Judge Ronald F. Frank, Case 21TRCV00401 2023-01-17 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00401, Date: 2023-01-17 Tentative Ruling

Case Number: 21TRCV00401 Hearing Date: January 17, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 17, 2023¿¿

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CASE NUMBER: 21TRCV00401

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CASE NAME: KCS West, Inc. v. Sephirot Constructions Corp., et al .¿¿¿

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MOVING PARTY: Plaintiff, KCS West, Inc.

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RESPONDING PARTY: Defendants, Isaac Ngalubutu and Sephirot Construction Corp.

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TRIAL DATE: None set¿

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MOTION:¿ (1) Motion for Issuance of a Writ of Execution and for Further Monetary Sanctions for Failure to Obey Court’s Order Dated July 15, 2022.

(2) Defense request for continuance pending resolution of arithmetic errors in the sanctison amount

TENTATIVE RULINGS: (1) The Writ of Execution is GRANTED. Plaintiff’s Motion for further monetary sanctions against Defendants is denied without prejudice to it being re-filed once collection of the sanctions has been achieved, since those efforts may involve additional attorneys’ fees which may well be awardable. The request for monetary sanctions against Mr. Rudoy and his firm are denied.

(2) The continuance request is denied, unless before or at the hearing the sanctioned defendants tender payment of the undisputed amount of monetary sanctions that are not the subject of any arithmetic error.

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I. BACKGROUND¿¿

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A. Factual¿¿

On May 28, 2021, plaintiff KCS West, Inc. filed a complaint against defendants Sephirot Constructors Corp., Sephirot Materials Corp., Sephirot Rentals Corp., Isaac Joel Ngalubutu, Arthur Robert Krowitz, and Business Alliance Insurance Company for (1) breach of contract, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) conversion, (5) enforce claim on contractor license bond, and (6) accounting. On March 11, 2022, plaintiff filed a FAC adding several defendants.

On July 15, 2022, in connection with then-pending discovery motions that Judge Hill found to be moot, the Court issued an order giving each of Defendants Sephirot Constructors Corp. and Isaac Ngalubutu 45 days to pay the awarded sanctions to Plaintiff KCS West, Inc. (“Plaintiff”) in the amount of $1,670 each. The four discovery motions collectively sought over

ten times the amount Judge Hill awarded. According to the instant motion, neither of the sanctioned defendants has paid the monetary sanctions and more than 45 days have passed. As such, Plaintiff now requests that this Court direct the Clerk to issue the writ of execution against the two sanctioned Defendants. Plaintiff further requests that the Court award monetary sanctions against Defendants and/or their counsel of record for Defendants for failure to comply with the Court’s order.

B. Procedural¿¿

On December 15, 2022, Plaintiffs filed this motion for issuance of a writ of execution and for further monetary sanctions against Defendants. On January 3, 2023, Defendants filed an opposition brief, and on the same day Mr. Rudoy filed a motion to be relieved as counsel. The Court notes that Mr. Rudoy substituted in for the two sanctioned defendants in August of 2022, within the 45-day period by which the monetary sanctions were ordered to be paid. On January 9, 2023, Plaintiff filed a reply brief.

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¿II. ANALYSIS¿

On July 15, 2022, the Court ordered Defendants Sephirot Construction Corp. and Isaac Ngalubutu to pay monetary sanctions in the amount of $1,670.00 each to Plaintiff within forty-five (45) days for repeated failures to properly respond to discovery. (Declaration of Stuart Eisler (“Eisler Decl.”), ¶ 2.) Plaintiffs claim that Defendants have failed to make the payment. (Eisler Decl., ¶ 5.) As such, Plaintiff argues it is entitled to enforce the Court’s award under the Enforcement of Judgments Act. Plaintiff further requests a further order of this Court directing the Clerk of the Court to issue a writ of execution against Defendants and in favor of Plaintiff in the amount of $3,340.00.

In Plaintiff’s Motion, it also argues that this Court should order additional sanctions against Defendants and/or their counsel of record for failing to comply with the original order. Plaintiff claims that Defendants’ counsel of record has not responded to KCS West’s request that Defendants pay Plaintiff the ordered sanctions. On September 13, 2022, Plaintiff asserts that it sent correspondence to Defendants’ counsel requesting Defendants pay the $3,340.00 of outstanding sanctions that were already overdue. (Eisler Decl., ¶¶ 3-4.) Plaintiff contends that it sent Defendants’ counsel a copy of the order awarding those sanctions. (Eisler Decl., ¶¶ 4-4.) However, Plaintiff claims Defendants’ counsel never responded to the September 13, 2022 correspondence, nor did they provide for or facilitate payment of the sanctions. (Eisler Decl., ¶¶ 4-5.)

