Preview
1 Chris A. Tarkington (SBN 043132) ctark@to2law.com
Norman Chong (SBN 111439) nchong@to2law.com
2 Joseph D. O’Neil (SBN 226806) joneil@to2law.com ELECTRONICALLY
3 Samantha Lewin (SBN 320868) slewin@to2law.com F I L E D
TARKINGTON, O’NEILL, BARRACK & CHONG Superior Court of California,
4 A Professional Corporation County of San Francisco
201 Mission Street, Suite 710 03/18/2020
5 San Francisco, CA 94105 Clerk of the Court
BY: ERNALYN BURA
6 Telephone: (415) 777-5501 Deputy Clerk
Facsimile: (415) 546-4962
7
Attorneys for Defendants
8 Christie West and Timothy West
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 CITY AND COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION
12
13 JENNIFER SARKANY, RAMSEY Case No. CGC-18-571355
ABOUREMELEH, SANDRA FIERRO,
14 and NINA ROBIN REQUEST FOR JUDICIAL NOTICE
IN SUPPORT OF DEFENDANTS’
15
Plaintiff, OPPOSITION TO PLAINTIFFS’
16 MOTION TO CLARIFY OR SET
vs. ASIDE CERTAIN FINDINGS IN
17 ORDER OF NOVEMBER 13, 2020
CHRISTIE WEST, TIMOTHY WEST;
18
AND DOES 1 THROUGH 20,
19 Date: April 1, 2020
Defendants. Time: 3:30PM
20 __________________________________/ Dept: 501
21
22 Complaint Filed: November 15, 2018
Trial Date: November 18, 2019
23
24
25 Defendants request the Court take judicial notice under Evidence Code § 451 and 452:
26 1. Attached as Exh “A” is a true and correct copy of the sanctions against Plaintiffs’
27 counsel Mark Hooshmand in the amount of $2600 for unsuccessfully bringing a motion for
28 protective order to prevent the deposition of Lawler Braneman on September 17, 2019;
Law Offices
TARKINGTON,
O’NEILL, BARRACK
& CHONG
A Professional Corporation
201 MISSION STREET,
SUITE 710 SARKANY V. WEST -1- CASE NO. CGC-18-571355
SAN FRANCISCO, CA 94105
Telephone (415) 777-5501
Facsimile (415) 546-4962
RFJN ISO DEFS’ OPPO TO PLTIS’ MOTION TO CLARIFY OR SET ASIDE CERTAIN FINDINGS
1
2. Attached as Exh “B” is a true and correct copy of the sanctions against Plaintiffs’
2
counsel Mark Hooshmand in the amount of $3900 by Judge Haines on Defendants’ successful
3
Motion for Protective Order;
4
3. Attached as Exh “C” is a true and correct copy of the sanctions against Plaintiffs’
5
counsel Mark Hooshmand in the amount of $5,682.30 for criminal witness intimidation in
6
violation of Penal Code § 136.1;
7
4. After the Order above in Exh “C”, Plaintiffs’ counsel brought an unsuccessful Ex
8
Parte motion to overturn the Order. Attached as Exh “D” is a copy of this motion. This was
9
denied by the Court;
10
5. Attached as Exh “E” is a true and correct copy of the Writ filed by Plaintiffs’
11
counsel seeking to overturn Exh “C” that was filed after the unsuccessful Exh “D” on November
12
17, 2020;
13
6. Attach as Exh “F” is the denial of the writ from the First District Court of
14 Appeals.
15
16 DATED: March 18, 2020 TARKINGTON, O'NEILL, BARRACK & CHONG
17 A Professional Corporation
18
19 BY: ________________________________
Joseph D. O’Neil (SBN 226806)
20 Attorney for Defendants,
CHRISTIE WEST AND TIMOTHY WES
21
22
23
24
25
26
27
28
Law Offices
TARKINGTON,
O’NEILL, BARRACK
& CHONG
A Professional Corporation
201 MISSION STREET,
SUITE 710 SARKANY V. WEST -2- CASE NO. CGC-18-571355
SAN FRANCISCO, CA 94105
Telephone (415) 777-5501
Facsimile (415) 546-4962
RFJN ISO DEFS’ OPPO TO PLTIS’ MOTION TO CLARIFY OR SET ASIDE CERTAIN FINDINGS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
1
Mark Hooshmand, Esq. (SBN 194878)
Laura Flynn Strazzo, Esq. (SBN 312593)
2 Hooshmand Law Group
22 Battery Street #610 ELECTRONICALLY
3
San Francisco, CA 94111 F I L E D
4 Tel: (415) 318-5709 Superior Court of California,
County of San Francisco
Fax: (415) 376-5897
5 11/14/2019
Attorney for Plaintiffs Jennifer Sarkany, Ramsey Abouremeleh, Clerk of the Court
6 Sandra Fierro, and Nina Robin BY: VANESSA WU
Deputy Clerk
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL JURISDICTION
10
11
JENNIFER SARKANY, RAMSEY ) CASE: CGC-18-571355
12 ABOUREMELEH, SANDRA )
FIERRO, AND NINA ROBIN ) PLAINTIFFS’ EX PARTE APPLICATION
13
) TO MODIFY AND CLARIFY
14 Plaintiffs, ) TERMINATING SANCTIONS ORDER
) ISSUED ON NOVEMBER 13, 2019
15
vs. )
16 )
CHRISTIE WEST, TIMOTHY ) Date: November 15, 2019
17
WEST, AND DOES 1 THROUGH 20, ) Time: 9:00 am
18 ) Dept.: 501
Defendant. )
19 ) Trial Date: November 18, 2019
20 )
)
21 )
22 )
23
24
25
PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY
26 TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019
27
28
________________________________________________________________________________________________________
PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON
NOVEMBER 13, 2019 1
1 Notice of this application was given by phone and email before 9:00 am on November
2 14, 2019 by Mark Hooshmand. Hooshmand Decl., Ex. A.
