34-2019-00255296

Ashhok Umashankar vs. Brian Radoo

Nature of Proceeding: Motion for Sanctions

Filed By: Carson, Trevor

Defendant Brian Radoo’s motion for sanctions pursuant to CCP § 128.7 is denied.

Defendant’s request for judicial notice is granted.

In the first amended complaint Plaintiffs Ashhok Umashankar, Collin Danforth, Luke Danforth, Ethan Morton and Jacob Risch allege numerous causes of action against Defendants for assault, battery, harassment, invasion of privacy, false imprisonment, IIED, trespass to chattel, conversion, private nuisance and interference with contract. The FAC arises from an alleged agricultural joint venture doing business as W.U.R.M. Assets, LLC, between Plaintiff Umashankar and Defendant Brian Radoo, Defendant Bobby Mohamed, and Scott Wallace. It is alleged that on May 10, 2018, that Defendants came to the property and began screaming, cursing and threatening them, locked up their dogs, brandished a gun and indicated that more guns were in their vehicle, walked an attack dog back and forth in front of Plaintiffs, grabbed each Plaintiff by the shoulder and pushed them together making them form a huddle, and took various items, including Plaintiff Morton’s cell phone. Defendants are also alleged to have searched through Plaintiffs’ living quarters and threw their personal belongings into the dirt and threatened to kill Plaintiffs’ dogs.

Defendant contends that Plaintiff Ethan Morton filed the FAC in violation of CCP § 128.7 because his responses to form interrogatories reflect that he attributed no physical, mental or emotional injuries to the subject incident or any other damages to the subject incident. They also argue that he admitted in response to requests for admissions that he never lived on the subject property and was never employed by W.U.R.M. Assets, LLC, in contradiction to the allegations in the FAC. Defendant seeks over $40,000 in monetary sanctions.

An attorney who files a pleading with the court certifies that the pleading has merit “to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” (CCP § 128.7(b).) The attorney certifies that “[t]he 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.” (CCP § 128.7(b)(3).) The certification is measured under an objective standard. “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it[ is totally and completely

without merit.’’ (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 [citations omitted]. Violation of this standard subjects and attorney to sanctions which are sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. (CCP § 128.7(b)(3).) Sanctions are warranted by “signing, filing, submitting, or later advocating” a meritless pleading. (CCP § 128.7(b).) Sanctions are warranted only if the moving party meets its burden of proving that the opposing party’s action or tactic was totally and completely without merit, measured by the objective “reasonable attorney” standard, or motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. (See Weisman v. Bower (1987) 193 Cal. App.3d 1231, 1236.) Sanctions should be awarded only in the clearest of cases, to penalize the most egregious misconduct. (See Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 784.)

“Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Peake, supra, 227 Cal.App.4th at 448.) Section 128.7 “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167-168.)

Here, the main thrust of the motion is that Plaintiff Ethan Morton’s claims violate CCP § 128.7 because he indicated in his responses to interrogatories that he attributed no specific physical, mental or emotional injury or other specific damage to his claims. He also argues that Plaintiff admitted in response to his RFAs that was never employed by W.U.R.M. Assets, LLC or that he never resided on the subject property. In essence, Defendant is seeking to adjudicate the merits of the controversy through a motion for sanctions. As pointed out in opposition, CCP § 128.7, was modeled “almost word for word on rule 11 of the Federal Rules of Civil Procedure…” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1168.) As a result, California courts may look to federal decisions interpreting the federal rule. (Id. at 1169.) The Advisory Committee Notes for Rule 11 state that “Rule 11 motions…should not be employed… to test the sufficiency of efficacy of allegations in the pleadings; other motions are available for those purposes.” (Fed. R. Civ. P. 11 advisory committee note [1993 amendments].) “Claims that are plainly meritless should be disposed of early in the course of litigation through summary judgment or other pretrial motions…As a general matter, dismissal of a frivolous…case on the merits should be a first option, whereas imposition of sanctions should be a matter of last resort.” (Blue v. United States Dep’t of the Army (4th Cir. 1990) 914 F.2d 525, 535.) The time for sanctions to be imposed under Rule 11 with respect to pleadings is normally at the end of the litigation. ( Hallwood Realty Partners, L.P. v. Gotham Partners, L.P. (S.D.N.Y. 2000) 95 F.Supp.2d 169.) In imposing sanctions under Rule 11 the court is not judge the merits of the action. (Safe-Strap Co. v. Koala Corp. (S.D.N.Y. 2003) 270 F.Supp.2d 407,

417.) Defendant’s motion, however, is essentially asking the Court to do just that and impose sanctions at the outset of the litigation as opposed to attacking the complaint through a dispositive motion. This is not such an extreme case that CCP § 128.7 sanctions, which should only be used as a last resort, should be imposed at the outset of this action.

