30-2019-011008 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hlectronically Filed by Superior Court of California, County of Orange, 05/26/2020 05:01:00 PM. p3-CU-OR-CJC - ROA #103 - DAVID H. YAMASAKI, Clerk of the Court By Giovanni Galon, Deputy Clerk. EVERETT DOREY LLP Seymour B. Everett, III, SBN 223441 severett@everettdorey.com Samantha E. Dorey, SBN 281006 sdorey @everettdorey.com Christopher D. Lee, SBN 280738 clee@everettdorey.com 18300 Von Karman Avenue, Suite 900 Irvine, California 92612 Phone: 949-771-9233 Fax: 949-377-3110 [Exempt From Filing Fee Government Code § 6103] JONES & MAYER Kimberly Hall Barlow, Esq., SBN 149902 khb@jones-mayer.com Bruce A Lindsay , Esq., SBN 102794 bal @jones-mayer.com Monica Choi Arredondo, Esq. SBN 215847 mca@jones-mayer.com 3777 North Harbor Boulevard Fullerton, CA 92835 Telephone: (714) 446-1400 Facsimile: (714) 446-1448 Attorneys for Plaintiffs CITY OF COSTA MESA and THE PEOPLE OF THE STATE OF CALIFORNIA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CITY OF COSTA MESA, a municipal corporation, and THE PEOPLE OF THE STATE OF CALIFORNIA, by and through the City Attorney for the City of Costa Mesa, Case No. 30-2019-01100863-CU-OR-CJC [ASSIGNED FOR ALL PURPOSES TO: MARTHA K. GOODING, DEPT. C32] Plaintiff, PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR SANCTIONS Vs. AGAINST DEFENDANT RAW RECOVERY LLC PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 IN THE AMOUNT OF NO LESS THAN $17,155 NATIONAL THERAPEUTIC SERVICES, INC., a Nevada corporation; RAW RECOVERY LLC, a California limited liability corporation; DOUGLAS [Filed Concurrently with Declaration of ALLENTHORPE, an individual and Trustee Christopher D. Lee and [ Proposed] Order] of the ALLENTHORP DOUGLAS L TRUST; DANIEL LOYER, an individual and Trustee Reservation: 73271655 of the ALLENTHORP DOUGLAS L TRUST | Hearing Date: ¥##&29x2020 Aug. 24, 2020 and Does 1-50, Time: 1:30 p.m. Dept.: C32 Defendants. Action Filed: September 25, 2019 Trial Date: None Set 1 PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATT ORY Sa 5050 CORD: NOTICE IS HEREBY GIVEN that on Jomex3%x303% at 1:30 p.m., in Department C32 of the Orange County Superior Court, Central Justice Center, located at 700 W. Civic Center Dr., Santa Ana, CA 92701, Plaintiffs City of Costa Mesa, and The People of the State of California ("Plaintiffs") will, and hereby do, move the Court for an order imposing sanctions in the amount no less than $17,155 in favor of Plaintiffs and against Defendant Raw Recovery LLC ("Defendant") pursuant to Code of Civil Procedure § 128.7 on the grounds that Defendant, in bad faith, filed a frivolous Motion for Protective Order against Plaintiffs ("Defendant's Motion"). Defendant's Motion 1) was presented primarily for an improper purpose, including to harass, cause unnecessary delay and/or needlessly increase the costs of litigation; 2) was based on legal contentions not warranted by existing law, with no nonfrivolous argument for extension, modification, or reversal of existing law or the establishment of new law; and 3) was not supported by any admissible evidence and made contentions that have no evidentiary support. Specifically, Defendant's Motion is frivolous and done in bad faith because 1) Defendant nonsensically seeks a preliminary injunction against the lawsuit itself, which is not how preliminary injunctions work; 2) Defendant nonsensically seeks a preliminary injunction when Defendant has no underlying claim for relief in this lawsuit, which is required to obtain any preliminary injunction; 3) Defendant nonsensically ties the requested injunction to completely irrelevant appeals in different actions involving different parties; 4) Defendant's arguments to justify a preliminary injunction were already rejected five times; 5) Defendant submits no Declaration, Requests for Judicial Notice, or admissible evidence to support any factual statements in its Motion; and 6) Defendant has no valid legal basis to obtain any stay of the proceedings. This Motion was served in accordance with the safe harbor provisions of CCP § 128.7 on April 10, 2020. [Lee Decl. J 13] More than 21-days have elapsed since service of this Motion on Defendant. To date, Defendant has refused to withdraw Defendant's Motion. Accordingly, Plaintiffs have filed this Motion with this Court. Plaintiffs’ Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Christopher Lee, and exhibits thereto, the Court’s x3 PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 records and files, and on any such other evidence and oral argument as may be presented at the hearing on this Motion. DATED: April 10, 2020 EVERETT DOREY LLP Seymour B. Everett, III Samantha E. Dorey Christopher D. Lee Attorneys for Plaintiffs CITY OF COSTA MESA AND THE PEOPLE OF THE STATE OF CALIFORNIA 3 PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. VIL VIL TABLE OF CONTENTS Page INTRODUCTION .....ooitiitieiie cities eects see esses sete saber esses sree sabe eee snes saee sane 7 FACTUAL AND PROCEDURAL BACKGROUND. ........ccccoceicumsmsemsusessmansarsssaessassssmassasssses 8 LEGAL STANDARD cotta eects sree sere cece sree see ees 10 DEFENDANT'S MOTION IS FRIVOLOUS AND SUBJECT TO SANCTIONS............. 11 A. A Preliminary Injunction Is Not Appropriate to Enjoin the Lawsuit Itself .............. 11 B. Defendant Is Not Making Any Underlying Claims that Would Allow Defendant to Pursue a Preliminary Injunction ............ccocceevieeieeieinieenieciecnecneenne 12 The SoCal and Yellowstone Appeals Are Not Relevant Here...........ccceeieiiiennnn. 13 D. Defendant Fails to Qualify for a Preliminary Injunction ..........cccccceeeevieiieeneennnenne 14 1. Defendant frivolously failed to provide any admissible evidence ............... 