Judge: Anne Richardson, Case: 21STCV30922, Date: 2024-05-01 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV30922    Hearing Date: May 1, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

1. Complaint

Plaintiff Lenny K. Dykstra (Plaintiff) sues Defendants Robert R. Shiri, The Law Offices of Robert R. Shiri, APC (Shiri Law) (with Robert Shiri, the Shiri Defendants), and Does 1-100 pursuant to an August 20, 2021, Complaint alleging a single cause of action for declaratory relief regarding legal fees and other issues that arose between the parties in relation to LASC No. BC650381, a legal malpractice action by Plaintiff Dykstra against Boucher, LLP in which Robert Shiri and Shiri Law acted as counsel for Plaintiff Dykstra (the underlying action).

The summons and Complaint were personally served on Shiri Law on August 25, 2021, and were served by substituted service on Robert Shiri on August 30, 2021.

This action was designated LASC No. 21STCV30922.

2. Cross-Complaint

Shiri Law, in turn, sues Plaintiff Dykstra pursuant to an August 26, 2021, Complaint filed in a separate action as LASC No. 21SMCV01425. The Cross-Complaint alleges claims of breach of contract, account stated, open book account, and reasonable value claims based on legal fees owed from the underlying action.

B. Relevant Procedural History

On August 26, 2021, Shiri Law filed a notice of related case.

On September 10, 2021, the Court related LASC No. 21STCV30922 (the Lead Case) and LASC No. 21SMCV01425 (the Santa Monica Case).

On September 9, 2021, Shiri Law served Plaintiff Dykstra with Form Interrogatories – General, Set No. 1 (FROGs, Set One), and Request for Admission, Set No. One (RFA, Set One).

On October 15, 2021, Plaintiff secured an entry of default in the Lead Case as against Robert Shiri.

On October 20, 2021, Plaintiff secured an entry of default in the Lead Case as against Shiri Law.

On October 21, 2021, the Shiri Defendants filed a demurrer to the Complaint in the Lead Case.

On November 16, 2021, Shiri Law filed two motions in the Santa Monica Case: (1) a motion to compel initial responses to FROGs, Set One; and (2) a motion to deem the truth of matters in RFA, Set One admitted. Both motions requested an award of monetary sanctions in the amount of $2,560.

On December 14, 2021, the Shiri Defendants filed nearly identical motions to set aside the entries of default entered against them in the Lead Case.

On January 14, 2022, the Court consolidated the Lead Case and the Santa Monica Case.

On April 14, 2022, the Court ruled that the Shiri Defendants’ demurrer was a legal nullity based on their defaulted status in the Lead Case at the time of filing.

On June 1, 2022, Shiri Law’s motions related to FROGs, Set One, and RFAs, Set One, came before the Court, at which time the Court continued the hearing on these motions to July 25, 2022—the same date for the hearing for the Shiri Defendants’ motions to set aside.

On July 25, 2022, the Court granted the Shiri Defendants’ motions to set aside their defaults in the Lead Case. The Court also granted, in part, Shiri Law’s motions related to FROGs, Set One, and RFAs, Set One, while specifically denying sanctions. The minutes for July 25, 2022, do not clarify the meaning of the partial grant of Shiri Law’s motions, nor does the record reflect a signed order clarifying the meaning of the July 25, 2022, minutes.

C. Motions Before the Court

On March 29, 2024, Shiri Law filed motions to compel initial responses to FROGs, Set One, and to deem the truth of matters in RFAs, Set One, admitted. Both motions seek $2,560 in monetary sanctions against Plaintiff and/or counsel and attach a proof of service showing service of the motion was effected by mail on Plaintiff’s counsel and on Plaintiff “in pro per.”

No opposition, reply, or notice of non-opposition appear in the record.

Shiri Law’s March 20, 2024, motions are now before the Court.

II. Court’s Determination, March 29, 2024, Motions: DENIED, without prejudice.

The Court DENIES Shiri Law’s motions, without prejudice.

A review of the March 29, 2024, motions shows that that they are identical to the motions previously filed by Shiri Law on November 16, 2021, other than as to filing dates.

The Court ruled on Shiri Law’s November 16, 2021, motions on July 25, 2022.

For these reasons, by filing the March 29, 2024, motions, Shiri Law is in effect asking for the same relief she has already been granted, or different relief based on the same facts; a motion governed by the statute regarding motions for reconsideration. (See Code Civ. Proc., § 1008.)

A trial court may construe a motion bearing one label as a different type of motion. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 930.) “‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words. … The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court’s inherent authority to manage and control its docket.’ [Citation.]” (Ibid.)

Here, Shiri Law’s March 29, 2024, motions ask for the same relief as those motions brought and granted by this Court in its July 25, 2022, ruling. To construe the March 29th motions as motions brought in the first instance would require this Court to ignore the fact that any order this Court could make disposing of the March 29, 2024, motions would necessarily conflict with the Court’s July 25, 2022, order on the same subject matter.

Motions pursuant to section 1008 must be brought within 10 days of the ruling that is being challenged. (Code Civ. Proc., § 1008, subd. (a).) Here, the challenged ruling is the Court’s July 25, 2022, ruling. Given that Shiri Law’s motions were filed on March 29, 2024—well beyond 10 days after July 25, 2022—the Court determines that Shiri Law’s motions are untimely.

Shiri Law’s March 29, 2024, motions are thus DENIED.

The Court notes, however, that this denial is without prejudice.

Because Shiri Law’s March 29, 2024, motions are identical to those filed on November 16, 2021, they provide the Court with no explanation of why Shiri Law is again seeking the same relief from this Court. It may be that Shiri Law is asking for a clarification of the Court’s July 25, 2022, order, which does not clarify what the grant “in part” of the order entails. If this is the intent of the March 29, 2024, motions, that is not clear from their content. 

III. Conclusion

A. Form Interrogatories – General, Set No. 1

Law Offices of Robeert R. Shiri, APC’s Motion to Compel Answers to Form Interrogatories, and Request for Monetary Sanctions in the Amount of $2,560.00 Against Lenny K. Dykstra and/or Attorneys of Record is DENIED, without prejudice.

B. Request for Admissions, Set No. One

Law Offices of Robeert R. Shiri, APC’s Motion to Deem Request for Admissions Admitted, and Request for Monetary Sanctions in the Amount of $2,560.00 Against Lenny K. Dykstra and/or Attorneys of Record is DENIED, without prejudice.