Response ReplyCal. Super. - 6th Dist.March 2, 2021,_. .-»- »-O\OOO\IO\UI-JAUJIQ .- Ix) 20 22 24 26 27 DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Ave. San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408)293-8507 Attorneys for Defendant, Michael and Frances Han, Tracy DeGregorio Han And Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA FREDERICK HART, JR., Plaintiff, VS. MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART, Defendants. \./\J\4x.zx.z~.z\4\/\/\J\J\J\.x\/\/\/\./\/\/ Case No. 21CV378991 REPLY BRIEF IN SUPPORT OF MOTION FOR MONETARY SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.5 MONETARY SANCTIONS BASED ON PLAINTIFF SUBMITTING AND PURSUING A REQUEST TO ENTER DEFAULT AFTER A CCP §430.4l(a)(2) DECLARATION WAS FILED WITH THE COURT GRANTING AN AUTOMATIC EXTENSION OF TIME TO RESPOND Date: November 2, 2021 Time: 9:00 a.m. Dept: 7 Judge: Honorable Christopher Rudy REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §128.5 Hart v. Hart, et al. -- Case No. 2lCV37899l l Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/26/2021 2:56 PM Reviewed By: L. Nguyen Case #21CV378991 Envelope: 7540846 21CV378991 Santa Clara - Civil \OOO\lO\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. OVERVIEW This motion became necessary because Plaintiffs counsel developed a plan to leverage settlement discussions by pursuing a default when there was absolutely no basis for doing so. It started when Plaintiffs attorney submitted a Request For Entry of Default, 2 days after Defendants obtained an automatic 30 day extension of time to file responsive papers under Code of Civ. Proc. §430.41(a)(2). Plaintiffs counsel then followed up on the tactic and threatened to file a motion to strike the Meet and Confer Declaration, if his tactic failed. Afterward, he went further and actually prepared the Motion to Strike the Declaration, he served it as if he was submitting it to the Court, but he didn’t file it and continued with his conduct. II. FACTUAL UPDATE A. Plaintiff Took 3 Actions In Furtherance Of His Bad Faith Tactic. Plaintiff counsel used the improper Request For Entry of Default as an oppressive settlement leverage tool. First, he efiled his Request For Entry of Default on June 16, 2021, two days after the §430.4l(a)(2) Declaration had been filed. On June 21, 2021, Defendants’ counsel prepared and served this §128.5 motion, requesting that Plaintiffs counsel withdraw the Request For Entry of Default and giving him 21 days to do so. Two days later, on June 23, 2021, and 7 days after he submitted the Request to Enter Default, Plaintiffs counsel again attempted to leverage a settlement based on his June 9, 2021 settlement offer to the Defendants. In an email to me, he made a transparent attempt to get my clients to accept that last settlement offer from June 9, 2021. Plaintiffs counsel’s email made the pitch: “...Keep in mind, that your [128 5] Motion and proposed action requested is not even ripe because the Clerk has not yet entered a default. As explained in my June 16')’ correspondence to you,1 the request is a placeholder for our forthcoming Motion to Strike the Declaration and enter your clients’ defaults - prohibiting you from filing a response thereafter, showing the Court our attempt to request the default (after warning to you) or your having to at least have met and conferred as to how or why you should be able to file a responsive pleading despite it being untimely. If the Clerk rejects our request for entry of default because of your declaration, then we will file the Motion to Strike. As of now, there is no requested action or frivolous filing. " Of course, it was false that there was no requested action or frivolous filing because the Request For Entry of Default was pending. His follow up threat to file a “forthcoming Motion to 1 In the June 16, 2021 email, Plaintiffs counsel twice tries to leverage settlement. In that email, he presents a 9 line 159 word paragraph complaining about the settlement failures, and tying it to his threatened actions to obtain the default. Earlier in that same email, he devoted another 10 lines to discussing the history of the failed settlement discussions from the prior week, and tying that into the meet and confer attempts. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §128.5 Hart v. Hart, et al. -- Case No. 21CV37899l 1 0O\IO'\'JI-Jk 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Strike the Declaration and enter your clients’ default” was an act in furtherance of the tactic to gain settlement leverage over the failed settlement talks. In fact, Plaintiffs counsel did follow through on that threat and prepared and served the threatened Motion to Strike the Meet and Confer Declaration on August 18, 2021, 2 months later. His service was also one month and 14 days after the demurrer had already been filed with the court. B. Tying The Reguest For Entry Of Default To Settlement Talks. Plaintiffs counsel used the threat of a default as settlement leverage. While this could have been legitimate if the Defendants were already in default, they were not, and it is not proper where