14 2 Defendant cannot show it is likely to succeed on the merits..........c...cc........ 14 3. Defendant will not suffer an irreparable Injury ..........ccoeceevieeieeieenneennenn 16 4 Case law does not support a preliminary injunction based on a multiplicity of judicial proceedings in this CONteXt.........ccoevueeveereernieennennn 17 DEFENDANT'S "ALTERNATIVE" REQUEST FOR A STAY IS ALSO OBJECTIVELY UNREASONABLE AND FRIVOLOUS .....cccccooiiiiiiiiinienieciececeeenne 17 A. Defendant's Counsel Two Times Before Attempted to Obtain a Stay in this Context Without Providing Any Valid, Legal Basis........ccocceeoeeiiiniinniciiicnecnienne 17 B. The "Alternative" Motion to Stay IS Frivolous ........cccccovevniiriiiieiniienieciececniene 18 PLAINTIFFS SHOULD BE AWARDED THEIR ATTORNEY'S FEES AS A MONETARY SANCTION AGAINST DEFENDANT ......coooiiiiiiiienie cece secre 21 CNEL LE TONITE EES EE EES 21 4- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page CASES Allen v. City of Sacramento, 234 Cal. App.4th 41, 65 (2015) ...cccceeriiimiiiiiiirenececeeeee 12 Bartholomew v. Bartholomew, 56 Cal. App.2d 216, 225 (1942) ...ccceeviiriiiiiiniienieeieceenee ne 17 Benitez v. Williams, 219 Cal. App.4th 270, 275 (2013)...ccciieeiiieeiie eee 19 California v. Latimer, 305 U.S. 255, 260 (1938) ccuucs ss sunuscs avussin ss cvs svsasss as samssss awsinan ssswsasss sesssan ins 16 City of South Pasadena v. Department of Transportation, 29 Cal. App.4th 1280, 1293 (CT 0 eso EE SS RE SE SE 12 Comfort v. Comfort, 17. Cal.2d 736, 741 (1941)... eects eee eee eae 20 Dodge, Warren & Peters Ins. Serv., Inc. v. Riley, 105 Cal. App.4th 1414, 1420 (2003)................. 14 Familystyle of St. Paul, Inc. v. City of St. Paul, Minnesota, 923 F.2d 91 (8th Cir. 1991). ............ 16 Grege v. Superior Court 194 Cal App.3d 134, 136 (1987) csssessesssumsussummsssssmnsssmmmsssmmasssssasmnsss 19 Guillemin v. Stein, 104 Cal. App.4th 156, 167 (2002) ....cccueeiiiriienieeieeeenee reece e ee e 10 In re Marriage of Sahafzadeh-Taeb & Taeb, 39 Cal. App.Sth 124, 128 (2019) .cccveevvvievvieeinieenns 10 Ivanoff v. Bank of America N.A., 9 Cal.App.5th 719, 734 (2017) ...ccoviieiieieinieeniecieceeenn 11,12 Keith v. Superior Court, 26 Cal. App.3d 521, 524 (1971) ceeeeiiiiiiiiieiie eects 11 Levy v. Blum, 92 Cal. App.4th 625, 635 (2001)......ccoiiriiiiieeieeeeieenee eects e e 11 Levy v. Cohen, 19 Cal.3d 165, 173 (1977) cutee ete sees eeeeeieeeseeeeaeeee 13, 18 Luke v. Baldwin-United Corp., 167 Cal. App.3d 664, 667-68 (1985) ....ccceeviirveiniicieiiinieeneee 10 Nartin v. Warfin, 2 Cal. 3d 752. 761-02. U1 970 ews sameness 13 People ex rel. Gwinn v. Kothari, 83 Cal. App.4th 759, 765 (2000) ......ccccueeiieniirieenieeieceeree ne 20 Profil Institut Fur Stoffwechselforschung GmbH v. ProSciento, Inc., 2017 U.S. Dist. LEXIS 29930 at #2, #5 (2017) cs suse ss xamsuc vsusn ss uwsnzn sass aan seasnss vss is 2455558 585055545 5555558 50555.083 12 Smith, Smith, Smith & King v. Superior Court, 60 Cal. App.4th 573, 578 (1997) ....cecevuveeuneee. 8, 14 Sommers v. City of Cathedral City, 225 Cal. App.3d 1047, 1073 (1990) .....ccevveeieineiriieniecreennes 11 Thomson v. Cont. Ins. Co., 66 Cal.2d 738, 746-47 (1967) .....cccevurreeeeeeeeeeeerieeeee c c eee ee ee e 19 Verdier v. Verdier, 203 Cal. APP.2d T24,; T35 (1962) ux. assnss sssss sass snssnss snssssnss sassass svssssn ss sasmass sswnssass 17 -5- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 West Coast Development v. Reed, 2 Cal. App.4th 693, 702 (1992)..ccxsmwessemsmssanumsmsssmmmssssensuasss 11 Western Electroplating Co. v. Henness, 172 Cal. App.2d 278, 283 (1959).....ccoviiriieieincinnienncns 14 Younger v. Jensen, 26 Cal.3d 397, 411 (1980) ...cccuuiiiiiiiiie ities ees 13 RULES COE CHV. PrOC. § 128.7 cee eee eee eevee ae eases seas ae seaeasaeaeaeaeanaeaes 8,9, 10,21 COE CHV. PIOC. § 526 eevee eee eevee eee ase aeae eases seas seas assess asanaeaeaeaeaeaesereaeees 17 Ode CoV. POC. § 52 caer eee eset tet e sees sees eats see es ee sese assesses sesensans 20 -6- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Monetary sanctions should be imposed against Defendant Raw Recovery LLC ("Defendant") pursuant to Code of Civil Procedure ("CCP") § 128.7, based on its bad faith and frivolous Motion for Preliminary Injunction, or, in the Alternative, a Stay of Proceedings ("Defendant's Motion"), currently before this Court. A copy of Defendant's Motion is attached as Exhibit "1" to the Declaration of Christopher D. Lee ("Lee Decl.") filed herewith. Defendant's Motion is in bad faith and frivolous as it makes no sense in multiple respects. Defendant seeks to enjoin enforcement of the City's Ordinances, including 15-11 and 17-05 ("Ordinances") that lawfully regulate group homes operating in residential zones within the City. The only current and intended enforcement by Plaintiffs is this lawsuit that seeks to enforce the City's Ordinances by nuisance abatement. There is no such thing as a preliminary injunction against the lawsuit itself - the entire point of a preliminary injunction is to keep the status quo outside of litigation while the lawsuit resolves. If you enjoin the lawsuit itself, it can never resolve, and a preliminary injunction turns into a de facto judgment and permanent injunction. Defendant's Motion does not make sense for a second reason. Defendant is not bringing any causes of action in this lawsuit. A preliminary injunction requires a likelihood of success on a cause of action that will result in injunctive relief for the party seeking it. Defendant has no causes of action and can never obtain any injunction in this lawsuit on any of its defenses. Defendant's Motion does not make sense for a third reason. Defendant asks for a preliminary injunction until the resolution of two federal appeals that have nothing to do with this action. Defendant was never a party to either of these appeals. The Yellowstone appeal deals exclusively with an entirely different Ordinance (14-13) not at issue in this lawsuit. Further, the SoCal appeal is focused solely on whether an entirely different entity, SoCal Recovery LLC, could show that it was likely to succeed on its claim that a reasonable accommodation should have been granted to it, based on it being within 12 feet of a 650 ft. separation requirement under the Ordinances. These appeals have nothing to do with the present action. In addition to Defendant's Motion