Zhang vs. Martinez

Plaintiff to give notice to any Defendant(s).

9 Zhang vs. Martinez Motion for Sanctions (Code Civ. Proc., § 128.7) Motion for Relief from Jury Waiver

1. Motion for Sanctions

The court DENIES the motion for sanctions filed by Defendants MICHAEL MARTINEZ and ALCHEMY MEN’S GROOMING.

Defendants move for sanctions under Section 128.7 of the Code of Civil Procedure on the grounds that Plaintiff filed a second motion for summary adjudication that Defendants contend is duplicative, successive, and was already adjudicated by the court. Defendants argue that sanctions are warranted because California courts do not permit repetitive summary judgment motions absent newly discovered evidence, changed circumstances, or other valid justification, citing Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092 and Francois v. Goel (2005) 35 Cal.4th 1094.

Section 128.7 authorizes a court to impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. 3) the allegations and other factual contentions have no evidentiary support; 4) the denials of factual contentions are not warranted on the evidence.

Section 128.7 permits the court to impose monetary sanctions on an attorney or an unrepresented party that violates any one of these requirements. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.) In addition, Section 128.7 does not require a finding of subjective bad faith; instead it requires only that the court find that the conduct be objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

Under Section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189-190.) A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.)

A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428. at 448.)

“When a motion has partial merit, it is not ‘totally and completely’ without merit.” (Gerbosi v. Gaims, Weil, W. & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.)

Here, the court already decided whether or not Plaintiff’s second motion was barred. In the court’s 4/24/26 minute order, the court stated:

Defendants argue that Plaintiff’s second motion for summary adjudication should be barred as it raises an issue from Plaintiff’s first motion. In support of the argument, Defendants cite to Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, Francois v. Goel (2005) 35 Cal.4th 1094 and Section 437c(f)(2) of the Code of Civil Procedure.

Both Bagley and Francois are based on Section 437c(f)(2). Bagely held that a second motion for summary judgment was barred by Section 437c(f)(2). (See Bagely, 73 Cal.App.4th at 1093 [“we conclude that the second motion was barred by subdivision (f)(2) of section 437c of the code of Civil Procedure”], see also, fn 3 [“Quite clearly, this case must be decided by the specific requirements of the summary judgment statute, not the general provisions of the reconsideration statute.”].) While Francois discussed at length both Section 437c(f)(2) and Section 1008 (re motions for reconsideration) of the Code of Civil Procedure, the holding was based on Section 437c(f)(2) and not the general provision of Section 1008. summary judgment that did not satisfy the requirements of section 437c, subdivision (f)(2), which they were not permitted to do.”].

See also, Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738 [because a specific provision relating to a particular subject will govern over a general provision, “section 437c(f)(2), not the provisions of section 1008, governs where the motion is for summary judgment”].)

As such, the court analyzes Section 437c(f)(2). Section 437c(f)(2) of the Code of Civil Procedure states, in relevant part: “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c(f)(2).) Elsewhere, section 437c reiterates: “A party shall not bring more than one motion for summary judgment against an adverse party to the action or proceeding. This limitation does not apply to motions for summary adjudication.” (Code Civ. Proc., § 437c(a)(4).)

As the court previously noted, while section 437c prohibits a successive motion for summary judgment, the statute does not bar a second, motion for summary adjudication. (See 4/24/26 Minute Order [ROA 212].) As such, Plaintiff’s instant motion for summary adjudication is not barred by Section 437c(f)(2).

Merely filing a second motion for summary adjudication alone, in and of itself, is not legally meritless. The court denied the second motion for summary adjudication on the grounds that Plaintiff’s motion did not seek to completely dispose of a cause of action. This issue, however, is not raised in Defendant’s current motion for sanctions.

Analyzing Defendants’ motion for sanctions on the specific grounds that Defendants identify, the court does not find that merely filing a second motion for summary adjudication not based on “newly discovered evidence, changed circumstances, or other valid justification” is frivolous or meritless. Had Plaintiff raised a viable issue for summary adjudication, the rules allow Plaintiff to do so by a second motion for summary adjudication.

