Judge: Ashfaq G. Chowdhury, Case: 23GDCV00557, Date: 2024-02-02 Tentative Ruling

Case Number: 23GDCV00557    Hearing Date: February 2, 2024    Dept: E

Case No: 23GDCV00557
Hearing Date: 02/02/2024 – 8:30am

Trial Date: UNSET

Case Name: AUREA CONSTRUCTION, INC. v. RAFAYEL MURADYAN, et al.

[TENTATIVE RULING ON MOTION FOR SANCTIONS]

Moving Party: Plaintiff, Aurea Construction, Inc.

Responding Party: Defendants/Cross-Complainants, Rafayel Muradyan and Lusine Khachatryan

Moving Papers: Notice/Motion; Arutyunyan Declaration

Opposition Papers: Opposition; Request for Judicial Notice

Reply Papers: Reply

RELIEF REQUESTED
Plaintiff, Aurea Construction, Inc., (Aurea or Plaintiff) moves this Court for an order imposing sanctions against counsel for Defendants/Cross-Complainants Rafayel Muradyan and Lusine Khachatryan, Pedram Zivari.

Aurea makes this Motion pursuant to Code of Civil Procedure section 177.5, on the grounds that Mr. Zivari continues, and will continue if undeterred, to litigate in the above-captioned action despite a statutory stay and court imposed stay in its entirety.

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

CCP §177.5
Under CCP §177.5:

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.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

(CCP §177.5.)

TENTATIVE RULING
On 07/24/2023, this Court issued a “Minute Order: Order to Show Cause Re: Failure to File Proof of Service.”

In relevant part of that Minute Order, the Court stated:

The above matter is called for hearing.

The Court and defense counsel confer regarding the order to show cause.

The Court rules as follows:

The matter is stayed pending the plaintiff's appeal pursuant to Code of Civil Procedure section 916.

The Court continues the matter as follows: On the Court's own motion, the Case Management Conference scheduled for 09/18/2023, and Order to Show Cause Re: Failure to File Proof of Service scheduled for 07/24/2023 are continued to 02/07/2024 at 08:30 AM in Department E at Glendale Courthouse.

Defendant to give notice.

The Court hereby stays the case in its entirety.

(7/24/2023 Min. Order; [emph. added].)

Movant argues that sanctions should be imposed against Mr. Zivari, as attorney for Defendants/Cross-Complainants because after the stay was enacted on 7/24/2023, Zivari disobeyed the Court’s 7/24/2023 Minute Order on August 11, 2023 he served and filed a proof of service of summons on a new party (T-Go Air) and on September 20, 2023 Zivari filed a request for entry of default against T-Go Air.

Movant argues for sanctions of $3,000.00 under 177.5 for each time Zivari committed the violation after the stay was enacted.

Movant also argues that Zivari’s violations constitute causes of disbarment or suspension under Bus. Prof. Code §6103.

Here, the Court DENIES Plaintiff’s request for sanctions. At the very least, Defendant’s arguments on good cause/substantial justification on pages 13-16 of the Opposition appear persuasive. Further, based on Opposition’s citation to CCP § 916 and the arguments asserted on pages 11-13 of the Opposition, the Court understands the confusion indicated by the Opposition as to what was embraced by the stay.

Request for Judicial Notice
Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

(Evidence Code §452.)

The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

(Evidence Code §453.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)  However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

Opposition requests judicial notice of California Judges Association, Judicial Ethics Committee Opinion No. 74 (2018) attached hereto as Exhibit "A."

The Court DENIES the Opposition’s request for judicial notice.