Preview
CASAS RILEY SIMONIAN LLP
Daniel L. Casas (SBN 116528)
55 North 3 Street
Campbell, CA 95008
Office: 650-948-7200
Facsimile: 650-948-7220
Attorneys for Defendant
Rick Mirza
SUPERIOR COURT OF THE STATE OF CALIFORNIA
SANTA CLARA COUNTY
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DOWNTOWN COURTHOUSE
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12 GUSTAVO MARQUEZ, JR., Case No.: 20CV373028
13 Plaintiff, DEFENDANT’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
14 OPPOSITION MEMORANDUM OF
Vv,
POINTS AND AUTHORITIES TO
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RICK MIRZA and MARINA MIRZA, PLAINTIFF’S MOTION FOR
16 Husband and Wife, SANCTIONS
17 Defendants
[ccp§ 128.7]
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DaTE: May 18, 2021
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TIME: 9:00 AM
20 DEPT: 7
21 ACTION FILED: NOVEMBER 3, 2020
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Defendant Rick Mirza requests that this Court take notice, pursuant to California Evidence Code
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sections 452(d) and 453, of the following documents in support of Defendant’s Opposition to
BS eg
BS 5s 25
sz
a< Plaintiff's Motion for Sanctions:
Bz
ao 26
52 1 Order Denying Motion For Sanctions Under CCP § 128.7. A true and correct copy of the
~e
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Order described herein is attached hereto as Exhibit 1.
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2. Plaintiff's Notice of Motion And Motion For Sanctions Against Defendants Rick And
Marquez v. Mirza REQUEST FOR JUDICIAL NOTICE ISO
CASE NO. 20CV373028 OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS
Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions [CCP
128.7], dated December 2020. A true and correct copy of the Notice of Motion described
herein is attached hereto as Exhibit 2.
Plaintiff's Notice of Motion And Motion For Sanctions Against Defendants Rick And
Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions
[C.C.P Section 128.7], dated February 19, 2021. A true and correct copy of the Notice of
Motion described herein is attached hereto as Exhibit 3.
Plaintiff's Amended Notice of Motion And Motion For Sanctions Against Defendants Rick
And Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions
10 [C.C.P Section128.7], dated March 25, 2021. A true and correct copy of the Notice of
11 Motion described herein is attached hereto as Exhibit 4.
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13 WHEREFORE, Defendant moves the Court take judicial notice of the above-described
14 documents and consider the same in considering Defendant’s opposition to Plaintiff's motion for
15 sanctions.
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17 Respectfully submitted,
18 CASAS RILEY SIMONIAN LLP
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Dated: May 5, 2021 By
D
ton Come)
iel L. Casas
Attorneys for Defendant
22 Rick Mirza
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Se Bd
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Marquez v. Mirza REQUEST FOR JUDICIAL NOTICE ISO
CASE NO. 20CV373028 OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS
Exhibit 1
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
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11 GUSTAVO MARQUEZ, JR Case No. 20CV373028
12 Plaintiff,
13
ORDER DENYING MOTION FOR
14 VS. SANCTIONS UNDER CCP §128.7
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16 RICK MIRZA, et al
17 Defendants.
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20 This matter was before the Court on March 16, 2021 for Defendant’s Motion for
21 Sanctions pursuant to CCP §128.7. The Court posted its tentative ruling pursuant to California
22 Rule of Court 3.1308 on March 15, 2021 denying the motion. There was no objection to the
23 Court’s tentative ruling. Moving Counsel appeared at the hearing but had not called to contest
24 the tentative nor notified opposing counsel of his intention to appear. The Court was not able to
25 have a hearing. The matter being deemed submitted without objection on the tentative ruling,
26 the Court issues its final ruling as follows:
27 \W
28 WW
Case No. 20CV373028
Order Denying Sanctions
Before the Court is Defendant’s Motion for Sanctions pursuant to CCP §128.7. This
motion arises out of a dispute regarding real property owned by Plaintiff and leased by
Defendant. Defendant contends that Plaintiff should be sanctioned for pursuing the instant
lawsuit because it is an attempt to circumvent a prior ruling in an unlawful detainer case
involving the same parties. Plaintiff denies Defendant’s claim.
