Judge Mark E. Windham, Case Number: LAM01K18855, Date: 2023-11-27 Tentative Ruling

Judge: Mark E. Windham, Case: LAM01K18855, Date: 2023-11-27 Tentative Ruling

Case Number: LAM01K18855 Hearing Date: December 12, 2023 Dept: 26

LAM01K18855

MOTION FOR STAY AND CORRECTIVE ACTION

(CRC Rule 3.515; CCP § 404.5)

TENTATIVE RULING:

Defendants Warren Summer and Karin Winkler’s Motion to Stay Case and Take Corrective Action Regarding Lawyer Misconduct is DENIED IN PART AND GRANTED IN PART. THE REQUEST TO STAY THE ACTION IS DENIED. THE REQUEST TO TAKE CORRECTIVE ACTION IS GRANTED AND PLAINTIFF IS WARNED THAT FURTHER MISCONDUCT WITH RESPECT TO PROOFS OF SERVICE WILL BE REPORTED TO THE STATE BAR OF CALIFORNIA.

ANALYSIS:

On September 24, 2001, Plaintiff Thomas Beck, Esq. (“Plaintiff”) filed the instant action for breach of retainer agreement against Defendants Warren Summer and Karin Winkler (“Defendants”). Judgment was entered on January 8, 2003. Acknowledgment of Satisfaction of Judgment (Partial) was filed on January 5, 2006. Other documents, including Applications and Orders for Appearance and Examination were subsequently filed. The judgment was renewed on January 8, 2013. Defendants’ Motion to Vacate Renewal of Judgment was denied on February 22, 2023. (Minute Order, 02/22/23.)

Defendants filed a Notice of Appeal of the February 22, 2023 order on June 5, 2023. Defendants filed the instant Motion to Stay Case and Take Appropriate Corrective Action Regarding Lawyer Misconduct on August 11, 2023. The Motion was originally set for hearing on November 8, 2023 and continued with notice to November 27, 2023. (Minute Order, 11/08/23.) Plaintiff filed an opposition on October 24, 2023 and Defendants replied on November 3, 2023.

Discussion

The motion is brought pursuant to Cal. Rules of Court rule 3.515 and Code of Civil Procedure section 404.5. Neither authority is grounds to stay this action pending Defendants’ appeal of the Court’s order on February 22, 2023 denying their Motion to Vacate Renewal of Judgment. Rule 3.515 states that “[a]ny party may file a motion for an order under Code of Civil Procedure section 404.5 staying the proceedings in any action being considered for, or affecting an action being considered for, coordination, or the court may stay the proceedings on its own motion.” (Cal. Rules of Court, rule 3.515(a).) The rule, therefore, expressly applies to actions being considered for coordination. This action is neither being considered for coordination nor affects an action being considered for coordination. Code of Civil Procedure section 404.5 is likewise directed only at actions being considered for coordination: “Pending any determination of whether coordination is appropriate, the judge making that determination may stay any action being considered for, or affecting an action being considered for, coordination.” (Code Civ. Proc., § 404.5.)

Defendants’ request for “corrective action” against Plaintiff is brought pursuant to the Code of Judicial Ethics, Canon 3D, which states that a judge shall take corrective action whenever they have “personal knowledge, * or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct . . . .” (Cal. Rules of Prof. Conduct, Canon 3, § D(2).) The memorandum, however, does not set forth the particular misconduct or rule violations that trigger this obligation by the court. Instead, it refers to a 12-page declaration that mostly reiterates Defendants’ contention that the renewal of judgment should be vacated. (Motion, Summer/Winkler Decl., ¶¶3-4, 8-10.) The declaration also refers to Plaintiff’s service of papers despite declaring under penalty of perjury that he is not a party to this action. In opposition, Plaintiff does not address this misconduct. Accordingly, the Court takes the following corrective action: if Plaintiff signs any other proof of service despite stating under penalty of perjury that he is not a party to this legal action, the Court intends to report Plaintiff to the State Bar of California.

Conclusion

Court clerk to give notice.