This case was last updated from Los Angeles County Superior Courts on 10/09/2019 at 18:47:30 (UTC).

WRITERS GUILD OF AMERICA WEST INC VS CITIZEN JANE PRODUCTION

Case Summary

On 07/10/2012 WRITERS GUILD OF AMERICA WEST INC filed an Other - Arbitration lawsuit against CITIZEN JANE PRODUCTION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARK A. BORENSTEIN, RALPH W. DAU, EDWARD B. MORETON, JR. and EDWARD B. MORETON. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8171

  • Filing Date:

    07/10/2012

  • Case Status:

    Other

  • Case Type:

    Other - Arbitration

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARK A. BORENSTEIN

RALPH W. DAU

EDWARD B. MORETON, JR.

EDWARD B. MORETON

 

Party Details

Plaintiffs, Petitioners and Respondents

WRITERS GUILD OF AMERICA WEST INC.

CIBOLA ENTERTAINMENT LLC

CITIZEN JANE PRODUCTIONS LLC

MITCHELL ERIC A.

Appellants

JAMES DALESSANDRO

DALESSANDRO JAMES

Defendants, Respondents and Debtor In Possession

CIBOLA ENTERTAINMENT LLC

CITIZEN JANE PRODUCTIONS LLC

MITCHELL ERIC A.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

PEARSON HEATHER L.

LEVINE PAUL S. ESQ.

Defendant Attorney

STAUB DAVID JOSHUA ESQ.

Debtor In Possession Attorney

STAUB D. JOSHUA ESQ.

 

Court Documents

NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL(UNLIMITED CIVIL)

2/14/2018: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL(UNLIMITED CIVIL)

Minute Order -

8/20/2018: Minute Order -

Minute Order -

8/20/2018: Minute Order -

Proof of Service (not Summons and Complaint)

1/10/2019: Proof of Service (not Summons and Complaint)

Request for Judicial Notice

2/4/2019: Request for Judicial Notice

Order - ORDER ORDER GRANTING EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO QUASH

3/21/2019: Order - ORDER ORDER GRANTING EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO QUASH

Notice - NOTICE OF ENTRY OF SIGNED ORDER

8/30/2019: Notice - NOTICE OF ENTRY OF SIGNED ORDER

PROOF OF SERVICE BY FIRST-CLASS MAIL

2/22/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL

ERIC A. MITCHELL?S NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

6/18/2018: ERIC A. MITCHELL?S NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE SIGNED 7/11/18

7/17/2018: EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE SIGNED 7/11/18

NOTICE OF CASE MANAGEMENT CONFERENCE

12/17/2012: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF HEARING ON PETITION TO CONFIRM ARBITRATION

1/30/2013: NOTICE OF HEARING ON PETITION TO CONFIRM ARBITRATION

DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE ?187)

7/7/2014: DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE ?187)

REQUEST FOR JUDICIAL NOTICE

4/24/2017: REQUEST FOR JUDICIAL NOTICE

Proof of Service -

8/28/2017: Proof of Service -

DECLARATION FOR INTEREST

9/5/2017: DECLARATION FOR INTEREST

NOTICE OF CONTINUANCE OF JUDGMENT DEBTOR EXAMINATION

9/25/2017: NOTICE OF CONTINUANCE OF JUDGMENT DEBTOR EXAMINATION

Minute Order -

12/4/2017: Minute Order -

261 More Documents Available

 

Docket Entries

  • 09/23/2019
  • Docketat 09:30 AM in Department 44, Edward B. Moreton, Presiding; Hearing on Motion for Attorney Fees - Not Held - Rescheduled by Party

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  • 09/13/2019
  • DocketAcknowledgment of Satisfaction of Judgment; Filed by Eric A. Mitchell (Defendant)

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  • 08/30/2019
  • DocketNotice (of Entry of Signed Order); Filed by Eric A. Mitchell (Defendant)

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  • 08/30/2019
  • DocketNotice (of Entry of Minute Order); Filed by Eric A. Mitchell (Defendant)

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  • 08/26/2019
  • Docketat 1:30 PM in Department 44, Edward B. Moreton, Presiding; Ruling on Submitted Matter

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  • 08/26/2019
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter RE Motion for Attorney Fees) of 08/26/2019); Filed by Clerk

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  • 08/26/2019
  • DocketOrder (Proposed order granting fee motion); Filed by Eric A. Mitchell (Defendant)

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  • 08/26/2019
  • DocketMinute Order ( (Ruling on Submitted Matter RE Motion for Attorney Fees)); Filed by Clerk

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  • 08/23/2019
  • Docketat 09:30 AM in Department 44, Edward B. Moreton, Presiding; Hearing on Motion for Attorney Fees - Held - Taken under Submission

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  • 08/23/2019
  • DocketMinute Order ( (Hearing on Motion for Attorney Fees)); Filed by Clerk

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486 More Docket Entries
  • 10/19/2012
  • DocketPROOF OF SERVICE SUMM AND PETITION

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  • 10/19/2012
  • DocketPROOF OF SERVICE SUMM AND PETITION

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  • 10/19/2012
  • DocketProof of Service

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  • 09/21/2012
  • Docketat 08:30 AM in Department 57; Non-Appearance Case Review

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  • 09/21/2012
  • DocketOSC-Failure to 'OTHER'; Filed by Court

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  • 09/21/2012
  • DocketORDER TO SHOW CAUSE HEARING

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  • 09/21/2012
  • DocketMinute order entered: 2012-09-21 00:00:00; Filed by Clerk

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  • 07/10/2012
  • DocketPETITION TO CONFIRM, CORRECT OR VACATE CONTRACTUAL ARBITRATION AWARD (ALTERNATIVE DISPUTE RESOLUTION)

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  • 07/10/2012
  • DocketSUMMONS

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  • 07/10/2012
  • DocketPetition; Filed by null

    Read MoreRead Less

Tentative Rulings

Case Number: BS138171    Hearing Date: October 20, 2020    Dept: 34

SUBJECT: Motion for Relief from Judgment

Moving Party: Judgment Debtor Eric A. Mitchell

Resp. Party: Judgment Creditor James Dalessandro

Judgment Debtor’s motion for relief from judgment is DENIED.

Judgment Debtor’s request for judicial notice is DENIED as superfluous.

Judgment Creditor’s evidentiary objections are SUSTAINED.

PRELIMINARY COMMENTS:

A valid judgment was entered against the Judgment Debtor in 2013. During post-judgment proceedings, the Judgement Creditor’s attorney committed various allegedly fraudulent acts and signed allegedly perjurious declarations. The Judgment Creditor’s attorney has been sanctioned for many of these acts by at least two judges who were presiding over this case.

The issue presented by this motion is simple: does the Judgment Creditor’s alleged misstatements under oath or frauds on the court during post-judgment proceedings retroactively make the original judgment invalid?

The answer is no.

The Judgment Creditor’s attorney can be – and has been – sanctioned for his actions. The Judgment Creditor’s requests for attorney’s fees can be – and has been – reduced or denied. If a party felt it warranted, the Judgment Creditor’s attorney could be reported to the State Bar. (The Court is taking no position on whether or not this would be appropriate.)

But the Judgment Debtor does not get a “Get Out of Jail Free” card – i.e., he does not get his judgment declared null and void – because of the post-judgment actions of his attorney.

BACKGROUND:

On July 10, 2012, Petitioner Writers Guild of America, West Inc. filed a petition to confirm contractual arbitration award against Respondents Citizen Jane Productions, LLC and Cibola Entertainment LLC. This petition was originally filed in Department 57.

On March 1, 2013, the Court granted the petition to confirm the arbitrator’s opinion and award.

On March 22, 2013, the Court entered the following judgment:

“1) Respondents Citizen Jane Productions, LLC and Cibola Entertainment, LLC (“Respondents”) shall pay Writers Guild of America, West, Inc. (“WGAW”) $52,277.21 relating to unpaid compensation on behalf of writer James Delessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney fees, in the amount of $_______.00.” (03/22/13 Judgment.)

On December 2, 2013, Judgment Creditor WGAW filed an acknowledgment of assignment of judgment, assigning its right, title, and interest in the judgment to James Dalessandro. (12/02/13 Acknowledgment of Assignment of Judgment.)

On July 14, 2014, the Court denied without prejudice the motion to amend judgment to include LLC managers (alter ego) and related company as judgment debtors. (07/14/14 Minute Order.)

On June 10, 2016, the Court granted the motion to amend judgment to add Eric Mitchell as a judgment debtor and denied the motion without prejudice as to Mark Myden. (06/10/16 Minute Order.)

On July 6, 2017, the Court denied without prejudice the motion to vacate and set aside void judgment. (07/06/17 Minute Order.)

On July 6, 2017, the Court granted Eric Mitchell’s motion to strike and/or tax costs. The Court ordered Judgment Creditor James Dalessandro and his counsel, Paul Levine, to pay Judgment Debtor Eric Mitchell the reasonable attorney’s fees and costs in the amount of $4,399.00. (07/06/17 Minute Order.)

On July 31, 2017, James Dalessandro filed an acknowledgement of partial satisfaction of judgment, receiving the sum of $40.00.

On September 11, 2017, the following amended judgment was entered:

“Respondents Citizen Jane Productions, LLC; Cibola Entertainment, LLC; and Eric Albert Mitchell shall pay Writers Guild of America, West, Inc. $61,277.21 relating to unpaid compensation on behalf of writer James Dalessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney’s fees, in the amount of $______.” (09/11/17 Amended Judgment.)

On September 29, 2017, the Court denied Judgment Debtor Eric A. Mitchell’s motion to vacate and set aside the judgment and granted attorney’s fees in the amount of $4,000.00 to the judgment creditor. (09/29/17 Minute Order.)

On December 4, 2017, the Court granted Eric A. Mitchell’s motion for sanctions for filing of frivolous motion in the amount of $4,875.00. (12/04/17 Minute Order.) The Court also denied Judgment Creditor’s motion for reconsideration taken under submission on 11/27/17. (Ibid.) The Court further granted the motion for attorney’s fees in the amount of $2,560.00 that was taken under submission on 11/27/17. (Ibid.)

On January 8, 2018, Judgment Creditor Eric Mitchell filed an acknowledgement of full satisfaction of judgment by Judgment Debtor Paul Levine. (01/08/18 Acknowledgement of Satisfaction of Judgment.)

On March 2, 2018, the Court granted the motion to quash service of order to appear. (03/02/18 Minute Order.)

On July 16, 2018, at an examination of Judgment Debtor Eric Albert Mitchell, the Court ordered a bench warrant issued and held to date of August 20, 2018 due to Judgment Debtor Mitchell’s failure to appear. (07/16/18 Minute Order.)

On July 24, 2018, the Court denied Judgment Debtor Eric A. Mitchell’s motion for sanctions of $11,000.00 against Paul Samuel Levine. (07/24/18 Minute Order.)

On August 20, 2018, at the examination of Judgment Debtor Eric Albert Mitchell, the Court denied the oral request for sanctions. (08/20/2018.)

On September 25, 2018, the Court denied James Dalessandro’s motion and ordered Paul Samuel Levine to pay sanctions to Eric Mitchell in the amount of $3,456.70, finding that Mr. Levine served discovery that was not signed, and filed a false declaration that cannot be relied upon in support of the motion. (09/25/18 Order, p. 1:12-16.) The Court found that Mr. Levine failed to sign the discovery that Dalessandro sought to compel, and that Mr. Levine’s failure to do so rendered the demand a nullity and that Mr. Mitchell did not have to respond to. (Id. at p. 1:17-19.)

On October 25, 2018, James Dalessandro and his counsel Paul S. Levine filed a notice of appeal from the September 25, 2018 order imposing sanctions under Code of Civil Procedure section 904.1(b). (10/25/18 Notice of Appeal.)

On December 18, 2018, the appellate court dismissed the appeal due to the appellant being in default. (12/18/20 Appellate Order Dismissing Appeal.)

On March 4, 2019, the Court awarded post judgment costs in the amount of $342.40. (03/04/19 Minute Order.) The Court noted that “Paul Levine hands the court a check in the amount of $493.92 for costs and interest to be given to D. Joshua Staub” but “D. Joshua Staub does not take possession of the check and exits the courtroom without leave of court.” (Ibid.)

On March 26, 2019, the Court granted Eric A. Mitchell’s motion to quash service of application and order for appearance and examination.

On April 4, 2019, the appellate court dismissed as untimely Dalessandro’s appeal from the July 6, 2017 sanctions order and the December 4, 2017 sanctions order. (04/04/19 Appeal – Opinion Received B289365.)