not making any sense, Defendant failed to submit any 7. PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration or Request for Judicial Notice to support any of the factual statements in the Motion, or to authenticate, lay any foundation, or provide personal knowledge for any of the facts or Exhibits. Thus, Defendant has no admissible evidence to support its Motion, which is required to meet its burden of proof. This Court should only consider factual statements supported by admissible evidence, which are non-existent. Smith, Smith, Smith & King v. Superior Court, 60 Cal.App.4th 573, 578 (1997). Without any admissible evidence, the Motion must fail. Further, Defendant fails to support its request for injunctive relief and all of the factors weigh in favor of Plaintiffs to deny any injunction. The Ordinances require certain group home operators, including Defendant, to obtain a Conditional Use Permit ("CUP") in order to operate. Defendant did not qualify for a CUP but continues to operate in violation of the Ordinances. Thus, the City filed this lawsuit to abate the nuisance of Defendant's violation of the Ordinances and illegal operations. There is no question that Defendant violated the Ordinance and is subject to abatement. The only defense Defendant has to this action is its affirmative defense that the Ordinances are discriminatory and invalid, which fails. The Central District of California Federal Court and a jury have already ruled, at least five times, that the Ordinances are not discriminatory, that they are valid, and that Defendant's exact same arguments fail. Thus, Defendant has no likelihood of success on the merits of any claim in this lawsuit. Further, Defendant will suffer no harm-Ilet alone irreparable harm-if the preliminary injunction is denied. This lawsuit will continue and Defendant has a full and fair opportunity to defend itself before this Court. Defendant's Motion is devoid of any legal or factual support and was brought primarily for the improper purposes of harassment, causing unnecessary delay, and needlessly increasing the cost of litigation. As such, Plaintiffs’ Motion for Sanctions pursuant to CCP § 128.7 should be granted and Plaintiffs should be awarded monetary sanctions against Defendant in the amount of at least $17,155 for their reasonable attorney's fees incurred in this matter. II. FACTUAL AND PROCEDURAL BACKGROUND On December 4, 2018, Defendant Raw Recovery, LLC, as well as Defendant National Therapeutic Services, Inc, filed a housing discrimination lawsuit against the City in the United States District Court, Central District of California, Case No. 8:18-cv-01080 JVS (PIJWx), _8- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claiming that the Ordinances are discriminatory. [Lee Decl. at {2] In the instant action, Plaintiffs filed their Complaint on September 25, 2019. Plaintiffs allege two causes of action: (1) preliminary injunction and permanent injunction to abate a public nuisance and (2) public nuisance by violating the Costa Mesa Municipal Code ("CMMC"). One of the bases of the claimed nuisance is Defendants’ continued operation of a sober living home-in violation of the Ordinances-at 268 Knox Street, Costa Mesa, CA 92627. [See Complaint; Lee Decl. at {3] On February 20, 2020, Defendant filed its subject Motion. [Lee Decl. at 4; Defendant's Motion attached as Exhibit "1" to the Lee Decl.] As stated in Defendant's Motion, there are seven cases, in Federal Court, challenging the City's group home ordinances-Ordinance 14-13, 15-11, and 17-05. [See Defendant's Motion at 7:6-17] As of April 2020, the Federal Court ruled in five of the seven cases (the other two still pending) in favor of the City and held that the Ordinances are valid and not discriminatory, including a full jury verdict in favor of the City in Yellowstone Women's First Step House, Inc. v. City of Costa Mesa, Case No. 8:14-cv-01852 JVS (JCGx), a denial of a Motion for Preliminary Injunction in SoCal Recovery LLC v. City of Costa Mesa, Case No. 8:18-cv-01304 JVS (PJWx), and a grant of the City's Motions for Summary Judgment in Casa Capri Recovery v. City of Costa Mesa, Case No. 8:18-cv-00329 JVS (PJWx), Pacific Shores, LLC v. City of Costa Mesa, Case No. 8:18-cv-01170 JVS (PIWx), and in SoCal. [Lee Decl. at {5; Final Judgment in Yellowstone attached as Exhibit "2" to the Lee Decl.; Order Denying SoCal's Motion attached as Exhibit "3" to Lee Decl.; Orders Granting Summary Judgment against Casa Capri, Pacific Shores and SoCal attached as Exhibits "4" - "6" to Lee Decl.] With five of the seven federal matters already holding the Ordinances are non- discriminatory and enforceable (and the other two likely to hold as well), Defendant now makes a frivolous Motion for Preliminary Injunction based on the same failed arguments. Defendant's Motion is completely without merit and filed primarily for the purposes of harassment, delay and increasing costs, including by preventing Plaintiffs from pursuing their claims in this litigation indefinitely. These bad faith litigation tactics cannot be rewarded, and Defendant should be sanctioned under CCP § 128.7. 9. PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. LEGAL STANDARD Under CCP § 128.7, a party may move for sanctions against a bad faith and/or frivolous motion. These sanctions are meant to deter a party from engaging in conduct that is in violation of each of the statutes. CCP § 128.7(d). "The law concerning the kind of conduct sanctionable under sections 128.5 and 128.7 has, thus, largely returned to . . . [the] lesser standard, requiring only objective bad faith, applicable to section 128.7" In re Marriage of Sahafzadeh-Taeb & Taeb, 39 Cal.App.5th 124, 128 (2019). Trial courts have broad authority to impose monetary sanctions for actions or tactics made in bad faith which are frivolous, or which cause unnecessary delay. Luke v. Baldwin-United Corp., 167 Cal.App.3d 664, 667-68 (1985). Defendant's Motion warrants sanctions in order to deter any further bad faith, delay and waste of judicial resources. Under CCP § 128.7(b), when a party files a motion with the court, the attorney is "certifying 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: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. 