Judge: Latrice A. G. Byrdsong, Case: BC644230, Date: 2023-09-28 Tentative Ruling
Case Number: BC644230 Hearing Date: September 28, 2023 Dept: 25
Shahrouz
Jahanshahi v. Rodney T. Lewin
BC644230
ANALYSIS:
I.
Background
On December 20, 2016, Plaintiff/Cross-Defendant Shahrouz
Jahanshahi (“Jahanshahi”), filed an action, acting in propria persona, for
breach of contract, common counts, fraud, general negligence, and intentional
tort against Defendant/Cross-Complainant Rodney Lewin (“Lewin”). The Complaint arose from Lewin’s
representation of Jahanshahi in an action against West Wing Grand Plaza (“West
Wing”). (See Compl., generally.)
On March 1, 2017, Lewin, as assignee of the Law Offices
of Rodney T. Lewin APC, filed a Cross-Complaint against Jahanshahi seeking to
recover $10,273.15 in attorney’s fees, plus interest (Cross-Compl. ¶ 12.) On June 6, 2017, Jahanshahi filed a First
Amended Complaint (the “FAC”) for breach of contract, breach of the covenant of
good faith and fair dealing, common counts, breach of fiduciary duty, legal
malpractice and ethical violations, intentional and/or negligent infliction of
emotional distress, accounting, negligent misrepresentation, and fraudulent
representation.
On October 25, 2017, the Court sustained Lewin’s Demurrer
to the FAC without leave to amend. (10-25-17
Minute Order.) On November 16, 2017, Jahanshahi’s
FAC was dismissed with prejudice. (11-16-17
Minute Order.) On August 15, 2018, the
Court granted Lewin’s motion to reclassify the case from unlimited to limited
jurisdiction. (8-15-18 Minute Order.)
On December 10, 2019, the Court granted Lewin’s Motion
for Summary Judgment, finding that Lewin was entitled to damages in the amount
of $10,273.15, plus $4,057.87 in prejudgment interest. (12-10-19 Minute Order.)
On January 8, 2020, Lewin filed a Memorandum of Costs,
seeking costs of $3,508.15, which was served on Jahanshahi that same day via
regular mail.
On September 11, 2020, the Court ruled on the following
motions filed by Jahanshahi. The Court granted
Jahanshahi’s Motion for Reconsideration as to Jahanshahi’s request for
sanctions only, but denied the request for sanctions. (9-11-20 Minute Order.) The Court denied Jahanshahi’s Motion to Quash
Subpoena but granted Lewin’s request for sanctions in the amount of $1,185.00. (Ibid.) Finally, the Court denied Jahanshahi’s Motion
to Disqualify Counsel. (Ibid.)
On March 2, 2021, Lewin filed a request for dismissal of
the second, third, and fourth causes of action alleged in the Cross-Complaint. (3-2-21 Request for Dismissal.) On March 3, 2021, dismissal was entered as
requested. (Ibid.)
Jahanshahi filed a notice of appeal on
March 24, 2021, indicating he was appealing Lewin’s “dismissal of action on
March 2, 2021, and the final judgment thereto.” (3/24/21 Notice of Appeal.)
On April 13, 2021, the Court entered
an Amended Judgment incorporating the Court’s prior orders. Specifically, the Amended Judgment (1) stated
that pursuant to the Court’s November 16, 2017, order of dismissal, Jahanshahi’s
FAC was dismissed with prejudice as to Lewin, with judgment entered in favor of
Lewin, and (2) that, pursuant to the Court’s December 10, 2019 order on Lewin’s
motion for summary judgment, judgment is entered in favor of Lewin and against Jahanshahi
on the first cause of action for breach of contract in the amount of $14,331.02,
based on damages of $10,273.15 and prejudgment interest of $4,057.87. (4-13-21 Amended Judgment.) The Amended Judgment also awarded Lewin costs
of $3,508.15 in accordance with the Memorandum of Costs filed on January 8, 2020,
plus interest on the judgment at 10% per annum from December 10, 2019, until
paid in full. (Ibid.)
On August 6, 2021, the Court denied
Jahanshahi’s Motion for Imposition of Sanctions, filed on May 11, 2021. (8-6-21 Minute Order.) The Court also denied Lewin’s request for
sanctions in opposing the Motion. (Ibid.)
Lewin filed a Memorandum of Costs After
Judgment on August 27, 2021, claiming only post-judgment interest.
On September 2, 2021, Jahanshahi
filed a Motion to Tax Costs and Strike Memorandum of Costs. On December 27, 2021, the Court denied
Jahanshahi’s Motion to Tax Costs and Strike Memorandum of Costs. (12-27-21 Minute Order.)
