Case Number: SC100219    Hearing Date: August 22, 2014    Dept: M

Tentative Ruling
Kenne v. Stennis
SC100219

This litigation by an attorney against her former client, that client’s son (also an attorney), and their attorney (who is married to the son), is permeated with a remarkable level of rancor, discourtesy, and suspicion, by both sides. Even accusations of criminal conduct with regard to the litigation itself have been thrown. Plaintiff is an attorney representing herself, as is defendant Hatter – who is representing not only herself but her husband and her (now-deceased) mother-in-law, as well.
In more than fourteen years on the bench and almost fourteen years as an attorney, the Court has never seen let alone presided over such acrimonious, wasteful litigation conduct. The parties would have done well to have heeded the wise words of our Supreme Court and the United States Supreme Court: “[A] … lawyer who represents [her]self is at a disadvantage in contested litigation…. [Sh]e is deprived of the judgment of an independent third party…. The adage that a lawyer who represents [her]self has a fool for a client is the product of years of experience by seasoned litigators.” Trope v. Katz (1995) 11 C 4th 274, 292, quoting Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435 (U.S. Ky., 1991) (internal quotations omitted).
As the appellate court put it in affirming Judge Tarle’s order denying Defendants’ anti-SLAPP motion in this very action, “[t]he parties’ dislike of one another is abundantly clear.” Kenne v. Hatter, 2010 WL 4296615,* 8. Unfortunately, that “dislike” (a courteous understatement by the appellate panel) has clouded the parties’ ability to set forth their arguments in a clear, cogent manner and to concentrate on the pertinent law and facts as opposed to personal attacks and invective.
A partial background of this action is well-stated in the aforementioned memorandum disposition, and will be repeated here with minor changes:

Plaintiff Kathleen A. Kenne, an attorney, represented appellant Zelma R. Stennis, an elderly widow, for approximately two years in unlawful detainer actions. On February 13, 2007, respondent (Kenne) sued Zelma (no disrespect intended by use of her first name; it is only done for clarity) and her son, appellant Kevin P. Stennis (Kevin – for clarity only), also an attorney, to collect her fees and costs (“First Action”). On September 11, 2007, Kenne and Zelma entered into a “Conditional Settlement Agreement and General Release”, which by its terms was intended “to settle all of the issues” in the First Action. The settlement agreement provided that certain properties owned by Zelma, which were then in escrow, would be sold by a certain date and Kenne would be paid directly from the escrow proceeds.

While the first action was pending, Kenne filed this action on October 16, 2008, against Zelma, Kevin, and Kevin’s wife, attorney M. Helaine Hatter (Hatter), asserting three causes of action: (1) Breach of the settlement agreement against Zelma, seeking specific performance; (2) common counts against Zelma and Kevin for $393,091.64; and (3) fraud against Zelma, Kevin and Hatter, alleging that on December 13, 2007 and July 17, 2008, Kevin and Hatter fraudulently transferred Zelma’s real properties to Kevin in violation of the Uniform Fraudulent Transfer Act (Civ.Code, § 3439 et seq.) (UFTA). The UFTA claim alleged that the transfers were made for the purpose of “rendering Zelma Stennis insolvent and judgment proof for purposes of any judgment obtained against her” in the First Action, and that the “fraudulent transfers were made without consideration, and were done with the specific intent and design to defraud plaintiff and other creditors.” The instant action was deemed related to the First Action.

Defendants moved to strike Kenne’s complaint under the anti-SLAPP statute. Judge Tarle denied that motion. Defendants appealed, and the appellate court affirmed.

Plaintiff’s First Amended Complaint, which she filed during the pendency of the anti-SLAPP motion, was deemed filed and re-instated after remittitur of the first appeal in this action. The FAC alleged twelve (12) causes of action against Defendants, including claims under the UFTA, intentional interference, abuse of process, contract claims, libel, and the like. As best as the Court can discern, Defendants previously obtained dismissal of four of the causes of action.

Zelma passed away in July 2013. It appears that her estate has been substituted in as a defendant in her place and stead.

Defendants’ Notice of Stay

On August 19, 2014, Defendants filed a “Motion for Prefiling Order Prohibiting Vexatious Litigant From Filing New Litigation” (“Vexatious Litigant Motion”) and a separate document titled, in part, “Notice of Stay – CCP § 391.6.” Notwithstanding Defendants’ belief to the contrary, the filing of their Vexatious Litigant Motion does not stay this action. Accordingly, the Court will proceed to determine the motions which are set for hearing today.

