Rezos v Autobhan, San Mateo County Superior Court Case Number 18CIV06391.


From the court's tentative ruling and online county case records it is Lawzilla's understanding the following occurred:

Attorney Tim Robinett of the Manning, Leaver, Bruder and Berberich Law Firm is the lead attorney representing the defendants.

He is the primary attorney listed by the court:




Robinett is the only attorney listed for the answer filed by defendants to the complaint.




And he is "Defense Counsel" referred to plaintiff in the discovery motions which led to the sanctions award by the judge.




With regard to motions filed resulting in this court order, opposition briefs were signed by Manning Leaver associate attorney Daniel Berberich.




The header for the opposition briefs also listed Tim Robinett.





Plaintiff had served discovery on each of attorney Robinett's three clients.

Allegedly, the defendants did not make a substantive response to any discovery request.

Plaintiff's counsel called Mr. Robinett about the situation. In response Tim Robinett, Esq., apparently agreed to supplement the responses by a certain date.




However, according to plaintiff's counsel, contrary to attorney Robinett's promise, no supplemental responses were provided for any of his clients as agreed.




Twelve motions to compel were then filed to address the different types of discovery requests sent to each of Robinett's three clients.

Plaintiff's counsel declared he offered to take all the motions off calendar if the promised supplemental responses were provided. Apparently, no response to the offer was made.




In a tentative ruling the judge said sanctions were appropriate, and initially sanctioned defense counsel $3000.




But after the hearing on the motions, and the oral argument of the attorneys, the judge decided to double the amount of sanctions against defense counsel to $6000 for the court's final order.

The Manning Leaver firm told Lawzilla the doubling of sanctions was because the judge realized the court had misread the law when the tentative ruling was issued.

Why Sanctions Were Doubled to $6000

In our opinion $6000 is a big sanction award.

It could have been worse. Plaintiff's counsel asked for another $2225 spent attending mediation but the judge declined to include that amount since it was not directly related to the motions to compel.

Ouch.

We reached out to Mr. Robinett's office and his associate, Daniel Berberich, responded and explained why the sanctions doubled between the tentative ruling and the final ruling:

The judge originally said that Plaintiff’s counsel's request for sanctions was "greatly inflated" and that Plaintiff's counsel did not need to file 12 motions and could have instead filed 3 motions (i.e. one motion for each party addressing each of the discovery requests served on that party).

During the hearing plaintiff’s counsel argued to the Court that based on Rule 3.1345 of the California Rules of Court plaintiff was required to file 12 motions to compel and was not allowed to consolidate the motions into only 3 motions.

The Court took a moment to review Rule 3.1345 of the California Rules of Court and then realized that it was mistaken and that plaintiff was in fact required to file 12 motions to compel (instead of only 3 motions), and as such the Court decided to increase the amount of sanctions to $2,000 per party (for a total of $6,000).

Lawzilla went through plaintiff's 12 motions and calculated $32,127 in sanctions payable to plaintiff was requested. (12 motions: $4650.50, $5388, $5594.50, $6833.50, $4916, $4060.50, $4237.50, $4267, $3972, $4149, $4385 and $4149 - less the $2225 mediation fee redundantly sought in each motion)

There is a perspective that getting about 80 percent of requested sanctions eliminated is a win ($6000 instead of $32,127).

However, this seems to be a judicial reduction. While Berberich filed opposition papers claiming no sanctions should be awarded, we reviewed a couple opposition motions and none seemed to argue the amount of claimed fees was too high or improper. If the Manning Leaver attorneys even argued the $2225 mediation fee was improper we missed it. It seems the judge had to do their work for them.


Did the Attorneys Make a False Legal Argument to the Court? Or Were They Just Incompetent and Not Know the Law?

Interestingly, Robinett's associate, attorney Berberich, told us plaintiff's counsel did not have any urgency in filing the motion.

He also said some attorneys, although he did not claim plaintiff's counsel did this, quickly file motions to run up legal fees.

Nevertheless, the "gist" of Berberich's statement is plaintiff's counsel did not need to file the motion when he did. He said "from a procedural standpoint, there was still plenty of time in discovery and there was no urgency for plaintiff's counsel to file the motions to compel". Berberich's statement:

Ultimately, plaintiff’s counsel filed the motions to compel even though we had advised him that we were cooperating and that we would be providing substantive supplemental responses as soon as we were able to obtain the documents and information from our three respective clients.

From a procedural standpoint, there was still plenty of time in discovery and there was no urgency for plaintiff’s counsel to file the motions to compel, especially considering that we had advised him that we would be providing substantive supplemental discovery responses.

However, in our experience we have seen some plaintiff’s counsel’s offices in these lemon law cases employ the strategy of quickly filing motions to compel as matter of course as an attempt to increase the amount of attorney’s fees that they will endeavor to recover under the Consumers Legal Remedies Act.

At the end of the day, we tried to be as cooperative as possible in attempting to resolve the discovery dispute and we did in fact provide substantive supplemental discovery responses as soon as we obtained the documents and information from our three respective clients.

