Judge: Stephen Morgan, Case: 19AVCV00259, Date: 2023-01-10 Tentative Ruling

Case Number: 19AVCV00259    Hearing Date: January 10, 2023    Dept: A14

Background

This is an action based in fraud. Plaintiff Soroush Janamian (“Plaintiff”) alleges that, commencing April 2013, Defendants Raman Refaei (“Raman”)[1], Hamid Refai (“Refai”), and R & A, LLC (“R&A” and, collectively, “Defendants”) (1) rented real property to Plaintiff located at 2711 E. Avenue I, Lancaster CA 93535 (“Property No. 1”); (2) a property management agreement for 2703 E. Avenue I, Lancaster, CA 93535 (“Property No. 2” and, collectively, the “Properties”); and (3) a property management agreement for 2707 E. Avenue I, Lancaster, CA 93535 (“Property No. 3”). The residential agreement was set at the rate of $300.00 per month. Plaintiff presents:

1. He had accepted the rental agreement and, beginning April 2013, had occupied the apartment on the second floor of Property No. 1, and paid a total of $11,400.00 ($300.00/month) in rent for the period of April 2013 through May 2016.

2. He entered into a two-year commercial lease agreement with Defendants to rent a mechanic shop located on the ground floor of Property No. 1 on June 01, 2016 for a security deposit of $2,000.00 and three-months’ rent, totaling $4,800.00. Plaintiff also alleges $7,000.00 was used for miscellaneous start up expenses to establish the mechanic shop.

3. He was employed by Defendants to manage Properties Nos. 2 and 3 and would be paid $800.00 per month for his services and that Plaintiff would be paid when Defendants sold the Properties.

Plaintiff further alleges that, in July 2016, an inspector from the City of Lancaster informed him (1) that there was no certificate of occupancy for the apartment, the apartment was illegal, the apartment lacked proper permits, and the apartment was not habitable, and (2) Property No. 1 was not zoned for a mechanic shop, had no on-site parking for automobiles, and had not been zoned commercial for 13 years. Regarding the management agreement, Plaintiff presents that Defendants knew the representations were false and have not sold the Properties. Plaintiff contends that he has suffered damages in the amount of $30,400.00.

On April 02, 2019, Plaintiff filed his Complaint alleging one cause of action for Fraud and Deceit.

On September 10, 2019, Raman filed his Answer.

On September 17, 2019, Hamid and R&A, LLC filed its Answer. 

On January 24, 2020, Plaintiff retained counsel and filed his Substitution of Attorney on January 27, 2020.

Defendants former counsel was relieved on December 05, 2019 for R&A, LLC; January 07, 2020 for Hamid Refai, and substituted on March 04, 2022 for Raman.

On June 24, 2022, Raman filed a Substitution of Attorney, retaining Andrew Davis (“Davis”) as counsel.

On June 24, 2022, Raman filed his Motion for Sanctions Against Plaintiff and his Attorney Bruce T. McIntosh (“McIntosh”) (“Motion for Sanctions”).

On June 28, 2022, Raman filed his Motion for Judgment on the Pleadings (“MJOP”).

No Oppositions were filed to either motion.

On August 11, 2022, the Court held a hearing on the matter. The Court granted the MJOP and denied the Motion for Sanctions. Plaintiff was given 30 days’ leave to amend the Complaint.

On September 16, 2022, Plaintiff filed his First Amended Complaint (“FAC”).

On December 15, 2022, Raman filed two motions: (1) Motion for Judgment on the Pleadings, and (2) Motion for Sanctions.

On January 06, 2023, Plaintiff filed his Opposition. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing on this matter is set for January 10, 2023. As such, an Opposition was due no later than December 27, 2022. The Opposition is untimely. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The Court does not consider the untimely Opposition as doing so would deprive Raman a chance to reply. 

