Judge: Melvin D. Sandvig, Case: PC056308, Date: 2022-10-27 Tentative Ruling

Case Number: PC056308    Hearing Date: October 27, 2022    Dept: F47

Dept. F47

Date: 10/27/22

Case #PC056308

 

MOTION FOR SANCTIONS

 

Motion filed on 6/23/22.

 

MOVING PARTY: Plaintiffs Charles Bacquet and Victoria Bacquet

RESPONDING PARTY: Defendant Robert Aleksanyan

NOTICE: ok

 

RELIEF REQUESTED: An order, pursuant to CCP 128.7, imposing sanctions in the amount of $7,500.00 against Defendant Robert Aleksanyan and his attorney of record, Peter C. Bronstein and the Law Offices of Peter C. Bronstein, jointly and severally in this case.  Additionally, Plaintiffs request the dismissal of the Motion to Vacate Entry of Default and/or Judgment with prejudice. 

 

RULING: The motion is granted, in part, and denied, in part.

 

This action arose out of a contract between Plaintiffs Charles Bacquet and Victoria Bacquet (Plaintiffs) and Defendant Robert Aleksanyan (Defendant) for the construction of a pool.  Plaintiffs alleged that Defendant represented verbally and in writing that he was a licensed contractor when he was not, and has never been, a licensed contractor.  Plaintiffs alleged that after the completion of the pool, it exhibited major damage as a result of poor workmanship.

 

As a result, on 4/2/15, Plaintiffs filed this action for: (1) Breach of Written Contract,

(2) Restitution in Violation of Business & Professions Code 7031, (3) Fraudulent Inducement,

(4) Fraud, (5) Negligence Misrepresentation, (6) Negligence, (7) Breach of Implied Warranty of Fitness and (8) Violation of Business & Professions Code 17200, et seq.  On 6/9/15, Plaintiffs filed their First Amended Complaint for: (1) Breach of Written Contract, (2) Restitution in Violation of Business & Professions Code 7031, (3) Fraudulent Inducement, (4) Fraud,

(5) Negligence Misrepresentation, (6) Negligence, (7) Breach of Implied Warranty of Fitness, (8) Violation of Business & Professions Code 17200, et seq. and (9) Recovery on Contractor’s State License Bond.

 

On 6/15/15, Defendant was served with the First Amended Complaint via substituted service at 6142 Teesdale Avenue, North Hollywood, California 91606 with mailing occurring on 6/17/15.  (See Proof of Service, Declaration of Diligence and Proof of Service by Mail filed on 8/26/15).   On 12/4/15, default was entered against Defendant.  (See Request for Entry of Default filed on 12/4/15).  Defendant appeared at the 2/10/16 Case Management Conference.  (See 2/10/16 Minute Order).  On 12/11/19, Default Judgment was entered by the Court against Defendant and in favor of Plaintiffs in the amount of $286,679.94.  (See Default Judgment filed 12/11/19).

 

On 12/9/21, Defendant filed a motion seeking an order, pursuant to CCP 473 and CCP 473.5, vacating the entry of default and/or default judgment entered against him in this case.  Plaintiffs opposed that motion.  On 6/3/22, this Court denied Defendant’s motion to vacate the default and default judgment entered against him.  (See 6/3/22 Minute Order). 

 

On 6/1/22, Plaintiffs served Defendant with the instant motion which seeks an order, pursuant to CCP 128.7, imposing sanctions in the amount of $7,500.00 against Defendant Robert Aleksanyan and his attorney of record, Peter C. Bronstein and the Law Offices of Peter C. Bronstein, jointly and severally in this case.  Additionally, Plaintiffs request the dismissal of the Motion to Vacate Entry of Default and/or Judgment with prejudice.  Pursuant to the “safe-harbor” period set forth in CCP 128.7(c)(2), Plaintiffs filed the instant motion on 6/23/22, after Defendant failed to withdraw the motion to vacate default and default judgment.    

 

Defendant’s counsel has, again, failed to comply with the requirement to bookmark the exhibits attached to the declaration filed in support of the opposition.  (See 6/3/22 Minute Order, p.2; 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil, “TECHNICAL REQUIREMENTS”); CRC 3.1110(f)(4). 

