Case Name: Sergey Firsov v. Yevgeniy Babichev, et al.

Case No.: 19-CV-345499

Currently before the Court are plaintiff Sergey Firsov’s (“Plaintiff”) “Motion to Void Defendant Babichev’s Special Motion” and “Motion to Void Defendant Chernov’s Special Motion.”

Factual and Procedural Background

This action for intentional torts stems from three underlying cases: (1) a marital dissolution case, Evgeniya Kulikova v. Sergey Firsov (Santa Clara County Superior Court, Case No. 18-FL-000341); (2) a civil harassment case, Ekaterina Berman v. Sergey Firsov (Santa Clara County Superior Court, Case No. 19-CH-008591); and (3) a civil harassment case, Sergey Firsov v. Evgeniy Babichev (Santa Clara County Superior Court, Case No. 19-CH-008613).

Defendant Ekaterina Berman (“Berman”), an attorney, represents Plaintiff’s ex-wife in the ongoing dissolution action. In that case, Berman helped her client file requests for orders regarding child custody, child support, visitation, spousal support, the disclosure of documents, and attorney fees. Berman also filed a request for a domestic violence restraining order against Plaintiff on behalf of her client. Although a temporary restraining order against Plaintiff was granted, the request for a permanent restraining order was denied after a hearing on the matter.

Plaintiff has also filed several motions to modify support and visitation, requests for fee waivers, and a request for a domestic violence restraining order against his ex-wife in the marital dissolution action. Berman requested attorney fees for work done in connection with those matters.

On February 13, 2019, Berman submitted a stipulation between her client and Plaintiff for a “dissolution, status only” judgment to the court.

Two days later, Berman’s client forwarded her an email from Plaintiff, which was written in Russian. In the email, Plaintiff purportedly accused his ex-wife and Berman of lying, asked his wife who should be punished, and asked his ex-wife to choose who should be killed. In the email, Plaintiff used the Russian word “mochit.” One such meaning, at least according to some of the parties in this case, is slang for “whacked,” “rubbed out,” or “kill.”

Berman showed the email to her mother and step-father, defendant Yevgeniy Babichev (“Babichev”), to discuss how to handle the matter. They decided Berman should ask for a restraining order, and Babichev, who is fluent in Russian, translated the email so Berman could submit it to the court.

On February 19, 2019, Berman filed a civil harassment case, seeking a restraining order against Plaintiff. Berman attached Plaintiff’s email and Babichev’s translation as exhibits to her petition. The court granted Plaintiff a temporary restraining order against Plaintiff. Shortly thereafter, Plaintiff filed a request for a fee waiver in the case, which was granted.

Plaintiff sent Berman another email on February 28, 2019, regarding the marital dissolution action, which distressed her. Berman then called the San Jose Police Department and provided it with a copy of Plaintiff’s email.

In late February and early March 2019, Berman told translators, defendants Luba Chernov (“Chernov”) and Omar Kitanoff (“Kitanoff”), about her civil harassment case and obtained translations of Plaintiff’s emails from them. Those translations also translated “mochit” as “kill.” Berman filed the translations of Plaintiff’s emails with the court. Berman also told other attorneys in the Russian community, who she is friends with, that Plaintiff threatened her and she had a restraining order against him.

In March 2019, Berman saw that Plaintiff was posting negative comments about her on Facebook, which distressed her. Berman then called the San Jose Police Department to inform it about Plaintiff’s comments, and she was told that Plaintiff would be arrested for violating the temporary restraining order. Around the same time, Babichev posted comments on Facebook regarding Plaintiff.

On March 7, 2019, Plaintiff filed a civil harassment case, seeking a restraining order against Babichev. Subsequently, Plaintiff was arrested in court because Berman called the San Jose Police Department and informed it that Plaintiff continued to harass her despite the temporary restraining order. Berman also asked bailiffs to walk with her to hearings at which Plaintiff was present.

In April 2019, Plaintiff filed the instant lawsuit for intentional torts against several defendants, including Berman, Babichev, Chernov, and Kitanoff. Shortly thereafter, Plaintiff filed a request for a fee waiver, which was granted.

