HOLLYWOOD AND IVAR, LLC VS DWG INTERNATIONAL, LLC

Tentative Rulings

Case Number: *******9276 Hearing Date: May 9, 2022 Dept: 34

SUBJECT: Cross Defendants’ Motion for Stay of Entry and /or Enforcement of Judgment

Moving Party: Cross Defendants Hollywood and Ivar, LLC, and Freddy Braidi (“Cross Defendants")

Resp. Party: Cross-Complainant DWG International, LLC

Cross Defendants Hollywood and Ivar, LLC, and Freddy Braidi’s Motion for Stay of Entry and /or Enforcement of Judgment is DENIED.

I. PRELIMINARY COMMENTRS

Cross-Defendants state in their Reply, filed May 2, 2022 that they filed an appeal the day they filed their Reply. (See Reply, p. 1:7-8.) However, a quick check by the Court on May 4, 2022, at 2:55 pm – the day and time this tentative is being posted – indicates that no appeal has been filed.

Plaintiff’s Opposition suggests that the Court could modify its judgment. However, the Court has not received a motion to modify the judgment. If Plaintiff believes the motion should be modified, it can file and brief such a motion.

II. BACKGROUND

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC filed a complaint against Defendants DWG International, LLC and Does 1-10, inclusive, to allege the following causes of action:

1. Breach of Contract;

2. Wrongful Eviction – Breach of the Covenant of Quiet Enjoyment.

On September 15, 2020, Cross-Complainant DWG International, LLC filed a cross-complaint against Cross Defendants Hollywood and Ivar, LLC, Freddy Braidi, and Roes 1-50 inclusive to allege the following cause of action:

1. Breach of Contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a First Amended Complaint against Defendants DWG International, LLC and Does 1-10, inclusive, to allege the following causes of action:

1. Breach of Contract;

2. Wrongful Eviction – Breach of the Covenant of Quiet Enjoyment.

This action arises out of allegations of breach of a lease agreement entered between the parties on April 8, 2008, for the lease of business premises. (FAC, 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at 8-10, 15-17.)

On January 28, 2022, the Court granted Cross-Complainant DWG’s motion for terminating sanctions, due to Cross-Defendant Hollywood’s “ongoing history of indifference to Court orders and discovery obligations.” (Minute Order, January 28, 2022, p. 11.)

On April 7, 2022, the Court granted Cross-Complainant’s entry of default judgment in the amount of $4,104,728.64. (Minute Order, April 7, 2022.)

On April 13, 2022, Cross Defendants moved the Court for an order “for stay of entry and/or enforcement of the judgment of the Court set forth in the Minute Order dated April 7, 2022 (“Minute Order”) and to enter only a court judgment by default. This Motion is based upon CODE CIV. PROC. 580(a). This Court has no jurisdiction to issue an award of damages by default at an amount in excess of the amount demanded in the Cross Complaint filed in this action. Cross Complainant has served no notice pursuant to CODE CIV. PROC. 425.11, 425.115 which are not applicable to the Cross Complaint in any event.” (Motion, p. 1:4-11.)

On April 14, 2022, the Court signed the Order Granting Court Judgment in this case.

On April 26, 2022, Cross-Complainant DWG International, LLC opposed Cross Defendants’ motion.

On May 2, 2022, Cross Defendants replied to Cross-Complainant’s opposition.

III. ANALYSIS

A. Legal Standard

Code of Civil Procedure section 918.5, subdivision (a) states:

“(a) The trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor.”

Trial courts have the inherent power to control the proceedings before them and to adopt suitable methods of practice to the extent its orders do not conflict with any statute and are not inconsistent with law. (Code Civ. Proc., 128(a)(3); 187.) “Trial courts generally have the inherent power to stay proceedings in the interest of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.)

Code of Civil Procedure section 580, subdivision (a) states:

“(a) The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.”

B. Discussion

On March 25, 2022, the Clerk of the Court entered default as to Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi on the cross-complaint filed by DWG International, LLC on September 15, 2020. (Request for Entry of Default Judgment (Hollywood), filed March 25, 2022; Request for Entry of Default Judgment (Braidi), filed March 25, 2022.)

Once default is entered by the Clerk of Court, the defendant's right to appear in the action “is cut off. The only motion defendant can file is a motion to be relieved from default or to set aside the default judgment if judgment has been entered.” (The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Ch. 5-B [5.116].) Such a defendant is “out of court,” with no right to participate in Court proceedings “until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal).” (Id. at Ch. 5-A [5.6].)

“The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings. And, even where a default judgment is vacated, it would be the duty of the court immediately to render another of like effect, and the defaulting defendants would not be heard for the purpose of interposing any denial or affirmative defense.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386 (cleaned up).)

On March 25, 2022, Cross Defendants lost the right to participate in this case. Therefore, the Motion for Stay of Proceedings, filed by the defaulted parties on April 13, 2022, is improper. The defaulted parties are simply not entitled to appear before this Court.

Further, the Court entered default judgment as to Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi on April 7, 2022; the Court signed the judgment on April 14, 2022. Since a final judgment has been entered, there are no proceedings to stay.

IV. CONCLUSION

Cross Defendants Hollywood and Ivar, LLC, and Freddy Braidi’s Motion for Stay of Entry and /or Enforcement of Judgment is DENIED.

Case Number: *******9276 Hearing Date: April 7, 2022 Dept: 34

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

I. BACKGROUND

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC (“Hollywood”) filed a complaint against Defendants DWG International, LLC (“DWG”) and Does 1-10, inclusive, to allege breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment.

On September 15, 2020, Cross-Complainant DWG filed a cross-complaint against Cross Defendant Hollywood to allege breach of contract.

On October 16, 2020, Hollywood filed a First Amended Complaint against DWG and Does 1-10, inclusive to allege breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment. This action arises out of allegations of breach of a lease agreement entered between the parties on April 8, 2008, for the lease of business premises. (FAC, 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at 8-10, 15-17.)

On January 28, 2022, the Court granted Cross-Complainant DWG’s motion for terminating sanctions, citing Cross-Defendant Hollywood’s “ongoing history of indifference to Court orders and discovery obligations.” (Minute Order, January 28, 2022, p. 11.)

On February 10, 2022, Cross Defendants Hollywood moved the Court pursuant to Code of Civil Procedure 473(b) for mandatory relief from default based on an attorney affidavit of fault. Cross Defendants also filed an Attorney Affidavit of Fault in Support of Cross Defendants’ Motion for Relief from Fault on February 10, 2022.

On March 28, 2022, the Court denied Cross Defendants Hollywood and Ivar, LLC's Motion for Mandatory Relief from Default Based on Attorney Affidavit of Fault.

II. ANALYSIS

The Court GRANTS Entry of Default Judgement in the amount of $4,104,728.64 as indicated below:

Default Judgment
Category	Amount Requested	Amount Granted
Demand of Complaint	$3,365,784.27	$3,365,784.27
General Damages		$0.00
Special Damages		$0.00
Interest	$699,709.17	$699,709.17
Costs	$3,687.36	$3,687.36
Attorney's fees	$366,180.00	$35,547.84
Previously-imposed attorney's fees sanctions	$80,175.00
TOTAL	$4,435,360.80	$4,104,728.64

Case Number: *******9276 Hearing Date: March 28, 2022 Dept: 34

SUBJECT: Cross Defendants’ Motion for Mandatory Relief from Default Based on Attorney Affidavit of Fault [CCP 473(b)]

Moving Party: Cross Defendants Hollywood and Ivar, LLC

Resp. Party: Cross-Complainant DWG International, LLC

Cross Defendants Hollywood and Ivar, LLC's Motion for Mandatory Relief from Default Based on Attorney Affidavit of Fault is DENIED.

I. BACKGROUND

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC (“Hollywood”) filed a complaint against Defendants DWG International, LLC (“DWG”) and Does 1-10, inclusive, to allege breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment.

On September 15, 2020, Cross-Complainant DWG filed a cross-complaint against Cross Defendant Hollywood to allege breach of contract.

On October 16, 2020, Hollywood filed a First Amended Complaint against DWG and Does 1-10, inclusive to allege breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment. This action arises out of allegations of breach of a lease agreement entered between the parties on April 8, 2008, for the lease of business premises. (FAC, 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at 8-10, 15-17.)

On January 28, 2022, the Court granted Cross-Complainant DWG’s motion for terminating sanctions, citing Cross-Defendant Hollywood’s “ongoing history of indifference to Court orders and discovery obligations.” (Minute Order, January 28, 2022, p. 11.)

On February 10, 2022, Cross Defendants Hollywood moved the Court pursuant to Code of Civil Procedure 473(b) for mandatory relief from default based on an attorney affidavit of fault. Cross Defendants also filed an Attorney Affidavit of Fault in Support of Cross Defendants’ Motion for Relief from Fault on February 10, 2022.

On February 18, 2022 and March 14, 2022, DWG filed objections to the instant motion.

On March 21, 2022, Hollywood filed a Reply to DWG’s Objection to their Motion for Mandatory Relief from Default Based on Attorney Affidavit of Fault [CCP 473(b).]

On March 23, 2022, DWG filed a Response to Cross Defendants’ Reply to DWG’s Objection to Motion for Relief from Default.

II. ANALYSIS

A. Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides, in relevant part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP 473, subd. (b).)

The court has broad discretion to vacate the entry of default, default judgment, a dismissal, or other proceeding, but that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than six months after the proceeding was taken and must be made within a “reasonable time.”

Code of Civil Procedure section 473, subdivision (b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure section 473, subdivision (b) are defined as follows:

“Mistake is not a ground for relief under section 473, subdivision (b), when the court finds that the ‘mistake’ is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . . Further, the term ‘surprise,’ as used in section 473, refers to some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. Finally, as for inadvertence or neglect, to warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230 [cleaned up].)

Code of Civil Procedure section 473, subdivision (b) also provides certain guidelines for when a court is mandated to set aside entry of default or default judgment. Code of Civil Procedure section 473, subdivision (b) states in pertinent part:

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (CCP 473, subd. (b).)

B. Discussion

1. Procedural Deficiencies with the Motion

DWG notes in their objection filed February 18, 2022 that Hollywood filed the instant motion less than sixteen (16) days before the scheduled hearing, in violation of Code of Civil Procedure 1005(b). (DWG Objection, p. 2:9-11.) DWG notes further in their objection filed March 14, 2022 that Hollywood “rescheduled the hearing but did not re-notice the hearing or serve the document identified as missing from the moving papers”, the Declaration of Freddy Braidi. (DWG Second Objection, p. 2:20-23; DWG Objection, p. 3:2-5.) DWG argues that Hollywood’s counsel failed to serve a complete set of moving papers in response to a written request from DWG on March 8, 2022. (DWG Second Objection, p. 3:3-6.)