3 Plaintiffs file this ex parte application to modify and clarify the Court’s order of
4 November 13, 2019 by Judge Haines concerning Defendants’ motion for terminating
5 sanctions. Hooshmand Decl., Ex. B.
6 CCP 2023.040 provides that to obtain specific types of sanctions, the type of sanctions
7 must be stated in the Notice of Motion. Defendants’ notice of motion for terminating
8 sanctions did not ask for issue sanctions and nowhere in their motion did Defendants ask for
9 issue sanctions. Hooshmand Decl., Ex. C. Therefore, the Court is not permitted to order
10 issue sanctions.
11 CCP 2023.040 provides:
12
A request for a sanction shall, in the notice of motion, identify every person, party,
and attorney against whom the sanction is sought, and specify the type of sanction
13 sought. The notice of motion shall be supported by a memorandum of points and
authorities, and accompanied by a declaration setting forth facts supporting the
14
amount of any monetary sanction sought.
15
As a result, the order should be modified to delete any reference to issue sanctions
16
since issue sanctions were never requested.
17
In addition, since Plaintiffs never had notice that issue sanctions might be issued, they
18
were denied due process.
19
CCP 2023.030 provides that “To the extent authorized by the chapter governing any
20
particular discovery method or any other provision of this title, the court, after notice to any
21
affected party, person, or attorney, and after opportunity for hearing, may impose the
22
following sanctions against anyone engaging in conduct that is a misuse of the discovery
23
process. . .”.
24
Therefore, as this issue was never raised, never briefed and where Plaintiffs never
25
addressed issue sanctions, the court cannot order issue sanctions.
26
The order is also vague as it orders issue sanctions but not does not actually specify
27
what those sanctions are. The Order offers the trial judge a suggestion but an order on issue
28
sanctions must be specific.
________________________________________________________________________________________________________
PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON
NOVEMBER 13, 2019 2
1 To the extent the court does not remove the subject of issue sanctions, the order will
2 leave matters open ended and it appeared that there may be a conflict in the order. One part
3 of the order indicates the court is making a suggestion of issue sanctions to the trial judge
4 but at the end of the order it states “After considering all available lesser sanctions the court
5 choses issue preclusion as the appropriate remedy . . .”. Order, at 4. Therefore, it is not clear
6 whether the order is requiring the trial judge to do something or if this is merely a suggestion.
7 If these issues are not addressed, Plaintiffs will be prejudiced since sanctions will
8 have issued though there was no notice given for issue sanctions, and the parties and the
9 court will not know how to proceed at trial.
10 A judgment rendered without the notice required by due process is void. (See e.g.,
11 World–Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 291.) “When a court lacks
12 jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to
13 direct or collateral attack at any time.’” (People v. American Contractors Indemnity Co.
14 (2004) 33 Cal.4th 653, 660. [citations omitted]) “Errors which are merely in excess of
15 jurisdiction should be challenged directly …” (Id. at 661.)
16 When it appears a clerical error has been committed and carried into the judgment or
17 decree, the court may correct the error. (Estate of Goldberg, (1938) 10 Cal.2d 709, 714.)
18 Courts have the inherent power to make retroactive entries to correct clerical errors in court
19 records to make them reflect the true facts. (Wexler v. Goldstein (1956) 146 Cal.App.2d 410,
20 412; In re Candelario (1970) 3 Cal.3d 702, 705.)
21 The power to amend extends “to cases where some provision of or omission from an
22 order or judgment as made or rendered was due to the inadvertence or mistake of the court
23 and may therefore properly be treated as a clerical misprision rather than a judicial error.”
