JOSEPH CHASE ET AL VS BENJAMIN WIZMANN ET AL

Complaint Information

8200 WILSHIRE BLVD. SUITE 424

FISCHBACH & FISCHBACH, A LAW CORPORATION REVERLY HILLS, CALIFORNIA 5021 ]

JOSEPH S. FISCHBACH (SBN 70830) jsf2@fischbachlaw.com . . KATHARINE B.K. LAU (SBN 303135) kbkl@fischbachlaw.com

Fischbach & Fischbach, ALC

8200 Wilshire Blvd. Suite 424

Beverly Hills, California 90211 Telephone: (310) 278-4015

Facsimile: (310) 278-2894

SYLVIA E. CHASE (SBN 142746) 2359 Mount Olympus Drive,

Los Angeles, California 90046 Tel: (323) 851-7928

Fax: (323) 417-4923

E-mail: sylchase@gmail.com Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRALDISTRICT

JOSEPH CHASE, an individual, and .

SYLVIA CHASE, an individual, Plaintiffs, LV BENJAMIN WIZMANN an individual, MICHELLE WIZMANN,

an individual and Dees 1-20,

Defendants.

TO: EACH PARTY AND EACH ATTORNEY OF RECORD IN THIS ACTION: PLEASE TAKE NOTICE that on January 30, 2018 at 1:30 PM in Department 20 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California, Plaintiffs will

|and hereby do move this Court for an Order permitting the amendment of their Complaint.

T Nt N’aw? am? wtl apt g “wmto'

NOTICE OF MOTION AND MOTION

FOR LEAVE TO AMEND COMPLAINT;

MEMORANDUM OF POINTS AND

AUTHORITIES; SUPPORTING DECLARATION; EXHIBITS

[FILED CONCURRENTLY WITH PROPOSED ORDER]

Res ID: 171207272730 Date: January 30, 2018 Time: 1:30 PM

Dept: 20

Action filed: Trial Date:

January 23, 2017 Mazxch 12, 2018

Tentative Rulings

Case Number: ****7861 Hearing Date: June 23, 2022 Dept: 52

Tentative Ruling:

Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizman, and Mount Management, Inc.’s Motion to Modify or Dissolve Preliminary Injunction

Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizman, and Mount Management, Inc. move to modify or dissolve the preliminary injunction the court issued on July 22, 2020. The court ordered defendants to move all their air conditioning and pool equipment to the area on the south side of their property.

A court may modify or dissolve a preliminary injunction “upon a showing of a material change in the facts” or a change in the law “upon which the injunction… was granted,” “or that the ends of justice would be served by the modification or dissolution of the injunction.” (CCP 533.)

Defendants fail to meet their burden of showing a material change that justifies modifying or dissolving the injunction. The change is that the pool equipment has been disconnected and is not currently running. Defendants also contend that the circumstances are different because, when the air conditioning equipment was moved to the west side of their property, it no longer constituted a nuisance. But that is not a change in the facts because it happened before the court issued the preliminary injunction. (Lubin Decl., 5; RJN, Ex. 3, Rogers Decl. 7/17/2020., 3 [“the two condensing units had been relocated to … the west fa ade of the house”].)

Defendants seek an order dissolving the injunction or modifying it to permit relocating the air conditioning equipment to the west balcony instead of the south side of the property. They contend that the court should do so because the noise from the two air conditioners on the west balcony “is at or barely above the ambient noise level” under the Los Angeles Municipal Code. (Motion, p. 9.) But that does not suffice to show the two air conditioning condensers are not a nuisance. “That equipment noise under a certain decibel range may not be illegal under section 112.02, subdivision (a), does not mean it may not otherwise constitute a nuisance, as the trial court correctly concluded.” (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257.)

Thus, even with the pool equipment disconnected, the noise produced by the two air conditioning condensers on the west balcony can constitute a nuisance to the Chases. Defendants do not show good cause to modify the injunction to permit them to keep the air conditioning equipment on the west balcony instead of requiring them to move it to the south side of their property.