The Court finds that the Proof of Service attached to the Declaration of Freddy Braidi states that it was served on DWG’s counsel by mail on February 10, 2022. (Braidi Decl., Proof of Service.) However, DWG attests that it never received the Declaration of Freddy Braidi. (Levine Decl., 7.) Further, DWG notes that the instant motion was postmarked February 14, 2022. Levine Decl., 6, Ex. 1.) Parties have an electronic service agreement in the present case, requested by Hollywood. (Levine Decl., 8, Ex. 2.) DWG raised issues with Hollywood’s failure to serve documents “at prior hearings including the December 6, 2021, December 21, 2021, and January 28, 2022 hearings. (Levine Decl., 9.)

Hollywood argues in its Reply to DWG’s Objection that “DWG has waived any argument on the merits when it merely “objects” to the form of Notice of the MTD – which it acknowledges it received – on purported “due process” grounds. (Reply, p. 1:7-9.) However, the Court finds that Hollywood’s apparent failure to serve the full set of documents associated with a court filing does raise due process concerns. (Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1 [investor's statement of punitive damages against company was too late to satisfy the company's due process right to notice of its potential liability].)

Terminating sanctions were imposed on Hollywood in part because the Court found it “complicit in their previous attorney’s tactics,” tactics outlined in the Attorney Affidavit of Fault Hollywood suggests should impose mandatory set aside of default in this case. (Minute Order, January 28, 2022, p. 10; Attorney Affidavit of Fault, 3-6.) The Court finds that Hollywood has failed to send the full complement of documents associated with the motion,

The Court finds that the present motion was not properly served on DWG in violation of CCP 1005(c). The Court could deny the motion based on these procedural faults, but as indicated below, there are also substantive reasons to deny the motion.

2. Substantive Grounds to Deny this Motion

The Court previously granted Hollywood’s request for relief pursuant to Code of Civil Procedure section 473(b). On June 1, 2021, the Court granted Cross-Defendants’ motion to set aside the defaults entered against them on January 22, 2021 and February 4, 2021 based on Attorney Goodman’s affidavit of fault. Now, Hollywood again seeks relief under Section 473(b) from the Court’s issuance of terminating sanctions. As noted above, however, the Court already found that Cross-Defendants were complicit in Attorney Goodman’s actions.

As indicated in its January 28, 2022 Minute Order granting terminating sanctions, the Court found that Hollywood had been dishonest with the Court on at least five occasions. (See Minute Orders of 10/21/2020; 1/25/2021; 6/1/2021; 11/19/2021; 12/6/2021.) The Court also found that Hollywood was complicit in its attorney’s dishonest actions. (Minute Order of 1/28/2022.) Cross-Defendants cannot continue to use Section 473(b) to avoid the consequences of their misconduct. If the Court were to grant Hollywood’s motion and again vacate the dismissal of this action, they could continue to flout the Court’s orders and then, when defaulted yet again, simply change attorneys and seek further “mandatory” relief under Section 473(b).

The relief afforded by Section 473(b) was not intended for this situation.

Accordingly, for both procedural and substantive reasons, the Court denies the motion.

III. CONCLUSION

Cross Defendants Hollywood and Ivar, LLC's Motion for Mandatory Relief from Default Based on Attorney Affidavit of Fault is DENIED.

Case Number: *******9276 Hearing Date: January 28, 2022 Dept: 34

SUBJECT: Motion for Terminating Sanctions

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendant Hollywood and Ivar, LLC

Cross-Complainant DWG International, LLC's Motion for Terminating Sanctions is GRANTED.

I. BACKGROUND

This action arises out of allegations of breach of a lease agreement entered between the parties on April 8, 2008, for the lease of business premises. (FAC, 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC, and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross- Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC, and its counsel Sholom Goodman in the amount of $80,175.00.

On April 29, 2021, Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi filed a motion for mandatory relief from default and any default judgment.

On May 11, 2021, Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi filed the amended motion for mandatory relief from default and any default judgment.

On June 1, 2021, the Court granted Cross-Defendants’ motion to set aside entries of default.

On June 29, 2021, Cross-Defendants filed an answer to the cross-complaint.

On July 9, 2021, Cross-Complainant filed a demurrer to Cross-Defendants’ answer.

On August 30, 2021, this Court sustained with leave to amend Cross-Complainant’s Demurrer. The Court gave Cross-Defendants ten (10) days leave to amend their Answer.

On October 19, 2021, DWG International, LLC as Cross-Complainant filed Motions to Compel Responses to Form Interrogatories – General, Set One to both Cross-Defendants Freddy Braidi and Hollywood and Ivar, LLC. Both Cross-Defendants filed oppositions to that motion on November 8, 2021. Cross-Complainant DWG International, LLC filed replies to both Cross-Defendants on November 12, 2021.

On November 3, Cross-Complainant DWG International, LLC filed a motion to strike the answer. On November 24, 2021, Cross-Defendants filed an untimely opposition. On November 29, 2021, Cross-Complainant filed its reply. On December 6, 2021, Cross-Complainant's Motion to Strike the Answer was granted.

On December 9, 2021, Cross Defendants Hollywood and Ivar, LLC and Freddy Braidi filed a Motion for Leave to File a First Amended Answer to the Cross Complaint. On January 4, 2022, Cross-Complainant DWG International, LLC filed an opposition to the Motion for Leave. On January 12, 2022, Cross Defendants filed their reply to Cross-Complainant’s opposition. On January 18, 2022, the Court denied Cross Defendants Hollywood and Ivar, LLC, and Freddy Braidi’s motion for leave to file an amended answer to the cross complaint.

On December 6, 2021, Cross-Complainant DWG International, LLC filed a Motion for Terminating Sanctions against Cross-Defendants Hollywood and Ivar, LLC, and Freddy Braidi. On January 12, 2022, Cross Defendants opposed this motion. On January 21, 2022, Cross-Complainant replied to Cross-Defendants’ opposition.

II. ANALYSIS

A. Legal Standard

Code of Civil Procedure section 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (CCP 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

A terminating sanction is a “drastic measure which should be employed with caution.” (Deyo, supra, 84 Cal.App.3d at 793.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Ca1.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo, supra, 84 Cal.App.3d at 793.) “[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations.” (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.)

“A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . . (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. But see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions.”].)

In Tliche v. Van Quathem (1998) 66 C.A.4th 1054, 1061-1062, the court identified two limitations on the on the trial court’s power to dismiss for noncompliance with local rules: (1) Under CCP 575.2(b), “dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party.” (2) Under Government Code 68608(b), “dismissal is appropriate only if less severe sanctions would be ineffective.” ([ 320] Terminating Sanctions Improper, 2 Witkin, Cal. Proc. 6th Courts 320 (2021).)

B. Discussion

Cross-Complainant DWG International, LLC (“DWG”) moves for terminating sanctions against Cross-Defendant Hollywood and Ivar, LLC and Freddy Braidi (“Hollywood”) pursuant to CCP 2023.030 et seq. and Government Code 68608 et seq. DWG argues that Hollywood and their counsel “have failed to comply with Court orders regarding discovery, have engaged in conduct designed to disrupt the timely disposition of this case, and further monetary sanctions are an inadequate deterrent and/or remedy as a matter of law.” (Motion, p. 2:6-9.)

DWG contends that Hollywood’s conduct during this litigation illustrate a history of “improper conduct and gamesmanship” that “deprived Cross-Complainant DWG of any and all discovery responses throughout the entire litigation and continue to do so by refusing to provide any discovery responses as ordered by this Court and prior to the discovery cutoff.” (Motion, MPA, p. 1:3-5; Levine Decl., 5.) The Court has imposed monetary sanctions on Hollywood four times for an aggregate amount of approximately $90,000; it is undispuated that none of those monetary sanctions have been paid. (Levine Decl., 10.) DWG maintains that the monetary sanctions have not deterred Hollywood’s refusal to comply with discovery because on November 19, 2021, this Court granted DWG’s motions to compel, and ordered $4,950.00 in monetary sanctions, but as of December 6, 2021 Hollywood has not provided the ordered discovery responses or paid the monetary sanctions. (Levine Decl., 4-5.) This despite the fact that Hollywood attested to the Court that responses would be provided within ten (10) days. (Levine Decl., 5.)

DWG is correct when it states that “[t]his Court has . . . memorialized on no less than five occasions Cross-Defendants’ blatant dishonesty with the Court.” (Motion, MPA, p. 1:22-24.) These five instances are summarized below:

Minute Order, October 21, 2020: “The Court is concerned that Plaintiff is playing games. . . . Plaintiff’s FAC was filed long after the time for Plaintiff’s opposition had expired and only 3 court days prior to the hearing. It was also filed after the Court and its staff had spent hours analyzing the demurrer and drafting its tentative decision. The Court finds Plaintiff’s counsel’s actions to be unprofessional.

Minute Order, February 25, 2021: “The Court is even more concerned today about what appears to be Plaintiff’s counsels’ gameplaying and lack of professionalism.”

Minute Order, June 1, 2021: “As indicated below, the Court is Granting the motion to set aside the default and default judgments. Given the strong public policy of resolving disputes on its merits, the Court believes it must grant this motion. However, this court has previously expressed concerns that Mr. Goodman, Cross-Defendant’s counsel, is “playing games.” (See 10/21/2020 Minute Order and 2/25/21 Minute Order.) Two months ago in this case, this Court ordered sanctions against Hollywood and Ivar, LLC, and its attorney Mr. Goodman of $80,175.00 under CCP 128.7. (See 4/6/2021 Minute Order.) … These actions of Mr. Goodman raise serious concerns in the Court’s mind as to the veracity of his declarations.”

Minute Order, November 19, 2021: “The Court has previously found that Cross-Defendant’s (and Plaintiff’s) counsel has been playing games with this Court and may be litigating in bad faith. (See 10/21/20 Minute Order; 2/25/21 Minute Order.) On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC, and its counsel Sholom Goodman in the amount of $80,175.00. … The Court simply does not believe Plaintiff’s counsel. The Court finds that sanctions are warranted.”

Minute Order, December 6, 2021: “On at least four previous occasions, the Court has found that Cross-Defendants’ counsel has been playing games with this Court and may be litigating in bad faith. (See 10/21/20 Minute Order; 2/25/21 Minute Order; 6/1/21 Minute Order; 11/19/21 Minute Order.) On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC, and its counsel Sholom Goodman in the amount of $80,175.00. On June 1, 2021, the Court granted Hollywood and Ivar’s motion for relief from default pursuant to CCP 473(b) and imposed sanctions of $1,000.00 on Hollywood and Ivar’s counsel, Sholom Goodman. (At the November 19, 2021 hearing, DWG’s counsel stated that none of these sanctions had been paid. Hollywood and Ivar’s counsel, Mr. Goodman, did not contest this assertion.) On November 19, 2021, the Court sanctioned Hollywood and Ivar and its counsel of record, Sholom Goodman, an additional $4,950.00. As the Court stated that the November 19, 2021 hearing, “[t]he Court simply does not believe Plaintiff’s counsel.” (11/19/21 Minute Order.) Paragraph 7 of Mr. Goodman’s Affidavit of Fault repeats the same statements that the Court found unbelievable at the 11/19/21 hearing.”