On April 4, 2019, the appellate court affirmed the judgment in 2016 to amend to add Eric Albert Mitchell as a judgment debtor. (04/04/19 Appeal – Opinion Received B286501.)

On August 26, 2019, the Court granted Mitchell’s motion for attorney’s fees. (08/26/19 Minute Order.)

On September 13, 2019, Mitchell filed an acknowledgement of satisfaction of judgment, that judgment is satisfied in full. (09/13/19 Acknowledgment of Satisfaction.)

On March 6, 2020, the appellate court issued a remittitur, attaching a copy of the original opinion of December 17, 2019. The appellate court in its opinion, certified for publication and filed on January 3, 2020, denied Dalessandro and Levine’s petition challenging the motion for compel production of documents and affirmed the imposition of $3,456.70 in sanctions against Levine.

On March 9, 2020, James Dalessandro filed a motion to compel further responses to demand for production of documents served on Mitchell on January 10, 2020, and request for sanctions against Mitchell in the amount of $3,560.00

On March 24, 2020, Eric A. Mitchell filed a motion for attorney’s fees of $14,898.00 against Paul Samuel Levine.

On June 8, 2020, James Dalessandro filed a motion for attorney’s fees and costs.

On June 10, 2020, due to the closure of Department 44, this case was transferred and reassigned to Department 34, effective June 15, 2020. (06/10/2020 Minute Order.)

On July 13, 2020, James Dalessandro filed a Memorandum of Costs (Summary) signed by his counsel on July 11, 2020.

On June 14, 2020, the Court took the hearing on the parties’ motions for attorney’s fees and costs and motion for order compelling further responses to demand for production of documents under submission.

On June 14, 2020, after taking the parties’ motions for attorney’s fees and costs and motion for order compelling further responses to demand for production of documents under submission, the Court:

· Denied Judgment Creditor’s motion to compel further responses to production demand;

· Granted Judgment Creditor’s motion for attorney’s fees in the amount of $8,800.00 but denied Judgment Creditor’s request for costs; and

· Granted Judgment Debtor’s motion for attorney’s fees and costs in the amount of $12,680.00.

On August 21, 2020, the Court granted Judgment Debtor Eric A. Mitchell’s motion to strike the costs in the Memorandum of Costs (Summary) signed 07/11/2020; denied Judgment Creditor James Dalessandro’s request for sanctions; and granted Judgment Debtor Eric A. Mitchell’s request for sanctions against Judgment Creditor in part in the amount of $7,305.75.

On September 11, 2020, Judgment Creditor James Dalessandro filed a substitution of attorney, substituting attorney Paul S. Levine with attorney Ronald L. Gruzen.

On September 18, 2020, Judgment Debtor Eric A. Mitchell filed the instant motion for relief from judgment.

ANALYSIS:

I. Motion for Relief from Judgment

A. Request for Judicial Notice

Judgment Debtor requests that the Court take judicial notice of the following documents:

· Exhibit A, the “Judgment” signed 3/22/13.

· Exhibit B, the “Order on Motion to Amend Judgment to Include LLC Managers (Alter Ego) As Judgment Debtors” signed and entered on 7/5/16.

· Exhibit C, the “Proof of Service of Summons Motion” signed but not dated.

· Exhibit D, the “Proof of Service by First-Class Mail – Civil” signed 6/13/16.).

· Exhibit E, the “Memorandum of Costs (Summary) dated 6/13/16.

· Exhibit F, the 9/11/17 amended judgment. Exhibit G, the 8/20/18 minute order that imposed monetary sanctions on Paul S. Levine.

· Exhibit H, the 9/25/18 “Order Denying “Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18” signed 9/25/18.

· Exhibit I, the “Memorandum of Costs (Summary)” signed 7/11/20.

· Exhibit J, the “Ruling on Submitted Matter Re: (1) Motion to Compel Further Responses to Request for Production of Documents (2) Motion for Attorney’s Fees (3) Motion for Attorney’s Fees” entered 7/14/20.

Judgment Debtor’s request for judicial notice is DENIED as superfluous. (Cal. Rules of Court, rule 3.1110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).

B. Evidentiary Objections

Judgment Creditor submits ten evidentiary objections to the declaration of D. Joshua Staub. Judgment Creditor asserts that this declaration is “irrelevant to the Motion for Relief and lacks foundation.” (Objections, p. 1:25-26.) Judgment Creditor argues that “most of his declaration is an attempt to request judicial notice of documents in this matter and is redundant as California Rules of Court . . . Rule 3.1110(d) states that ‘Any paper previously filed must be referred to by date of execution and title’ therefor rendering this declaration unnecessary.

The Court agrees with Judgment Creditor and SUSTAINS his objections.

C. Discussion

Judgment Debtor “move[s] for relief from the ‘Judgment’ entered on 3/22/13 as amended by the ‘Order on Motion to Amend Judgment to Include LLC Managers (Alter Ego) as Judgment Debtors’ signed and entered 7/5/16, and the ‘Amended Judgment’ filed on 9/11/17 (collectively the ‘Judgment’), on the grounds that James Dalessandro has committed numerous instances of fraud on the court, and perjury in the course of enforcing the Judgment, and therefore Eric Mitchell should be relieved from the Judgment, and all liability therefore, by ordering that the Judgment is satisfied, annulled, or its enforcement is permanently enjoined on the grounds that James Dalessandro has committed fraud upon the court.” (Motion, p. 1:6-15.)

Judgment Debtor argues “that California public policy must be that a judgment creditor is bound by the same rules as any litigant and when said creditor resorts to perjury or deception to enforce his judgment it must bear the consequence of that condemnable course, and suffer losing the judgment, and all benefits therefrom.” (Id. at p. 3:10-13.) Judgment Debtor maintains that “the law specifies that for every wrong there is a remedy, and a judgment creditor who resorts to fraud upon the court should lose his judgment.” (Id. at p. 3:14-16, citing Civ. Code, § 3523.) Judgment Debtor argues that “if that were not the rule then the unscrupulous judgment creditor would obtain the benefit of his misdeed.” (Id. at p. 3:16-17, citing Civ. Code, § 3517.) Judgment Debtor also cites to cases from the Seventh Circuit, Eighth Circuit, and First Circuit to demonstrate that “the court has the inherent power to purge its record of Dalessandro’s fraud.” (Id. at p. 7:13-28, citing Montano v. City of Chicago (7th Cir. 2008) 535 F.3d 558, 564; Martin v. DaimlerChrysler Corp. (8th Cir. 2001) 251 F.3d 691, 69; Allen v. Chicago Transit Authority (7th Cir. 2003) 317 F.3d 696, 703; Aoude v. Mobil Oil Corp. (1st Cir. 1989) 892 F.2d 1115, 1119.)

Judgment Debtor maintains that “during his enforcement of the Judgment, Dalessandro[,] through his chosen counsel[,] has committed numerous frauds on the court by making false statements and withholding facts from the court.” (Id. at p. 3:25-27.) Judgment Debtor identifies the following five frauds committed by Judgment Creditor’s counsel:

· Fraud #1: False Declaration and False Proof of Service

o On 8/20/18, Judge Moreton found that Dalessandro’s attorney, Paul Levine filed a false declaration (‘Request for Judicial Notice’ signed 3/24/20, Doc. #5, Transcript of 8/20/18 proceedings, p. 99:15-16 [False declaration].), and a false proof of service (Id. at p. 99:16-17.). These findings were set forth in the ‘Order Denying ‘Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions’ signed 4/20/18’ signed 9/25/18 (Hon. Moreton)(Ex. H.).” (Id. at p. 5:19-25.)

· Fraud #2: False Cost Memoranda

o On 6/13/16, Levine signed the ‘Memorandum of Costs (Summary)’ signed 6/13/16 (‘2016 Memo’) wherein he claimed that he incurred $200 to serve process on Mitchell.

o On 7/13/20, Dalessandro filed his ‘Memorandum of Costs (Summary)’ signed 7/11/20 (‘7/11 Memo’) wherein he claimed in item 5 that he incurred $1,625 to serve process on Mitchell.

o The only service that Mitchell received prior to the Judgment was by mail and according to the filings, it cost nothing to serve Mitchell (See, ‘Proof of Service of ­Summons Motion’ signed but not dated & ‘Proof of Service by First-Class Mail – Civil’ signed 6/13/16.).

o Thus, Dalessandro has contradicted himself in 3 affidavits on the cost to serve process on Mitchell, claiming it was [a] nothing, [b] $200, and [c] $1,625.” (Id. at pp. 5:27-6:10.)

· Fraud #3: False Attorney Fee Motions

o “On 6/8/20, in the ‘Notice of Motion and Motion for Attorney’s Fees and Costs Incurred’ signed 6/8/20 (‘6/8 Fee Motion’), Dalessandro claimed that he incurred $10,000 of attorney’s fees in connection with Second District Court of Appeal case number B286501 (6/8 Fee Motion, pp. 10:10-14, and 14:13-20.)

o On 7/15/20, in the ‘Notice of Motion and Motion for Attorney’s Fees Incurred in Opposing Appeal’ signed 7/15/20 (‘7/15 Motion’), Dalessandro claimed $18,200 of attorney’s fees for B286501 (7/15 Motion, pp. 9:12-15 & 10:12-12:2.).

o There is no way to reconcile these affidavits regarding the fees for B286501. They are false and are not the only time that Dalessandro has submitted false affidavits to obtain greater relief than he is entitled to.” (Id. at p. 6:12-21.)

· Fraud #4: Concealment of Prior Application for Fees and Costs

o In the 7/11 Memo, and the 7/15 Motion, Dalessandro concealed from the court that [a] he had previously sought the fees, and costs that he claimed thereby in his 6/8 Fee Motion; and [b] that the court denied him those fees, and costs in the ‘Ruling on Submitted Matter Re: (1) Motion to Compel Further Responses to Request for Production of Documents (2) Motion for Attorney’s Fees (3) Motion for Attorney’s Fees’ entered 7/14/20 (‘7/14/20 Order’).” (Id. at p. 6:23-28, citing Ex. J. pp. 26:3-4 & 31:7.)

· Fraud #5: The Court’s Finding of Prevarication

o “On 6/10/20, Mitchell pointed out in his ‘Eric Mitchell’s Supplemental Opposition to ‘Notice of Motion and Motion for Attorney’s Fees and Costs Incurred’ signed 6/8/20’ signed 6/10/20 that Dalessandro’s prior attorney omitted material facts from the 6/8 Fee Motion. On 7/14/20, this Court agreed, and found that Levine, Dalessandro’s attorney prevaricated in the 7/14/20 Order when it stated: ‘As indicated below (see § (B)), the Court find that various statements in attorney Levine’s June 8, 2020 declaration contradict prior statements made to the court and omits material facts, such as decisions made by the court, and hence are misleading and/or intentionally false.’” (Id. at p. 7:2-10, citing Ex. J, p. 3:10-12.)

In opposition, Judgment Creditor argues that this “motion is groundless as it is devoid of any relevant supporting legal authority.” (Opp., p. 1:21-23.) Judgment Creditor asserts that given that Judgment Debtor “does not challenge the underlying judgment but acknowledge its validity, the arguments raised in support of the motion have no applicable legal support under California law.” (Id. at p. 1:23-26.) Judgment Creditor also argue that this motion is untimely pursuant to Code of Civil Procedure section 663a and therefore must be denied. (Id. at p. 6:2-7.)

The Court finds that Judgment Creditor’s argument regarding the timeliness of this motion is unfounded because Code of Civil Procedure section 663a applies to prejudgment, not post judgment conduct. Code of Civil Procedure 663a applies when a motion to set aside judgment is made pursuant to Code of Civil Procedure section 663, which is brought when (1) there is an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected[;] or (2) “[a] judgment or decree not consistent with or not supported by the special verdict.” (Code Civ. Proc., § 663.) Judgment Debtor moves for relief from judgment pursuant to post judgment conduct in this litigation, not any prejudgment conduct.

More importantly, however, the Court agrees with Judgment Creditor that Judgment Debtor does not provide binding legal authority for the Court to set aside a judgment due to Judgment Creditor’s counsel’s conduct, or due to Judgment Creditor’s ratification of his counsel’s conduct.

There are approximately three dozen Maxims of Jurisprudence listed in our Civil Code. (See Civil Code §§ 3509-3548.) Virtually all of them were enacted in 1872. They are as follows:

· §3510. When the reason of a rule ceases, so should the rule itself.

· §3511. Where the reason is the same, the rule should be the same.

· §3512. One must not change his purpose to the injury of another.

· §3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.