24 (Estate of Goldberg, supra, 10 Cal.2d at pp. 715–716.) When “it so clearly appears that the
25 judgment as entered is not the sentence which the law ought to have pronounced upon the
26 facts as established by the record, that the court acts upon the presumption that the error is a
27 clerical misprision rather than a judicial blunder, and sets the judgment, or rather the
28 judgment entry, right by an amendment nunc pro tunc.” (Id. at p. 716.)
________________________________________________________________________________________________________
PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON
NOVEMBER 13, 2019 3
1 Case law suggests that if a ruling is not clear, an attorney has an obligation to seek
2 clarification. (See Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 796 [“An attorney
3 has the duty to protect the interests of his client. He has a right to press legitimate argument
4 and to protest an erroneous ruling”].)
5 Plaintiffs’ seek to address the fact that the underlying motion never sought issue
6 sanctions, and in the alternative to clarify whether this court is actually issuing issue
7 sanctions or suggesting them to the trial judge.
8 Date: November 14, 2019 HOOSHMAND LAW GROUP
9
10 _________________________
11
Mark Hooshmand, Esq.
Attorney for Plaintiffs
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
________________________________________________________________________________________________________
PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON
NOVEMBER 13, 2019 4
EXHIBIT E
1st Civ. No. ______________
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
____________________________
JENNIFER SARKANY, RAMSEY ABOUREMELEH,
SANDRA FIERRO, AND NINA ROBIN,
Petitioners and Plaintiffs,
v.
THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
Appeal.
SAN FRANCISCO,
Respondent,
CHRISTIE BARRETT WEST, TIM WEST,
of
Real Parties in Interest and Defendants.
Court
_____________________________
District
PETITION FOR WRIT OF MANDATE AS TO ORDER
GRANTING ISSUE SANCTIONS DATED
1st
NOVEMBER 13, 2019 BY JUDGE CHARLES HAINES
CA
(Superior Court Case No. CGC-18-571355)
MARK HOOSHMAND (SBN: 194878) received by the
Hooshmand Law Group
22 Battery St., Ste.. 610
San Francisco, CA 94111
Document
Telephone: (415) 318-5709
Attorneys for Petitioners
1
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Pursuant to California Rule of Court 8.208, I am unaware of
any entity or person that must be listed under CRC 8.208(e)(1) or
(2). The parties to this appeal are: Petitioners: Jennifer Sarkany,
Ramsey Abouremeleh, Sandra Fierro, and Nina Robin who are
represented by Mark Hooshmand of the Hooshmand Law Group
and Respondent The Superior Court of California, County of San
Francisco and Real Parties in Interest: Defendants Christie
Barrett West, Tim West represented by Joseph O’Neil and
Samantha Lewin of Tarkington, O’Neill, Chong.
Appeal.
Date: November 15, 2019 HOOSHMAND LAW GROUP
Court of
/s/
___________________________
District
Mark Hooshmand, Esq.
Attorney for Petitioners
Document received by the CA 1st
2
TABLE OF CONTENTS
INTRODUCTION ......................................................................................... 6
A. Nature of the Case ............................................................................ 6
B. The Issues....................................................................................... 10
C. Why Writ Relief is Warranted ....................................................... 10
PETITION ................................................................................................... 11
MEMORANDUM OF POINTS AND AUTHORITIES ............................ 20
WRIT RELIEF IS NECESSARY TO PREVENT PREJUDICE TO
PETITIONERS FROM AN ORDER THAT AWARDED ISSUE
SANCTIONS IN VIOLATION OF THE LAW ......................................... 20
Appeal.
A. The Standard of Review ................................................................ 20
of
B. The Trial Court Abused its Discretion when Ordering Issue
Court
Sanctions ........................................................................................ 21
C. Penal Code § 136.1 Does not Provide for Discovery Sanctions.... 21
District
D. The Trial Court Abused its Discretion where Issue Sanctions were
not Requested or Briefed ............................................................... 22
1st
1. The Discovery Act Specifically Requires Notice of the Types
CA
of Sanctions Requested and the Opportunity to be Heard ..... 22
the
2. The Trial Court Erred where it Ordered Issue Sanctions
despite Real Parties Failure to Request Issue Sanctions ........ 23
E. Issue Sanctions are Not Warranted where there was No Prior Order
received by
and where Defendants Never Sought to Complete the Deposition 25
F. Finding of Contempt ...................................................................... 29
Document
G. The Issue Sanction suggested by the Trial Court is in Error ......... 30
H. Petitioners are Prejudiced by the trial Court’s Order ..................... 31
CONCLUSION ........................................................................................... 31
3
WORD COUNT CERTIFICATE ............................................................... 32
CERTIFICATE OF SERVICE .................................................................... 33
Document received by the CA 1st District Court of Appeal.