One month later, Berman sent a letter to the presiding judge and chief executive officer of the court, asking the court to revoke Plaintiff’s fee waivers in connection with the instant lawsuit and the underlying marital dissolution and civil harassment cases. Berman attached documents regarding Plaintiff’s finances, such as wage and tax forms, as exhibits to the letter. The presiding judge declined to revoke the fee waivers.

In June 2019, Babichev filed a response to Plaintiff’s request for a civil harassment restraining order. Babichev attached a copy of a webpage owned by Plaintiff and his translation of the webpage as exhibits to his response.

Plaintiff filed the operative first amended complaint in this action on July 16, 2019, alleging causes of action for: (1) intentional torts (against Berman); (2) intentional torts (against defendant Department of Justice); (3) negligence (against DOJ); (4) intentional torts (against Chernov); (5) intentional torts (against Kitanoff); (6) intentional torts (against defendant Kitanoff Group International); and (7) intentional torts (against Babichev).

On August 12, 2019, Berman and Babichev filed special motions to strike under Code of Civil Procedure section 425.16. Plaintiff filed declarations in opposition to the motions on September 5, 2019. On October 21 and 22, 2019, Berman and Babichev filed reply papers in support of their respective motions. Plaintiff filed sur-replies with supporting declarations on October 24, 2019.

On September 25, 2019, Chernov filed a special motion to strike under Code of Civil Procedure section 425.16, which was set for hearing on November 26, 2019.

On September 30 2019, Plaintiff filed the instant “Motion to Void Defendant Babichev’s Special Motion” and “Motion to Void Defendant Chernov’s Special Motion.” That same day, Plaintiff also filed papers in opposition to Chernov’s special motion to strike.

In early October, Chernov filed an amended notice of motion advising that the hearing on her special motion to strike was rescheduled to January 30, 2020.

The Court issued a tentative ruling on Berman’s and Babichev’s special motions to strike on October 28, 2019, and no party called the Court to contest the ruling. Nevertheless, Plaintiff appeared at the October 29, 2019 hearing to contest the tentative ruling. Because Plaintiff had not informed the Court he was going to appear, the Court unfortunately did not have a Russian interpreter available for him. The Court, therefore, continued the hearing to November 19, 2019.

In the meantime, the two restraining order cases went to trial. Following trial, the court (Hon. Carrie Zepeda) denied Berman’s request for a restraining order against Plaintiff, granted Plaintiff’s cross-request for a restraining order against Berman for one year, and granted Plaintiff‘s request for a restraining order against Babichev for one year. Along the way, the court (Hon. Carrie Zepeda) found that the word “mochit,” as used in the context of Plaintiff’s February 15, 2019 email, was incorrectly translated and Plaintiff did not threaten to kill Berman.

In early November 2019, Plaintiff filed further papers in opposition to Berman’s and Babichev’s special motions to strike.

On November 19, 2019, Berman’s and Babichev’s special motions proceeded to hearing as scheduled. Plaintiff and counsel for Berman, who also was specially appearing for Babichev, were present and argued their positions. The Court then took the matters under submission. The next day, the Court issued an order granting Berman’s and Babichev’s special motions to strike.

On November 22, 2019, Plaintiff filed several additional documents in opposition to Chernov’s special motion to strike.

In early December, Babichev filed papers in opposition to Plaintiff’s “Motion to Void Defendant Babichev’s Special Motion” and Chernov filed papers in opposition to Plaintiff’s “Motion to Void Defendant Chernov’s Special Motion.”

Most recently, on December 10, 2019, Plaintiff filed a “Memorandum of Points and Authorities in Support of Motion to Void Special Motion.”

Discussion

I. Merits of the Motions

In the pending motions, Plaintiff asks the Court to void the special motions to strike filed by Babichev and Chernov.