· §3514. One must so use his own rights as not to infringe upon the rights of another.

· §3515. He who consents to an act is not wronged by it.

· §3516. Acquiescence in error takes away the right of objecting to it.

· §3517. No one can take advantage of his own wrong.

· §3518. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession.

· §3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it.

· §3520. No one should suffer by the act of another.

· §3521. He who takes the benefit must bear the burden.

· §3522. One who grants a thing is presumed to grant also whatever is essential to its use.

· §3523. For every wrong there is a remedy.

· §3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose.

· §3525. Between rights otherwise equal, the earliest is preferred.

· §3526. No man is responsible for that which no man can control.

· §3527. The law helps the vigilant, before those who sleep on their rights.

· §3528. The law respects form less than substance.

· §3529. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.

· §3530. That which does not appear to exist is to be regarded as if it did not exist.

· §3531. The law never requires impossibilities.

· §3532. The law neither does nor requires idle acts.

· §3533. The law disregards trifles.

· §3534. Particular expressions qualify those which are general.

· §3535. Contemporaneous exposition is in general the best.

· §3536. The greater contains the less.

· §3537. Superfluity does not vitiate.

· §3538. That is certain which can be made certain.

· §3539. Time does not confirm a void act.

· §3540. The incident follows the principal, and not the principal the incident.

· §3541. An interpretation which gives effect is preferred to one which makes void.

· §3542. Interpretation must be reasonable.

· §3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer.

· §3545. Private transactions are fair and regular.

· §3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

· §3547. A thing continues to exist as long as is usual with things of that nature.

· §3548. The law has been obeyed.

The Judgment Debtor relies on two of these Maxims of Jurisprudence: “For every wrong there is a remedy.” [Civ. Code, § 3523] and “No one can take advantage of his own wrong.” [Civ. Code, § 3517]. (See Motion, p. 3:14-17.)

First of all, Judgment Debtor – whether intentionally or not – misstates Civil Code § 3523. According to Judgment Debtor, “The law specifies that for every wrong there is a remedy, and a judgment creditor who resorts to fraud upon the court should lose his judgment (Civ. Code, § 3523.)” (Motion, p. 3:14-16.) However, Civil Code § 3523 simply states that “for every wrong there is a remedy.” It does not state that “a judgment creditor who resorts to fraud upon the court should lose his judgment.”

More importantly, these maxims of jurisprudence are not sufficient. As stated in the preamble to these Maxims, which was only added in 2014, “The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of this code, but to aid in their just application.” (Civil Code § 3509.) This Court has always found that when litigants rely upon these Maxims, it is either intended as a bit of levity, or because the litigant has no statutory or case authority upon which to rely.

Judgment Debtor has not provided any binding statutory or case law for his proposition that the court may set aside a judgment due to allegations of an opposing party’s fraud on the court. “A point which is merely suggested by [a party’s] counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.” (Do It Urself Moving & Storage v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn 2.)

Further, as Judgment Debtor concedes, the Court has already addressed any fraudulent conduct of Judgment Creditor’s counsel during the relevant hearings.

The Court DENIES Judgment Debtor’s motion for relief from judgment.

Case Number: BS138171    Hearing Date: August 20, 2020    Dept: 34

SUBJECT: Motion to Tax Costs

Moving Party: Judgment Debtor Eric A. Mitchell

Resp. Party: Judgment Creditor James Dalessandro

Judgment Debtor’s motion to tax costs is GRANTED.

Judgment Creditor’s request for sanctions is DENIED.

Judgment Debtor’s request for sanctions against Judgment Creditor’s counsel is GRANTED in part in the amount of $7,305.75.

BACKGROUND:

On July 10, 2012, Petitioner Writers Guild of America, West Inc. filed a petition to confirm contractual arbitration award against Respondents Citizen Jane Productions, LLC and Cibola Entertainment LLC. This petition was originally filed in Department 57.

On March 1, 2013, the Court granted the petition to confirm the arbitrator’s opinion and award.

On March 22, 2013, the Court entered the following judgment:

“1) Respondents Citizen Jane Productions, LLC and Cibola Entertainment, LLC (“Respondents”) shall pay Writers Guild of America, West, Inc. (“WGAW”) $52,277.21 relating to unpaid compensation on behalf of writer James Delessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney fees, in the amount of $_______.00.” (03/22/13 Judgment.)

On December 2, 2013, Judgment Creditor WGAW filed an acknowledgment of assignment of judgment, assigning its right, title, and interest in the judgment to James Dalessandro. (12/02/13 Acknowledgment of Assignment of Judgment.)

On July 14, 2014, the Court denied without prejudice the motion to amend judgment to include LLC managers (alter ego) and related company as judgment debtors. (07/14/14 Minute Order.)

On June 10, 2016, the Court granted the motion to amend judgment to add Eric Mitchell as a judgment debtor and denied the motion without prejudice as to Mark Myden. (06/10/16 Minute Order.)

On July 6, 2017, the Court denied without prejudice the motion to vacate and set aside void judgment. (07/06/17 Minute Order.)

On July 6, 2017, the Court granted Eric Mitchell’s motion to strike and/or tax costs. The Court ordered Judgment Creditor James Dalessandro and his counsel, Paul Levine, to pay Judgment Debtor Eric Mitchell the reasonable attorney’s fees and costs in the amount of $4,399.00. (07/06/17 Minute Order.)

On July 31, 2017, James Dalessandro filed an acknowledgement of partial satisfaction of judgment, receiving the sum of $40.00.

On September 11, 2017, the following amended judgment was entered:

“Respondents Citizen Jane Productions, LLC; Cibola Entertainment, LLC; and Eric Albert Mitchell shall pay Writers Guild of America, West, Inc. $61,277.21 relating to unpaid compensation on behalf of writer James Dalessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney’s fees, in the amount of $______.” (09/11/17 Amended Judgment.)

On September 29, 2017, the Court denied Judgment Debtor Eric A. Mitchell’s motion to vacate and set aside the judgment and granted attorney’s fees in the amount of $4,000.00 to the judgment creditor. (09/29/17 Minute Order.)

On December 4, 2017, the Court granted Eric A. Mitchell’s motion for sanctions for filing of frivolous motion in the amount of $4,875.00. (12/04/17 Minute Order.) The Court also denied Judgment Creditor’s motion for reconsideration taken under submission on 11/27/17. (Ibid.) The Court further granted the motion for attorney’s fees in the amount of $2,560.00 that was taken under submission on 11/27/17. (Ibid.)

On January 8, 2018, Judgment Creditor Eric Mitchell filed an acknowledgement of full satisfaction of judgment by Judgment Debtor Paul Levine. (01/08/18 Acknowledgement of Satisfaction of Judgment.)

On March 2, 2018, the Court granted the motion to quash service of order to appear. (03/02/18 Minute Order.)

On July 16, 2018, at an examination of Judgment Debtor Eric Albert Mitchell, the Court ordered a bench warrant issued and held to date of August 20, 2018 due to Judgment Debtor Mitchell’s failure to appear. (07/16/18 Minute Order.)

On July 24, 2018, the Court denied Judgment Debtor Eric A. Mitchell’s motion for sanctions of $11,000.00 against Paul Samuel Levine. (07/24/18 Minute Order.)

On August 20, 2018, at the examination of Judgment Debtor Eric Albert Mitchell, the Court denied the oral request for sanctions. (08/20/2018.)

On September 25, 2018, the Court denied James Dalessandro’s motion and ordered Paul Samuel Levine to pay sanctions to Eric Mitchell in the amount of $3,456.70, finding that Mr. Levine served discovery that was not signed, and filed a false declaration that cannot be relied upon in support of the motion. (09/25/18 Order, p. 1:12-16.) The Court found that Mr. Levine failed to sign the discovery that Dalessandro sought to compel, and that Mr. Levine’s failure to do so rendered the demand a nullity and that Mr. Mitchell did not have to respond to. (Id. at p. 1:17-19.)

On October 25, 2018, James Dalessandro and his counsel Paul S. Levine filed a notice of appeal from the September 25, 2018 order imposing sanctions under Code of Civil Procedure section 904.1(b). (10/25/18 Notice of Appeal.)

On December 18, 2018, the appellate court dismissed the appeal due to the appellant being in default. (12/18/20 Appellate Order Dismissing Appeal.)

On March 4, 2019, the Court awarded post judgment costs in the amount of $342.40. (03/04/19 Minute Order.) The Court noted that “Paul Levine hands the court a check in the amount of $493.92 for costs and interest to be given to D. Joshua Staub” but “D. Joshua Staub does not take possession of the check and exits the courtroom without leave of court.” (Ibid.)

On March 26, 2019, the Court granted Eric A. Mitchell’s motion to quash service of application and order for appearance and examination.

On April 4, 2019, the appellate court dismissed as untimely Dalessandro’s appeal from the July 6, 2017 sanctions order and the December 4, 2017 sanctions order. (04/04/19 Appeal – Opinion Received B289365.)

On April 4, 2019, the appellate court affirmed the judgment in 2016 to amend to add Eric Albert Mitchell as a judgment debtor. (04/04/19 Appeal – Opinion Received B286501.)

On August 26, 2019, the Court granted Mitchell’s motion for attorney’s fees. (08/26/19 Minute Order.)

On September 13, 2019, Mitchell filed an acknowledgement of satisfaction of judgment, that judgment is satisfied in full. (09/13/19 Acknowledgment of Satisfaction.)

On March 6, 2020, the appellate court issued a remittitur, attaching a copy of the original opinion of December 17, 2019. The appellate court in its opinion, certified for publication and filed on January 3, 2020, denied Dalessandro and Levine’s petition challenging the motion for compel production of documents and affirmed the imposition of $3,456.70 in sanctions against Levine.

On March 9, 2020, James Dalessandro filed a motion to compel further responses to demand for production of documents served on Mitchell on January 10, 2020, and request for sanctions against Mitchell in the amount of $3,560.00

On March 24, 2020, Eric A. Mitchell filed a motion for attorney’s fees of $14,898.00 against Paul Samuel Levine.

On June 8, 2020, James Dalessandro filed a motion for attorney’s fees and costs.

On June 10, 2020, due to the closure of Department 44, this case was transferred and reassigned to Department 34, effective June 15, 2020. (06/10/2020 Minute Order.)

On July 13, 2020, James Dalessandro filed a Memorandum of Costs (Summary) signed by his counsel on July 11, 2020.

On June 14, 2020, the Court took the hearing on the parties’ motions for attorney’s fees and costs and motion for order compelling further responses to demand for production of documents under submission.

On June 14, 2020, after taking the parties’ motions for attorney’s fees and costs and motion for order compelling further responses to demand for production of documents under submission, the Court:

· Denied Judgment Creditor’s motion to compel further responses to production demand;

· Granted Judgment Creditor’s motion for attorney’s fees in the amount of $8,800.00 but denied Judgment Creditor’s request for costs; and

· Granted Judgment Debtor’s motion for attorney’s fees and costs in the amount of $12,680.00.

On July 21, 2020, Eric A. Mitchell filed the instant motion to strike the costs in the Memorandum of Costs (Summary) signed 07/11/2020.

ANALYSIS:

I. Motion to Tax Costs

A. Request for Judicial Notice

Judgment Debtor Mitchell requests that the Court take judicial notice of the following documents:

· Document 1: Judicial Council of California, form MC-012; and

· Document 2: Judicial Council of California form APP-013.

The Court GRANTS Judgment Debtor Mitchell’s request for judicial notice. (Evid. Code, § 452, subd. (c).)

B. Discussion

1. Taxing Costs

Judgment Debtor moves to strike, or tax, the Memorandum of Costs (Summary) signed on 07/11/2020 (“7/11 Memo”) based on eight different grounds. (See Motion, pp. 1:5-2:22.)

For Judgment Debtor’s seventh reason for bringing this motion, he argues “that all costs sought in items 1, 5, 11, and 16 of the 7/11 Memo were previously denied in the” Court’s 07/14/2020 ruling on Judgment Creditor’s motion for attorney’s fees and costs. (Motion, p. 1:19-26.)

In the ruling on Judgment Creditor’s motion for attorney’s fees and costs where Judgment Creditor sought costs in the amount of $12, 914.00 in costs, the Court held:

“The amended judgment for this case was entered on September 11, 2017, the remittitur for B286501 was issued on June 11, 2020 (Reply, p. 7:6-7) and Judgment Creditor filed this motion for attorney’s fees and costs, with the declaration explaining the breakdown of costs, on June 8, 2020. The costs claimed on the Judgment Creditor’s counsel’s declaration does not include any dates, thus the Court is not able to determine if these costs were incurred prejudgment, post-judgment, or on appeal. Further, Judgment Creditor does not provide any supplemental evidence in his reply documents to support why these costs were necessarily incurred or reasonable. Without evidence to determine when these costs were incurred, the Court is unable to determine if the costs were timely sought or reasonable.