4
TABLE OF AUTHORITIES
Cases
Cedars–Sinai Imaging Medical Group v. Superior Court
(2000) 83 Cal.App.4th 1281 .................................................................. 28
City of Sacramento v. Drew
(1989) 207 Cal.App.3d 1287 .................................................................. 19
In re Liu
(1969) 273 Cal.App.2d 135 .................................................................... 28
London v. Dri–Honing Corp
(2004) 117 Cal.App.4th 999 .................................................................. 21
Appeal.
New Albertsons, Inc. v. Superior Court
(2008) 168 Cal.App.4th 1403 .......................................................... 19, 25
of
R.S. Creative, Inc. v. Creative Cotton, Ltd.
Court
(1999) 75 Cal.App.4th 486 ..................................................................... 24
Sole Energy Co. v. Hodges
District
(2005) 128 Cal.App.4th 199 ............................................................ 22, 24
Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal.3d 348 ............................................................................ 19
CA 1st
Statutes
the
CCP § 1085 ......................................................................................................... 16
CCP § 2025.420 ................................................................................................. 26 received by
CCP § 2025.460 ................................................................................................. 26
Document
CCP § 2026.010 ................................................................................................. 13
Penal Code § 136.1 ............................................................................................. 5
5
INTRODUCTION
Petitioners file this petition to reverse or modify an order
granting issue sanctions. Respondent trial court abused its
discretion by 1) ordering issue sanctions pursuant to a penal
statute and 2) where issue sanctions were never raised in the
motion, never briefed, never requested and never argued. Real
party’s motion only sought terminating sanctions pursuant to
Penal Code § 136.1. That statute does not provide for discovery
Appeal.
sanctions. In addition, Defendants never sought issue sanctions.
Finally, the order, while ordering issue sanctions, does not specify
Court of
what issue sanctions are being ordered. Rather, the order makes
suggestions to the trial judge.
District
A writ of mandate is warranted here as no other adequate
1st
relief is available to Petitioners given that the order is void and
CA
Petitioners will be affected at trial based on the sanctions.
the
A. Nature of the Case
Petitioners are four plaintiffs (“Petitioners” or “Plaintiffs”) received by
who rented a house from the Defendants (“Defendants” or “Real
Document
Parties”) in January 2018. After moving in, Plaintiffs began
experiencing problems with the property and ultimately moved out
in October 2018. One Defendant also did an owner move in
6
eviction on two of the plaintiffs. Plaintiffs then sued the
Defendants for a variety of statutory violations, torts and
contractual breaches.
As part of the lawsuit, Defendants sought to depose the ex-
girlfriend of Plaintiff Ramsey Abouremeleh. The witness is Lawler
Braneman who now lives in Texas. The relationship between
these two individuals ended over five years ago. Ms. Braneman
lived with the Plaintiff at a prior apartment over five years ago.
Appeal.
Ms. Braneman has never been to the property that is at issue in
this case.
Court of
Plaintiffs objected to the deposition of Ms. Braneman on
District
procedural and substantive grounds. Plaintiffs asked for an
explanation of the relevance of the deposition and Defendants
1st
indicated they sought the deposition to prove habit and custom.
CA
Plaintiffs filed a protective order motion objecting to the deposition.
by the
In their opposition, Defendants argued that the witness had
information about complaints made by Plaintiff Abouremeleh at
received
the prior tenancy concerning the conditions of the apartment.
Document
The trial court denied the protective order motion but
indicated Plaintiffs could move for a further protective order based
on the questions asked at the deposition, including if the witness
7
was asked about personal matters including Plaintiff’s sex life.
Defense counsel indicated he did not want to ask about the
Plaintiff’s sex life.
Defendants stated the witness was appearing voluntarily for
her deposition and they refused to produce her contact information.
Defendants also did not obtain a commission to take the deposition
in Texas. The witness was deposed in Texas and answered
questions concerning whether the Plaintiff ever indicated that he
Appeal.
might make a complaint to the Department of Building and
Inspection. The witness stated “Not to my knowledge, no.” (5 AA
Court of
868:21-24) The witness was asked if the Plaintiff was untruthful
District
about the prior tenancy or his job and the witness said not to her
knowledge. (5 AA 893:6-16.) The witness was asked if the Plaintiff
1st
was truthful and she said that he had cheated on her. (5 AA
CA
886:18-21.) The witness testified to a number of personal and
by the
private matters. (5 AA 886:9-17.)
