].)

Cross-Complainant seeks an order striking Cross-Defendants’ Motion for Summary Judgment and Motion for Sanctions, issuing a reprimand, and imposing monetary sanctions against Mssrs. Gronemeier, Hickambottom, and Milton, on the same grounds as its opposition to the Motion for Summary Judgment. (See

Cross-Complainant specifically alleges that the filing of the Motion for Summary Judgment and associated papers were done for the improper purpose of harassment and to increase the cost of litigation. Cross-Complainant asserts without citation that the filing of papers while Mr. Hickambottom and Gronemeier and Associates, P.C. did not have the right to practice law a priori were presented to the court for an improper purpose, “such as to harass or to cause unnecessary delay or needless increase in the cost of litigation and the claims.” (Mot., at p. 5.) Cross-Complainant has not provided legal authority for this proposition, and further has not specified for what improper purpose in particular the filings were brought. (See id.) Cross-Complainant also asserts without citation and without argumentation that both motions were objectively frivolous. (See id. at pp. 5-6.)

Furthermore, the court agrees that Arrow’s motion is flawed, in light of the purpose of Section 128.7 sanctions as a remedy to deter filing abuses, not compensate those affected by them. (CCP § 128.7(d); Musaelian v. Adams (2009) 45 Cal.4th 512, 519.) Counsel for Cross-Defendants have filed Declarations attesting that errors in unauthorized practice made by Mr. Gronemeier and Mr. Hickambottom were inadvertent, and that counsel have self-reported such issues to the State Bar. (Gronemeier Decl. ¶¶ 4-7; Hickambottom Decl. ¶¶ 6-7.)

Based on the foregoing, Cross-Complainant’s Motion for Section 128.7 Sanctions is denied.

Attorney’s Fees

The court may award to the party prevailing on the sanctions motion its reasonable expenses and attorney fees for presenting or opposing the motion. (CCP § 128.7(c)(1).) Cross-Complainant requests $7,860 in attorney’s fees for opposing the instant motion. The court finds such award not warranted in the present circumstances and declines to award attorney’s fees.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

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