Opposition ObjectionsCal. Super. - 6th Dist.March 2, 202121 CV378991 Santa Clara - Civil A. Floresca Clifford R. Homer, Esq., State Bar N0. 154353 1 Paymon Hifai, _Esq., State Bar N0. 306133 Electronicany Filed 2 M1chael G. Klem, Esq., State Bar N0. 212758 by Superior Court of CA,HORNER LAW GROUP, P.C. . County of Santa Clara,800 S, Broadway, Sulte 200 _ 3 Walnut Creek, California 94596 0n 1_0/20/2021 3-54 PM Telephone; (925) 943-6570 Revuewed By: A. Floresca 4 Facsimile: (925) 943-6888 Case #21 cv378991 Envelope: 7505239 5 Attorneys for Plaintiff Frederick Hart, Jr. 6 7 SUPERIOR COURT 0F THE STATE 0F CALIFORNIA 8 COUNTY 0F SANTA CLARA 9 UNLIMITED JURISDICTION 10 11 FREDERICK HART, JR, an individual No. 21CV378991 12 Plaintiff, PLAINTIFF’S OPPOSITION T0 13 vs. DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT T0 C.C.P. § 14 MICHAEL HART, an individual, FRANCES 128.5 1 5 HART, an individual, TRACY HART- O DEGREGORIO, an individual, GAIL A. Date- November 29 2021 . . . Time: 9:00 a.m. 16 HART, an 1nd1V1dual, and DOES 1-50 Department: 7 1 7 Defendants. 18 19 Plaintiff Frederick Hart, Jr. (“Plaintiff’ 0r “Hart”) hereby opposes Defendants Michael 20 HART, FRANCES HART, TRACy HART-DEGREGORIO, and GAIL A. HART’S (collectively 21 “Defendants” or the “Harts”) Motion for Sanctions Pursuant to C.C.P. § 128.5 (“M0tion” 0r 22 “Sanctions Motion”). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// HORNER LAW GROUP, PC 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 TABLE 0F CONTENTS 2 3 I. INTRODUCTION .................................................................................................................... 1 4 II. FACTUAL AND PROCEDURAL BACKGROUND ............................................................. 3 5 A. The Harts Were Warned that their Response to the Complaint was Due 0n June 14, 2021 3 6 B. The Harts Filed a Sham Declaration Under C.C.P. § 430.41(a)(2) ...................................... 3 7 C. The Harts Filed Their Motion Despite No Adverse Action Being Taken Against Them....4 8 D. The Harts Filed this Motion Despite Plaintiff s Counsel’s Warnings t0 Take it Off Calendar 4 9 E. Plaintiff s Counsel Has Acted in Good Faith ....................................................................... 5 10 1H. LEGAL ARGUMENT ......................................................................................................... 6 1 1 A. Defendants Motion for Sanctions Fails as a Matter ofLaW Because PlaintiffActed in Good- Faith .............................................................................................................................................. 6 12 1 3 B. The Harts’ Argument that Plaintiff’ s Filing the Request t0 Enter Defendants” Default Was Frivolous and in Bad Faith And Fails as a Matter 0fLaw Because PlaintiffWas Required To D0 14 So Under C.R.C. 3.1 10 Or Face Sanctions ................................................................................. 7 1 5 C. Defendants Statement That They Were Not Provided Warning Prior to the Request for Entry of Default Being Filed Is False ........................................................................................... 9 16 D. Defendants Filing of Sham Declaration Warrants Sanctions Being Issued Against Them 17 and Creates a Good-Faith Grounds t0 Challenge that Declaration ............................................ 10 18 E. Defendants’ Motion is Procedurally Improper ................................................................... 12 19 1. The Filing of a Request for Entry 0f Default That Was Never Entered Does Not Constitute an “Action 0r Conduct” Under C.C.P. § 128.5 .................................................... 12 20 2. Defendants’ Motion Should Have Never Been Filed Because the “Challenged Action” 21 Was “Appropriately Corrected” ............................................................................................. 13 22 F. Plaintiff Should Be Awarded Sanctions in His Favor and Against Defendants ................ 13 23 1. Defendant Seeks Fees Which Were Not Incurred .......................................................... 14 24 IV. CONCLUSION .................................................................................................................. 15 25 26 27 28 HOSRNEliR LgAW GROUP,PC ' 1 'Wm PLAINTIFF’S OPPOSITION T0 DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT T0 C.C.P. § 128.5 TABLE OF AUTHORITIES 1 Cases 2 3 Campbell v. Cal-Gard Surely Services, Inc. (1998) 62 Cal.App.4th 563, 574 ........................ 8 4 Javor v. Dellinger (1992) 2 Ca1.App.4th 1258 ......................................................................... 8 5 Levy v. Blum (App. 5 Dist. 2001) 92 Ca1.App.4th 625 ............................................................ 3 6 Stevens v. Torregano (1961) 192 CA2d 105, 112-1 13 ........................................................... 12 7 Summers v. City ofCathedral City (1990) 225 Ca1.App.3d 1047 ............................................ 8 8 Talavera v. Nevarez, (1994) 3O Ca1.App.4th Supp. 1 .............................................................. 8 W. A. Rose C0. v. Municipal Courtfor Oakland-Piedmont Judicial Dist” Alameda County (App. 1 9 Dist. 1959) 176 Cal.App.2d 67 ........................................................................................... 12 10 Wallis v. PHL Associates, Inc. (2008) 168 Ca1.App.4th 882 ................................................... 8 11 West Coast Development v. Reed (1992) 2 Ca1.App.4th 693 ................................................... 8 12 Statutes 13 C.C.P. § 430.41(a)(2) ............................................................................................................... 