On April 7, 2022, Lewin filed a new
Memorandum of Costs After Judgment.
Jahanshahi filed a Motion to Tax Costs and Strike Memorandum of Costs on
April 21, 2022. On July 11, 2022, the
Court denied Jahanshahi’s Motion.
(7-11-22 Minute Order.)
On March 27, 2023,
Lewin filed a Memorandum of Costs on Appeal for a total costs of
$2,423.31. Jahanshahi filed the instant
Motion to Tax Costs and to Strike Lewin’s Memorandum of Costs on Appeal, as
well as Request for Sanctions (“Motion”).
Jahanshahi also filed a Request for Judicial Notice. On May 30, 2023, Jahanshahi filed an Amended
Motion.
On
April 28, 2023, Lewin filed Certificate of Clerk-Judgment Creditor’s Costs
Added to Judgment in the amount of $1464.95.
On
May 8, 2023, Lewin filed another Memorandum of Costs on Appeal. In response, on May 30, 2023, Jahanshahi
filed another Motion to Tax Costs and Strike Lewin’s Memorandum of Costs on
Appeal.
Lewin
filed an Opposition to Jahanshahi’s Amended Motion on June 12, 2023, and
Jahanshahi filed a Reply on June 16, 2023.
On
June 26, 2023, the Court found that, due to the extensive litigation in the
case, it was not clear what relief was sought through Jahanshahi’s Motion. (6-26-23 Minute Order.) The Court continued the hearing and allowed
Jahanshahi another opportunity to file a consolidated motion, in place of the
Motion and Amended Motion set for hearing on June 26, 2023, clearly stating
which Memorandum of Costs on Appeal he is moving to strike and presenting
arguments limited to the relief being sought.
(Ibid.) The Court also
permitted opposition and reply papers in response to the newly filed
motion. (Ibid.)
On
July 12, 2023, Jahanshahi filed a Supplemental Motion to Tax Costs and to Strike
Lewin’s Memorandum of Costs on Appeal, as well as Request for Sanctions (“Supp.
Motion”). Lewin filed an Opposition on
July 20, 2023, and Jahanshahi filed a Reply on July 27, 2023.
On
July 27, 2023, Lewin filed another Opposition and Jahanshahi filed a Reply on
July 31, 2023.
On
August 3, 2023, the Court noted that instead of clarifying the matter requested
in the Court’s previous order, Jahanshahi asserted that the “motion is
clear and on point, and should be decided on its merit, without any further
briefing and providing an opportunity to Lewin to correct his arguments and its
deficiencies in his opposition.” (8-3-23 Minute Order; Supp. Mot. p. 3.) Jahanshahi also raised novel concerns about
the Court’s jurisdiction, which did not have merit. (8-3-23 Minute Order.) Given that Jahanashahi had not complied with
the Court’s Order to file supplemental papers clarifying his Motion, the Court
denied the Motion set for hearing on August 3, 2023. (8-3-23 Minute Order.)
II.
Legal
Standard
“‘The right to recover any of the costs of a civil action
“is determined entirely by statute.”’ [Citation.] “‘[I]n the absence of an
authorizing statute, no costs can be recovered by either party.”’ [Citation.]
‘Section 1032 governs the award of costs of trial court litigation.’
[Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.)
“Except as otherwise expressly provided by
statute, a prevailing party is entitled as a matter of right to recover costs
in any action or proceeding.” (Code Civ.
Proc., § 1032(b).) (Emphasis added.) Code of Civil Procedure § 1032(a) defines a
“prevailing party” as “[1] the party with a net monetary recovery, [2] a
defendant in whose favor dismissal is entered, [3] a defendant where neither
plaintiff nor defendant obtains any relief, and [4] a defendant as against
those plaintiffs who do not recover any relief against that defendant.”
“‘[T]he trial court has no discretion to deny prevailing
party status to a litigant who falls within one of the four statutory
categories in the first [sentence] of the provision. “As rewritten [in 1986],
section 1032 now declares that costs are available as a ‘matter of right’ when
the prevailing party is within one of the four categories designated by
statute.”’” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 738.)
Costs may also be recovered on
appeal. According to Code of Civil
Procedure § 1034(b), the Judicial Council establishes the allowable costs on
appeal and the procedure for recovering these costs. California Rules of Court, rule 8.278(a)(5) permits the
Court of Appeal to award or deny costs as it deems proper. Pursuant to
rule 8.278(a)(2), “[t]he prevailing party is the respondent if the Court of
Appeal affirms the judgment without modification or dismisses the appeal.” Recoverable costs include, if
reasonable, the cost of filing fees, the amount the party paid for any portion
of the record; the cost to produce additional evidence on appeal, and the cost
to notarize, serve, mail and file the record, briefs, and other papers. (Cal. Rules of Court, rule
8.278(d)(1)(A)-(E).) A party claiming
costs on appeal must file and serve a verified memorandum of costs pursuant to
rule 3.1700, within 40 days after issuance of the remittitur. (Cal. Rules of
Court, rule 8.278(c).)
