Judge: Teresa A. Beaudet, Case: 19STCV38469, Date: 2022-10-25 Tentative Ruling

Case Number: 19STCV38469    Hearing Date: October 25, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 28, 2019, Plaintiffs Willie F. McMullen, Jr., Deanna Welch, and Daijon Carcamo (collectively, “Plaintiffs”) filed this action against Defendants Ana Ward (“Ward”), HDSI Management, Inc. (“HDSI”), Walton Halad Company Two, LLC (“Walton”), and Kimball, Tirey & St. John LLP (“KTS”). The operative Second Amended Complaint (“SAC”) was filed on August 9, 2021, and asserts causes of action for (1) breach of contract, (2) defamation per se, (3) discrimination, (4) breach of the implied covenant of quiet enjoyment, (5) negligent supervision of employee, (6) inducing breach of contract, and (7) intentional infliction of emotional distress.[1]  

Plaintiffs, in pro per, now move for the Court to issue an order to show cause as to why defendants’ attorneys of record, KTS, Eli Gordon (“Gordon”), and Tiffany D. Truong (“Truong”), “should not be held in contempt of this court on the grounds of misbehavior in office and other willful neglect and violation of duties as an attorney.” HDSI, Ward, and Walton (collectively, “Defendants”) oppose.

Request for Judicial Notice 

The Court denies Plaintiffs’ request for judicial notice in support of their reply. The Court notes that “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” ((Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) 

Evidentiary Objections

The Court rules on Plaintiff’s evidentiary objections as follows:

Objection No. 1: overruled

Objection No. 2: overruled

Objection No. 3: overruled

Objection No. 4: overruled

Discussion

Plaintiffs note that pursuant to Code of Civil Procedure section 1209, subdivision (a)(3), “[t]he following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:…(3) Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service.”
            Plaintiffs note that on May 28, 2021, Defendants filed a “Declaration of Eli Gordon in Support of Defendants’ Motion for Attorney’s Fees [CCP § 425.16(c)].” This Declaration was filed in connection with Defendants’ motion for an award of attorney’s fees in connection with their anti-SLAPP motion. Plaintiffs contend that Gordon sought to “add over $11,000.00 to an attorney fee award against the Plaintiffs for services he never performed…” (Mot. at p. 8:7-8.) The Court’s October 15, 2021 Order on Defendants’ Motion for Award of Mandatory Attorney’s Fees provides, inter alia, that certain specified tasks “billed by Mr. Gordon of KTS are non-compensable for the reasons set forth in Plaintiffs’ opposition.” (October 15, 2021 Order at        p. 4:19-25.) The October 15, 2021 Order then identifies certain amounts from 6/10/2020, 7/15/2020, 7/31/2020, 2/11/2021, and 2/18/2021. (Ibid.)

Plaintiffs note that in their opposition to Defendants’ attorney’s fees motion, they argued that “Defense counsel, Eli Gordon attempted to mislead this court with falsified invoices that clearly showed that over $9,000.00 of fees was added for services that could not have been performed by him at the time he states, if ever.” (Plaintiffs’ October 1, 2021 Opposition to Defendants Motion for Attorney Fees at p. 17:25-28.) Plaintiffs appear to be arguing that the Court found certain tasks (set forth above) to be noncompensable as a result of falsified invoices. The Court notes that nowhere in the October 15, 2021 Order does the Court find that Gordon or KTS falsified invoices. As Defendants note, Plaintiffs’ October 1, 2021 opposition objects to time entries from 6/10/2020, 7/15/2020, and 7/31/2020, and 2/18/2021 on the grounds that the dates of these time entries were slightly inaccurate. (October 1, 2021 Opposition at p. 6:8-21, 12:4-12:13.)[2] As Defendants also note, they acknowledge in their October 7, 2021 Reply to Plaintiffs’ Opposition to Defendants Motion for Attorney Fees that “[i]t appears that some time was entered on an incorrect date,” and asserted that “Plaintiffs can point to no prejudice in including the charges for this motion based on a possible error by a few days on the dates of entry.” (October 7, 2021 Reply at p. 8:2-9; 8:20-22.)