5 14 (3.0.13. § 129.5(b)(1), ............................................................................................................. 15 15 C.C.P. § 128.5 .......................................................................................................................... 4 16 C.C.P. § 412.20(a)(3). ............................................................................................................ 10 17 C.C.P. § 430.41 ...................................................................................................................... 17 18 Other Authorities 19 Santa Clara Code of Professionalism ..................................................................................... 17 20 Rules 21 C.R.C. § 3.110 .......................................................................................................................... 3 22 Treatises 23 B. Entry of Default, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-B. .................................. 12 24 25 26 27 28 HORNER LAWZGROUP, PC _ 2 _ 800 S Broaadw yS Wanl WC k Camnfla94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 I. INTRODUCTION 2 Defendants’ Motion for Sanctions is made without any legal or factual basis in that the 3 alleged “frivolous conduct” - Plaintiff’sfiling a Request for Entry of Default after giving warning 4 to Defendants’ counsel - cannot constitute conduct that is “totally and completely without merit” 5 because Plaintiff was legally required to file the Request for Entry of Default after it warned 6 Defendants that its response to the Complaint was due, and no response had been filed. As such, 7 Defendants’ Motion for Sanctions should be denied. 8 While Defendants allege “frivolous and bad faith conduct” by Plaintiff, the Defendants ’ 9 Motion for Sanctions itself is meritless, entirely frivolous, and made in bad faith Which warrants 10 this Court awarding sanctions in favor 0f Plaintiff and against Defendants for Defendants’ bringing 11 forth this Motion. In fact, Plaintiff’s counsel gave Defendants’ counsel multiple (over three) 12 opportunities t0 take their meritless Motion for Sanctions off calendar. However, the Defendants 13 refused t0 d0 so. The Harts’ refusal to take this Motion off calendar despite multiple warnings and 14 opportunities to do so further supports sanctions being awarded in favor of the Plaintiff and against 15 the Harts for bringing forth this meritless Motion. 16 The Harts argue that Plaintiff’s purported “wrongful” conduct that somehow warrants 17 thousands of dollars of sanctions is the following. First, that Plaintiff purportedly did not warn 18 Defendants’ counsel prior to requesting that the Court enter the Defendants’ default. This is untrue 19 however in that Defendants were provided with multiple warnings prior to Plaintiff filing the 20 Request for Entry 0f Default (which default was never entered by the Court). Second, “that 21 Plaintiff’ s Actions in filing the Request t0 Enter Default are frivolous and in bad faith”. However, 22 Plaintiff wasm under C.R.C. § 3.110 to request Defendants’ entries of default or face 23 sanctions. (“If a responsive pleading is not served within the time limits specified in this rule and 24 no extension oftime has been granted, the plaintiffm file a request for entry 0f default Within 25 10 days after the time for service has elapsed. The court may issue an order t0 show cause Why 26 sanctions should not be imposed if the plaintiff fails t0 timely file the request for the entry 0f 27 default.” (Emphasis Added). Here, Plaintiff’ s conduct in complying With C.R.C. cannot give rise 28 to sanctionable conduct in that a bad faith action or tactic is considered frivolous if it is totally and HORNER LAW GROUP, PC ' 1 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 completelv without merit. (Emphasis Added) Levy v. Blum (App. 5 Dist. 2001) 92 Ca1.App.4th 2 625. The Harts argument that an action is somehow “totally and completely without merit” when 3 that action is legally required and in fact, if that party does not take that legal action, would face 4 sanctions, is entirely nonsensical and must be disregarded in its entirety. 5 Simply put, the Harts’ entire Motion for sanctions is provably false, devoid 0f any factual 6 0r legal support and should never have been filed. Tellingly, no adverse action was taken against 7 the Harts - there was n0 prejudice to them 0r negative outcome as a result of Plaintiff s merefiling 8 of a Request for Entry of Default. The filing was rejected and n0 default was ever entered by the 9 Court. To that end, while in their Motion the Harts make many inflammatory statements about 10 Plaintiff’s counsel Which are factually untrue, there is absolutely no reason Why the Harts should 11 have filed their Motion for Sanctions. 12 Not only is the Motion for Sanctions legally and factually improper, but it is also 13 procedurally defective. The Harts cannot and d0 not establish that Plaintiff s mere filing a request 14 for entry of default constitutes an “action” under C.C.P. § 128.5. Further, the Harts are barred from 15 bringing forth their Motion for Sanctions under the “safe harbor provision” under C.C.P. § 128.5 16 (f)(1)(B), in that the “challenged action” - the filing 0f the Request for Entry 0f Default - was 17 “corrected” even before the Harts served their safe harbor notice because the Request for Entry 18 0f Default was rejected by the Court 0n June 16th - a fact which apparently Defendants’ 19 counsel didn’t even know until mid-October 2021. Here, the relief that Defendants sought was 20 in fact granted and there was n0 justification for Defendants to file this Motion in the first place. 