The Court DENIES Judgment Creditor’s request for costs.” (07/14/2020 Ruling On Submitted Matter, pp. 30:10-11, 30:26-31:7.)

During oral argument on this issue, Judgment Creditor argued that the Memorandum of Costs was filed before this Court issued its July 14, 2020 ruling. While technically true, the Memorandum of Costs was only filed on July 13, 2020 –just one day before this Court’s ruling, and after this Court had issued its tentative ruling on the motion for attorney's fees and costs. Further, Judgment Creditor states he filed the memorandum of costs in an attempt to “address[] the concern of this Court expressed in its RULING ON SUBMITTED MATTER filed on July 14, 2020” – indicating that Judgment Creditor was well aware of the Court’s tentative decision before filing his Memorandum of Costs. (See Opp., p. 3:16-18.)

However, even if the Memorandum of Costs filed on July 13, 2020 was not filed frivolously, it could have been withdrawn once the Court made its July 14, 2020 ruling. Further Judgment Creditor’s 11-page opposition was clearly frivolous. Judgment Creditor’s opposition has an entire section devoted to arguing that “All of the costs claimed on the memorandum of costs are proper.” (Opposition, p. 8:13-14; see Opposition, §IV, p. 8:13 – p. 10:5.) In addition, Judgment Creditor argues that “sanctions [of $8,035.00] should be awarded against [Judgment Debtor’s counsel] because he was given ample opportunity to withdraw the motion to tax costs and did not do so.” (Opposition, p. 10:6-8; see Opposition, §V, p. 10:6 – p. 11:18.)

Absent the Court explicitly stating that the denial of costs was without prejudice, the Court’s initial ruling was final. A denial is not an invitation to correct perceived deficiencies. If Judgment Creditor was unsatisfied with the ruling, the correct procedure would have been to file a Motion for Reconsideration pursuant to CCP §1008.

The Court GRANTS Judgment Debtor’s motion to tax costs listed on the Memorandum of Costs (Summary) signed 07/11/2020.

2. Sanctions

Code of Civil Procedure section 128.5, subdivision (a) states:

“A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. . . .” (Code Civ. Proc., § 128.5, subd. (a).)

Under this section, “ ‘frivolous’ means totally and completely without merit for the sole purpose of harassing an opposing party.” (Id. at § 128.5, subd. (b)(2).) Further, “[e]xpenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers or, on the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.” (Id. at § 128.5, subd. (c).)

Judgment Debtor also “seeks an order pursuant to Code of Civil Procedure section 128.5 subdivisions (a) and (c), or in the alternative section 1008 subdivision (d) that Paul Samuel Levine (‘Levine’) pay the reasonable expenses of $9,030 that Mitchell incurred to bring this motion on the grounds that Levine engaged in frivolous conduct when filing the 7/11 Memo because it seeks costs without substantiation, costs that are not recoverable as a prejudgment cost under Code of Civil Procedure section 1033.5, not recoverable as costs on appeal under California Rules of Court, rule 8.278 subdivision (d), were not claimed on the correct Judicial Council from APP-013, and costs that the trial court already denied on 7/14/20 when ruling on the 6/8 Fee Motion.” (Motion, p. 2:3-12.)

In opposition, Judgment Creditor states that “Staub should be sanctioned in the amount of $8,000 for attorney’s fees and $35 in costs, or a total of $8,035.00.” (Opp., p. 11:16-18.) Judgment Creditor asserts that sanctions against Staub are warranted because he “persisted with this baseless Motion to Tax Costs after being given ample opportunity and rationale for withdrawing it.” (Id. at p. 10:8-10.)

a. Judgment Creditor’s Request for Sanctions

Since the Court is denying this motion to tax costs, Judgment Creditor’s request for sanctions is not warranted. The Court DENIES Judgment Creditor’s request for sanctions.

b. Judgment Debtor’s Request for Sanctions

For the reasons stated above in section (B)(1), the Court finds that the memorandum of costs filed on 7/13/2020 – and the Opposition filed on 8/5/2020 – were frivolous. The Court further finds that sanctions pursuant to Code of Civil Procedure §128.5 are warranted against Judgment Creditor’s counsel.

Judgment Debtor’s counsel asserts that Judgment Debtor incurred costs of $630.75, broken down as follows:

· $61.56 to reserve the hearing date for this Motion;

· $6.80 to electronically file the Motion;

· $7.75 serving the Motion;

· $6.80 to electronically file the reply for the Motion;

· $7.75 serving the reply for the Motion;

· $15.00 to telephonically appear for the hearing on the motion; and

· $525.00 for a reporter at the hearing, which Judgment Debtor’s counsel “consider[s] this a requirement because Paul Samuel Levine has appealed 3 prior orders imposing sanctions against him, and it is therefore necessary to make a complete record for the Court of Appeal.” (Staub Decl., ¶¶ 24-31.)

Judgment Debtor’s counsel declares that Judgment Debtor incurred attorney’s fees of $8,400.00, based on his counsel’s hourly rate of $400.00 per hour, and broken down as follows:

· 1.25 hours reviewing the 7/11 Motion;

· 2.25 hours reviewing the documents exhibited hereto;

· 6.75 hours conducting legal research;

· 5.25 hours to draft the Motion;

· Expected 3.75 hours to review the opposition and draft a reply; and

· Expected 1.75 hours to prepare for and attend the hearing. (Staub Decl., ¶¶ 32-40.)

The Court finds that Judgment Debtor’s declaration does not support the amount of fees sought, as the declaration has contradictory amounts. The sections on the declaration state that “Mitchell incurred costs of $105.75” (Staub Decl., p. 19:23) and “Mitchell incurred fees of $7,200” (Stab Decl., p. 20:7), which is different from the total fees and costs calculated in paragraphs 31 and 40. (Judgment Debtor also adds these amounts incorrectly; he says that the costs listed in ¶¶ 24-30 total $630.75; it is actually $630.66.)

Further, this amount is different from what is stated in the caption and notice of the motion, which requests sanctions imposed in the amount of $9,030.00. (Motion, Caption; p. 2:5.)

As a matter of due process, the Court will award the lowest amount stated and/or proved: i.e., $105.75 in costs and $7,200.00 in attorney's fees.

The Court also notes that the amount of sanctions awarded to Judgment Debtor is less than the amount that Judgment Creditor had sought to be awarded against Judgment Creditor. (See Opposition, p. 8:17 [seeking $8,035.00 in attorney's fees and costs].) It is not uncommon for courts to compare opposing counsel’s fees to help determine whether the moving party’s fees are reasonable. That is because a “comparative analysis of each side’s respective litigation costs may be a useful check on the reasonableness of any fee request.” (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 273, 281, quoting Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.)

The Court GRANTS Judgment Debtor’s request for sanctions of $7,305.75 against Judgment Creditor’s counsel pursuant to Code Civ. Proc., § 128.5.

Case Number: BS138171    Hearing Date: July 14, 2020    Dept: 34

SUBJECT: (1) Motion to Compel Further Responses to Request for Production of Documents

Moving Party: Judgment Creditor James Dalessandro

Resp. Party: Judgment Debtor Eric A. Mitchell

SUBJECT: (2) Motion for Attorney’s Fees

Moving Party: Judgment Creditor James Dalessandro

Resp. Party: Judgment Debtor Eric A. Mitchell

SUBJECT: (3) Motion for Attorney’s Fees

Moving Party: Judgment Debtor Eric A. Mitchell

Resp. Party: Judgment Creditor James Dalessandro

Dalessandro’s motion to compel further responses to request for production of documents and request for sanctions are DENIED. Mitchell’s request for sanctions is GRANTED in the amount of $2,181.70 against Dalessandro and Levine, jointly and severally.

Dalessandro’s motion for attorney’s fees is GRANTED in the amount of $8,800.00.

Mitchell’s motion for attorney’s fees is GRANTED in the amount of $13,580.00.

PRELIMINARY COMMENTS:

I.

This case was filed more than 8 years ago, on July 10, 2012. There have been at least three appeals, numerous post-judgment motions; because of the behavior of counsel, other judges have repeatedly imposed sanctions against one attorney or the other.

In today’s pleadings, both parties repeatedly and fluently cite to the Los Angeles Superior Court’s Civility Guidelines and similar case law. However, it appears to the Court that both attorneys are routinely flouting these guidelines. (Cf., Shakespeare, The Merchant of Venice, Act 1, Scene 3, line 107.)

This is the first time this case has appeared before this Court. The Court expects both parties to act professionally and courteously in all proceedings going forward.

II.

As indicated below (see §II (B)), the Court finds that various statements in attorney Levine’s June 8, 2020 declaration contradict prior statements made to the court and omits material facts, such as decisions made by the court, and hence are misleading and/or intentionally false. “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” (Paine v. State Bar (1939) 14 Cal. 2d 150, 154; see also Di Sabatino v. State Bar (1980) 27 Cal. 3d 159,162-163; Garlow v. State Bar (1982) 30 Cal. 3d 912, 917.) “As an officer of the court and member of the bar, the lawyer is obligated to use only such means as are consistent with truth: he may not seek to mislead a judge by artifice or suppress evidence he has a legal obligation to reveal. (Rules of Prof. Conduct, rules 5-220, 5-200 (A), (B).) In the final analysis, we cannot accept the notion that a selective recitation of facts satisfies the rules: half the truth in this case is just as misleading as a complete fabrication.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)

The Court has chosen not to schedule an OSC for sanctions for counsel’s apparent intentional actions to mislead this Court; however should counsel continue in this manner, he should expect the imposition of appropriate sanctions.

III.

Attorney Staub’s Objections often misquote the statements made in the Dalessandro Declaration. For instance, Objection No. 19 says that Dalessandro stated “Staub responded that he doesn’t own Levine any ‘sweetness.’” (Objections, p. 9:11-14. However, Dalessandro actually said “. . . he doesn’t owe Levine any ‘sweetness,’” not “own any sweetness.” (See Dalessandro Declaration, ¶ 9.) Similarly, objection No. 20 says that Dalessandro stated “. . . a level of common decadence should be part of the ‘civil proceedings’ . . . .” (See, Objections, p. 10:1-4.) However, Dalessandro actually said “. . . a level of common decency . . . .” not “common decadence.” (See Dalessandro Declaration, ¶ 9.)

There are numerous other typographical errors in the Objections. (See, e.g., Objections, p. 4:15 [“overlitation”]; p. 8:5 [“ideiot”]; p. 8:13 [“have no doubted,” instead of “have not doubted”].)

Lastly, some of the objections are frivolous. For instance, Objection No. 1 asks that the Court sustain an objection to Dalessandro stating, in the first paragraph of his declaration, that “[a]ll of the facts contained in this declaration are true and correct and, if called and sworn as a witness, I could and would competently testify to the truthfulness thereof.” Attorney Staub cites to People v. Villarreal (1985) 173 Cal.App.3d 1136, 1141-1142 and In re Wing Y. (1977) 67 Cal.App.3d 69, 78 as cases that hold that his objection should be sustained. (Opposition, p. 2:5-12.) However, neither case is on-point; neither case deals with an objection to a pro-forma introductory paragraph in a declaration. In fact, this Court would be surprised if counsel had actually read either case that he was citing to the Court. If Attorney Staub believes that there is a legitimate basis for this objection, the Court would be happy to hear from him during oral argument on this motion.

The Court suggests that counsel proof-read its future filings prior to submission to the Court and take seriously the admonishments contained in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3.)

BACKGROUND:

On July 10, 2012, Petitioner Writers Guild of America, West Inc. filed a petition to confirm contractual arbitration award against Respondents Citizen Jane Productions, LLC and Cibola Entertainment LLC. This petition was originally filed in Department 57.

On March 1, 2013, the Court granted the petition to confirm the arbitrator’s opinion and award.

On March 22, 2013, the Court entered the following judgment:

“1) Respondents Citizen Jane Productions, LLC and Cibola Entertainment, LLC (“Respondents”) shall pay Writers Guild of America, West, Inc. (“WGAW”) $52,277.21 relating to unpaid compensation on behalf of writer James Delessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney fees, in the amount of $_______.00.” (03/22/13 Judgment.)

On December 2, 2013, Judgment Creditor WGAW filed an acknowledgment of assignment of judgment, assigning its right, title, and interest in the judgment to James Dalessandro. (12/02/13 Acknowledgment of Assignment of Judgment.)

