(1) Motion – Other (2) Motion for Sanctions (3) Motion to Strike

Tentative Ruling: Motion to Strike is GRANTED. Court strikes the Doe 2 and ROE 2 amendments, declares the service of summons and complaint as to Marmot Mountain LLC void and sanctions Plaintiff and Plaintiff’s attorney, jointly and severally, in the amount of $1500 pursuant to Code of Civil Procedure sections 177, 177.5. This Court ordered a stay of this action on 4-15-14. Filing DOE/ROE amendments and serving a summons and complaint on Marmot Mountain LLC was in direct violation of that order.

The Court’s 4-15-14 minute order stated “Defendant’s Motion to Stay Proceedings pending the resolution of Chan v. Haroutoonian (2012-00582125) is granted. A stay will promote judicial economy as both actions involve a determination of whether Chan engaged in breaches of fiduciary duties.”

Plaintiff could have sought an exception to the stay to allow it to file DOE amendments to preserve the SOL as to those defendants, but it did not do so. It also did not seek reconsideration of the ruling on the motion to stay. Instead, in what appears to be a violation of the ruling to effectively suspend the case pending the resolution of Chan v. Haroutoonian, Plaintiff filed DOE and ROE amendments and served Marmot Mountain LLC with the summons and complaint.

Plaintiff argues that because nothing is required of the Defendant, no action has been taken against them. However, clearly serving a summons and complaint would require some action, whether it be clarifying there is no need to file a responsive pleading, or something else.

Plaintiff argues it did not intend to violate the order, and yet, it clearly intended to do what it did. It made a tactical decision to not file DOE/ROE amendments until after the Guess? Demurrer was ruled upon; but that tactical decision backfired when the Motion to Stay was granted and the demurrer was taken off calendar. Clearly once the Motion to Stay was filed, Plaintiff was on notice that it might want to file those DOE/ROE amendments to guard against any later SOL arguments, and yet, it did not.

Accordingly, the Court will strike the DOE and ROE amendments and order the summons and complaint stricken and void as in violation of the stay.

As to sanctions, sanctions appear warranted pursuant to Code of Civil Procedure sections 177 and 177.5.

Code of Civil Procedure section §177:
Every judicial officer shall have power:
1. To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty;
2. To compel obedience to his lawful orders as provided in this Code;
3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided in this Code;
4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties.

Code of Civil Procedure section 177.5
A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.

Sanctions up to $1500 appear warranted pursuant to section 177.5.

As to the other code sections cited by Marmot in support of sanctions, the Court notes Code of Civil Procedure section 128.5 does not apply because it can only be used for cases prior to 1994. Although clearly conduct within Code of Civil Procedure section 1209(a)(5) has occurred, “disobedience of any lawful…order…”, this code section does not specifically allow for fees. CRC Rule 2.30 does not apply because Marmot does not cite to any rule (as opposed to statute) that has been violated.