Judge: Anne Richardson, Case: 22STCV38166, Date: 2023-12-15 Tentative Ruling

Case Number: 22STCV38166    Hearing Date: December 15, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Y. Jessie Shaw dba Law Office of Y. Jessie Shaw—in pro per—sues Defendant Zhengdong Tian—also in pro per—and Does 1 through 5 pursuant to a December 7, 2022 Complaint alleging claims of (1) Breach of Contract, (2) Quantum Meruit, and (3) Open Book Account.

The claims arise from allegations that on or about December 3, 2019, Defendant Tian entered into a written agreement with Plaintiff Shaw for Plaintiff Shaw to represent Defendant Tian in his marital dissolution action, pursuant to which agreement Defendant Tian would pay Plaintiff Shaw $350 per hour, and that, despite this agreement, Defendant Tian has failed to pay Plaintiff $40,665.15 in owed legal fees.

On May 10, 2023, Defendant Tian moved for sanctions against Plaintiff Shaw. Specifically, Defendant Tian seeks “costs and expenses incurred by … Tian in defending against this … lawsuit,” “such other and further relief as this Honorable Court deems just and proper,” that the “complaint … be dismissed with prejudice,” and an order “barring [P]laintiff [Shaw] as an attorney from practicing law.”

On June 30, 2023, Plaintiff Shaw opposed the motion.

Defendant Tian has failed to reply to the opposition.

Defendant Tian’s motion is now before the Court.

Motion for Sanctions

Legal Standard

Although it is unclear precisely under which statute Defendant is proceeding, the Court interprets it as requesting, among other things, terminating sanctions. Terminating sanctions are drastic sanctions that should be imposed sparingly and only when it is clear that the party to be sanctioned has left no viable alternatives. (See Dept. of Forestry & Fire. Prot. v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved on other grounds in Presbyterian Camp & Conf. Ctrs, Inc. v. Superior Court (2021) 12 Cal.5th 493; Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 604.)

The court should consider the totality of the circumstances before ordering terminating sanctions, including (1) whether the conduct of the party was willful, (2) the detriment to the party propounding discovery, and (3) the number of formal and informal attempts to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) The Court is not required to find that a party acted in bad faith before imposing terminating sanctions. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 703.)

If terminating sanctions are warranted, the Court may make:

(1) An order striking all or parts of the pleadings (Code Civ. Proc., § 2023.030, subd. (d)(1); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1519 [trial court struck defendant’s answer]);

(2) An order staying proceedings until a party obeys a discovery order (Code Civ. Proc., § 2023.030, subd. (d)(2); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992);

(3) An order dismissing all or part of a party’s action (Code Civ. Proc., § 2023.030, subd. (d)(3); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; see, e.g., Crawford v. JPMorgan Chase Bank (2015) 242 Cal.App.4th 1265, 1271 [dismissal proper when party threatened to use pepper spray and taser on opposing counsel at deposition and was openly contemptuous of trial court]); and

(4) An order rendering a default judgment against a party (Code Civ. Proc., § 2023.030, subd. (d)(4); Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; see, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184 [defendant’s pervasive and consistent misuse of discovery process supported court’s dismissal of answer and entry of default judgment]; but see Nickell v. Matlock (2012) 206 Cal.App.4th 934, 943-944 [Code Civ. Proc., § 764.010 prohibits court from rendering judgment by default as discovery sanction in quiet title actions]).

Although Defendant also refers to Code of Civil Procedure section 128.7, that statute requires that a motion brought under that section be separate from any other motion or request and that the motion shall not be filed with the court unless, within 20 days after service on the opposing party, the challenged claim, defense contention, allegation, or denial is not withdrawn or appropriately corrected. (Code Civ. Proc. § 128.7 subd. (c)(1).)

Order Granting Terminating Sanctions: DENIED.

