Nachiappan v. Today's IV

Filed 4/26/06 Nachiappan v. Today's IV CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Rita J. Miller, Judge. Affirmed.

Joseph S. Fischbach, in pro. per., Fischbach & Fischbach and Joseph S. Fischbach for Plaintiffs and Appellants.

Law Office of Andrew R. Wiener and Andrew R. Wiener for Defendants and Respondents.

_________________________

This appeal is just one in a series of frivolous challenges[1] to the trial court in this action. This time, Joseph S. Fischbach (Fischbach), counsel for plaintiff and appellant Muthiah Nachiappan (Nachiappan),[2] objects to the trial court's order imposing monetary sanctions against him pursuant to Code of Civil Procedure section 128.7.[3] Because Fischbach's briefs are largely unintelligible, are written with an unfitting tone, and wholly lack merit, we affirm and impose sanctions against Fischbach.

FACTUAL AND PROCEDURAL BACKGROUND

The Original Complaint

On June 23, 2003, Nachiappan filed the instant action against respondents Today's IV, Inc. and Interstate Hotels Company, alleging causes of action for declaratory relief, breach of contract, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. The complaint was based upon a landlord-tenant dispute between a hotel and its concierge-style business services center. Shortly thereafter, on September 19, 2003, the trial court sustained respondents' demurrer to the negligent interference cause of action with leave to amend. Nachiappan neglected to amend his complaint, and the negligent interference cause of action presumably was dismissed.

The First Amended Complaint

Without leave of court, on October 28, 2003, Nachiappan filed a verified first amended complaint against respondents, alleging declaratory relief, breach of contract, intentional interference with prospective economic advantage, breach of the implied covenant of good faith and fair dealing, and bad faith denial of contract. In response, respondents filed a demurrer to the fifth cause of action and motion to strike the fourth cause of action. On April 1, 2004, the trial court sustained the demurrer with leave to amend and granted the motion to strike. Again Nachiappan elected not to amend, leaving the operative pleading as the first amended complaint with three causes of action: declaratory relief, breach of contract, and intentional interference with contract.

Final Status Conference

The parties convened for a final status conference on July 1, 2004. At that time, Nachiappan voluntarily dismissed his declaratory relief cause of action. Apparently wanting the issue litigated (and perhaps believing that the cause of action would be tried to the court first), respondents countered by indicating their intent to pursue a motion to file a cross-complaint for declaratory relief, raising the exact same issues contained in Nachiappan's first amended complaint.

Also at the final status conference, at Nachiappan's request, the parties stipulated that both respondents were parties to the subject lease and thus both were proper defendants to the breach of contract cause of action. Nachiappan then agreed to dismiss the intentional interference cause of action.

Respondents' Cross-complaint and Nachiappan's Cross-complaint

As anticipated at the final status conference, on July 29, 2004, respondents' motion for leave to file a cross-complaint was granted, and their cross-complaint was filed on August 4, 2004.

In response to the cross-complaint, on August 12, 2004, Nachiappan filed an answer and his own cross-complaint, pleading causes of action for tortious breach of contract, breach of the implied covenant of good faith and fair dealing, restitution (unjust enrichment), and intentional interference with economic advantage.

At a status conference on September 9, 2004, following discussion regarding whether the declaratory relief cause of action would be bifurcated and tried to the court before the jury trial on the breach of contract cause of action, respondents voluntarily dismissed their cross-complaint. Because Nachiappan refused to dismiss his cross-complaint, the trial court instructed him to file a request for leave to file that pleading.

Second Amended and Supplemental Complaint

Instead of seeking leave to file a cross-complaint, Nachiappan pursued a motion for leave to file an amended and supplemental complaint. That motion was granted, and the second amended and supplemental complaint was filed. Respondents again demurred, and the trial court sustained that demurrer with leave to amend the second (tortious breach of contract), third (breach of contract), fourth (restitution), and fifth (intentional interference with prospective economic advantage) causes of action. In so doing, the trial court instructed Nachiappan to prepare an offer of proof demonstrating how the second and fifth causes of action could proceed.

Nachiappan then filed a proposed third amended and supplemental complaint as the offer of proof.

On February 28, 2005, the trial court sustained respondents' demurrer without leave to amend to the second and fifth causes of action. It deemed the proposed third amended and supplemental complaint as a motion for leave to amend the remaining causes of action, which it granted in part and denied in part, and directed Nachiappan to file a third amended complaint consisting only of causes of action for breach of contract, intentional infliction of emotional distress, and breach of the implied covenant of good faith and fair dealing.

Third Amended and Supplemental Complaint

On March 13, 2005, Nachiappan filed a verified third amended and supplemental complaint. Respondents answered the first and third causes of action, and demurred to the second cause of action. Following Nachiappan's unsuccessful offer of proof, the trial court sustained respondents' demurrer to the second cause of action without leave to amend.[4]

Nachiappan's Motion to Disqualify Counsel

Shortly thereafter, Nachiappan noticed a motion to disqualify counsel based upon contempt of court by violation of ethical duties and/or for the imposition of monetary sanctions. Nachiappan averred that respondents' counsel should be disqualified and/or subject to monetary sanctions because he made intentional misrepresentations of fact and law combined with ad hominem attacks on both Nachiappan and Fischbach. In support of the motion, Fischbach submitted a â€