the time has not run to file the Demurrer and where the parties had been discussing the Demurrer issues. Plaintiff’s counsel clearly tied his proposed default to his settlement demands in the June 16, 2021 email to Defendants’ counsel, where he wrote: “Scott - I am in receipt of your attached Declaration purportedly filed under CCP 43 0.4 I (a) (2) seeking an automatic 30 day extension to respond to the Complaint due to an inability to meet and confer - however, the allegations contained in the declaration do not warrant or give rise to any automatic extension provided under CCP 430.41 (a)(2). Simply, there is no factual allegations[sic] that you made a good-faith attempt to meet and confer or explaining why you could not meet and confer. Quite the contrary, By your own admission, the case was too complex and you didn ’t have time to file a demurrer - blowing a deadline is far from a basis for an automatic extension. You then incorrectly state that, "settlement discussions failed on Thursday at 5:00 p. m. " - i.e. June 10"’. To be clear, your statement is factually incorrect. Settlement discussions terminated, at the latest, on June 9"‘. and per my email below, at 11 a. m. on June 8”’, I sent my client’s best and final settlement ofler and reminded you twice in that email that if the offer is not accepted, we would not grant any extension to your responsive pleading deadline - i. e., “This ofler shall expire by close of business tomorrow June 9th. I note a responsive pleading deadline of Monday June 14”’ - if the above ofler is not accepted, or an agreement in principle is not reached, the current responsive pleading deadline will stand", Your client rejected the best and trial offer on June 9”’ at 12:23 p. m. - see the attached email ~ and laughably, offered a 3?‘ less than its starting offer which expired days prior. Your claim that settlement discussions were somehow ongoing based upon the expiration of your client ‘s counterofler is a self-created argument and entirely wrong. The discussions ended when you rejected my client ’s ofler on June 9' . In act, you were on notice that as of June 8”‘ that if your client didn ’t accept our ofler of then there would be no more settlement discussions and your June 14"‘ responsive pleading deadline would stand. Your clients chose to reject the ofler As such, your declaration contains no facts which would warrant an automatic extension. Therefore, we will be requesting that the Court enter your clients ’ defaults and if the Clerk does not do so, then we will move to have the Court strike your declaration and have the Court order that their defaults be entered. [Emphasis added.] REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §128.S Hart v. Hart, et al. -- Case No. 2lCV378991 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sincerely. Paymon Hifai, Esq. Horner Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 " Even though the Meet and Confer Declaration had already been efiled with the Court, and even though it automatically granted Defendants a 30 Day Extension to respond to the Complaint, Plaintiffs counsel tries to leverage settlement with a threat that “blowing a deadline is far from a basis for an automatic extension." I interpreted this threat as him saying, “You just committed malpractice, so you had better get your clients to settle on my terms!” I further interpreted all of this as a threat that unless I called immediately and begged Plaintiffs counsel to let me accept his last offer, that he was going to take a default, that the event would be malpractice, and that there would be severe consequences for my clients. The fact that leveraging a settlement was Plaintiffs objective is confirmed by the fact that Plaintiff attaches numerous improper and inadmissible settlement communications to his opposition, without redacting the various proposed settlement amounts. Plaintiff objects to any of the actual settlement offers being included as part of the court file at all. Defendants further ask that those portions be redacted or stricken. C. When Plaintiffs Counsel Was Asked To Meet and Confer 111 Email In Late June And Early July, He Failed To Respond Concerning The Demurrer Issues. When Called, He Obstructed The Call, And He Ultimately Hung Up In A Fit Of Anger. On June 30, 2021, Defendant’s Counsel sent a detailed Meet and Confer Letter via email discussing the issues that were planned for the Demurrer. No response was received. On July 9, 2021, a more detailed follow up Meet and Confer letter was sent, again by email. No response was received to that letter, either. Later that day, Defendants’ counsel called to discuss the letters with Plaintiffs counsel. Attorney Paymon l-lifai took the call, but he refused to discuss any demurrer issues at all. Instead, he became abrasive, angrily began speaking over Defendant’s counsel, only talking about how the settlement talks had failed and how Defendants were in default because the §430.4l Meet and Confer Declaration was defective. Defendants’ counsel let him vent and then tried to meet and confer on the Demurrer, which only resulted in several more rants from Mr. Hifai about default and settlement. Eventually, Plaintiff s counsel hung up in a fit of anger. Defendant’s counsel was never allowed to speak on Demurrer issues at all. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §l28.5 Hart v. Hart, et al. -- Case No. 21CV37899l 3 \DOO\lO\UI-B 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Sometime in Mid-August The Reguest For Entg Of Default Was Rejected By The Default Clerk. Plaintiff filed his frivolous Request For Entry of Default on June 16, 2021. As is usual, it takes some time for the Default Clerk to review any request for default, and no action was taken for about 2 months. It is believed that in Mid-August, the Default Clerk finally reviewed the Request For Entry of Default, and determined not only that Defendants had filed a Meet and Confer Declaration under §430.41 before the Request For Entry of Default was submitted, but probably also saw that the Demurrer had already been filed (on July 14) by that time.2 Plaintiff s counsel purposely tries to mislead the Court on this point by emphatically misrepresenting that the Request For Entry of Default was rejected by the Default Clerk on the same day it was submitted (since the clerk stamped it as being received on the day it was efiled.) Plaintiffs counsel knows that this is a lie, and he knows exactly when it was rejected, because he received a rejection email when it happened 2 months later. E. In Furtherance Of His Bad Faith Tactic, Plaintiff's Counsel Prepared And Served A Motion To Strike The §430.41 Meet And Confer Declaration. On August 18, 2021, after the §128.5 motion had been filed against him, Plaintiffs counsel doubled down on his bad faith tactic to leverage a settlement over the default strategy, and he prepared and served a Motion To Strike the §430.4l(a)(2) Declaration, consisting of 62 pages including Exhibits, on the grounds that the §430.41(a)(2) Declaration is supposedly “a sham.” By the time he did this, the Demurrer its supporting documents had already been efiled and eserved on him more than a month earlier. The clear purpose of Plaintiffs abusive motion was again to leverage Defendants and their counsel, hoping that they would come crawling on their knees and beg for the Plaintiffs last settlement offer to be reinstated. The explicit threat that the filing of a “defective” §430.4l(a)(2) Declaration would implicate a malpractice action was implicit in this frivolous motion. F. Contragy to Plaintiffs Position in Opposition, He Did Not “Appropriately Correct” The Situation After The §128.5 Motion Was Served On Him, He Doubled Down On His Frivolous Position With The Intention to Increase The Cost Of Litigation To The Defendants. After Plaintiff filed his improper Request For Entry of Default, he had the opportunity to correct his error and withdraw the request. He did not do so. Instead, he tried to push it through and continued with threats and preparing a frivolous motion that he never intended to file. This §128.5 2 Defendants do not know the exact date of the Default Clerk’s rejection, but presume that it was mid-August because Plaintiffs counsel prepared and served their Motion to Strike the §430.41 Meet and Confer Declaration on August 18, 2021. Defendants never received any direct notice that the Request For Entry of Default was rejected, other than a vague reference to “denial” in the Motion to Strike the Declaration. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §128.5 Hart v. I-Iart, et al. -- Case No. 2lCV378991 4 \D00\lO\UI& 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion was served on him on June 16, 2021. Plaintiff had 21 days to withdraw his Bad Faith Request For Entry of Default and stop making default threats and motions. Instead, he continued making settlement threats, and 2 months afterwards prepared and served (but apparently did not file) a motion to strike the §430.41(a)(2) Declaration. Thus, contrary to his statements in opposition, Plaintiff did not “Appropriately Correct” the “Challenged Action,” he compounded it over and over again. III. LAW AND ARGUMENT A. Pursuing A Default To Increase Settlement Leverage After A §430.41§a]_(2[ Meet And Confer Declaration Has Been Filed Is A Bad Faith And Frivolous Tactic Under §128.5. When the settlement discussions fell apart, there had not been a proper meet and confer that included an in depth discussion of the Demurrer issues, as required under §430.4l(a). Defendant’s counsel believes that the Meet and Confer process can and often does remove many issues from the Court’s calendar, but only if Plaintiffs counsel will thoughtfially consider the points being raised. In this case, plaintiffs counsel had initially declined to discuss any of those issues, saying he was not interested in discussing them while there was a possibility of settlement. When the settlement discussions fell apart at the end of the day on June 10, 2021, there were only a few days left before a responsive pleading was due. With no response from Plaintiffs counsel, Defendants filed a Meet and Confer Declaration under §430.4l(a)(2), explaining that the Meet and Confer