3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . . "If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation." CCP § 128.7(c). Under CCP § 128.7, "there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in the act); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose.” Guillemin v. Stein, 104 Cal.App.4th 156, 167 (2002). It is well settled law that under § 128.7 courts are "required to find m only that a party's or attorney's conduct was ‘objectively unreasonable." In Re Marriage of -10- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y L L P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sahafzadeh-Taeb & Taeb, 39 Cal. App.5th at 167 (citing Guillemin, 104 Cal.App.4th at 167). Defendant's Motion falls under all three of these categories and is objectively unreasonable. "Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit." Levy v. Blum, 92 Cal.App.4th 625, 635 (2001) (citations omitted). Further, "a frivolous action may in itself be evidence from which a finding of subjective bad faith may be made." West Coast Development v. Reed, 2 Cal. App.4th 693, 702 (1992). If a party's motion "is totally and completely without merit . . . [it] is certainly evidence that the action is brought in bad faith, because a trial court is entitled to infer from the utter lack of merit that the party knew that it lacked such merit, and yet continued to pursue the action for some ulterior motive." Sommers v. City of Cathedral City, 225 Cal.App.3d 1047, 1073 (1990) (citations omitted). Any requirement of finding subjective bad faith is met, especially here, where the Defendant's Motion is utterly without merit on several grounds. IV. DEFENDANT'S MOTION IS FRIVOLOUS AND SUBJECT TO SANCTIONS A. A Preliminary Injunction Is Not Appropriate to Enjoin the Lawsuit Itself Defendant's Motion frivolously seeks a nonsensical preliminary injunction, and is objectively unreasonable. Defendant fails to cite to any applicable authority which supports a preliminary injunction against the lawsuit itself, which is what Defendant seeks. The purpose of a preliminary injunction is preserve the status quo pending the resolution of the underlying claim in the action that the injunction is sought. Ivanoff v. Bank of America N.A., 9 Cal.App.5th 719, 734 (2017); Keith v. Superior Court, 26 Cal.App.3d 521, 524 (1971). Defendant's Motion vaguely seeks to enjoin "enforcement" of the City's Ordinances. Defendant does not explain what "enforcement" it is seeking to enjoin. Nor does Defendant offer any admissible evidence, either through declaration, exhibits, or otherwise, to support any claim of "enforcement" by the City. The only ongoing and intended enforcement by the City is this lawsuit. [Lee Decl. at 6] Thus, Defendant is seeking to enjoin this lawsuit itself. But there is no such thing as a preliminary injunction against the lawsuit itself - a preliminary injunction is to keep the status quo outside while the lawsuit resolves. If you enjoin the lawsuit, it can never resolve, and a preliminary injunction turns into a de facto judgment and permanent injunction. -11- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y L L P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant illogically argues that the legality of the Ordinances must be determined by the Ninth Circuit on appeals not even involving Defendant or the same issues as here. Defendant fails to recognize that it is making claims that the Ordinances are invalid in this very lawsuit before this Court. If Defendant could prove the illegality of the Ordinances (which it cannot), it would simply defend against the claims in this lawsuit and thereby prevent any abatement by the City. Thus, there is no sense to enjoin or stay this litigation. Either Defendant knows that it cannot prove the illegality of the Ordinances as it's counsel has failed five times already, or Defendant seemingly distrusts this Court as being capable of rendering a just decision on its claims. Either is objectively unreasonable, frivolous and in bad faith. B. Defendant Is Not Making Any Underlying Claims that Would Allow Defendant to Pursue a Preliminary Injunction A party seeking a preliminary injunction must show that there is an underlying cause of action that can be established. Ivanoff, 9 Cal. App.5th at 734. Thus, the existence of an underlying claim is a prerequisite to seeking injunctive relief. 1d. This is because "[i]njunctive relief is a remedy, not a cause of action." Allen v. City of Sacramento, 234 Cal.App.4th 41, 65 (2015); see also City of South Pasadena v. Department of Transportation, 29 Cal. App.4th 1280, 1293 (1994) (holding that injunctive relief "is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established."). In Profil Institut Fur Stoffwechselforschung GmbH v. ProSciento, Inc., 2017 U.S. Dist. LEXIS 29930 at *2, *5 (2017), the court denied a motion for a preliminary injunction by the defendant because it had "never filed a counterclaim," and "[w]ithout a clearly-stated claim to evaluate, the Court has no good way to evaluate its likelihood of success on the merits." Defendant is not making any claim for relief and therefore cannot seek a preliminary injunction. Defendant's request for relief that it cannot obtain as a matter of law is objectively unreasonable, frivolous and in bad faith. Without any underlying claims, Defendant's Motion is completely without merit. This conscious decision to use an inapplicable motion, not supported any legal authority, is concrete proof of Defendant's objective and subjective bad faith tactics designed to delay this litigation. =12- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . The SoCal and Yellowstone Appeals Are Not Relevant Here The very first line of the Appellant's Brief in the SoCal appeal is: "This appeal presents the narrow issue whether the district court erred in denying a preliminary