Judge: Gail Killefer, Case: 19STCV36658, Date: 2023-03-27 Tentative Ruling
Case Number: 19STCV36658 Hearing Date: March 27, 2023 Dept: 37
HEARING DATE: March 27, 2023
CASE NUMBER: 19STCV36658
CASE NAME: Everloving Home Health, et al.
v. Joseph Amirian Physical Therapy, et al.
MOVING PARTY: Specially Appearing Defendant, Joseph
Amirian
OPPOSING PARTIES: Plaintiffs, Everloving Home Health,
Inc., Ehsan Doroudi and Shaida Moghaddam
TRIAL DATE: None.
PROOF OF SERVICE: OK
MOTION: Motion for Sanctions
OPPOSITION: March 14, 2023
REPLY: March 22, 2023
TENTATIVE: Defendant Amirian’s
motion is denied. Plaintiffs are to give notice.
Background
This action arises in connection with Defendant Joseph W.
Amirian’s (“Joseph Amirian”) alleged “financial crimes and other wrongdoings”
against Plaintiffs through his physical therapy practice, Joseph Amirian
Physical Therapy (“JA Therapy”) and JA Services, Inc. (“JA Services”).
Plaintiffs Shaida Moggadham (“Moggadham”), Ehsan Doroudi (“Doroudi”) and
Everloving Home Healthcare Services, Inc. (“Everloving”) also allege that
Defendant, Silva Amirian aided and abetted in Joseph Amirian’s alleged
wrongdoings against them. Plaintiffs Doroudi and Moggadam allege that they are
co-founders and principals of Plaintiff Everloving.
Specifically, Plaintiffs allege that beginning on or about
August 1, 2016, Plaintiffs and Defendants entered into a contract for
Defendants to provide healthcare services to residents at Everloving.
Notwithstanding this contract, Plaintiffs allege that Joseph Amirian and JA
Therapy falsely represented that they were licensed to provide physical therapy
and also allegedly converted revenue through fraudulent billing for their own
benefit.
Plaintiffs’ Complaint, filed October 11, 2019, alleges six
causes of action against all Defendants: (1) conversion, (2) fraud, (3) breach
of fiduciary duty, (4) defamation, (5) breach of the covenant of good faith and
fair dealing; and (6) intentional infliction of emotional distress.
On August 25, 2020, Joseph Amirian’s Motion to Quash Service
of Summons was granted, and Plaintiffs’
May 11, 2020 Proof of service as to Joseph Amirian was ordered quashed.
On March 2, 2021, Plaintiffs filed another proof of service
as to Joseph Amirian (the “Second POS”). On April 23, 2021, the court denied Joseph
Amirian’s Motion to Quash the Second POS.
On April 14, 2022, Plaintiffs filed their First Amended
Complaint (“FAC”) alleging identical causes of action. On June 22, 2022, Joseph
Amirian’s demurrer to the FAC was sustained with leave to amend.
On July 25, 2022, Plaintiffs filed their Second Amended
Complaint (“SAC”) alleging identical causes of action. On September 27, 2022, the
court sustained Defendant Amirian’s demurrer to the SAC was sustained in its
entirety with leave to amend. (“September 27 Order.”)
On November 7, 2022, Plaintiffs filed their operative Third
Amended Complaint (“TAC”) alleging identical causes of action.
On January 18, 2023, the court sustained Defendant Joseph
Amirian’s demurrer to the TAC without leave to amend, and the complaint was
dismissed.
Defendant Joseph Amirian now moves for sanctions against Plaintiffs.
Plaintiffs oppose the motion.
MOTION FOR
SANCTIONS
Request
for Judicial Notice
Amirian
requests judicial notice of the following in support of his motion:
Amirian’s
request is granted. The existence and legal significance of these documents are
proper matters for judicial notice. (Evid. Code § 452(d), (h).)
Discussion
I.
Legal Authority
CCP § 128.5 permits a trial court to “order a party, a
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.” (CCP
§ 128.5(a).) Actions or tactics include, but are not limited to, filing or
opposing motions, complaints, answers, or other responsive pleadings. (CCP §
128.5(b)(1).) “‘Frivolous’ means totally and completely without merit or
for the sole purpose of harassing an opposing party.” (CCP § 128.5(b)(2).) Bad
faith is determined using a subjective standard. (In re Marriage of Sahafzadeh-Taeb
& Taeb (2019) 39 Cal.App.5th 139, 134-35.) Sanctions “may consist
of, or include directives of a nonmonetary nature.” (CCP § 128.5(f)(2).)
Expenses pursuant to Section 128.5 cannot be imposed unless
noticed in a party’s moving or responding papers, or on the court’s own motion
after providing the offending party notice and an opportunity to be heard. (CCP
§ 128.5(c).) An order imposing expenses must be in writing and must recite in
detail the action, tactic, or circumstances justifying the order. (Id.)