On July 14, 2014, the Court denied without prejudice the motion to amend judgment to include LLC managers (alter ego) and related company as judgment debtors. (07/14/14 Minute Order.)

On June 10, 2016, the Court granted the motion to amend judgment to add Eric Mitchell as a judgment debtor and denied the motion without prejudice as to Mark Myden. (06/10/16 Minute Order.)

On July 6, 2017, the Court denied without prejudice the motion to vacate and set aside void judgment. (07/06/17 Minute Order.)

On July 6, 2017, the Court granted Eric Mitchell’s motion to strike and/or tax costs. The Court ordered Judgment Creditor James Dalessandro and his counsel, Paul Levine, to pay Judgment Debtor Eric Mitchell the reasonable attorney’s fees and costs in the amount of $4,399.00. (07/06/17 Minute Order.)

On July 31, 2017, James Dalessandro filed an acknowledgement of partial satisfaction of judgment, receiving the sum of $40.00.

On September 11, 2017, the following amended judgment was entered:

“Respondents Citizen Jane Productions, LLC; Cibola Entertainment, LLC; and Eric Albert Mitchell shall pay Writers Guild of America, West, Inc. $61,277.21 relating to unpaid compensation on behalf of writer James Dalessandro, plus interest on the unpaid compensation (at the rate of 1.5% per month from March 27, 2012) in the amount of $9,281.00, a total of $61,558.21, plus costs, including attorney’s fees, in the amount of $______.” (09/11/17 Amended Judgment.)

On September 29, 2017, the Court denied Judgment Debtor Eric A. Mitchell’s motion to vacate and set aside the judgment and granted attorney’s fees in the amount of $4,000.00 to the judgment creditor. (09/29/17 Minute Order.)

On December 4, 2017, the Court granted Eric A. Mitchell’s motion for sanctions for filing of frivolous motion in the amount of $4,875.00. (12/04/17 Minute Order.) The Court also denied Judgment Creditor’s motion for reconsideration taken under submission on 11/27/17. (Ibid.) The Court further granted the motion for attorney’s fees in the amount of $2,560.00 that was taken under submission on 11/27/17. (Ibid.)

On January 8, 2018, Judgment Creditor Eric Mitchell filed an acknowledgement of full satisfaction of judgment by Judgment Debtor Paul Levine. (01/08/18 Acknowledgement of Satisfaction of Judgment.)

On March 2, 2018, the Court granted the motion to quash service of order to appear. (03/02/18 Minute Order.)

On July 16, 2018, at an examination of Judgment Debtor Eric Albert Mitchell, the Court ordered a bench warrant issued and held to date of August 20, 2018 due to Judgment Debtor Mitchell’s failure to appear. (07/16/18 Minute Order.)

On July 24, 2018, the Court denied Judgment Debtor Eric A. Mitchell’s motion for sanctions of $11,000.00 against Paul Samuel Levine. (07/24/18 Minute Order.)

On August 20, 2018, at the examination of Judgment Debtor Eric Albert Mitchell, the Court denied the oral request for sanctions. (08/20/2018.)

On September 25, 2018, the Court denied James Dalessandro’s motion and ordered Paul Samuel Levine to pay sanctions to Eric Mitchell in the amount of $3,456.70, finding that Mr. Levine served discovery that was not signed, and filed a false declaration that cannot be relied upon in support of the motion. (09/25/18 Order, p. 1:12-16.) The Court found that Mr. Levine failed to sign the discovery that Dalessandro sought to compel, and that Mr. Levine’s failure to do so rendered the demand a nullity and that Mr. Mitchell did not have to respond to. (Id. at p. 1:17-19.)

On October 25, 2018, James Dalessandro and his counsel Paul S. Levine filed a notice of appeal from the September 25, 2018 order imposing sanctions under Code of Civil Procedure section 904.1(b). (10/25/18 Notice of Appeal.)

On December 18, 2018, the appellate court dismissed the appeal due to the appellant being in default. (12/18/20 Appellate Order Dismissing Appeal.)

On March 4, 2019, the Court awarded post judgment costs in the amount of $342.40. (03/04/19 Minute Order.) The Court noted that “Paul Levine hands the court a check in the amount of $493.92 for costs and interest to be given to D. Joshua Staub” but “D. Joshua Staub does not take possession of the check and exits the courtroom without leave of court.” (Ibid.)

On March 26, 2019, the Court granted Eric A. Mitchell’s motion to quash service of application and order for appearance and examination.

On April 4, 2019, the appellate court dismissed as untimely Dalessandro’s appeal from the July 6, 2017 sanctions order and the December 4, 2017 sanctions order. (04/04/19 Appeal – Opinion Received B289365.)

On April 4, 2019, the appellate court affirmed the judgment in 2016 to amend to add Eric Albert Mitchell as a judgment debtor. (04/04/19 Appeal – Opinion Received B286501.)

On August 26, 2019, the Court granted Mitchell’s motion for attorney’s fees. (08/26/19 Minute Order.)

On September 13, 2019, Mitchell filed an acknowledgement of satisfaction of judgment, that judgment is satisfied in full. (09/13/19 Acknowledgment of Satisfaction.)

On March 6, 2020, the appellate court issued a remittitur, attaching a copy of the original opinion of December 17, 2019. The appellate court in its opinion, certified for publication and filed on January 3, 2020, denied Dalessandro and Levine’s petition challenging the motion to compel production of documents and affirmed the imposition of $3,456.70 in sanctions against Levine.

On March 9, 2020, James Dalessandro filed the instant motion to compel further responses to demand for production of documents served on Mitchell on January 10, 2020, and request for sanctions against Mitchell in the amount of $3,560.00

On March 24, 2020, Eric A. Mitchell filed the instant motion for attorney’s fees of $14,898.00 against Paul Samuel Levine.

On June 8, 2020, James Dalessandro filed the instant motion for attorney’s fees.

On June 10, 2020, due to the closure of Department 44, this case was transferred and reassigned to Department 34, effective June 15, 2020. (06/10/2020 Minute Order.)

ANALYSIS:

I. Motion to Compel Further Responses to Request for Production of Documents

A. Legal Standard

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in

evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions).” (Edmon & Karnow, supra, at ¶ 8:1496.)

B. Request for Judicial Notice

Judgment Debtor Mitchell requests that the Court take judicial notice of the following documents:

· Document 1: “Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18;

· Document 2: “Eric A. Mitchell’s Opposition to ERIC A. MITCHELL’S OPPOSITION TO “Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18”; Declaration of D. Joshua Staub” signed 8/6/18;

· Document 3: “Reply Memorandum of Points and Authorities in Support of Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions; Supporting Declaration of Paul S. Levine, Esq.” signed 8/17/18;

· Document 4: 8/20/18 minute order in case number BS138171;

· Document 5: “Reporter’s Transcript of Proceedings, Monday August 20, 2018;”

· Document 6: “Order Denying Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18” signed 9/25/18; and

· Document 7: December 17, 2019 published opinion in Second District Court of Appeal case number B293472. (RJN, pp. 2:5-3:2.)

The Court DENIES Mitchell’s request as superfluous as to Documents 1-4, 6-7. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

The Court GRANTS Mitchell’s request as to Document 5. (Evid. Code, § 452 (d).)

C. Discussion and Analysis

Judgment Creditor Dalessandro moves to compel further responses to his Demand for Identification, Production and Copying of Documents, which he served on Mitchell on January 10, 2020. (Motion, p. 2:4-5.) Judgment Creditor Dalessandro also moves for sanctions against Mitchell in the amount of $3,560.00. (Id. at p. 2:5-7.)

1. Compelling Further Responses

Judgment Debtor Mitchell’s objects to the demands served by Judgment Creditor Dalessandro, on the grounds “that the dates for production specified in the demand are in conflict. Mitchell further objects to this demand because the Demand is not signed.” Judgment Creditor Dalessandro argues that these objections are without merit. (Id. at p. 3:2-15.)

In opposition, Judgment Debtor Mitchell argues that his objections are warranted because Judgment Creditor Dalessandro’s counsel served the “Demand for Identification, Production and Copying of Documents Set No. 4” without signing it and because the Proof of Service by First-Class Mail-Civil (Proof of Service)” is also unsigned. (Opp., pp. 2:26-3:7, citing “Notice of Motion and Motion for Order Compelling Further Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions; Supporting Declaration of Paul S. Levine, Esq.; and Memorandum of Points and Authorities” signed 3/9/20 (“Second Motion”), Ex. A, p. 12; Second Motion, Ex. A, last page, “Proof of Service.”)

It appears that Judgment Creditor Dalessandro’s underlying demand for production of documents was not signed by Judgment Creditor’s counsel. (Motion, Ex. A, p. 12.) Because Judgment Creditor’s counsel failed to sign the discovery that his client seeks to compel, this rendered the demand a nullity that Judgment Debtor did not have to respond to. (This apparently is not the first time the trial Court has denied the Judgment Creditor’s motion to compel because the underlying discovery was not signed; see 09/25/18 Minute Order, p. 1:17-19.)

Further, the Court finds that Judgment Creditor’s counsel did not act in compliance with the service requirements for the underlying discovery.

“Successful service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013; the failure to comply deprives a court of jurisdiction to act.” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509). “Effective service of process by mail requires strict compliance not only with section 1013, but also with section 1013a. Strict compliance is required, and failure to comply deprives the court of jurisdiction.” (Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921.)

Code of Civil Procedure section 1013a provides that proof of service by mail may be made by the following method:

“(1) An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.”

An affidavit is defined as “a written statement verified by oath or affirmation.” (Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1106, citations omitted.)

The Court finds that the service of the demand is ineffective because there was no signature on the proof of service, attesting to the service of the production demand. (Motion, Ex. A, last page.) POS-030, the Proof of Service by First Class Mail – Civil Form that Judgment Creditor’s counsel filled out, provides the opportunity for an individual to follow the methods set forth in Code of Civil Procedure section 1013a. But without the signature, the service is ineffective as it is not an affidavit.

Lastly, the Court notes that by bringing the same arguments in this second motion regarding production of document discovery demand, Judgment Creditor Dalessandro disregards both the Court’s September 25, 2018 order and the opinion in the Second District Court of Appeal case number B293472, which already explained why the discovery demand at issue is a nullity or how strict compliance with Code of Civil Procedure section 1013a is required.

The Court DENIES Judgment Creditor’s motion to compel further responses to his production demand.

2. Sanctions

Code of Civil Procedure section 2023.030 provides that the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. If a monetary sanction is ordered under this provision, the court shall impose the sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2023.030, subd. (a).)

Judgment Creditor requests that the Court require Judgment Debtor Mitchell to pay a monetary sanction in the amount of $3,560.00. (Motion, p. 2:5-7.) Given the Court’s ruling on the motion, Judgment Creditor’s request for sanctions is DENIED.

Judgment Debtor “Mitchell requests that the Court order Levine, and Dalessandro, jointly and severally, to pay monetary sanctions of $4,403 to D. Joshua Staub, his attorney of record, which constitutes the reasonable expenses that Mitchell incurred to oppose the Second Motion.” (Opp., p. 5:24-27.)

Counsel Staub declares that he spent 4.75 hours to draft the opposition; anticipates spending 4.25 hours traveling to court; spent $81.70 to serve and file the opposition; and charges an hourly rate of $400.00. (Staub Decl., ¶¶ 16-19.)

The Court finds that Judgment Debtor is entitled to seek sanctions against Judgment Creditor and his counsel. However, on June 19, 2020, Counsel Staub filed a notice of intent to appear by telephone for this hearing, thus it is not reasonable to recover for 4.25 hours traveling to court. (06/19/2020 Notice of Intent to Appear by Telephone.)

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $2,181.70, calculated as 5.25 hours @ $400.00/hr. plus fees of $81.70. Since Dalessandro and Levine had requested fees of $3,560.00 for this same motion, the Court assumes that the opposing party will find this lodestar to be reasonable.

II. Judgment Creditor Dalessandro’s Motion for Attorney’s Fees

Judgment Creditor Dalessandro moves for attorney’s fees and costs incurred on the grounds that he “is entitled to recover attorney’s fees and costs in this case, both in this Court and in the Court of Appeal.” (Dalessandro Motion for Attorney’s Fees, p. 2:3-5.)

A. Request for Judicial Notice

Judgment Debtor Eric Mitchell requests that the Court take judicial notice of the following documents:

· Document 1: “Amended Judgment” entered 9/11/17 in Los Angeles County Superior Court case number BS138171;

· Document 2: Second District Court of Appeal docket (register of actions) for case number B286501; and

· Document 3: State Bar of California license summary and discipline history for Paul Samuel Levine.