DENIED:

Having read and considered the moving papers, the Court tentatively denies the Defendants’ motion pursuant to CCP 391.1, and rules as follows:

1. Code of Civil Procedure section 391.6 provides: “When a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof.” Under the plain language of section 391.6, filing a section 391.1 vexatious litigant motion stays the litigation;
2. The vexatious litigant statutes provide two remedies. The first is an order to furnish security under section 391.3. This remedy is obtained by bringing a motion under section 391.1, which requires a determination that the plaintiff is a vexatious litigant, and that “there is not a reasonable probability that the plaintiff will prevail [on the merits].” CCP 391.1 (emphasis added); CCP 391.3. Another remedy is found in section 391.7, which authorizes the court to “enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” CCP 391.7(a);
3. Although the Vexatious Litigant Motion does request that Plaintiff be ordered to furnish a security, it not only contains no reference to CCP 391.1, it fails to even mention the“there is not a reasonable probability that the plaintiff will prevail [on the merits]” language of CCP 391.1. Indeed, the motion’s sole focus is to have Plaintiff determined to be a vexatious litigant. CCP 391.1 requires far more than that;
4. In addition, the Vexatious Litigant Motion is not supported by any declaration, and the exhibits referenced therein are not attached thereto. It is thus patently invalid; and
5. Defendants’ “Motion for Prefiling Order Prohibiting Vexatious Litigant From Filing New Litigation” is advanced to this date from October 16, 2014, and is denied without prejudice. If the motion is re-filed all exhibits in support thereof are to be tabbed in the manner required by CRC 3.1110(f).

Defendant Zelma Stennis’ Motion for Judgment on the Pleadings

As best as the Court can discern, the other three defendants being in default, defendant Zelma Stennis (or, more properly, her estate), only, (“Zelma”) moves for judgment on the pleadings as to “all remaining claims” in the FAC. Motion, 2:7. Nowhere in the motion are those “remaining claims” clearly identified, although it appears that Zelma is asserting that only the first through eighth causes of action remain. See, Motion, 13:1-2 and 13:20-21. That is confirmed in the opposition brief, at 1:8 thereof.

DENIED:

Having read and considered the moving papers, the Court will tentatively deny Zelma’s motion for judgment on the pleadings and rules as follows:

1. Evidentiary matters:
a. The second page of Defendant’s request for judicial notice is missing. As a result, the (incomplete) request for judicial notice fails to comply with the signature requirement of CCP 128.7. Accordingly, it is denied in full;
b. The ruling would be the same even if the Court took judicial notice of all documents appended to the request for judicial notice; and
c. Plaintiff’s request for judicial notice is denied as moot for the reasons set forth below.
2. “‘A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.'” Burnett v. Chimney Sweep (2004) 123 CA 4th 1057, 1064;
3. The motion – which is riddled with material typographical and editing errors throughout – is inarticulate and confusing in innumerable respects. If the claims are not properly stated, it is not the Court’s function to guess why. It is defense counsel’s job to clearly and cogently explain why the claims are not properly stated. See, e.g., Gagosian v. Burdick’s Television and Appliances (1967) 254 CA 2d 316, 318 (“The state is under no duty to provide counsel for private litigants in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel”). They have not done so here. Perhaps Zelma’s brief has set forth some of the “dots” – but it fails to connect them. Respective counsel need to bear in mind that while they have actually lived this case for nearly six years, the Court has not – far from it. This case is only one of hundreds of cases currently on the Court’s docket, and only one of thousands of cases the Court has presided over in the last six years. In drafting motions or oppositions thereto, counsel should not assume that the Court is intimately familiar with the tortured facts, and tortured procedural history, of this case and/or the First Action. All pertinent facts should be clearly set forth such that legal arguments are placed in the proper context for the Court; and
4. The Court simply cannot make sense of this motion and, therefore, it is denied with prejudice in its entirety.

Defendant Zelma Stennis’ Motion for Reconsideration of Discovery Order

The motion (unexecuted, in violation of CCP 128.7) is unclear in numerous regards. Again, it is not the Court’s function to figure out why Zelma is entitled to the relief she seeks (even that is unclear, and, notably, a copy of the Court’s October 29, 2013 order, which is the apparent subject of the motion, is not attached to the motion).
Did Defendants file this motion solely to dispute an $80.00 sanctions award against them? And, if so, does Plaintiff contend that her 15-page brief and 6 page declaration in opposition thereto constituted an appropriate and proportionate response, notwithstanding that she herself seeks additional sanctions?

DENIED:

Motion is denied in its entirety with prejudice to any motion or application, however denominated which directly or indirectly seeks to vacate or modify any portion of the Court’s October 29, 2013 order. All of Plaintiff’s requests for monetary sanctions, and her implied request that the Court find Hatter in contempt, are denied with prejudice.

