This case was last updated from Los Angeles County Superior Courts on 12/21/2016 at 11:21:34 (UTC).

SHAHROUZ JAHANSHAHI VS RODNEY T LEWIN

Case Summary

On 12/20/2016 SHAHROUZ JAHANSHAHI filed a Contract - Other Contract lawsuit against RODNEY T LEWIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4230

  • Filing Date:

    12/20/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

JAHANSHAHI SHAHROUZ

Defendants and Respondents

DOES 1-4

LEWIN RODNEY T

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

JAHANSHAHI SHAHROUZ

 

Court Documents

NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF RODNEY T. LEWIN IN SUPPORT THEREOF

3/1/2017: NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF RODNEY T. LEWIN IN SUPPORT THEREOF

DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT AND DEMURRER TO COMPLAINT

3/1/2017: DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT AND DEMURRER TO COMPLAINT

NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

3/1/2017: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

PROOF OF SERVICE?CIVIL

3/27/2017: PROOF OF SERVICE?CIVIL

Unknown

4/5/2017: Unknown

OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF?S COMPLAINT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

4/12/2017: OPPOSITION TO DEFENDANT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF?S COMPLAINT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

FIRST AMENDED VERIFIED COMPLAINT FOR: 1. BREACH OF CONTRACT, ETC

6/6/2017: FIRST AMENDED VERIFIED COMPLAINT FOR: 1. BREACH OF CONTRACT, ETC

Proof of Service

6/14/2017: Proof of Service

Minute Order

6/21/2017: Minute Order

Minute Order

7/24/2017: Minute Order

NOTICE OF CONTINUED HEARING ON DEMURRER AND MOTION TO STRIKE RE PLAINTIFF'S FIRST AMENDED COMPLAINT

8/2/2017: NOTICE OF CONTINUED HEARING ON DEMURRER AND MOTION TO STRIKE RE PLAINTIFF'S FIRST AMENDED COMPLAINT

OPPOSITION TO DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; ETC.

8/10/2017: OPPOSITION TO DEFENDANT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; ETC.

REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND SUPPLEMENTAL DECLARATION OF ALLYSON P. WITTNER

8/16/2017: REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND SUPPLEMENTAL DECLARATION OF ALLYSON P. WITTNER

Minute Order

8/23/2017: Minute Order

Unknown

10/11/2017: Unknown

NOTICE OF INTENT TO APPEAR BY TELEPHONE

10/23/2017: NOTICE OF INTENT TO APPEAR BY TELEPHONE

ORDER ON DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

11/16/2017: ORDER ON DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

NOTICE OF ISSUANCE OF MINUTE ORDER RE JUDGMENT AND ORDER ON DEMURRER AGAINST PLAINTIFF SHARHOUZ JAHANSHAHI

11/28/2017: NOTICE OF ISSUANCE OF MINUTE ORDER RE JUDGMENT AND ORDER ON DEMURRER AGAINST PLAINTIFF SHARHOUZ JAHANSHAHI

58 More Documents Available

 

Docket Entries

  • 12/20/2016
  • Complaint

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Tentative Rulings

Case Number: BC644230    Hearing Date: September 01, 2020    Dept: 25

HEARING DATE: Tue., September 1, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Jahanshahi v. Lewin COMP. FILED: 12-20-16

CASE NUMBER: BC644230 DISC. C/O: 08-31-20

NOTICE: NO (Mot. for Reconsideration) MOTION C/O: 09-15-20

TRIAL DATE: 09-30-20

PROCEEDINGS: (1) MOTION FOR RECONSIDERATION

(2) MOTION TO QUASH DEPOSITION SUBPOENA DEUCES TECUM AND REQUEST FOR SANCTIONS

(3) MOTION TO DISQUALIFY COUNSEL

MOVING PARTY: Plaintiff/Cross-Defendant Shahrouz Jahanshahi, in pro per

RESP. PARTY: Defendant/Cross-Complainant Rodney Lewin

MOTION FOR RECONSIDERATION

(CCP § 1008)

MOTION TO QUASH SUBPOENA

(CCP § 1987.1)

MOTION TO DISQUALIFY COUNSEL

(CCP § 128)

TENTATIVE RULING:

Cross-Defendant Shahrouz Jahanshahi's (1) Motion for Reconsideration of the December 10, 2019 Order is GRANTED as to the Motion for Sanctions only. After reconsidering Cross-Defendant’s Motion for Sanctions, it is DENIED for failure to serve Cross-Complainant with the Motion at least 21 days before filing with the Court as required by Code of Civil Procedure section 128.5 and 128.7.

In addition, Cross-Defendant’s (2) Motion to Quash Deposition Subpoena is DENIED. However, Cross-Complainant’s request for an award of reasonable expenses and attorney’s fees is GRANTED in the amount of $1,185.00 to be paid within thirty (30) days of notice of this order.

