Case Number: EC058956    Hearing Date: October 31, 2014    Dept: NCD

TENTATIVE RULING (10/31/14)
#13
EC 058956
HARTOONIAN v. ARSHAKIAN

Defendants’ Motion to (1) Compel Obedience with Prior Court Order Regarding Payment of $1,000 to Defendants, (2) Further Monetary Sanctions in the Amount of $1,500 Payable to the Court By Plaintiff for Plaintiff’s Failure to Obey the Court’s Order Dated December 20, 2013 and (3) Reasonable Attorney’s Fees and Costs

TENTATIVE:
Defendants’ Motion is DENIED. The order involved is enforceable as issued through the execution of judgment laws and no motion or other proceeding was here necessary. See Newland v Superior Court (2nd Dist. 1995) 40 Cal.App.4th 608, 615. The court declines to order sanctions. The request for sanctions pursuant to CRC Rule 2.30 is also DENIED, as this motion was unnecessary.

Plaintiff’s request for sanctions is DENIED. CCP §128.5 is not currently effective, plaintiff has failed to comply with the procedural requirements of CCP § 128.7, and the court would not in any case be inclined to award sanctions to a party which has not explained to the court’s satisfaction an apparent deliberate defiance of an order of this court.

BACKGROUND:
MP: Defendants Perlanta Arshanian and Joseph Arshanian

RP: Plaintiff Ardawaz Hartoonian

RELIEF REQUESTED:
Order ordering plaintiff to obey the court order of December 20, 2013 to pay $1,000 to defendant.
Order imposing further monetary sanctions.
Order for payment to moving party $1,360 for the fees and costs incurred in bringing this motion.

FACTUAL BACKGROUND:
Plaintiff Ardawaz Hartoonian filed this action on August 27, 2012, against his sister and her husband, defendants Perlant and Joseph Arshakian, alleging that in 1998 he assisted them in purchasing property in Glendale, agreeing that equitable title would be jointly owned by the parties, but that legal title was to be in put in the names of defendants. Plaintiff alleges that the property was to be used as income property for rental with the income to be divided between the parties, but that in 2002, over the objections of plaintiff, defendants moved into the subject property. On August 28, 2011, plaintiff demanded that defendants move out of the premises and begin to collect rents, and to pay half the rental value of the property to plaintiff for the time they had lived at the premises, but defendants have refused.

On December 20, 2013, the court heard a motion brought by defendants to quash a subpoena issued by plaintiff. The motion was denied as moot, as the subject subpoena had been withdrawn prior to the hearing. The court awarded monetary sanctions to defendants against plaintiff and plaintiff’s counsel in the sum of $1,000.

ANALYSIS:
This motion is brought for an order of the court to order plaintiff to pay the sanctions imposed by the court’s previous order of December 20, 2013, which have evidently not been paid, either by plaintiff or by previous counsel.

However, as pointed out in the opposition, sanctions orders are enforceable orders and may be executed on. Accordingly, the relief sought here is unnecessary. The Second District in Newland v Superior Court (1995) 40 Cal.App.4th 608, noted:
“Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group 1994) PP 9:344.21, 9:344.22, p.9(1) -92.) These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.”
Newland, at 615.

Newland cites CCP sections 680.203, which defines a “judgment” to include an “order…entered in a court of this state,” and 699.510(a), which provides for issuance of a writ of execution by the clerk of the court upon application of the judgment creditor. It appears that defendant need only make application for a writ to the clerk in order to obtain the necessary writ. This motion was therefore unnecessary.

The motion also seeks further monetary sanctions, under both CCP section 177.5 and CRC Rule 2.30.

As argued in the opposition, it is not clear that these sanctions provisions are appropriately relied upon here, when there are specific sanction provisions applying to discovery matters such as the one at issue. In such statutes, sanctions can be imposed for misuse of the discovery process, which includes, “(7) Disobeying a court order to provide discovery.” CCP 2023(a)(7). Here, there has been no disobedience of an order to provide discovery, only an order to pay sanctions, and the Second District recognized in Newland that because monetary sanctions are designed to encourage compliance with discovery obligations, further sanctions, such as terminating sanctions, for failure to pay monetary sanctions only, are not appropriate, raising questions of due process. Newland, at 615. In addition, as noted above the Second District also observed that further punishment for failure to pay sanctions is unnecessary, since the sanctions order is an enforceable judgment. Accordingly, this motion is unnecessary, and sanctions shall not be awarded.

Defendants also seek attorneys’ fees and costs for bringing this motion under CRC Rule 2.30.

In addition to there already being sanction provisions applicable in the discovery act, there is no Rule under the CRC which is cited as having been violated, and the motion does not comply with the notice procedures. Again, this motion was unnecessary, and no further fees or costs shall be awarded.

The opposition requests sanctions for having to oppose this motion pursuant to CCP §§ 128.5 and 128.7.

Section 128.5 however, currently applies only to cases filed on or before December 31, 1994. CCP section 128.5(b)(1). This case was filed on August 27, 2012, the section does not apply, and sanctions must be denied. To the extent the request is made pursuant to section, 128.7, plaintiff has failed to follow the procedural requirements of that section, including the filing of a separate motion and the provision of a 21 day period (“safe harbor”) between service and filing, to permit defendants to have withdrawn the motion.