Judge: Katherine Chilton, Case: 19STCV12706, Date: 2023-05-11 Tentative Ruling

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Case Number: 19STCV12706    Hearing Date: May 11, 2023    Dept: 25

PROCEEDINGS:      MOTION TO DISMISS

MOVING PARTY:   Defendant John Koutsoukos

RESP. PARTY:         None

MOTION TO DISMISS

(none)

TENTATIVE RULING:

Defendant John Koutsoukos’s Motion to Dismiss is DENIED without prejudice.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of May 7, 2023.                           [   ] Late                      [X] None

REPLY:                     None filed as of May 7, 2023.                           [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 12, 2019, Plaintiff Scot L. Bennett (“Plaintiff”), in propria persona, filed an action against Defendants Luis Hernandez (“Luis”), Damien Hernandez, a minor (“Damien”), John Koutsoukos (“John”), and “Jane Doe” Koutsoukos (“Jane Doe”), (collectively “Defendants”), for breach of contract, common counts, fraud, and conversion.

            On September 9, 2019, the case was reclassified from civil unlimited to civil limited jurisdiction.  (9-9-19 Notice of Reclassification, Notice of Case Reassignment, Minute Order.)

            On September 21, 2020, Defendant John Koutsoukos, in propria persona, filed an Answer to the Complaint.

            On September 23, 2020, based on Plaintiff’s request, the Court entered default against Defendant “Jane Doe” Koutsoukos.  (9-23-20 Request for Entry of Default/Judgment.)

            On August 10, 2021, the Court granted Plaintiff’s Motions to Compel Responses to Demand for Production of Documents and Special Interrogatories, filed on June 16, 2021.  (8-10-21 Minute Order.)  The Court ordered Defendant John to serve verified responses without objections within thirty (30) days’ notice of the Court order and to pay sanctions in the amount of $89.00.  (Ibid.)

            On January 12, 2022, the Court granted Plaintiff’s Ex Parte Application for Continuance of Trial and continued the trial date to March 15, 2022.  (1-12-22 Minute Order.)

            On March 15, 2022, on the date set for Non-Jury Trial, the Court noted that no appearances were entered for Plaintiff and dismissed the Complaint without prejudice.  (3-15-22 Minute Order.)

            On March 21, 2022, Plaintiff filed a Motion to Set Aside/Vacate Dismissal.  On April 18, 2022, the Court granted Plaintiff’s Motion and ordered the dismissal entered on March 15, 2022, as to the entire action, to be set aside and vacated.  (4-18-22 Minute Order.)  On the same day, the Court dismissed Defendants Luis and Damien without prejudice.  (Ibid.)

            On September 12, 2022, Defendant John filed a Motion to Dismiss Action for Lack of Enforceability; however, no hearing date was reserved by the Defendant.

            On September 14, 2022, on the date set for Non-Jury Trial, the Court noted that there were no appearances entered by Plaintiff and dismissed the Complaint without prejudice.  (9-14-22 Minute Order.)  On January 9, 2023, the Court granted Plaintiff’s Motion to Set Aside Dismissal and vacated dismissal entered on September 14, 2022.  (1-9-23 Minute Order.)

            On February 15, 2023, Defendant John filed the instant Motion to Dismiss (“Motion”).  No opposition has been filed.

            On March 1, 2023, the Court, on its own motion, continued the Non-Jury Trial scheduled for March 1 to June 7, 2023.  (3-1-23 Minute Order.)

II.              Legal Standard & Discussion

Defendant John moves for an order dismissing the current action on the ground that it arises out of an unenforceable contract.  (Mot. p. 1.)  The action arises out of an alleged agreement between Plaintiff and Defendant John, whereby Defendant agreed to share one third of his attorney’s fees obtained in an underlying action with Plaintiff.  (See Compl.)  Defendant argues that California Professional Code of Ethics, Rule 1-320 prohibits attorneys from sharing attorney’s fees with non-attorneys.  (Mot. pp. 2-4.)  Plaintiff is not an attorney registered to practice law in the state of California; however, Defendant is a registered attorney.  (Koutsoukos Decl. ¶¶ 2-3.)  Defendant cites to Civil Code §§ 1608 and 1667.  (Mot. pp. 2-4.)  Section 1608 states: “[i]f any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.”  Moreover, § 1667 states “[t]hat is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals.”  Accordingly, Defendant argues that the alleged agreement for sharing of attorney’s fees with a non-attorney is “unenforceable and voidable” as it is prohibited by law.  (Ibid.)  And for this reason, the “Honorable Court must dismiss this action WITH PREJUDICE.”  (Ibid. at p. 4.)

The Court finds several deficiencies in the instant Motion.  First, the Notice of Motion does not contain the address or name of the courthouse where the hearing on the Motion will take place.  (Mot. p. 1.)

Second, Defendant has served self-represented Plaintiff via electronic service.  (5-3-23 Proof of Service.)  Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances.  Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel.  (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).)

Third, a motion must contain a memorandum of points and authorities that “[b]riefly state[s] the basis for the motion and the relief sought.”  (Cal. Rules of Court, rule 3.1112(d)(3).)  Here, although Defendant cites to legal authority to show that the agreement alleged in the Complaint is “unenforceable and voidable” (Mot. pp. 2-4), Defendant does not cite to any authority demonstrating that the Court is vested with the power to dismiss the Complaint on this basis.

For these reasons, Defendant’s Motion to Dismiss is DENIED.

III.            Conclusion

For the foregoing reasons, Defendant John Koutsoukos’s Motion to Dismiss is DENIED without prejudice.

On its own motion, the Court continues the trial date to August 22, 2023 at 8:30 a.m. in Department 25.

Moving party is to give notice.