Judge: Joseph Lipner, Case: 21STCV10774, Date: 2023-11-16 Tentative Ruling

Case Number: 21STCV10774    Hearing Date: November 16, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Melanie Middien (“Defendant”) moves for the dismissal of this action, the expungement of attorney liens, and terminating sanctions against Plaintiff Daniel Nishiyama (“Plaintiff”).

Defendant’s motion to dismiss is DENIED.  The denial is without prejudice to Defendant’s ability to file a motion for summary judgment or summary adjudication

Defendant’s motion for terminating sanctions is DENIED. 

Background

Plaintiff is an attorney who represented Defendant’s former spouse (the “Decedent”) in a divorce proceeding. In order to pay his legal fees, the Decedent permitted Plaintiff to attach liens to his community property interest in five real properties to which Defendant and the Decedent held an interest.

Defendant is the trustee of the family trust. Plaintiff filed a claim in the probate proceedings that arose out of the Decedent’s death. Defendant denied the claim. Plaintiff filed this civil case, stating claims for (1) breach of contract; (2) common counts; (3) enforcement of lien; and (4) adjudication of creditor’s claim.

Defendant filed the motion to dismiss on September 19, 2023 and the motion for terminating sanctions on September 26, 2023. Plaintiff filed an opposition to the motion to dismiss along with a declaration. Plaintiff filed a declaration in opposition to the motion for terminating sanctions.

Motion to Dismiss

          Defendant’s motion to dismiss does not fit into a recognized category of motions under California civil procedure.   

The motion could not be a demurrer or a motion for judgment on the pleadings since it relies largely on extrinsic evidence beyond the face of the pleadings. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents]; Cloud v. Northrup Grumman Corp.¿(1998) 67 Cal.App.4th 995, 999 [the same rules govern a motion for judgment on the pleadings as a demurrer, and the grounds for the motion must be apparent on the face of the pleadings.)

The motion to dismiss most closely resembles a motion for summary judgment, in that it relies on evidence to argue the merits. However, the notice of motion does not state that Defendant seeks summary judgment or summary adjudication.  Importantly, the motion is also missing a separate statement.

A motion for summary judgment must contain and be supported by the following documents:

“(1)  Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2)  Separate statement of undisputed material facts in support of [moving party's] motion for summary judgment or summary adjudication or both;

(3)  Memorandum in support of [moving party's] motion for summary judgment or summary adjudication or both;

(4)  Evidence in support of [moving party's] motion for summary judgment or summary adjudication or both; and

(5)  Request for judicial notice in support of [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).”

(Cal. Rules of Court, rule 3.1350(c).)

The inclusion of a separate statement’s inclusion is a strict requirement for motions of summary judgment, and must comply with subdivision (d) of Rule 3.1350 of the California Rules of Court, which reads as follows:

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(2) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.

(3) The separate statement must be in the two-column format specified in (h). The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”

(Cal. Rules of Court, rule 3.1350, subd. (d).)

          Defendant’s motion is not called a summary judgment motion and does not meet these requirements. The motion therefore does not present a clear basis for the Court to grant pretrial judgment as requested. Although the Court denies Defendant’s motion, this denial does not affect Plaintiff’s ability to file a motion for summary judgment compliant with the requirements in California Rule of Court Rule 3.1350.

Defendant’s motion to dismiss is therefore Denied.  The denial is without prejudice to Defendant’s ability to file a motion for summary judgment or summary adjudication using the appropriate procedure. 

Motion for Terminating Sanctions

The motion for terminating sanctions raises a number of issues, but none is a basis for this Court to issue terminating sanctions. 

                    One-Action Rule

          “A secured creditor can bring only one lawsuit to enforce its security interest and collect its debt. (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 997, citing Code Civ. Proc. § 726, subd. (a).)

Defendant argues that Plaintiff has violated the one action rule by asserting multiple causes of action in this case.  As an initial matter, this is a substantive argument on the merits and is not properly raised on a motion for termination sanctions.

Second, Defendant’s argument misunderstands the meaning of “action” in the statute – “[a]n action is an ordinary proceeding in a court of justice[.]” (Id. at 998, quoting Code Civ. Proc. § 22.) Although Plaintiff has filed multiple causes of action, those causes of action are part of one case, i.e., one action.

Although Plaintiff sought to assert a claim in the probate court prior to filing in civil court, Defendant rejected Plaintiff’s claim in the probate court. The probate court therefore found that a civil action would be the appropriate remedy for Plaintiff to seek and declined to relate this case to the probate case on July 27, 2021.

Plaintiff therefore has not violated the one-action rule.

                    Abuse of the Discovery Process

Defendant argues that Plaintiff improperly filed Plaintiff’s financial records that were marked in a manner indicating that they should not be filed with the court. The Court recognizes that a protective order could be appropriate with respect to these documents in the current case. However, without an actual protective order in place here, filing those documents does not constitute an abuse of the discovery process.

Similarly, Defendant objects to Plaintiff’s efforts to photograph and videotape the properties at issue. Again, the Court does not make a ruling here on whether a protective order would be appropriate, but because a protective order was not in place, this conduct is not discovery abuse.

          Defendant identifies a series of behaviors by Plaintiff in the previous family law case. Although some of the conduct alleged is serious, it did not occur in this case, and the Court therefore does not view the conduct as a basis for terminating sanctions in the current case. 

Unclean Hands

“It is an undisputed equitable principle that those who seek the aid of equity must sue in good faith.” (Samuelson v. Ingraham (1969) 272 Cal.App.2d 804, 806.) “Any unconscionable conduct which relates to the transaction may give rise to the defense of unclean hands and bar relief.” (Ibid.)

Defendant argues that Plaintiff has unclean hands and therefore cannot obtain relief.

There is no law providing that the doctrine of unclean hands is a basis for terminating sanctions in a case like this one. Rather, unclean hands is a substantive doctrine that can bar recovery on the merits of a case. Thus, Plaintiff may still assert the defense of unclean hands in a motion for summary judgment or at trial, but it is not a basis for sanctions.