Plaintiffs’ counsel objected to many of the personal questions
received
based on privacy and other bases. Plaintiffs’ counsel sought to
Document
meet and confer with defense counsel at the deposition in order to
avoid the need for a protective order motion. Defense counsel
turned the questioning over to Plaintiffs’ counsel but the witness
8
said she felt disrespected and left when Plaintiffs’ counsel asked
the first question. (5 AA 894:6-14.) Plaintiffs’ counsel encouraged
the witness to stay but the witness refused. (5 AA 894:25-877-18.)
Defense counsel then moved for terminating sanctions under
Penal Code § 136.1 concerning the third-party witness deposition
in Texas. Defense counsel also moved for monetary sanctions.
Defense counsel did not include any request for issue sanctions in
the notice of motion or in th
Preview
1 Chris A. Tarkington (SBN 043132) ctark@to2law.com Norman Chong (SBN 111439) nchong@to2law.com 2 Joseph D. O’Neil (SBN 226806) joneil@to2law.com ELECTRONICALLY 3 Samantha Lewin (SBN 320868) slewin@to2law.com F I L E D TARKINGTON, O’NEILL, BARRACK & CHONG Superior Court of California, 4 A Professional Corporation County of San Francisco 201 Mission Street, Suite 710 03/18/2020 5 San Francisco, CA 94105 Clerk of the Court BY: ERNALYN BURA 6 Telephone: (415) 777-5501 Deputy Clerk Facsimile: (415) 546-4962 7 Attorneys for Defendants 8 Christie West and Timothy West 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 CITY AND COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION 12 13 JENNIFER SARKANY, RAMSEY Case No. CGC-18-571355 ABOUREMELEH, SANDRA FIERRO, 14 and NINA ROBIN REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ 15 Plaintiff, OPPOSITION TO PLAINTIFFS’ 16 MOTION TO CLARIFY OR SET vs. ASIDE CERTAIN FINDINGS IN 17 ORDER OF NOVEMBER 13, 2020 CHRISTIE WEST, TIMOTHY WEST; 18 AND DOES 1 THROUGH 20, 19 Date: April 1, 2020 Defendants. Time: 3:30PM 20 __________________________________/ Dept: 501 21 22 Complaint Filed: November 15, 2018 Trial Date: November 18, 2019 23 24 25 Defendants request the Court take judicial notice under Evidence Code § 451 and 452: 26 1. Attached as Exh “A” is a true and correct copy of the sanctions against Plaintiffs’ 27 counsel Mark Hooshmand in the amount of $2600 for unsuccessfully bringing a motion for 28 protective order to prevent the deposition of Lawler Braneman on September 17, 2019; Law Offices TARKINGTON, O’NEILL, BARRACK & CHONG A Professional Corporation 201 MISSION STREET, SUITE 710 SARKANY V. WEST -1- CASE NO. CGC-18-571355 SAN FRANCISCO, CA 94105 Telephone (415) 777-5501 Facsimile (415) 546-4962 RFJN ISO DEFS’ OPPO TO PLTIS’ MOTION TO CLARIFY OR SET ASIDE CERTAIN FINDINGS 1 2. Attached as Exh “B” is a true and correct copy of the sanctions against Plaintiffs’ 2 counsel Mark Hooshmand in the amount of $3900 by Judge Haines on Defendants’ successful 3 Motion for Protective Order; 4 3. Attached as Exh “C” is a true and correct copy of the sanctions against Plaintiffs’ 5 counsel Mark Hooshmand in the amount of $5,682.30 for criminal witness intimidation in 6 violation of Penal Code § 136.1; 7 4. After the Order above in Exh “C”, Plaintiffs’ counsel brought an unsuccessful Ex 8 Parte motion to overturn the Order. Attached as Exh “D” is a copy of this motion. This was 9 denied by the Court; 10 5. Attached as Exh “E” is a true and correct copy of the Writ filed by Plaintiffs’ 11 counsel seeking to overturn Exh “C” that was filed after the unsuccessful Exh “D” on November 12 17, 2020; 13 6. Attach as Exh “F” is the denial of the writ from the First District Court of 14 Appeals. 15 16 DATED: March 18, 2020 TARKINGTON, O'NEILL, BARRACK & CHONG 17 A Professional Corporation 18 19 BY: ________________________________ Joseph D. O’Neil (SBN 226806) 20 Attorney for Defendants, CHRISTIE WEST AND TIMOTHY WES 21 22 23 24 25 26 27 28 Law Offices TARKINGTON, O’NEILL, BARRACK & CHONG A Professional Corporation 201 MISSION STREET, SUITE 710 SARKANY V. WEST -2- CASE NO. CGC-18-571355 SAN FRANCISCO, CA 94105 Telephone (415) 777-5501 Facsimile (415) 546-4962 RFJN ISO DEFS’ OPPO TO PLTIS’ MOTION TO CLARIFY OR SET ASIDE CERTAIN FINDINGS EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D 1 Mark Hooshmand, Esq. (SBN 194878) Laura Flynn Strazzo, Esq. (SBN 312593) 2 Hooshmand Law Group 22 Battery Street #610 ELECTRONICALLY 3 San Francisco, CA 94111 F I L E D 4 Tel: (415) 318-5709 Superior Court of California, County of San Francisco Fax: (415) 376-5897 5 11/14/2019 Attorney for Plaintiffs Jennifer Sarkany, Ramsey Abouremeleh, Clerk of the Court 6 Sandra Fierro, and Nina Robin BY: VANESSA WU Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL JURISDICTION 10 11 JENNIFER SARKANY, RAMSEY ) CASE: CGC-18-571355 12 ABOUREMELEH, SANDRA ) FIERRO, AND NINA ROBIN ) PLAINTIFFS’ EX PARTE APPLICATION 13 ) TO MODIFY AND CLARIFY 14 Plaintiffs, ) TERMINATING SANCTIONS ORDER ) ISSUED ON NOVEMBER 13, 2019 15 vs. ) 16 ) CHRISTIE WEST, TIMOTHY ) Date: November 15, 2019 17 WEST, AND DOES 1 THROUGH 20, ) Time: 9:00 am 18 ) Dept.: 501 Defendant. ) 19 ) Trial Date: November 18, 2019 20 ) ) 21 ) 22 ) 23 24 25 PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY 26 TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019 27 28 ________________________________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019 1 1 Notice of this application was given by phone and email before 9:00 am on November 2 14, 2019 by Mark Hooshmand. Hooshmand Decl., Ex. A. 3 Plaintiffs file this ex parte application to modify and clarify the Court’s order of 4 November 13, 2019 by Judge Haines concerning Defendants’ motion for terminating 5 sanctions. Hooshmand Decl., Ex. B. 6 CCP 2023.040 provides that to obtain specific types of sanctions, the type of sanctions 7 must be stated in the Notice of Motion. Defendants’ notice of motion for terminating 8 sanctions did not ask for issue sanctions and nowhere in their motion did Defendants ask for 9 issue sanctions. Hooshmand Decl., Ex. C. Therefore, the Court is not permitted to order 10 issue sanctions. 11 CCP 2023.040 provides: 12 A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction 13 sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the 14 amount of any monetary sanction sought. 15 As a result, the order should be modified to delete any reference to issue sanctions 16 since issue sanctions were never requested. 17 In addition, since Plaintiffs never had notice that issue sanctions might be issued, they 18 were denied due process. 19 CCP 2023.030 provides that “To the extent authorized by the chapter governing any 20 particular discovery method or any other provision of this title, the court, after notice to any 21 affected party, person, or attorney, and after opportunity for hearing, may impose the 22 following sanctions against anyone engaging in conduct that is a misuse of the discovery 23 process. . .”. 24 Therefore, as this issue was never raised, never briefed and where Plaintiffs never 25 addressed issue sanctions, the court cannot order issue sanctions. 26 The order is also vague as it orders issue sanctions but not does not actually specify 27 what those sanctions are. The Order offers the trial judge a suggestion but an order on issue 28 sanctions must be specific. ________________________________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019 2 1 To the extent the court does not remove the subject of issue sanctions, the order will 2 leave matters open ended and it appeared that there may be a conflict in the order. One part 3 of the order indicates the court is making a suggestion of issue sanctions to the trial judge 4 but at the end of the order it states “After considering all available lesser sanctions the court 5 choses issue preclusion as the appropriate remedy . . .”. Order, at 4. Therefore, it is not clear 6 whether the order is requiring the trial judge to do something or if this is merely a suggestion. 7 If these issues are not addressed, Plaintiffs will be prejudiced since sanctions will 8 have issued though there was no notice given for issue sanctions, and the parties and the 9 court will not know how to proceed at trial. 10 A judgment rendered without the notice required by due process is void. (See e.g., 11 World–Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 291.) “When a court lacks 12 jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to 13 direct or collateral attack at any time.’” (People v. American Contractors Indemnity Co. 14 (2004) 33 Cal.4th 653, 660. [citations omitted]) “Errors which are merely in excess of 15 jurisdiction should be challenged directly …” (Id. at 661.) 16 When it appears a clerical error has been committed and carried into the judgment or 17 decree, the court may correct the error. (Estate of Goldberg, (1938) 10 Cal.2d 709, 714.) 18 Courts have the inherent power to make retroactive entries to correct clerical errors in court 19 records to make them reflect the true facts. (Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 20 412; In re Candelario (1970) 3 Cal.3d 702, 705.) 21 The power to amend extends “to cases where some provision of or omission from an 22 order or judgment as made or rendered was due to the inadvertence or mistake of the court 23 and may therefore properly be treated as a clerical misprision rather than a judicial error.” 24 (Estate of Goldberg, supra, 10 Cal.2d at pp. 715–716.) When “it so clearly appears that the 25 judgment as entered is not the sentence which the law ought to have pronounced upon the 26 facts as established by the record, that the court acts upon the presumption that the error is a 27 clerical misprision rather than a judicial blunder, and sets the judgment, or rather the 28 judgment entry, right by an amendment nunc pro tunc.” (Id. at p. 716.) ________________________________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019 3 1 Case law suggests that if a ruling is not clear, an attorney has an obligation to seek 2 clarification. (See Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 796 [“An attorney 3 has the duty to protect the interests of his client. He has a right to press legitimate argument 4 and to protest an erroneous ruling”].) 5 Plaintiffs’ seek to address the fact that the underlying motion never sought issue 6 sanctions, and in the alternative to clarify whether this court is actually issuing issue 7 sanctions or suggesting them to the trial judge. 