Motion to be relieved as Counsel of Record
Moving Counsel has stated a basis for permissive withdrawal under Rules of Professional Conduct, Rule 1.16. (ROA 43, 45, Judicial Council Form MC-052, Declaration in Support of Attorney’s Motion to be Relieved as Counsel, ¶ 2.) Moving Counsel has also utilized the Judicial Council Forms (MC-051, MC-052, and MC-053), and has satisfied the notice and declaration requirements of California Rules of Court, rule 3.1362. However, Moving Counsel has not lodged any proposed orders and has not shown proof of service of the same on the clients and all parties that have appeared in this action. Consequently, the motions to be relieved as counsel are DENIED, without prejudice.
Moving Counsel to give notice.
112 Monarch Crest v. Sinai Investment, 2023- 01319977 Plaintiff Monarch Crest, LLC (“Plaintiff”) moves pursuant to Code of Civil Procedure section 128.5 for sanctions in the amount of $9,282.20 “on the grounds that Defendants engaged in frivolous and bad faith actions in filing their second Motion for Summary Judgment or Adjudication months after the deadline to do so had passed and they had failed to obtain or seek leave of court to file a second motion for summary judgment.”
Defendants Marguerite Abdelmalek and Evergreen Realty Partners, Inc., dba Realty One Group West (“Defendants”) oppose the motion.
First, the Court finds that Plaintiff complied with the 21 day safe harbor period prior to bringing this motion. (Code Civ. Proc., § 128.5, subd. (f)(1)(B).)
Next, the Court finds that, while the motion for summary judgment was frivolous given the express terms of the parties’ stipulation, there is insufficient evidence to find that the motion was brought in bad faith. (Campbell v. Cal-Gard Sur. Services, Inc. (1998) 62 Cal.App.4th 563, 573–574 [“To impose sanctions under Code of Civil Procedure section 128.5, there must be a showing that” the moving party’s “action was meritless or frivolous and that it was pursued in bad
faith.”] and Monex International, Ltd. v. Peinado (1990) 224 Cal.App.3d 1619, 1624–1625
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“A court must balance the necessity of penalizing frivolous conduct against the danger of chilling the diligent pursuit of lawsuits by an attorney for his or her client.” (Monex International, Ltd. v. Peinado (1990) 224 Cal.App.3d 1619, 1624.) “Nonetheless, where a trial court concludes a party’s motion has been brought in bad faith and is frivolous, and sufficient evidence supports that conclusion, the imposition of sanctions will be upheld on appeal.” (Id., 1624–1625.)
“To this end, an attorney needs only a reasonable and honest belief in the viability of each theory and the evidence supporting that theory, not a conviction his client will prevail, to justify filing a claim or defense.” (Campbell v. Cal-Gard Sur. Services, Inc. (1998) 62 Cal.App.4th 563, 574–575.)
As such, the Motion is DENIED.
Plaintiff to give notice. 113 Slater Law Firm v. Shahram Manighalam, 2022-01290340 DEFENDANTS/CROSS-COMPLAINANTS MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS- COMPLAINT – GRANTED
Defendants/Cross-Complainants Shahram Manighalam and Shiri Manighalam’s seek leave to file a First Amended Cross-Complaint pursuant to Code of Civil Procedure §§473(a)(1) and 576 and California Rules of Court, rule 3.1324.
The court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars....” (Code Civ. Proc., § 473, subd. (a).)“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading.” (Code Civ. Proc., § 576.)
“[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter