Filed 9/13/18 Solheim v. Badboy Branding, LLC CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
| BRENDA SOLHEIM et al., Plaintiffs and Appellants, v. BADBOY BRANDING, LLC et al., Defendants and Respondents. |
A150066
(Sonoma County Super. Ct. No. SCV258303)
|
INTRODUCTION
Plaintiff Brenda Solheim is an inventor, and entered into a contractual relationship with Bad Boy Branding, LLC (Bad Boy). A dispute between them led to Bad Boy filing a lawsuit in Florida, which was served on Solheim. Solheim’s response was to file her own lawsuit in California, leading to the appeal here. But this appeal involves neither Bad Boy nor Solheim, but rather their attorneys, specifically appellant Peyman Roshan, Solheim’s attorney who practices in Santa Rosa, and respondents, two law firms and three individual lawyers who practice in Florida, and who have never practiced in, resided in, or done business in California—who were nevertheless named as defendants in Solheim’s lawsuit.
Roshan’s appeal is from an order granting sanctions against him in the amount
of $2,715, based on his conduct in naming respondents as defendants in the California lawsuit and his refusal to dismiss them, even after their motion to quash had been granted—conduct the trial court described as “ill-advised, both substantively as well
as procedurally” and “ ‘egregious.’ ” As will be seen, the appeal is itself a continuation of such conduct, in what can only be called a cautionary tale for Roshan, whose conduct here warrants criticism—criticism, sad to say, not new to the self-described “new to
the profession” Roshan, who within months of his admission to the bar came to
represent Solheim, beginning a chain of events leading to the appeal here. That criticism is shown by the three brief reporter’s transcripts here, most significantly that of August 10, 2016, where Roshan unsuccessfully argued against the trial court’s setting aside a default Roshan had improperly taken. There, an experienced—and perhaps exasperated—Sonoma County judge had this advice for Roshan:
“THE COURT: All right. I also want to make some comments, Mr. Roshan. [¶] Have you ever read the Davenport case? It’s one I know Ms. Kingsbury . . . is quite familiar with because they were on the bad end of that.
“MR. ROSHAN: No, I am not familiar.
“THE COURT: Well, you ought to read it. Write down this citation: 194, Cal.App.4th, 1507. . . . Because I don’t like the tone of your meet and confer.[[1]]
“MR. ROSHAN: Oh, I apologize.
“THE COURT: Read that case. How much did your firm pay?
“MS. TABER KINGSBURY: In that?
“THE COURT: In that case.
“MS. TABER KINGSBURY: $400,000 [I] believe.
“THE COURT: $400,000. I don’t think they write meet and confers like that anymore. You need to get some guidance somewhere. You really do. Don’t put yourself in a bad spot.
“MR. ROSHAN: Apparently, I already have.
“THE COURT: You already have, certainly with me. You don’t want to do it any further. There’s a good group called the American Inns of Court. Have you ever heard of them?
“MR. ROSHAN: Yes.
“THE COURT: You ought to join the local chapter. Do you know how to get a hold of them? Louis Warren, Abbey Weitzberg, start there. [¶] You have the wrong remedy. That was the point of her opposition. You had the wrong remedy. You should have come back to the Court and asked for a reconsideration or appeal it.”
Then, after several pages in which Roshan attempted to justify what he had done, the hearing ended with this:
“THE COURT: All right. The Court is going to confirm its tentative ruling. [¶] Do you have an order?
“MS. TABER KINGSBURY: Yes, I do, your Honor. [¶] May I approach?
“MR. ROSHAN: Thank you for the time to hear the arguments. [¶] Plaintiff respectfully requests that the Court provide a statement of decision as to each of the issues.
“THE COURT: I would look up the law as to statement of decisions and see whether you’re entitled to one after a law and motion hearing. The answer is, you are not, but go ahead and look it up.[[2]]
“MR. ROSHAN: I understood it as if it’s effectually a dismissal, which is what this is.
“THE COURT: I think you ought to go look at the rules.
“MR. ROSHAN: Okay.
“MS. TABER KINGSBURY: Thank you, your Honor.
“MR. ROSHAN: Thank you, your Honor.
“THE COURT: And I don’t think you ought to make reference to folks[’] religious beliefs in meet and confer statements either as you did with Mr. Romero. It’s just not appropriate.
“MR. ROSHAN: Okay, your Honor.
“MR. ROMERO: Thank you, your Honor.
“MR. ROSHAN: I only raised that because he did.
“THE COURT: You know, counsel, there’s a time to pack your bags and go. This would be that time.”
As described below, Roshan’s treatment of the law has not improved since, his brief violating some settled rules of appellate practice.
BACKGROUND
In December 2015, Bad Boy (dba Who’s Big LLC) filed a lawsuit in federal court in Florida (the Florida lawsuit), naming one defendant, Solheim. Bad Boy was represented by Joshua Liszt.
Solheim was served with the Florida lawsuit in January 2016, and as best we understand the record, did nothing in Florida in response to it—no motion, no answer, no pleading of any kind. Rather, her response was to file the within lawsuit in Sonoma County (the California lawsuit).
On January 25, 2016, represented by Roshan, Solheim filed the California lawsuit, purporting to allege 13 causes of action. It named 13 defendants, including Bad Boy
and several individuals and entities affiliated with it. And, as pertinent here, it also named Liszt, two law firms, and two other individual lawyers: Gaita and Liszt, P.L., Liszt & Associates, P.A., Juliana Gaita, and Victoria Gonzalez (hereafter, when referred to collectively, respondents). All three individual attorneys were alleged to be residents of Broward County, Florida, and their firms alleged to be organized under the laws of the State of Florida.
Roshan caused service of the California lawsuit to be made on respondents, forcing them to hire California attorneys to represent them here. They retained the firm of Senneff, Freeman & Bluestone LLP, and Marshall Bluestone of that firm reached out to Roshan regarding the obvious lack of personal jurisdiction. The discussions were not productive, and Bluestone prepared a motion to quash. But before he filed it, he sent it to Roshan for review, to attempt to persuade him that there was no basis for jurisdiction in California. Bluestone followed up with a call to Roshan to convince him to dismiss respondents—and warning that if he did not, sanctions would be appropriate. To no avail.
On March 3, 2016, respondents filed a special motion to quash. It was accompanied by declarations of individual respondents Liszt, Gaita, and Gonzalez, each of whom testified that they (and their firms) have never resided in, or done business in, California.
On March 21, Solheim filed her opposition, and on March 23, respondents their reply.
The motion to quash came on for hearing on March 30, prior to which the court had issued a tentative ruling granting the motion. At the conclusion of the hearing, the court affirmed the tentative ruling, and ordered counsel for respondents to prepare an order consistent with the tentative ruling. However, the tentative ruling did not dismiss respondents for lack of jurisdiction, but rather granted the motion to quash. This left respondents named in the complaint.[3]
This led to a series of communications, the essence of which was Bluestone requesting that respondents be dismissed from the complaint, and Roshan refusing to do so, telling Bluestone that they would be dismissed only if they dismissed the Florida lawsuit.[4] This led to respondents’ motion for sanctions, ultimately filed on June 22.
Before we discuss that motion, we briefly digress to discuss another development in the California lawsuit, a development not discussed in Roshan’s briefs, a request for default he had filed on May 6 against defendants Shark Branding and John Daymond,[5] followed on June 2 by a declaration in support of default judgment. Those defendants filed a motion for relief from default, which came on for hearing on August 10, at which the court granted the motion, ruling as follows: “The Court sets aside as void the clerk[’]s default entered against Defendants Daymond Aurum and Shark Branding Corp., New York residents, on May 6, 2016, and the Court quashes Plaintiff’s June 2, 2016, Request for Court Judgment. Plaintiff is barred by the principal of res judicata from relitigating the same issue. Since the Court’s quashing of service as to these Defendants ‘ended the litigation as to these named Defendants in a final, appealable order’, this Court has no jurisdiction over these Defendants and cannot enter judgment against them.”[6]
As indicated, Bluestone had prepared a motion for sanctions, and by email and regular mail of May 12 and 13 respectively sent a draft of the motion to Roshan. Bluestone then waited for the 20-day safe harbor period to expire, which gave Roshan and his client the opportunity to dismiss respondents before the sanctions motion would be filed. They refused to do so.
On June 22, respondents filed their motion for sanctions (and to amend the order on the motion to quash to include a dismissal), set for hearing on October 26, 2016.[7] The essence of the motion was that there was never a basis to name respondents in a California lawsuit in the first place; Roshan had never cited any facts or authority that supported jurisdiction over respondents in California; Roshan was told by the trial court there was no jurisdiction when the motion to quash was granted; and Roshan refused to dismiss respondents, despite being warned several times that a motion for sanctions would be filed if respondents were not dismissed, conduct that evidenced bad faith.
On October 13, less than two weeks before the hearing date, Roshan dismissed respondents from the California lawsuit.
On October 26 the court heard argument on the sanctions motion, granted it, in an order that among other things held as follows: “In this case, Plaintiff’s action against Defendants was ill-advised, both substantively as well as procedurally, it does appear that Plaintiff’s actions were so ‘egregious’ such that ‘any reasonable attorney would agree the action is totally and completely without merit.’ Plaintiff’s Counsel’s oral argument was that he believed the filing of the Federal Court action was a bad act and it justified filing a meritless action in California. Counsel waited seven months to dismiss the action after the Court had ruled there was no personal jurisdiction over the moving Defendants. Defendant’s Counsel offered several times that the subject motion for sanctions would not be brought if the Plaintiff would voluntarily dismiss. Until October 13, 2016 Counsel failed to dismiss. Accordingly, Defendants’ motion for sanctions under section 128.5 is GRANTED.”
Respondents had sought $10,655.38 in sanctions. The court awarded them only $2,715.
On December 1, Roshan filed his notice of appeal.
DISCUSSION
That, then, is the setting in which Roshan’s appeal comes to us, the record and briefs on which are hardly an improvement on Roshan’s prior conduct.
To begin with, despite that the appeal is from an order granting sanctions against Roshan, his appellate record does not contain any of the papers relating to the sanctions motion. They are before us only on respondents’ motion to augment.
Second, Roshan’s “Statement of Facts” sets forth the facts in a manner that is favorable to him, as though it was his version of facts that was adopted by the trial court. This is manifestly improper.
Beyond that, Rohan’s statement of facts has no reference to anything in the record, no reference or supporting citation at all. This is in violation of California Rules of Court, rule 8.204(a)(1)(C), which requires that each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.”
But Roshan’s appeal is not only procedurally defective, it is utterly lacking in substance. It has no merit.
Code of Civil Procedure, section 128.5 states: “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay . . . . [¶] . . . [¶] ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” As the leading practical treatise describes it, “As a practical matter, any conduct in the course of litigation (other than in connection with ‘disclosures and discovery requests, responses, objections and motions’) may be sanctionable if the court finds it to be ‘frivolous’ or ‘solely intended to cause unnecessary delay.’ [See CCP § 128.5(a); Ellis v. Roshei Corp. (1983) 143 [Cal.App.]3d 642, 649.]” (Weil & Brown, Cal. Proc. Before Trial (The Rutter Group 2018) ¶ 9:1014, p. 9(III)-9.)
We review an award of sanctions for an abuse of discretion. (Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 51.) Roshan has shown none, doing nothing more than reargue here what he unsuccessfully argued below. It will not suffice, not in light of the record here.
That record is set forth in detail above, and we will not repeat it here. Suffice to say that record demonstrates conduct by Roshan that warrants sanctions.
“Frivolous” is, as quoted, defined in the statute. (See generally In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649–650.) And as the court noted, it is an objective standard: “[A] suit indisputably has no merit ‘only where any reasonable attorney would agree that the action is totally and completely without merit.’ ” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12; Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683–684.) And, as the legislative history reflects, one of the purposes of the amendments was to clarify that the standard applied in Code of Civil Procedure, section 128.5 “ ‘is a subjective bad faith standard.’ ”[8] (Weil & Brown, Cal. Proc. Before Trial, supra, ¶ 9:1010.1b, p. 9(III)-7.) Such subjective bad faith is easily inferred from Roshan’s conduct here. (See Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263 [subjective bad faith inferred from circumstantial evidence]; Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1073 [court may, but need not, draw inference of subjective bad faith from objective lack of merit].)
DISPOSITION
The order awarding sanctions is affirmed. Respondents shall recover their costs on appeal.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Miller, J.
A150066; Solheim v. Badboy Branding, LLC
[1] In In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, we affirmed an order awarding the husband $100,000 in Family Code section 271 sanctions and $304,387 in attorney fees based on the conduct of wife’s attorney, a brand new member of the bar. And we agreed fully with the trial court, which had cited to several specific items of the attorney’s conduct, and also more general conduct, most specifically his treatment—more accurately, mistreatment—of his opposing counsel. Citing several law review articles and commentary, we closed our opinion with “a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of Davenport, supra, at p. 1537.)
[2] Findings of fact are not ordinarily required for an order made after a ruling on a motion. (Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 699.) Indeed, there need not even be a formal, written ruling. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:180, p. 9(I)-134–135.)
[3] We do not understand how this state of affairs was allowed to exist, in light of Code of Civil Procedure section 581(h), which provides as follows: “The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10.”
[4] For example, on May 17, Roshan wrote to Bluestone and recounted his earlier telephone call with him where he offered to discontinue the action against respondents if they agreed to discontinue the prosecution of the Florida action. In addition to threatening sanctions against respondents, he reiterated his offer to not continue the California action against respondents only if they dismissed the Florida action.
[5] As Roshan blissfully puts it in his brief: “After their service was quashed, some Co-defendants did change their contacts with California: they were served here. Confident that such service was improper, they did not again move to quash it or respond in any other way; so Plaintiff took default against those Co-defendants.”
[6] The court not only ruled against Roshan, it was at this hearing it had the suggestions and advice for Roshan quoted above, and which hearing ended with Roshan’s inappropriate request for a statement of decision.
[7] The sanctions motion originally included a claim that Roshan attempted to re-serve respondents as they received an amended summons in the mail. Roshan claimed it was a clerical mistake. Bluestone took him at his word, and excluded this claim from the filed version of the sanctions motion.
[8] In light of this, one sentence of the trial court’s order is in error, that “[t]he party’s ‘subjective’ intent is immaterial.”
