Jane Doe v. Margaret Cafarelli, et al.
Case No: 18CV04974
Hearing Date: Tue Aug 06, 2019 9:30

Nature of Proceedings: OSC

Order to Show Cause re Sanctions

ATTORNEYS:

For Plaintiff Jane Doe: James F. Scafide, Tyler J. Sprague, Scafide Law Firm, PC

For Defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC: Cary L. Wood, Rand D. Carstens, Lewis Brisbois Bisgaard & Smith LLP

For Defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC: Thomas P. Gmelich, Lena J. Marderosian, Dawn Cushman, Bradley & Gmelich LLP

For Defendants Alma Del Pueblo Owners Association and The Management Association Inc. dba The Management Trust: Jeff Hsu, Patrick A. Gillispie, Murphy, Pearson, Bradley & Feeney

For Defendants Samuel Hedgpeth and Sonia Rosenbaum: Michele L. Gamble, Rebecca J. Chmura, Collins Collins Muir + Stewart LLP

For Defendants Jasmine Hale and Adams Stirling: Heather L. Rosing, Earll M. Pott, Brittany M. Vojak, Klinedinst PC

RULING: The Court will not impose sanctions against counsel and will discharge the order to show cause.

Background

On February 28, 2019, defendants Jasmine Hale and Adams Stirling PLC (Adams Stirling) filed their special motion to strike as to all causes of action in plaintiff Jane Doe’s first amended complaint (FAC) against them.

On April 2, 2019, the Court granted the special motion of Hale and Adams Stirling. The Court also awarded them their attorney fees and costs, the amount of which was to be fixed by later motion.

On April 18, 2019, defendant Alma del Pueblo Owners Association (APOA) filed its motion to quash plaintiff’s subpoena to Pacific Western Bank. This motion to quash was originally set for hearing on June 18.

On May 17, 2019, Hale and Adams Stirling filed their motion for an order granting attorney fees and costs based upon the Court’s granting of their special motion to strike. This motion was originally set for hearing on June 18.

On May 24, 2019, defendants APOA and The Management Association, Inc., dba The Management Trust (Management Trust) filed their demurrer and motion to strike portions of plaintiff’s second amended complaint (SAC). These parties subsequently withdrew the motion to strike. The demurrer was originally set for hearing on June 25.

On June 4, 2019, the hearing on the attorney fee motion of Hale and Adams Stirling was continued at the request of counsel for plaintiff to July 16.

On June 7, 2019, APOA and Management Trust filed their special motion to strike portions of plaintiff’s SAC. This motion was originally set for hearing on July 16.

On June 18, 2019, the Court continued the hearing on the motion to quash to July 16.

On June 25, 2019, the Court continued the hearing on the demurrer to July 16.

As of June 25, 2019, there were four motions on calendar for hearing on July 16 with plaintiff Doe as the responding party. Oppositions to these motions were due nine court days prior to July 16, that is, on July 2. (Code Civ. Proc., § 1005, subd. (b).) Doe filed her opposition papers to these motions (other than to the demurrer) on Monday, July 8, 2019. Replies were due on July 9, 2019. (Ibid.)

On July 16, 2019, based upon the untimely oppositions filed on July 8, the Court continued the hearing on the motions to July 30, providing additional opportunities for the moving parties to file amended replies. The Court also set this order to show cause: “The Court orders plaintiff’s counsel, and each of them, to show cause, on August 6, 2019, why reasonable monetary sanctions of up to $1,500 for each rule violation (i.e., for each untimely opposition filed) shall not be imposed on each of plaintiff’s counsel for violation of rule 3.1300(a). Plaintiffs’ counsel shall file their response(s) to this order to show cause on or before July 26, 2019.”

On July 25, 2019, attorney Tyler J. Sprague filed a declaration, and on July 26, 2019, attorney James F. Scafide filed a declaration, each in response to the Court’s order to show cause.

Analysis

“In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules. For the purposes of this rule, ‘person’ means a party, a party’s attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party’s cause of action or defense thereto.” (Cal. Rules of Court, rules 2.30(b).)

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service.” (Cal. Rules of Court, rule 3.1300(b).)

The Court set this order to show cause because, as noted in the Court’s order of July 16, 2019, the untimely filing of the opposition papers—especially the filing of over-long briefs in violation of rule 3.1113(d)—made it necessary for the Court to continue the hearing on four motions. Untimely filings more than merely inconvenience other parties and the Court. Untimely filings interfere with the parties’ and the Court’s ability to timely address the merits of the dispute and disrupt the handling of other matters. The Court required an explanation to assure itself that these untimely filings were not merely the result of indifference or gamesmanship on the part of counsel.