21 Plaintiff gave Defendants multiple opportunities t0 take this frivolous Motion for Sanctions 22 off calendar - even after incurring the attorneys’ fees in drafting this Opposition. The Defendants 23 refused to do so. As such, the Defendants’ Motion should be denied and sanctions should be 24 awarded in favor of Plaintiff and against Defendants in the amount of at least $6,525 for bringing 25 forth their Motion for Sanctions in bad-faith. 26 /// 27 /// 28 /// HORNER LAW GROUP,PC ' 2 ' Walaut‘éieZVEY‘CfiiEma94sss PLAINTIFF’S OPPOSITION T0 DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT T0 C.C.P. § 128.5 II. FACTUAL AND PROCEDURAL BACKGROUND 1 A. The Harts Were Warned that their Response to the Complaint was Due 0n 2 June 14, 2021 3 It is undisputed that the Harts knew and were warned by Plaintiff that their response t0 the 4 Complaint was due on June 14, 202 1. (See Declaration ofPaymon Hifai (“Hifai Decl.”) In Support 5 of Opposition to Motion for Sanctions, fl 2 - 3, EX. A.) Plaintiffs’ counsel granted Defendants 6 extensions t0 respond t0 the Verified Complaint through Monday June 14, 2021. Id. On June 8, 7 2021 six days before the responsive pleading deadline, Plaintiffs counsel warned the Harts’ 8 counsel that the Harts needed to file a response by June 14th. Id. Plaintiff’s counsel again warned 9 the Harts’ counsel on June 16th that since no responsive pleading was filed by June 14th, that if a 10 responsive pleading wasn’t filed that day, then Plaintiff would request the entry 0f the Harts’ 11 default. Id at fl 4, Ex B. As such, Plaintiff gave the Defendants multiple warnings of their 12 responsive pleading deadline, that their response was due, and When it was past-due that if n0 13 response was filed that Plaintiff would request the Court’s entry of their default. Defendants’ 14 statement to the contrary is simply untrue and disproven by the facts. 15 B. The Harts Filed a Sham Declaration Under C.C.P. 8 430.41(a)(2) 16 The Harts’ counsel Scott Maynard filed a declaration purportedly seeking an extension to 17 respond t0 the Complaint under C.C.P. § 430.41(a)(2) which provides: 18 If the parties are not able t0 meet and confer at least five days prior 19 to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time Within which to 20 file a responsive pleading, by filing and serving, on or before the date 0n which a demurrer would be due, a declaration stating under 21 penalty 0f perjury that a good faith attempt t0 meet and confer was made and explaining the reasons why the parties could not 22 meet and confer.” (Emphasis Added) C.C.P. § 430.41(a)(2). 23 Mr. Maynard’s Declaration does not satisfy C.C.P. § 430.41(a)(2) because he admits under 24 penalty of perjury that he already met and conferred prior t0 responsive pleading deadline 0f June 25 14th” and thus could never have “explain[ed] the reasons Why the parties could not meet and 26 confer” as required under C.C.P. § 430.41(a)(2). See Hifai Decl., 1] 5, EX. C. Mr. Maynard never 27 states in his declaration seeking an extension 0f time t0 respond, as required under the Code of 28 Civil Procedure that “the parties [were] not able to meet and confer at least five days prior to the HORNER LAW GROUP, PC ' 3 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 date the responsive pleading [was] due,” 0r “stat[e] under penalty 0f perjury that a good faith 2 attempt to meet and confer was made”, “and explain [. . .] the reasons why the parties could not 3 meet and confer”. In fact, the Harts” counsel’s declarations says quite the opposite - the Harts’ 4 counsel admits that hefl meet and confer but wanted t0 “further meet and confer” and “needed 5 more time” given his workload and the complexity 0f the case - none of which reasons for a 6 delayed response fall under C.C.P. § 430.41(a)(2). See Hifai Decl., 1H 5 - 6, EXS. C, D. 7 For example, Mr. Maynard stated the following: 8 “Moreover, due t0 other professional obligations and the complexity 0f the issues that will be presented on demurrer, I have not had sufficient time 9 available t0 delineate all 0f the specific legal authority for each of those deficiencies that Will be the basis of the demurrer. Thus, I have not yet had 10 time t0 prepare for the follow-up in-depth meet and confer with Plaintiffs’ counsel 0n the proposed demurrer, as required by Code 0f Civil Procedure 11 §430.41(a)(1).” Hifai Dec1., Ex. C. at p. 2: 20 - 25. 12 There is n0 “follow-up in-depth meet and confer” requirement under C.C.P. § 13 430.41(a)(2) Which warrants an extension 0f time t0 respond t0 the Complaint. Defendants’ 14 counsel filed a declaration 0n June 14, 2021 but that declaration did not comply with C.C.P. § 15 430.41(a)(2) and as such, While it may be considered by the Clerk as a responsive pleading, 16 factually and legally it was n_ot a responsive pleading. 17 C. The Harts Filed Their Motion Despite No Adverse Action Being Taken Against Them 1 8 19 Here, there was no “adverse action” take against the Defendants. The Request for Entry 20 of Default was rej ected by the Clerk of the Court 0n June 16th - the same day it was filed. See 21 Hifai Decl., EX. E. As such, no default was ever entered. There was n0 harm or harm 0r 22 prejudice to the Defendants. Nonetheless, they filed a Motion for Sanctions, and the entire basis 23 for seeking sanctions is the filing of a Request for Entry of Default that was rejected by the 24 Court. 