DWG argues further that the failure to replace Mr. Goodman as counsel demonstrates Hollywood’s ratification and adoption of dilatory and improper conduct employed to increase the cost and length of this litigation. (Motion, MPA, p. 5:25-27.) DWG references the false statements made by Attorney Goodman and Hollywood’s continuing indifference toward paying the monetary sanctions their counsel accrued as evidence that this history of abuse of Court procedure will not cease through weaker sanctions. (Levine Decl., 11.) DWG states that Hollywood has not conducted discovery or paid Court-imposed sanctions, and only replaced counsel one month prior to trial. (Motion, MPA, p. 2:15-18.)

(The Court notes that Hollywood filed a substitution of counsel on December 3, 2021. The substitution of counsel and proof of service were signed on Monday, November 29, 2021; it is not clear why the Substitution of Counsel was not filed with the Court until Friday, December 3, 2021.)

Hollywood argues that Government Code 68608(b) does not authorize sanctions against Cross-Defendants because it does not grant authority to court to issue sanctions for trial delay. (Opposition, p. 2:13-19.) Rather, authority must derive from CCP 575.2(b) “which allows for imposition of sanctions for violations of local rules issued pursuant” to the Trial Court Delay Reduction Act (“TCDRA”). (Opposition, p. 2:19-20.) Hollywood argues further that CCP 575.5 “does not authorize sanctions against private litigants by its express terms, only against counsel.” (Opposition, p. 2:21-22.) Hollywood contends that DWG cites no local rules in violation, only court orders. (Opposition, p. 2:23-25.) Hollywood argues further that discovery sanctions are adopted with an incremental approach, and concerns with responses to discovery requests fail to offer a sufficient basis for terminating sanctions. (Opposition, p. 3:17 – p. 4:20.) Hollywood suggests that the Court should dismiss DWG’s sanctions motion on the grounds that it was “improperly filed on an ex parte basis and not served on counsel for Cross Defendants who had filed their Notice of Substitution and were in any event known to DWG at the hearing on December 6, 2021.”

DWG previously stated that

“In March 2021, after this Court entered defaults against Cross-Defendants, Braidi personally told me that it was Cross-Defendants’ intent and litigation strategy to passively allow a default judgment to be entered in this case against HAI and Braidi, and facetiously wished me ‘good luck collecting.’ During this conversation, Braidi further indicated that he had his personal assets sheltered, that HAI had no money, and that Cross-Defendants would simply appeal any judgment entered to cause DWG further unrecoverable expense and annoyance.” (See Gajda Declaration, March 18, 2021, 8.)

DWG notes that there is no declaration from Freddy Braidi to deny this “good luck collecting” statement and argues that Hollywood has throughout this litigation sought to delay proceedings and increase costs on DWG. (Reply, p. 1:8-22.)

Form interrogatory responses Hollywood was ordered to respond to within 10 days by this Court on November 19, 2021 were served on December 15, 2021, “over two weeks after the dates on the proofs of service.” (Reply, p. 2:10-18.) The Court notes that the proof of service on the discovery responses indicates that the process server served the discovery responses on May 12, 2021, but the Goodman Declaration on the same page states that it was executed on November 29, 2021, the date the discovery responses were due. (Levine Decl., Ex. 1, p. 6.) DWG indicates that the responses “contained a reference to the already-filed Motion for Leave to File an Amended Answer (filed on December 9, 2021). (Reply, p. 2:18-19.) DWG maintains that a reference in Hollywood’s response to Form Interrogatory 15.1 to “moving papers” can only refer to Hollywood’s Motion of Leave to Amend their Answer, which was not served until at least December 9, 2021. (Reply, p. 3:20-27.) DWG argues that this calls into question the veracity of the proof of service on Hollywood’s discovery responses.

There is no doubt that Hollywood has repeatedly abused the discovery process and disobeyed the Court’s orders. Monetary sanctions of increasing value have been levied by this Court to no avail. The main issue for the Court in this motion for terminating sanctions is whether Hollywood itself is responsible for the continued and willful disobedience to this Court’s orders, or whether it was simply due to Hollywood’s counsel’s actions. In short, did Hollywood authorize counsel’s dilatory actions and/or was it complicit in counsel’s actions?

The Court finds that Hollywood and Ivar, LLC, and Freddy Braidi was complicit in their previous attorney’s tactics. The Court also notes that newly-retained counsel’s argument that only violations of local rules may affect a decision for terminating sanctions – not violations of court orders – is incorrect. Violations of court orders are enough; less severe sanctions may allow Hollywood to benefit from their stalling tactics. (Collisson & Kaplan, supra, 21 Cal.App.4th at 1619–1620.)

On December 3, 2020, Hollywood filed a Substitution of Attorney. This could and should have indicated a clear break from the wasteful and untruthful practices of Hollywood’s previous counsel. However, as stated above, discovery responses with questionable dates that bear Attorney Goodman’s signature on the proof of service were submitted to DWG on December 15, 2021, after Hollywood secured new counsel. Further, Hollywood has still not paid any sanctions that have been ordered by the Court on four different occasions – sanctions that collectively total almost $90,000.

Hollywood’s conduct has not changed since they retained new counsel.

The Court finds an ongoing history of indifference to Court orders and discovery obligations; previous Court orders have been ignored; monetary sanctions have not been paid. The Court finds that less severe sanctions are ineffective in altering Hollywood’s behavior in this case. “Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics.” (Collisson & Kaplan v. Hartunian, supra, 21 Cal.App.4th at 1620, quoting Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37.)

III. CONCLUSION

Cross-Complainant DWG International, LLC's Motion for Terminating Sanctions is GRANTED.

SUBJECT: Motion for Summary Judgment

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendant Hollywood and Ivar, LLC

Because the Court is granting DWG’s Motion for Terminating Sanctions (see supra), the Court is taking off-calendar DWG’s Motion for Summary Judgment.

Case Number: *******9276 Hearing Date: January 18, 2022 Dept: 34

SUBJECT: Cross Defendants’ Motion for Leave to File First Amended Answer to Cross Complaint

Moving Party: Cross Defendants’ Hollywood and Ivar, LLC, Freddy Braidi

Resp. Party: Cross-Complainant DWG International, LLC

Cross Defendants’ Hollywood and Ivar, LLC, Freddy Braidi’s Motion for Leave to File First Amended Answer to Cross Complaint is DENIED.

I. BACKGROUND

This action arises out of allegations of breach of a lease agreement entered between the parties on April 8, 2008, for the lease of business premises. (FAC, 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC, and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross- Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC, and its counsel Sholom Goodman in the amount of $80,175.00.

On May 11, 2021, Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi filed the amended motion for mandatory relief from default and any default judgment.

On June 1, 2021, the Court granted Cross-Defendants’ motion to set aside entries of default.

On June 29, 2021, Cross-Defendants filed an answer to the cross-complaint.

On July 9, 2021, Cross-Complainant filed a demurrer to Cross-Defendants’ answer.

On August 30, 2021, this Court sustained with leave to amend Cross-Complainant’s Demurrer. The Court gave Cross-Defendants ten (10) days leave to amend their Answer.

On October 19, 2021, DWG International, LLC as Cross-Complainant filed Motions to Compel Responses to Form Interrogatories – General, Set One to both Cross-Defendants Freddy Braidi and Hollywood and Ivar, LLC. Both Cross-Defendants filed oppositions to that motion on November 8, 2021. Cross-Complainant DWG International, LLC filed replies to both Cross-Defendants on November 12, 2021.

On November 3, Cross-Complainant DWG International, LLC filed a motion to strike the answer. On November 24, 2021, Cross-Defendants filed an untimely opposition. On November 29, 2021, Cross-Complainant filed its reply. On December 6, 2021, Cross-Complainant's Motion to Strike the Answer is granted.

On December 9, 2021, Cross Defendants Hollywood and Ivar, LLC and Freddy Braidi filed a Motion for Leave to File a First Amended Answer to the Cross Complaint. On January 4, 2022, Cross-Complainant DWG International, LLC filed an opposition to the Motion for Leave. On January 12, 2022, Cross Defendants filed their reply to Cross-Complainant’s opposition.

II. ANALYSIS

A. Legal Standard

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (CCP 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (CCP 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Ibid.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

B. Discussion

Cross Defendants’ Hollywood and Ivar, LLC, and Freddy Braidi (“Hollywood”) move the Court for leave to file their First Amended Answer to the Cross Complaint in this action. (Motion, p. 1:4-5.)

1. Procedural Requirements under California Rules of Court, Rule 3.1324

The Court finds that Hollywood included a copy of the proposed amended pleading, serially numbered, and a copy that delineated specific additions and deletions from Hollywood’s Answer to the Cross Complaint. (Stillman Decl., Exs. 1, 2.) Further, the Stillman Declaration accompanies Hollywood motion, and broadly states the effect of the amendment. (Stillman Decl., 3.) The Court does not find evidence of Hollywood’s explanations of why the amended pleading is necessary and proper, when any facts giving rise to the amended pleading were discovered, and the reasons why this request for an amended pleading were not made earlier in the Stillman Declaration. The Court, therefore, finds that Hollywood did not fully comply with California Rules of Court, Rule 3.1324.

2. Prejudice Considerations

Hollywood argues that no prejudice to Cross Complainant would emerge from this motion because Cross-Complainant DWG International, LLC (“DWG”) “has a complete statement of Cross Defendants’ defenses in the MSJ Opposition, filed on December 3, 2021, to which Cross Complainant is entitled to reply.” (Motion, MPA, p. 1:18-20.) Hollywood argues further that no prejudice to DWG exists from the filing of a First Amended Answer with new Additional Defenses because the trial date and discovery “cut off” dates will need to be re-scheduled at a new Case Management Conference.” (Reply, p. 1:9-11.) Hollywood notes that DWG’s motion for summary judgment “is now scheduled for January 28, 2022 at DWG’s request and the Court’s own motion.” (Reply, p. 1:13-14.) Under CCP 437c(a)(3) a motion for summary judgment may not be heard later than thirty (30) days before trial, so Hollywood argues that “DWG acknowledges that the trial date of January 18, 2022, has been vacated as shown by the Case Summary and no new trial date or discovery “cut off” dates set.” (Reply, p. 1:15-16.)

DWG argued that the Court should deny Hollywood’s motion because their proposed First Amended Answer is a “complete revision” of the current Answer, one that asserts different defense theories following their already filed opposition to DWG’s Motion for Summary Judgment. (Opposition, p. 1:3-10.) DWG contends that Hollywood’s notice of motion fails to state the legal grounds upon which relief is sought in breach of CCP 1010. (Opposition, p. 4:12—5:14.) Further, DWG maintains that Hollywood alternately cites CCP 473(a), 473(b), and 576 as bases for relief, but calls into question each statute as authority for Hollywood’s motion. (Opposition, p. 5:7-11.) DWG reasons that CCP 576 offers an improper basis for Hollywood’s motion because the proposed First Amended Answer “purportedly asserts new legal defenses and would substantially prejudice DWG,” given the delay caused by Hollywood’s assertion of those new defenses. (Opposition, p. 5:19-20, 24-25.)