Finally, Cross-Defendant’s (3) Motion to Disqualify Counsel is DENIED.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO (Reconsideration)

[ ] Correct Address (CCP §§ 1013, 1013a) NO (Reconsideration)

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO (Reconsideration)

Motion for Reconsideration

OPPOSITION: Filed on June 25, 2020 [ ] Late [ ] None

REPLY: Filed on June 30, 2020 [ ] Late [ ] None

Motion to Quash Subpoena

OPPOSITION: Filed on May 20, 2020 [ ] Late [ ] None

REPLY: Filed on May 26, 2020 [ ] Late [ ] None

Motion to Disqualify Counsel

OPPOSITION: Filed on June 25, 2020 [ ] Late [ ] None

REPLY: Filed on June 30, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On December 20, 2016, Plaintiff/Cross-Defendant Shahrouz Jahanshahi (“Cross-Defendant”), filed an action, in pro per, for breach of contract, common counts, fraud, general negligence, and intentional tort against Defendant/Cross-Complainant Rodney Lewin (“Cross-Complainant”). The Complaint arose from Cross-Complainant’s representation of Cross-Defendant in an action against West Wing Grand Plaza (“West Wing”), a homeowner’s association. (See Compl., generally.) On March 1, 2017, Cross-Complainant filed a Cross-Complaint against Cross-Defendant seeking to recover $10,273.15 in attorney’s fees from Cross-Defendant. (Cross-Compl., ¶ 12.) On June 6, 2017, Cross-Defendant filed a First Amended Complaint (the “FAC”) for breach of contract, breach of the covenant of good faith and fair dealing, common counts, breach of fiduciary duty, legal malpractice, and ethical violations, intentional and/or negligent infliction of emotional distress, accounting, negligent misrepresentation, and fraudulent representation.

On October 25, 2017, Judge Bowick in Department 19 at the Stanley Mosk Courthouse sustained Cross-Complainant’s Demurrer to the FAC without leave to amend. (10/25/17 Minute Order.) On November 16, 2017, Cross-Defendant’s FAC was dismissed with prejudice. (11/16/17 Judgment.) On August 15, 2018, the Court granted Cross-Complainant’s motion to reclassify the case from unlimited to limited jurisdiction. (8/15/18 Minute Order.)

Cross-Defendant filed the instant Motion to Quash Deposition Subpoena Deuces Tecum and Request for Sanctions (the “Motion to Quash”) on December 2, 2019. On May 20, 2020, Cross-Complainant filed an Opposition and on May 26, 2020, Cross-Defendant filed a Reply.

On December 10, 2019, the Court granted Cross-Complainant’s motion for summary adjudication as to the first cause of action for breach of contract, finding Cross-Complainant was entitled to damages in the amount of $10,273.15, plus $4,057.87 in prejudgment interest. (12/10/19 Minute Order.) Summary adjudication as to the second, third, and fourth causes of action was denied. (Id.) The Court also denied Cross-Defendant’s request for sanctions. (Id.) On December 27, 2019, Cross-Defendant filed the instant Motion for Reconsideration of that order. On June 25, 2020, Cross-Complainant filed an Opposition to the Motion for Reconsideration, and on June 30, 2020, Cross-Defendant filed a Reply.

Finally, on June 11, 2020, Cross-Defendant filed a Motion to Disqualify Counsel (the “Motion to Disqualify”). Cross-Complainant filed an Opposition on June 25, 2020, and Cross-Defendant filed a Reply on June 30, 2020.

  1. Motion for Reconsideration

A. Request for Judicial Notice

Cross-Defendant requests that the Court take judicial notice of the Supreme Court of California’s Statement of Equality and Inclusion dated June 11, 2020. (7/28/20 Request for Judicial Notice.) However, it is unclear what relevance this statement has on the instant Motion for Reconsideration. Only relevant matters are judicially noticeable. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 (citing Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds).) Thus, Cross-Defendant’s request is DENIED.

B. Legal Standard

Code of Civil Procedure section 1008 provides, in pertinent part:

“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

(Code Civ. Proc. § 1008, subd. (a), (b), (e).)

C. Discussion

As an initial matter, the Court notes that Cross-Defendant did not include a proof of service demonstrating the Motion for Reconsideration was properly served on Cross-Complainant. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) However, on June 25, 2020, Cross-Complainant filed an Opposition. “It is well-settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Thus, the Court makes the following ruling on the merits.

Cross-Defendant seeks reconsideration of the Court’s December 10th Order granting Cross-Complainant’s motion for summary adjudication as to the first cause of action and denying Cross-Defendant’s request for sanctions. (Mot. for Reconsideration, p. 3:27-4:24.) The December 10th Order was mailed to the parties by the department clerk on December 17, 2019. Thus, Cross-Defendant’s Motion for Reconsideration, filed on December 27, 2019, is timely. However, a motion for reconsideration requires a supporting affidavit stating “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).) Cross-Defendant’s supporting declaration does not meet the content requirements of Section 1008. Indeed, a motion for reconsideration that is filed without a supporting affidavit that complies with Section 1008’s requirements is invalid. (See Branner v. Regents of Univ. of California (2009) 175 Cal.App.4th 1043, 1048.) However, for the sake of completeness, the Court notes the following regarding Cross-Defendant’s arguments.

First, Cross-Defendant argues the order granting summary adjudication must be reconsidered because parties have a right to oral argument. (Mot. for Reconsideration, p. 5:10-23.) However, Cross-Defendant was given the opportunity to present oral argument in support of his opposition to the motion for summary judgment/adjudication at the hearing on December 10, 2019. In fact, the Court’s minute order demonstrates Cross-Defendant was present at the hearing. (12/10/19 Minute Order.) The fact that the Court took the matter under submission after hearing oral argument from the parties does not demonstrate Cross-Defendant was deprived of his opportunity to be heard. Cross-Defendant also argues the Court “completely disregard[ed] the Code Civ. Proc. § 437c subsection (C) requirements that even a single evidence in dispute would cause the denial of the MSJ.” (Mot. for Reconsideration, p. 6:1-3.) However, a claim that a trial court misinterpreted the law in its decision does not constitute new or different facts, circumstances, or law as statutorily required. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499-1500.) In Gilberd, the Court noted that in almost all instances, a losing party would believe the trial court’s interpretation of the laws or facts was erroneous, and that permitting a party to bring a motion for reconsideration merely on disagreement with the court would be “contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was previously not considered by it.” (Id.) (Italics added.) As Cross-Defendant presents nothing new in his moving papers, the Court declines to reconsider the order as to the motion for summary judgment/adjudication.