25 D. The Harts Filed this Motion Despite Plaintiff’s Counsel’s Warnings t0 Take it Off Calendar 26 27 Plaintiff’ s counsel gave the Defendants’ counsel over three written opportunities and 28 warnings urging the Defendants t0 take this baseless Motion for Sanctions off calendar. See Hifai HORNER LAW GROUP, PC _ 4 _ 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 Decl., 1H] 10 - 12, Exs. G - I. Defendants refused. Even after incurring fees in drafting this 2 instant Opposition, Plaintiff s counsel still offered the Plaintiff the opportunity t0 take this 3 Motion off calendar. See Hifai Decl., fl 12, EX. A. Defendants still refused. Plaintiff has 4 incurred $6,525 in fees in opposing this baseless motion. See Hifai Decl. 1H4. Defendants are 5 aware that Plaintiff, their sibling, is elderly, disabled and lives off a fixed income. See Hifai 6 Decl., 1] 13. As set forth herein, there is n0 legal or factual basis for Defendants t0 have brought 7 forth this Motion other than forcing the Plaintiff t0 needlessly incur the cost of opposing this 8 baseless Motion for Sanctions. 9 E. Plaintiff’s Counsel Has Acted in Good Faith 10 Here, Plaintiff and his counsel acted in good faith in requesting the Court to enter the 11 Defendants’ default. Warning had been provided and no response had been filed. Defendants 12 never asked for an extension and Defendants then filed a sham declaration which explicitly 13 satisfy C.C.P. § 430.41(a)(2) because by its own admission, Defendants’ counsel was never 14 unable to meet and confer but rather wanted t0 “further meet and confer.” 15 In reality, Defendants’ filing of the sham declaration, filing its Demurrer, and this Motion 16 for Sanctions is n0 more than a delay tactic and basis to needlessly increase fees. The delay was 17 successful in that the response to the Complaint was due in June 2021. Since Defendants’ 18 counsel admits he met and conferred, then there is need t0 “further” meet and confer prior t0 19 filing a Demurrer. Rather, Defendants were required to file a demurrer on June 14th - 0r they 20 could have asked Plaintiff’s counsel for a brief extension 0r filed a Judicial Council Form CIV 21 141 Which contains the language statutorily required t0 obtain an extension under C.C.P. § 22 430.41(a)(2). Defendants did none 0f that. Rather, Defendants delayed causing this case to 23 become at-issue for four months and now, needlessly, have further driven up the cost of litigation 24 because Defendants defaults were requested and never entered. 25 Conversely, Plaintiff has acted in good faith in that C.R.C. § 3.1 10 makes it mandatory t0 26 request a default within 10 days 0f the response being due. Plaintiff did that. Plaintiff provided a 27 warning. Further, in light of the sham declaration, the Request for Entry of Default was Without 28 any effect other than teeing up the Motion t0 Strike the Declaration and enter the Defendants’ HORNER LAW GROUP, PC ' 5 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 default. There is a good-cause legal basis for a Court t0 rule 0n that matter and for Plaintiff to do 2 so. Yet, Defendants’ counsel has refused repeatedly to even respond to Plaintiff’s counsel’s 3 efforts t0 meet and confer on the issue. See Hifai Decl., 1] 13. 4 III. LEGAL ARGUMENT 5 A. Defendants Motion for Sanctions Fails as a Matter 0f Law Because Plaintiff 6 Acted in Good-Faith 7 To be entitled to sanctions for bad-faith action 0r tactics requires showing not only of 8 meritless or frivolous action or tactic, but also 0f bad-faith taking 0f the action 0r tactic. West 9 Coast Development v. Reed (1992) 2 Cal.App.4th 693. Imposition of sanctions under statute 10 prohibiting bad-faith actions or tactics that are frivolous 0r solely intended to cause unnecessary 11 delay requires finding that sanctioned party was guilty 0f bad faith. Javor v. Dellinger (1992) 2 12 Ca1.App.4th 1258. C.C.P. §128.5 did not permit imposition 0f sanctions solely upon consideration 13 of whether action was objectively frivolous, Without inquiry into party's subjective bad faith. 14 Summers v. City 0f Cathedral City (1990) 225 Cal.App.3d 1047. Sanctions for frivolous actions 15 0r delaying tactics are warranted only if the moving party meets its burden of proving that the 16 opposing party's action 0r tactic was (1) totally and completely Without merit, measured by the 17 obj ective, “reasonable attorney” standard, 0r (2) motivated solely by an intention t0 harass or cause 18 unnecessary delay, measured by a subjective standard. Wallis v. PHL Associates, Inc. (2008) 168 19 Cal.App.4th 882. There must also be a showing 0f an improper purpose, i.e., subjective bad faith 20 on the part of the attorney or party to be sanctioned. Campbell v. Cal-Gard Surely Services, Inc. 21 (1 998) 62 Ca1.App.4th 563, 574. Attorney need only have reasonable and honest belief in validity 22 of each theory and evidence supporting that theory, not conviction that client will prevail, to justify 23 filing claim or defense, so as to preclude award 0f sanctions for bad faith frivolous action. 24 Talavera v. Nevarez, (1994) 30 Ca1.App.4th Supp. 1. 25 C.R.C. § 3.110 provides, “If a responsive pleading is not served within the time limits 26 specified in this rule and no extension 0f time has been granted, the plaintiff must file a request 27 for entry of default within 10 days after the time for service has elapsed. The court may issue 28 /// HORNER LAW GROUP, PC ' 6 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 an order t0 show cause Whv sanctions should not be imposed if the plaintiff fails to timelv file 2 the request for the entrv 0f default.” (Emphasis Added). 