Citing Record v. Reason (1999) 73 Cal.App.4th 472, 486, DWG reasons that even meritorious amendments may be denied when presented following unwarranted delay. (Opposition, p. 6:14-16.) DWG reminds the Court that Hollywood did not explain why the proposed First Amended Answer’s affirmative defenses could not have been brought earlier, given the lack of discovery in this case and the absence of supporting declarations to undergird their moving papers’ claims. (Opposition, p. 6:19-24.) DWG also argues that CCP 473(b) is unavailable to Hollywood because there is no “default entered by the clerk” or “default judgment or dismissal” entered by the court against Cross-Defendants.” (Opposition, p. 7:20-22.) DWG maintains that CCP 473(a) may not support the motion because unwarranted delay may be grounds for denying a motion for leave to amend a pleading, “despite the policy of liberality in allowing amendments to a pleading under Section 473(a).” (Opposition, p. 8:23-25.) Further, DWG cites California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280 to argue that the “failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (Opposition, p. 9:20-23.)

The Court finds DWG’s arguments persuasive. Aside from the procedural frailties of the instant motion, the Court does not find new facts pleaded in the proposed First Amended Answer that justify this amended pleading and its attendant delays. CCP 473(a)(1) allows a court discretion to encourage pleadings specific enough to address the meaningful issues cases present. This discretion, when employed, should involve some facts or law that reasonably precipitate the Court’s action. The procedural rules embedded in California Rules of Court, Rule 3.1324 allow moving parties to ensure they offer courts a reasonable basis upon which to justify the extended delay imposed on litigation by an amended pleading.

Further, DWG’s Motion for Summary Judgment will be heard on January 28, 2023; the motion and opposition have already been filed. Allowing amendments to the Answer might well necessitate continuing the Motion for Summary Judgment to allow for further briefing. In addition, fact discovery closed one month ago; allowing new affirmative defenses might well necessitate reopening discovery.

Hollywood offers the Court little more than the fact that the Court, in its discretion, could allow this proposed First Amended Answer. While true, this is insufficient. Hollywood failed to fulfill its procedural requirements under California Rules of Court, Rule 3.1324. The Court declines to exercise its discretion to allow a First Amended Answer – an amended answer that would further delay the Motion for Summary Judgment, reopen discovery, and postpone trial in this matter.

III. CONCLUSION

Cross Defendants’ Hollywood and Ivar, LLC, Freddy Braidi’s Motion for Leave to File First Amended Answer to Cross Complaint is DENIED.

b'

Case Number: *******9276 Hearing Date: December 6, 2021 Dept: 34

SUBJECT: Motion to Strike Answer

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendants Hollywood and Ivar, LLC (“Hollywood”) and Freddy Braidi (“Braidi”)

Cross-Complainant’s Motion to Strike the Answer is GRANTED.

I. BACKGROUND

This action initially arose from a landlord-tenant dispute between Hollywood and Ivar, LLC and DWG International, LLC. Hollywood and Ivar filed its Complaint on May 20, 2020, alleging breach of contract and wrongful eviction. DWG International filed a Cross-Complaint on September 15, 2020, alleging breach of contract.

On August 30, 2021, this Court sustained with leave to amend Cross-Complainant’s Demurrer. The Court gave Cross-Defendants ten (10) days leave to amend their Answer.

On November 3, Cross-Complainant filed the instant motion. On November 24, 2021, Cross-Defendants filed an untimely opposition. On November 29, 2021, Cross-Complainant filed its reply.

II. ANALYSIS

A. Legal Standard

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (CCP ; 435(b).) For a motion to strike, the Code of Civil Procedure defines a "pleading" as a demurrer, answer, complaint, or cross-complaint. (CCP ; 435(a)(2).) Any party, within the time allowed to answer a complaint, either at the time he or she demurs to the complaint or without demurring, may serve and file a notice of motion to strike the whole or any part of the complaint. (CCP ; 435(b). Unless extended by stipulation or court order, defendant\'s answer is due within 30 days after service of the complaint. (CCP ; 412.20(a)(3).) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP ; 436.)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” (CCP ; 435.5.)

B. Discussion

a. Untimely Opposition

As DWG notes in its Reply, Hollywood and Ivar’s Opposition is untimely. Nonetheless, the Court has read and considered the Opposition.

b. Merits of Motion to Strike

Cross-Complainant DWG International, LLC moves to strike the Answer filed by Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi pursuant to CCP ; 430.20 et seq. on the grounds that the Answer was not timely filed and therefore the affirmative defenses asserted in Cross-Defendants’ Answer cannot be maintained. The Court granted Hollywood and Ivar ten days leave to amend their Answer to the Cross-Complaint. (Motion, p. 2:4-5; Minute Order, filed August 30, 2021, p. 1. [“The Demurrer is sustained with ten (10) days leave to amend.”].) However, Hollywood and Ivar’s Answer was filed on October 25, 2021 -- fifty-six days after the Court’s August 30, 2021 Minute Order and fifty-three days following service of Cross-Complainant’s Notice of Ruling. (Proof of Service, Notice of Ruling, p. 3.)

Hollywood and Ivar filed an Affidavit of Fault of Sholom Goodman on November 24, 2021, along with their Opposition to the present Motion to Strike. Goodman argues that between his illness on the hearing date and ongoing mail service issues, he mistakenly believed that he did not have to file an amended Answer and did not know the time period within which he could file an amended Answer. (Goodman Affidavit, ¶ 7.) Cross-Defendants requested that Attorney Goodman “substitute out of the case in favor of new counsel, Stillman & Associates and Law Firm of JT Fox & Associates.” (Opposition, p. 2:14-15.) Cross-Defendants argue that they are entitled to mandatory relief from default caused by Attorney Goodman. (Opposition, p. 2:18-19.)

c. Counsel Goodman’s Continued Flouting of this Court’s Orders and Continued Misstatements under Penalty of Perjury

On at least four previous occasions, the Court has found that Cross-Defendants’ counsel has been playing games with this Court and may be litigating in bad faith. (See 10/21/20 Minute Order; 2/25/21 Minute Order; 6/1/21 Minute Order; 11/19/21 Minute Order.)

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00. On June 1, 2021, the Court granted Hollywood and Ivar’s motion for relief from default pursuant to CCP 473(b) and imposed sanctions of $1,000.00 on Hollywood and Ivar’s counsel, Sholom Goodman. (At the November 19, 2021 hearing, DWG’s counsel stated that none of these sanctions had been paid. Hollywood and Ivar’s counsel, Mr. Goodman, did not contest this assertion.)

On November 19, 2021, the Court sanctioned Hollywood and Ivar and its counsel of record, Sholom Goodman, an additional $4,950.00.

As the Court stated that the November 19, 2021 hearing, “[t]he Court simply does not believe Plaintiff’s counsel.” (11/19/21 Minute Order.) Paragraph 7 of Mr. Goodman’s Affidavit of Fault repeats the same statements that the Court found unbelievable at the 11/19/21 hearing.

This is the second Affidavit of Fault submitted by attorney Goodman in this action. Perhaps Mr. Goodman believes that an affidavit of fault is a “get out of jail free” card; it is not. Further, an affidavit of fault that contains incomplete, inaccurate or perjurious statements need not be accepted by the Court as an automoatic basis for applying CCP 473(b).

d. Motion for Terminating Sanctions

DWG requests in its Reply that the Court set a motion for terminating sanctions. (See Reply, p. 5:22 – p. 7:5.) The Court declines to do so, but DWG may make any motion that it feels is necessary and in the interest of justice.

III. CONCLUSION

Cross-Complainant’s Motion to Strike the Answer is GRANTED.

'

b'

Case Number: *******9276 Hearing Date: November 19, 2021 Dept: 34

SUBJECT: (1) Motion to Compel Responses to Form Interrogatories – General, Set One and Request for Sanctions

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendant Freddy Braidi

SUBJECT: (2) Motion to Compel Responses to Form Interrogatories – General, Set One and Request for Sanctions

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendant Hollywood and Ivar, LLC

Cross-Complainant’s Motion to Compel Responses to Form Interrogatories – General, Set One is GRANTED against Cross-Defendant Freddy Braidi.

Cross-Complainant’s Motion to Compel Responses to Form Interrogatories – General, Set One is GRANTED against Cross-Defendant Hollywood and Ivar, LLC.

Cross-Complainant’s Request for Sanctions is GRANTED against Cross-Defendant Freddy Braidi and counsel Sholom Goodman in the amount of $2,850.00.

Cross-Complainant’s Request for Sanctions is GRANTED against Cross-Defendant Hollywood and Ivar, LLC and counsel Sholom Goodman in the amount of $2,100.00.

I. PRELIMINARY COMMENTS

As indicated in section III(B)(2) below, the Court believes that counsel Goodman has not been truthful with the Court in his declarations filed in opposition to these motions. If Mr. Goodman believes that the Court has erred in its analysis, the Court would be happy to hear from him during oral argument.

II. BACKGROUND

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00.

On June 1, 2021, the Court granted Cross-Defendants’ motion to set aside entries of default.

On June 29, 2021, Cross-Defendants filed an answer to the cross-complaint.

On July 9, 2021, Cross-Complainant filed a demurrer to Cross-Defendants’ answer.

On October 19, 2021, DWG International, LLC as Cross-Complainant filed Motions to Compel Responses to Form Interrogatories – General, Set One to both Cross-Defendants Freddy Braidi and Hollywood and Ivar, LLC. Both Cross-Defendants filed oppositions to that motion on November 8, 2021. Cross-Complainant DWG International, LLC filed replies to both Cross-Defendants on November 12, 2021.

III. ANALYSIS

A. Legal Standard

1. Motions to Compel

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (CCP ;; 2030.260(a), 2030.270(a), 2031.260(a), 2031.270(a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (CCP ; 2030.300(b).) By failing to respond, the offending party waives any objection to the demand. (CCP ; 2030.290(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] \'fail[ed] to serve a timely response,\' the trial court had authority to grant [opposing party\'s] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

2. Requests for Sanctions

A court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories or further responses to request for production of documents, 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. (See CCP ;; 2030.300(d), 2031.310(h).)

B. Discussion

1. Motions to Compel (Braidi and Hollywood and Ivar, LLC)

Cross-Complainant argues that it properly served Form Interrogatories – General, Set One upon both Cross-Defendants on August 30, 2021. (Saltz Decl., ¶ 6, p. 2:4-6.) The attached proof of service shows that Cross-Complainant mailed the discovery to Sholom Goodman, counsel for Cross-Defendants Braidi and Hollywood and Ivar, at two different addresses. (Saltz Decl., Ex. 1, Proof of Service, p. 1.) As of October 19, 2021, neither Cross-Defendant requested a time extension or responded to Form Interrogatories – General, Set One. (Saltz Decl., ¶ 8, p. 2:10-11.) Interrogatory responses were due by October 4, 2021. (Saltz Decl., ¶ 7.)

Cross-Defendants do not oppose the motions to compel. Hollywood and Ivar only opposes the request for sanctions. (Opposition to Cross-Complainant’s Request for Sanctions, p. 2:9-10.)

