VICTORIA CARRILLO VS WALTER HUFF

Case Number: KC067009    Hearing Date: October 31, 2014    Dept: O

Carrillo v. Huff, et al. (KC067009)

Defendant Huff’s MOTION FOR SANCTIONS PURSUANT TO CCP 128.7

Respondent: Plaintiff Carillo

TENTATIVE RULING

Defendant Huff’s motion for sanctions pursuant to CCP 128.7 is DENIED.

SAFE HARBOR:
A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. (CCP 128.7(c)(1).)

The motion was served on 7/29/14, and filed more than 21 days thereafter on 9/9/14. The motion is timely.

MERITS:
By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that THE PLEADING 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, and that the 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. (CCP 128.7(b)(1)-(2).) The attorney or party presenting a pleading or other paper to the court certifies that, to the best of that person’s knowledge and belief “formed after an inquiry reasonable under the circumstances,” the 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.” (CCP 128.7(b)(3).)

No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. (CC 1714.10(a).)

The Complaint alleges that Defendants W. and L. Huff, Law Offices of Walter R. Huff & Associates, and Ronin Oath Investments, LLC conspired to take title to the property with the intent to defraud Plaintiff. (Complaint, Par. 41.) Although Defendant Huff represented non-parties J. and T. Martinez in a prior action, the conspiracy does not relate to the Martinezes or the underlying action. Instead, Plaintiff alleges that Defendant Huff created a straw-man so he could fraudulently obtain an interest in Plaintiff’s property. Par. 19 alleges that in the underlying action, the Court determined that Plaintiff and the Martinezes, each owned 50% interest in the property as tenants in common. Par. 26 alleges that on 12/20/11, the Martinezes sold the property to Ronin Oath for $189,000.00. Par. 27 alleges that Plaintiff did not receive any money from that transaction. Par. 32 alleges that Ronin then transferred the property to Huff and his wife for nominal consideration. Par. 35 alleges that thereafter, Huff transferred the property back to Ronin, and Ronin sold the property for $354,000.00. Plaintiff did not receive any portion of the sale. The conspiracy is directed against the Huffs and Ronin for actions taken against the property that were not relevant to the underlying action. Accordingly, the court finds CC 1714.10(a) does not apply to these facts.

Further, the court finds that the filing was not done primarily for an improper purpose to harass or cause unnecessary delay. Plaintiff specifically alleges that she is a 50% owner of the property, and Defendants sold the property without giving Plaintiff her share of the profits. It is still unclear to this court how the property could have been sold without Plaintiff’s knowledge if she did indeed own 50% interest; however such are pleading and proof issues, not evidence of sanctionable conduct.

Accordingly, motion is DENIED.

Print Friendly, PDF & Email
Copy the code below to your web site.
x 

Leave a Reply

Your email address will not be published. Required fields are marked *