As such, sanctions under section 128.7 are not warranted based on the grounds that Defendants raise in their motion.

The motion is DENIED.

Defendants to give notice.

2. Motion for Relief from Jury Waiver

The court DENIES Plaintiff JIA XUN ZHANG’s Motion for Relief from Jury Waiver.

As explained below, it appears that Plaintiff waived a jury trial but changed Plaintiff’s mind over the last year, only after the court made rulings on dispositive motions.

Plaintiff specifically requested “a nonjury trial” in multiple Case Management Statements. (See Case Management Statements, filed on 3/4/25 and 4/14/25, ¶¶ 5 [Register of Action No. (“ROA”) 20, ROA 34].) Notably, Plaintiff’s Case Management Statements confirm that the parties addressed and discussed the issue of a jury trial before deciding to request a nonjury trial. (See Case Managements Conference Statements [ROA 20 and ROA

34, ¶ 19 [confirming that the parties “have met and conferred ... on all subjects required by rule 3.724 of the California Rules of Court”]. See also, Rule 3.724 of the California Rules of Court, which incorporates the requirements of Rule 3.727, specially requiring the parties to address “Whether a jury trial is demanded, and, if so, the identify of each party requesting a jury trial”. (Cal. Rules of Ct., rules 3.724 and 3.727(13).) Defendant likewise specifically requested a nonjury trial. (See Def’s Case Management Statement, filed on 3/17/25, ¶ 5 [ROA 28].)

On 3/24/25, based on the parties’ representations and request for a nonjury trial, the court set a 3-5 day nonjury trial for 9/28/26. (See 9/2/25 Minute Order [ROA 76].)

Despite such, Plaintiff filed the instant motion on 4/10/26 (over a year after the court trial was set).

Notably, the instant motion was also filed only after this court made rulings on numerous dispositive motions. (See 1/23/26 Minute Order [ruling denying Plaintiff’s motion for summary judgment] [ROA 114]; 4/3/26 Minute Order [issuing a tentative ruling granting Defendant’s motion for summary judgment on Plaintiff’s Complaint but ultimately denying the motion; also denying Plaintiff’s motion to strike Defendant’s cross-complaint][ROA 158]. See also, TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 780 [discussing the Court’s prior ruling in Gonzales v.

Nork (1978) 20 Cal.3d 500 wherein the Court held that the trial court did not abuse its discretion in denying a motion for relief from jury waiver, after considered factors such as the following: “that despite earlier opportunities to seek such relief, the defendant sought relief only after he had begun to argue issues to the judge, sitting as trier of fact”].)

While Plaintiff now argues that the “failure to timely request a jury trial and post jury fees was inadvertent”, the record reflects otherwise. According to the supporting declaration, Plaintiff’s purported inadvertence was due to a “lack of familiarity with legal procedures as a selfrepresented litigant.” (Zhang Decl., ¶ 3.) Also notable, the court is required to treat self-represented litigants the same as any other party. (See, e.g., Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200,

1210 [self-represented party “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys”].) As such, a self-represented party is “held to the same restrictive procedural rules as an attorney”. (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.)

After considering numerous factors, including those noted in TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, the court finds that it would not be just to grant the motion.

Defendants to give notice.

10 Carnations Home, Motion to Set Aside Default Inc. vs. The Hills Status Conference re Default Judgment Senior Living

1. Motion to Set Aside Default

The court GRANTS Defendants CHERRY CERAME, CHRISTOPHER CERAME, and MTE27, INC.’s (the Moving Defendants) motion to set aside their defaults.

RJN: The court GRANTS Moving Defendants’ requests for judicial notice concerning three court records. (Evid. Code, § 452(d).)

Where defendants were not properly served with the Summons and Complaint, any defaults entered against them are void. (See, e.g., First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 42; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Moreover, where the default was void, the motion to vacate the default is not subject to the six-month limitation contained in section 473 of the Code of Civil Procedure. (Braugh v. Dow (2023) 93 Cal.App.5th 76, 86.)

As explained below, Moving Defendants show they were not properly served with the Summons and Complaint, and Plaintiff does not show otherwise.

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