In any event, Defendant’s arguments do not demonstrate that he is entitled to the requested sanctions. Although Plaintiff Ethan Morton does not specifically address this in opposition, as seen from the FAC, he alleges causes of action for assault, battery and false imprisonment. Plaintiff was not required to have suffered specific harm. “It has long been established, both in tort and criminal law, that ‘the least touching’ may constitute battery. Indeed, battery is an unconsented invasion of a person’s right to be free from intentional, unlawful, and harmful or offensive contact ( Barbara A. v. John G. (1983) 145 Cal. App. 3d 369, 37.). In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) Similarly, an assault is an invasion of a person’s right to live without being put in fear of personal harm (Lowry v. Standard Oil Co. (1944) 63 Cal. App. 2d 1. Further, assault as defined under the Penal Code § 240 does not even require evidence that anyone was injured but rather only requires intent to injure someone. Specifically, an assault may be committed simply by “[h]olding up a fist in a menacing manner….” (People v. Raviart (2001) 93 Cal.App.4th 258, 267 [citations

omitted].) Nominal damages are available for “technical” assaults and batteries where no actual damage has been shown. (Keister v. O’Neil (1943) 59 Cal.App.2d 428, 435.) Thus, the fact that Plaintiff may indicated in interrogatory responses that he did not suffer specific harm does not show that he has filed a frivolous pleading.

Further, with respect to a cause of action for false imprisonment, Plaintiff could succeed even where no actual damages are shown as he may be entitled to nominal damages. “In view of the nature of the interest protected, it is appropriate a cause of action may be brought even where the damage is purely nominal.” (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1007-1008 [citing Prosser & Keeton, Torts (5th ed. 1984) § 11, p. 48, “the fact that there has been false imprisonment at all establishes a cause of action at least for nominal damages”].) Defendant Radoo’s declaration that he never restrained Plaintiff Morton and that Defendants were simply trying to get everyone off the property in no way shows that the cause of action is without merit. Rather, it simply raises factual questions.

Further, Plaintiff Morton also has a “trespass to chattels” cause of action. A trespass will support an award on nominal damages even where actual damage is not shown. ( Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) Indeed, a cause of action for trespass to chattels “lies where an intentional interference with the possession of personal property has proximately caused injury. In cases of interference with possession of personal property not amounting to conversion, the owner has a cause of action for trespass…, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-1351 (citations and quotation marks omitted).) “[T]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort of conversion.” (Id. (quotation marks omitted).)

The Court simply concludes that the fact that Plaintiff Morton did not identify any specific physical, mental or emotional injuries to the subject incident or any other damages to the subject incident does not show that each and every cause of action in the FAC fails as a matter of law; nor is it shown that the allegations in the FAC were without factual support in violation of CCP § 128.7.

Defendant also pointed to Plaintiff Morton’s admissions that he was never employed

by W.U.R.M. Assets, LLC and that he never resided on the subject property. However, in opposition, Plaintiff submitted evidence that he had a verbal agreement with Plaintiff Ashok Umashankar, a member of W.U.R.M. Assets, LLC to allow him to live on the subject property in exchange for work. (Umashankar Decl. ¶ 5.) This further shows the impropriety of imposing sanctions. At a minimum, even though Plaintiff may have made the admissions, there is other evidence which shows that there are factual issues as to whether Plaintiff worked for W.U.R.M. Assets, LLC and lived on the property. In any event, the status of any employment and whether he resided on the property does not factor into the allegations regarding assault, battery, false imprisonment, trespass, etc.

The Court cannot conclude, that Plaintiff Morton’s FAC was totally and completely without merit, measured by the objective “reasonable attorney” standard, or motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. (Weisman, supra, 193 Cal. App.3d at 1236.) Sanctions should be awarded only in the clearest of cases, to penalize the most egregious misconduct. (See Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 784.)

The Court received but did not consider Plaintiff’s supplemental declaration filed on September 12, 2019 just four days before the hearing. The Court would note, however, that the supplemental declaration essentially attests to the events alleged in the complaint (e.g. that Plaintiff was verbally and physically threatened, including with a firearm, and was fearful for his safety) and further shows that sanctions are not appropriate.