Defendant Tian seeks terminating sanctions and other relief based on various grounds. These include arguments that this lawsuit is frivolous because Plaintiff Shaw orally agreed to limit fees to $50,000, all but $5,400 of which have been paid, and that res judicata bars this lawsuit because Plaintiff Shaw agreed to $50,000 in fees in the divorce proceedings that underlie this lawsuit. Defendant Tian also argues that the Complaint was served beyond the 60-day deadline set by California Rules of Court, rule 3.1110, subdivision (b), making the lawsuit improper. Moreover, Defendant Tian argues that he was improperly served in this action, first by substituted service on his 16-year-old son, and then by substituted service at a place of business not tied to Defendant Tian. Defendant Tian otherwise argues that Plaintiff Shaw has engaged in unprofessional behavior, including making false statements relating to proper venue, making sexual advances toward Defendant Tian, making up lies about the parties’ contractual obligations relating to representation in the underlying divorce proceedings, and refusing payment for marketing consulting services by Defendant Tian on behalf of Plaintiff Shaw (framed by the opposition as a Yelp review and nothing more). Other unprofessional conduct by Plaintiff Shaw allegedly includes making Defendant Tian work, in effect, as a paralegal in his own defense in the divorce proceedings, as well as forcing Defendant Tian to give Plaintiff Shaw a five-star review. (Mot., pp. 1-5.)

Plaintiff Shaw’s opposition addresses these arguments in various ways and argues that the motion should be denied. (Opp’n, pp. 1-7.)

The Court finds in favor of Plaintiff Shaw. While the Court understands that Defendant Tian is self-represented, “[a] party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)

The Court initially notes that Defendant Tian’s motion fails to include a proper “notice of hearing”, as required by the Rules of Court. (Cal. Rules of Court, rule 3.1112, subd. (a)(1).) This alone could be a basis for denial of this motion. However, the Court finds this violation to be minor and that there is no prejudice to the Plaintiff, and so will consider the motion on the merits.

To the extent that Defendant Tian challenges service—either based on the timing of service of the Complaint (beyond 60 days) or based on substituted service at a place of business with no connection to Defendant Tian—a motion to quash is the appropriate procedural vehicle where the Court would be able to determine that issue in the first instance; not a motion for sanctions, which assumes that the underlying alleged misconduct has already been adjudicated by a court to have occurred. Moreover, as the Defendant filed an Answer on January 4, 2023, well before this motion was filed, any objection to service has likely been waived. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.)

To the extent that Defendant Tian challenges venue, a motion for change of venue is the appropriate procedural vehicle.

To the extent that Defendant Tian has claims against Plaintiff Shaw—either based on legal malpractice, sexual harassment, monies owed based on marketing services, or breach of oral contract in charging more in fees than agreed to—the proper vehicle for those claims is the filing of a cross-complaint for compulsory and permissive cross claims or a new action for permissive cross claims.

To the extent that Defendant Tian argues that res judicata bars this action, the proper procedural vehicle is a demurrer on that ground. However, the Court does not see, based on the record before it, that grounds would exist for such a finding. While Defendant points to a sentence in the Judgment in which the judge in the Dissolution action noted that Ms. Shaw’s demand for attorney fees to be paid by the other side had been reduced from $100,000 to $50,000 (Exhibit B to the motion, at p. 14), that finding does not constitute an adjudication that that sum is all that is owed to that attorney from that attorney’s own client.

In other respects, the Court is not convinced that Plaintiff Shaw has, on the record before the Court, engaged in unprofessional conduct, where such alleged unprofessional conduct is not clearly a basis for the terminating sanctions sought in Defendant Tian’s motion.

The Court also notes that a State Bar Court judge is the appropriate arbiter of whether any lawyer should be disciplined, including by disbarment, with the California Supreme Court having the final say on the matter. That is not a form of relief that is within this trial court’s jurisdiction. Moreover, while the Court understands that the Defendant disputes the amount owed to Plaintiff, the Court does not see any basis for that extreme relief.

Based on the above discussion, the Court determines that Defendant Tian’s motion lacks merit. The motion is accordingly DENIED. 

Conclusion

Defendant Zhengdong Tian’s Motion for Sanctions is DENIED.