The motion is denied.

Case Number: ****7861 Hearing Date: June 7, 2022 Dept: 1

Tentative Ruling

Judge David J. Cowan

Department 1

Hearing Date: Tuesday, June 7, 2022

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

Case No.: ****7861

Motion: Ex Parte Application to Transfer Contempt Trial

Moving Party: Plaintiffs Joseph Chase and Sylvia Chase

Ruling: The Ex Parte Application is DENIED.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely rather than in person.

BACKGROUND

On February 7, 2018, Joseph Chase and Sylvia Chase filed a First Amended Complaint against Benjamin Wizmann, Michelle Wizmann, Mount Management Inc., Caroline Denise Wizman, and Does 1-20 stating causes of action for trespass, trespass to timber, nuisance, negligence, fraudulent transfer, and removal of support.

On July 23, 2021, the parties filed a joint Notice of Long Cause Submission seeking an order from Department 1 referring the matter to the inventory of trial-ready long cause cases.

On August 13, 2021, Department 1 found the matter is not trial-ready due to the absence of a Joint Exhibit List and defects in the Joint Witness List, list of jury instructions, and trial briefs.

On March 30, 2022, following another Notice of Long Cause Submission, Department 1 found the matter is not trial-ready in light of defects in the submitted jury instructions and unaddressed contentions that Plaintiffs were attempting to forum-shop by inflating witness testimony estimates.

On May 17, 2022, following another Notice of Long Cause Submission, Department 1 concluded the matter is not trial-ready due to a pending bench trial regarding Defendants’ contempt of a preliminary injunction relating to pool equipment and air conditioning units. Department 1 found the parties had “not agree[d] the matter is ready” for trial and returned the matter to Judge Tamzarian for further proceedings.

On May 27, 2022, Plaintiffs filed, in Department 52, an Ex Parte Application to Transfer Pending Contempt Trial to Judge Bryant-Deason.

On May 31, 2022, Judge Tamzarian granted the Ex parte Application "in part" and advanced the contempt trial to July 26, 2022.

On June 6, 2022, Plaintiffs filed, in Department 1, an Ex Parte Application to Transfer Pending Contempt Trial to Judge Bryant-Deason.

DISCUSSION

Plaintiffs request Department 1 transfer the pending contempt trial to Judge Susan Bryant-Deason for further proceedings, arguing Judge Bryant-Deason is “best situated” to conduct the contempt trial. Initially, Plaintiffs’ application does not include “an affirmative factual showing . . . of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte” as required by CRC 3.1202(c). The application does not identify any “irreparable harm” or “immediate danger” which would ensue if the contempt trial is not transferred to Judge Bryant-Deason. More fundamentally, it is unclear why Plaintiffs are seeking this relief in Department 1. While Plaintiffs claim Judge Tamzarian “ruled that only Department 1 has the power” to transfer the case to Judge Bryant-Deason, there is nothing indicating Judge Tamzarian so ruled (e.g., an order or hearing transcript) and no explanation as to why Judge Tamzarian would have reached that conclusion. (Motion, p. 2.)

Even assuming the application is proper in Department 1, the application does not provide authority supporting the transfer of this contempt trial to Judge Bryant-Deason. Instead, Plaintiffs broadly argue the trial court has authority to control its proceedings under CCP sec. 128 and argue reassignment is proper because Judge Bryant-Deason “is best situated to determine whether the Preliminary Injunction was violated” where Judge Bryant-Deason issued the underlying injunction in July 2020 and initially arraigned Defendant Benjamin Wizmann in August 2020. The application also argues the contempt trial should be reassigned “because Department 1 is unable to determine that this case is trial ready,” arguing the reassignment would enable the case “to proceed to trial and prevent further delay and prejudice to plaintiffs.” Finally, the application reiterates that this is a preference case which should proceed to trial quickly.