3 At a minimum, Defendants have failed t0 show that Plaintiff acted with subjective bad- 4 faith - i.e., for an improper purpose - in Plaintiff filing the Request for Entry of Default in that 5 there was a reasonable and honest belief that Plaintiffwas required t0 file the Request for Entry 0f 6 Default, that Defendants were provided a sufficient professional courtesy of the filing (once six 7 days before and once that day), and that Defendants’ declaration did not and could not legally grant 8 an automatic extension to respond t0 the Complaint and as such, should be stricken or at least, that 9 the Court should rule on the issue. 10 Further, Mr. Maynard’s declaration admits that the Defendants did not meet the 11 requirements of C.C.P. § 430.41(a)(2), the Defendants never requested an extension, and never 12 filed a proper response t0 the Complaint. As such, Plaintiff acted as required under C.R.C. § 3.1 10 13 and filed a request for entry 0f default after the response was two days past due. 14 Simply, there is n0 evidence that Plaintiff’s counsel had an improper purpose. Rather, 15 Plaintiff’s counsel acted as compelled under C.R.C. § 3.1 10. Conversely, Defendant’s counsel 16 bringing this Motion, When no adverse action was taken against them, exemplifies Defendants’ 17 improper purpose in bringing this Motion. 18 Defendants’ Motion for Sanctions fails as a matter of law because it does not and cannot 19 that Plaintiff acted in subjective bad faith. To the contrary, Plaintiffs counsel had a “reasonable 20 and honest belief in the validity of each theory and evidence supporting that theory. .. to justify” 21 its action. See Talavem v. Nevarez, (1994) 30 Cal.App.4th Supp. 1. As such, Defendants” Motion 22 should be denied. 23 B. The Harts’ Argument that Plaintiff’s Filing the Request to Enter Defendants’ Default Was Frivolous and in Bad Faith And Fails as a Matter 0fLaw Because 24 PlaintiffWas Required To Do So Under C.R.C. 3.110 Or Face Sanctions 25 In the usual case, a defendant has 30 days after service is complete Within Which to respond 26 to the complaint. C.C.P. § 412.20(a)(3). 27 T0 be clear, under C.R.C. § 3.1 10 a Plaintiff must file a request for entry of default Within 28 10 days after the time for service has elapsed. This rule is not optional. In fact, ifthe Plaintiff does HORNER LAW GROUP, PC ' 7 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 not do so within 10 days after the time for service has elapsed, then the Plaintiffmay face sanctions. 2 For purposes 0f the statute authorizing sanctions for bad-faith actions 0r tactics that are 3 frivolous or solely intended t0 cause unnecessary delay, a bad faith action or tactic is considered 4 frivolous if it is totally and completely Without merit or instituted for the sole purpose 0f harassing 5 an opposing party. Levy v. Blum (2001) 92 Cal.App.4th 625. 6 In their Motion for Sanctions, other than merely copy and pasting C.C.P. § 128.5, 7 Defendants make the factually disproven and inflammatory remarks that “Plaintiff filed the 8 Request t0 Enter Default as a punitive measure, without anv legal basis whatsoever, without 9 prior notice t0 Defendants, and in Violation 0f C.C.P. § 430.41(a)(2). .. This action was taken in 10 bad faith, and was taken out of anger that settlement negotiations had not resulted in a settlement 11 to benefit the Plaintif .” (Emphasis Added). Motion p. 9: 17 - 20. Defendants are factually and 12 legally wrong for the following reasons. 13 First, Defendants’ unsubstantiated claim that the Request for Entry 0f Default was filed “as 14 a punitive measure without any legal basis” is wrong because, again, the Plaintiffwas required to 15 file the Request for Entry ofDefault and t0 be clear, that Request was denied. As such, Defendants’ 16 argument that Plaintiff’s filing 0f the Request for Entry 0f Default was made Without any legal 17 basis must be disregarded in that Plaintiff complied with C.R.C. § 3.1 10. 18 Defendants’ entire legal entire basis for sanctions, that the filing the request for sanctions 19 was in “bad-faith” is nonsensical in that a bad faith action 0r tactic is considered frivolous if it is 20 totally and completely without merit. However, here, the purported improper conduct was legally 21 required and as such, cannot give rise t0 frivolous conduct because legally compulsory actions of 22 course, cannot be deemed t0 be “totally and completely Without merit.” T0 be clear, C.R.C. § 3.1 10 23 makes it a compulsory requirement that a Plaintiffrequest a defaulting Defendant’s entry of default 24 0r face sanctions “if the plaintiff fails to timely file the request for the entry 0f default.” 25 The Harts’ inflammatory and untrue remarks that “Plaintiff was angry” that a settlement 26 wasn’t reached, and therefore filed a Request for Entry of Default as a “punitive” measure is 27 fantastical and nonsensical with zero factual support. Simply, Plaintiff sued the Defendants and is 28 litigating this matter because n0 prior settlement agreement had been reached. The Defendants HORNER LAW GROUP, PC ' 8 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 wanted t0 discuss early settlement and an agreement wasn’t reached - such is litigation. T0 2 insinuate that counsel was “so upset”, invested, or had such high hopes for an early settlement is 3 nonsense. The fact and reality is that Plaintiff was and is required t0 file the Request For Entry 0f 4 Default. Plaintiffcomplied with the law and his doing so cannot be “totally and completely Without 5 merit” in that it was a compulsory legal action. 