· Document 4: “Memorandum of Costs After Judgment, Acknowledgement of Credit, and Declaration of Accrued Interest” signed 4/8/17;

· Document 5: “Memorandum of Points and Authority in Opposition to Motion to Strike and or Tax Costs; Declaration of Paul S. Levine” signed 6/19/17;

· Document 6: 7/6/17 minute order;

· Document 7: 12/4/17 minute order; and

· Document 8: 8/30/19 signed order. (Request for Judicial Notice, p. 2:5-10; Second Request for Judicial Notice, p. 2:5-11.)

The Court GRANTS Judgment Debtor’s request for judicial notice as to Documents 2 and 3. (Evid. Code, § 452, subds. (a), (d).)

The Court DENIES Judgment Debtor’s request as superfluous as to Documents 1, 4-8. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

B. Evidentiary Objections

Judgment Debtor “requests that this court exercise its inherent authority to strike the entirety of the ‘Declaration of Paul S. Levine’ signed 6/8/208 [sic] (‘6/8 Declaration’) because it [a] contradicts his prior statements to the court, and [b] misleads by omitting pertinent facts.” (Evidentiary Objections to Levine 6/8/20 Declaration, p. 1:19-22.)

First, Judgment Debtor argues that “in the 6/8 Declaration, Mr. Levine claims he spent 17 hours to amend the judgment (6/8 Declaration, p. 13:14-16.) [sic] but is not forthcoming because Mr. Levine omits 3 material facts:

1. Dalessandro previously claimed fees to amend the judgment on an alter ego theory in the Memo and the Opposition;

2. Mr. Levine does not disclose the 7/6/17 order taxing the Memo;

3. Mr. Levine does not disclose that he was sanctioned for the Memo;

Additionally, the 6/8 Declaration contradicts the Memo wherein Mr. Levine claimed $20,000 of work on 1 day to amend the judgment whereas now he claims $8,500 for 17 hours over 2 days (6/8 Declaration, p. 9:14-16).” (Id. at p. 2:11-20.)

Second, Judgment Debtor argues that the declaration is misleading and false because “Mr. Levine fails to disclose the 9/25/18 order denying his prior request for fees for the 2/22/18 demand for production.” (Id. at pp. 2:23-3:7.)

Third, Judgment Debtor argues that “Mr. Levine seeks fees for work done in propria persona without disclosing that to the trial court.” (Id. at p. 3:8-9.) Judgment Debtor maintains that the 7 hours to “oppose and prevail on Mitchell’s Motion for Sanctions of $11,000 against Paul Samuel Levine” does not relate to James Dalessandro, but rather only relates to his attorney. (Id. at p. 3:12-20, citing 6/8 Declaration, p. 13:25-26.) Judgment Debtor also argues that Judgment Creditor does not disclose to the court that the 7 hours to “oppose and prevail on Mitchell’s motion to recover post-judgment enforcement (fees and) costs of $4,979.15” was “for an order adding the following post-judgment costs of $4,979.15 to the money judgment against Paul S. Levine” and does not relate to James Dalessandro. (Id. at pp. 3:21-4:3.) Judgment Creditor argues that the declaration is “deceptive, and false because Mr. Levine implies that Dalessandro incurred the fees for the above but he could not.” (Id. at p. 4:4-6.)

In reply, Judgment Creditor argues that his counsel “has not ‘contradicted his prior statements to the court’” nor omitted the Court’s rulings on the previous motion for attorney’s fees and costs, motion to tax costs, and request for sanctions. (Reply to Evidentiary Objections to 6/8/20 Levine Decl., pp. 1:23-2:12.)

The Court finds that Levine’s 6/8 Declaration is misleading in that it contradicts prior statements made to the court and omits material facts, such as decisions made by the court. For example, Judgment Creditor seeks to recover attorney’s fees for an opposition to a motion to strike or tax costs, but does not disclose to the Court that another Department of this same court taxed costs in its entirety and imposed sanctions against Mr. Levine in the amount of $4,399.00 on July 6, 2017. (07/06/17 Minute Order.) Additionally, Judgment Creditor seeks attorney’s fees for two motions to amend judgment, a motion for reconsideration, and two motions to prepare and serve demand for production of documents. (See 06/08 Levine Decl., ¶ 3.) However, Judgment Creditor does not disclose to the Court that he previously claimed fees to amend the judgment on an alter ego theory in the Memo and that his motion for reconsideration and motions for production of documents were denied. (See 12/04/17 Minute Order; 09/25/18 Order.) Further, the Court finds that the declaration is false in that it purports to seek fees incurred by the Judgment Creditor, but rather seeks fees incurred only by the Judgment Creditor’s counsel. (See Motion for Sanctions against Paul Samuel Levine; Mitchell’s Motion to Recover Post-Judgment Enforcement Costs of $4,979.15.)

Based on the foregoing, the Court finds that the 6/8 Declaration is misleading. However, the Court exercises its discretion and holds that that striking the entire declaration on that basis is improper.

The Court OVERRULES Judgment Debtor’s evidentiary objections to the 6/8 Declaration – i.e., Judgement Debtor’s request that the Court strike the entire declaration.

C. Discussion and Analysis

Judgment Creditor Dalessandro moves for $40,000.00 in attorney’s fees and $12,915.00 in costs in his efforts in this case through September 10, 2019, “to confirm and collect the Arbitration Award, such as a Judgment Debtor Examination, and has prevailed on three (3) MOTIONS and on an unsuccessful Appeal brought by MITCHELL in which the Judgment of this Court was affirmed by the Court of Appeals.” (Motion, p. 11:12-23.)

Specifically, Judgment Creditor Dalessandro seeks attorney’s fees, at a rate of $500.00 per hour, for:

Date

Proceeding

Hours

July 14, 2014

Motion to Amend Judgment

7.0

June 10, 2016

Motion to Amend Judgment

10.0

July 16, 2017

Oppose Motion to Tax Costs and Motion to Vacate and Set Aside Void Judgment

7.0

December 4, 2017

Motion for Reconsideration

4.0

February 22, 2018

Prepare and serve Demand for Production of Documents

3.0

July 16, 2018

Mitchell failed to appear for his Judgment Debtor Examination and a Bench Warrant was issued and held to a continued date.

7.0

July 24, 2018

Oppose and prevail on Mitchel’s Motion for Sanctions of $11,000.00

7.0

August 20, 2018

Mitchell failed to bring documents to the continued date for his Judgment Debtor Examination, even though he was timely served with a Notice to Produce Documents, Code of Civil Procedure §1987(c), and made no objection thereto.

5.0

March 4, 2019

Oppose and prevail on Mitchell’s motion to recover post-judgment enforcement (fees and costs of $4,979.15

7.0

April 13, 2019

Prepare and serve Demand for Production of Documents

3.0

(Levine Decl., ¶¶ 2-3.) Judgment Creditor also seeks $10,000.00 for 20 hours of work on the Appeal. (Id. at ¶ 4.) Further, Judgment Creditor seeks a total of $12,914.00 in costs. (Levine Decl., ¶ 5.)

1. Timeliness of Motion for Attorney’s Fees

Code of Civil Procedure section 1033.5, subdivisions (a)(10)(A),(B) and (C) makes attorney fees allowable as recoverable costs for prevailing parties when authorized by contract, statute or law.

Code of Civil Procedure section 685.040 entitles a judgment creditor to attorney’s fees incurred for successfully enforcing a judgment if the underlying judgment includes an award of attorneys’ fees pursuant to a contract. (Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416, 423, citing Code Civ. Proc., § 685.040.)

Judgment Creditor argues that “all of the fees incurred in connection Dalessandro’s activities in successfully having Mitchell added to the Judgment ‘are prejudgment fees incurred in obtaining . . . the judgment granting the alter ego motion.’” (Motion, pp. 7:24-8:2, citing Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416, 427 (Highland Springs).) Therefore, Judgment Creditor argues, these fees are “not restricted by the two (2) year post-Judgment limitations of Code of Civil Procedure §§ 685.070(b) and 685.080(a) which requires that a motion to recover attorney's fees be made ‘not later than two years after the costs have been incurred [in obtaining the judgment].’” (Id. at p. 8:2-6.)

In opposition, Judgment Debtor argues that the Highland Springs “holding plainly supports Mitchell’s view that Dalessandro’s claims for fees, and costs is untimely.” (Opp., p. 2:5-7.) Judgment Debtor argues that Judgment Creditor’s situation is quite different from Highland Springs because first, “Dalessandro filed an alter ego motion and prevailed, obtaining a judgment on 9/11/17 without any need to appeal.” (Id. at p. 2:20-22.) Second, Judgment Debtor argues that “unlike the plaintiff in Highland Springs,, [sic] Dalessandro did not move for prejudgment attorney’s fees after entry of judgment within the time required under California Rules of Court, rule 3.1702 subdivision (b)(1) which was 180 days from 9/11/17 (Cal. Rules of Court, 8.108, subd. (a)(1)(c).).” (Id. at p. 2:23-26.) Third, Judgment Debtor argues that “B286501, the appeal, was not related to Dalessandro’s obtaining entry of a judgment[, t]herefore, the fees incurred for B286501 were postjudgment, not prejudgment like in Highland Springs.” (Id. at pp. 2:27-3:1.) Judgment Debtor argues that “because B286501, involved postjudgment attorney’s fees after an appeal, Dalessandro had to claim attorney’s in accordance with California Rules of Court, rule 3.1702 subdivision (c) by seeking them within 40 days of the remittitur which he failed to do.” (Id. at p. 3:1-5, citing In re Conservatorship of McQueen (2014) 59 Cal.4th 602, 611.).

In Highland Springs, a judgment was entered in favor of the plaintiffs in April 2008 and these plaintiffs filed an unsuccessful motion to amend judgment to add a judgment debtor based on an alter ego theory in October 2012. (Id. at p. 419.) The plaintiffs then successfully appealed the decision denying its motion to amend judgment and the trial court entered a judgment on February 8, 2017, adding the additional judgment debtor. (Id. at p. 420.) On April 10, 2017, the plaintiffs filed a motion for attorney fees, seeking fees listed in cost memorandums that were filed after the notice of entry of judgment was served, as well as additional fees. (Id. at pp. 420-421.)

The trial court granted the fee motions, in part, finding that (1) plaintiffs were not entitled to recover any of the fees they incurred on appeal because they did not file a timely motion for attorney fees on appeal within 40 days after the remittitur was issued, pursuant to California Rules of Court, rule 3.1702(c)(1); (2) under 685.080, subdivision (a) of the ELJ, plaintiffs were not entitled to recover any fees they incurred more than two years before they filed their fee motions; and (3) for the two-year period during which plaintiffs could recover fees, which excluded any fees incurred on appeal, the court limited the recovery to a reasonable number of hours at a reasonable hourly rate. (Id. at p. 422.)

The plaintiffs appealed this decision and the appellate court in Highland Springs found that the trial court erred because plaintiffs were entitled to recover their prejudgment attorney’s fees because they sought fees within 60 days of the service of the notice of entry of the February 8, 2017 judgment, the time period provided for In California Rules of Court, rule 3.1702, subdivision (b)(1). (Id. at p. 427.) Further, the court held that all the fees incurred to obtain the order amending the judgment including the appeal of the order denying the alter ego motion were timely sought, thus recoverable. (Ibid.)

Here, the facts of this case are distinguishable from Highland Springs. First, the Court finds that Judgment Creditor did not appeal the September 11, 2017 amended judgment compared to the Highland Springs plaintiffs. Second, the appeal of B286501 in this case was not related to obtaining the entry of the amended judgment, thus the fees incurred for B286501 were post-judgment fees, not prejudgment fees like in Highland Springs. Third, the Court finds that Judgment Creditor is seeking attorney’s fees for both fees incurred prejudgment and post-judgment, not just prejudgment fees like in Highland Springs.

The amended judgment in this case was entered on September 11, 2017. (See 09/11/17 Amended Judgment.)

Judgment Creditor seeks the following prejudgment attorney’s fees: 7 hours for 07/14/14 Motion to Amend Judgment; 10 hours for 06/10/2016 Motion to Amend Judgment; and 7 hours for 07/16/17 Opposition to Motion to Tax Costs and Motion to Vacate and Set Aside Void Judgment. (See Levine Decl., ¶3.)

California Rules of Court, rule 3.1702 (b) provides:

“(b) Attorney's fees before trial court judgment

(1)  Timeliness of the Motion

A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court -- including attorney's fees on an appeal before the rendition of judgment in the trial court -- must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.”