The foregoing arguments do not support reassignment of the contempt trial to Judge Bryant-Deason. The application does not argue that Judge Tamzarian is unable to timely and efficiently handle the contempt trial. It does not argue that Judge Bryant-Deason would be able to begin the contempt trial earlier than Judge Tamzarian; moreover, as discussed below, reassignment is unlikely to be significantly more efficient than leaving the trial with Judge Tamzarian. As soon as the contempt trial is completed, regardless of which judge conducts the trial, the parties can promptly file a Notice of Long Cause Submission in Department 1 to obtain referral to the long cause inventory. Thus, absent some showing that Judge Tamzarian cannot efficiently conduct the contempt trial, there is no sound basis to transfer the contempt trial to Judge Bryant-Deason.

To the extent Plaintiffs argue the trial should be reassigned because Judge Bryant-Deason is more familiar with the facts and originally arraigned Defendant Benjamin Wizmann in August 2020, this argument is rejected. In reliance on an “amended declaration in support of the [OSC] Re Contempt” filed March 28, 2022, Judge Tamzarian again arraigned Defendants and scheduled the current contempt trial. While Judge Bryant-Deason is familiar with the alleged violations of the injunction through August 2020, Judge Tamzarian is familiar with those violations and the ongoing violations of the preliminary injunction between August 2020 and March 2022. Moreover, Judge Tamzarian has extensively assisted the parties in trial preparation following receipt of the case in February 2021.

The Court is unpersuaded Judge Bryant-Deason would be better-positioned than Judge Tamzarian to conduct an efficient contempt trial. Significantly, Judge Bryant-Deason now has an essential role conducting long cause trials referred by Department 1 and there is no showing the contempt trial would constitute a long cause trial properly referrable to a long cause courtroom. Indeed, when Judge Bryant-Deason initially scheduled the contempt trial, she was sitting in Department 52—an independent calendar courtroom, not a long cause courtroom—and there is no indication that Judge Bryant-Deason contemplated dragging the contempt trial into her future long cause assignment.

Rather, the contempt trial is properly handled by the judge now sitting in Department 52, Judge Tamzarian, who is familiar with the facts and parties, able to conduct the contempt trial as scheduled, and is the proper judge (rather than a long cause judge) to conduct a contempt bench trial not shown to require more than 100 hours of witness testimony. Reassignment of the contempt bench trial to a long cause courtroom would frustrate the purpose of those courtrooms by delaying the trial of true long cause cases which cannot be efficiently conducted in an independent calendar courtroom such as Department 52.

Plaintiffs briefly argue the contempt trial should be reassigned to Judge Bryant-Deason to “enforc[e] the first order she made for contempt after the first arraignment,” apparently arguing a contempt trial should be conducted by the judge that issued the violated order. Plaintiffs offer no authority for this position, instead citing Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222 for the holding that a “second judge should direct the moving party to the judge who ruled on the first motion.” (Application, p. 5; id. at 1232.) This argument is unpersuasive for two reasons.

First, as Plaintiffs admit in the Application, Judge Tamzarian again arraigned Defendants in April 2022 based on an amended declaration submitted in March 2022. It is inaccurate to describe this contempt trial as mere enforcement of Judge Bryant-Deason’s August 2020 arraignment—it will also address ongoing violations of the injunction after the case was transferred to Judge Tamzarian. Second, Ziller is wholly irrelevant here, addressing the general rule that one judge may not reconsider the ruling of another judge. Ziller merely indicated that a judge faced with a motion for reconsideration of another judge’s order should direct the motion to the judge who made the original order. Judge Tamzarian is not being asked to reconsider any ruling by Judge Bryant-Deason—the issue is whether Defendants have violated the injunction entered by Judge Bryant-Deason.

