Judge: Lee W. Tsao, Case: 21NWCV00424, Date: 2023-08-03 Tentative Ruling
Case Number: 21NWCV00424 Hearing Date: August 3, 2023 Dept: C
MIR v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY
CASE NO.: 21NWCV00424
HEARING: 08/03/23
#1
I.
Defendants STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; MICHAEL TIPSORD; PATRICK GRIFFITH; and LISA G. ROSENWASSER’s
Motion for Sanctions Pursuant to CCP §128.5 is DENIED.
II.
Defendants STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; MICHAEL TIPSORD; PATRICK GRIFFITH; and LISA G. ROSENWASSER’s
Motion for Sanctions Pursuant to CCP §128.7 is GRANTED.
Moving Party to give notice.
Defendants’ Requests for Judicial Notice are GRANTED. (Cal.
Ev. Code §452.)
Absent prejudice to the Moving Parties, and in the interests
of justice and judicial efficiency, the Court has read and considered
Plaintiff’s untimely Opposition filed and served on July 28, 2023— due by July
21, 2023. (CCP §1005(b).)
The relevant procedural history of this case is as follows:
·
On November 13, 2002, Judge Josh M. Fredricks
formally declared Plaintiff JEHAN ZEB MIR (“Plaintiff” or “Mir”) a vexatious
litigant in LASC case TC015566 Mir v. Law Office of Rushfeld, Shelly &
Drake, et al.
·
On February 24, 2003, Justice Roger W. Boren
formally declared Mir a vexatious litigant again in Court of Appeal case
BC48849 Mir v. Pomona Valley Hospital Med. Center, et al. Justice Boren’s
prefiling order provided: “[w] order that henceforth Jehan Zeb Mir may not file
any litigation in the courts of this state in propria persona or through an
attorney without first obtaining leave of the presiding judge of the court in
which the litigation is proposed to be filed.” (Mir v. Pomona Valley Hosp.
Medical Center (Cal.Ct.App., Feb. 24, 2003, No B148849) 2003 WL 403301, at
*23.) Accordingly, Mir is required to obtain prefiling permission for new
litigation filed in propria persona or through an attorney.
·
On June 29, 2021, Mir filed this action,
21NWCV00424, Mir v. State Farm Mutual Automobile Insurance Company, through
counsel. On January 25, 2022, Mir filed a substitution of attorney noting he
had become a self-represented litigant.
·
On August 22, 2022, Judge David J. Cowan, then
sitting in Department 1, issued a nine-page Court Order Re: Request by Jehan
Zeb Mir to Vacate Prefiling Order. The Order noted Department 1 is authorized
to consider whether to vacate the 2002 prefiling order, but must apply to the
Administrative Presiding Justice of the Second District Court of Appeal to
vacate the 2003 prefiling order. The Court denied Mir’s request to vacate the
2002 prefiling order, noting that Mir failed to obtain prefiling permission in
this case and three additional cases, and set an Order to Show Cause Re:
Dismissal or Retroactive Authorization in civil cases 21STCV27787, 21NWCV00424,
21STCV03646, and 20STCV17339 for violation of the February 24, 2003 prefiling
order.
·
On September 12, 2022, Judge Elaine Lu held a
hearing on the OSCs in each case and took the matter under submission. Judge
Lue issued an order on September 13, 2022, as corrected nunc pro tunc in
21NWCV00424 on September 27, 2022, in each case discharging the OSCs and
dismissing 21STCV27787, 21NWCV00424, 21STCV03646 and 20STCV17339 without
prejudice.
·
On September 22, 2022 in 21NWCV00424 and
20STCV17339 and on September 26, 2022 in 21STCV03643 and 21STCV27787, Mir filed a “Motion for
Reconsideration of Order to Dismiss Complaint” directed at the September 13,
2022 orders. On December 8, 2022, Judge Lu held the hearings and took the
matters under submission. On January 18, 2023, Judge Lu issued an identical
“Order Re: Plaintiff’s Motions for Reconsideration of the August 22, 2022 and
September 13, 2022 Orders” in each case. Mir’s Motions for Reconsideration of
the September 13, 2022 Order in civil cases 21STCV27787, 21NWCV00424,
21STCV03643, and 20STCV17339 were DENIED.
·
On February 10, 2023, Mir filed a “Notice &
Motion for Reconsideration of Order Denying Reassignment of the Case.” On
February 15, 2023, Mir filed the February 10, 2023 papers again, and a new “Notice
of Motion for Reconsideration of Ord[e]r Denying Reassignment of the Case.” On
June 1, 2023, Judge Michelle Williams Court ruled on Mir’s Motion(s). Judge
Court ruled, in relevant part: “The Court finds no basis to reconsider any of
the prior orders entered in this matter and the motion is DENIED, without
prejudice.”
On April 7, 2023, Defendants served the subject Motions for
Sanctions onto Mir, seeking sanctions under CCP §§128.5 and 128.7, for Mir’s
filing of a “frivolous” Motion for Reconsideration. Defendants waited until the
“safe harbor” period had passed, and then filed the subject Motions for
Sanctions on May 1, 2023. As indicated above, Judge Court denied Mir’s February
15, 2023 Motion for Reconsideration without prejudice on June 1, 2023.