6 Moreover, n0 default was ever entered. The net outcome of Plaintiff’s action - but for 7 Defendants’ frivolous Motion for Sanctions - is zero. Defendants’ counsel knows this because he 8 filed this Motion for Sanctions and a Demurrer 0n the same day - if he believed that the default 9 was entered then of course, he would be barred (until the default was set aside) from filing such 10 motions. The fact that Defendants even brought forth this Motion, as discussed more fully herein, 11 itself warrants sanctions against Defendants. 12 C. Defendants Statement That They Were Not Provided Warning Prior to the 13 Request for Entrv 0f Default Being Filed Is False 14 In their Motion, Defendants simply copy and paste the Santa Clara County Code of 15 Professionalism to somehow argue that Plaintiff’s counsel violated that code of professionalism. 16 Defendants are again wrong. 17 First, the Santa Clara County Bar Association Code of Professionalism section cited 18 regarding defaults is not only legally irrelevant here because “no substantive order 0r action was 19 ever taken against” the Defendants but factually inapposite to the case here. Defendants argue that 20 “. . .Plaintiff’s lawyer tried t0 take advantage of the situation by filing a Request to Enter Default 21 without giving adequate time for Defendants t0 cure the default.” Motion p. 6: 14 - 16. To be 22 clear, there was never a default entered. Therefore, there was never a “default to be cured.” 23 Moreover, again, Defendants were given warning prior to the filing 0f the Request for Entry of 24 Default being filed. 25 Section 15 0f the Santa Clara County Bar Association Code 0f Professionalism, provides 26 that a lawyer should not seek “to obtain a judgment 0r substantive order without giving that 27 opposing party sufficient advance written warning t0 allow the opposing party t0 cure the default.” 28 Six days before Defendants’ response t0 the Complaint was due Defendants were provided written HORNER LAW GROUP, PC ' 9 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 warning. Further, Plaintiff did not seek to obtain a judgment or substantive order. Defendants’ 2 argument is in direct contravention of the Santa Clara County Bar Association Code of 3 Professionalism cited. 4 D. Defendants Filing of Sham Declaration Warrants Sanctions Being Issued Against Them and Creates a Good-Faith Grounds t0 Challenge that 5 Declaration 6 Defendants continuously misrepresent the facts and law regarding their declaration under 7 C.C.P. § 430.41(a)(2) and in doing so, admit that they aren’t afforded any automatic extension 8 thereunder. As such, Plaintiff rightfully requested the Defendants’ entry 0f default. The fact that 9 the Request was denied and not entered by the Court creates a genuine issue of fact and law for the 10 Court t0 rule on and decide Plaintiff’s Motion t0 Strike the Declaration. Therefore, sanctions 11 should not issue against Plaintiff in that its conduct was not only made With substantial legal merit 12 but as set forth above, was also legally required. 13 The court clerk in this case had and has no authority t0 determine the legal sufficiency 0f 14 the pleading or motion filed by the defendant. Thus, as long as it appears to be one 0f the 15 permissible responses (answer, demurrer, etc.), the clerk must refuse a request by a Plaintiff to 16 enter an Defendant’s default; and any default actually entered by the clerk would be void. Stevens 17 v. Torregano (1961) 192 CA2d 105, 112-1 13. Entry of default judgment by clerk is ministerial act 18 Which may be compelled by mandamus. W. A. Rose C0. v. Municipal Court for Oakland- 19 Piedmont Judicial Dist, Alameda County (App. 1 Dist. 1959) 176 Cal.App.2d 67. “If the 20 document filed bears a title that would preclude entry of default, although insufficient, plaintiffs 21 remedy is a motion t0 strike concurrently with a motion to enter default.” B. Entry of Default, Cal. 22 Prac. Guide Civ. Pro. Before Trial Ch. 5-B. 23 The conditions for an extension under C.C.P. § 430.41(a)(2) are the following - none of 24 which are at-issue here, and which are in fact contradicted by Mr. Maynard’s declaration: 1) an 25 inability t0 meet and confer; 2) a declaration stating that a good faith attempt t0 meet and confer 26 took place but did not happen; and 3) the reasons Why the parties could not meet and confer. Z First, the declaration 0f Scott Maynard contains no such factual showing. A standard RNWPC ' 10 ' WalnutCreek’Califmfia94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 judicial council form exists with statutory language required t0 obtain such an extension. No such 2 language is included in Mr. Maynard’s declaration and no such judicial council form was signed 3 and filed by the Harts’ attorney. 4 Moreover, the declaration of Scott Maynard directly confirms that the Harts are n_0t allowed 5 to be afforded any relief because Mr. Maynard admits he met and conferred and thus was never 6 “unable t0 meet and confer” - a condition precedent to being afforded any relief. 7 The Harts’ counsel admits in his two declarations signed under penalty of perjury that he 8 already met and conferred. Specifically, the Hart’s counsel admits the following: o “I initially contacted counsel for the plaintiff and gave him some general 10 information concerning the defects in the complaint upon Which I plan to demur.” See Hifai Decl., EX C. at p. 2: 3 - 4. 1 1 0 “At the time 0fmy first offer, I explained that I believed that the Complaint could 12 not withstand demurrer, and I gave Plaintiff’s attornev several specific reasons with explanations and indicated that the defects could not be cured bv 13 amendment due t0 the nature 0f the defects. While I expected a substantive 14 response t0 my demurrer issues. . .” Hifai Decl., EX D at p. 2: 2 - 6. 