injunction to enable one, small household of six persons with disabilities to continue occupying a dwelling pending judicial review of the City of Costa Mesa's denial of their request for reasonable accommodation pursuant to the federal Fair Housing Act. ..." [Defendant's Exhibit 2 at page 9 submitted with Defendant's Motion] The Appellant in SoCal purposefully limited its appeal to one "narrow issue" that has nothing to do with rendering the Ordinances wholesale invalid and has nothing to do with Defendant here. Even if the SoCal appeal is granted, it will not even have a determinative effect in the SoCal matter itself - the issue on appeal is purportedly merely whether a preliminary injunction should have been granted to SoCal in its specific circumstances. The most the appeal will determine is that there may be a likelihood of success, nothing final on the merits, and certainly not a wholesale determination that the Ordinances are discriminatory or invalid. Also in Yellowstone, the complaint only involved Ordinance 14-13. [Defendant's Exhibit 3 at 8:20-22 submitted with Defendant's Motion] This is not the Ordinance at issue in this action against Defendant. [See Defendant's Motion at 11:14-12:22] Ordinance 14-13 governs Special Use Permits in R-1 zones. Ordinance 15-11, at issue in this action, governs Conditional Use Permits in multi-family zones. Thus, even if the Yellowstone appeal is granted and even if the Ninth Circuit expressly rules that Ordinance 14-13 is invalid (which it will not), that will have no determinative effect on this action involving a separate Ordinance. Even if this action involved Yellowstone itself as a defendant, Yellowstone still would not be entitled to a preliminary injunction or stay. A federal court’s ruling, even while an appeal is pending, is considered a final judgment on the merits, and supports collateral estoppel against any subsequent action. Martin v. Martin, 2 Cal.3d 752, 761-62 (1970). A federal judgment has the same effect in California courts as it would in federal court. 1d. at 761; see also Younger v. Jensen, 26 Cal.3d 397, 411 (1980); Levy v. Cohen, 19 Cal.3d 165, 173 (1977). The judgment in Yellowstone would have collateral estoppel effect in this action and warrant a full judgment for the City, let alone a denial of Defendant's Motion. See id. Defendant cannot benefit more on the -13- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pendency of the appeal in Yellowstone than would the appellant Yellowstone itself. Defendant's request to tie the injunction to these irrelevant appeals is nonsensical and simply another attempt at unreasonable delay to prevent Plaintiffs from obtaining judgment in this action and abating Defendant's noncompliant, illegal business. D. Defendant Fails to Qualify for a Preliminary Injunction Even if Defendant's Motion made sense, which it does not, it would still fail under the legal and statutory requirements for a preliminary injunction. An "[i]njunction is an extraordinary remedy and courts consistently proceed with great caution in exercising their power, and require a clear showing that the threatened and impending injury is great, and can be averted only by injunction." Western Electroplating Co. v. Henness, 172 Cal. App.2d 278, 283 (1959) (quotations & citations omitted). Here, there is no impending irreparable injury that Defendant will suffer if this Motion is denied. The only consequence of denying this Motion is that this litigation will proceed. Defendant improperly equates having to defend this litigation to an "injury" it will suffer. Itis not. Injunctions are not meant to stifle a litigant's right to pursue and adjudicate claims in court. Defendant's unsupported position is objectively unreasonable. 1. Defendant frivolously failed to provide any admissible evidence Defendant failed to submit any Declaration or Request for Judicial Notice to support any of the factual statements in the Motion, or to authenticate, lay any foundation, or provide personal knowledge for any of the facts or Exhibits. Thus, Defendant has no admissible evidence to support its Motion, which requires Defendant to meet its burden of proof with such evidence. This Court should only consider factual statements supported by admissible evidence, which are non-existent. Smith, Smith, Smith & King v. Superior Court, 60 Cal. App.4th 573, 578 (1997). Without any admissible evidence, the Motion must fail. Further, Defendant's failure to submit any admissible evidence fits squarely into the grounds for sanctions under § 128.7(b)(3). 2. Defendant cannot show it is likely to succeed on the merits When determining whether to issue a preliminary injunction, the courts will consider two factors: "(1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction." -14- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dodge, Warren & Peters Ins. Serv., Inc. v. Riley, 105 Cal. App.4th 1414, 1420 (2003). Defendant is not able to show any factual, evidentiary or legal support for either factor. The bulk of Defendant's Motion is comprised of improper, unsupported, and false attacks on the City's Ordinances. Further, these exact same arguments have been denied five times already in the Federal Court. A jury granted the City a complete defense verdict in the Yellowstone matter. The Federal Court denied the Motion for Preliminary Injunction in SoCal, holding that there was no likelihood of success on these same arguments. The Federal Court also granted summary judgment to the City on these same claims in Casa Capri, Pacific Shores and SoCal. These arguments failing once would be enough to determine that Defendant has no likelihood of success on the merits. These arguments failing five times is a resounding and conclusive determination that Defendant has no chance to succeed on the merits. However, with seemingly unwavering confidence, Defendant's counsel forges ahead with the same failed arguments here. In fact, Defendant's substantive arguments in Defendant's Motion are based almost verbatim! of the same failed legal arguments used