process had not been completed due to the settlement discussions. Once such a §430.41(a)(2) Declaration is filed, under §430.4l(a)(l) Defendants are automatically granted a 30 day extension to complete their meet and confer obligations under that statute. The purpose of the automatic extension is that if the meet and confer is not complete, Defendants should be able to extend the time to further research, fully discuss and negotiate over the issues that will be raised in the demurrer. This gives both parties the opportunity to resolve issues that do not really need the Court’s time and attention. However, the process requires good faith and sincerity on the part of both attorneys. When one party refiises to participate in the process, as happened here, or tries to sabotage it, the statute does not accomplish its purpose. Plaintiffs counsel was very unhappy that settlement discussions did not go his way. So, he decided to be punitive and try to take a default, even though there was no basis for a default. He didn’t want to respond to the Demurrer issues, and he refused to meet and confer when he was sent letters and called later to do discuss the legal basis for the demurrer. His only interest was leveraging settlement with a phony claim that the Defendants were in default. REPLY BRIEF IN SUPPORT OF MOTION FOR SAN CTIONS PURSUANT TO CCP §128.5 Hart v. Hart, et al. -- Case No. 2lCV37899l 5 \OO0\lO\U1-P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sanctions under §128.5 are authorized for “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” B. Pursuing A Default When It Is Not Justified Is An “Action Or Tactic” Under §l28.S. Plaintiff claims that frivolously pursuing a default, because he disagrees with the contents of a §430.4l(a)(2) Declaration, and in order to gain settlement leverage is not an “Action or Tactic.” Clearly, pursuing a frivolous default is an “Action or Tactic” under §l28.5. Section 128.5 doesn’t specifically define exactly what is an “Action or Tactic,” it merely describes the terms generally. Under the statute, certain examples are specifically included within the term “actions or tactics,” and one specific item is excluded. Other matters, however, are left for the Courts to interpret. Thus, a comprehensive definition is not provided by the statute, but is left for the Court to determine based on the circumstances of each case. Thus, whether a strategy pursued by counsel meets the definition of “Actions or Tactics” is left to the trial court. What the statute does provide is as follows: (b) For purposes of this section: (1) “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. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics ” for purposes of this section. " Thus, motions, and a complaint or a responsive pleading are definitely included within the broad definition, but so are many other unspecified matters. On the other side of the coin, an unserved complaint is not included, presumably because there is no deadline for the Defendant to respond to such a complaint and the case is not yet active and perhaps there is no harm to a Defendant from an unserved complaint. However, Plaintiff argues that his actions in attempting to take a default, and in threatening to file and actually preparing and serving a frivolous motion to strike the Meet and Confer Declaration are not actions or tactics because they do not fall within the items specifically “included” in the section. However, the section says Actions or tactics “include, but are not limited to” the items that follow. It does not limit it to those items. Thus, Plaintiffs argument that his actions are outside the statute are not correct. Even a misrepresentation to a court has been held to be an “Action or Tacticz” “A misrepresentation of material fact [to the Court] is subject to sanction under section 128.5. ” Levine v. Berschneider, (2020) 56 Cal.App.5th 916, 922 [Attorney lied to Court about status of receiving settlement checks]. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §l28.5 Hart v. Hart, et al. -- Case No. 2lCV37899l 6 \OOO\lO\ 10 11 12 13 14 l5 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Before A Demurrer is Filed, Both Parties Have An Obligation To FULLY Meet and Confer And Plaintiff Is Not Justified In Pursuing A Default When A Meet And Confer Declaration Has Extended The Time To File A Responsive Pleading. Plaintiffs counsel knew that Defendants were not in default when he filed his Request For Entry of Default. Plaintiff was using the default issue as a strategic plan to get Defendants back to his suggested settlement position. The tactic was frivolous, and never should have been presented. However, by making threats, Plaintiff believed that he could gain a settlement advantage. Plaintiffs Opposition to this motion is based primarily on two basic false premises: 1) There is no obligation under Code of Civ. Proc. §430.4l(a)(l) for either party to fully meet and confer, i.e. that a perfunctory discussion of less than a minute would suffice; and 2) After Defendants file a §430.41(a)(2) Declaration that Plaintiff doesn’t like, Plaintiff is