The Court’s December 10th Order also denied Cross-Defendant’s request for sanctions under Code of Civil Procedure sections 128.5 and 128.7 on the basis that no separate motion for sanctions was filed with the Court. (12/10/19 Minute Order.) Cross-Defendant argues that the Court’s ruling is incorrect and that the case summary demonstrates a separate motion for sanctions was, in fact, filed. (Mot. for Reconsideration, p. 16:15-22.) After reviewing the Court’s docket, the Court finds that Cross-Defendant filed a Request for Imposition of Monetary Sanctions (the “Motion for Sanctions”) on November 26, 2019. However, it was filed only 8 court days before it was scheduled to be heard in violation of Code of Civil Procedure section 1005, subdivision (b)’s requirement that all moving and supporting papers be filed with the court at least 16 court days before the hearing. In any event, the Court did not take this into consideration when ruling on Cross-Defendant’s Motion for Sanctions. (See 12/10/19 Minute Order.)

As noted above, Cross-Defendant has not filed a declaration in accordance with Section 1008’s requirements, and a court is not permitted to reconsider any order unless made in accordance with this section. (Code Civ. Proc., § 1008, subd. (e).) However, the Court has the inherent power to reconsider its own interim orders at any time on its own motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.) As the Court did not consider the Motion for Sanctions filed on November 26, 2019 in denying Cross-Defendant’s request for sanctions, the Court, on its own motion, reconsiders the December 10th Order as to the request for sanctions only.

Cross-Complainant filed an objection to the November 26, 2019 Motion for Sanctions on the basis that it was untimely filed. (11/27/19 Objection to Mot. for Sanctions, Wittner Decl., ¶ 8.) Cross-Complainant also noted that the Motion for Sanctions filed with the Court was not the same motion previously served on Cross-Complainant. (Id.) Cross-Complainant’s attorney states that Cross-Defendant served a Motion for Sanctions on September 30, 2019, which was originally set for hearing for November 14, 2019. (Id.) Cross-Complainant thereafter filed an Opposition to that motion on October 31, 2019. (Id.) In his Opposition, Cross-Complainant includes a copy of the notice of motion served, which is different than the notice of motion filed with the Court on November 26, 2020. (10/31/19 Oppo. Mot. for Sanctions, Wittner Decl., ¶ 6, Exh. E.) Cross-Defendant does not deny or address Cross-Complainant’s arguments or evidence in his Reply; instead, he argues Cross-Complainant should not have filed a “premature” opposition. (12/2/19 Reply to Oppo. to Mot. for Reconsideration, p. 2:6-10.) Thus, because it appears that Cross-Defendant filed a Motion for Sanctions that was different than the one originally served on Cross-Complainant, Cross-Defendant did not comply with the requirement that the motion for sanctions be served at least 21 days before it is filed with the Court. (Code Civ. Proc., § 128.5, subd. (f)(1)(B); Code Civ. Proc., § 128.7, subd. (c)(1).)

Accordingly, Cross-Defendant’s Motion for Sanctions is DENIED.

  1. Motion to Quash Subpoena

A. Request for Judicial Notice

Cross-Complainant requests that the Court take judicial notice of (1) Cross-Defendant’s Motion for Attorney’s Fees filed in Jahanshahi v. West Wing Grand Plaza, et al., Case No. BC642058 filed November 13, 2019; (2) Declaration filed in support of the Motion for Attorney’s Fees in Jahanshahi v. West Wing Grand Plaza, et al., Case No. BC642058; (3) Cross-Defendant’s Reply to Opposition to Motion for Attorney’s Fees filed on December 30, 2019 in Jahanshahi v. West Wing Grand Plaza, et al., Case No. BC642058; and (4) December 10, 2019 Minute Order on Motion for Summary Judgment in this case. (Oppo. to Mot. for Reconsideration, Request for Judicial Notice.)

Cross-Complainant’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

B. Legal Standard

Under Code of Civil Procedure section 1987.1, subdivision (a), “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal. App. 4th 575, 582-83.) Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. (Code Civ. Proc., § 1987.1, subd. (b).) A deposition subpoena may be quashed for: (1) defects in form or content of the subpoena (e.g., inadequate description of requested records); (2) defects in service of the subpoena (e.g., failure to satisfy the requirements of providing notice to consumer); (3) requesting production of records not within the permissible scope of discovery; and (4) being unjustly burdensome or oppressive. (Code Civ. Proc., § 1987.1, subd. (a).)

C. Discussion

On October 30, 2019, Cross-Complainant issued a Deposition Subpoena for Production of Business Records to the custodian of records for Hartsuyker, Stratman & Williams-Abrego (the “Subpoena”). (Oppo. to Mot. to Quash, Wittner Decl., ¶ 6, Exh. A.) The Subpoena sought documents from West Wing’s attorneys in the action Jahanshahi v. West Wing Grand Plaza, et al., Case No. BC642058 (the “West Wing Action”). (Id.) Cross-Complainant argues these documents are in direct relation to the attorney’s fees and costs incurred by Cross-Complainant for Cross-Defendant’s benefit, which are at issue in this action and which Cross-Defendant allegedly refuses to pay. (Id. at ¶ 7.)

Cross-Defendant moves to quash the Subpoena on the basis that the documents sought are protected by the attorney-client privilege, that the documents are privileged consumer records, and that the Subpoena is procedurally defective. (Mot. to Quash, pp. 2:6-11; 5:5-25.)

