JOSEPH CHASE ET AL VS BENJAMIN WIZMANN ET AL

Tentative Rulings

Case Number: BC647861    Hearing Date: October 29, 2019    Dept: 20

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20

Hearing Date: Tuesday, October 29, 2019

Posted on lacourt.org: October 28, 2019

Case Name: Chase, et al. v. Wizmann, et al.

Case No.: BC647861

Motion: Sanctions

Moving Party: Plaintiffs Joseph Chase and Sylvia Chase

Responding Party: Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizmann, and Mount Management, Inc.

Ruling: Plaintiffs Joseph Chase and Sylvia Chase’s motion for sanctions is DENIED.

Moving Party to give notice.

Cross-complaints/Complaints filed without leave of Court:

It appears that the following pleadings were filed without leave of Court (CCP §472):

1. October 17, 2019, Defendants filed a Second Amended Cross-Complaint;

2. On September 3, 2019, Plaintiffs filed a Cross-Complaint; and

3. On June 29, 2018, Defendants filed a First Amended Cross-Complaint.

All cross-complaints and complaints filed without leave of court will be stricken at the hearing on this motion.

   

ANALYSIS

I. Sanctions under CCP § 177.5

Plaintiffs argue Defendants’ counsel violated the Court’s August 13, 2018 Minute Order by personally serving two cross-complaints on Joseph Chase, who is a represented party.  To the extent this motion is addressing alleged misconduct involving discovery motions or proof of service on motions to compel or misrepresentations to the discovery referee during hearings or otherwise, the discovery referee should addressed said issues.

“A judicial officer shall have the power to impose reasonable money sanctions, not

to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law,

payable to the court, for any violation of a lawful court order by a person, done without

good cause or substantial justification. This power shall not apply to advocacy of counsel

before the court. For the purposes of this section, the term ‘person’ includes a witness, a

party, a party's attorney or both.” CCP § 177.5. The imposition of monetary sanctions under California Code of Civil Procedure Section 177.5 “is within the discretion of the trial court. That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.” Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726–727.

Here, the Court will not impose sanctions under CCP § 177.5 because Defendants’ counsel did not violate a court order. Per the Court’s August 13, 2018 Minute Order, Cross-Complainants/Defendants were ordered to “carefully review all the pleadings and correct errors and file corrected pleadings after the stay is lifted.” The August 13, 2018 Court Order does not mention service on a represented party. Therefore, although the personal service of represented parties may be inappropriate, it is not in violation of the Court’s Order of August 13, 2018 and therefore sanctions under CCP §177.5 cannot be imposed. Moreover, Defendants’ counsel alleges she is in the process of complying with the August 13, 2018 Order.

Accordingly, Plaintiffs’ motion for sanctions under CCP § 177.5 is DENIED.

II. Sanctions under CCP § 128.5

Plaintiffs argue Defendants’ counsel serving a represented party, Joseph Chase, at home with two cross-complaints was an action or tactic made in bad faith and solely intended to cause unnecessary delay, which warrants sanctions.

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

(b) For purposes of this section:

(1) ‘Actions or tactics’ include, but are not limited to, the making or opposing of

motions or the filing and service of a complaint, cross-complaint, answer, or other

responsive pleading.” CCP § 128.5(a)-(b)(1).

“(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures:

(1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party's attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

…

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, 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.” CCP § 128.5(f)(1)(B).

Here, the Court will not impose sanctions under CCP § 128.5 because Plaintiffs did not give the notice of motion to Defendants with 21 days to withdraw or correct the service of the two cross-complaints as required by CCP § 128.5.

Service of these cross-complaints can be appropriately corrected because the cross-complaints can be withdrawn and re-served in compliance with the Code of Civil Procedure. Any argument that 21day period in subdivision (f)(1)(B) does not apply because the harassing nature of the service cannot be undone finds no basis in the statute. CCP § 128.5 authorizes sanctions for actions or tactics and refers only to the actions or tactics being withdrawn or corrected. No mention is made of correcting or withdrawing the manner in which an action or tactic was undertaken. Plaintiffs have not complied with CCP § 128.5. The Court does not issue a ruling on the merits of this motion. This ruling is based on a procedural deficiency per CCP § 128.5.

Accordingly, Plaintiffs’ motion for sanction under CCP § 128.5 is DENIED.