Cross-Defendant Hollywood and Ivar, LLC argues that neither of the two addresses to which the discovery was sent are good addresses. “The first address is in error. Mr. Goodman is not associated with that address. The second address is for a location that is difficult to locate, and as a result, Mr. Goodman often fails to receive mail addressed to that address.” (Opposition to Cross-Complainant’s Request for Sanctions, ¶ 1, p. 2:12-15, Goodman Decl., ¶ 2.) Cross-Defendant argues that Mr. Goodman received neither the Form Interrogatories – General, Set One or the notice of the motion to compel by mail. (Opposition to Cross-Complainant’s Request for Sanctions, ¶ 1, p. 2:16-17; Goodman Decl., ¶ 3.) Mr. Goodman “repeatedly requested of opposing counsel that they send courtesy copies of documents by email and they have refused to do so.” (Goodman Decl., ¶ 4.) Cross-Defendant argues that on April 27, 2021, Goodman emailed Cross-Complainant’s attorney Michael Saltz to request that communications and service be sent by email, “rather than mailed to my address.” (Id.) Cross-Complainant has not proven amenable to this request, according to Cross-Defendant. (Opposition to Cross-Complainant’s Request for Sanctions, ¶ 1, p. 2:22-23; Goodman Decl. ¶ 4.)

The Court finds that the elements for a motion to compel have been satisfied in the present case. Cross-Complainant properly served discovery, the time to respond to that discovery expired, and the responding party failed to file a timely response. (Saltz Decl., ¶ 6, p. 2:4-6, ¶ 7, ¶ 8, p. 2:10-11.)

2. Requests for Sanctions

Cross-Complainant argues that Cross-Defendant Braidi engages in “intentional bad faith litigation tactics, by making unsupported claims, submitting false declarations, and now, failing to respond to discovery, all at the expense of DWG. These unsupported claims, along with Cross- Defendant’s failure to properly respond to the interrogatories, is unnecessarily increasing the cost of litigation for Cross-Complainant.” (Motion (Braidi), p. 5:4-8.) Cross Complainant suggests that Cross-Defendant Braidi cannot prove with substantial justification why monetary sanctions would be “unjust based on the incomplete and improper responses served.” (Motion (Braidi), p. 5:14.) Cross-Complainant makes identical claims about Cross-Defendant Hollywood and Ivar, LLC. (Motion (Hollywood), p. 5:4-8, 5:14.)

Cross-Defendant Braidi argues that the attorney’s fees requested by Cross-Complainant are not reasonable because “Hollywood and Braidi would have responded in a timely manner and are willing now to respond within 10 days.” (Opposition to Cross-Complainant’s Request for Sanctions, p. 3:14-16.) Mr. Goodman argues that electronic courtesy copies of discovery could have resolved this concern. (Opposition to Cross-Complainant’s Request for Sanctions, p. 3:18.) Given this, Cross-Defendants Braidi and Hollywood and Ivar, LLC request that the Court reduce the requested sanctions.

Cross-Complainant argues in reply that Cross-Defendants’ counsel “has once again filed a late opposition to DWG’s request for sanctions with the same refrain as prior briefs: he cannot receive mail at any address that he provides to the Court.” (Reply ISO Motion, p. 1:4-5.) Cross-Complainant argues that Cross-Defendants’ counsel “admits that he in in receipt of the discovery at issue as of at least October 28, 2021,” but notes that as of the filing of their reply brief on November 12, 2021 – 15 days later – no responses to the Form Interrogatories – General, Set One have been received. (Reply ISO Motion, p. 1:20-21; Goodman Decl., ¶ 2.)

The Court has previously found that Cross-Defendant’s (and Plaintiff’s) counsel has been playing games with this Court and may be litigating in bad faith. (See 10/21/20 Minute Order; 2/25/21 Minute Order.) On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00.

As indicated above, Plaintiff’s counsel avers that:

“The proof of service by mail lists two addresses for me. The first address is in error. I have not been associated with that address in years and it is not the address on the pleadings I have submitted on behalf of HOLLYWOOD. The second address is for a location that is difficult to locate; as a result, I often fail to receive mail addressed to that address.” (Goodman Declaration, ¶2.)

The two addresses on the proof of service, to which counsel Goodman is referring, are:

“Sholom Goodman

8069 Woodland Lane

West Hollywood, CA 90046”

“Sholom Goodman

3033 Wilshire Blvd, Apt 908

Los Angeles, CA 90010-1008”

(See Proofs of Service attached to Motions.)

Counsel Goodman states, under penalty of perjury, that he has “not been associated with [the Woodland Lane] address in years and it is not the address on the pleadings I have submitted on behalf of HOLLYWOOD.” (Goodman Declaration, ¶2.) Yet this is the address that is on Plaintiff’s Opposition to this motion that is filed on behalf of Hollywood and Ivar! Further, the Court, on its own motion, take judicial notice that this is the same address that counsel Goodman has listed with the California State Bar as his current address. (See https: apps.calbar.ca.gov/attorney/Licensee/Detail/287465.)

Further, the second address is the address that was listed by counsel Goodman on his Substitution of Attorney form. (See Substitution of Attorney, filed 6/10/2020.) It is also the address that counsel Goodman has listed with the Court as his current official address. The Court takes judicial notice that this second address is a building on Wilshire Blvd near Virgil Ave. The Court does not understand why Plaintiff’s counsel would state that “[t]he second address is for a location that is difficult to locate ...” (Id.) The Court happens to be aware of this area of Wilshire Blvd. and does not believe that the area – between Koreatown and downtown Los Angeles – is “difficult to locate.”

The Court simply does not believe Plaintiff’s counsel.

The Court finds that sanctions are warranted.

Further, although Plaintiff’s counsel argues that the amount of sanctions requested is unreasonable, he has not presented any evidence to support his assertion. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass\'n (2008) 163 Cal. App. 4th 550, 564.)

Cross-Defendants have failed to do so.

The Court finds that the requested attorney\'s fees are reasonable.

IV. CONCLUSION

Cross-Complainant’s Motion to Compel Responses to Form Interrogatories – General, Set One is GRANTED against Cross-Defendant Freddy Braidi.

Cross-Complainant’s Motion to Compel Responses to Form Interrogatories – General, Set One is GRANTED against Cross-Defendant Hollywood and Ivar, LLC.

Cross-Complainant’s Request for Sanctions is GRANTED against Cross-Defendant Freddy Braidi and counsel Sholom Goodman in the amount of $2,850.00.

Cross-Complainant’s Request for Sanctions is GRANTED against Cross-Defendant Hollywood and Ivar, LLC and counsel Sholom Goodman in the amount of $2,100.00.

'

b'

Case Number: *******9276 Hearing Date: August 30, 2021 Dept: 34

SUBJECT: Demurrer to Answer

Moving Party: Cross-Complainant DWG International, LLC

Resp. Party: Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi

The Court OVERRULES the demurrer.

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00.

On June 1, 2021, the Court granted Cross-Defendants’ motion to set aside entries of default.

On June 29, 2021, Cross-Defendants filed an answer to the cross-complaint.

On July 9, 2021, Cross-Complainant filed the instant demurrer to Cross-Defendants’ answer.

ANALYSIS:

I. Demurrer

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., ;;422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

There are only three grounds for demurrer to an answer under Code of Civil Procedure section 430.20: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; and (3) failure to state whether contract alleged in the answer is written or oral.

B. Discussion

Cross-Complainant DWG International, LLC demurs to Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi’s answer on the ground that each affirmative defense does not state enough facts to constitute a defense. (Demurrer, pp. 2:4-3:15.)

This demurrer is an example of an all-too-common practice in the Superior Court — that of counsel routinely filing a demurrer that could not possibly dispose of the case nor advance their party’s interests. This usually happens when defense counsel is demurring to a complaint, which, while perfectly intelligible, contains some technical deficiencies.

More and more – as is the case here – the Court is now seeing cross-complainants demurring to an answer.

All counsel know what is happening: Cross-Defendants file an answer, and without any thought to the specific case at issue, cuts-and-pastes numerous “affirmative defenses.” In this case, Cross-Defendants have asserted 18 affirmative defenses. Cross-Complainant in turn cuts-and-pastes a demurrer, arguing that Cross-Defendants have not stated the facts underlying each affirmative defense.

Nothing would be gained were the Court to sustain this demurrer. As Cross-Complainant’s counsel is fully aware, the Court would be required to give Cross-Defendants leave to amend. All that would be achieved is the expenditure of at least another dozen hours of attorneys’ time. In addition to increasing the attorneys fees on both sides, this would result in preventing the case from being at issue for another three months. Such delay does not serve the interests of justice.

A much more efficient procedure would have been for Cross-Complainant to simply propound the discovery necessary to find out the information that he seeks. Cross-Defendants’ answer was filed on June 29, 2021. Had Cross-Complainant simply propounded interrogatories asking for all facts supporting each affirmative defense, Cross-Complainant would have all the facts needed long before this motion is even scheduled to be heard.

“The court must, in every stage of an action, disregard any error . . . or defect [] in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., ; 475.)

Cross-Complainant’s demurrer to the answer is OVERRULED.

'

Case Number: *******9276    Hearing Date: June 1, 2021    Dept: 34

SUBJECT: Motion to Set Aside Defaults and Any Default Judgment

Moving Party: Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi

Resp. Party: Cross-Complainant DWG International, LLC

The motion to set aside entries of defaults is GRANTED.

The Court imposes a penalty of $1,000.00 against Cross-Defendants’ counsel, Sholom Goodman. (Code Civ. Proc., ; 473, subd. (c)(1).)

PRELIMINARY COMMENT:

I. Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi’s reply does not include line numbers in violation of California Rules of Court, rule 2.108. The Court expects all parties to comply with the California Rules of Court in the future.

II. As indicated below, the Court is Granting the motion to set aside the default and default judgments. Given the strong public policy of resolving disputes on its merits, the Court believes it must grant this motion. However, this court has previously expressed concerns that Mr. Goodman, Cross-Defendant’s counsel, is “playing games.” (See 10/21/2020 Minute Order and 2/25/21 Minute Order.) Two months ago, this Court ordered sanctions against Hollywood and Ivar, LLC and its attorney Mr. Goodman of $80,175.00 under CCP ; 128.7. (See 4/6/2021 Minute Order.) In another case pending before this court, this Court imposed sanctions of $250.00 against attorney Goodman for failure to appear at a Case Management Conference, and failure to file proofs of service and a case management statement at two consecutive hearings. (See 6/6/21 Minute Order in Spaciot v. Pham, 20STCV46551.)

These actions of Mr. Goodman raise serious concerns in the Court’s mind as to the veracity of his declarations. However, the Court is not willing to turn today’s motion hearing into the type of evidentiary hearing that would be needed in order to determine of Mr. Goodman is telling the truth. That is beyond the scope of today’s hearing.

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00.

On April 29, 2021, Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi filed a motion for mandatory relief from default and any default judgment.

On May 11, 2021, Cross-Defendants Hollywood and Ivar, LLC and Freddy Braidi filed the instant amended motion for mandatory relief from default and any default judgment.

ANALYSIS:

I. Motion to Set Aside Defaults and Any Default Judgment

A. Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides, in relevant part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., ; 473, subd. (b).)

The court has broad discretion to vacate the entry of default, default judgment, a dismissal, or other proceeding, but that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than six months after the proceeding was taken and must be made within a “reasonable time.”