in the failed Motion for Preliminary Injunction in SoCal. [Lee Decl. at {7; see SoCal Recovery's failed Motion for Preliminary Injunction attached as Exhibit "7" to Lee Decl.; Order Denying SoCal's Motion attached as Exhibit "3" to Lee Decl.] This sixth regurgitation of already-failed arguments is objectively unreasonable, frivolous and in bad faith. Rather than re-argue the failed merits of Defendant's claim of discrimination for the sixth time here, which is unnecessary and a waste of judicial resources, this Court need only refer to the findings of the jury in Yellowstone and the Federal Court in SoCal, Casa Capri, and Pacific Shores, to know that these same arguments by Defendant will fail. In short, the Ordinances are not facially discriminatory (including reasonable accommodation procedures), but rather are beneficial to the disabled, there is no evidence of discriminatory intent by the City, there is no ! Compare verbatim "Likelihood of Success" sections 13:25-16:16 here to Motion in SoCal at 1:23-2:4, 9:18-10:3, 15:13-20:27; "City Imposes Unlawful Test" sections 16:17-18:5 here to Motion in SoCal at 21:1-19, 22:22-23:6, 24:3-5, and 24:17-24; and "Erroneously Imposes the Burden of Proof" section 18:7-16 here to Motion in SoCal at 25:25-26:5] -15- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence of any disparate impact, there is no evidence that any requested accommodation was necessary or reasonable, there was no retaliation by the City, and there is no constitutional violation. Defendant cannot claim it will be successful on the merits in this action based on the same arguments that failed five times before the Federal Court and a jury. 3. Defendant will not suffer an irreparable injury Additionally, the second factor weighs strongly in favor of the City. Defendant will not suffer any harm pending resolution of this action without a preliminary injunction. The entire purpose of this litigation is to determine whether Plaintiffs can enforce their Ordinances against Defendant. Until resolution of this action, Defendant or its clients are not faced with immediate eviction or any other irreparable harm. A general statement that the party will suffer irreparable injury, without any further details or explanations, "is not an adequate basis for relief by injunction on the ground of irreparable" injury. California v. Latimer, 305 U.S. 255, 260 (1938). Defendant, without evidence or logic, argues numerous hypothetical "harms" that it would suffer if the preliminary injunction is not granted. However, the only enforcement by the City is this lawsuit. Nothing is happening to Defendant by the City in terms of "enforcement" while this action is pending. The only consequences that will befall Defendant are what this Court decides is legally justified after Plaintiffs are successful in this litigation and the Defendant is found to be a nuisance subject to abatement. When Plaintiffs are successful, the consequences will necessarily be legally justified and not "harm" to Defendant. On the other hand, Plaintiffs are suffering from the continuing nuisance of Defendant's illegal operations, while this action is pending. The continuation of per se illegal nuisance behavior is a harm as a matter of law to the public at large, including the citizens of the City. The health and safety of the public is reliant on the enforcement of the City's laws. Defendant cannot be allowed to enjoin Plaintiffs from enforcing their valid law just because Defendant wants to delay litigation that it will inevitably lose. These Ordinances were created in part to afford protections against the exploitation of the disabled and to preserve the character of the community. The Ordinances ensure that neighborhoods do not achieve the kind of concentration of sober living homes that transforms such neighborhoods into de facto institutions, the very type of environment -16- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y L L P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that is counterproductive to recovery and that led to the adoption of the fair housing laws in the first place. See Familystyle of St. Paul, Inc. v. City of St. Paul, Minnesota, 923 F.2d 91 (8th Cir. 1991). As such, Defendant's Motion fails to establish any harm let alone irreparable harm, and the request for a preliminary injunction is objectively unreasonable, frivolous, and in bad faith. 4. Case law does not support a preliminary injunction based on a multiplicity of judicial proceedings in this context Defendant frivolously attempts to claim a preliminary injunction should be issued to avoid multiplicity of judicial proceedings, citing CCP § 526(a)(6). "There are two general classes of cases in which injunctions are issued to prevent a multiplicity of actions, namely, [1] those in which many claims which have not been adjudicated are brought into equity to be made the subject of a single trial and decree (citations omitted) . . . [and] [2] those that are enjoined because they are shown to be vexatious suits upon causes of action that have been settled by former adjudication." Verdier v. Verdier, 203 Cal. App.2d 724, 735 (1962); see also Bartholomew v. Bartholomew, 56 Cal. App.2d 216, 225 (1942). These proceedings do not fall into either category. Defendant is not seeking to consolidate all of the cases challenging the City's Ordinances. Instead, Defendant is attempting to enjoin this action pending final resolution of irrelevant appeals. This is not supported by the law and cannot be a basis for a preliminary injunction under the "multiplicity of judicial proceedings" prong of CCP § 526. Additionally, Plaintiffs’ action is not a vexatious suit regarding causes of action settled by a former matter. The opposite is true. Defendant's defense of discrimination is vexatious as it has been settled in the City's favor by four former matters. Plaintiffs are seeking to legally enforce their valid Ordinances against Defendant. Defendant failed to show any authority, evidence, or sense that would support granting of a preliminary