First, the attorney-client privilege is inapplicable here. Evidence Code section 954 provides that a client has a privilege to refuse to disclose, and to prevent another from disclosing, confidential communications between the client and the lawyer. (Evid. Code, § 954.) (Italics added.) Here, the Subpoena seeks documents from West Wing’s attorneys. Thus, Cross-Defendant cannot assert the attorney-client privilege to defeat this Subpoena.

Second, Cross-Defendant argues that the records sought are protected consumer records and that the Subpoena did not comply with the procedural requirements of Code of Civil Procedure section 1985.3. (Mot. to Quash, p. 6:3-5; 7:7-9.) Section 1985.3 applies to subpoenas seeking consumer personal records. Personal records include any information, documents, or other writings maintained by witnesses, which include attorneys. (Code Civ. Proc., § 1985.3, subd. (a)(1).) A consumer is defined as “any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.” (Code Civ. Proc., § 1985.3, subd. (a)(2).) Cross-Defendant is not a “consumer” as defined by the statute because he is not a person who has transacted with or used the services of the attorneys from which the records are sought. (Id.) Rather, West Wing is the consumer as the Subpoena seeks documents from West Wing’s attorneys related to the representation of West Wing. However, any party to an action may challenge a defective subpoena. (Code Civ. Proc., § 1987.1, subd. (b).)

Cross-Defendant argues the Subpoena was untimely served. Specifically, he argues the date for production should have been set for December 11, 2019, not December 6, 2019, as required by Code of Civil Procedure section 2025.270, subdivision (c), and section 2024.410, subdivision (c). (Mot. to Quash, pp. 5:22-25; 7:7-16.) He also argues Cross-Complainants failed to give notice as required by Code of Civil Procedure section 1985.3, subdivision (e). (Id.) Section 2025.270 is inapplicable here as that section deals with oral depositions and Cross-Complainant’s Subpoena only seeks production of documents. Section 2020.410, subdivision (c) provides that a deposition subpoena for the production of documents “shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after service of the deposition subpoena, whichever date is later.” In addition, Section 1985.3 requires that a consumer be served with a copy of the subpoena “[n]ot less than 10 days prior to the date for production specified in the subpoena, plus the additional time provided by Section 1013 if service is by mail,” and at least five days before the custodian of records is served, plus additional time provided for in section 1013 if applicable (Code Civ. Proc., § 1985.3, subd. (b)(1)-(3).)

Here, Cross-Complainant provides evidence that it served a Notice to Consumer or Employee and Objection form on Cross-Defendant on October 30, 2019 via regular mail. (Oppo. to Mot. to Quash, Wittner Decl., ¶ 8, Exh. B.) That same day, Cross-Complainant served the Notice to Consumer or Employee and Objection form on West Wing’s registered agent via mail. (Id. at ¶ 8, Exh. C.) West Wing’s attorneys were personally served with the Subpoena 12 days later, on November 12, 2019. (Id., ¶ 11, Exh. F.) This demonstrates that Consumer West Wing and Cross-Defendant were served with the Subpoena at least 10 days before the production date of December 6, 2019, and more than 10 days before West Wing’s attorneys were served. Thus, service of the subpoena complies with Section 1985.3, subdivision (b)(1)-(3). Furthermore, as noted above, West Wing’s attorneys were served with the Subpoena on November 12, 2019, more than 20 days before production was due. Thus, Cross-Complainant complied with the service requirements of Section 2024.410, subdivision (c).

The Court notes that Cross-Defendant’s Reply does not address any of the arguments raised in Cross-Complainant’s Opposition, but merely repeats the arguments in his moving papers. He also raises new arguments, namely, that the Court’s granting of Cross-Complainant’s motion for summary judgment abolished the need for discovery. (Reply to Oppo. to Mot. to Quash, p. 4:8-24.) However, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to respond to the argument. [Citations.]” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) Although the Court does not consider this argument, the Court reminds Cross-Defendant that summary adjudication was granted as to the first cause of action, but denied it as to the remaining causes of action for account stated, services rendered, and quantum meruit. (12/10/19 Minute Order.) As the remaining causes of action are scheduled for trial for September 30, 2020, the need for discovery has not been “abolished.”

For all of the reasons noted above, Cross-Defendant’s Motion to Quash Subpoena is DENIED.

D. Cross-Defendant’s Request for Sanctions

Cross-Defendant requests that the Court issue sanctions against Cross-Complainant pursuant to Code of Civil Procedure section 128.5. (Mot. to Quash, p. 7:23-27.) However, a motion for sanctions under Section 128.5 “shall be made separately from other motions or requests.” (Code Civ. Proc., § 128.5, subd. (f)(1)(A).) (Italics added.) As Cross-Defendant did not make the request under a separate motion, the request for sanctions is DENIED.

E. Cross-Complainant’s Request for Award of Reasonable Expenses

Cross-Complainant requests an award of the reasonable expenses and attorney’s fees incurred in opposing the Motion to Quash pursuant to Code of Civil Procedure section 1987.2. (Oppo. to Mot. to Quash, p. 13:1-21.)

Section 1987.2, subdivision (a) provides the court with the discretion to award the amount of “the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification…” “‘Substantial justification’ means ‘that justification that is clearly reasonable because it is well-grounded in both law and fact. [Citations.]’ [Citation.]” (Vasquez v. California School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 40.)