However, as noted above, plaintiff’s counsel was unwilling to wait until we were in a position to provide the substantive supplemental discovery responses and instead chose to press forward with the motions to compel.

Here is the obvious problem we see with this:

Daniel Berberich filed legal papers arguing to the judge NOT that plaintiff's counsel still had plenty of time to file a motion, but instead that plaintiff's counsel was untimely and the motions should be denied for being filed too late.








The judge in the court order specifically said:

Defendants also argue Plaintiff waived his right to file the motions by waiting more than 45 days after Defendants served responses. This argument lacks merit because Defendants’ original responses/objections were not verified.

Plaintiff's counsel argued in reply that the legislature previously changed the law Berberich and the Manning Leaver law firm relied upon!




In other words, the argument the attorneys was making was based on an old law.

In our opinion - how embarrassing!

California Business and Professions Code section 6068(d) prohibits an attorney from misleading a judge by making a false statement of fact or law.

A violation can result in discipline by the State Bar, including a potential suspension from the practice of law or disbarment.

We think it is a fair question: did Dan Berberich and the Manning Leaver law firm not know the law had been clarified - thus reflecting in our view on attorney competence? Or did they knowingly make a false argument to the court?

Based on what attorney Berberich told us, we have the question: why did the Manning Leaver law firm argue to the court that plaintiff's motion was untimely when they say plaintiff's counsel had plenty of time to file a motion?

Although we appreciate the Manning Leaver firm responding to our inquiry, it is not a good look in our view.


Did Attorney Dan Berberich Lie Claiming Tim Robinett Was Not Personally Involved? You be the Judge

Finally, Daniel Berberich told us "Mr. Robinett was not personally involved in the discovery or the motion."

At this time, based on the information we have, we have left Mr. Robinett's name as part of this article because we believe that Mr. Berberich's representation is not exactly the truth, the whole truth, and nothing but the truth. And attorney Berberich conspicuously did not state who the lawyer was whose actions resulted in $6000 of attorney sanctions.

As previously noted, with quotes from the court record, Tim Robinett was in fact involved. For example, aside from being listed as an involved attorney in the opposition briefs, he promised plaintiff's counsel supplemental discovery responses would be provided by a specific date - and they were not.

Compare the following:

First, attorney Daniel Berberich's statement:

Mr. Robinett was not personally involved in the discovery or the motion.

With references to Mr. Robinett's personal involvement in the discovery we previously cited from the court file:







We obtained (from the public court file) these two emails from Tim Robinett himself describing his involvement in discovery and that he was working on the responses.




LOL. Does this read like "Mr. Robinett was not personally involved in the discovery"?

Then there is the fact Tim Robinett's name is listed as one of the attorneys submitting the oppositions to the motions to compel. California Rule of Court 2.111 requires a listing of the attorneys for the party on whose behalf the document is being submitted. Code of Civil Procedure sections 128.5 and 128.7 allow an attorney to be sanctioned for submitting a frivolous document, even if they are not the attorney chosen to sign the document.




Is Mr. Berberich even aware of his own case file, or the exhibits plaintiff's counsel attached to the motions to compel discovery?

If not, that seems like attorney negligence in our opinion.

If so, why on earth would he flatly state Tim Robinett had no involvement when Mr. Robinett by his own emails shows that he did?

Is Tim Robinett, a Manning Leaver partner, not even supervising or reviewing the work being done in this case by associates such as Berberich?

Attorney Robinett was cc'd by his associate who was making this claim in an email to us, so presumably he read what was being represented. But we did not receive any correction from Mr. Robinett or anyone at Manning Leaver.


Update: Attorney Dan Berberich accused us of "actionable libel". He referred to "we" and his law firm. But he did not refer to any specifically incorrect statement of fact or what the correction is.

Of course Berberich is the genius who told the judge plaintiff's motions were untimely apparently based on an outdated law - when they were timely.

Bottom line: Are these the attorneys you would want to hire?

In our opinion $6000 in sanctions speaks for itself. So do the comments received from the Manning Leaving firm.

There is not a chance we would recommend that anyone hire these attorneys.

Tim Robinett was admitted to the California Bar in 1993. Bar Number 166797.

Manning Leaver Bruder and Berberich, LLP
801 South Figueroa Street, Suite 1150
Los Angeles, California 90017

Law School: Loyola Law



Other:

Manning Leaver issued a press release about Timothy Robinett just days after supplemental discovery responses were not provided in the Rezos case as he promised, as stated by plaintiff's counsel.

The press released noted Robinett had been elected as a director of the National Association of Dealer Counsel, a national organization of about 600 attorney representing vehicle dealers.




The National Association of Defense Counsel may want to use the Manning Leaver attorneys in the Rezos litigation as a case study on how law firms can avoid getting themselves, and their clients, sanctioned for $6000.

As noted in Lawzilla's related pages, sanctions are a judgment in California, which can have consequences for law firms, lawyers, and their clients.

Sanctions are Recoverable as a Judgment - Analysis of the little known fact that sanctions awarded in a lawsuit can be enforced as their own separate judgment. Surprise someone by putting a lien on their bank account, home, wages, etc.