Defendants’ Motion for Mandatory Relief From Entry of Defaults

The three defaulted defendants (Hatter, Kevin P. Stennis, Esq., and Kevin Pierre Stennis, Jr.) seek relief from their defaults entered on July 2, 2013, under the mandatory (and discretionary, notwithstanding the title of the motion) provisions of CCP 473(b). Defendants contend that Plaintiff, without warning, took their defaults after remittitur of the second appeal in this action. The defaulted Defendants claim that they mistakenly believed that the CCP 1013 5-day extension applied, so they failed to timely file their responses to Plaintiff’s FAC. Plaintiff filed an opposition brief which spans 15 pages – not including a four page notice of opposition.

GRANTED:

Having read and considered the moving papers, the Court will tentatively grant the defaulted Defendants’ motion to vacate and rules as follows:

1. The motion, like the others determined today, is unclear in numerous regards. What is clear, however, is that Plaintiff, without warning, i.e., with quiet speed, took the defaults;
2. A plaintiff’s failure to provide defendant’s counsel notice that he is seeking a default is generally a sufficient ground to set aside a default under section 473. See, e.g., Smith v. Los Angeles Bookbinders Union No. 63 (1955) 133 CA 2d 486, 500 (“The quiet speed of plaintiffs’ attorney in seeking a default judgment without the knowledge of defendants’ counsel is not to be commended”);
3. This is because “the law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ Reed v. Williamson (1960) 185 CA 2d 244, 248.)” Zamora v. Clayborn Contracting Group, Inc. (2002) 28 C 4th 249, 258;
4. “‘[S]ound policy favors the determination of actions on their merits.’ [Citation.]” Zamora, supra at p. 256;
5. The Court declines to permit Plaintiff to profit from her own wrong;
6. Moreover, the declaration filed in support of the motion is sufficient to warrant relief from default;
7. The Court, on its own motion pursuant to CCP 128, vacates Defendants’ defaults entered on July 2, 2013. Motion is taken off-calendar as moot;
8. Answers identical to those attached as Exhibits 11-13 of the motion are to be served and filed within ten calendar days (the proposed answers should have been separately lodged);
9. However, if the three answers are identical, one combined answer may be filed on behalf of all three defendants;
10. Any cross-complaint(s) is/are to be served and filed concurrently; and
11. Plaintiff’s request for sanctions is denied with prejudice in its entirety.

Other matters

1. Counsel are reminded that under CRC 3.1113(f), briefs which exceed ten pages require a table of contents and table of authorities, and that CRC 3.1110(f) imposes, with good reason, specific requirements with regard to tabbing of exhibits.

2. Indeed: Counsel are admonished of the need to comply with all applicable statutes, Rules of Court, local rules, and orders of the Court when filing documents in this action. The failure to so comply may result in adverse consequences including the striking of any non-complying document.

3. Defendants need to fix the caption of their documents to accurately reflect the case number of this action.

4. Counsel are reminded that this Court is actively supervising over 400 cases, and, in this time of crippling budget cuts and staff reductions, unfortunately lacks the time and resources to unscramble or plumb arguments which are not properly briefed by the parties. Thus, arguments which are not clearly and cogently set forth are not likely to have any persuasive force.

5. Finally, the Court has been advised by management personnel in this building that numerous court employees feel that they have been subjected to demeaning treatment, harassment, foul and/or abusive language, accusations of favoritism based upon race, and physical intimidation based on the aforementioned things and aggressive conduct in close proximity to them. Although most of the complaints have been directed at the Plaintiff, some have also been directed at Ms. Hatter. Assuming the feelings are justified, this type of behavior that leads others to feel this way is intolerable and unacceptable. Although the Court has not witnessed any of the events so described, the Court is hereby putting counsel, and the parties on notice;

6. Code of Judicial Ethics, Canon 3(b)(3) states: “A judge shall require order and decorum in proceedings before the judge.” Code of Jud.Ethics, Canon 3(b)(4) states: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of all staff and court personnel under the judge’s direction and control” (emphasis added);

7. The allegations made by Court personnel through their supervisors suggest that the Plaintiff and Ms. Hatter have not acted in a dignified or courteous manner towards court staff, which includes inside this courtroom and in the clerk’s office. If the Court determines that any such conduct occurs in the future, the Court will, however reluctantly, take whatever steps are necessary to fulfill its own ethical obligations. The Court has previously admonished the Plaintiff and Ms. Hatter about their conduct towards each other and court employees, to no avail. Having made counsel aware that their behavior directly affects the Court’s own ethical obligations, the Court now trusts that further discussion of this unfortunate topic will no longer be necessary.

NOTICE

Clerk to give notice.