injunction. Invoking this section is objectively unreasonable and frivolous. V. DEFENDANT'S "ALTERNATIVE'" REQUEST FOR A STAY IS ALSO OBJECTIVELY UNREASONABLE AND FRIVOLOUS A. Defendant's Counsel Two Times Before Attempted to Obtain a Stay in this Context Without Providing Any Valid, Legal Basis Defendant's counsel cannot be allowed to continuously create their own procedural =17- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mechanisms, not supported by law, in order to avoid litigation. This is Defendant's counsel's third improper attempt at staying these state court proceedings against non-compliant nuisance operators in the City. In the concurrently pending nuisance abatement action by the City against another nuisance operator (involving the same claims and Ordinances), City of Costa Mesa v. Casa Capri, LLC, et al., Case No. 30-2018-01006156-CU-OR-CJC ("Casa Capri State Action"), Defendant's counsel here also represents the Defendants in the Casa Capri State Action. In the Casa Capri State Action, Defendant's counsel attempted to stay the proceedings two different times and was unsuccessful in both attempts. On October 26, 2018, Defendant's counsel filed Casa Capri's first Motion to Stay Proceedings. [Lee Decl. at 8] The City filed its Opposition and argued that Casa Capri's Motion was based on inapplicable law and unsupported legal arguments regarding arbitration or applications for arbitration-neither of which applied in this context. [Lee Decl. at [9] Two days after being served with the City's Opposition, Defendant's counsel withdrew the baseless Motion. [Lee Decl. at 10] Approximately ten months later, on December 04, 2019, Defendant Casa Capri filed its second Motion to Stay Proceedings. [Lee Decl. at { 11] The Motion was once again based on inapplicable case law relating to forum non convienens and complex coordination cases-neither of which applied in this context. Defendant's counsel once more was attempting to find any legal basis for which the Court may grant their Motion to Stay, regardless of whether the law truly applied to the case. On January 30, 2020, the Court held that Defendant Casa Capri's Motion to Stay was based on unsupported legal arguments and denied the Motion. [Lee Decl. at 12; Order Denying Casa Capri's Second Motion to Stay Proceedings attached as Exhibit "8" to Lee Decl. ] Now, in the instant matter, Defendant's counsel has once again relied on inapplicable law and procedural mechanisms to try to stay this litigation by arguing for a Motion for Preliminary Injunction. As discussed above, Defendant's Motion is frivolous and Defendant fails to provide any authority which supports its position for either a preliminary injunction or a stay. B. The "Alternative" Motion to Stay Is Frivolous Again here, Defendant relies on inapplicable law to argue for a stay, but has no valid basis. Defendant cites Farmland Irr. Co. v. Dopplmaier, 48 Cal.2d 208, 215 (1957) for the general -18- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proposition that this Court has discretion to stay proceedings "[w]hen an action is brought in a court of this state involving the same parties and the same subject matter as an action pending in a court of another jurisdiction." [Motion at 20:26-21:2 (emphasis added)] Defendant does not follow its own case law, and instead asks to stay this action based on the Yellowstone and SoCal appeals, which do not involve the same parties. Regardless, all of Defendant's arguments to stay are conclusory, unsupported, and false. Defendant falsely argues that the "same issues, ordinances, and defenses are being heard" in the Yellowstone and SoCal appeals. As explained above, these appeals are irrelevant and not determinative. Further, the final judgment in Yellowstone has collateral estoppel effect even pending an appeal. Defendant has no basis to argue that the pending appeals warrant any stay - the appeals have no preclusive effect against the finality of the federal judgment for the City. Further, Defendant falsely claims that the City filed these state court proceedings "to harass the respective defendants." To the contrary, Defendant's counsel has lost five times on these exact same attacks against the Ordinances. Each time, the Ordinances were held to be non-discriminatory and valid. The truth is that Defendant is violating the law, operating as a public nuisance, and there is no question that Defendant is subject to abatement. Defendant's frivolous attempt to stay the inevitable finding of liability against it in this action is designed to delay and harass. The only harassing and bad faith behavior is Defendant's counsel continuously filing frivolous motions and wasting tremendous time and resources of both the Plaintiffs and this Court. Lastly, California case law supports both the state and federal matters proceeding forward simultaneously. A party can maintain concurrent state and federal court actions arising from the same facts and circumstances. See Benitez v. Williams, 219 Cal. App.4th 270, 275 (2013). In such a case, an application for a stay is addressed to the “sound discretion” of the trial court. Thomson v. Cont. Ins. Co., 66 Cal.2d 738, 746-47 (1967). Defendant disingenuously cites Gregg v. Superior Court for the proposition that "the principle of comity may call for a discretionary refusal of the court to entertain the second suit pending determination of the first-filed action." 