Any motion to strike or tax costs must
be served and filed 15 days after service of the memorandum, plus an additional
5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rules 8.278(c)(2), 3.1700(b)(1).)
“Unless objection is made to the entire
cost memorandum, the motion to strike or tax costs must refer to each item
objected to by the same number and appear in the same order as the
corresponding cost item claimed on the memorandum of costs and must state why
the item is objectionable.” (Cal. Rules
of Court, rule 3.1700(b)(2).) If the items appearing in a cost bill appear to be proper
charges, the burden is on the party seeking to tax costs to show that they were
not reasonable or necessary. (Ladas
v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761,
773-74.) On the other hand, if the items
are properly objected to, they are put in issue and the burden of proof is on
the party claiming them as costs. (Id.)
III.
Discussion
On
June 26, 2023, the Court found that, due to the extensive litigation in the
case, it was not clear what relief was sought through Jahanshahi’s Motion. (6-26-23 Minute Order.) The Court declined to speculate which
Memorandum of Costs the Motion was directed toward and continued the hearing to
allow Jahanshahi another opportunity to file a consolidated motion, in
place of the Motion and Amended Motion set for hearing on June 26, 2023. (Ibid.) The Court requested that Jahanshahi clarify
which Memorandum of Costs on Appeal he is moving to strike and present
arguments limited to the relief being sought.
(Ibid.) The Court also
permitted opposition and reply papers in response to the newly filed
motion. (Ibid.)
On
July 12, 2023, Jahanshahi filed a Supplemental Motion. Jahanshahi states that he is filing the
supplemental papers “without waiving his right to the jurisdiction of this
court to hear this matter based on the verbal peremptory challenge made to Hon.
Judge Rolf M. [Treu] on June 26, 2023.”
(Supp. Mot. p. 3.) Jahanshahi
states that his prior “motion is clear and on point, and should be decided on
its merit, without any further briefing and providing an opportunity to Lewin
to correct his arguments and its deficiencies in his opposition.” (Ibid.) He adds that “the amended motion before this
Court as it is fully briefed on all sides and it is prime for the hearing and
adjudication of the motion.” (Ibid.)
Instead
of clarifying the matters requested by the Court on June 26, 2023, Jahanshahi
raises three novel concerns about the Court’s jurisdiction and Lewin’s
continuous violations of court procedure, statutes, and rules. (Ibid.)
First, Jahanshahi
argues that under the Due Process Clause of the Fourteenth Amendment of the
U.S. Constitution, the California Constitution, Article I, Section 7,
California Rules of Court, rule 10.601, and Local Rules of Court, rule 2.3, et
seq., 3.2, 3.3, his rights have been violated by the assignment of a new judge
to this Department without prior notice.
(Ibid. at pp. 3-4.)
Second, Judge Treu
abused his discretion in failing to honor Jahanshahi’s peremptory challenge on
June 26, 2023. (Ibid. at p. 3.) Jahanshahi argues that he had not exercised a
peremptory challenge in this matter and thus, due to Judge Treu’s denial of
this right, the Court’s June 26, 2023, order is void. (Ibid. at pp. 3-4.)
Third, Jahanshahi
argues that Lewin has continuously violated the procedures and rules of the
court despite multiple warnings. (Ibid.
at pp. 3-4.) Lewin’s violations include
failure to comply with Code of Civil Procedure § 1013(b) and California Rules
of Court, rule 2.110. Thus, the Court
must impose sanctions.
Lewin opposes the
Motion. He states that the Motion must
be denied given that Jahanshahi has failed to cure the deficiencies noted by
the Court’s previous order. (Oppos. pp.
1-2.) Defendant argues that Judge Treu
did not rule on the facts of the case and merely continued the hearing to allow
Jahanshahi to clarify the relief sought through the Motion. (Ibid. at p. 2.) Moreover, Judge Treu was temporarily assigned
to hear the Motion as Judge Chilton has retired, and he may not be the judge to
rule on the merits of the Motion on August 3, 2023. (Ibid.) Lewin also argues that Jahanshahi’s statement
that he was exercising his first peremptory challenge is false because, on
February 21, 2023, he filed a Motion or in the Alternative Application to
Recuse for Cause or Disqualify Appellate Division Judges and Judges of the
Superior Court of California. (Ibid.
at p. 3) Thus, he is barred from seeking
another disqualification. (Ibid.) Even if he is not barred from seeking
disqualification, his oral motion must comply with Code of Civil Procedure §
170.6(a). (Ibid. at p. 4.) Finally, Jahanshahi’s recourse would be to
seek reconsideration of the Order or a writ of mandamus from appellate court,
which Jahanshahi has not done. (Ibid.) Finally, Lewin proceeds with arguments as to
why Jahanshahi’s Motion should be denied.