A motion for sanctions under Section 128.7 cannot be filed until 21 days after it has been
served on the party against whom sanctions are sought. (Code Civ. Proc., § 128.7, subd. (c)(1).)
This so-called “safe harbor” waiting period allows the party being served the opportunity to
correct the violation. (See Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 132.)
10 (Emphasis added.) 1
ll The instant motion was filed on December 17, 2020. According to the proof of service
12 filed with the Court, Defendants served the motion on Plaintiff February 9, 2021. Serving the
13 motion after it has been filed violates the “safe harbor” waiting period requirement of CCP §
14 128.7. It is unclear if Defendant contends that the motion was actually served at some point
15 before February 9, 2021. The Court has seen no such proof of service. However, to the extent
16 Defendant was served with a copy of the Motion before the motion was filed, under current court
17 rules there would have been no hearing date. Such service would not provide proper notice of
18 hearing.
19 A notice which fails to specify when a motion will be made renders that notice fatally
20 defective. (See Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 [motion did
21 not comply with safe harbor provision after it was filed the same day it was served because the
22 purported notice of motion served one month prior did not state when the motion would come on
2
3 for hearing].) The safe harbor provision is strictly enforced; substantial compliance is not
24 enough. (See Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.)
25 The proof of service filed with the Court shows that the motion was filed long before the
26 motion was served. Service on that basis does not comply with the strict requirements of CCP
27 §128.7. Any copy of Plaintiff's motion served before the motion was assigned a hearing date is
28 fatally defective. On that basis Plaintiff's motion would be properly served and therefore would
2
Case No. 20CV373028
Order Denying Sanctions
not comply with the 21 day “safe harbor” provision. Consequently, there is nothing before the
Court which establishes that Defendants complied with the safe harbor period and therefore
Defendants’ motion is DENIED. The mutual requests for sanctions are DENIED.
The Court does not issue advisory opinions. However, the seemingly impossible problem!
a filing party faces given the above analysis is not lost upon the Court. It would appear that the
only way a party could comply with the “safe harbor” requirement of CCP § 128.7 would be to
make an ex parte application for the reservation of a hearing date in advance of filing a CCP
§128.7 motion. The Court is not advocating such a procedure or further filings.
oo
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il
Dated: _3/22/2/ ZZLEBEL
Hon. Christophe; Rudy”
oO
Judge of the Sup oF Court
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Case No. 20CV373028
Order Denying Sanctions
SS
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KEP
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SO) SUPERIOR COURT OF CALIFORNIA
ki
{(Eanessteps
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COUNTY OF SANTA CLARA
DOWNTOWN COURTHOUSE
191 NorTH First STREET
eee SAN JOSE, CALIFORNIA 95113
a8RNY CIVIL DIVISION
ao
NyMv i ag
Daniel L. Casas
Casas Riley Simonian LLP
55 North 3rd Street
Campbell CA 95008
O,
RE: Gustavo Marquez, Jr. vs Rick Mirza et al
Case Number: 20CV373028
PROOF OF SERVICE
ORDER DENYING MOTION FOR SANCTIONS UNDER CCP 128.7 was delivered to the parties listed below
the above entitled case as set forth in the sworn declaration below.
If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TOD line (408)
882-2690 or the
Voice/TDD California Relay Service (800) 735-2922.
DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed
envelope, addressed to
each person whose name is shown below, and by depositing the enveloy pe
with postage fully prepaid, in the United States Mail at San Jose,
CA on March 24, 2021. CLERK OF THE COURT, by Donna O'Hara, De; puly.