MANDATORY ELECTRONIC SERVICE

Although not relevant to the issue of sanctions in this motion, the Court notes that Defendants’ argument that they have not expressly consented to electronic service of documents is without merit.  In order to avoid future confusion on the requirements of electronic service the Court provides this information to the parties.

Given the mandatory electronic filing of documents in the Los Angeles Superior Court, the parties are required to also serve documents electronically, without the express consent to electronic service.

The parties are referred to wwwl.lacourt.org. See Civil eFiling FAQ 7/18/19, question no. 55 which reads as follows:

IF I FILE ELECTRONICALLY, HAVE I CONSENTED TO ELECTRONIC SERVICE ON THIS CASE?

Yes. Because efiling is mandatory, by efiling the document, you agree to accept electronic service at the electronic service address you provided. Refer to California Rules of Court, rule 2.251(C)(3). Self-represented parties and parties exempt from efiling must affirmatively consent to acceptance of electronic service. Refer to California Rules of Court, rule 2.251(b)(1)(B)., re

Except when personal service is otherwise required by statute or rule, a party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically from all other parties or persons…”  CRC 2.251(c)(3) (emphasis added).  On January 2, 2019, the Los Angeles County Superior Court mandated electronic filing of all documents filed in Non-Complex Unlimited Civil cases by litigants represented by attorneys.  First Amended General Order In Re Los Angeles Superior Court Mandatory Electronic Filing For Civil dated May 3, 2019, at 1:13-15.  Pursuant to this General Order, all represented parties in this case, therefore must file documents electronically and under California Rule of Court 2.251(c)(3), parties also accept electronic service of documents.

ORDER TO MEET AND CONFER:

Courts have inherent power to control the proceedings and ensure the orderly administration of justice. Walker v. Superior Court (1991) 53 Cal.3d 257, 267.

Here, the parties here have engaged in harassing, unprofessional and uncivil conduct and vexatious tactics which unreasonably have caused unnecessarily delay, costs to opposing counsel or party and undermines the orderly administration of justice.

To no avail, the Court has previously ordered the parties several times, to comport themselves in a professional, cooperative and civil manner. Given the numerous motions dealing with the parties’ uncivil and unprofessional conduct, filed in the past and the scheduled in the future, the Court finds it is necessary to control the proceedings to insure an orderly administration of justice.

Accordingly, the Court orders the parties to meet and confer, either in person or by telephone, prior to filing all motions, including reserved motions and prior the hearing on all motions already filed and scheduled for hearing.

The parties shall attempt to resolve the issues in the motion in good faith and if the issue is resolved, the motion shall be cancelled by the moving party promptly and notice shall be filed of the cancellation.

The parties shall file a joint declaration confirming compliance with this order no later than nine (9) Court days prior to the hearing of any motion currently reserved or filed as of the date of this order.

As to the motion set for hearing tomorrow, October 30, 2019, the parties are ordered to meet and confer by today, October 29, 2019 by 4:00 p.m. and file the declaration electronically by 10 p.m. October 29, 2019.

Warning:

Failure to file the timely joint declaration will result in the Court taking the motion off calendar without further notice and/or imposition of sanctions.

_________________________________________________________________________________________________________________________________________________________________ 

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20

Hearing Date:  Tuesday, October 29, 2019

Posted lacour.org:  October 28, 2019

Case Name: Chase, et al. v. Wizmann, et al.

Case No.: BC647861

Motion: Sanctions

Moving Party: Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizmann, and Mount Management, Inc.

Responding Party: Plaintiffs Joseph Chase and Sylvia Chase

Ruling: Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizmann, and Mount Management, Inc.’s motion for sanctions is DENIED.

Moving Party to give notice.

ANALYSIS

 

I. Procedural Defects

A. No Reply

Defendants have failed to file a reply for the present motion.

B. Inappropriate Second Opposition

On October 23, 2019, Plaintiffs filed a second “opposition in supplement” which is not authorized by the Code of Civil Procedure nor the Rules of Court and will not be considered.

II. Sanctions under CRC 2.30

Defendants argue Plaintiffs’ counsel should be sanctioned for failure to follow the California Rule of Court requiring an appearance for ex-parte motions, arising from Plaintiffs’ counsel noticing an ex parte motion for June 11, 2019 and then failing to appear.  Defendants’ counsel argues this is sanctionable conduct because Defendants’ counsel had filed a “notice of unavailability” stating Defendants’ counsel would not be available June 11, 2019 for religious reasons.