15 o “Pursuant to Code of Civil Procedure §430.41, I am required t0 provide the Plaintiff with legal support for the basis of the deficiencies Which I alreadv disclosed t0 the 16 Plaintif Hifai Dec1., Ex. C at p. 2: 10 - 11. 17 o Moreover, due t0 other professional obligations and the complexity 0f the issues 18 that Will be presented on demurrer, I have not had sufficient time available t0 delineate all 0f the specific legal authority for each 0f those deficiencies that will 19 be the basis of the demurrer. Thus, I have not yet had time t0 prepare for the 20 follow-up in-depth meet and confer With Plaintiffs’ counsel 0n the proposed demurrer, as required by Code of Civil Procedure §430.4l(a)(l).” Id. at p. 2: 20 - 21 25. 22 0 “Likewise, Defendants needed additional time t0 discuss all of the details of the 23 legal issues.” Motion For Sanctions p. 9: 11 - 12. 24 There is no “follow-up in-depth meet and confer” requirement under C.C.P. § 430.41(a)(2) 25 which warrants an extension t0 respond t0 the Complaint. In fact, once the Hart’s counsel 26 determined that Plaintiff’s counsel did not respond to his first meet and confer efforts, then he 27 should have filed a Demurrer 0n June 14th. C.C.P. § 430.41(a)(2) provides that if the opposing 28 party does not respond to the meet and confer efforts, the demurring party must timely file a HORNER LAW GROUP, PC ' 1 1 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 demurrer so long the as the demurring Party declares, “That the partv who filed the pleading 2 subiect t0 demurrer failed t0 respond t0 the meet and confer request 0f the demurring partv 3 0r otherwise failed t0 meet and confer in 200d faith.” (Emphasis Added). There is n0 4 requirement for any “further” and “follow-up” meet and confer efforts - nor is it grounds for an 5 automatic extension under C.C.P. § 430.41(a)(2) for the want 0f a “further in-depth meet and 6 confer” after one has already taken place. 7 The Harts’ counsel’s own declarations signed under penalty ofperjury confirms that he met 8 and conferred but then did not timely file a response - which is n_0t a statutory ground for an 9 extension under C.C.P. § 430.41(a)(2). His Declaration does not (because he cannot truthfully) 10 state that he tried and couldn’t meet and confer - and as such, the Harts are not l_ega_lly afforded 11 any relief under C.C.P. § 430.41(a)(2). This is plain and simple. 12 While the Clerk 0f the Court is not afforded any authority to determine the legitimacy 0r 13 the merits oer. Maynard’s declaration, this Court is. The Declaration speaks for itself. A “further 14 in-depth follow up” meet and confer session by its own admission, means, a meet and confer 15 session has already taken place. Therefore, the Harts” counsel never “attempted to meet and 16 confer” but could not. Tellingly, his declaration does not contain such a statement and in fact states 17 the opposite. The facts as sworn by Mr. Maynard are clear - as is the law. There can be n0 18 automatic extension given the facts presented t0 the Court here under penalty of perjury. Despite 19 these clear facts, in their Motion, Defendants continuously misrepresent that Defendants are 20 entitled to an automatic extension when they in fact are not. Nonetheless, at a minimum, a genuine 21 and material dispute exists which precludes the issuance of sanctions because Plaintiff could not 22 and did not act With “subj ective bad-faith.” 23 E. Defendants’ Motion is Procedurallv Improper 24 1. The Filing 0f a Request for Entry of Default That Was Never Entered 25 Does Not Constitute an “Action 0r Conduct” Under C.C.P. 8 128.5 26 Under C.C.P. § 129.5(b)(1), “Actions 0r tactics” include, but are not limited t0, the making 27 0r opposing 0f motions 0r the filing and service of a complaint, cross-complaint, answer, or other 28 responsive pleading.” “The mere filing of a complaint without service thereof0n an opposing party HORNER LAW GROUP, PC ' 1 2 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 does not constitute “actions or tactics” for purposes 0f this section.” Id. 2 Here, Plaintiff filed a Request for Entry 0fDefault which was never entered, and which was 3 rejected. This is not the filing of a motion, opposing 0f a motion, or filing and serving a complaint, 4 or cross-complaint. On this basis alone, the Motion should be denied. 5 2. Defendants’ Motion Should Have Never Been Filed Because the 6 “Challenged Action” Was “Appropriately Corrected” 7 Under C.C.P. 128.5 (f)(1)(B), “If the alleged action 0r tactic is the making or opposing 0f 8 a written motion or the filing and service of a complaint, cross-complaint, answer, or other 9 responsive pleading that can be Withdrawn or appropriately corrected, a notice of motion and 10 motion may be served, but may not be filed With 0r presented t0 the court, unless 21 days after 11 service of the motion or any other period as the court may prescribe, the challenged action or 12 tactic is not Withdrawn or appropriately corrected.” Here, again, the “challenged action” is 13 tantamount t0 absolutely nothing and at a very minimum was “appropriately corrected” in that 14 the Court rejected the filing of the Request for Entry 0f Default on June 16, 2021 - the day it was 15 filed. Defendants should never have brought their Motion in that their alleged “challenged 16 action” - the filing of the Request for Default and request that the Request be Withdrawn - was 17 “appropriately corrected in that it was rejected and no default was ever entered. 