In his Reply,
Jahanshahi argues that the Opposition should be disregarded as it was not
timely. The Court finds that the
Opposition was served timely on July 20, 2023, by overnight mail, as it was due
on July 21, 2023. (Code of Civ. Proc. §
1005(b).) Jahanshahi argues that once a
judge is challenged pursuant to § 170.6, the judge does not have any authority
to make any orders, thus, Judge Treu’s order requesting supplemental papers was
an abuse of his discretion and void.
(Reply pp. 2-3.) Jahanshahi also
argues that Judge Treu ordered Lewin to correct the deficiencies in his
original opposition; however, Lewin has failed to comply with the Court’s
order. (Ibid. at p. 3.) Jahanshahi states that “Lewin’s belated
opposition is nothing but a kitchen sink variety, vague, incoherent, and
procedurally defective for the blatantly, knowingly, intelligently, and
wantonly making false statements of the law, facts and evidence to mislead the
court.” (Ibid.) He argues that the Court should impose
sanctions for Lewin’s violations of court proceedings and rules, as listed in
the Reply. (Ibid. at p. 4.)
The Court finds that Jahanshahi has
not complied with the Court’s June 26, 2023, Order and has blatantly refused to
clarify the relief he seeks through the Motion.
As previously stated, that Court cannot speculate as to the relief
sought and attempt to discern relevant arguments.
Regarding Jahanshahi’s arguments
that Judge Treu abused his discretion in continuing the hearing and ordering
Jahanshahi to file supplemental papers, the Court makes the following
findings. First, Jahanshahi has not
presented the Court with any legal authority that requires the Court to notify
parties that a temporary judge has been assigned to hear a Motion. California Rules of Court, rule 10.603
governs Court assignments and provides the presiding judge with the authority
to take necessary steps to ensure “the effective management and administration
of the court” including “[a]ssign[ing] judges to departments” and
“[p]erform[ing] all acts necessary to accomplish the duties specified by the
rules of court.” (Cal. Rules of Court,
rule 10.603(a)-(b).) Moreover, “[t]he
presiding judge has ultimate authority to make judicial assignments,” including
“[d]esignat[ing] a judge to preside in each department” (Ibid. at 10.603(c)(1)(A).) “In making judicial assignments, the
presiding judge must take into account” the factors outlined in rule
10.603(c)(1)(A)(i)-(vii), including “[t]he needs of the public and the court,
as they relate to the efficient and effective management of the court's
calendar.” The presiding judge may
“[d]esignate a judge to act if by law or the rules of court a matter is
required to be presented to or heard by a particular judge and that judge is
absent, deceased, or unable to act.” (Ibid.
at 10.603(c)(1)(E).) Accordingly, the
presiding judge had the authority to assign Retired Judge Rolf M. Treu, as a
temporary judge to preside over Department 25, following the retirement of
Judge Chilton. The Court also retains
the authority to assign other temporary judges to hear the Motion, including
Judge Thomas Griego.
Jahanshahi also argues that Judge
Treu failed to address his peremptory challenge pursuant to Code of Civil
Procedure § 170.6. According to §
170.6(a)(4), a party may move to disqualify one judge without cause by
exercising the right to peremptory challenge the judge. Any subsequent challenges must present a
reason for disqualification pursuant to §§ 170.1-170.5. The Court finds that Jahanshahi filed a
Motion/Application to Recuse for Cause or Disqualify Appellate Division Judges
and Judges of Superior Court of California on February 21, 2023. Accordingly, the Court finds that his
peremptory challenge was properly denied on June 26, 2023. The Court also notes that “[t]he
determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought only by the parties to the proceeding. The
petition for the writ shall be filed and served within 10 days after service of
written notice of entry of the court’s order determining the question of
disqualification. If the notice of entry is served by mail, that time shall be
extended as provided in subdivision (a) of Section 1013.” Thus, Jahanshahi may not challenge the Court’s
order through supplemental papers, as the Court’s order may only be reviewed by
a writ of mandate.
For these reasons and due to
Jahanshahi’s failure to comply with the Court’s order to file supplemental
papers, the Motion is DENIED.
IV.
Conclusion
& Order
For the foregoing reasons,
Plaintiff/Cross-Defendant/Appellant
Jahanshahi’s Motion to Tax Costs and Strike Memorandum of Costs on Appeal is DENIED.
Moving party is ordered to give
notice.