Code of Civil Procedure section 473, subdivision (b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure section 473, subdivision (b) are defined as follows:

“Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation].” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.)

Code of Civil Procedure section 473, subdivision (b) also provides certain guidelines for when a court is mandated to set aside entry of default or default judgment. Code of Civil Procedure section 473, subdivision (b) states in pertinent part:

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., ; 473, subd. (b).)

B. Evidentiary Objections

The Court rules as follows on Cross-Defendants’ Evidentiary Objections to the Levine Declaration:

C. Discussion

1. Setting Aside Entries of Default

Cross-Defendants “move pursuant to Code of Civil Procedure section 473(b) for mandatory order granting relief from the defaults (and any default judgments subsequently entered by this Court between the time this motion is filed and heard by this Court) entered in the court on January 22, 2021 against Hollywood and Ivar, LLC and February 4, 2021 against Freddy Braidi.” (Amended Motion, pp. 1:28-2:5.) Cross-Defendants bring this motion “on the ground that the default (and any subsequent default judgment entered into after the filing of this motion) was entered due to the fault of the attorney representing Cross-Defendants, and as a result of the attorney’s mistake, inadvertence, surprise, and/or neglect.” (Id. at p. 2:6-9.) “In the alternative, if, for any reason the court finds that the requirements for mandatory relief have not been met, then Cross-Defendants seek relief from default on the discretionary grounds of mistake, inadvertence, surprise, or excusable neglect.” (Id. at p. 2:11-13.)

Cross-Defendants argue that their counsel’s “mistake, inadvertence, and neglect in failing to file a responsive pleading directly caused the entry of the defaults against Cross-Defendants, which were entered on January 22, 2021 and February 4, 2021.” (Id. at p. 6:6-8, citing Goodman Decl. ¶ 4.) Cross-Defendants’ counsel includes an attorney affidavit of fault, in which he declares:

· “I failed to timely file a responsive pleading to Cross-Complainant DWG International, LCC’s Cross-Complaint, which was filed on September 15, 2020, due to my mistake, inadvertence, and neglect of this matter, and specifically because I was under the (mistaken) impression that the case would be imminently resolved in settlement amongst the parties before the filing of a responsive pleading to the Cross-Complaint would be necessary. By not filing a responsive pleading, I believed that the parties could save on litigation costs and expenses, court costs and expenses, attorneys’ fees, and time, in addition to honoring the July 30, 2020 Settlement Agreement entered into amongst the parties. Furthermore, my failure to timely file a responsive pleading to the Cross-Complaint occurred during the midst of the ongoing COVID pandemic, which caused turnover and complications with my legal support team and strain and difficulty to my legal practice.” (Goodman Decl., ¶ 3.)

· “My mistake, inadvertence, and neglect in failing to file a responsive pleading directly caused entry of the defaults against Cross-Defendants, which were entered on January 22, 2021 and February 4, 2021.” (Id. at ¶ 4.)

· “I did not learn about the entry of the defaults until April 12, 2021 when the Notice of Ruling on Cross-Complainants Motion for Sanctions was posted on the Courts [sic] docket, defaults which he was not made aware of by opposing counsel via telephonic or email notice.” (Id. at ¶ 5.)

· “Since the entry of the defaults on January 22, 2021 and February 4, 2021, the parties have continued to engage in settlement discussions, specifically aimed at Cross-Complainant enforcing the terms of the precise Settlement Agreement Cross-Complainant alleges Cross-Defendant breached, in an effort to resolve the parties’ disputes informally. For months prior to entry of the defaults and in the months subsequent to entry of the defaults, I have been under the impression that this case could imminently be resolved in settlement, and that enforcement of the settlement was continuously underway.” (Id. at ¶ 6.)

In opposition, Cross-Complainant argues that “Cross-Defendants cannot meet their burden pursuant to Code of Civil Procedure [section] 473(b), as, at all relevant times, they worked in concert with Counsel for Cross-Defendants and encouraged Cross-Complainant to seek judgment herein.” (Opp. MPA, p. 1:5-7, citing Gajda Decl., ¶ 8.) Cross-Complainant contends that “in March 2021, after this Court entered defaults against Cross-Defendants, Braidi informed president of DWG, David Gajda, that it was Cross-Defendants’ intent and litigation strategy to passively allow a default judgment to be entered in this case against himself and HAI, and facetiously wished Mr. Gajda ‘good luck collecting.’” (Id. at p. 1:22-25, citing Gajda Decl., ¶ 8.) Cross-Complainant argues that “Braidi’s stated intent and litigation strategy has been corroborated by the fact that, throughout the duration of this litigation, Cross-Defendants and their Counsel, Mr. Sholom Goodman (‘Goodman’), have worked in concert to waste the time and resources of this Court, DWG, and DWG’s Counsel.” (Id. at p. 2:1-4, citing Gajda Decl., ¶ 9; Levine Decl., ¶ 4.)

Cross-Complainant argues that “Cross-Defendants are not entitled to mandatory relief from default, as the default was not caused by counsel’s mistake, inadvertence, surprise, or neglect.” (Id. at p. 6:12-13.) Cross-Complainant maintains that “in this case, Goodman, alongside his clients, repeatedly and strategically avoided deadlines and court dates imposed by this Court.” (Id. at p. 7:1-2, citing Levine Decl., ¶ 4; Gajda Decl., ¶ 9.) Cross-Complainant asserts that “contrary to Goodman’s declaration, settlement was neither ‘imminent,’ nor did Goodman have a basis for a reasonable belief that settlement was imminent and that he could avoid deadlines.” (Id. at p. 7:2-4.) Cross-Complainant argues that “the evidence shows that Goodman was proceeding under a conscious decision made by his clients not to act” and “any claim of inadvertence, surprise, or neglect by Goodman was not the cause of this Court’s entry of default.” (Id. at p. 7:5-7.)

In reply, Cross-Defendants argue that “contrary to the assertions and mischaracterizations in DWGs’ Opposition, the defaults were not caused by a deliberate plan or scheme amongst H&I and counsel.” (Reply, p. 7, citing Goodman Suppl. Decl., ¶ 5.) Cross-Defendants assert that their counsel’s “declaration of attorney fault clearly stated that the defaults were entered based on his own mistake, inadvertence, and/or neglect based on his imminent belief that the litigation would resolve in settlement.” (Id. at p. 7, citing Goodman Decl., ¶¶ 3-8; Goodman Suppl. Decl., ¶¶ 4-6, Exhibit B.) Cross-Defendants contend that “by not filing a responsive pleading, [their counsel] believed that the parties could save on litigation costs and expenses, court costs and expenses, attorneys’ fees, and time, in addition to honoring the July 30, 2020 Settlement Agreement entered into amongst the parties.” (Ibid.)

Intentionally or not, Cross-Defendants’ counsel’s statement parallels a previous holding where the Court of Appeal found that relief was mandatory where defense counsel's failure to file an answer was a conscious decision to save money due to his belief that the matter would be settled. (Solv-All v. Sup. Ct. (SMS Supermarket Service, Inc.) (2005) 131 Cal.App.4th 1003, 1009.)

Cross-Defendants also argue that their counsel’s “failure to timely file a responsive pleading to the Cross-Complaint occurred during the midst of the ongoing COVID pandemic, which caused turnover and complications with his legal support team and strain and difficulty to his legal practice.” (Ibid.) Cross-Defendants assert that “whether or not Mr. Goodman’s belief that the case would settle was excusable or otherwise reasonable is irrelevant for purposes of CCP 473(b) because he has filed a more than adequate affidavit of attorney fault describing how and why his mistake, inadvertence, and/or negligence caused the entry of the defaults.” (Id. at p. 7.)

First, the Court finds that this motion brought pursuant to Code of Civil Procedure section 473, subdivision (b) is timely as it was brought within six months from when the defaults were entered. Second, the Court finds that Cross-Defendants’ counsel’s declaration is sufficient to demonstrate his own fault in neglecting to file a timely responsive pleading which resulted in the defaults being entered. (Goodman Decl., ¶¶ 3-8; Goodman Suppl. Decl., ¶¶ 4-5.) Cross-Defendants’ counsel demonstrates that the entries of defaults were due to his own mistake and excusable neglect. (Code Civ. Proc., ; 473, subd. (b).)

To find otherwise, the Court would have to weigh the credibility of the declarations, which, as the Court stated above in its “Preliminary Comments,” it is unwilling to do. Further, the Court has sustained many of the objections to the Levine Declaration, so the Court does not have sufficient evidence to conclude that Goodman’s statements are false.

The Court GRANTS the motion to set aside entries of defaults.

2. Sanctions

“The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., ; 473, subd. (b).)

Code of Civil Procedure section 473, subdivision (c) states:

" (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party's attorney attesting to the attorney's mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney's payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.” (Code Civ. Proc., ; 473, subd. (c).)

In opposition, Cross-Complainant asserts that it is entitled to fees and costs associated with the default. (Opp. MPA, p. 10:23.) Cross-Complainant maintains that “since February 2021, DWG has incurred fees in the amount of $68,085.50 in an effort to secure default judgments against Cross-Defendants HAI and Braidi.” (Id. at p. 11:3-5, citing Levine Decl., ¶ 15.)

In reply, Cross-Defendants argue that Cross-Complainant “has made no attempt to describe or substantiate the number of hours they claim to have expended on obtaining default in this matter, a whopping 113 hours totaling an absurdly high $68,085.50.” (Reply, p. 12.) Cross-Defendants assert that “this court should not entertain DWG’s exorbitant request for fees based on the summary and unsubstantiated evidence offered in support.” (Ibid.)

The Court finds that Cross-Complainant is entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (c)(1) because the Court is granting this motion to set aside the entries of default and default judgment.

The Court imposes a penalty of $1,000.00 against Cross-Defendant’s counsel, Sholom Goodman. Sanctions to be paid within 30 days.

Case Number: *******9276    Hearing Date: May 3, 2021    Dept: 34

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On January 22, 2021, pursuant to Cross-Complainant’s request, default was entered against Cross-Defendant Hollywood and Ivar, LLC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On April 6, 2021, the Court granted Defendant DWG International, LLC’s motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $80,175.00.

ANALYSIS:

Cross-Complainant has failed to file a request for dismissal of ROES. The Court will grant the request for default judgment, as explained below, if Cross-Complainant files a request for dismissal of ROES before the hearing.

In addition to the compensatory damages, interest, and costs, Plaintiff also seeks the recovery of $80,175.00 for sanctions the Court ordered against Hollywood and Ivar, LLC and its counsel for filing a meritless FAC.

These sanctions are included in the request for entry of default against all cross-defendants. However, Cross-Complainant has not explained or provided any authority as to why Cross-Defendant Freddi Braidi should be liable for these sanctions.

The request for entry of default judgment is GRANTED in part. The Court enters default judgment against Cross-Defendant Freddi Braidi in the amount of $784,991.13 as indicated below. 