Plaintiffs also briefly argue the Court failed to make an adequate finding that Judge Bryant-Deason is “unavailable” to hear the contempt trial, relying on discussion of motions to suppress evidence in felony matters from People v. Rodriguez (2016) 1 Cal.5th 676. The Rodriguez Court recognized that trial courts have inherent discretion and “authority to determine which judge will hear what” matters, but concluded this authority is limited where statutes expressly require certain matters be heard by specific judges. (Id. at 682-683.) In particular, the Rodriguez Court noted that “relitigated” motions to suppress evidence in felony matters must, by statute, “be heard by the same judge who granted the motion at the first hearing if the judge is available.” (Id.; Penal Code sec. 1538.5(p).) Unlike suppression motions in Rodriguez, there is no statutory requirement that a contempt trial be conducted by the judge that originally arraigned the defendants or the judge that issued the underlying violated order. (See Gates v. Municipal Court (1992) 9 Cal.App.4th 45, 52 (“Absent some emergency, the affronted judge who prefers the charges should not sit in the contempt proceedings” for “[i]ndirect contempt.”))

CONCLUSION

The Ex Parte Application is DENIED.

Moving party to give notice.

Case Number: ****7861 Hearing Date: March 22, 2022 Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

The court issued a preliminary injunction on November 19, 2019, prohibiting the parties from entering the disputed strip of land at the properties’ boundary. And on July 20, 2020, the court issued a preliminary injunction requiring defendants to move their air conditioning and pool equipment to the area at the south side of their property.

This order shall address two applications relating to the court’s preliminary injunctions. The first is plaintiffs’ application for an order to show cause (OSC) re contempt for defendants’ failure to comply with the 2020 preliminary injunction. The second is the application of defendants Benjamin Wizmann, Michelle Wizman, and Mount Management, Inc. (MMI) for an order lifting the court’s 2019 injunction prohibiting the parties from entering the disputed land at the properties’ border or, in the alternative, an order staying enforcement of the 2020 preliminary injunction requiring defendants to move their pool equipment.

I. Application for OSC re Contempt

The elements of contempt are “(1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order.” (In re Ivey (2000) 85 Cal.App.4th 793, 798.) A contempt proceeding is quasi-criminal. For each count of contempt for which a contemnor is convicted, the court may impose monetary penalties and imprisonment. (Code Civ. Proc., 1218.) The contemnor’s guilt must be proved beyond a reasonable doubt. (In re M.R. (2013) 220 Cal.App.4th 49, 57.)

To commence a civil proceeding for indirect contempt, the party seeking a contempt order must present an affidavit stating, “the facts constituting the contempt.” (Code Civ. Proc. 1211, sub. (a).) Based on this affidavit, the court may issue a warrant of attachment, warrant of commitment, or OSC. (Code Civ. Proc., 1212.) An OSC is the functional equivalent of a criminal information.

“ ‘It has long been the rule that the filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.’ ” (In re M.R., supra, 220 Cal.App.4th at p. 57.) If the affidavit is insufficient, the court may order an amendment to cure the defects. (Code Civ. Proc., 1211.5, sub. (b).)

Here, plaintiffs filed declarations by Joseph Fishbach, Sylvia Chase, and Joseph Chase. These affidavits are insufficient because they did not state, even in conclusory form, the elements that plaintiffs must prove. Further, plaintiffs do not state the number of counts of contempt for which they seek an OSC. Defendants have thus not been informed of the amount of potential jail time they face should they be convicted. Plaintiff also fail to state the date(s) which the defendants allegedly committed acts constituting contempt of court. The omission of this critical information violates defendants’ due process rights.

The court declines to issue an OSC at this time. Plaintiffs may file and serve amended affidavits on or before March 29, 2022. The hearing on plaintiffs’ application for an OSC shall be continued to April 21, 2022, at 9:00 a.m.

II. Application to Lift or Stay Preliminary Injunction

A. By Its Own Terms, the Preliminary Injunction Expired

On November 19, 2019, the court issued a preliminary injunction prohibiting the parties and their agents from:

a. Entering, directly or indirectly, by personal, physical or by objects/items, the Disputed Land between the iron fence Defendants constructed on July 25, 2019 (“July 25, 2019 Fence”) . . . and Defendants’ retaining wall until ownership of the Disputed Land is finally adjudicated in this case;

b. Altering, modifying, improving or changing the July 25, 2019 Fence until ownership of the Disputed Land is finally adjudicated; and

c. Altering, modifying, improving or changing the Disputed Land until ownership of the Disputed Land is finally adjudicated.