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Analysis

Standard for MJOP – A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Cal. Code Civ. Proc. § 438(b)(1) and (c)(1)(B)(ii).)¿ 

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)¿ 

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Standard for Sanctions Under 128.7 – Cal. Code Civ. Proc. § 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:¿ 

¿ 

1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.¿ 

2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a¿nonfrivolous¿argument for the extension, modification, or reversal of existing law or the establishment of new law.¿ 

3) the allegations and other factual contentions have no evidentiary support;¿ 

4) the denials of factual contentions are not warranted on the evidence.¿ 

(Cal. Code Civ. Proc. §128.7(b).) 

¿ 

Cal. Code Civ. Proc. § 128.7 permits the Court to impose monetary sanctions on an attorney or an unrepresented party that violates any one of these requirements. (Eichenbaum¿v. Alon¿(2003) 106 Cal App 4th 967, 976.)¿Cal. Code Civ. Proc. § 128.7 also permits directives of a nonmonetary nature and orders to pay a penalty into court. (Cal. Code Civ. Proc. § 128.7 (d).) The sanction imposed “shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (Id.) In addition, section 128.7 does not require a finding of subjective bad faith; instead, it requires only that the Court find that the conduct be objectively unreasonable.¿(In re Marriage of Reese & Guy¿(1999) 73 Cal. App. 4th 1214, 1221.)¿ 

¿ 

Under section 128.7, a court¿may¿impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.¿(Bucur¿v. Ahmad¿(2016) 244 Cal.App.4th 175, 189–190.)¿A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood¿(2014) 227 Cal.App.4th 428. at 448.)¿ 

¿ 

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (Musaelian¿v. Adams¿(2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin v. Stein¿(2002) 104 Cal.App.4th 156, 168.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (Childs v. State Farm¿Mut. Auto. Ins. Co.¿(5th Cir.1994) 29 F.3d 1018, 1025.) Because of this, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client's claim was well-grounded in fact and to take into account the adverse party's evidence. (Ibid.)¿ 

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Meet and Confer Requirement – Before filing a MJOP, the moving party is required to meet and confer with the party who filed the pleading subject to the MJOP for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the MJOP or Motion to Strike.¿ (Cal. Code Civ. Proc. § 439 and § 435.5.)¿¿The meet and confer is to be either in person or by telephone. (Ibid.)  The moving party shall file and serve with the MJOP a declaration stating either: (1) the means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings or (2) that the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. (Cal. Code Civ. Proc. § 439(a)(3).)  

The Court highlights that no declaration has of Plaintiff’s counsel, Andrew Davis, has been attached. Despite this procedural error, Davis has attached to the MJOP Exh. 1 a string of emails showing a meet and confer attempt between the parties in June 2022. It appears that the parties did not communicate with each other; however, there is a presentation by Raman that his counsel, Davis, reached out to defense counsel, Bruce T. McIntosh (“McIntosh”), about the deadline and McIntosh presented that the FAC was timely filed.  “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (Id. at (a)(4).) The Court analyzes the MJOP on its merits.  

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Discussion

Application –

1. MJOP

First, this MJOP is the second MJOP filed. On August 11, 2022, The Court granted Raman’s first MJOP with 30 days’ leave to amend the Complaint. 30 days from August 11, 2022 is September 10, 2022. September 10, 2022 is a Saturday. “Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.” (Cal. Rules of Court, Rule 1.10(b).) Therefore, the last day to file the FAC to comport with the Court’s Order was September 12, 2022.

Plaintiff’s FAC was filed on September 16, 2022 and is untimely.

Cal. Code Civ. Proc. Provides the following:

(h)

(1) The motion provided for in this section may be granted with or without leave to file an amended complaint or answer, as the case may be.

(2) Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.

(3) If the motion is granted with respect to the entire complaint or answer without leave to file an amended complaint or answer, as the case may be, then judgment shall be entered forthwith in accordance with the motion granting judgment to the moving party.