Here, Cross-Complainant presents evidence the parties met and conferred regarding the Subpoena. (Oppo. to Mot. to Quash, Wittner Decl., ¶¶ 9-10, Exhs. D, E.) Specifically, on November 2, 2019, Cross-Defendant served an objection to the Subpoena on Cross-Complainant. (Id.) Cross-Complainant responded with a letter explaining why each of his arguments, including Cross-Defendant’s claim of attorney-client privilege, failed. (Id.) Cross-Defendant goes on to assert the attorney-client privilege in this Motion to Quash, and maintains that privilege in his Reply. The Court finds that asserting the attorney-client privilege without an existing attorney-client relationship is not well-grounded in law or fact. In addition, Cross-Defendant’s argument as to the failure to properly and timely serve the Subpoena on consumer West Wing and on West Wing’s attorneys is similarly not well-grounded. As noted above, the Subpoena was timely and properly served on all required parties.

Thus, the Court finds the Motion to Quash was filed without substantial justification. Cross-Complainant’s counsel requests a total of $4,680.75 based on 11.85 hours of attorney time billed at $395.00 per hour. (Oppo. Mot. to Quash, Wittner Decl., ¶ 17.) However, the amount sought is excessive. The court finds $1,185.00, based on three hours of attorney time, to be reasonable. Cross-Defendant to pay sanctions within thirty (30) days of this order.

  1. Motion to Disqualify Counsel

A. Cross-Complainant’s Evidentiary Objections

Cross-Complaint’s objections to Cross-Defendant’s declaration in support of the Motion to Disqualify are SUSTAINED as to objection numbers 2-11, 13, 14, and 16-19 and OVERRULED as to objection numbers 1, 12, 15, and 20.

B. Service of the Opposition

In his Reply papers, Cross-Defendant argues Cross-Complainant’s Opposition was served late and as such, the Court should exercise its discretion and disregard it. (Reply, p. 3:6-11.)

Code of Civil Procedure section 1005, subdivision (b) requires opposition papers to be filed and served at least nine (9) court days before the hearing. Here, the hearing was initially scheduled for July 9, 2020, but was continued to September 1, 2020 on the Court’s own motion. (7/2/20 Minute Order.) Cross-Complainant filed and served his Opposition ten days before the initial hearing, on June 25, 2020. Thus, the Court finds the Opposition was timely filed and served.

C. Legal Standard

“A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’ [Citations.] Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]” (Lynn v. George (2017) 15 Cal.App.5th 630, 637.)

D. Discussion

Cross-Defendant moves the Court for an order disqualifying the Law Firm of Rodney T. Lewin (the “Law Firm”) and attorney of record Allyson Wittner (“Attorney Wittner”) from representing Cross-Complainant, Rodney Lewin, in this action. (Mot. to Disqualify, p. ii:1-12.)

First, Cross-Defendant argues that the Rules of Professional Conduct, rules 1.9 and 1.10 prohibit the Law Firm and Attorney Wittner from defending Cross-Complainant in this legal malpractice and breach of contract action. (Id.; p. 1:4-8.)

Rules of Professional Conduct, rule 1.9 provides, in pertinent part, that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent.” (Rules Prof. Conduct, rule 1.9, subd. (a).) Rule 1.10, in pertinent part, prevents attorneys in a firm from representing a client when any one of them would be prohibited from doing so by Rule 1.9. (Rules Prof. Conduct, rule 1.10, subd. (a).)

Cross-Defendant argues that allowing Attorney Wittner and Law Firm to represent Cross-Complainant would violate Rules of Professional Conduct, rule 1.9 because Attorney Wittner is employed by Law Firm, Law Firm represented Cross-Defendant in the action against West Wing Grand Plaza, Cross-Defendant and Cross-Complainant’s interests are materially adverse, and because Law Firm and Attorney Wittner, through their previous representation, acquired confidential information about Cross-Defendant that is material to the current action. (Mot. to Disqualify, p. 7:19-25.) Cross-Defendant also argues that Attorney Wittner was actively engaged in representing him in the underlying action against West Wing Grand Plaza, that Law Firm and Attorney Wittner’s conflict is imputed to the other lawyers in the firm, and that the entire Law Firm is barred from representing Cross-Complainant. (Id. at p. 9:7-21.)

However, the Court reminds Cross-Defendant that his action against Cross-Complainant was dismissed by the Court on November 16, 2017. (11/16/17 Judgment.) Thus, the only remaining action is Cross-Complainant’s action seeking recovery of unpaid attorney’s fees. The Court does not disagree with the Rules of Professional Conduct cited by Cross-Defendant. However, this is an action for the recovery of attorney’s fees by an attorney against a former client. Cross-Defendant has not cited any case law that applies these rules to prevent attorneys and law firms from bringing an action against a former client for the recovery of attorney’s fees. Law firms and attorneys routinely file actions for the recovery of such fees against former clients. (See e.g. Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257.) Indeed, attorneys are permitted to bring such actions against former clients as long as they comply with the requirements of Business and Professions Code section 6201.

Cross-Defendant also argues that Attorney Wittner must be disqualified because he intends to call her and Cross-Complainant as witnesses during the trial. (Mot. to Disqualify, p. 10:3-10.) As noted above, the only remaining dispute between the parties is Cross-Complainant’s causes of action for account stated, services rendered, and quantum meruit in connection with Cross-Complainant’s effort to collect attorney’s fees allegedly owed by Cross-Defendant. Attorneys’ testimony as to the amount of time worked is permitted in an action to collect attorney’s fees. (See Mardirossian & Associates, Inc. v. Ersoff, supra, 153 Cal.App.4th 257, 269.) Thus, the Court is not persuaded that Attorney Wittner or Law Firm should be disqualified on this basis.

Cross-Defendant further argues that Law Firm’s malpractice insurance will be able to litigate and defend him in this action, and as a result, the disqualification of Attorney Wittner and Law Firm is “unquestionable.” (Mot. to Disqualify, pp. 9:23-10:2.) However, Cross-Defendant has not provided any authority supporting this argument, and thus the Court remains unpersuaded.

