Case Number: BC590284 Hearing Date: November 26, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE AUGUST 12, 2019 DISQUALIFICATION ORDER AND ANY DEFAULTS ENTERED AGAINST INDIVIDUAL DEFENDANTS AFTER AUGUST 20, 2019; MOTION FOR SANCTIONS

Date: November 26, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Victor Daniel Brocca; Ida Brocca; Jerry Guzman; and Craig N. Rossell (“Rossell”) and the Rossell Law Firm (“Moving Parties”)

RESPONDING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

The Court has considered the moving and opposition papers in connection with the: (1) motion to set aside the Court’s August 12, 2019 disqualification order; and (2) any defaults entered against individual defendants after August 20, 2019. No reply brief was filed thereto.

In connection with Plaintiffs’ motion for sanctions against Rossell there was no opposition brief filed although the proof of service filed with Plaintiffs’ motion for sanctions indicates that all interested parties were served with Plaintiffs’ motion for sanctions on September 7, 2019. Any opposition to Plaintiffs’ motion for sanctions was required to be filed by November 13, 2019 pursuant to California Code of Civil Procedure, Section 1005(b).

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken in connection with a contract for carpentry services. Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; and (5) racketeer influenced and corrupt organizations (RICO) violations.

Moving Parties filed a motion: (1) for the Court to set aside its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered. Moving Parties filed their motion pursuant to California Code of Civil Procedure, Section 473(b).

Plaintiffs also filed a motion for sanctions pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 against Rossell. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell. The Court will address the respective motions filed by the parties within this one ruling.

On October 15, 2019, Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered was called for hearing. The Court’s minute order indicated that the Court had read and considered all filed documents related to Moving Parties’ motion, provided counsel with its written tentative ruling, and gave counsel the opportunity to argue. The Court continued the hearing on Moving Parties’ motion to November 26, 2019. The Court also continued the hearing on Plaintiffs’ motion for sanctions to November 26, 2019. Plaintiff was ordered to give notice to which Plaintiff complied.

Brief Procedural Background

On July 18, 2019, Plaintiffs filed a motion to disqualify Rossell from further representing Defendants which went unopposed and on August 12, 2019, the Court granted Plaintiffs’ motion for disqualification with respect to Rossell.

On August 20, 2019, as indicated by the Court’s minute order, the Court struck the answer of Defendant Brocca Custom Finishing and entered a default against Defendant Brocca Custom Finishing. The Court’s August 20, 2019 minute order indicated that the substitution of attorney for Defendant Brocca Custom Finishing had not been filed.

On September 12, 2019, Individual Defendants each filed substitution of attorney forms in which they each indicated that Rossell was their former legal representative and that they were now each representing themselves.

JUDICIAL NOTICE

The Court GRANTS Plaintiffs’ request for judicial notice in connection with their motion for sanctions.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Moving Parties’ objections numbers 1, 3-40 to the exhibits accompanying the declaration of Cesar Romero in opposition to Moving Parties’ motion to set aside the Court’s disqualification order and vacate defaults. Although the Court sustains all of Moving Parties’ objections they do not have an impact have on the Court’s ruling with respect to Moving Parties’ motion.

MOTION TO SET ASIDE

California Code of Civil Procedure, Section 473(b) says that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made without a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken.” “The requirement that a verified pleading accompany the application for relief or that one be on file is mandatory, and failure to comply necessarily results in denial of relief.” (Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.)

August 12, 2019 Disqualification Order

While Moving Parties request that the Court set aside its August 12, 2019 disqualification order, Moving Parties’ motion fails to attach a copy of the pleading proposed to be filed therein. Although Moving Parties bought a collective motion, Rossell is purporting to object to the Court’s order disqualifying him due to his surprise as the moving papers assert that Rossell never received notice of Plaintiffs’ motion to disqualify. Proof of service, however, was filed with respect to Plaintiffs’ motion for disqualification and “the filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Moving Parties should have attached a proposed opposition to Plaintiffs’ motion for disqualification to their motion for the Court to set aside its August 12, 2019 order disqualifying Rossell. Moving Parties motion is procedurally improper under Daniels.

August 20, 2019 Entry of Default and Striking Answer

Additionally, to the extent that Moving Parties seek to set aside defaults entered against them individually—Victor Daniel Brocca; Ida Brocca; and Jerry Guzman (the “Individual Defendants”)—the Court finds that Moving Parties’ motion is moot, irrelevant, and is based on an inaccurate understanding of the procedural posture of this action. No default was entered against the Individual Defendants based on the Court’s August 20, 2019 minute order. Moreover, the answer of any of the Individual Defendants was never stricken. The Court’s August 20, 2019 minute order struck the answer filed by Defendant Brocca Custom Finishing and entered default against that party. The Court cannot set aside any default or set aside an order striking an answer as to any of the Individual Defendants because neither entering a default nor striking an answer has occurred with respect to any of the Individual Defendants.

The Court therefore DENIES Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order; and (2) its August 20, 2019 order striking the answer of any Individual Defendant and entering default against any of the Individual Defendants to the extent such defaults have been, or will be, entered.

MOTION FOR SANCTIONS

Plaintiffs filed a motion for sanctions against Rossell on the grounds that Rossell: (1) engaged in bad-faith and frivolous actions in order to cause unnecessary delays; (2) offered defenses and legal contentions that were not supported by existing law and that any reasonable attorney would have known is completely devoid of any merit; (3) offered allegations and factual contentions that had no evidentiary support; and (4) denied factual contentions that were not warranted. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 reflecting the litigation expenses and attorney’s fees that Plaintiffs were forced to incur as a result of Rossell’s bad faith actions and tactics throughout this five-year litigation.

Sanctions pursuant to California Code of Civil Procedure, Section 128.5 are discretionary. Similarly, sanctions pursuant to California Code of Civil Procedure, Section 128.7 are discretionary. Due to Plaintiffs’ motion being unopposed, the Court GRANTS Plaintiffs’ motion for sanctions against Rossell pursuant to California Code of Civil Procedure, Section 128.5 and 128.7. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The Court exercises its discretion and orders Rossell to pay sanctions in the more reasonable amount of $17,542.98 which represents twenty percent (20%) of Plaintiffs’ requested sanctions amount and should be sufficient to deter repetition of Rossell’s conduct which is the goal of sanctions under Sections 128.5 and 128.7. Sanctions are payable by Rossell to Plaintiffs within 120 days.

Moving Parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 26th day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court