Defendants also asserted in the reply in support of their motion for attorney’s fees that there was “no evidence indicating that the handful of alleged inconsistencies in the KTS invoices are a result of intentional or malicious conduct rather than good faith errors. KTS has a billing input policy and its attorneys have made good faith efforts to consistently and accurately input all charges.” (October 7, 2021 Reply at p. 7:20-23.) Defendants also acknowledged that there may have been certain minor mistakes in the billing entries. (October 7, 2021 Reply at p. 7:23-24.) The Court does not find that Plaintiffs have submitted competent evidence in connection with the instant motion demonstrating that Defendants’ counsel willfully falsified invoices in connection with the subject attorney’s fees motion.

Plaintiffs also argue in the instant motion that the “attorneys knowingly falsely certified the Defendants perjured answer.” (Mot. at p. 10:27-28.) Specifically, Plaintiffs contend that Truong “signed and filed a verified answer from the Defendants to Plaintiffs SAC that contained over 90 denials (positive and/or for lack of information or belief) and 25 affirmative defenses. Based upon previous declarations of the Defendants and their agents drafted by KIMBALL and filed in the court; depositions of a HUD Contractor and Defendant WARD that TRUONG was present at; Responses to Demands for Production of Documents drafted by GORDON: the ATTORNEYS knew that the Defendants denials were false and a violation of the law in regards to perjury.” (Mot. at p. 11:1-6.) Defendants counter that it is common for parties not to admit to allegations in the pleading stage. (Truong Decl., ¶ 8.) Defendants’ counsel also provide evidence that they vehemently reject and deny Plaintiffs’ repeated accusations that Gordon, Truong, or their office engaged in any type of misconduct or contemptable behavior or violated the Rules of Professional Conduct or any laws in connection with litigating this case. (Truong Decl., ¶ 13, Gordon Decl., ¶ 5.)[3]

Plaintiffs also assert that the affirmative defenses pled in Defendants’ answer to the SAC, “pleads a one or two sentence conclusion that is uncertain and fails to state any facts to constitute a defense to the SAC.” (Mot. at p. 18:23-24.) Plaintiffs contend that this is a “violation of the Code of Civil Procedure, section 128.7 because the allegations in support of the affirmative defenses do not have any evidentiary support.” (Opp’n at p. 18:24-26.) Plaintiffs cite to Code of Civil Procedure section 128.7, subdivision (b)(3), which provides, “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:…(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” As Defendants note, in its September 7, 2022 Order on Plaintiffs’ demurrer to Defendants answer to the SAC, the Court sustained Plaintiffs’ demurrer to certain affirmative defenses with leave to amend. Defendants assert that it is a very common practice in litigation defense to plead several affirmative defenses in an answer because the defendants do not yet have the benefit of investigating all the claims and determining what defenses will ultimately be raised at the trial stage. (Truong Decl., ¶ 7(b).)

Lastly, Plaintiffs note that Business and Professions Code section 6068 provides in part that “[i]t is the duty of an attorney to do all of the following:…(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense. (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof. Code, § 6068, subds. (c) and (d).) Plaintiffs contend that KTS, Gordon, and Truong (who Plaintiffs collectively refer to as the “attorneys”) neglected to perform the duties set forth in Business and Professions Code section 6068, and that “[t]o perform this duty, the ATTORNEYS would have to do one of the following based upon the evidence in their possession: 1.) Withdraw the Defendants answer in its entirety and allow for default to be entered; 2.) Amend the Defendants answer and change all of the false denials into positive admissions; or 3.) Remove the false denials and remain silent in regards to those allegations, which will deemed [sic] the allegation as true.” (Mot. at p. 19:8-12.) The Court does not see how Defendants’ counsel must take the foregoing actions in order to be in compliance with Business and Professions Code section 6068.  

Conclusion

Based on the foregoing, the Court denies Plaintiffs’ motion.   

Defendants are ordered to give notice of this ruling.

DATED:  October 25, 2022                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court