Judge Virginia Keeny, Case 21VECV00744 2023-03-14 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECV00744, Date: 2023-03-14 Tentative Ruling

Case Number: 21VECV00744 Hearing Date: March 14, 2023 Dept: W

FARHAD DORRANI v. DEBORAH ORTEGA, et al.

plaintiff’s motion for sanctions against defendant pursuant to code of civil procedure section 128.7

Date of Hearing: March 14, 2023 Trial Date: N/A

Department: W Case No.: 21VECV00744

BACKGROUND

Plaintiff Farhad Dorrani filed this action on June 4, 2021, seeking to quiet title to disputed property, declaratory relief, and injunctive relief, as well as damages for trespass. The complaint seeks to resolve a dispute as to the property line between Plaintiff’s property, which is designated as Assessor’s Parcel Number 2075-025-042, commonly described as 22528 MacFarlane Drive, Woodland Hills, California 91364, and defendant’s property, which is designated as Assessor’s Parcel Number 2075-025-046, commonly described as 5033 MacFarlane Lane.

[Tentative] Ruling

Plaintiff’s Motion for Sanctions against Defendant Pursuant to Code of Civil Procedure section 128.7 is DENIED.

REQUEST FOR JUDICIAL NOTICE

Defendant, in opposition, seeks request for judicial notice of the 21 Day “Safe Harbor” provision. The court denies Defendant’s request for judicial notice. As discussed below, the “Safe Harbor” provision is inapplicable as the alleged bad faith action or tactic was not a pleading/responsive pleading.

DISCUSSION

Plaintiff Farhad Dorrani moves this court to impose monetary and non-monetary sanctions, including striking Defendant’s answer to the complaint, entering judgment in favor of Plaintiff, and assessing reasonable attorney fees and costs against Defendant in the amount of $2,510. Plaintiff makes the motion pursuant to Code of Civil Procedure section 128.5 on the grounds Defendant has consistently engaged in wrongful conduct, disrespect for the court, and stalling tactics.

Code of Civil Procedure section 128.5 provides that “[a] trial court may 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.” (CCP §128.5(a).) “‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (CCP §128.5(b)(1).) “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP §128.5(b)(2).)

Plaintiff Dorrani argues there are two bases for which he seeks sanctions: (1) Defendant’s failure to appear in person, when ordered by the court to do so, at the November 7, 2022 hearing; and (2) Defendant’s wrongful, threatening and harassing conduct toward Plaintiff’s expert witness. Plaintiff contends the parties were ordered to appear in person for a post-trial evidentiary hearing on November 7, 2022 and while Plaintiff and Plaintiff’s counsel appeared, Defendant failed to appear in person. Defendant, appearing remotely, claimed she had recently undergone eye surgery and was not able to appear in person. Defendant acknowledged she had neither sought a continuance of the hearing or informed Plaintiff’s counsel that she would not be present for the hearing. Moreso, after a remote status conference on January 30, 2023, Defendant contacted Plaintiff’s expert witness where she proceeded to threaten and harass the expert witness. Plaintiff further claims during a telephone conversation with Plaintiff’s counsel, Defendant screamed, was belligerent and insisted that she had every right to contact Plaintiffs expert witness.

In opposition, Defendant argues the motion is in violation of the 21-Day “Safe Harbor” provision of Code of Civil Procedure section 128.5. However, Code of Civil Procedure section 128.5(f)(1)(B) provides:

If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

Because Plaintiff seeks sanctions based on Defendant’s actions – rather than an offending document – the court finds the 21-Day “Safe Harbor” provision inapplicable.

Defendant also argues this motion for sanctions was filed in retaliation to Defendant’s recent verification that the Plaintiff’s expert witness, Chris Donald Nelson, perjured himself multiple times while testifying under oath at the January 30, 2023 hearing. Defendant further contends after her calling Plaintiff’s expert witness, Plaintiff’s counsel called her and immediately started yelling and screaming at her for six minutes. The rest of the opposition goes into Plaintiff’s counsel’s alleged harassment of Defendant and Plaintiff’s expert witnesses alleged perjury.

The court denies Plaintiff’s request for monetary sanctions under Section 128.5. Defendant Ortega’s unexpected eye surgery and inability to see on the date of the evidentiary hearing excuses her failure to proceed with the evidentiary hearing on that day. The court notes that Ms. Ortega did appear on LA Court Connect on that day and was in obvious pain and discomfort due to the surgery and eye patch. Her request for a continuance of the hearing was reasonable given her medical condition. While defendant should have notified plaintiff’s counsel in advance so that plaintiff did not have to needlessly incur fees for his counsel’s appearance, the court does not find that defendant’s conduct was intentional or intended to cause delay or to harass plaintiff.

As for Ms. Ortega’s conduct with respect to expert witness Nelson, the only competent evidence before the court is that Ms. Ortega called Mr. Nelson’s office and told an assistant that she needed to talk to him and that she had already spoken with the California Board of Land Surveyors. While the assistant may have interpreted this as a threat that Ms. Ortega was going to or had reported him to the Board, other interpretations could also be drawn. There was no prohibition on Ms. Ortega contacting either Mr. Nelson or the Board. The unpleasant conversation that then ensued between Ms. Ortega and Ms. Knauss is, unfortunately, par for the course in this action, with both Ms. Ortega and Ms. Knauss, at times, lapsing into incivility with each other. Ms. Ortega and Ms. Knauss are ordered to conduct themselves in their communications, whether oral or written, in a civil manner. Ms. Ortega’s constant refrain that all of plaintiff’s expert witnesses have committed perjury is noted and has been addressed in the Final Statement of Decision, previously issued.