Default Judgment against Freddi Braidi
Category	Amount Requested	Amount Granted
Demand of Complaint	$704,758.00	$704,758.00
General Damages	$0.00	$0.00
Special Damages	$0.00	$0.00
Interest	$78,471.42	$78,471.42
Costs	$1,761.71	$1,761.71
Attorney's fees	$80,175.00	$0.00
	$865,166.13	$784,991.13

The Court enters default judgment against Cross-Defendant Hollywood and Ivar, LLC in the amount of $865,166.13, as indicated below:

Default Judgment against Hollywood and Ivar, LLC
Category	Amount Requested	Amount Granted
Demand of Complaint	$704,758.00	$704,758.00
General Damages	$0.00	$0.00
Special Damages	$0.00	$0.00
Interest	$78,471.42	$78,471.42
Costs	$1,761.71	$1,761.71
Attorney's fees	$0.00	$0.00
Other: Sanctions	$80,175.00	$80,175.00
	$865,166.13	$865,166.13

 

Case Number: *******9276    Hearing Date: April 6, 2021    Dept: 34

SUBJECT: Motion for Sanctions

Moving Party: Defendant DWG International, LLC

Resp. Party: None

The Court awards costs pursuant to CCP ;128.7 to Defendant DWG International, LLC and against Plaintiff Hollywood and Ivar, LLC and its attorney of record, Sholom Goodman, jointly and severally, in the amount of $80,175.00.

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On February 19, 2021, Defendant DWG International, LLC filed the instant motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $103,878.89.

The motion was originally heard on April 1, 2021. However, at the hearing, Plaintiff’s counsel indicated that he had filed an untimely opposition that he was requesting the Court to consider. The Court continued the hearing until today, indicating that it would review the opposition and determine whether or not to consider it.

ANALYSIS:

I. Motion for Sanctions

A. Legal Standard

Code of Civil Procedure section 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

(1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) the allegations and other factual contentions have no evidentiary support;

(4) the denials of factual contentions are not warranted on the evidence. (Code Civ. Proc., ; 128.7, subd. (b).)

Code of Civil Procedure section 128.7 permits the Court to impose monetary sanctions on an attorney or an unrepresented party that violates any one of these requirements. (Eichenbaum v. Alon (2003) 106 Cal App 4th 967, 976.) In addition, section 128.7 does not require a finding of subjective bad faith; instead it requires only that the Court find that the conduct be objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)

Under Code of Civil Procedure section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428. at 448.)

Code of Civil Procedure section 128.7, subdivision (c)(1) requires that a motion for sanctions under Code of Civil Procedure section 128.7 be made separately from other motions and that notice of the motion must be served, but not filed with the Court, unless, within 21 days after service of the motion, the challenged paper is not withdrawn. This 21-day time period is known as a “safe harbor” period and its purpose is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties’ time and money litigating the pleading as well as the sanctions request. (Ibid.)

Additionally, Code of Civil Procedure section 128.7 has a 21 day safe harbor provision. “[A] notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Code Civ. Proc., ; 128.7. subd. (c)(1).)

“[T]he safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 595.)

B. Procedural Issue: Timeliness of Opposition

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.” (Code Civ. Proc., ; 1005, subd. (b).)

“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, rule 3.1300(d).)

The hearing on this motion was originally scheduled for April 1, 2021. Plaintiff filed its opposition to this motion on March 29, 2021 at 8:29 P.M. The opposition was due on March 18, 2021, which is nine court days before the hearing scheduled for April 1, 2021. Therefore, Plaintiff’s opposition to this motion is untimely and the Court, in its discretion, refuses to consider the untimely filed opposition. (Cal. Rules of Court, rule 3.1300(d).)

Even if the Court were to consider the untimely-filed opposition, the Court would still grant the motion. First, the Court notes that Plaintiff’s opposition lacks page numbers, in violation of California Rules of Court, rules 2.109 and 3.1110(c). When the pages are counted, Plaintiff’s opposition is a total of 75 pages, 8 of which is the opposition itself, and the remaining pages are exhibits. However, there is no declaration attached to the opposition that authenticates any of the exhibits attached. As the exhibits are not authenticated, Plaintiff’s opposition fails to include any competent evidence upon which the Court could rely for its analysis. (See, e.g., Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence.”])

Plaintiff’s opposition also fails to indicate why it waited until one court day prior to the hearing to file its opposition and presents no evidence or argument as to why the Court should nonetheless consider it. Even if the exhibits were authenticated, the Court would find from the exhibits that Plaintiff’s counsel has not acted professionally. For example, in Exhibit R, Plaintiff’s counsel sent an email Defendant’s counsel on March 24, 2021 at 4:23 P.M. requesting an extension to file Plaintiff’s opposition to the instant motion for sanctions. However, as mentioned above, even if it were proper for Plaintiff’s counsel to request an extension from Defendant’s counsel, the request would be untimely as the opposition was due to the Court on March 18, 2021, which is six days before this email was sent.

The Court finds that Plaintiff’s opposition is untimely and declines to consider it.

C. Discussion

Defendant DWG International, LLC moves for “monetary sanctions against Plaintiff . . . and its counsel Sholom Goodman, in the amount of $103,878.89 as well as such other sum and/or sanctions as the Court may find just and reasonable.” (Motion, p. 2:4-7.) Defendant brings this motion “pursuant to Code of Civil Procedure [section] 128.7 on the ground that the Complaint is without factual or legal merit and was filed primarily for an improper purpose to harass Defendants and Cross-Complainants.” (Id. at p. 2:8-10.) Defendant argues that Plaintiff “filed an abusive, unwarranted, and meritless complaint against its now-former landlord . . . in an effort to distract from the fact that [Plaintiff] itself breached the terms of its operative lease agreement, and to delay a previously-filed unlawful detainer for said breach.” (Id. at p. 6:3-6.)

Defendant argues that “aside from said claims being facially invalid and lacking all evidentiary support, . . . the Parties entered into a Settlement Agreement directly addressing said claims, and [Plaintiff] unequivocally agreed to dismiss its claims against DWG with prejudice.” (Id. at p. 14:21-23, referencing Saltz Decl., ¶ 14.) Defendant asserts that “rather than dismissing this action, [Plaintiff] and its counsel filed an amended complaint based on impossible allegations that directly contradict its prior sworn statements to the Court. (Id. at p. 14:23-15:2, referencing FAC.) Defendant maintains that “given the facts and circumstances of this case, no reasonable attorney would have continued to prosecute this case after a Settlement Agreement and through the filing of sham pleadings.” (Id. at p. 15:6-7.) Defendant asserts that “no reasonable attorney would have made such claims in the face of facially available evidence directly contradicting them.” (Id. at pp. 12:7-8, 13:7-8.)

Defendant explains that the $103,878.89 in sanctions it is requesting “includes future fees, as additional time will be spent to litigate the upcoming demurrer on the FAC, as well as DWG’s reply and to attend the hearing on this matter.” (Id. at p. 15:8-11, citing Saltz Decl., ¶ 31.) Defendant asserts that “this amount sanctions includes all fees incurred since [Plaintiff] and its counsel repudiated the Settlement Agreement, as well as all future fees that are reasonably foreseeable based on [Plaintiff’s] conduct in this litigation.” (Id. at p. 15:11-13.)

Plaintiff has not filed an opposition to this motion.

First, the Court finds that Defendant has complied with the 21-day safe harbor provision. (Code Civ. Proc., ; 128.7; Saltz Decl.,¶ 2, Ex. 1.)

Second, the Court finds that it may impose sanctions against Plaintiff and its counsel because Defendant has demonstrated that the FAC was filed without merit. (Bucur, supra, 244 Cal.App.4th 175 at p. 190.) As explained in the ruling sustaining the demurrer to the FAC without leave to amend, Plaintiff’s claims for breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment are legally frivolous because they are “not warranted by existing law.” (See ibid.; see also 02/25/2021 Minute Order.) Further, Defendant has demonstrated that Plaintiff’s claims are totally and completely without merit, given the terms of the Lease Agreement and the Settlement Agreement.

Lastly, this Court has already expressed its concern that Plaintiff was “playing games.” (See 10/21/20 Minute Order; 2/25/2021 Minute Order.) Plaintiff’s previous litigation tactics – including its decision not to oppose two previous demurrers – and its decision not to oppose this motion further confirm the Court’s previousliy-stated concern.

Therefore, the Court finds that sanctions pursuant to Code of Civil Procedure section 128.7 are warranted in this circumstance.

However, the amount of sanctions sought by Defendant are excessive. Defendant’s counsel asserts that the following hours of work performed on this case are as follows:

NAME	TOTAL HOURS	HOURLY RATE	FEES
Michael J. Saltz	65	$695.00	$45,175.00
Elana R. Levine	60	$550.00	$30,000.00
TOTAL			$75,175.00

(Saltz Decl., ¶ 30.) Defendant’s counsel also asserts that he anticipates that his firm will perform the following work on matters since filing the instant motion will include:

NAME	TOTAL HOURS	HOURLY RATE	FEES
Michael J. Saltz	20	$695.00	$13,900.00
Elana R. Levine	20	$550.00	$11,000.00
TOTAL			$24,900.00

(Ibid.)

Defendant’s counsel states that his client has also expended costs in the amount of $3,803.89. (Id. at ¶ 32.) Defendant’s counsel also asserts that for this motion alone, “he expended 15 hours in drafting this brief and declaration” and “anticipate[s] that it will take 10 hours to review the opposing party’s opposition and draft the reply, and another two (2) hours to attend the hearing.” (Id. at ¶ 31.)

The Court will award attorney's fees in the amount of $75,175.00 for work already performed. (See Saltz Decl., ¶ 30.) However, since no reply was filed, the Court finds that the estimated $24,900.00 for possible future work in this matter is excessive. (Ibid.) In its tentative decision issued for the original April 1, 2021 hearing, the Court struck the entire $24,900.00 in future estimated expenses. However, the Court recognizes that defense counsel had to analyze the untimely opposition and had to make an extra appearance when the Court continued this motion from April 1 to April 6, 2021. The Court will therefore award sanctions reasonably necessary for this extra work in the amount of $5,000.00.

The Court also declines to award $3,803.89 in costs, since these costs are not separately listed [see Saltz Decl., ¶ 32], and there is no way for the Court to determine if these costs should be awarded to the moving party.

The Court awards costs pursuant to CCP ;128.7 to Defendant DWG International, LLC and against Plaintiff Hollywood and Ivar, LLC and its attorney of record, Sholom Goodman, jointly and severally, in the amount of $80,175.00.

Case Number: *******9276    Hearing Date: April 1, 2021    Dept: 34

SUBJECT: Motion for Sanctions

Moving Party: Defendant DWG International, LLC

Resp. Party: None

The Court awards costs pursuant to CCP ;128.7 to Defendant DWG International, LLC and against Plaintiff Hollywood and Ivar, LLC and its attorney of record, Sholom Goodman, jointly and severally, in the amount of $75,175.00.

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (FAC, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a leak from the roof. (Id. at ¶¶ 8-10, 15-17.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On October 16, 2020, Plaintiff Hollywood and Ivar, LLC filed a first amended complaint (“FAC”) against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On October 21, 2020, the Court denied as moot Defendant DWG International, LLC’s demurrer to the complaint due to the filing of the FAC.

