On 08/11/2017 STRATEGIC FUNDING SOURCE INC filed a Contract - Other Contract lawsuit against SUPERAMA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHELLE WILLIAMS COURT. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MICHELLE WILLIAMS COURT
STRATEGIC FUNDING SOURCE INC
STRATEGIC FUNDING SOURCE INC.
LA BARATA SUPERMARKETS
DOES 1 TO 50
SUPERAMA INC. DBA LA BARATA SUPERMARKETS
SMITH JENNIFER A. ESQ.
SMITH JENNIFER ARIN
TRENK JOSEPH ESQ.
12/14/2017: Minute Order
12/14/2017: CASE MANAGEMENT ORDER
11/13/2017: AMENDED ANSWER OF ARIANPOUR PARVANEH, KOHANBASH OMID TO PLAINTIFF'S VERIFIED COMPLAINT
11/13/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
10/13/2017: REQUEST FOR ENTRY OF DEFAULT
10/25/2017: Minute Order
10/30/2017: ANSWER OF ARIANPOUR PARVANEH, KOHANBASH OMID TO PLAINTIFF'S UNVERIFIED COMPLAINT
10/30/2017: ANSWER OF SUPERAMA, INC. TO PLAINTIFF'S UNVERIFIED COMPLAINT
10/20/2017: PLAINTIFF'S REPLY TO ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE; DECLARATION OF MICHAEL MUSE-FISHER
10/23/2017: PROOF OF SERVICE SUMMONS
10/10/2017: NOT FOUND OR NON SERVICE RETURN
10/10/2017: NOT FOUND OR NON SERVICE RETURN
9/18/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
9/18/2017: ORDER TO SHOW CAUSE HEARING
8/31/2017: PROOF OF SERVICE SUMMONS
Abstract of Judgment - Civil and Small Claims; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
Notice (Notice of Entry of Judgment); Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 74; Order to Show Cause Re: (Entry of Default Judgment) - HeldRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Entry of Default Judgment)); Filed by ClerkRead MoreRead Less
Judgment (Judgment); Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
Motion to Set Aside/Vacate Judgment; Filed by Superama, Inc. (Defendant)Read MoreRead Less
Declaration re: Waived Court Fees and Costs; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
Statement of the Case; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
Request for Entry of Default / Judgment; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 74; Order to Show Cause Re: (entry of default judgment) - Not Held - Vacated by CourtRead MoreRead Less
Miscellaneous-Other; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
VERIFIED COMPLAINT 1. BREACH OF CONTRACT (LOAN AND SECURITY - AGREEMENT); ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Strategic Funding Source, Inc. (Plaintiff)Read MoreRead Less
Case Number: BC672111 Hearing Date: January 06, 2020 Dept: 74
BC672111 STRATEGIC FUNDING SOURCE INC VS SUPERAMA INC ET AL
Plaintiff Strategic Funding Source’s Plaintiff’s motion for monetary sanctions against Defendants and their counsel
TENTATIVE RULING: The motion is GRANTED IN PART. Sanctions in the amount of $5,850 are imposed against defense counsel only. The sanctions shall be paid within 30 days.
Plaintiff’s counsel declares that his office served Defendants through their counsel on June 25, 2019. (Muse-Fisher Decl. ¶ 22.) Defendants did not withdraw their motion to vacate. Plaintiff filed this motion on July 19, 2019.
Plaintiff satisfied the safe harbor notice provisions.
Plaintiff argues Defendants’ counsel lied when claiming his physical illness kept him from complying with Defendants’ discovery obligations in this case.
It is necessary to examine Defendants’ counsel’s specific statement to determine whether Defendants’ counsel made false factual contentions. Specifically, Defendants’ counsel declared:
3. In April, 2018, I suffered a complete renal failure. It was through quick action of the emergency personnel of the hospital what [sic] I was able to survive such failure. As a result, I spent the next couple of months trying to recover from such failure. Unfortunately, my health continued to deteriorate. I suffered a major infection which required hospitalization and a subsequent course of in house IV antibiotic treatment for a period of six weeks. In order to stem the advance of the infection, a surgical procedure removing a portion of my bone in my right foot was undertaking. Thereafter, a similar condition appeared on my left foot. Such required an amputation of my toe.