Pursuant to CCP 128.7 “by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper” with the court, an attorney certifies that, among other things, the filing is not being offered “for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” and that “[t]he allegations and other factual contentions have evidentiary support . . . [and] [t]he denials of factual contentions are warranted on the evidence.”  CCP 128.7(b)(1), (3), (4).

 

If, after notice and a reasonable opportunity to respond, the court determines that CCP 128.7(b) has been violated, sanctions may be imposed on the attorneys, law firms, or parties that have violated or are responsible for the violation.  CCP 128.7(c).  In determining whether such sanctions should be imposed, the court must consider whether the party seeking sanctions exercised due diligence.  Id.  Sanctions which may be imposed include “the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion” and “some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.”  CCP 128.7(c)(1), (d).

 

A court may impose sanctions on an attorney for filing a motion that was “indisputably without merit, either legally or factually.”  Peake (2014) 227 CA4th 428, 440.  “A claim is factually frivolous if it is not well grounded in fact.”  Id.  “[T]o obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.  A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit.”  Id. (internal citations omitted).

 

The underlying motion to vacate the default and default judgment was based on two grounds.  (See 6/3/22 Minute Order, p.3).  First, Defendant contended that because he filed for bankruptcy before judgment was entered in this case, the judgment is void because Plaintiffs did not receive relief from the automatic stay.  However, Defendant cited no authority for this proposition in the motion.  Id.  Defendant claimed that he did not list Plaintiffs in the Schedules because he was unaware Plaintiffs were creditors and because he was unaware of this lawsuit.  Id.  However, as noted by this Court, the evidence indicated that Defendant was properly served with the summons and complaint in this action, Defendant was aware of this action and actually appeared at a hearing in this action before default judgment was entered.  Id.  With the reply to the opposition to the motion to vacate, Defendant included an unauthenticated copy of what he claimed to be a ruling from the United States Bankruptcy Court which purportedly ruled that this Court’s judgment is void.  Id.  However, Defendant cited no authority for the proposition that the Bankruptcy Court’s ruling is binding on this Court and there was no order instructing this Court to vacate its judgment.  Id. 

 

Second, Defendant contended that the judgment against him is void because he was never served in this action.  (6/3/22 Minute Order, p.3).  However, this Court found Defendant’s claim that he was never served was not supported by the evidence, particularly because Defendant appeared at the 2/10/16 Case Management Conference.  Id.    

 

At the time Defendant executed his declaration in support of the underlying motion to vacate, based on his 2/10/16 at the Case Management Conference, Defendant was seemingly aware that he was falsely stating that he was unaware of the action until November 2021.  Notably, Defendant has not submitted a declaration in support of the opposition to this motion claiming that he “forgot” about the appearance.  Even if attorney Bronstein was unaware of the falsity of his client’s claim regarding having never been served and lack of knowledge of this action when the underlying motion to vacate was filed on 12/9/21, attorney Bronstein was made aware of same on 5/21/22 via the email from Plaintiffs’ counsel.  (See Yoffe Decl., Ex.D, E; Bronstein Decl., Ex.I-J).  Rather than withdrawing the motion, which was based on a false declaration, and filing a new motion, which was suggested by Plaintiffs’ counsel, attorney Bronstein chose to proceed with the motion which was supported by the false declaration.  (See Bronstein Decl., Ex.I (5/21/22 email)).  In his 5/22/22 email, attorney Bronstein claims that “[i]f necessary, [he’ll] simply amend the pending Motion to add that the Judgment is void because it violates the automatic stay.”  (Bronstein Decl., Ex.J).  However, attorney Bronstein did not do that.  Instead, he offered improperly and/or unsupported arguments in the reply to the opposition to the underlying motion to vacate.

 

The Court finds that Plaintiffs acted diligently upon learning of the underlying motion to vacate on 5/21/22.  (See Yoffe Decl. ¶¶7-9).

 

Based on the foregoing, the Court finds that Plaintiffs are entitled to an award of monetary sanctions against Defendant, attorney Bronstein and the Law Offices of Peter C. Bronstein, jointly and severally, in the amount of $7,500.00 for the attorney’s fees incurred in bringing the instant motion and opposing the motion to vacate.  (See Yoffe Decl. ¶10); CCP 128.7(c)(1).  The request to dismiss the underlying motion to vacate with prejudice is denied.  The motion to vacate was already ruled upon on 6/3/22.