18 F. Plaintiff Should Be Awarded Sanctions in His Favor and Against Defendants 19 Under C.C.P. § 128.5(g), “A motion for sanctions brought by a party or a party's attorney 20 primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless 21 increase in the cost of litigation, shall itself be subject t0 a motion for sanctions.” (Emphasis 22 added). Further, the court may award t0 the party prevailing 0n the motion the reasonable 23 expenses and attorney's fees incurred in presenting or opposing the motion. Simply put, the 24 Defendants should have never filed their Motion for Sanctions. CCP § 128.5(f)(1)(C). 25 Plaintiff s counsel gave Defendants every opportunity after filing their baseless Motion for 26 Sanctions to take it off calendar, however the Defendants refused to d0 so. See Hifai Decl., 1H] 10 27 - 12, Exs. G - I. 28 Defendants filed a haphazard Motion demanding thousands 0f dollars in fees, When they HORNER LAW GROUP, PC ' 1 3 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 cannot establish that the mere requesting 0f an entry 0f default falls Within the definition 0f an 2 “action” under C.C.P. § 128.5, and when that “action” itself was corrected barring the filing of 3 this Motion in the first place. Even if the Defendants can overcome those procedural hurdles, 4 which they cannot, n0 default was ever entered and the Defendants cannot establish an improper 5 purpose in that Plaintiff complied with the law. Further, Defendants cannot establish that Plaintiff 6 acted in “subjective bad-faith” When, after warning Defendants, relying 0n C.R.C. § 3.1 10, in 7 light 0f the sham declaration 0f Defendants, that Plaintiff filed a Request for Entry 0f Default 8 which resulted in no default being entered. As such, there mere filing of a (rej ected) request for 9 entry of default, here was not “without merit or for the sole purpose of harassing an opposing 10 party” and “to needlessly increase the cost of litigation.” 11 Conversely, there was n0 basis other than t0 “needlessly increase the cost of litigation” 12 for the Defendants t0 file this Motion and refuse to take it off calendar. Here, the Defendants 13 filed this Motion merely as a litigation tactic to increase the cost 0f litigation. Plaintiff, Who is 14 disabled, was required to spend unnecessary attorneys’ fees in defending this Motion. In doing 15 so, Defendants” real litigation tactic is t0 drain Plaintiff 0f his resources in hopes 0f making 16 Plaintiff financially unable to continue his lawsuit. 17 There is absolutely no basis other than trying to financially bleed the Plaintiff that 18 Defendants brought this Motion - n0 harm was done t0 them and they had t0 expend zero fees 19 When the Request for Entry 0f Default was rej ected. Tellingly, this Motion itself warrants 20 sanctions. As such, Plaintiff should be awarded $6,525 in sanctions. Hifai Decl., 1114. 21 1. Defendant Seeks Fees Which Were Not Incurred 22 Defendants’ counsel seeks fees for an “expected motion for relief from entry of default” 23 which Motion will never need to be filed because the Defendants’ defaults were never entered - a 24 fact, Defendants’ counsel somehow only learned 0f in mid-October. See Hifai Decl., EX. I. 25 Defendants are seeking fees for work that will never happen. T0 that end, Defendants allege that 26 they spent 5.9 hours “reviewing the situation, doing legal search, preparing this motion, and the 27 accompanying documents” - at best, Defendants” 5 plus out the 9 pages 0f their Motion are copied 28 and pasted from C.C.P. § 430.41, the Santa Clara Code 0f Professionalism and C.C.P. 128.5. This HORNER LAW GROUP, PC ' 14 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 1 is patently unreasonable. 2 IV. CONCLUSION 3 The Defendants Motion for Sanctions should be denied in that it is frivolous and made in 4 bad-faith and so as t0 needlessly drive-up Plaintiff’s litigation costs. There was and is n0 factual 5 or legal basis to bring this motion based upon Plaintiff filing a request for entry 0f default where 6 no default was ever entered. 7 The Defendants had every opportunity t0 take this baseless Motion off calendar, but they 8 refused. As such, this Court should deny the Motion and award $6,525 as sanctions and fees in 9 favor of Plaintiff and against Defendants. 10 11 Date: October 20, 2021 HORNER LAW GROUP, P-C- 12 7 f" B . /V y. 13 Clifford R. Homer, Esq. 1 4 Paymon Hifai, Esq. Attorneys for Plaintiff, Plaintiff Frederick Hart, Jr. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, PC ' 1 5 ' 800 S. Broadway, Suite 20 WalnutCreek’Califonfig94596 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 HORNERLAW GROUP 800 s Bmadway, Sun: zoo Walnut Creek, California 94596 4; \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case Name: Frederick Hart, Jr. v. Michael Hart, et. al. Case N0: Santa Clara County Superior Court Case No. 21CV378991 I am employed in the County 0f Contra Costa, State of California. My business address is 800 S. Broadway, Suite 200, Walnut Creek, California 94596. I am over the age of eighteen years, and not a party t0 the within action. On October 20, 2021, I caused to be served the Within: PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 DECLARATION 0F PAYMON HIFAI, ESQ. IN SUPPORT 0F PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO C.C.P. § 128.5 on the party(ies) listed below, addressed as follows: Douglas Scott Maynard, Esq. 1 151 Minnesota Avenue San Jose, CA 95125 Attorney for Defendants BV Electronic Service [C.C.P. 1010.6]. By causing a true copy thereofto be transmitted by electronic transmission t0 the attorneys shown below in accordance with C.C.P. 1010.6 and the local rules of the court. Executed October 20, 2021 at Walnut Creek, California. By: Sharon Piserchio PROOF OF SERVICE