Accordingly, Cross-Defendant’s Motion to Disqualify Counsel is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Cross-Defendant Shahrouz Jahanshahi's (1) Motion for Reconsideration of the December 10, 2019 Order is GRANTED as to the Motion for Sanctions only. After reconsidering Cross-Defendant’s Motion for Sanctions, it is DENIED for failure to serve Cross-Complainant with the Motion at least 21 days before filing with the Court as required by Code of Civil Procedure section 128.5 and 128.7.

In addition, Cross-Defendant’s (2) Motion to Quash Deposition Subpoena is DENIED. However, Cross-Complainant’s request for an award of reasonable expenses and attorney’s fees is GRANTED in the amount of $1,185.00 to be paid within thirty (30) days of notice of this order.

Finally, Cross-Defendant’s (3) Motion to Disqualify Counsel is DENIED.

Moving party is ordered to give notice.

Case Number: BC644230    Hearing Date: February 27, 2020    Dept: 25

MOTION FOR RECONSIDERATION

(CCP § 1008)

MOTION FOR OSC RE: CONTEMPT 

(CCP § 1209)

TENTATIVE RULING:

(1) Cross-Defendant Shahrouz Jahanshahi’s Motion for Reclassification of Action, or in the Alternative to Allow Discovery in Excess of the Limited Jurisdiction (deemed by the Court to be a Motion for Reconsideration) is DENIED.

(2) Cross-Defendant’s Motion for OSC re: Contempt is also DENIED.

Motion for Reconsideration

OPPOSITION: Filed on February 13, 2020    

REPLY: Filed on February 20, 2020

Motion for OSC re: Contempt

OPPOSITION: Filed on February 13, 2020    

REPLY: Filed on February 20, 2020

ANALYSIS:

  1. Background

On December 20, 2016, Plaintiff/Cross-Defendant Shahrouz Jahanshahi (“Cross-Defendant”) filed an action for breach of contract, common counts, fraud, general negligence and intentional tort against Defendant/Cross-Complainant Rodney Lewin (“Cross-Complainant”). On March 1, 2017, Cross-Complainant filed a Cross-Complaint against Cross-Defendant seeking $10,273.15 in damages. On June 6, 2017, Cross-Defendant filed a First Amended Complaint (“FAC”).

On October 25, 2017, Judge Bowick in Department 19 sustained Cross-Complainant’s Demurrer to the FAC in its entirety without leave to amend and ordered him to submit a proposed judgment of dismissal. (10/25/17 Minute Order.) On November 16, 2017, Cross-Defendant’s FAC was dismissed with prejudice. (11/16/17 Minute Order.)

On August 15, 2018, the Court granted Cross-Complainant’s motion to reclassify the case from unlimited to limited jurisdiction. (8/15/18 Minute Order.)

On September 20, 2019, Cross-Defendant filed a motion to reclassify the action back to unlimited jurisdiction. After Cross-Complainant filed an opposition, the motion was withdrawn on October 16, 2019.

On December 10, 2019, the Court granted Cross-Complainant’s Motion for Summary Judgment on the Cross-Complaint, finding that it was entitled to damages in the amount of $10,273.15, plus $4,057.87 in prejudgment interest. (12/10/19 Minute Order.) On December 27, 2019, Cross-Defendant filed a Motion for Reconsideration of that order, which is set for hearing on July 9, 2020.

On January 24, 2020, Cross-Defendant re-filed the instant Motion for Reclassification of Action or, in the Alternative, to Allow Discovery in Excess of Limited Jurisdiction (the “Reclassification Motion”). Cross-Defendant also filed a Motion for OSC re: Contempt (the “Contempt Motion”) (collectively, the “Motions”). On February 13, 2020, Cross-Complainant filed an Opposition to both the Reclassification Motion and the Contempt Motion, as well as a Request for Judicial Notice. On February 20, 2020, Cross-Defendant filed a Reply to each.

  1. Service of the Moving Papers

Code of Civil Procedure section 1005 requires that all moving and supporting papers for a motion be served and filed at least 16 court days before the hearing on that motion. (Code Civ. Proc., § 1005, subd. (b).) “The moving and supporting documents served shall be a copy of the papers filed or to be filed with the court.” (Id.) (Italics added.)

Here, Cross-Defendant did not file a proof of service for neither the Reclassification Motion nor the Contempt Motion. However, “[i]t is well-settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Cross-Complainant filed an opposition to both Motions, he has waived any challenges to deficiencies in notice.

  1. Motion for Reconsideration

  1. Cross-Complainant’s Request for Judicial Notice

Cross-Complainant’s request for judicial notice of twelve (12) documents previously filed in this action is GRANTED. (Evid. Code, § 452, subd. (d).)

  1. Legal Standard 

Code of Civil Procedure section 1008 provides, in pertinent part:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after serviceupon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications    to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge   or court unless made according to this section.”

(Code Civ. Proc. § 1008, subd. (a), (e).)  

  1. Discussion

Cross-Defendant argues reclassification of this action to limited jurisdiction was improper because Cross-Complainant moved for reclassification after he completed extensive discovery, because Cross-Complainant did not timely move for reclassification, and because Cross-Complainant did not comply with the requirements of Code of Civil Procedure section 403.040, resulting in prejudice to Cross-Defendant. (Mot., p. 3.) Based on this language, it is clear that Cross-Defendant is seeking reconsideration of the Court’s August 15, 2018 Order granting Cross-Complainant’s motion for reclassification of the matter as a limited case.  (See City and County of San Fransisco v. Muller (1960) 177 Cal.App.2d 600, 603 [holding that “the nature of a motion is determined by the nature of the relief sought, not by the label attached to it”].) Thus, the Court deems this to be a motion for reconsideration.

