2011-00114184-CU-CO

Betty L. Mcvey vs. Wells Fargo and Company

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Newman, David M.

Defendant Wells Fargo’s Motion for Terminating Sanctions is GRANTED.

Plaintiff Betty McVey has willfully ignored this Court’s order to post an injunction bond.

On January 10, 2013, Plaintiff filed an application for a preliminary injunction to prevent
the foreclosure sale of the real property that secured her loan with Wells Fargo. On
February 13, 2013, the Court (Judge Loncke) granted the motion and set a bond in the
amount of $10,000.

Plaintiff did not post the bond until prompted by a March 18, 2013 ex parte application
of Wells Fargo to dissolve the injunction for failure to post the bond.

On April 19, 2013, Wells Fargo filed a motion to dissolve the injunction based on new
and different facts that were not presented in response to Plaintiff’s original application.
On May 28, 2013, this Court granted that motion and dissolved the injunction.

Without notice to Wells Fargo’s counsel, Plaintiff submitted a proposed order to the
Court on May 31, 2013 – three days after the court dissolved the injunction – to release
the $10,000 bond back to Plaintiff’s counsel. Plaintiff never served Wells Fargo with
the proposed order before submitting it to the Court, nor in conjunction with a motion.

The Court signed the order dissolving the bond on June 3, 3013. After the Court
signed the order, Plaintiff failed to serve Wells Fargo with the signed order or with a
Notice of Entry of Order.

When Wells Fargo accidentally discovered the order regarding the bond in the Court
records, Wells Fargo filed a motion to vacate the June 3 Order and reinstate the
$10,000 bond.

The Court granted Wells Fargo’s motion to reinstate the bond on August 29, 2013.
That order required Plaintiff to reinstate the $10,000 bond by no later than September
9, 2013.

Plaintiff has failed to reinstate the bond, in compliance with the Court order of August
29, 2013.

In opposition to this motion for terminating sanctions, plaintiff merely blames her
former counsel, attorney Bolanos. However, C.C.P., sec. 283 clearly provides that “An
attorney and counselor shall have authority. . .to bind his client in any of the steps of
an action or proceeding by his agreement filed with the clerk, or entered upon the
minutes of the court, and not otherwise…” As her attorney, Bolanos was acting within
the scope of his authority, and plaintiff is bound by his conduct. Further, although attorney Bolanos withdrew as counsel of record for plaintiff on Sept.
4, 2013, plaintiff gives no explanation for her continuing failure to comply with the
Court order of August 29, 2013, requiring her to reinstate the $10,000 bond by no later
than September 9, 2013.

The Court records do not reflect that plaintiff has complied with the Court order by
posting a $10,000 bond.

The Court has inherent power to terminate litigation for deliberate and egregious
misconduct-conduct that makes lesser sanctions inadequate to ensure a fair trial.
Such power is essential for the court to preserve the integrity of its proceedings. It
restores balance to the adversary system when the misconduct of one party has
destroyed it. As here, such power can be exercised with full procedural due process as
a noticed hearing does not violate due process rights. Stephen Slesinger, Inc. v. Walt
Disney Co. (2007) 155 Cal. App. 4th 736, 761.

The Court finds that terminating sanctions for willful violation of a court order are
appropriate. Plaintiff’s complaint is ordered stricken.

Prevailing party is directed to submit a formal order and judgment for the Court’s
signature.