ce: Maria Susan Bellafronto Hopkins & Carley A Law Corporation 70 $ First Street San Jose CA 95113-2406
CW-9027 REV 12/08/16 PROOF OF SERVICE
Exhibit 2
Maria S. Bellafronto (State Bar No. 161994)
mbellafr@hopkinscarley.com
Andrew J. Ditlevsen (State Bar No. 284911)
ajd@hopkinscarley.com
Jonathan A. Heller (State Bar No. 267542)
jheller@hopkinscarley.com
HOPKINS & CARLEY
A Law Corporation
The Letitia Building
70 S. First Street
San Jose, CA 95113-2406
mailing address:
P.O, Box 1469
San Jose, CA 95109-1469
Telephone: (408) 286-9800
Facsimile: (408) 998-4790
10 Attorneys for Plaintiff
GUSTAVO MARQUEZ, JR.
il
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SANTA CLARA
14 UNLIMITED CIVIL JURISDICTION
15
16 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028
17 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR SANCTIONS AGAINST
18 Vv, DEFENDANTS RICK AND MARINA
MIRZA AND THEIR COUNSEL OF
19 RICK MIRZA, MARINA MIRZA, and RECORD AS TO DEFENDANTS’
DOES | through 10, inclusive MOTION FOR SANCTIONS [CCP 128.7]
2
Defendants. Hearing Date: TBA
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Time: TBA
22 Dept.: TBA
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TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
25
YOU ARE NOTIFIED THAT on > at a.m., Or as soon
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thereafter as the matter may be heard, in Dept. , before the Honorable at
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Santa Clara County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo
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Hopkins & Carvey
ATTORNEYS AT LAW. Mora eZ, Jr. moves this Court for monetary sanctions against Defendants Rick and Marina Mirza
SAM Jose ¢ PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND.
THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTION FOR SANCTIONS [C.C.P. § 128.7]
and their attorneys of record in the amount of $
The Motion will be based on this Notice of Motion and Motion, the concurrently-filed
Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of
Maria S. Bellafronto in support thereof, [Proposed] Order, the pleadings, records and files in this
action, and any further evidence or argument that the Court may properly hear.
Dated: December , 2020 HOPKINS & CARLEY
A Law Corporation
By:
Maria S. Bellafronto
10 Andrew J. Ditlevsen
Attorneys for Gustavo Marquez, Jr.
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Hopkins & Carvey
ATTORNEYS AT LAW. 350\3658708.1 -2-
SAN JOSE ¢PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND.
THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTION FOR SANCTIONS [C.C.P. § 128.7]
Exhibit 3
Maria S. Bellafronto (State Bar No. 161994)
mbellafr@hopkinscarley.com
Jonathan A. Heller (State Bar No. 267542)
jheller@hopkinscarley.com
HOPKINS & CARLEY
A Law Corporation
The Letitia Building
70 S. First Street
San Jose, CA 95113-2406
mailing address:
P.O. Box 1469
San Jose, CA 95109-1469
Telephone: (408) 286-9800
Facsimile: (408) 998-4790
Attorneys for Plaintiff
GUSTAVO MARQUEZ, JR.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SANTA CLARA
13 UNLIMITED CIVIL JURISDICTION
14
15 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028
16 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR SANCTIONS AGAINST
17 V. DEFENDANTS RICK AND MARINA
MIRZA AND THEIR COUNSEL OF
18 RICK MIRZA, MARINA MIRZA, and RECORD AS TO DEFENDANTS’
DOES 1| through 10, inclusive MOTIONS FOR SANCTIONS [C.C.P.
1 SECTION 128.7]
Defendants.
20 Hearing Date: TBA
21 Time: TBA
Dept.: TBA
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24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
25 YOU ARE NOTIFIED THAT on > at a.m., Or as soon
26 thereafter as the matter may be heard, in Dept. , before the Honorable at
27 Santa Clara County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo
28 Marquez, Jr. moves this Court for monetary sanctions against Defendants Rick and Marina Mirza
HopKIns & CARLEY 350\3658708.1
ATTORNEYS AT LAW
SAN JOSE # PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND.
THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7]
and their attorneys of record in the amount of $7,590.00.
The Motion will be based on this Notice of Motion and Motion, the concurrently-filed
Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of
Maria S. Bellafronto in support thereof, the pleadings, records and files in this action, and any
further evidence or argument that the Court may properly hear.