supposedly mandated by law, on threat of sanctions, to file a Request For Entry of Default, and if that is document is rejected by the clerk, Plaintiff is required to follow through on his frivolous position and prepare and serve, but not file a Motion to Strike the §430.41(a)(2) Declaration.3 Plaintiff has obviously read §430.41(a) because he quotes parts of it in his Opposition. He argues that going through the motions of Meeting and Conferring, but not really Meeting and Conferring is all the statute requires. However, Plaintiffs counsel ignores the portion of the statute that sets forth a FULL and COMPLETE Meet and Confer obligation by both sides. First, with regard to the Defendant’s obligations, the statute requires: “(a)(l) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. . .. ” As indicated in BOLD, the demurring party is required to do 2 things. First, the demurring party shall identify all of the specific causes of action it believes are subject to demurrer. In the initial settlement discussions, Defendants discussed the cause of action subject to demurrer, and further, gave Plaintiff some general information concerning the defects upon which Defendants plarmed to demur, but not the legal support for those deficiencies. See, Meet and Confer Declaration p.2, lines 3-6. This discussion lasted less than a minute because Plaintiffs counsel declined to discuss it further. Thus, due to ongoing settlement discussions, the second requirement for Defendant’s counsel had not yet been met. Under the second part of the meet and Confer requirement, the demurring party is required to “identify with legal support the basis of the 3 The fact that Plaintiff did not file this motion shows that he knew it was frivolous. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §l28.5 I-Iart v. Hart, et al. -- Case No. 2lCV378991 7 \O0O\lO'\ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deficiencies.” This did not occur both because Plaintiff did not want to hear about these issues, and because Defendants had not fiilly prepared the legal support for those issues. However, Defendants’ obligations are not the only part of the Meet and Confer process that is required of the parties. Plaintiff has obligations, as well. And both parties are required to work together to see that this process is completed in a good faith manner. The statute then goes on to describe the Plaintiffs obligations to meet and confer: ...”The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. ” Id. Under this third part, it is the Plaintiffs obligation to respond fully and provide legal support for its position: “. . . The party who filed the complaint, ...shall provide legal support for its position that the pleading is legall_v sufficient.” Plaintiffs counsel never did this, because he declined to respond to the substance of the reasons for the demurrer, and only responded to the monetary aspects of settlement. See, Decl. of D.S. Maynard re CCP §128.5 Sanctions page 2, lines 2-8. After the settlement discussions failed, he did not try to meet these obligations. Defendants’ counsel tried to continue the Meet and Confer discussions to get the Plaintiffs view and his legal authorities. Thus, although Defendant’s counsel had tried to begin the discussions, Plaintiffs counsel cut them short, and additional research and the back and forth of a legitimate meet and confer had not occurred. This was Plaintiffs obligation as well as Defendants’. As a result, Plaintiffs frivolous argument that there was no basis for the automatic extension in order to further meet and confer is just that: frivolous. D. When The Meet And Confer Declaration Was Filed Plaintiffs Attorne Sent An An Email Making Frivolous Arguments About The Content Of The Declaration And Tying His Discussions To Prior Failed Settlement Discussions. As mentioned above, as soon as the Meet and Confer Declaration was filed by Defendants’ counsel, Plaintiffs counsel flew into a rage, and sent an angry email 2 days later, on June 16, discussing his dissatisfaction with the failure of the settlement talks, and urging his default strategy as a means to gain leverage. All of this was a frivolous position. Plaintiff should have called up to continue the Meet and Confer process, marshaled his legal authorities and acted in good faith. Instead, he continued with his bad faith tactics, and when his Request For Entry of Default was rejected by the Default Clerk 2 months later, he doubled down again and prepared and served a REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §l28.5 Hart v. Hart, et al. -- Case No. 21CV378991 8 U1-l>UJI\.) \O0O\lO‘\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion to strike the Meet and Confer Declaration. All of this despite the fact that the Demurrer had already been filed for over a month when he prepared and served that motion. E. After The Demurrer was Filed, Plaintiff Doubled Down On His Tactic By Preparing and Serving, But Not Filing A Motion To Strike The §430.41§a[j2) Declaration. Plaintiff was given 21 days to withdraw his frivolous position that Defendants were in default and his argument that