4. My physical condition during the year 2018 and early 2019 was such that my ability to attend to matters in my office of [sic] significantly impaired. In that I am a solo practitioner, there was no one to pick up the slack. One of the primary problems that arose of my illness was the fact that I was not able to follow up with my clients regarding their obligation to respond to discovery and the other matters. This has led to a number of problems which I am dealing with now in order to correct any issues that arose as a result of my illness.
(Muse-Fisher Decl. Ex. 5 at ¶¶ 3-4, emphasis added.)
The court does not question whether Defendants’ counsel was actually ill from April 2018 to early 2019. Rather, the court focuses on whether Defendants’ counsel’s health deteriorated to such an extent that “significantly impaired” his ability to litigate his cases in such a way that he “was not able to follow up with [his] clients regarding their obligation to respond to discovery and the other matters.”
The facts before the court indicate that Defendants’ counsel was litigating other cases at the relevant time period. Notably, Defendants’ counsel was healthy enough for trial in a separate action while he was aware enough of his discovery obligations in this case to seek an extension of time. Additionally, Defendants’ counsel made other appearances and filed other documents for separate matters. Based on this record, Defendants’ counsel was healthy enough to respond to discovery in this action. Defendants’ counsel does not oppose to otherwise show why the Court should not be compelled to accepted that reasonable conclusion.
Defendants’ counsel’s declaration does have some factual foundation, i.e., that his health was impaired in a way that affected his ability to litigate his cases. (Notably, some of the examples Plaintiff cites involve Defendants’ counsel seeking extensions.) Further, the court disagrees with Plaintiff’s contention that Defendants’ counsel claimed that his health prevented him from doing any or all work. His declaration does not claim that. Nevertheless, the Court finds that this declaration was submitted in bad faith to misrepresent the effect of Defendants’ counsel’s health, i.e., that it was so poor that it affected his ability to comply with his discovery obligations in this action that led to the terminating sanctions.
Therefore, the Court finds that Defendants’ motion violates Code of Civil Procedure section 128.7 because it contains false assertions of fact.
The Court finds it necessary to impose monetary sanctions to deter repetition of such conduct by Defendants’ counsel.
Although Plaintiff seeks monetary sanctions against Defendants and their counsel, the court finds that that monetary sanctions should be imposed only against Defendants’ counsel and not Defendants themselves. In this situation, Defendants’ counsel was the one who filed the declaration that merits sanctions. While the court recognizes that this declaration was filed in conjunction with the motion to advance Defendants’ interests, the court finds that Defendants’ counsel shares more responsibility for the misrepresentations concerning his health in the declaration. (See Derechin v. State University of New York (2d Cir. 1992) 963 F.2d 513, 518-519 [interpreting FRCP 11].) Therefore, the court orders monetary sanctions against Defendants’ counsel only and orders Defendants’ counsel not to seek reimbursement from his clients.
Regarding the specific amount of sanctions to be imposed, the Plaintiff’s sought amount of $11,610 is unreasonable. Plaintiff argues its counsel spent 7.0 hours opposing Defendants’ underlying motion to vacate, spent 14.5 hours preparing this motion (8.5 hours for Michael Muse-Fisher and 6 hours for Gordon Stuart), and anticipates spending 5.5 hours to review the opposition, prepare a reply, and appear for the hearing. (Muse-Fisher Decl. ¶¶ 24-25.) These amounts are unreasonably high or not applicable (e.g., no opposition was filed to review and no reply was prepared). Therefore, the court finds a total of 4 hours to oppose Defendants’ motion to vacate, 7 hours to prepare the underlying motion, and 2 hours for appearance time to be reasonable. Plaintiff’s counsels’ hourly rates of $450 is reasonable considering their experience. (Id. ¶ 23.) The Court does not award a filing fee because Plaintiff did not request one.
Accordingly, Plaintiff’s motion is granted in part. Defense counsel is ordered to pay sanction in the amount of $5,850 within 30 days.
Defendant is ordered to give notice and file a proof of service.