Judge: John C. Gastelum, Case: 19-01060956, Date: 2022-08-02 Tentative Ruling

(1) Motion for Sanctions (2) CMC

Tentative Ruling:  Defendant Law Office of Michael Poole’s Motion for Sanctions is granted in part and denied in part. (See Code Civ. Proc., § 128.7.)

The request to strike the TAC as to Defendant Law Office of Michael Poole is granted. 

The request for $17,239 in monetary sanctions is denied. Defendant fails to provide any evidence to support the fees, and whether they are reasonable or necessarily incurred.

The court is not required to issue sanctions under Calif. Code of Civil Procedure, section 128.7, and can exercise its discretion. (See Code Civ. Proc. § 128.7, subd. (c); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421.)

“Frivolous” means either: (i) “totally and completely without merit”; or (ii) “for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5(b)(2).)  An objective standard applies in determining whether a pleading is frivolous: “(A) suit indisputably has no merit only where any reasonable attorney would agree that the action is totally and completely without merit.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12.)

Here, Defendant Poole has shown Defendant Rangel was not an employee of Poole at the time of the alleged fraud.  (Poole Decl. ¶ 10.)  Plaintiffs and their attorney knew this fact.  On 4-30-21, prior to the filing of the TAC, Defendant Poole contacted Plaintiffs’ counsel and informed counsel that Rangel was never an employee of the Law Offices of Michael Poole.  (Id. at ¶¶ 3-4.)  Plaintiffs’ counsel stated that he would dismiss Law Offices of Michael Poole if a declaration was provided.  (Id. at ¶ 5.)  On 4-30-21, Poole provided a signed declaration under the penalty of perjury, declaring that Rangel was not an employee.  (Id. at ¶ 6, Ex. B.)  Poole also informed Plaintiffs’ counsel that any conduct on behalf of Rangel was personal in nature and not from his alleged employment duties.  (Id. at ¶¶ 7, 12.)  Rangel was not acting within this scope of employment with Poole.  (Id. at ¶¶ 8, 17.)  After receiving this declaration, Plaintiffs filed the TAC alleging that Rangel was an employee of Poole.  (Id. at ¶ 9.)  The email attached to the TAC has no connection to Poole and it was not sent from Poole Office.  (Id. at ¶ 13.)  The Joint Venture Contract clearly indicates the contract is between Vanek Energy, Inc. and Heredia Rodriguez.  (Id. at ¶¶ 14-15.)  It has no connection to Poole.  (Id. at ¶ 16.)

In addition, Defendant Poole also submits the Declaration of Ulices Rangel.  Rangel declares that during the events alleged in the TAC, he was not an employee of the Law Offices of Michael Poole.  (Rangel Decl. ¶ 2.)  He did not act within his scope of employment with the Law Office of Michael Poole as alleged in the TAC.  (Id. ¶ 3.) The Law Office of Michael Poole was not representing him in connection with the alleged claims raised by Plaintiffs.  (Id. ¶ 4.)  Rangel did not hold himself that he represented the Law Office of Michael Poole.  (Id. ¶ 5.)  Rangel did not act as agent or representative for Law Office of Michael Poole in connection with the allegations in the TAC.  (Id. ¶ 6.)

Plaintiffs have failed to oppose the motion.  Plaintiffs present no evidence or argument to contradict Defendant’s contentions that the filing of the TAC in this action is frivolous. 

A reasonable attorney, after speaking with Poole and reviewing the Poole declaration, would have to agree that Plaintiffs’ Third Amended Complaint “…is totally and completely without merit.”

Defendant Law Office of Michael Poole is ordered to give notice.