the Meet and Confer Declaration was supposedly “a sham,” and he did not do so. At the end of the 21 day period, the Request For Entry of Default had not yet been processed or rejected by the Clerk at this point, so this motion was filed on July 16, 2021. (2 days after the Demurrer was filed.) Plaintiff then decided to double down on his tactic of pressuring for a settlement with his frivolous position that Defendants were in default. So, on August 18, 2021, he prepared and served a 62 page Motion to Strike the §430.41(a)(2) Declaration on the grounds that it is “a sham.”4 Although no copy of this frivolous motion was received by efiling, some attorneys serve motions by mail and leave opposing counsel off the efile service, so Defendants had no way to know if the motion was ever submitted to the Court. Due to delays in approvals, Defendants have been left with the impression that this motion was pending. However, it appears that it was not filed, and that it was again intended as a threat in order to gain settlement leverage. F. The Bad Faith Tactic Was Not “Appropriately Corrected” Within 21 Days As Claimed By Plaintiffs Counsel. Plaintiffs counsel misleads the court with an obviously false narrative when he claims on page 13 of his brief that under §l28.5(f)(1)(B) he “appropriately corrected” his attempt to take the Defendants’ default. He did nothing of the kind. In this section of the Opposition brief, he presents false evidence to the Court, falsely stating that the Default Clerk rejected his attempted filing on June 16, 2021, the same day it was filed. Plaintiff knows that this is false because he obviously did not receive it back that day, and the clerk’s office does not immediately accept or reject any but the automatic acceptance documents. A Request For Entry Of Default is never accepted or rejected on the same day in Santa Clara County. Instead, the Default Clerk processes the request when they are able, usually at least a couple of months after it is submitted. When the clerk processes a submission, he or she date stamps each document with the day it was submitted, not with the day it is approved or 4 Defendants were never given any notice that the Request For Entry of Default was rejected by the Default Clerk, either by the clerk or by the Plaintiffs attorneys. While the Motion to Strike the Meet and Confer Declaration obliquely refers to the request being “denied by the Clerk,” Defendants had no way to know if this was a final decision, or if Plaintiffs attorney had ongoing communications with the Clerk to try to get the Default entered. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §l28.5 Hart v. Hart, et al. -- Case No. 21CV37899l 9 \D%\lO\ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rejected.5 As of the end of the 21 day period, the clerk had taken no action on the Request for Entry of Default, and Plaintiff had taken no action to withdraw it. This statement that it had been withdrawn within 21 days is a false statement to the Court. Moreover, Plaintiffs counsel is well aware of the actual date, because on August 18, (likely the approximate date that the clerk rejected the Request) Plaintiff prepared and served a complete motion asking the court to strike the Meet and Confer Declaration, 1 month and 14 days after the Demurrer had actually been filed. As a result, Plaintiffs attorney was still pursuing a default 2 months later, and this was even a month and 14 days after the Demurrer had been filed. So, even if the Meet and Confer Declaration had been stricken, Plaintiffs counsel would not be entitled to the entry of a default, because the responsive pleading had already been filed and by then the default, if it could be argued that it even existed, was moot. G. Attaching Settlement Communications To Opposition Brief Without Redactions. Defendants object to the amounts of settlement offers being attached to Plaintiffs Opposition. Evidence Code §1152 and 1154 make settlement discussions inadmissible, and the only purpose to include the amounts is to imply to the Court that there is merit to Plaintiffs case. There is no merit to Plaintiffs case. All offers by Defendants were out of family unity and generosity, not because anything at all has ever been owed to the Plaintiff. IV. CONCLUSION Plaintiffs repeated actions in pursuing a default were frivolous and in bad faith. These actions were intended to leverage a settlement that Plaintiff couldn’t get through normal charmels. Plaintiff and his counsel should be sanctioned as requested in the moving papers. Dated: October 26, 2021 ~ ~ I I ouglas Scott Maynard Attorney for Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART 5 Defendants do not have access to the rejection notice that Plaintiff received from the efiling system, but Plaintiffs attorney does. Plaintiffs attorney knows that he has presented false evidence and has misrepresented the date of this occurrence to the court. He should correct this false information before the hearing on this motion. REPLY BRIEF IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CCP §128.5 Hart v. Hart, et al. -- Case No. 21CV37899l 10