California Rules of Court, rule 8.104, subdivision (a)(1)(C) provides that “unless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earlies of . . . 180 days after entry of judgment.”

In Carpenter v. Jack in The Box Corp., the defendants filed a special motion to strike pursuant to section 425.16 as to all causes of action in the plaintiff's complaint. (Carpenter v. Jack in The Box Corp. (2007) 151 Cal.App.4th 454, 459.) The trial court denied the motion by minute order and later the plaintiff served on defendant a notice of ruling. (Ibid.) Defendants appealed the denial of the special motion to strike, which was affirmed on appeal. (Ibid.) Following issuance of the remittitur on appeal, the plaintiff, approximately two years after the motion was denied by the trial court, filed a motion for attorney's fees and costs. (Ibid.) The trial court found that the defendant's special motion to strike was completely without merit and awarded plaintiff over $50,000 in fees and costs. (Ibid.) Defendants appealed the attorney fee award. (Ibid.)

On appeal, the defendants argued, among other things, that the motion was untimely. (Ibid.) Construing the language of rules 3.1702 and 8.104, the court found that "interpreting rule 3.1702 to require litigants to apply for attorney fees incurred in connection with a prejudgment appealable order within 60 or 180 days after entry of the order would be inconsistent with the language of the rule and its underlying policy." (Id. at p. 466.) Instead, "the time limits imposed by rules 3.1702 and 8.104 for filing a motion for attorney fees under section 425.16, subdivision (c) do not commence to run until the entry of judgment at the conclusion of litigation." (Id. at p. 478.) The court held that because the plaintiff could have sought fees as part of a cost memorandum at the conclusion of the lawsuit, the plaintiff's motion for attorney fees was not untimely under rule 3.1702.

Here, Judgment Creditor's motion for the prejudgment attorney's fees is not untimely because the remittitur of B286501 was not filed until 06/11/2020, thus there was not a final judgment in this case until the remittitur was issued. Although the Court retains jurisdiction to entertain a motion for attorney fees while an appeal is pending [see Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086; Doe v. Luster  (2006) 145 Cal.App.4th 139, 144], Judgment Creditor was not required to file a motion for attorney's fees until the remittitur was issued.  

Therefore, the Court finds that Judgment Creditor is entitled to seek prejudgment attorney's fees for the  07/14/14 Motion to Amend Judgment; 06/10/2016 Motion to Amend Judgment; and 07/6/17 Opposition to Motion to Tax Costs and Motion to Vacate and Set Aside Void Judgment.

However, the 24 hours sought by Judgment Creditor for these motions is excessive. The 07/14/14 Motion to Amend the Judgment (for which Judgment Creditor claims 7.0 hours) was denied, and the 07/6/17 motion to tax costs (for which Judgment Creditor also claims 7.0 hours) was denied. The Court will therefore award $4,000.00 – i.e., 10.0 hours at $400.00/hour [see §II(C)(2) below] – for these motions.

Judgment Creditor seeks the following post-judgment attorney’s fees: 4 hours for 12/04/17 Motion for Reconsideration; 3 hours for 02/22/18 Prepare and Serve Demand for Production of documents; 7 hours for 07/16/18 Mitchell’s Failure to Appear at Judgment Debtor Examination; 7 hours for 07/24/18 Opposition to Motion for Sanctions of $11,000.00; 5 hours for 08/20/18 Mitchell’s failure to bring documents to the continued Judgment Debtor Examination; 7 hours for the 03/04/19 Successful Opposition to Mitchell’s Motion to Recover Post-Judgment Enforcement; 3 hours for 04/13/19 Prepare and Serve Demand for Production of Documents; and 20 hours of work on the Appeal. (See Levine Decl., ¶¶ 3-4.)

Code of Civil Procedure section 685.070, subdivision (b) states:

“(b) Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.” (Code Civ. Proc., § 685.070, subd. (b).)

Judgment Creditor is not entitled to seek the following post-judgment attorney’s fees, as this motion was filed on June 8, 2020, more than two years after the costs had been incurred:

· 4 hours for 12/04/17 Motion for Reconsideration;

· 3 hours for 02/22/18 Prepare and Serve Demand for Production of documents. (See Levine Decl., ¶ 3.)

Therefore, Judgment Creditor would only be entitled to seek fees associated with the 7 hours for 07/16/18 Mitchell’s Failure to Appear at Judgment Debtor Examination; 7 hours for 07/24/18 Opposition to Motion for Sanctions of $11,000.00; 5 hours for 08/20/18 Mitchell’s failure to bring documents to the continued Judgment Debtor Examination; 7 hours for 03/04/19 Successful Opposition to Mitchell’s Motion to Recover Post-Judgment Enforcement; and 3 hours for 04/13/19 Prepare and Serve Demand for Production of Documents. (Ibid.)

Based on the foregoing, Judgment Creditor’s motion for post-judgment attorney’s fees mentioned above are DENIED.

As for the $10,000.00 in attorney’s fees for prevailing on Judgment Debtor unsuccessful appeal, Judgment Creditor does not provide evidence to support whether these fees are prejudgment or post-judgment fees or whether they are recoverable, because Judgment Debtor’s counsel does not provide any dates to support when he performed the “twenty (20) hours on reviewing MITCHELL'S Opening Brief, researching and preparing an Opposition Brief, reviewing MITCHELL'S Reply Brief, preparing for Oral Argument, making Oral Argument, reviewing the Decision of the Court of Appeal, and reviewing MITCHELL'S Motion for Leave to File A Petition for Rehearing.” (Levine Decl., ¶ 4.)

Therefore, the Court DENIES Judgment Creditor’s motion for attorney’s fees relating to the appellate case number B286501.

2. Hourly Rate

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (Id.)

Judgment Creditor seeks to recover attorney’s fees for his counsel, Paul S. Levine, at a rate of $500.00 per hour. (Levine Decl., ¶ 2.) Mr. Levine declares that he is “a graduate of USC Law School and ha[s] practiced in Los Angeles for over thirty-eight (38) years.” (Ibid.)

Judgment Debtor argues that “the $500 per hour rate for Levine’s time is not reasonable” because of “the poor results that he always obtains, the substandard research that he does, and the deficiencies in his papers.” (Opp., pp. 6:27, 7:2-4.) Judgment Debtor argues that “the market rate for Levine’s time is $0 per hour because of his disciplinary history which provides an ample basis from which the trial court can conclude that the value of Levine’s time is far less than $500 per hour.” (Id. at p. 7:4-7, citing RJN, Doc. #3, pp. 10, 13.)

In setting a reasonable hourly fee, this Court does not look at a counsel’s disciplinary history; Judgment Debtor does not cite to any authority to the contrary. Further, Judgment Debtor’s argument that opposing counsel’s reasonable fee should be $0 is at best, hyperbole; and at worst, it is frivolous.

For purposes of this motion, the Court finds that the reasonable hourly rate of Judgment Creditor’s counsel is $400.00 – the same hourly rate charged by, and awarded to, Judgment Debtor’s counsel.

3. The Number of Reasonable Hours Incurred

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

Moreover, whether or not the fees were actually paid is not determinative of the attorney's fees award question. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1036.) Instead, reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Id.)

Judgment Creditor Dalessandro seeks the following attorney’s fees, at a rate of $500.00 per hour, for:

Date

Proceeding

Hours

July 16, 2018

Mitchell failed to appear for his Judgment Debtor Examination and a Bench Warrant was issued and held to a continued date.

7.0

July 24, 2018

Oppose and prevail on Mitchel’s Motion for Sanctions of $11,000.00

7.0

August 20, 2018

Mitchell failed to bring documents to the continued date for his Judgment Debtor Examination, even though he was timely served with a Notice to Produce Documents, Code of Civil Procedure §1987(c), and made no objection thereto.

5.0

March 4, 2019

Oppose and prevail on Mitchell’s motion to recover post-judgment enforcement (fees and costs of $4,979.15)

7.0

April 13, 2019

Prepare and serve Demand for Production of Documents

3.0

(Levine Decl., ¶¶ 2-3.)

In opposition, Judgment Debtor argues that “the motion does not have evidence sufficient to sustain Dalessandro’s burden of proof” and “there is no evidence that Dalessandro paid any fees to Levine, or incurred an obligation to do so.” (Opp., p. 6:18-19, 24-25.)

In reply, Judgment Creditor withdraws the request for fees for preparing the Demand for Production of Documents on February 22, 2018. (Reply, p. 9:6-8; Reply to Evidentiary Objection to Levine Declaration, ¶ 3.)

The Court is required to determine a reasonable lodestar. First, the Court finds that the April 13, 2019 Production Demand fees are unreasonable and DENIES this request for attorney’s fees because the Court denied this production demand motion for the reasons explained above in this decision.

Second, as explained above, Mitchell’s motion for sanctions and Mitchell’s motion to recover post-judgment enforcement costs were against Judgment Creditor’s counsel and not Judgment Creditor himself, thus Judgment Creditor did not reasonably incur fees relating to opposing these motions.

As to the attorney’s fees incurred for the failure to appear at and bring papers to the judgment debtor examination, the Court finds that these attorney’s fees are recoverable. (Code Civ. Proc., § 708.170, subd. (a)(2).) Judgment Debtor has not opposed the reasonableness of these specific fees. Therefore, the Court finds that Judgment Creditor is entitled to recover attorney’s fees in the amount of $4,800.00 (12 hours x $400.00 per hour).

4. Costs

California Rules of Court, rule 3.1700(a)(1) provides that to seek prejudgment costs:

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

California Rules of Court, rule 8.278(c)(1) provides that “[w]ithin 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.”

Judgment Creditor seeks the recovery of the following costs that he reimbursed his attorney:

Filing Fees

$4,135.00

Service of Process

$1,625.00

Court Reporter

$1,480.00

Investigator

$2,595.00

Litigation Guarantee

$1,080.00

Total

$10,915.00

(Levine Decl., ¶ 5.) Judgment Creditor also seeks $2,000.00 in costs that he incurred himself directly, for airfare, a rental car, and hotel for the Judgment Debtor Examinations of Mr. Mitchell. (Levine Decl., ¶ 5; Dalessandro Decl., ¶ 3.) In total, Judgment Creditor seeks $12,914.00 in costs. (Levine Decl., ¶ 5.)

In opposition, Judgment Debtor Mitchell argues that “Dalessandro cannot recover any prejudgment costs because he failed to ‘serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.’” (Opp., p. 4:16-21, citing Cal. Rules of Court, rule 3.1700, subd. (a)(1); Code Civ. Proc., § 1033.5, 1034.)

Further, Judgment Debtor Mitchell argues that Dalessandro cannot recover his costs on appeal incurred for B286501 because he “did not file a verified memorandum of costs within 40 days of the 6/5/19 remittitur” and because no dates are given to ascertain when these expenses were incurred or for which proceeding. (Id. at pp. 5:13-21, 5:24-25, citing Cal. Rules of Court, rule 8.278, subd. (c)(1); Code Civ. Proc., § 1034.)

The amended judgment for this case was entered on September 11, 2017, the remittitur for B286501 was issued on June 11, 2020 (Reply, p. 7:6-7) and Judgment Creditor filed this motion for attorney’s fees and costs, with the declaration explaining the breakdown of costs, on June 8, 2020. The costs claimed on Judgment Creditor’s counsel’s declaration does not include any dates, thus the Court is not able to determine if these costs were incurred prejudgment, post-judgment, or on appeal. Further, Judgment Creditor does not provide any supplemental evidence in his reply documents to support why these costs were necessarily incurred or reasonable. Without evidence to determine when these costs were incurred, the Court is unable to determine if the costs were timely sought or reasonable.

The Court DENIES Judgment Creditor’s request for costs.

5. Conclusion

The Court GRANTS Judgment Creditor’s motion for attorney’s fees in the amount of $8,800.00.

III. Judgment Debtor Mitchell’s Motion for Attorney’s Fees

A. Relevant Law

California Rules of Court, rule 8.278(a)(1) provides that “the prevailing party in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.” California Rules of Court, rule 8.278(a)(2) explains that “[t]he prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.”

The procedure for claiming costs is as follows:

“Within 40 days after the issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.” (Cal. Rules of Court, rule. 8.278(c)(1).)

“Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.” (Id. at rule 8.278(d)(2).)

California Rules of Court, rule 3.1702(c)(1) provides that:

“A notice of motion to claim attorney's fees on appeal-other than the attorney's fees on appeal claimed under (b)-under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.”