Plaintiff’s Motion also requests that further monetary sanctions be awarded to it for the costs incurred in obtaining the writ of execution. Plaintiff contends that it incurred attorneys’ fees and costs in the amount of $2,220.00 to bring this motion before the Court requesting a writ of execution allowing Plaintiff to collect the monies already awarded to it by the Court on July 15, 2022. (Eisler Decl., ¶¶ 6-7.) Although in opposition and later confirmed in Plaintiff’s reply brief, Plaintiff originally made an arithmetic error and actually incurred $1,610.00 in attorneys fees. In Reply, Plaintiff also noted that Plaintiff’s counsel spent 1.5 hours reviewing Defendants’ opposition and preparing the reply brief incurring an additional $506.25. As such, Plaintiff seeks total reimbursement of attorneys’ fees in the amount of $2,116.25.

In opposition, Defendants assert that Defendants’ counsel of record is not subject to imposition of further monetary sanctions as requested by Plaintiff. Defendants assert that Martin S. Rudoy and Rudoy Law were not counsel of record for Defendants at the time the July 15, 2022 sanction order was rendered. Defendants contend that Mr. Ngalubutu was representing himself on July 15, 2022 pursuant to a substitution of attorney filed on July 11, 2022. Douglas Crowder was deemed relieved as counsel on the date the Order granting his motion was filed with the court clerk on July 19, 2022. Defendants assert that Martin Rudoy and Rudoy Law did not substitute into this case until August 19, 2022, and were not immediately privy to the July 15 ,2022 sanction order. Defendants also claim that due to the restrictions imposed by attorney-client privilege, Mr. Rudoy cannot comment or disclose to the Court the conversations counsel had with his client, Isaac Ngalubutu, when he became aware of the July 15, 2022 order with respect to the payment of sanction or any other issue relating to the allegations made by Plaintiff in its complaint.

Defendants further request that this issue be continued due to the arithmetic error in the interest of justice so that Defendants can properly present to the Court evidence of their reasoning and explanation for non-payment of the July 15, 2022 sanction order. That request is denied, unless before or at the hearing the sanctioned defendants tender payment of the undisputed amount of monetary sanctions that are not the subject of any arithmetic error.

In its reply brief, Plaintiff notes that the July 15, 2022 order provided Defendants 45 days to comply, i.e., until August 29, 2022. Defendants’ counsel contends it was retained by Defendants on August 19, 2022 – ten days prior to the deadline for compliance. Nonetheless, Plaintiff contends that it waited until December 15, 2022, to file the current motion. As such, even if Defendants’ counsel was not immediately privy to the July 15, 2022 order, it certainly has had ample time to comply.

IV. CONCLUSION¿¿

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The Writ of Execution is GRANTED. Plaintiff’s Motion for further monetary sanctions against Defendants is denied, but without prejudice to that motion being re-filed once collection of the monetary sanctions awarded has been achieved, since collection efforts may well involve additional attorneys’ fees which could be awardable. The request for monetary sanctions against Mr. Rudoy and his firm are denied. Any attorney is not the indemnitor nor insurer of monetary sanctions ordered to be paid by her or his client, particularly where as here the monetary sanctions were awarded a month before Mr. Rudoy substituted into this case. Mr. Rudoy has a pending motion to be relieved as counsel, which raises the inference that he has attempted to obtain compliance from his clients without success.

Defendants’ request for a continuance of this hearing to correct arithmetic errors in the amount of the monetary sanctions is denied, unless before or at the hearing the sanctioned defendants tender payment of the undisputed amount of monetary sanctions that are not the subject of any claimed arithmetic error. The arithmetic error was not raised previously or within the 45-day period of Judge Hill’s order, suggesting that this is a further delaying tactic. Moreover, the Court notes that collectively, the discovery motions heard in July of 2022 requested ten times the amount of monetary sanctions that were awarded. The sanctioned

defendants must bring clean hands to the table if they seek equity from the Court; tender of the undisputed amount of payable sanctions would be a strong sign of good faith and hands cleansing.

Moving party is ordered to give notice.¿¿¿¿