In response to this order to show cause, attorney Sprague explained that the filing of opposition on July 8 was the result of multiple errors. First, Sprague miscalculated the nine court days before the hearing as Thursday, July 4, not July 2. (Sprague decl., ¶ 7.) Next, Sprague erroneously believed that Friday, July 5, was a court holiday because the court was “dark” on that day. (Sprague decl., ¶ 8.) July 6 and 7 were over the weekend, and hence Sprague calculated the next court day as Monday, July 8. (Sprague decl., ¶ 7.) Sprague did not calculate the reply due date of July 9, which would have brought his opposition due date error to his attention. (Sprague decl., ¶ 9.) Moreover, because Sprague believed that he had filed the opposition on time, he did not reach out to opposing counsel to address this issue at the time. (Sprague decl., ¶ 14.) Sprague first learned of the mistaken dates when he received the objection to the opposition and, in a response filed with the court, offered to stipulate to continue the hearing date. (Sprague decl., ¶ 15.) Sprague also acknowledges his mistake in understanding the page limitations of the California Rules of Court. (Sprague decl., ¶ 20.)

In his response to this order to show cause, attorney Scafide explained that, because he may be called as a witness in this matter, he asked Sprague to be the lead attorney in this case. (Scafide decl., ¶ 2.) As lead attorney, Sprague is responsible for all matters related to this case. (Ibid.) Scafide consulted with Sprague regarding the calendaring of the special motion to strike and Sprague assured Scafide that he had properly calendared the matter. (Scafide decl., ¶¶ 3-5.) When the deadline for filing opposition was approaching, Scafide asked Sprague about the opposition and relied on Sprague’s representations that it would be timely filed. (Scafide decl., ¶ 6.) Scafide believed that Sprague had filed opposition on time and had no indication of the untimely filing until the objection was filed by the moving parties. (Scafide decl., ¶¶ 7-9.) Scafide believes that Sprague’s untimely filing was a genuine mistake without the intent to prejudice the defendants. (Scafide decl., ¶ 10.) The over-long brief was also a mistake and Scafide has “instructed Mr. Sprague to better familiarize himself with the rules regarding page limitations to avoid future errors of this type.” (Scafide decl., ¶¶ 13-16.)

The Court accepts the acknowledgement by attorney Sprague that the untimely filing of over-long documents were the result of multiple errors on his part. Sprague points out that he has not been practicing law or litigating for long. Nonetheless, all attorneys are expected to know, or to conduct sufficient research to learn, all applicable rules and all parties and attorneys must comply with those rules. The Court expects that future filings will comply with all applicable rules. Having acknowledged his mistakes and demonstrated his understanding of how those mistakes occurred, under the totality of the circumstances here, the Court does not find that imposing sanctions against Sprague would be in the interests of justice.

With respect to attorney Scafide, the Court is disappointed that Scafide’s role in this matter was limited to seeking assurances from Sprague that the documents were timely filed and to instructing Sprague to better familiarize himself with the page limitation rules. In his declaration in opposition to defendant Sonia Rosenbaum’s motion to disqualify counsel, Scafide declared that he is “a principal of the Scafide Law Firm, PC, counsel of record for Jane Doe.” (Scafide decl., filed May 8, 2019, ¶ 1.) In the listing of counsel for plaintiff in documents in this case, the first name listed is the name of Scafide’s firm, followed by Scafide himself. Attorney Sprague identifies himself only as an attorney in this matter. (Sprague decl., ¶ 1.) Even though Scafide asserts that Sprague is in the role of lead counsel, such a role does not avoid Scafide’s own ethical obligations:

“A lawyer who individually or together with other lawyers possesses managerial authority in a law firm,shall make reasonable* efforts to ensure that the firm* has in effect measures giving reasonable* assurance that all lawyers in the firm* comply with these rules and the State Bar Act.” (Rules Prof. Conduct, rule 5.1(a), fn. omitted.) “Paragraph (a) requires lawyers with managerial authority within a law firm* to make reasonable* efforts to establish internal policies and procedures designed, for example, to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.” (Rules Prof. Conduct, rule 5.1(a), com. 1.)

Given a managing lawyer’s ethical obligation to ensure that dates are properly identified and that inexperienced lawyers are properly supervised, the Court would have expected Scafide to acknowledge more direct responsibility for Sprague mistakes. The Court would also have expected further assurances that, from a supervisory position, the mistakes are unlikely to recur. Scafide’s explanation and assurances are rather thin on these matters. The Court is nevertheless conscious that errors of this kind can happen despite best intentions. The Court fully expects that counsel will in the future take particular care to assure that all rules are followed and that errors of this kind do not recur. Under the totality of the circumstances, the Court does not find that an award of sanctions would now be in the interests of justice.

Accordingly, the Court will not impose sanctions against counsel and will discharge the order to show cause.