California Rule of Court 2.30 allows “(b) In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.

Here, Plaintiffs’ counsel’s conduct, is not sanctionable under CRC 2.30.  Defendants’ counsel argues Plaintiffs’ counsel violated Rule 3.1207, which commands “[a]n applicant for an ex parte order must appear, either in person or by telephone…” except under enumerated circumstances.  CRC 3.1207.  Plaintiffs’ counsel argues that he did in fact appear but learned that his ex parte application had been rejected by the eFiling system as one minute late.  Because Plaintiffs’ counsel appeared, there is no violation of the Rules of Court and sanctions cannot be granted.

Defendants’ counsel spills much ink about the injustice of Plaintiffs’ counsel scheduling a hearing the day after a day that Defendants’ counsel had identified as a day Defendants’ counsel was unavailable in a duly filed and served “notice of unavailability.”  Defendants’ counsel’s office was closed on June 10, 2019 until after sundown and the ex parte hearing was calendared for June 11, 2019.  However, Defendants’ counsel fails to cite the rule of court and the section of the code of civil procedure that authorize filing of “notices of unavailability.”  That is not surprising because none exists. 

“[A] notice of unavailability is not a fileable document under the rules of court and will be returned to counsel.”  Carl v. Superior Court (2007) 157 Cal.App.4th 73, 77.  Such a notice “purports to advise the other parties to the action–as well as the court–that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the availability of counsel.  To the extent that this practice attempts to put control of the court’s calendar in the hands of counsel–as opposed to the judiciary–it is an impermissible infringement of the court’s inherent powers.”  Id. at p. 75.  The Carl court circumscribed the holding of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299.  Carl, supra, 157 Cal.App.4th at p. 77.  Directly repudiating the idea that attorneys can abdicate professional responsibilities during the litigation process, the court concluded that “Tenderloin, of course, merely holds that a trial court may impose sanctions against an attorney who conducts litigation in bad faith and solely for the purpose of harassment. There, among other things, the sanctioned attorney purposefully set discovery for times when he knew opposing counsel was on vacation and unavailable in order to gain an unfair tactical advantage in the litigation. Nothing in Tenderloin, however, expressly condones the practice that has grown around its name. It has simply been made up.”  Ibid. 

Because setting a motion for hearing on a day that opposing counsel has mentioned in a “notice of unavailability” is clearly not civil, it is not per se a violation of the Rules of Court, the Court will not award sanctions for such conduct under CRC 2.30.

Accordingly, Defendants’ motion for sanctions under CRC 2.30 is DENIED.

III. Sanctions under CCP § 128.5

Defendants argue Plaintiffs’ counsel filing an ex parte application for the day after a date that Defendants’ counsel had declared her unavailability was an action or tactic made in bad faith and solely intended to cause unnecessary delay, which warrants sanctions. 

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

Here, the Court will not impose sanctions under CCP § 128.5 because Defendants did not give the notice of motion to Plaintiffs with 21 days to withdraw or correct the alleged failure to appear at the ex parte as required by CCP § 128.5. 

Furthermore, even if Defendants had complied with CCP § 128.5, they have failed to show how Plaintiffs’ counsel filing an ex parte application for the day after a date Defendants’ counsel was unavailable compels imposition of sanctions.  Defendants argue that the filing of the ex parte motion was an action in bad faith solely intended to cause unnecessary delay because Plaintiffs’ counsel never attended the ex parte hearing.  In fact, Plaintiffs’ counsel submits a sworn declaration that counsel arrived at the courthouse on the morning of the hearing only to learn that no hearing was set because the ex parte application was rejected by the eFiling system.  This fact undercuts Defendants’ argument that Plaintiffs acted in bad faith, because if Plaintiffs had solely intended to waste Defendants’ time, Plaintiffs would not have gone to the courthouse themselves. 

