Case Number: BC660926 Hearing Date: April 02, 2018 Dept: 53

LUCIANO GONZALEZ vs. JONS MARKETPLACE , et al.; BC660926, April 2, 2018

[tentative] order re: defendant berberian enterprises, inc.’s motion for the imposition of sanctions against plaintiff luciano gonzalez and his counsel of record, livingston * Bakhtiar, in the sum of $4,812.50 for violation of cal. code of civ. proc. § 128.7

Defendant BERBERIAN ENTERPRISES, INC.’s Motion for the Imposition of Sanctions Against Plaintiff Luciano Gonzalez and His Counsel of Record, Livingston * Bakhtiar, in the Sum of $4,812.50 for Violation of Cal. Code of Civ. Proc. § 128.7 is DENIED.

BACKGROUND

Plaintiff Luciano Gonzalez (“Plaintiff”) filed the instant action on May 11, 2017 against Defendants Jons Marketplace, Jons Market, and Berberian Enterprises, Inc. (“Berberian”). Plaintiff was formerly employed by Berberian as a meat packer. Jons Marketplace and Jons Market were sued as unknown entities. During discovery, counsel for Berberian notified counsel for Plaintiff that Jons Market and Jons Marketplace were not appropriate entities, as Jons Market was merely a trademark belonging to Berberian and Jons Marketplace was a dba for Berberian. (Rauchwerger Decl., ¶¶ 4, 8, 11.)

Nonetheless, on or about December 15, 2017, Plaintiff filed a Request for Entry of Default against Jons Market and Jons Marketplace. Berberian requested that Plaintiff dismiss Jons Market and Jons Marketplace, however, Plaintiff has only agreed to dismiss Jons Marketplace but not Jons Market.

Berberian now moves, pursuant to Code of Civil Procedure section 128.7, for sanctions against Plaintiff and his attorneys for refusing to dismiss Jons Market from this lawsuit despite it being a non-entity.

EVIDENTIARY OBJECTIONS

The Court rules on Plaintiff’s evidentiary objections to the Declaration of Devin Rauchwerger as follows: Objection Nos. 1 and 2 are overruled; Objection No. 3 is sustained.

The Court also notes that Berberian objects to Plaintiff’s late-filed opposition and contends that it was prejudiced in not being able to prepare a timely substantive reply. Accordingly, the Court will allow Berberian to make additional argument at the hearing on this matter.

Legal Standard

Code of Civil Procedure section 128.7(b) provides that by signing and filing a pleading, an attorney “is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) [i]t is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[;] (2) [t]he claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[;] (3) [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[;] (4) [t]he denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (Code Civ. Proc., § 128.7(b).) Code of Civil Procedure section 128.7 authorizes the court to impose appropriate sanctions upon attorneys or parties that have violated subsection (b). (Code Civ. Proc., § 128.7(c).) However, the Court is not required to impose sanctions. (Code Civ. Proc., § 128.7(c); see Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421.)

Discussion

As an initial matter, the Court notes that discussion of a third non-entity, Jons Markets, is also included in the parties’ papers. However, Jons Markets is not a named defendant, so its status as an entity, or lack thereof, is irrelevant.

Berberian seeks section 128.7 sanctions on the basis that Plaintiff’s Complaint against Jons Market should be stricken because Plaintiff’s continued prosecution of this case against Jons Market was made without a reasonable inquiry into its evidentiary bases, is unsupported by evidence and the law, and is objectively unreasonable. Berberian contends that Plaintiff filed and continues to maintain the Complaint against Jon Market despite knowledge that Jons Market is a fictitious business name and not an existing entity. Berberian further contends that Plaintiff’s conduct has caused Berberian to incur unnecessary legal fees in defending this case. However, Berberian does not address in much detail whether Plaintiff’s Complaint against Jons Market is being presented “primarily for an improper purpose.” (Code Civ. Proc., § 128.7(b)(1).) Nonetheless, the Court infers from Berberian’s moving papers that its position is that the Complaint was presented for an improper purpose, namely, to cause needless increase in the cost of litigation.

Plaintiff contends that the “misspelling” of the name of Jons Market is of no consequence because service of process is proper so long as the person served is aware that he is the person named as a defendant. However, the primary issue here is not a matter of whether service was proper, but whether Plaintiff’s Complaint was filed against Jons Market “primarily for an improper purpose.” The Court finds that Berberian has proffered no evidence to suggest that at the time the Complaint was filed, Plaintiff knew that Jons Market was not a proper defendant. Therefore, there is no basis for a finding that the Complaint was filed against Jons Market for an improper purpose. Incidentally, the Court notes that default judgment cannot be entered against an unknown business entity. (See Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943, 945-946 [“…because Schott failed to name Kalar Construction, Inc. as a proper party, no valid judgment was entered against Kalar Construction, Inc., as jurisdiction was never effected over the corporation…”].) Therefore, any concerns that Berberian has or may have with the entry of default against Jons Market should be allayed by the fact that Jons Market is not a properly named defendant.

CONCLUSION

Based on the foregoing, Berberian’s Motion for the Imposition of Sanctions is DENIED. Furthermore, the Court declines to impose monetary sanctions on any party.

Plaintiff is ordered to provide notice of this ruling.

DATED: April 2, 2018

_____________________________

Hon. Howard L. Halm

Judge of the Superior Court