Code of Civil Procedure section 2031.300 provides that “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

B. Request for Judicial Notice

Judgment Debtor Mitchell requests that the Court take judicial notice of the following documents:

· Document 1: “Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18;

· Document 2: “Eric A. Mitchell’s Opposition to ERIC A. MITCHELL’S OPPOSITION TO “Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18”; Declaration of D. Joshua Staub” signed 8/6/18;

· Document 3: “Reply Memorandum of Points and Authorities in Support of Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions; Supporting Declaration of Paul S. Levine, Esq.” signed 8/17/18;

· Document 4: 8/20/18 minute order in case number BS138171;

· Document 5: “Reporter’s Transcript of Proceedings, Monday August 20, 2018;”

· Document 6: “Order Denying Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18” signed 9/25/18;

· Document 7: April 4, 2019 opinion in Second District Court of Appeal case number B289365;

· Document 8: 8/26/19 minute order in case number BS138171;

· Document 9: December 17, 2019 published opinion in Second District Court of Appeal case number B293472;

· Document 10: December 17, 2019 opinion in Second District Court of Appeal case number B293472 with order for publication; and

· Document 11: March 6, 2020 remittitur in Second District Court of Appeal case number B293472. (RJN, pp. 2:5-3:3.)

The Court DENIES Mitchell’s request as superfluous as to Documents 1-4, 6, and 8. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

The Court GRANTS Mitchell’s request as to Document 5, 7, 9-11. (Evid. Code, § 452 (d).)

C. Evidentiary Objections

Judgment Debtor submits 21 evidentiary objections to the declaration of James Dalessandro. The Court rules as follows:

Objection

Objection 1

OVERRULED

Objection 2

OVERRULED

Objection 3

OVERRULED

Objection 4

OVERRULED

Objection 5

SUSTAINED

Objection 6

OVERRULED

Objection 7

SUSTAINED

Objection 8

OVERRULED

Objection 9

OVERRULED

Objection 10

SUSTAINED

Objection 11

SUSTAINED

Objection 12

SUSTAINED

Objection 13

SUSTAINED

Objection 14

SUSTAINED

Objection 15

SUSTAINED

Objection 16

SUSTAINED

Objection 17

SUSTAINED

Objection 18

SUSTAINED

Objection 19

OVERRULED

Objection 20

OVERRULED

Objection 21

OVERRULED

Judgment Debtor also submits evidentiary objections to the 06/17/20 Declaration of Paul S. Levine. Judgment Debtor “requests that this court exercise its inherent authority to strike the entirety of the ‘Declaration of Paul S. Levine’ signed 6/17/20 [sic] (‘6/17 Declaration’) which Mr. Levine submitted in support of the “Memorandum of Opposition to Authorities in Opposition to Motion for Attorney’s Fees of $14,898 to be Imposed Against Paul Samuel Levine” signed 6/17/20 (‘Opposition’) because it contains the following statements which are false, and scandalous matter about opposing counsel:

‘2. During a Court appearance on May 28, 2019 in Department 44, before Judge Moreton took the bench, I approached MITCHELL’s counsel, D. Joshua Staub, Esq. (“Staub”) to ask him something. He said to me:

“You’re a fucking idiot. Get away from me. I don’t speak to assholes. I will never forget the shock which I felt or the look of shock on the face of the attorney who was sitting beside him.” (6/17 Declaration, p. 8:9-16.).’” (Evidentiary Objections to 6/17 Declaration, pp. 1:23-2:11.)

Judgment Debtor argues that “as shown in the 5/28/19 minute order there was no hearing, no appearances, and no bailiff in Department 44 on that date because the motion to quash was granted on 3/26/19.” (Id. at p. 2:12-14.)

In reply, Judgment Creditor argues that “this Court should overrule the Evidentiary Objection to the Declaration of Paul S. Levine because it ignores the Supplemental Declaration of Paul S. Levine in which he corrected the date on which counsel for Eric Albert Mitchell, De. Joshua Staub, Esq. cursed him and insulted him.” (Reply to Evidentiary Objection to 6/17 Declaration, p. 1:20-24.)

There is no doubt that the 6/17 Declaration asserts an incorrect fact because the 5/28/19 minute order demonstrates that there was no hearing on May 28, 2019. However, Mr. Levine filed a supplemental declaration that states that the date was not May 28, 2019, but actually March 26, 2019 (Supplemental Decl., ¶ 2). It appears that this error was inadvertent. The Court finds that striking the entire declaration on that basis is improper.

Although parts of the declaration might well be improper and subject to objection, the only request was to strike the entire declaration; for the reasons indicated above, the Court declines to do so.

The Court therefore OVERRULES Judgment Debtor’s evidentiary objections to the 6/17 Declaration.

D. Discussion and Analysis

Judgment Debtor “move[s] pursuant to Code of Civil Procedure section 2031.300 for an order that Paul Samuel Levine (‘Levine’) pay to Mitchell’s attorney of record, D. Joshua Staub, the sum of $14,898 which represents reasonable attorney’s fees that Mitchell incurred in defending Levine’s appeal in the Second District Court of Appeal case number B293472 from the ‘Order Denying Notice of Motion and Motion for Order Compelling Responses to Demand for Identification, Production and Copying of Documents and Imposing Monetary Sanctions” signed 4/20/18’ signed 9/25/19 imposing sanctions on Levine pursuant to Code of Civil Procedure section 2031.300, and for the fees that Mitchell incurred to bring this motion.” (Mitchell’s Motion for Attorney’s Fees, p. 1:5-15.)

Judgment Debtor argues that he is the prevailing party in case no. B293472 because the Order was affirmed.” (Id. at p. 5:6-9, citing Cal. Rules of Court, rule 8.278, subd. (a)(2).) Judgment Debtor maintains that his motion is timely brought within 40 days of the remittitur because the remittitur was issued on March 6, 2020 and he filed this motion for attorney’s fees on March 24, 2020. (Id. at p. 5:11-13; see also RJN, Doc. #11.) Judgment Debtor argues that he “can recover his attorney’s fees because the Order awarded fees under Code of Civil Procedure section 2031.300 which authorizes a trial court to award fees to the party prevailing on a motion to compel a response to a demand for production, and does not preclude the award of attorney’s fees on appeal.” (Id. at pp. 5:27-6:2.)

Judgment Debtor asserts that the fees he incurred in connection with appellate case no. B293472 are reasonable. (Id. at p. 6:3-13.) Judgment Debtor explains that he incurred fees of $8,500.00 for the appellate case; estimates that the fees in connection with this motion will be $6,200.00; and will incur costs of $198.75 for this motion. (Id. at p. 6:14-18, citing Staub Decl., ¶¶ 21-35.)

Judgment Debtor explains that he spent $8,500 for his counsel’s representation in the appeal. (Staub Decl., ¶ 20.) Judgment Debtor asserts that his counsel spent 6.25 hours to prepare this motion; anticipates spending 2.75 hours to prepare a reply; anticipates spending 1.75 hours preparing for the hearing; and anticipates spending 4.75 hours traveling to the hearing and attending the hearing, for a total of $6,200. (Id. at ¶¶ 21-26.)

Judgment Debtor explains the following breakdown of costs:

· $61.65 to reserve the hearing date for this Motion.

· $9.65 to electronically file the Motion.

· $15.50 to serve the Motion and submit a courtesy copy to Department 44.

· $9.65 to electronically file the reply for the Motion.

· $15.50 to serve the reply to the Motion and submit a courtesy copy to Department 44.

· $18 to park at the Courthouse for the hearing.

· $68.80 for 344 copies to serve and submit the Motion. (Staub Decl., ¶¶ 27-35.)

In opposition, Judgment Creditor does not dispute that Judgment Debtor is the prevailing party from the B293472 appellate case. Instead, Judgment Creditor argues that the Court should use its discretion to decline awarding any attorney’s fees to Judgment Debtor based on Judgment Debtor’s counsel’s behavior. (Opp., pp. 2:3-4, 7:2-4.)

The first paragraph of Judgment Creditor’s opposition states

“[t]his Court has broad discretion to decide to award attorney’s fees to Mitchell. Huntington [sic] Life Sciences v. Stop Huntington [sic] Animal Cruelty USA, Inc., 129 Caql. [sic] App. 4th 1228 (2005). It may determine that Mitchell is not entitled to an award of attorney’s fees at all, and, even if it determines that he is entitled to such an award, may determine the amount of the attorney’s fees so awarded.” (Opposition, p. 1:21 – p. 2:1.)

There are numerous errors in this opening paragraph. First, the title of the case cited is incorrect. Second, there is no pinpoint cite so the Court can determine what counsel is citing in this 40-page case, or if the citation is even correct. Third, the case cited concerns an anti-SLAPP motion, not attorney's fees to a prevailing party on appeal. The Court requests that all counsel comply with the applicable California Rules of Court in all future pleadings.

Judgment Creditor maintains that Judgment Debtor’s counsel “engaged in an unrelenting campaign of incivility and bullying against counsel for James Dalessandro, Paul S. Levine.” (Id. at p. 3:4-6.) Judgment Creditor asserts that “from the very first time he filed a MOTION in this proceeding, and continuing on a consistent and repeated basis for the three (3) years which have passed since then, Staub has abused Levine, verbally and in writing, both in correspondence sent to Levine and in pleadings which he has filed.” (Id. at p. 3:13-17.) Judgment Creditor asserts that Judgment Debtor’s counsel called Mr. Levine derogatory names such as “fucking idiot” and “asshole;” accused Mr. Levine, in writing, of lying to the Court; demanded that this Court cite Mr. Levine to the State Bar; and refused to extend basic professional courtesies to Levine. (Id. at pp. 3:18-5:2.)

In reply, Judgment Debtor argues that “Levine attacks Mitchell’s counsel, makes false statements, and conceals the extensive, inept [sic] procedure that he forced on the [sic] Mitchell, and the trial court including that described in the 9/25/18 order that sanctioned him.” (Reply, p. 1:23-25.)

“The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1266.) The Court finds that throughout the history of this case, both parties’ counsel have failed to comply with this Court’s Guidelines for Civility in Civil Litigation and have failed to upheld the values of our legal profession. However, the Court does not find that it is warranted to deny Judgment Debtor’s motion for attorney’s fees based on such alleged prior conduct – conduct which could easily have been brought to the attention of – and addressed – by the department of this Court that was then hearing this action.

Judgment Creditor also argues that “if this Court is never-the-less [sic] inclined to make an attorney’s fees award, it should be for no more than four thousand dollars ($4,000)” as the fees Judgment Debtor seeks are unreasonable. (Id. at p. 7:4-6.) Judgment Creditor asserts that “Staub should be compensated for, at most, five (5) hours of his time at his rate of $400 per hour, or $2,000, and not for the $8,500 which he seeks.” (Id. at pp. 5:22-6:1.) Judgment Creditor argues that “spending five (5) hours preparing the Brief on Appeal and appearing at the Court of Appeal to argue the Appeal is reasonable; spending twenty-one and one-quarter hours ($8500 / $400 = 21.25 hours) is not.” (Id. at p. 6:1-4.) Judgment Creditor asserts that “similarly, Staub should receive no more than $2,000 for filing this Motion, and not the $6,200 which he seeks” because it is unreasonable to spend “fifteen and one-half (15 ½) hours on a simple motion, anticipated reply, and oral argument.” (Id. at p. 6:5-8.)

Lastly, Judgment Creditor argues that the costs claimed by Staub are excessive because he served everything electronically and will likely appear for oral argument via Los Angeles Court Connect and there is no need for the $18 for parking and $68.80 for photocopying.” (Id. at p. 6:22-27.)

In reply, Judgment Debtor argues that Judgment Creditor “merely declares that Mitchell seeks unreasonable fees but Mitchell correctly seeks fees for the time expended and the reasonable hourly rate for these services.” (Reply, p. 7:20-22.) Judgment Debtor also argues that the costs were necessarily incurred and “to avoid copy charges of $68.80, Levine added another lie by saying that he were [sic] not served with a physical copy of the moving papers (Opposition, p. 6:24. [sic]) which is not true.” (Reply, p. 8:20-22, citing Staub Decl. ¶¶ 18-23.)

The Court is required to determine a reasonable lodestar for awarding fees. Having reviewed the file, the Court finds that a reasonable lodestar is $12,500.00, calculated as follows: $8,500.00 for the appeal plus $4,000.00 for this motion (calculated as 10 hours @ $400.00/hour).

The Court also finds that Judgment Debtor is entitled to costs of $180.00 (the $198.00 requested, minus $18.00 for parking which is not a compensable cost).

The Court GRANTS Judgment Debtor’s motion for attorney’s fees in the amount of $12,680.00.

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