Judge: Mark H. Epstein, Case: 19SMCV00681, Date: 2023-09-18 Tentative Ruling

Case Number: 19SMCV00681    Hearing Date: September 18, 2023    Dept: I

The ex parte application for a supplemental writ against Flower Boy is GRANTED.  The court notes that this is not really ex parte, as the court has received full briefing.

The court is very troubled by the supplemental declaration of September 11, 2023.  In it, plaintiff documents that the representations made by Knibb and Knibb’s counsel to the court at the last hearing were simply lies.  There is really no nicer way of putting it.  Giving Knibb’s counsel the benefit of the doubt (which the court does), the court suspects that counsel was not aware that the statements and representations made over counsel’s signature were false; rather, counsel believed what the client said.  That is sufficient to absolve counsel of blame, and the court does not blame counsel.  But the court does blame Knibb. 

For the reasons set forth in the supplemental papers, Flower Boy can be considered Knibb’s alter ego for these purposes and thus for the same reasons that there is a writ as to Knibb, there will be a writ as to Flower Boy.  It will issue forthwith.

But that is not enough.  Because Knibb has apparently deliberately lied and misled the court, it is plain that there is no way that the court can countenance Knibb’s remaining in the case and the court must question whether the answer ought to be struck and default entered.  Normally, the court could have relied on Knibb’s counsel to investigate Knibb’s factual statements so that there was at least some degree of reliance the court could place on representations, but counsel has elected not to fulfill that role.  The court does not blame counsel; where counsel discovers that Knibb is seeking to cause counsel to make a false representations to the court, an ethical dilemma might ensue.  But even if counsel is not acting wrongfully—and the court is not finding wrongful conduct by counsel—it means that Knibb’s actions have demonstrated that potentially nothing short of a terminating sanction is appropriate.  Without being able to rely on either the party or its counsel not to make false statements to the court, the court is left with few options.

Accordingly, on its own motion, the court will set an OSC re: striking the answer and holding Knibb in default.  (By “Knibb,” the court means any Knibb-related entity or person.)  A response to the OSC may be filed 9 court days before the OSC.  If plaintiff chooses to reply, plaintiff may do so 5 court days before the OSC.