8 Date: November 14, 2019 HOOSHMAND LAW GROUP 9 10 _________________________ 11 Mark Hooshmand, Esq. Attorney for Plaintiffs 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ________________________________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION TO MODIFY AND CLARIFY TERMINATING SANCTIONS ORDER ISSUED ON NOVEMBER 13, 2019 4 EXHIBIT E 1st Civ. No. ______________ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT ____________________________ JENNIFER SARKANY, RAMSEY ABOUREMELEH, SANDRA FIERRO, AND NINA ROBIN, Petitioners and Plaintiffs, v. THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF Appeal. SAN FRANCISCO, Respondent, CHRISTIE BARRETT WEST, TIM WEST, of Real Parties in Interest and Defendants. Court _____________________________ District PETITION FOR WRIT OF MANDATE AS TO ORDER GRANTING ISSUE SANCTIONS DATED 1st NOVEMBER 13, 2019 BY JUDGE CHARLES HAINES CA (Superior Court Case No. CGC-18-571355) MARK HOOSHMAND (SBN: 194878) received by the Hooshmand Law Group 22 Battery St., Ste.. 610 San Francisco, CA 94111 Document Telephone: (415) 318-5709 Attorneys for Petitioners 1 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Pursuant to California Rule of Court 8.208, I am unaware of any entity or person that must be listed under CRC 8.208(e)(1) or (2). The parties to this appeal are: Petitioners: Jennifer Sarkany, Ramsey Abouremeleh, Sandra Fierro, and Nina Robin who are represented by Mark Hooshmand of the Hooshmand Law Group and Respondent The Superior Court of California, County of San Francisco and Real Parties in Interest: Defendants Christie Barrett West, Tim West represented by Joseph O’Neil and Samantha Lewin of Tarkington, O’Neill, Chong. Appeal. Date: November 15, 2019 HOOSHMAND LAW GROUP Court of /s/ ___________________________ District Mark Hooshmand, Esq. Attorney for Petitioners Document received by the CA 1st 2 TABLE OF CONTENTS INTRODUCTION ......................................................................................... 6 A. Nature of the Case ............................................................................ 6 B. The Issues....................................................................................... 10 C. Why Writ Relief is Warranted ....................................................... 10 PETITION ................................................................................................... 11 MEMORANDUM OF POINTS AND AUTHORITIES ............................ 20 WRIT RELIEF IS NECESSARY TO PREVENT PREJUDICE TO PETITIONERS FROM AN ORDER THAT AWARDED ISSUE SANCTIONS IN VIOLATION OF THE LAW ......................................... 20 Appeal. A. The Standard of Review ................................................................ 20 of B. The Trial Court Abused its Discretion when Ordering Issue Court Sanctions ........................................................................................ 21 C. Penal Code § 136.1 Does not Provide for Discovery Sanctions.... 21 District D. The Trial Court Abused its Discretion where Issue Sanctions were not Requested or Briefed ............................................................... 22 1st 1. The Discovery Act Specifically Requires Notice of the Types CA of Sanctions Requested and the Opportunity to be Heard ..... 22 the 2. The Trial Court Erred where it Ordered Issue Sanctions despite Real Parties Failure to Request Issue Sanctions ........ 23 E. Issue Sanctions are Not Warranted where there was No Prior Order received by and where Defendants Never Sought to Complete the Deposition 25 F. Finding of Contempt ...................................................................... 29 Document G. The Issue Sanction suggested by the Trial Court is in Error ......... 30 H. Petitioners are Prejudiced by the trial Court’s Order ..................... 31 CONCLUSION ........................................................................................... 31 3 WORD COUNT CERTIFICATE ............................................................... 32 CERTIFICATE OF SERVICE .................................................................... 33 Document received by the CA 1st District Court of Appeal. 4 TABLE OF AUTHORITIES Cases Cedars–Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281 .................................................................. 28 City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287 .................................................................. 19 In re Liu (1969) 273 Cal.App.2d 135 .................................................................... 28 London v. Dri–Honing Corp (2004) 117 Cal.App.4th 999 .................................................................. 21 Appeal. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403 .......................................................... 19, 25 of R.S. Creative, Inc. v. Creative Cotton, Ltd. Court (1999) 75 Cal.App.4th 486 ..................................................................... 