Dated: February 19, 2021 HOPKINS & CARLEY
A Law Corporation
oy ga ATH,
Maria S. Bellafronto
10 Jonathan A. Heller
Attorneys for Gustavo Marquez, Jr.
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Hopkins & Carvey
ATTORNEYS AT LAW 350\3658708.1 -2-
San Jose # PALO ALTO PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND.
THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7]
Exhibit 4
1 Maria S. Bellafronto (State Bar No. 161994)
mbellafr@hopkinscarley.com
Jonathan A. Heller (State Bar No. 267542)
jheller@hopkinscarley.com
HOPKINS & CARLEY
A Law Corporation
The Letitia Building
70 S. First Street
San Jose, CA 95113-2406
mailing address:
P.O. Box 1469
San Jose, CA 95109-1469
Telephone: (408) 286-9800
Facsimile: (408) 998-4790
Attorneys for Plaintiff
GUSTAVO MARQUEZ, JR.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SANTA CLARA
13 UNLIMITED CIVIL JURISDICTION
14
15 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028
16 Plaintiff, PLAINTIFF’S [AMENDED] NOTICE OF
MOTION AND MOTION FOR
17 V. SANCTIONS AGAINST DEFENDANTS
RICK AND MARINA MIRZA AND THEIR
18 RICK MIRZA, MARINA MIRZA, and COUNSEL OF RECORD AS TO
DOES 1 through 10, inclusive DEFENDANTS’ MOTIONS FOR
1 SANCTIONS [C.C.P. SECTION 128.7]
Defendants.
20 Hearing Date: May 18, 2021
21 Time: 9:00 a.m.
Dept.: 7
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24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
25 YOU ARE NOTIFIED THAT on May 18, 2021, at 9:00 a.m., or as soon thereafter as the
26 matter may be heard, in Dept. 7, before the Honorable Christopher G. Rudy at Santa Clara
27 County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo Marquez, Jr. moves
28 this Court for monetary sanctions against Defendants Rick and Marina Mirza and their attorneys
Hopkins & CaRLey 350\3737333.1
ATTORNEYS AT LAW
San Josk ¢PALO ALTO PLAINTIFF’S [AMENDED] NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA
MIRZA AND THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7]
of record in the amount of $7,590.00.
The Motion will be based on this Notice of Motion and Motion, the concurrently-filed
Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of
Maria S. Bellafronto in support thereof, the pleadings, records and files in this action, and any
further evidence or argument that the Court may properly hear.
Dated: March 25, 2021 HOPKINS & CARLEY
A Law Corporation
10 Jonathan A. Heller
Attorneys for Gustavo Marquez, Jr.
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Hopkins & CARLEY 350\3737333.1 -2-
ATTORNEYS
AT LAW
SAN JOE #PALO ALTO PLAINTIFF'S [AMENDED] NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA
MIRZA AND THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7]
PROOF OF SERVICE
I, Elena Amaro, declare
I am a citizen of the United States and employed in Santa Clara County, California. | am
over the age of eighteen years and not a party to the within-entitled action. My business address
is The Letitia Building, 70 S First Street, San Jose, California 95113-2406. On the date listed
below, I served a copy of the within document(s)
PLAINTIFF’S [AMENDED] NOTICE OF MOTION AND MOTION FOR
SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND
THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR
SANCTIONS [C.C.P. SECTION 128.7]
10 x by placing the document(s) listed above in a sealed envelope with postage thereon fully
prepaid, the United States mail at San Jose, California addressed as set forth below.
ll
12
O by personally delivering the document(s) listed above to the person(s) at the address(es)
set forth below,
13
Xl by transmitting via my electronic service address (eamaro@hopkinscarley.com) the
document(s) listed above to the person(s) at the e-mail address(es) set forth below
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15 VIA EMAIL & U.S. MAIL VIA EMAIL AND U.S. MAIL
16 Daniel L. Casas Marina Mirza
Meggan Casas de Necochea 2 Honey Locust Ct.
17 CASAS RILEY SIMONIAN LLP Dix Hills, NY 11746
55 North 3°¢ Street Email: Marinaomar0813@gmail.com
18 Campbell, CA 95008
Tel: (650) 948-7200
19
Email: dcasas@legalteam.com;
20 mcasas@legalteam.com
21
22 I declare under penalty of perjury under the laws of the State of California that the above
23 is true and correct.
24 Executed on March 25, 2021, at San Jose, California.
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lina hase
Elena Amar
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Hopkins & CARLEY
ATTORNEYS AT LAW. 350\3737345.1
SAN JOSE ¢PaLO ALTO PROOF OF SERVICE
Preview
CASAS RILEY SIMONIAN LLP Daniel L. Casas (SBN 116528) 55 North 3 Street Campbell, CA 95008 Office: 650-948-7200 Facsimile: 650-948-7220 Attorneys for Defendant Rick Mirza SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY 9 DOWNTOWN COURTHOUSE 10 ll 12 GUSTAVO MARQUEZ, JR., Case No.: 20CV373028 13 Plaintiff, DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF 14 OPPOSITION MEMORANDUM OF Vv, POINTS AND AUTHORITIES TO 15 RICK MIRZA and MARINA MIRZA, PLAINTIFF’S MOTION FOR 16 Husband and Wife, SANCTIONS 17 Defendants [ccp§ 128.7] 18 DaTE: May 18, 2021 19 TIME: 9:00 AM 20 DEPT: 7 21 ACTION FILED: NOVEMBER 3, 2020 22 23 Defendant Rick Mirza requests that this Court take notice, pursuant to California Evidence Code 24 sections 452(d) and 453, of the following documents in support of Defendant’s Opposition to BS eg BS 5s 25 sz a< Plaintiff's Motion for Sanctions: Bz ao 26 52 1 Order Denying Motion For Sanctions Under CCP § 128.7. A true and correct copy of the ~e 27 Order described herein is attached hereto as Exhibit 1. 28 2. Plaintiff's Notice of Motion And Motion For Sanctions Against Defendants Rick And Marquez v. Mirza REQUEST FOR JUDICIAL NOTICE ISO CASE NO. 20CV373028 OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions [CCP 128.7], dated December 2020. A true and correct copy of the Notice of Motion described herein is attached hereto as Exhibit 2. Plaintiff's Notice of Motion And Motion For Sanctions Against Defendants Rick And Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions [C.C.P Section 128.7], dated February 19, 2021. A true and correct copy of the Notice of Motion described herein is attached hereto as Exhibit 3. Plaintiff's Amended Notice of Motion And Motion For Sanctions Against Defendants Rick And Marina Mirza And Their Counsel Of Record As To Defendants’ Motion for Sanctions 10 [C.C.P Section128.7], dated March 25, 2021. A true and correct copy of the Notice of 11 Motion described herein is attached hereto as Exhibit 4. 12 13 WHEREFORE, Defendant moves the Court take judicial notice of the above-described 14 documents and consider the same in considering Defendant’s opposition to Plaintiff's motion for 15 sanctions. 16 17 Respectfully submitted, 18 CASAS RILEY SIMONIAN LLP 19 2 21 Dated: May 5, 2021 By D ton Come) iel L. Casas Attorneys for Defendant 22 Rick Mirza 23 24 5 88 25 az Bz aS 26 be Se Bd 27 28 Marquez v. Mirza REQUEST FOR JUDICIAL NOTICE ISO CASE NO. 20CV373028 OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS Exhibit 1 Z4l Mi O,, %, SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 GUSTAVO MARQUEZ, JR Case No. 20CV373028 12 Plaintiff, 13 ORDER DENYING MOTION FOR 14 VS. SANCTIONS UNDER CCP §128.7 15 16 RICK MIRZA, et al 17 Defendants. 18 19 20 This matter was before the Court on March 16, 2021 for Defendant’s Motion for 21 Sanctions pursuant to CCP §128.7. The Court posted its tentative ruling pursuant to California 22 Rule of Court 3.1308 on March 15, 2021 denying the motion. There was no objection to the 23 Court’s tentative ruling. Moving Counsel appeared at the hearing but had not called to contest 24 the tentative nor notified opposing counsel of his intention to appear. The Court was not able to 25 have a hearing. The matter being deemed submitted without objection on the tentative ruling, 26 the Court issues its final ruling as follows: 27 \W 28 WW Case No. 20CV373028 Order Denying Sanctions Before the Court is Defendant’s