Judge: Monica Bachner, Case: 21STCV29170, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV29170    Hearing Date: January 27, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants’ request for monetary sanctions is granted in the reduced amount of $1,675.00.

Defendants Kaufman Dolowich Voluck LLP’s (“KDV”), Courtney E. Curtis (“Curtis”), Barry Z. Brodsky (“Brodsky”), and Andrew J. Waxler (“Waxler”) (collectively, “Defendants”) request monetary sanctions against Plaintiff Edward Lyman III (“Lyman”) (“Plaintiff”) for reasonable expenses incurred by Defendants, including attorneys’ fees, for opposing Plaintiff’s Motion to Strike Defendant KDV’s Answer, Plaintiff’s Request for Entry of Default Against Defendant KDV, and Plaintiff’s Request for Terminating Sanctions.  (Notice of Entry of Order and Hearing on OSC, pgs. 1-2; C.C.P §128.5(a).)

          Background

          On December 12, 2022, this Court heard Plaintiff’s Motion to Strike Defendant KDV’s Answer, Plaintiff’s Request for Entry of Default Against Defendant KDV, and Plaintiff’s Request for Terminating Sanctions.  Plaintiff’s motions were denied and this Court set a hearing for an order to show cause as to why the Court should not impose sanctions for Plaintiff to pay the reasonable expenses, incurred by Defendants, including attorneys’ fees in opposing the instant motion.  On December 28, 2022, Defendants timely filed their declaration setting forth their reasonable expenses incurred in opposing Plaintiff’s motions.  On January 17, 2023, Plaintiff filed his late declaration in opposition.  On January 18, 2023, Defendants timely filed their declaration in reply.

OSC Monetary Sanctions

C.C.P. §128.5 authorizes the court to order a party “to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics.”  (C.C.P. §128.5(a).) “Frivolous” is defined as an action that is “totally and completely without merit.”  (C.C.P. § 128.5(b)(2).)  An order for sanctions shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated.  (C.C.P §128.5(f)(2).)

Defendants’ counsel declares his hourly rate is $250.00.  (Decl. of Zurcher ¶5.)  Defendants’ counsel declares he spent 5.8 hours reviewing Plaintiff’s motion, researching and drafting the opposition, .9 hours reviewing the Court’s tentative ruling and attending the hearing on Plaintiff’s motion, and .5 hours compiling his time records and drafting the instant declaration.  (Decl. of Zurcher ¶3.)  Plaintiff’s attorneys’ fees are granted in the reduced amount of $1,675.00.  Defendants’ counsel’s request for attorneys’ fees also includes anticipated fees for drafting his reply and attending the OSC hearing; anticipated fees are not fees reasonably incurred in opposing Plaintiff’s motion under C.C.P. §128.5.  (C.C.P. §128.5(f)(2).)

In opposition, Plaintiff declares he did not file the motion to strike and request for entry of default in bad faith.  (Decl. of Lyman ¶4.)  Plaintiff declares he genuinely believed Defendant KDV was prohibited from partaking in these proceedings and misunderstood the application of law.  (Decl. of Lyman ¶5.)  Plaintiff declares he does not have the financial ability to pay over $3,000.00 in sanctions and can only afford to pay sanctions of $450.00.  (Decl. of Lyman ¶¶17, 18.)  Plaintiff’s declaration does not discuss the merits of his motion and attempts to argue his motion was not meritless and argues sanctions are not warranted because he did not engage in bad faith or tactical conduct that can be deterred by sanctions.  (See Decl. of Lyman ¶¶11, 15.)  Plaintiff does not declare Defendants’ request for sanctions is unreasonable based on the time incurred or Defendants’ counsel’s hourly rate; instead, Plaintiff declares Defendants’ requested sanctions are exorbitant because sanctions for $3,000 for each time a motion to strike the pleadings were filed would create a chilling effect on litigants.  (Decl. of Lyman ¶16.)

In reply, Defendants’ Counsel declares Plaintiff did not meet and confer with Defendants in advance of filing his motion to strike, which is required under C.C.P. §435.5(a).  (Supp.-Decl. of Zurcher ¶2.)  Defendants’ Counsel declares that shortly after he was served with Plaintiff’s motions, he emailed Plaintiff to inform Plaintiff some of the reasons why his motion was without merit.  (Supp.-Decl. of Zurcher ¶3.)  Defendants’ Counsel declares that Plaintiff responded that Defendants’ Counsel was “misstating the law,” but did not provide support or justification for his claim.  (Supp.-Decl. of Zurcher ¶3.)  Defendants’ Counsel declares that Plaintiff was on notice that his motion was entirely frivolous, but kept his motion on this Court’s calendar.  (Supp.-Decl. of Zurcher ¶3.)

Accordingly, Defendants’ request for sanctions is granted in the reduced amount of $1,675.00, which is sufficient to deter comparable actions by others similarly situated.  (C.C.P. §128.5(f)(2).)

Dated:  January ____, 2023

Hon. Monica Bachner

Judge of the Superior Court