In late 2021, the court held a bench trial on MMI’s first cause of action for quiet title in its second amended cross-complaint and on the Chases’ first cause of action for quiet title in their cross-complaint. On January 5, 2022, the court ruled that MMI owns the property and the borders are those described in the recorded deeds.

By its own terms, the 2019 injunction expired. It enjoins the parties from various acts “until ownership of the Disputed Land is finally adjudicated.” In the bench trial, the court adjudicated ownership of the disputed land for all practical purposes.

Plaintiffs contend that the court’s statement of decision issued on January 5, 2022, does not constitute a final adjudication of ownership of the disputed land because it is not a conclusive and binding judgment and is subject to modification. Though it is not a final judgment deciding the entire case, the court’s statement of decision adjudicated the competing causes of action for quiet title and determined who owns the property at the boundary. There will be no further proceedings in this case about the ownership of the disputed land. A jury cannot disturb the court’s ruling on the equitable causes of action for quiet title.

B. Defendants Show Good Cause to Lift the Preliminary Injunction

Assuming the ownership of the disputed property has not been “finally adjudicated” within the meaning of the November 19, 2019, order, defendants show good cause to lift the court’s 2019 preliminary injunction prohibiting the parties from entering or altering the disputed land. Courts may “modify or dissolve an injunction . . . upon a showing that there has been a material change in the facts upon which the injunction . . . was granted, . . . or that the ends of justice would be served by the modification or dissolution of the injunction.” (Code Civ. Proc., 533.)

Here, defendants have shown a material change in the facts upon which the injunction was granted. The injunction relied on the premise that the parties disputed the location of the boundary between their properties. The court has since resolved that dispute. The boundary is located as described in the recorded instruments regarding MMI’s property. Under these circumstances, dissolving the injunction would serve the ends of justice.

Plaintiffs also argue that only Judge Lyons, who issued the 2019 injunction, can lift or modify it. “Generally, one trial court judge may not reconsider and overrule an interim ruling of another trial judge.” (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248 (Oliverez).)

The court rejects this argument for two reasons. First, the court is not reconsidering or overruling the interim ruling by another judge. As discussed above, the 2019 injunction expired by its own terms because the court has adjudicated ownership of the disputed land. In addition, the court is not reconsidering or overruling the court’s order determining whether the injunction should have been issued in the first place. Code of Civil Procedure section 533 explicitly provides for modifying or dissolving an injunction based on a material change in the facts or to serve the ends of justice. Doing so constitutes a new order, not reconsideration of the initial order.

Second, assuming for the sake of argument, the court is reconsidering or overruling an interim ruling by a different judge, it does so based on a material change in the facts. One judge may reconsider or overrule another judge’s interim ruling “when the facts have changed or when the [second] judge has considered further evidence and law.” (Oliverez, supra, 238 Cal.App.4th at p. 1248.) The facts have materially changed. This ruling is based on the court’s decision on January 5, 2022, which was entered long after Judge Lyons issued the preliminary injunction on November 19, 2019.

The motion is granted. The court finds that the injunction issued on November 19, 2019, has expired, or, in the alternative, hereby dissolves that injunction.

Although no order of this court prohibits defendants from installing pipes on their own property for their pool equipment in the fenced area at the boundary, the court notes that it may issue future orders affecting that area and any pipes installed there. The Chases’ cross-complaint seeks a declaration that they are entitled to “reconstruction of the downhill slope, as well as re-engineering and/or reconstruction of the original boundary fence and support structure.” (Chase Cross-Comp., prayer, 6.) The court has not adjudicated that part of the case. It has only adjudicated the boundary dispute. Any construction by defendants would be done at their own risk.

Case Number: ****7861    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.: ****7861

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.: ****7861

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. 

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ORDER RE CONDUCT DURING PROCEEDINGS

JOSEPH CHASE ET AL v. BENJAMIN WIZMANN ET AL

Case no.: ****7861

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