Cross-Defendant’s Motion does not comply with the requirements of Code of Civil Procedure section 1008, subdivision (a). Specifically, Cross-Defendant was mailed notice of the Court’s Order granting the motion for reclassification on August 16, 2018, but did not bring a motion for reconsideration within 10 days after service of notice. (See 8/16/18 Notice of Ruling.) As such, it is untimely. However, even if the Motion was timely, Section 1008 requires that a motion for reconsideration contain “new or different facts, circumstances or law” as well as a “satisfactory explanation for the failure to produce that evidence at an earlier time.” (Schiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Cross-Defendant does not provide any new circumstances or law, and instead makes several of the same arguments that have already been considered and rejected by the Court. Further, Cross-Defendant should have made this motion to “to the same judge or court that issued the order,” that is, Judge Bowick, but failed to do so.  

Thus, Cross-Defendant’s Motion does not comply with the requirements of Code of Civil Procedure section 1008. As “no application to reconsider any order…may be considered by any judge or court unless made according to [Section 1008],” Cross-Defendant’s Motion is DENIED.  

  1. Request to Expand Discovery

Cross-Defendant also argues that if the Court does not reclassify the action, it should grant him the opportunity to conduct discovery beyond the limitations applicable to limited jurisdiction cases. (Mot., p. 4.)

Code of Civil Procedure section 95 provides that:

“(a) The court may, on noticed motion and subject to such terms and conditions as are just, authorize a party to conduct additional discovery, but only upon a showing that the moving party will be unable to prosecute or defend the action effectively without the additional discovery. In making a determination under this section, the court shall take into account whether the moving party has used all applicable discovery in good faith, and whether the party has attempted to secure the additional discovery by stipulation or by means other than formal discovery.”

(Code Civ. Proc., § 95, subd. (a).) (Italics added.)

Cross-Defendant argues the Court should grant his request for additional discovery because it is needed to effectively prosecute or defend the case and because Cross-Complainant conducted extensive discovery before the case was reclassified, and he should be given the same opportunity to do so. (Mot., p. 4.) However, this is unpersuasive. Cross-Defendant had the same opportunity to conduct discovery as Cross-Complainant during the time the matter was classified as an unlimited jurisdiction case. He further argues that this is a “complex case” that requires extensive discovery. (Id., Jahanshahi Decl., ¶ 11.) To the extent Cross-Defendant is attempting to argue additional discovery is needed to support the claims in his FAC, this is also unpersuasive as the FAC has been dismissed. The remaining operative pleading is the Cross-Complaint seeking damages of only $10,273.15. (Oppo., p. 9.) Cross-Defendant has only generally stated that he needs additional discovery, but has not demonstrated why discovery beyond what is permitted in limited jurisdiction is necessary to defend against the allegations in the Cross-Complaint.

Thus, Cross-Defendant’s request for additional discovery is DENIED.

  1. Cross-Complainant’s Request for OSC re: Whether Sanctions Should be Imposed on Cross-Defendant

In its Opposition, Cross-Complainant argues that Cross-Defendant’s Motion is a violation of Code of Civil Procedure sections 128.5, 128.7 and 1008 and requests that the Court issue an Order to Show Cause re: Sanctions. (Oppo., p. 11.)

Code of Civil Procedure section 1008, subdivision (b), provides that “[a] .” However, a request for sanctions pursuant to Code 128.7 must be made “separately from other motions or requests…” (Code Civ. Proc., § 128.7, subd. (c)(1).) As Cross-Complainant’s request for sanctions was made in the Opposition and not by a separately noticed motion, his request is DENIED on this basis.

If Cross-Complainant wishes to seek sanctions against Cross-Defendant, he should do it by a separate, properly noticed motion.

  1. Cross-Defendant’s Motion for OSC re: Contempt

  1. Cross-Complainant’s Request for Judicial Notice

Cross-Complainant request for judicial notice of five (5) documents previously filed in this action is GRANTED. (Evid. Code, § 452, subd. (d).)

  1. Cross-Complainant’s Evidentiary Objections to Cross-Defendant’s Declaration

On the objections raised by Cross-Complainant regarding Cross-Defendant’s declaration, the Court rules as follows:

Objection 1 is sustained as to the following: “In that hearing, the Court admonished [Cross-Complainant’s counsel] to be professional, to adhere to and obey all of the rules, and statutes,” and is overruled as to the remaining text.

Objections 2, 3, 4, and 5 are sustained.

  1. Legal Standard

Code of Civil Procedure section 1209, subdivision (a) outlines the acts or omissions that constitute contempt court, which include the “[a]buse of process of proceedings of the court, or falsely pretending to act under the authority of an order or process of the court and “disobedience of any lawful judgment, order, or process of the Court. (Code Civ. Proc., § 1209, subd. (a)(4)-(5).)

Code  of Civil Procedure section 1211 provides:

“(a) When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.”

(Code Civ. Proc., § 1211, subd. (a).)

Los Angeles County Local Rule 3.11 states that an OSC regarding contempt will issue if the supporting affidavit is sufficient.

  1. Discussion

The Court notes that in his reply papers, Cross-Defendant filed an additional declaration and attached exhibits. (Reply, Jahanshahi Decl.) However, because new evidence is not allowed in reply papers, the Court does not consider it. (See e.g. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38.)

Cross-Defendant argues that Cross-Complainant and his attorney, Allyson P. Wittner (“Wittner”) have committed indirect contempt of court by misleading the Court, disobeying a court order, and “willingly, intelligently, and flagrantly” misquoting cited authority on more than three occasions in moving papers. (Contempt Mot., p. 8.) Although Cross-Defendant does not specify which subdivision of Section 1209 he alleges Cross-Complainant violated, it appears that he seeks contempt pursuant to subdivision (a)(4) and (a)(5).