(4) If the motion is granted with leave to file an amended complaint or answer, as the case may be, then the following procedures shall be followed:

(A) If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff.

(B) If an amended answer is filed after the time to file an amended answer has expired, then the court may strike the answer pursuant to Section 436 and proceed to enter judgment in favor of that plaintiff and against that defendant or a defendant.

(C) Except where subparagraphs (A) and (B) apply, if the motion is granted with respect to the entire complaint or answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, judgment shall be entered forthwith in favor of the moving party.

(i)

(1) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had:

(A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the court’s prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor.

(B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor.

(2) All motions made pursuant to this subdivision shall be made pursuant to Section 1010.

(3) At the hearing on the motion provided for in this subdivision, the court shall determine whether to enter judgment in favor of a particular party.

(Cal. Code Civ. Proc. § 438(h)-(i).)

Accordingly, the second MJOP filed by Raman is inapplicable as the correct procedure to rectify the late filed pleading is a Motion to Strike. Raman, despite filing a MJOP, briefly mentions this:

On or about August 11, 2022, this honorable Court granted defendant Refaei's Motion for Judgment on the Pleadings as to plaintiff's Complaint, with 30 days' leave to amend. Said 30 days expired on September 11, 2022. Plaintiff allegedly filed his First Amended Complaint on September 16, 2022. Defendant states "allegedl because Defendant did not receive a copy of the "First Amended Complaint" and there is no proof of service attached to said First Amended Complaint. Therefore, Plaintiff's First Amended Complaint should be stricken.

(Motion, 4:13-18.)

On the Court’s own Motion, as provided by Cal. Code Civ. Proc. § 438(h)(4)(A), the Court strikes the FAC as it was after the time to file an amended complaint has expired.

Cal. Code Civ. Proc. § 438(h)(4)(A) provides that the Court may enter judgment in favor of that defendant against that plaintiff when a late-filed complaint is stricken. Accordingly, judgment is entered in favor of Raman.

1. Motion for Sanctions

Raman believes that the FAC was filed with the purpose of harassing him. Specifically, Raman presents that the FAC was (1) untimely filed, and (2) never served on the defendants in this case. Raman also presents that Cal. Code Civ. Proc. § 128.7 provides for a 21-day period during which Plaintiff and his attorney may avoid sanctions by dismissing the complaint outright and when a party does not take advantage of the safe harbor period, the “statute enables courts to deter or punish frivolous filings which disrupt matters, waste time, and burden courts' and parties' resources.” (In re Mark B. (2007) 149 Cal.App.4th 61, 76; Peake v. Underwood (2014) 227 20 Cal.App.4th 428, 441 ["A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute."]. See also Cal. Code Civ. Proc. §128.7(c)(I).)

Raman also provides arguments that the FAC is devoid of evidentiary support and, thus, does not meet the heightened requirement necessary for a pleading of fraud.

No declaration is provided by either party regarding the conversation between counsels in which McIntosh presented that the FAC was timely filed. However, an Order to Show Cause (“OSC”) RE: Filing of Amended Complaint was held on October 03, 2022. McIntosh presented to the Court that the FAC was filed on September 16, 2022, but did not highlight to the Court that it was not filed within the Court’s deadline. Because of this, the Court discharged the OSC.

McIntosh filed the FAC past the Court’s ordered deadline. Cal. Code Civ. Proc. § 438 clearly states what course of action would occur when an amended complaint is filed after the time to amend has expired. In front of the Court, McIntosh avoided presenting to the Court that the FAC was late filed in order for the action to continue.

Accordingly, the Motion for Sanctions is GRANTED. The Court imposes a sanction of $1,000.00.

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Conclusion

Defendant Raman Refaei’s Motion for Judgment on the Pleadings is MOOT.

The Court, on its own motion, strikes Plaintiff Soroush Janamian’s First Amended Complaint pursuant to the power vested in it by Cal. Code Civ. Proc. § 438(h)(4)(A).