Motion for Sanctions pursuant to CCP §128.7. This motion arises out of a dispute regarding real property owned by Plaintiff and leased by Defendant. Defendant contends that Plaintiff should be sanctioned for pursuing the instant lawsuit because it is an attempt to circumvent a prior ruling in an unlawful detainer case involving the same parties. Plaintiff denies Defendant’s claim. A motion for sanctions under Section 128.7 cannot be filed until 21 days after it has been served on the party against whom sanctions are sought. (Code Civ. Proc., § 128.7, subd. (c)(1).) This so-called “safe harbor” waiting period allows the party being served the opportunity to correct the violation. (See Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 132.) 10 (Emphasis added.) 1 ll The instant motion was filed on December 17, 2020. According to the proof of service 12 filed with the Court, Defendants served the motion on Plaintiff February 9, 2021. Serving the 13 motion after it has been filed violates the “safe harbor” waiting period requirement of CCP § 14 128.7. It is unclear if Defendant contends that the motion was actually served at some point 15 before February 9, 2021. The Court has seen no such proof of service. However, to the extent 16 Defendant was served with a copy of the Motion before the motion was filed, under current court 17 rules there would have been no hearing date. Such service would not provide proper notice of 18 hearing. 19 A notice which fails to specify when a motion will be made renders that notice fatally 20 defective. (See Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 [motion did 21 not comply with safe harbor provision after it was filed the same day it was served because the 22 purported notice of motion served one month prior did not state when the motion would come on 2 3 for hearing].) The safe harbor provision is strictly enforced; substantial compliance is not 24 enough. (See Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.) 25 The proof of service filed with the Court shows that the motion was filed long before the 26 motion was served. Service on that basis does not comply with the strict requirements of CCP 27 §128.7. Any copy of Plaintiff's motion served before the motion was assigned a hearing date is 28 fatally defective. On that basis Plaintiff's motion would be properly served and therefore would 2 Case No. 20CV373028 Order Denying Sanctions not comply with the 21 day “safe harbor” provision. Consequently, there is nothing before the Court which establishes that Defendants complied with the safe harbor period and therefore Defendants’ motion is DENIED. The mutual requests for sanctions are DENIED. The Court does not issue advisory opinions. However, the seemingly impossible problem! a filing party faces given the above analysis is not lost upon the Court. It would appear that the only way a party could comply with the “safe harbor” requirement of CCP § 128.7 would be to make an ex parte application for the reservation of a hearing date in advance of filing a CCP §128.7 motion. The Court is not advocating such a procedure or further filings. oo 10 il Dated: _3/22/2/ ZZLEBEL Hon. Christophe; Rudy” oO Judge of the Sup oF Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 20CV373028 Order Denying Sanctions SS * KEP fee Le SO) SUPERIOR COURT OF CALIFORNIA ki {(Eanessteps (ie: a COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NorTH First STREET eee SAN JOSE, CALIFORNIA 95113 a8RNY CIVIL DIVISION ao NyMv i ag Daniel L. Casas Casas Riley Simonian LLP 55 North 3rd Street Campbell CA 95008 O, RE: Gustavo Marquez, Jr. vs Rick Mirza et al Case Number: 20CV373028 PROOF OF SERVICE ORDER DENYING MOTION FOR SANCTIONS UNDER CCP 128.7 was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TOD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the enveloy pe with postage fully prepaid, in the United States Mail at San Jose, CA on March 24, 2021. CLERK OF THE COURT, by Donna O'Hara, De; puly. ce: Maria Susan Bellafronto Hopkins & Carley A Law Corporation 70 $ First Street San Jose CA 95113-2406 CW-9027 REV 12/08/16 PROOF OF SERVICE Exhibit 2 Maria S. Bellafronto (State Bar No. 161994) mbellafr@hopkinscarley.com Andrew J. Ditlevsen (State Bar No. 284911) ajd@hopkinscarley.com Jonathan A. Heller (State Bar No. 267542) jheller@hopkinscarley.com HOPKINS & CARLEY A Law Corporation The Letitia Building 70 S. First Street San Jose, CA 95113-2406 mailing address: P.O, Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 10 Attorneys for Plaintiff GUSTAVO MARQUEZ, JR. il 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SANTA CLARA 14 UNLIMITED CIVIL JURISDICTION 15 16 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028 17 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST 18 Vv, DEFENDANTS RICK AND MARINA MIRZA AND THEIR COUNSEL OF 19 RICK MIRZA, MARINA MIRZA, and RECORD AS TO DEFENDANTS’ DOES | through 10, inclusive MOTION FOR SANCTIONS [CCP 128.7] 2 Defendants. Hearing Date: TBA 21 Time: TBA 22 Dept.: TBA 23 24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: 25 YOU ARE NOTIFIED THAT on > at a.m., Or as soon 26 thereafter as the matter may be heard, in Dept. , before the Honorable at 27 Santa Clara County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo 28 Hopkins & Carvey ATTORNEYS AT LAW. Mora eZ, Jr. moves this Court for monetary sanctions against Defendants Rick and Marina Mirza SAM Jose ¢ PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND. THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTION FOR SANCTIONS [C.C.P. § 128.7] and their attorneys of record in the amount of $ The Motion will be based on this Notice of Motion and Motion, the concurrently-filed Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of Maria S. Bellafronto in support thereof, [Proposed] Order, the pleadings, records and files in this action, and any further evidence or argument that the Court may properly hear. Dated: December , 2020 HOPKINS & CARLEY A Law Corporation By: Maria S. Bellafronto 10 Andrew J. Ditlevsen Attorneys for Gustavo Marquez, Jr. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hopkins & Carvey ATTORNEYS AT LAW. 350\3658708.1 -2- SAN JOSE ¢PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND. THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTION FOR SANCTIONS [C.C.P. § 128.7] Exhibit 3 Maria S. Bellafronto (State Bar No. 161994) mbellafr@hopkinscarley.com Jonathan A. Heller (State Bar No. 267542) jheller@hopkinscarley.com HOPKINS & CARLEY A Law Corporation The Letitia Building 70 S. First Street San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Plaintiff GUSTAVO MARQUEZ, JR. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANTA CLARA 13 UNLIMITED CIVIL JURISDICTION 14 15 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028 16 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST 17 V. DEFENDANTS RICK AND MARINA MIRZA AND THEIR COUNSEL OF 18 RICK MIRZA, MARINA MIRZA, and RECORD AS TO DEFENDANTS’ DOES 1| through 10, inclusive MOTIONS FOR SANCTIONS [C.C.P. 1 SECTION 128.7] Defendants. 20 Hearing Date: TBA 21 Time: TBA Dept.: TBA 22 23 24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: 25 YOU ARE NOTIFIED THAT on > at a.m., Or as soon 26 thereafter as the matter may be heard, in Dept. , before the Honorable at 27 Santa Clara County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo 28 Marquez, Jr. moves this Court for monetary sanctions against Defendants Rick and Marina Mirza HopKIns & CARLEY 350\3658708.1 ATTORNEYS AT LAW SAN JOSE # PALO ALTO PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND. THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7] and their attorneys of record in the amount of $7,590.00. The Motion will be based on this Notice of Motion and Motion, the concurrently-filed Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of Maria S. Bellafronto in support thereof, the pleadings, records and files in this action, and any further evidence or argument that the Court may properly hear. Dated: February 19, 2021 HOPKINS & CARLEY A Law Corporation oy ga ATH, Maria S. Bellafronto 10 Jonathan A. Heller Attorneys for Gustavo Marquez, Jr. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hopkins & Carvey ATTORNEYS AT LAW 350\3658708.1 -2- San Jose # PALO ALTO PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND. THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7] Exhibit 4 1 Maria S. Bellafronto (State Bar No. 161994) mbellafr@hopkinscarley.com Jonathan A. Heller (State Bar No. 267542) jheller@hopkinscarley.com HOPKINS & CARLEY A Law Corporation The Letitia Building 70 S. First Street San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Plaintiff GUSTAVO MARQUEZ, JR. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANTA CLARA 13 UNLIMITED CIVIL JURISDICTION 14 15 GUSTAVO MARQUEZ, JR., an individual, CASE NO. 20CV373028 16 Plaintiff, PLAINTIFF’S [AMENDED] NOTICE OF MOTION AND MOTION FOR 17 V. SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND THEIR 18 RICK MIRZA, MARINA MIRZA, and COUNSEL OF RECORD AS TO DOES 1 through 10, inclusive DEFENDANTS’ MOTIONS FOR 1 SANCTIONS [C.C.P. SECTION 128.7] Defendants. 20 Hearing Date: May 18, 2021 21 Time: 9:00 a.m. Dept.: 7 22 23 24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: 25 YOU ARE NOTIFIED THAT on May 18, 2021, at 9:00 a.m., or as soon thereafter as the 26 matter may be heard, in Dept. 7, before the Honorable Christopher G. Rudy at Santa Clara 27 County Superior Court, 191 North First Street, CA 95113, Plaintiff Gustavo Marquez, Jr. moves 28 this Court for monetary sanctions against Defendants Rick and Marina Mirza and their attorneys Hopkins & CaRLey 350\3737333.1 ATTORNEYS AT LAW San Josk ¢PALO ALTO PLAINTIFF’S [AMENDED] NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7] of record in the amount of $7,590.00. The Motion will be based on this Notice of Motion and Motion, the concurrently-filed Memorandum of Points and Authorities in support thereof, the concurrently-filed Declaration of Maria S. Bellafronto in support thereof, the pleadings, records and files in this action, and any further evidence or argument that the Court may properly hear. Dated: March 25, 2021 HOPKINS & CARLEY A Law Corporation 10 Jonathan A. Heller Attorneys for Gustavo Marquez, Jr. Il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hopkins & CARLEY 350\3737333.1 -2- ATTORNEYS AT LAW SAN JOE #PALO ALTO PLAINTIFF'S [AMENDED] NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. § 128.7] PROOF OF SERVICE I, Elena Amaro, declare I am a citizen of the United States and employed in Santa Clara County, California. | am over the age of eighteen years and not a party to the within-entitled action. My business address is The Letitia Building, 70 S First Street, San Jose, California 95113-2406. On the date listed below, I served a copy of the within document(s) PLAINTIFF’S [AMENDED] NOTICE OF MOTION AND MOTION FOR SANCTIONS AGAINST DEFENDANTS RICK AND MARINA MIRZA AND THEIR COUNSEL OF RECORD AS TO DEFENDANTS’ MOTIONS FOR SANCTIONS [C.C.P. SECTION 128.7] 10 x by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, the United States mail at San Jose, California addressed as set forth below. ll 12 O by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below, 13 Xl by transmitting via my electronic service address (eamaro@hopkinscarley.com) the document(s) listed above to the person(s) at the e-mail address(es) set forth below 14 15 VIA EMAIL & U.S. MAIL VIA EMAIL AND U.S. MAIL 16 Daniel L. Casas Marina Mirza Meggan Casas de Necochea 2 Honey Locust Ct. 17 CASAS RILEY SIMONIAN LLP Dix Hills, NY 11746 55 North 3°¢ Street Email: Marinaomar0813@gmail.com 18 Campbell, CA 95008 Tel: (650) 948-7200 19 Email: dcasas@legalteam.com; 20 mcasas@legalteam.com 21 22 I declare under penalty of perjury under the laws of the State of California that the above 23 is true and correct. 24 Executed on March 25, 2021, at San Jose, California. 25 26 27 lina hase Elena Amar 28 Hopkins & CARLEY ATTORNEYS AT LAW. 350\3737345.1 SAN JOSE ¢PaLO ALTO PROOF OF SERVICE