Judge: Gregory Keosian, Case: 21STCV28751, Date: 2024-04-12 Tentative Ruling

Case Number: 21STCV28751    Hearing Date: April 12, 2024    Dept: 61

Defendants and Cross-Complainants Neal S. Zaslavsky, Morris Y. Friedman, and Anna Shirley Friedman’s Motion for Sanctions against Plaintiff Michael Zellner is GRANTED in part. Plaintiff’s amended answer filed on December 21, 2023, is stricken, and $5,560 in sanctions and $61.65 in fees are awarded against Plaintiff’s counsel.

I.                   MOTION FOR SANCTIONS

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being 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 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 evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(Code Civ. Proc., § 128.7, subd. (b).) Although a represented party is not subject to sanctions under subdivision (2) of the above statute for filing a claim without legal basis, they may be subject to sanctions under any other subdivision if the conditions are met. (See Laborde v. Aronson (2001) 92 Cal.App.4th 459, 466, disapproved on other grounds in Musaelian v. Adams (2009) 45 Cal.4th 512.)

Defendants and Cross-Complainants Neal S. Zaslavsky, Morris Y. Friedman, and Anna Shirley Friedman (Defendants) move for sanctions against Plaintiff and Cross-Defendant Michael Zellner (Plaintiff). Defendants seek$33,384.87 in monetary sanctions against Plaintiff and his counsel, an order striking Plaintiff’s belatedly filed amended answer to Defendants’ cross-complaint, and an order striking Plaintiff’s complaint with prejudice. (Motion at p. ii.)

Defendants argue that Plaintiff’s complaint “lacks any factual or legal support,” and is therefore subject to sanctions. (Motion at pp. 7–8.) Defendants also argue that Plaintiff failed to file an amended answer within the 20 days allotted for leave to amend after this court’s order of March 1, 2022, and instead filed an amended answer without leave of court on December 21, 2023, after the issue was raised at a December 6, 2023 status conference.

Plaintiff responds that the amended answer was filed to preserve affirmative defenses that had already been stated, and that no new facts were included save those that Plaintiff had already identified in discovery. (Opposition at p. 3.) Plaintiff argues that the sanctions sought here are not designed to deter repetitive misconduct, but only to punish Plaintiff. (Opposition at p. 4.) Plaintiff also argues that the amount of sanctions and the hourly rates sought are unsupported. (Opposition at pp. 6–9.)

Defendants have demonstrated entitlement to an order striking the amended answer. The time in which Plaintiff could freely file an amended answer expired before the hearing on Defendants’ demurrer, per Code of Civil Procedure § 472. Leave of court was thereafter required to file an amended pleading, and 20 days’ of such leave  were granted to Plaintiff, which he did not use to file the amended pleading, instead waiting more than a year to do so. Plaintiff offers no legal basis to believe that his amended answer was procedurally valid. An order striking this answer is therefore appropriate.

But Defendants have presented no basis for striking the Complaint. Their motion contains no discussion of the legal theories or factual support underlying Plaintiff’s claims. The argument on this point rests entirely on repeated characterizations of the complaint as a “shakedown,” without elaboration. (Motion at pp. 1, 6, 7.) This is insufficient basis to grant dispositive relief on Plaintiff’s complaint, let alone to find its prosecution sanctionable.

Defendants seek $33,384.87, of which $23,593.22 in fees (for 31.6 hours at $695 per hour) and $1,631.22 in expenses incurred prior to the present motion. (Zaslavsky Decl. ¶ 12.) Another $9,791.65 represents 14 hours of attorney work at the same rate for this motion, plus a $61.65 filing fee. (Ibid.)

Defendants are entitled to limited sanctions against Plaintiff’s counsel associated with the filing of this motion, as the amended answer was filed without reasonable legal basis, under subdivision (b)(2). However, this court lacks evidence to conclude that the amended answer was filed for an improper purpose, such as delay or harassment. The ready explanation for the tardy filing of the amended answer is a belated and fruitless effort to preserve affirmative defenses that Plaintiff had already forfeited by delay. Because the sanctionable fault is the legal infirmity of the answer, monetary sanctions are not awardable against Plaintiff personally. (See Code Civ. Proc. § 128.7, subd. (d)(1) [“Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).”].)

Plaintiff’s arguments against these fees are unpersuasive. Limited to those fees necessary to correct the filing of the errant answer, the fees are “sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (Code Civ. Proc. § 128.7, subd. (d).) The hourly rate of Defendants’ counsel is supported by his testimony concerning his experience, as well as comparisons to prevailing rates for attorneys of similar experience in the legal community. (Zaslavsky Decl. ¶ 11.) His testimony on the time worked for this motion is sufficient to support the request for fees related thereto, without the addition of timesheets. Although Plaintiff argues that Zaslavsky cannot recover fees for representing himself (Opposition at p. 7), he may recover fees for representing his codefendants, who likewise bring the motion.

The motion for sanctions is therefore GRANTED in part. Plaintiff’s amended answer is stricken, and $5,560 in sanctions and $61.65 in fees are awarded against Plaintiff’s counsel.