Sanctions under this section may also be awarded if the
offending party is provided a 21-day safe harbor to withdraw or correct its
offending document or pleading. Specifically, “[i]f 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, the court on its own motion may enter
an order describing the specific action or tactic, made in bad faith, that is
frivolous or solely intended to cause unnecessary delay, and direct an
attorney, law firm, or party to show cause why it has made an action or tactic
as defined in subdivision (b), unless, within 21 days of service of the order
to show cause, the challenged action or tactic is withdrawn or appropriately
corrected.” (CCP § 128.5(f)(1)(D)(1).) An award of sanctions may include an
award of attorney’s fees incurred as a direct result of the offending party’s
bath faith action or tactic. (CCP § 128.5(f)(1)(D)(2).)
CCP
§ 128.7 states that a court may impose sanctions on a party or attorney that
presents a pleading, petition, motion, or other similar papers in the following
circumstances:¿
¿
1)¿the¿document is
presented primarily for an improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.¿
2)¿the¿claims,
defenses, and other legal contentions therein are not warranted by existing law
or by a¿nonfrivolous¿argument for the extension, modification, or reversal of
existing law or the establishment of new law.¿
3)¿the¿allegations
and other factual contentions have no evidentiary support;¿
4)¿the¿denials of
factual contentions are not warranted on the evidence.¿
¿
CCP
§ 128.7 permits the Court to impose monetary sanctions on an attorney or an
unrepresented party that violates any one of these requirements. (Eichenbaum¿v.¿Alon¿(2003)
106 Cal App 4th 967, 976.)¿ In addition, section 128.7 does not require a
finding of subjective bad¿faith; instead it requires only that the Court find
that the conduct be objectively unreasonable.¿(In re Marriage of
Reese & Guy¿(1999) 73 Cal. App. 4th 1214, 1221.)¿
Under section 128.7, a court¿may¿impose
sanctions if it concludes a pleading was filed for an improper purpose or was
indisputably without merit, either legally or factually.¿(Bucur¿v. Ahmad¿(2016)
244¿Cal.App.4th¿175, 189-190.)¿A claim is factually frivolous if it is “not
well grounded in fact” and is legally frivolous if it is “not warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law.” (Ibid.) In either case, to obtain sanctions,
the moving party must show the party's conduct in asserting the claim was
objectively unreasonable. (Ibid.) A claim is objectively unreasonable if
“any reasonable attorney would agree that [it] is totally and completely
without merit.” (Ibid.) However, “section 128.7 sanctions should be
‘made with restraint’ [Citation], and are not mandatory even if a claim is
frivolous.” (Peake v. Underwood¿(2014) 227¿Cal.App.4th¿428. at 448.)¿
II.
Analysis
Amirian
contends that sanctions are warranted under CCP § 128.5 against Plaintiffs and
their counsel because:
“Defendant has
unjustly incurred costs and legal fees in filing four (4) successive demurrers
to the original operative complaint and three amended complaints as result [sic]
of Plaintiffs and their Counsel’s frivolously submitting or maintaining four
versions of the complaint prior to each respective demurrer. Defendant contends
that each version of the complaint was frivolously submitted or maintained by
Plaintiffs because their Counsel knew that every version of the complaint
stated the same deficient factual allegations...” (Motion, 1.)
In
opposition, Plaintiffs contend sanctions against them are not justified as the
motion seeks recovery of sanctions outside the purported “safe harbor” period,
provides no basis for the frivolity of Plaintiffs’ claims, and attacks and/or
disregards other viable causes of action in the pleadings. (Opposition, 2, 4-8,
9-13.) Plaintiffs also request sanctions in the amount of $8,415.00 against
Defendant Amirian for bringing “a losing motion for sanctions.” (Opp., 8.)
The
court does not find that CCP § 128.5 was violated. The court is not persuaded
by Amirian’s arguments that the pleadings were frivolous, as Defendant
misconstrues the relevant standard for finding frivolous conduct. Specifically,
this court notes that the act of filing successive pleadings is a necessary and
vital part of the litigation process, one that would be hindered by the
loosening of the frivolous standard, as Defendant’s motion asks of this court.
Additionally, the court is not persuaded by Amirian’s argument that Plaintiffs
should be sanctioned, as Plaintiffs’ claims have not been frivolous or harassing.
Further, the court is also not persuaded by the justification for sanctions
against Amirian as well, since Plaintiffs fail to show how Amirian’s conduct
has been harassing or frivolous. As such, neither parties’ motions for
sanctions of attorney fees are warranted.
For
these reasons, Defendant Amirian’s motion is denied.
Conclusion
Defendant
Amirian’s motion is denied. Plaintiffs are to give notice.