Defendants contend that Mir’s Motion for Reconsideration was
filed in violation of CCP §§128.5 and 128.7, in that it was patently frivolous.
Defendants specifically argue that Mir’s Motion for Reconsideration merely
restates the same arguments that had already been rejected by this Court in
order to delay these proceedings and increase the cost of litigation, and that
there were absolutely no new facts or law presented by way of the Motion.
Defendants maintain that Mir had the
opportunity to withdraw his February 15, 2023 Motion for Reconsideration and
refused/failed to do so. The Motion for Reconsideration was filed, opposed, and
argued. Mir did not utilize the safe harbor period to withdraw the Motion for
Reconsideration and avoid sanctions. Rather, Mir forced Defendants to incur the
time and expense of opposing and attending the hearing on Mir’s meritless
February 15, 2023 Motion for Reconsideration.
In a singular
untimely Opposition addressing both Motions for Sanctions, Mir seemingly argues
that the arguments raised in the Motion for Reconsideration were not frivolous,
and that the supposed offending Motion for Reconsideration was actually meritorious by way of achieving a
denial “without prejudice.” Mir further maintains that sanctions are actually warranted
against Defendants.
§128.5 Motion for
Sanctions
“(a) A trial court may order a party, the party’s attorney,
or both to pay the reasonable expenses, including attorney’s fees, incurred by
another party as a result of actions or tactics, made in bad faith, that are
frivolous or solely intended to cause unnecessary delay…... (b)…. (1) ‘Actions
or tactics’ include…the making or opposing of motions or the filing and service
of a complaint, cross-complaint, answer, or other responsive pleading…... (2)
‘Frivolous’ means totally and completely without merit or for the sole purpose
of harassing an opposing party.” (CCP §128.5(a), (b)(1-2).)
The fact that a motion lacks
merit is not enough by itself to justify an award of sanctions under Section
128.5. It is error to award sanctions if it was not unreasonable for the moving
party to think the issues raised were arguable, and there is no evidence of
subjective bad faith or improper motive. (Garcia v. Sterling (1985) 176
Cal.App.3d 17, 20.) “[A] showing that a party’s action or tactic is totally and
completely without merit does not settle the issue of whether the action or
tactic was in bad faith. Such a showing is certainly evidence that the action
is brought in bad faith [Citation], because a trial court is entitled to infer
from the utter lack of merit that the party knew that it lacked such merit, and
yet continued to pursue the action for some ulterior motive. However, the trial
court may not be willing to draw the inference if it is convinced that, despite
the complete lack of merit, the party was acting in the good faith (albeit
erroneous and even unreasonable) belief that the action was meritorious. Thus,
the inference of bad faith is one which the trial court may make, but it is not
mandatory that it do so.” (Summers v. City of Cathedral City (1990) 225
Cal.App.3d 1047, 1073.)
The Motion for CCP §128.5
sanctions is DENIED. Based on the record before it, Defendants have not
affirmatively established that Plaintiff Mir acted with subjective bad faith in
filing and arguing the subject Motion for Reconsideration. Although Plaintiff’s
Motion for Reconsideration was ultimately unsuccessful, this fact is not enough
to warrant sanctions under CCP §128.5.
§128.7 Motion for Sanctions
“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…is certifying 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.” (CCP
§128.7(b). CCP §128.7(c) provides: “If, after notice and a reasonable
opportunity to respond, the court determines that subdivision (b) has been
violated, the court may…impose an appropriate sanction upon the attorneys, law
firms, or parties that have violated subdivision (b) or are responsible for the
violation.”
“Code of Civil Procedure section
128.7 imposes a lower threshold for sanctions than is required under Code of
Civil Procedure section 128.5. This is because Code of Civil Procedure section
128.7 requires only that conduct be ‘objectively unreasonable,’ while Code of
Civil Procedure section 128.5 also requires a showing of subjective bad faith.
[Internal Citation.]” (Gullemin v. Stein (2002) 104 Cal.App.4th 156,
167.)
In its ruling on Mir’s Motion for Reconsideration, the Court
expressly held that “Mir Presents No Basis to Reconsider Any Order”. (Order,
06/01/23.) Indeed, Mir re-asserted many of the same or similar arguments raised
and addressed by various previous judges and departments. Accordingly, this Court
finds that Plaintiff’s February 15, 2023 was objectively unreasonable, and on
this basis, grants Defendants Motion for Sanctions under CCP §128.7.
Defendants indicate
that the hourly rate of their counsel, John T. Meno of the Pacific Law Partners
is $300/hr., and that Mr. Meno spent approximately 11 hours preparing the
instant Motion and its accompanying papers. The court finds this amount is reasonable. Accordingly, reasonable sanctions are awarded
against Plaintiff JEHAN ZEB MIR in the sum of $3,300.00.
The Motion is
GRANTED under CCP §128.7.