194 Cal.App.3d 134, 136 (1987). However, Defendant failed to mention that Gregg supports the maintaining of concurrent state and federal actions when the action is purely in personam, which this case is, as -19- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compared to in rem. 1d. at 137 (““The main reason for priority . . . disappears when the action is purely in personam.’”). In fact, “[the] federal decisions do not apply their comity rule of priority to proceedings in personam. They hold that a federal court may proceed concurrently with a state court, and a state court concurrently with a federal court, until the first judgment is rendered and becomes res judicata.” Id. (citation omitted). An in personam action involves the legal rights of a person or entity, while an in rem action affects the property rights to a specific piece of property. See People ex rel. Gwinn v. Kothari, 83 Cal. App.4th 759, 765 (2000). "An in rem action or proceeding is one which seeks to affect the interests of all persons (‘all the world) in a particular a property or thing. However, an injunction’>- a writ or order requiring a person to refrain from a particular act or to do a particular act (Code Civ. Proc. § 525)-is an in personam remedy." Id. at 765; see also Comfort v. Comfort, 17. Cal.2d 736, 741 (1941) (holding that "an injunction is obviously a personal decree" in that "[i]t operates on the person of the defendant by commanding him to do or desist from certain action"). In Gwinn, the plaintiff city filed an abatement of a public nuisance against defendant motel owners regarding claims of prostitution and drug dealing at the hotel. Id. at 762. Eventually, the parties stipulated to a permanent injunction against the defendants regarding the illegal conduct at the subject premises. Id. When analyzing the effects of the injunction, the court held that the injunction directly affected the defendants’ rights in operating illegal enterprises rather than the actual rights of the property at issue. Id. at 765. Therefore, it was found to be an in personam action. Id. The Gwinn case is essentially identical to the instant action and therefore proves the instant action is in personam. Both cases involve a city seeking to enjoin a defendant who is engaged in illegal conduct. Here, Plaintiffs’ claims are related to Defendant's nuisance operations of sober living homes that are not in compliance with the City's laws. Thus, just like the plaintiffs in Gwinn, the Plaintiffs are seeking an injunction to restrain Defendant from its illegal conduct. Therefore, this case is an in personam action and there is no issue with the principle of comity, and courts favor allowing the cases to proceed simultaneously. As such, there should be no stay. 2 This injunction refers to Plaintiffs’ injunction against Defendant from operating a nuisance in the City. It is not meant to reference or support Defendant's Motion for Preliminary Injunction. 220- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y L L P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. PLAINTIFFS SHOULD BE AWARDED THEIR ATTORNEY'S FEES AS A MONETARY SANCTION AGAINST DEFENDANT Defendant's Motion provides no valid legal authority or grounded reasoning for why a preliminary injunction would apply under these circumstances. Even if Defendant's Motion is denied, if Defendant is not sanctioned, it will continue to file baseless motions and further litigate in bad faith in order to continuously delay the litigation and increase the costs for Plaintiffs. As such, this Court should grant Plaintiffs’ Motion for Sanctions and deter Defendant from any further bad faith litigation tactics. CCP § 128.7(c) authorizes specifically when a party makes a Motion (as opposed to the Court's own motion) an "award to the party prevailing on the motion [of] the reasonable expenses and attorney's fees incurred in presenting or opposing the motion," while CCP § 128.7(d) further authorizes, among others, sanctions in the form of "an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation." Thus, for prevailing on this Motion, Plaintiffs should be awarded their reasonable attorney's fees associated with the Motion under CCP § 128.7(c). Additionally, Defendant's violation (Defendant's Motion) directly resulted in Plaintiffs incurring additional attorney's fees to analyze and oppose the Motion, which also should be awarded to Plaintiffs under CCP § 128.7(d). Plaintiffs will have incurred at least $17,155 in reasonable attorney's fees in connection with this Motion and in connection with opposing Defendant's Motion. [Lee Decl. at q 14] VII. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the court impose monetary sanctions, under CCP § 128.7, against Defendant, and in favor of Plaintiffs in the amount of $17,155. 21- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y L L P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 10, 2020 EVERETT DOREY LLP Seymour B. Everett, III Samantha E. Dorey Christopher D. Lee Attorneys for Plaintiffs CITY OF COSTA MESA AND THE PEOPLE OF THE STATE OF CALIFORNIA =292- PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANT PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7 E V E R E T T D O R E Y LL P At to rn ey s at La w 18 30 0 VO N K A R M A N A V E N U E , SU IT E 90 0 IR VI NE , C A L I F O R N I A 92 61 2 TE LE PH ON E 9 4 9 - 7 7 1 - 9 2 3 3 F a x 9 4 9 - 3 7 7 - 3 1 1 0 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 File No. 1029-14 PROOF OF SERVICE CITY OF COSTA MESA ET AL. V. NATIONAL THERAPEUTIC SERVICES, ET AL. Orange County Superior Court, Case No. 30-2019-01100863-CU-OR-CJC STATE OF CALIFORNIA, COUNTY OF ORANGE At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is 18300 Von Karman Avenue, Suite 900, Irvine, CA 92612. On May 8, 2020, I served true copies of the following document(s) described as: PLAINTIFFS THE CITY OF COSTA MESA'S AND THE PEOPLE OF THE STATE OF CALIFORNIA'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION I served the documents on the interested parties in this action as follows: Isaac R. Zfaty Attorney for Defendants, Garret M. Prybylo NATIONAL THERAPEUTIC SERVICES, ZFATY BURN INC.; RAW RECOVERY LLC, a California 660 Newport Center Dr #470, limited liability corporation; DOUGLAS Newport Beach, CA 92660 ALLENTHORPE, an individual and Trustee of T: 949-398-8080 the ALLENTHORP DOUGLAS L. TRUST; F: 949-398-8081 and DANIEL LOYER, an individual and irz@zfatyburns.com Trustee of the ALLENTHORP DOUGLAS L gp @zfatyburns.com TRUST ah @zfatyburns.com es@zfatyburns.com BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 8, 2020, at Irvine, California. A Niwe Kristal Mauro 4836-2119-9801.2 =23- PROOF OF SERVICE