Finally, Plaintiff’s motion for leave to file a second amended complaint has been granted as seen from the Court’s ruling on that motion which is also on this day’s calendar. Plaintiff seeks to include allegations that Defendants violated certain Labor Code wage and hour provisions as to him and also that he seeks to address points raised by Defendants in this motion. Plaintiff Morton’s efforts to amend the FAC, by way of an SAC (which supersedes the FAC), lends further credence to the conclusion that the FAC was not completely without merit and not brought for an improper purpose, but at most may be deficiently pled.

The motion is denied.

Given the above the Court need not address Plaintiff’s additional arguments, including that sanctions cannot be imposed against him personally since he is represented by counsel.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Counsel for Defendants is ordered to notify Plaintiff’s counsel immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Plaintiff’s counsel appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 17 34-2019-00255296

Ashhok Umashankar vs. Brian Radoo

Nature of Proceeding: Motion to File Second Amended Complaint

Filed By: Whitworth, Steve

Plaintiffs’ Ashhok Umashankar, Collin Danforth, Luke Danforth, Ethan Morton and Jacob Risch motion for leave to file a second amended complaint is granted.

Defendants’ request for judicial notice is granted.

In the first amended complaint (“FAC”) Plaintiffs Ashhok Umashankar, Collin Danforth, Luke Danforth, Ethan Morton and Jacob Risch allege numerous causes of action against Defendants for assault, battery, harassment, invasion of privacy, false imprisonment, IIED, trespass to chattel, conversion, private nuisance and interference with contract. The FAC arises from an alleged agricultural joint venture doing business as W.U.R.M. Assets, LLC, between Plaintiff Umashankar and Defendant Brian Radoo, Defendant Bobby Mohamed, and Scott Wallace. Plaintiffs seek to file a Second Amended Complaint to address the issues raised in the defendant’s motion for sanctions brought pursuant to CCP 128.7. Plaintiffs also seek to add various Labor Code violations including a PAGA claim. The complaint was filed on June 8, 2019. There is no trial date.

Defendants oppose the motion on the basis that Plaintiffs have been dilatory and that any amended complaint will substantially prejudice it.

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” (Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v. Hyatt (1998) 61 Cal. App.4th 581, 596. A trial court has discretion to deny a motion for leave to amend where both “inexcusable delay and probable prejudice” is shown. (Magpali v. Farmers Group (1998) 48 Cal.App.4th 471, 487-488 [leave to amend made on the eve of trial properly denied in the trial court’s discretion where the new cause of action would have greatly expanded the case after the “trial date was set, the jury [was] about to be impaneled, counsel, the parties, the trial court, and the witnesses [had] blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery…”].)

Defendants argue that Plaintiffs have unreasonably delayed in seeking leave to amend and that they will be highly prejudiced by the new claims in the proposed amended complaint. They argue that the new claims fundamentally alter the nature of the case by adding new claims for liability and damages. They argue that Plaintiff’s counsel’s declaration is lacking in detail and does not sufficiently describe when the facts giving rise to the amendments were discovered and why amendment could not have been sought earlier as required by CRC 3.1324. The Court rejects these arguments. While true that Plaintiffs’ counsel’s explanation that he only recently discovered additional facts supporting the amendment is lacking in details, the fact is that the case was only filed approximately three months ago in June 2019 and is still in its very early stages.

Even if Defendants are correct that the motion is not based on newly discovered evidence, this does not mean that the motion should be denied. Further, there is no trial date and Plaintiffs’ counsel also declares that the motion for leave to amend was prompted by Defendants’ recently filed motion for sanctions which is also on today’s calendar. The fact that Defendants may have taken discovery as to the allegations in the FAC is not the type of prejudice that would cause the Court to exercise its discretion and deny the motion. While the proposed amended complaint adds new theories of liability, the motion was not made on the eve of trial and Defendants will have ample time to conduct discovery on the new theories and to prepare a defense.

To the extent that Defendants argue that the new causes of action fail, the validity of a proposed amendment is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281 [disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407.]) Such challenges to the pleadings are more properly addressed in a demurrer or a motion to strike rather than in an opposition to a motion to amend. It is axiomatic that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (California Casualty Gen. Ins. Co., supra, 173 Cal.App.3d at 281.)

Plaintiffs shall file and serve the proposed second amended complaint attached as exhibit 1 to Plaintiffs’ counsel’s declaration no later than September 30, 2019. The Court will not deem the proposed pleading filed and served.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Counsel for Plaintiffs is ordered to notify Defendants’ counsel immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Defendants’ counsel appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.