As a preliminary matter, Babichev and Chernov argue that Plaintiff’s motions should be summarily denied because they do not include memoranda of points and authorities as required by California Rules of Court, rule 3.1113. That rule states that “[a] party filing a motion … must serve and file a supporting memorandum” and “[t]he court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial ….” (Cal. Rules Ct., rule 3.1113(a).) Babichev and Chernov’s argument is not well-taken as Plaintiff filed memoranda of points and authorities in support of his motions on September 30, 2019. Thus, the Court will not deny the motions on this basis.

Nonetheless, Plaintiff’s motions must be denied as they suffer from several fatal defects.

First, Plaintiff does not identify the legal basis of his motions. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief.”]; see also Gonzales v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1545 [“It is elemental that a notice of motion must state in writing the ‘grounds upon which it will be made.’ ”]; Cal. Rules of Ct., rule 3.1112(d)(3).) As explained above, Plaintiff seeks to void the special motions to strike filed by Babichev and Chernov. But Plaintiff does not cite any statute or other legal authority, and the Court is aware of none, permitting a motion to void or nullify a motion filed by another party. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [same].)

Second, even if such a motion was authorized by statute, Plaintiff fails to establish that the special motions to strike filed by Babichev and Chernov should be voided. Plaintiff asserts that the Court should nullify the special motions to strike because Berman called the court clerk to obtain hearing dates for the motions. Plaintiff contends Berman’s conduct was improper because Berman is not Babichev or Chernov’s legal counsel in this action. However, Plaintiff does not present any legal authority, and the Court is aware of none, providing that a party’s motion is void when a person other than the party’s attorney called the court to obtain the hearing date for the motion. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone) [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 (T.P.) [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Plaintiff cites Santa Clara County Superior Court Local Rule 8(C), Scheduling Hearings, but that rule does not provide that only the party’s attorney can call the court to obtain a hearing date for the motion. Rather, that rule simply states that a party must contact the calendar clerk to obtain approved hearing dates.

For these reasons, Plaintiff’s “Motion to Void Defendant Babichev’s Special Motion” and “Motion to Void Defendant Chernov’s Special Motion” are DENIED.

II. Requests for Attorney Fees

In their opposition papers, Babichev and Chernov ask the Court to award them attorney fees in connection with the instant motions.

A. Babichev’s Request

Babichev states that he seeks attorney fees in connection with his opposition to Plaintiff’s “Motion to Void Defendant Babichev’s Special Motion” because that motion is “related to litigating Defendant’s anti-SLAPP motion.” (Oppn., p. 2:14-16.)

Babichev’s request for attorney fees suffers from multiple defects. First, Babichev does not identify any statute authorizing an award of attorney fees made in connection with a motion to void or nullify a motion filed by another party. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [same].) Second, Babichev does not present any reasoned argument or legal authority supporting his contention that a party may be awarded attorney fees for opposing a motion related to a special motion to strike. (See Falcone, supra, 164 Cal.App.4th at p. 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P., supra, 191 Cal.App.4th at p. 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Third, Babichev does not identify the amount of attorney fees sought or provide evidence demonstrating that he incurred the sought-after attorney fees.

Accordingly, Babichev’s request for attorney fees is DENIED.

B. Chernov’s Request

Chernov states that she seeks attorney fees in connection with her opposition to Plaintiff’s “Motion to Void Defendant Chernov’s Special Motion” pursuant to Code of Civil Procedure sections 128.5 and 128.7. (Oppn., pp. 2:8-11, 3:18-23, & 4:1-3.)

Chernov is not entitled to an award of attorney fees under Code of Civil Procedure sections 128.5 and 128.7 because her request is made in her opposition and such a request must be made in a separately noticed motion. (Code Civ. Proc., §§ 128.5, subd. (f)(1)(A) [“[a] motion for sanctions under this section shall be made separately from other motions or requests”] & 128.7(c)(1) [“[a] motion for sanctions under this section shall be made separately from other motions or requests”].) Furthermore, Chernov does not identify the amount of attorney fees sought or provide evidence demonstrating that she incurred the sought-after attorney fees.

Accordingly, Chernov’s request for attorney fees is DENIED.