Judge: Michael Shultz, Case: 23STCV26388, Date: 2024-12-10 Tentative Ruling
Case Number: 23STCV26388 Hearing Date: December 10, 2024 Dept: 40
23STCV26388 J.P. v. Eastern
Revenue, Inc., et al.
[TENTATIVE]
ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS
AGAINST DEFENDANTS, EASTERN REVENUE, INC., AND KYLE SHANAHAN PURSUANT TO CODE
OF CIVIL PROCEDURE § 128.5
I.
BACKGROUND
On
October 2, 2024, Plaintiff filed this motion (CRS -2792) for sanctions against
Defendants set for hearing November 5, 2024. On that date, Judge
Richardson continued the hearing to
December 10, 2024.
II.
ARGUMENTS
Plaintiff
asks for imposition of sanctions pursuant to Code Civ. Proc., § 128.5 against
Defendants and their counsel, Marcus Dong, for their use of bad faith tactics
and misuse of the discovery process. Attorney Dong demanded that other counsel
be included as counsel for Defendants on email communication. That attorney, Graeme
Hogan, claimed to represent Defendants and intended to transfer this matter to
Georgia. Plaintiff contends Mr. Hogan is not a California lawyer, and although
he and Mr. Dong stated that Mr. Hogan would apply for admission pro hac vice
as counsel for Defendants, this has not occurred.
Plaintiff
argues that Defendants engaged in this conduct to delay the taking of Defendant
Eastern’s deposition scheduled for July 24, 2024, at which Defendant failed to
appear. Defense counsel has not responded to Plaintiff’s request for additional
dates and times for the deposition of Defendant Eastern.
In
opposition, Defendants argue that this is the third time in less than six
months that Plaintiff has burdened the court and forced Defendants to oppose a
motion for sanctions. On June 18, 2024, the court denied Plaintiff’s motion to
compel Defendant’s deposition for Plaintiff’s failure to meet and confer. On
October 10, the court denied Plaintiff’s request for further responses to a
document request for failure to meet and confer.
Defendants
contend there is no basis for sanctions under Code Civ. Proc., § 128.5 as there
is no subjective bad faith conduct. Defendants ask the court to deny
Plaintiff’s motion and award Eastern its attorney fees under Code Civ. Proc., §
128.5 totaling $3,787.50.
In
reply, Plaintiff argues that Mr. Hogan is not a California-licensed attorney and cannot represent Eastern at its deposition
without an order granting admission pro hac vice. Mr. Dong assisted Mr.
Hogan in the unauthorized practice of law. Eastern did not respond to
Plaintiff’s request for dates and times for Eastern’s deposition. Mr. Dong does
not return Plaintiff’s counsel’s calls to meet and confer and has refused to communicate
with Plaintiff’s counsel.
III.
LEGAL
STANDARDS
The court has
discretion to "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.” (Code Civ. Proc., § 128.5, subd. (a).)
“Frivolous” is defined as “"totally and completely without merit or for
the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).) The section does not apply to
disclosures and discovery requests, responses, objections, and motions.” (Id.). subd (e).)
The
“tactics” complained of by Plaintiff consists of defense counsel’s failing to
respond to an email to provide dates for Eastern’s deposition, to resolve
issues for Eastern’s failure to appear at a scheduled deposition and to
reschedule it. (Mot. 5:7-15.) Plaintiff may not seek imposition of sanctions
under section 128.5 concerning discovery requests or responses.
Additionally,
Plaintiff argues Defense counsel is assisting in Mr. Hogan’s engagment in the
unauthorized practice of law “as a
tactic to delay” and obstruct the deposition of Eastern. (Opp. 4:2-7.) As this
conduct also relates to Plaintiff’s discovery request, it is outside the scope
of section 128.5.
Regardless,
Plaintiff has not shown that Defendants have acted in bad faith, which means “simply
that the action or tactic is being pursued for an improper motive. Thus, if the
court determines that a party had acted with the intention of causing
unnecessary delay, or for the sole purpose of harassing the opposing side, the
improper motive has been found, and the court's inquiry need go no further.” (Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263.) However, there is no evidence of
“subjective bad faith” which is sanctionable conduct. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 134.)
Plaintiff
contends that Mr. Hogan is engaging in the unauthorized practice of law as he
is not a licensed California attorney. However, Plaintiff’s counsel admits that
Mr. Hogan intended to apply for admission pro hac vice. (Shiloh decl. ¶ 8.) The
fact that Mr. Hogan has not yet obtained such an order does not mean that he is
engaging in the unauthorized practice of law. The court’s file reflects that
the only counsel representing Defendants is Mr. Dong.
Plaintiff
has not shown any evidence of bad faith actions or tactics, not concerning
discovery, that fall within the scope of section 128.5.
A party
prevailing on the motion may be awarded the reasonable expenses and attorney’s
fees incurred in opposing the motion. (Code Civ. Proc., § 128.5, subd. (f)(1)(C).) The court finds that defense counsel’s
hourly fee of $375 per hour is reasonable and eight hours to prepare the motion
and appear at the hearing is also reasonable.
IV.
CONCLUSION
Based on the foregoing, Plaintiff’s motion is
DENIED. The court awards $3,000 ($375 x 8 hours) in fees incurred by Defendants
and its counsel, joint and severally, relating to their opposition, payable by
Plaintiff to Defendants within 30 days.