Additionally, Plaintiffs refiled the ill-fated ex parte application, showing Plaintiffs sought substantive relief from the motion and did not file it solely to cause unnecessary delay.  Lastly, the injury to Defendants’ was that their counsel had to hire another attorney to appear at the June 11, 2019 ex parte hearing and had to work between 9pm and midnight on June 10, 2019.  This is not an outcome warranting sanctions.  Hiring coverage attorneys to appear at hearings is common practice, as is working late hours on tight deadlines.  Defendants’ counsel was not working during her period of religious observance and Plaintiffs’ counsel did not schedule a motion for the day that Defendants’ counsel said she would be unavailable.  The fact that Defendants’ counsel’s professional obligations to her client did not pause during her religious observance and had to be resumed once the religious holiday ended is not neither novel nor grounds for sanctions.

Accordingly, Defendants’ motion for sanction under CCP § 128.5 is DENIED.

ORDER TO MEET AND CONFER:

Courts have inherent power to control the proceedings and ensure the orderly administration of justice. Walker v. Superior Court (1991) 53 Cal.3d 257, 267.

Here, the parties here have engaged in harassing, unprofessional and uncivil conduct and vexatious tactics which unreasonably have caused unnecessarily delay, costs to opposing counsel or party and undermines the orderly administration of justice.  This case over 1000 days old and discovery has not been stayed.  It has, however, been delayed unnecessarily by the parties’ unprofessional conduct.

To no avail, the Court has previously ordered the parties several times, to comport themselves in a professional, cooperative and civil manner. Given the numerous motions dealing with the parties’ uncivil and unprofessional conduct, filed in the past and the scheduled in the future, the Court finds it is necessary to control the proceedings to insure an orderly administration of justice.

Accordingly, the Court orders the parties to meet and confer, either in person or by telephone, prior to filing all motions, including reserved motions and prior the hearing on all motions already filed and scheduled for hearing.

The parties shall attempt to resolve the issues in the motion in good faith and if the issue is resolved, the motion shall be cancelled by the moving party promptly and notice shall be filed of the cancellation.

The parties shall file a joint declaration confirming compliance with this order no later than nine (9) Court days prior to the hearing of any motion currently reserved or filed as of the date of this order.

As to the motion set for hearing tomorrow, October 30, 2019, the parties are ordered to meet and confer by, October 29, 2019 by 4:00 p.m. and file the joint declaration electronically by 10 p.m. October 29, 2019.

Warning:

Failure to file the timely joint declaration will result in the Court taking the motion off calendar without further notice and/or imposition of sanctions. 

____________________________________________________________________

____________________________________________________________________

ORDER RE CONDUCT DURING PROCEEDINGS

JOSEPH CHASE ET AL v. BENJAMIN WIZMANN ET AL

Case no.: BC647861

The California Code of Judicial Conduct provides that a judge “shall require order and decorum in proceedings.” To ensure compliance with this mandate, the Court is ordering as follows:

1. Counsel/parties shall comply with all applicable laws, rules, Court’s Guidelines for Final Status Conferences and Trials, and Los Angeles Superior Court Guidelines for Civility in Litigation (Local Rules, Appendix 3.A).

2. Counsel/parties shall maintain respect for the Court and shall observe the dignity of the Courtroom.

1. Do not interrupt the Court or opposing Counsel/party.

2. Respectfully yield to the Court’s ruling. Once the Court has heard argument and ruled on any matter, there shall be no further argument or comment.

3. Respond to legal arguments briefly and succinctly. Refrain from long-winded or redundant argument. If the Court informs Counsel/parties that it has heard sufficient argument, Counsel/parties shall stop argument.

1. Counsel/parties shall conduct themselves in an orderly, Courteous, respectful and professional manner at all times.

1. Refrain from expressing personal feelings of anger, outrage, and indignity.

2. Properly modulate voice. Do not raise voice or yell.

3. No bickering between Counsel/parties.

4. Disrespectful non-verbal behavior is not permitted, such as eye-rolling, smirking, muttering, and related misconduct.

5. No sarcastic or disparaging remarks of any sort. Ever.

1. Counsel/parties shall abstain from all offensive, derogatory personal references to or attacks on opposing Counsel/parties, litigants, witnesses, jurors, and the Court.

Violation of these orders will subject you to sanctions and/or contempt of Court.

C.C.P. §1209 defines contempt as “disorderly, contemptuous, or insolent behavior toward the judge while holding the Court, tending to interrupt the due course of a trial or other proceeding.” Contempt also includes the disobedience of any lawful order of the Court. C.C.P. §177.5