24 Sole Energy Co. v. Hodges District (2005) 128 Cal.App.4th 199 ............................................................ 22, 24 Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348 ............................................................................ 19 CA 1st Statutes the CCP § 1085 ......................................................................................................... 16 CCP § 2025.420 ................................................................................................. 26 received by CCP § 2025.460 ................................................................................................. 26 Document CCP § 2026.010 ................................................................................................. 13 Penal Code § 136.1 ............................................................................................. 5 5 INTRODUCTION Petitioners file this petition to reverse or modify an order granting issue sanctions. Respondent trial court abused its discretion by 1) ordering issue sanctions pursuant to a penal statute and 2) where issue sanctions were never raised in the motion, never briefed, never requested and never argued. Real party’s motion only sought terminating sanctions pursuant to Penal Code § 136.1. That statute does not provide for discovery Appeal. sanctions. In addition, Defendants never sought issue sanctions. Finally, the order, while ordering issue sanctions, does not specify Court of what issue sanctions are being ordered. Rather, the order makes suggestions to the trial judge. District A writ of mandate is warranted here as no other adequate 1st relief is available to Petitioners given that the order is void and CA Petitioners will be affected at trial based on the sanctions. the A. Nature of the Case Petitioners are four plaintiffs (“Petitioners” or “Plaintiffs”) received by who rented a house from the Defendants (“Defendants” or “Real Document Parties”) in January 2018. After moving in, Plaintiffs began experiencing problems with the property and ultimately moved out in October 2018. One Defendant also did an owner move in 6 eviction on two of the plaintiffs. Plaintiffs then sued the Defendants for a variety of statutory violations, torts and contractual breaches. As part of the lawsuit, Defendants sought to depose the ex- girlfriend of Plaintiff Ramsey Abouremeleh. The witness is Lawler Braneman who now lives in Texas. The relationship between these two individuals ended over five years ago. Ms. Braneman lived with the Plaintiff at a prior apartment over five years ago. Appeal. Ms. Braneman has never been to the property that is at issue in this case. Court of Plaintiffs objected to the deposition of Ms. Braneman on District procedural and substantive grounds. Plaintiffs asked for an explanation of the relevance of the deposition and Defendants 1st indicated they sought the deposition to prove habit and custom. CA Plaintiffs filed a protective order motion objecting to the deposition. by the In their opposition, Defendants argued that the witness had information about complaints made by Plaintiff Abouremeleh at received the prior tenancy concerning the conditions of the apartment. Document The trial court denied the protective order motion but indicated Plaintiffs could move for a further protective order based on the questions asked at the deposition, including if the witness 7 was asked about personal matters including Plaintiff’s sex life. Defense counsel indicated he did not want to ask about the Plaintiff’s sex life. Defendants stated the witness was appearing voluntarily for her deposition and they refused to produce her contact information. Defendants also did not obtain a commission to take the deposition in Texas. The witness was deposed in Texas and answered questions concerning whether the Plaintiff ever indicated that he Appeal. might make a complaint to the Department of Building and Inspection. The witness stated “Not to my knowledge, no.” (5 AA Court of 868:21-24) The witness was asked if the Plaintiff was untruthful District about the prior tenancy or his job and the witness said not to her knowledge. (5 AA 893:6-16.) The witness was asked if the Plaintiff 1st was truthful and she said that he had cheated on her. (5 AA CA 886:18-21.) The witness testified to a number of personal and by the private matters. (5 AA 886:9-17.) Plaintiffs’ counsel objected to many of the personal questions received based on privacy and other bases. Plaintiffs’ counsel sought to Document meet and confer with defense counsel at the deposition in order to avoid the need for a protective order motion. Defense counsel turned the questioning over to Plaintiffs’ counsel but the witness 8 said she felt disrespected and left when Plaintiffs’ counsel asked the first question. (5 AA 894:6-14.) Plaintiffs’ counsel encouraged the witness to stay but the witness refused. (5 AA 894:25-877-18.) Defense counsel then moved for terminating sanctions under Penal Code § 136.1 concerning the third-party witness deposition in Texas. Defense counsel also moved for monetary sanctions. Defense counsel did not include any request for issue sanctions in the notice of motion or in th