On February 4, 2021, pursuant to Cross-Complainant’s request, default was entered as to Cross-Defendant Freddy Braidi.

On February 19, 2021, the Court sustained without leave to amend Defendant DWG International, LLC’s demurrer to the FAC.

On February 19, 2021, Defendant DWG International, LLC filed the instant motion for sanctions against Plaintiff Hollywood and Ivar, LLC and its counsel Sholom Goodman in the amount of $103,878.89.

ANALYSIS:

I. Motion for Sanctions

A. Legal Standard

Code of Civil Procedure section 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

(1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) the allegations and other factual contentions have no evidentiary support;

(4) the denials of factual contentions are not warranted on the evidence. (Code Civ. Proc., ; 128.7, subd. (b).)

Code of Civil Procedure section 128.7 permits the Court to impose monetary sanctions on an attorney or an unrepresented party that violates any one of these requirements. (Eichenbaum v. Alon (2003) 106 Cal App 4th 967, 976.) In addition, section 128.7 does not require a finding of subjective bad faith; instead it requires only that the Court find that the conduct be objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)

Under Code of Civil Procedure section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428. at 448.)

Code of Civil Procedure section 128.7, subdivision (c)(1) requires that a motion for sanctions under Code of Civil Procedure section 128.7 be made separately from other motions and that notice of the motion must be served, but not filed with the Court, unless, within 21 days after service of the motion, the challenged paper is not withdrawn. This 21-day time period is known as a “safe harbor” period and its purpose is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties’ time and money litigating the pleading as well as the sanctions request. (Ibid.)

Additionally, Code of Civil Procedure section 128.7 has a 21 day safe harbor provision. “[A] notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Code Civ. Proc., ; 128.7. subd. (c)(1).)

“[T]he safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 595.)

B. Discussion

Defendant DWG International, LLC moves for “monetary sanctions against Plaintiff . . . and its counsel Sholom Goodman, in the amount of $103,878.89 as well as such other sum and/or sanctions as the Court may find just and reasonable.” (Motion, p. 2:4-7.) Defendant brings this motion “pursuant to Code of Civil Procedure [section] 128.7 on the ground that the Complaint is without factual or legal merit and was filed primarily for an improper purpose to harass Defendants and Cross-Complainants.” (Id. at p. 2:8-10.) Defendant argues that Plaintiff “filed an abusive, unwarranted, and meritless complaint against its now-former landlord . . . in an effort to distract from the fact that [Plaintiff] itself breached the terms of its operative lease agreement, and to delay a previously-filed unlawful detainer for said breach.” (Id. at p. 6:3-6.)

Defendant argues that “aside from said claims being facially invalid and lacking all evidentiary support, . . . the Parties entered into a Settlement Agreement directly addressing said claims, and [Plaintiff] unequivocally agreed to dismiss its claims against DWG with prejudice.” (Id. at p. 14:21-23, referencing Saltz Decl., ¶ 14.) Defendant asserts that “rather than dismissing this action, [Plaintiff] and its counsel filed an amended complaint based on impossible allegations that directly contradict its prior sworn statements to the Court. (Id. at p. 14:23-15:2, referencing FAC.) Defendant maintains that “given the facts and circumstances of this case, no reasonable attorney would have continued to prosecute this case after a Settlement Agreement and through the filing of sham pleadings.” (Id. at p. 15:6-7.) Defendant asserts that “no reasonable attorney would have made such claims in the face of facially available evidence directly contradicting them.” (Id. at pp. 12:7-8, 13:7-8.)

Defendant explains that the $103,878.89 in sanctions it is requesting “includes future fees, as additional time will be spent to litigate the upcoming demurrer on the FAC, as well as DWG’s reply and to attend the hearing on this matter.” (Id. at p. 15:8-11, citing Saltz Decl., ¶ 31.) Defendant asserts that “this amount sanctions includes all fees incurred since [Plaintiff] and its counsel repudiated the Settlement Agreement, as well as all future fees that are reasonably foreseeable based on [Plaintiff’s] conduct in this litigation.” (Id. at p. 15:11-13.)

Plaintiff has not filed an opposition to this motion.

First, the Court finds that Defendant has complied with the 21-day safe harbor provision. (Code Civ. Proc., ; 128.7; Saltz Decl.,¶ 2, Ex. 1.)

Second, the Court finds that it may impose sanctions against Plaintiff and its counsel because Defendant has demonstrated that the FAC was filed without merit. (Bucur, supra, 244 Cal.App.4th 175 at p. 190.) As explained in the ruling sustaining the demurrer to the FAC without leave to amend, Plaintiff’s claims for breach of contract and wrongful eviction – breach of the covenant of quiet enjoyment are legally frivolous because they are “not warranted by existing law.” (See ibid.; see also 02/25/2021 Minute Order.) Further, Defendant has demonstrated that Plaintiff’s claims are totally and completely without merit, given the terms of the Lease Agreement and the Settlement Agreement.

Lastly, this Court has already expressed its concern that Plaintiff was “playing games.” (See 10/21/20 Minute Order; 2/25/2021 Minute Order.) Plaintiff’s previous litigation tactics – including its decision not to oppose two previous demurrers – and its decision not to oppose this motion further confirm the Court’s previousliy-stated concern.

Therefore, the Court finds that sanctions pursuant to Code of Civil Procedure section 128.7 are warranted in this circumstance.

However, the amount of sanctions sought by Defendant are excessive. Defendant’s counsel asserts that the following hours of work performed on this case are as follows:

NAME	TOTAL HOURS	HOURLY RATE	FEES
Michael J. Saltz	65	$695.00	$45,175.00
Elana R. Levine	60	$550.00	$30,000.00
TOTAL			$75,175.00

(Saltz Decl., ¶ 30.) Defendant’s counsel also asserts that he anticipates that his firm will perform the following work on matters since filing the instant motion will include:

NAME	TOTAL HOURS	HOURLY RATE	FEES
Michael J. Saltz	20	$695.00	$13,900.00
Elana R. Levine	20	$550.00	$11,000.00
TOTAL			$24,900.00

(Ibid.)

Defendant’s counsel states that his client has also expended costs in the amount of $3,803.89. (Id. at ¶ 32.) Defendant’s counsel also asserts that for this motion alone, “he expended 15 hours in drafting this brief and declaration” and “anticipate[s] that it will take 10 hours to review the opposing party’s opposition and draft the reply, and another two (2) hours to attend the hearing.” (Id. at ¶ 31.)

The Court finds that the amount requested is excessive. The Court will award attorney's fees in the amount of $75,175.00 for work already performed. (See Saltz Decl., ¶ 30.) The Court will not award the estimated $24,900.00 for possible future work in this matter. (Ibid.) The Court also declines to award $3,803.89 in costs, since these costs are not separately listed [see Saltz Decl., ¶ 32], and there is no way for the Court to determine if these costs should be awarded to the moving party.

The Court awards costs pursuant to CCP ;128.7 to Defendant DWG International, LLC and against Plaintiff Hollywood and Ivar, LLC and its attorney of record, Sholom Goodman, jointly and severally, in the amount of $75,175.00.

Case Number: *******9276    Hearing Date: February 25, 2021    Dept: 34

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Case Number: 20STCV29925    Hearing Date: February 25, 2021    Dept: 34

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT JUDGMENT

BACKGROUND:

On August 7, 2020, Plaintiff Venicci Investment Group, Inc. commenced this action against Defendants Lord Housing, LLC, Rashad Aliyev, and Rashad Mirzayev for (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) intentional misrepresentation; (4) intentional interference with prospective economic relationship; (5) declaratory relief; and (6) preliminary and permanent injunction.

On November 13, 2020, default was entered against Defendants Lord Housing, LLC, Rashad Aliyev, and Rashad Mirzayev.

On January 27, 2021, the Court continued the OSC re Entry of Default Judgment until 02/25/2021. The Court stated that “if default judgment is not entered at that time, the Court will dismiss the case.” (01/27/2021 Minute Order, p. 3.)

ANALYSIS:

Plaintiff seeks $12,635.00 in attorney’s fees. (Lalepour Decl., p. 5:20-22.) However, the default attorney fee schedule provides for $5,255.45 based on a damages amount of $336,545.00. Further, Plaintiff does not provide a declaration from its counsel attesting to the fees of $12,635.00 or explaining why greater fees (compared to the default attorney fee schedule) should be awarded.

The Court will GRANT Entry of Default Judgement in the amount of $343,039.42 as indicated below:

Default Judgment
Category	Amount Requested	Amount Granted
Demand of Complaint	$336,545.00	$336,545.00
General Damages	$0.00	$0.00
Special Damages	$0.00	$0.00
Interest	$0.00	$0.00
Costs	$1,238.97	$1,238.97
Attorney's fees	$12,635.00	$5,255.45
	$350,418.97	$343,039.42

Case Number: *******9276    Hearing Date: October 21, 2020    Dept: 34

SUBJECT: Demurrer

Moving Party: Defendant DWG International, LLC

Resp. Party: None

The demurrer is DENIED as MOOT.

PRELIMINARY COMMENTS:

The Court is concerned that Plaintiff is playing games. According to defense counsel’s declaration, on June 12, 2020, counsel met-and-conferred concerning the demurrer; on June 17, 2020 Plaintiff’s counsel stated that he would be filing a First Amended Complaint “asap.” (Levine Declaration, Exh. 2.)

No such First Amended Complaint was filed. Defendant filed its demurrer on Sept. 15, 2020. Plaintiff did not oppose the demurrer. Not until one month later, on October 16, 2020, did Plaintiff’s counsel file a First Amended Complaint, thus mooting the demurrer.

Plaintiff’s FAC was filed long after the time for Plaintiff’s opposition had expired and only 3 court days prior to the hearing. It was also filed after the Court and its staff had spent hours analyzing the demurrer and drafting its tentative decision. The Court finds Plaintiff’s counsel’s actions to be unprofessional.

BACKGROUND:

This action arises out of allegations of breach of a lease agreement entered into between the parties on April 8, 2008, for the lease of business premises. (Complaint, ¶ 4.) Plaintiff alleges that Defendant breached the lease agreement terms and covenants by failing to repair a grease trap leak. (Id. at ¶¶ 9, 10, 14-16.)

On May 20, 2020, Plaintiff Hollywood and Ivar, LLC commenced this action against Defendant DWG International, LLC for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

On May 27, 2020, the Court found that the following cases, *******9276 and 20STUD02358, are not related.

On September 15, 2020, Defendant DWG International, LLC filed a cross-complaint against Hollywood and Ivar, LLC and Freddy Braidi for breach of contract.

On September 15, 2020, Defendant DWG International, LLC filed the instant unopposed demurrer to the complaint.

On October 16, 2020, Plaintiff filed a first amended complaint against Defendant for (1) breach of contract; and (2) wrongful eviction – breach of the covenant of quiet enjoyment.

ANALYSIS:

This is a demurrer brought by Defendant as to the causes of action in the complaint. However, Plaintiff filed a first amended complaint on October 16, 2020.

Therefore, this demurrer is DENIED as MOOT.