After reviewing the evidence, the Court does not find that Cross-Complainant’s conduct warrants issuing an OSC re: Contempt. First, Cross-Defendant’s Motion largely recites statutes and cases, but does not apply the facts to the law cited, making it difficult to evaluate his arguments. To the extent he argues that Cross-Complainant’s inadvertent use of the word “summary adjudication” instead of the word “summary judgment” misrepresents the law and rises to the level of contempt, the Court disagrees. Motions for summary judgment and summary adjudication both enable the court to determine whether the opposing part lacks evidentiary support for their action. The difference is that a motion summary judgment asks the Court to determine the entire action, while a motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action. (Code Civ. Proc., § 437c, subd. (a), (f).)

In addition, Cross-Defendant does not set forth sufficient facts that would support a finding of contempt. While it is true that the Court noted Cross-Complainant’s “repeated, documented disregard for procedural rules” and stated that it would be “more inclined to determine [Cross-Complainant’s] future procedural errors [were] committed willingly based on this history of conduct” (12/10/19 Minute Order) (italics added), Cross-Defendant has not demonstrated violations of procedural or court rules since then. Instead, Cross-Defendant relies on Cross-Complainant’s violation of two California Rules of Court noted in the December 10th Order. These violations resulted from Cross-Complainant’s failure to provide an electronic version of a separate statement and failure to bind, and include a table of contents for, evidence in support of his motion for summary judgment. (Contempt Mot., Jahanshahi Decl., ¶ 8; 12/10/19 Minute Order.) Further, Cross-Defendant has not provided any evidence or sufficiently identified a specific Court order that has been violated by Cross-Complainant.

Thus, Cross-Defendant’s Motion for OSC re: Contempt is DENIED.

  1. Cross-Complainant’s Request for Sanctions

Cross-Complainant also argues that the Court should order sanctions and attorney’s fees in favor of him because the Court has previously “cautioned” Cross-Defendant about being sanctioned if he filed a potentially frivolous or unmeritorious motion. (Oppo., p. 14-15.)

As noted above, Cross-Complainant should file a separate, properly noticed motion for sanctions.

  1. Conclusion & Order

For the foregoing reasons:

(1) Cross-Defendant Shahrouz Jahanshahi’s Motion for Reclassification of Action, or in the Alternative to Allow Discovery in Excess of the Limited Jurisdiction (deemed by the Court to be a Motion for Reconsideration) is DENIED.

(2) Cross-Defendant’s Motion for OSC re: Contempt is also DENIED.

Moving party is ordered to give notice.

Case Number: BC644230    Hearing Date: December 10, 2019    Dept: 94

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Cross-complainant’s Motion for Summary Judgment, or alternatively Summary Adjudication of Issues, is CONTINUED TO MARCH 3, 2020 at 10:30 in Dept. 94. Cross-defendant is to file his Answer to the Cross-complaint within 10 days of this order.

ANALYSIS:

I. Background

Plaintiff Shahrouz Jahanshahi commenced this lawsuit against Defendant Rodney T. Lewin based on Defendant’s representation of Plaintiff. On November 6, 2017, the Court sustained Defendant’s demurrer without leave as to Plaintiff’s first amended complaint.

Defendant/Cross-complainant filed a cross-complaint on March 1, 2017 for collection from Plaintiff/Cross-defendant for Cross-complainant’s services from the representation.

II. Legal Standard

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .” (CCP § 437c(c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing a motion for summary judgment, the court must apply 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.)

“[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. [Citation.]” (Welborne v. Ryman-Carroll Foundation (2018) 22 Cal.App.5th 719, 724.) “In attempting to achieve this goal, the plaintiff has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the plaintiff meets this burden, then the burden of production shifts to the defendant to establish the existence of a triable issue of material fact. [Citation.]” (Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1077.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Citation.]’ [Citation.]” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1282.)

“In examining the supporting and opposing papers, the moving party’s affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179.)

III. Analysis

A review of the Court’s file shows Cross-defendant never filed an Answer to the Cross-complaint.

If a defendant files a cross-complaint against another defendant or the plaintiff, a default may be entered against that party on that cross-complaint if the plaintiff or that cross-defendant has been served with that cross-complaint and has failed to file an answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for a writ of mandate as provided in Section 418.10 within the time specified in the summons, or within another time period as may be allowed.” (Code Civ. Proc., § 585(e).)

Here, the defendant filed a cross-complaint against the plaintiff, but the plaintiff (Cross-defendant) failed to file an answer, or any of the other pleadings listed in section 585(e) within the applicable time period. Thus, a default may be entered against Cross-defendant on the cross-complaint.

However, the Court does not enter default against Cross-defendant on its own. Instead, the Court is inclined to continue this hearing, to allow Cross-defendant to file the answer that apparently was served on Cross-complainant—it appears Cross-defendant served the answer to Cross-complainant because Cross-complainant’s motion challenges specific affirmative defenses. Because the motion seeks adjudication of affirmative defenses, it is necessary that the Court have the pleading before it—neither party has attached a copy of the answer to the papers. By allowing Cross-defendant to file the answer with the Court before the Court rules on this motion, Cross-complainant suffers no unfair prejudice because it appears Cross-complainant has had timely notice of the answer.

IV. Conclusion

Accordingly, Cross-complainant’s motion for summary judgment, or alternatively adjudication of issues, is CONTINUED TO MARCH 3, 2020 at 10:30 AM IN Dept. 94. Cross-defendant is to file the answer with the Court within 20 days of this order.

Moving party is ordered to give notice.