Mejia Villa vs. Castaneda

CCP§128.5 In all civil cases, the judge may order a party or counsel, or both, “to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” [CCP § 128.5(a)]

The court may award CCP § 128.5 sanctions pursuant to a noticed motion or on its own motion. In either case, the party must be given an opportunity to withdraw or correct the challenged action or tactic before sanctions may be awarded. [CCP § 128.5(f)(1)(B), (D).]

Here, the alleged bad act alleged by MP is the filing of a Motion for Judgment on the Pleadings that “is not based on facts or law that would allow recovery.” [Motion page 7:2.]

In the Notice of Motion, MP states the purpose of filing this motion is “for [Esther’s] filing yet another vexatious and frivolous motion for the sole purpose of harassing Plaintiff in the above-mentioned litigation; specifically, for filing the Motion 26 27 28 for Judgment on the Pleadings re creditor’s claim (“MJOP”).

Notably, “frivolous” means either: (1) “totally and completely without merit”; or (2) “for the sole purpose of harassing an opposing party.” [CCP § 128.5(b)(2) (emphasis added); see Marriage of Flaherty (1982) 31 C3d 637, 649-650, 183 CR 508, 516 (sanctions for “frivolous” appeal)]

“Harassing” conduct includes vexatious tactics which, although literally authorized by statute or rule, go beyond that which is appropriate under any reasonable standard. [See West Coast Develop. v. Reed (1992) 2 CA4th 693, 702.]

A motion is “frivolous” and in “bad faith” where “any reasonable attorney would agree [it] is totally devoid of merit” (i.e., lacking any basis in statutory or case law, or without any necessary evidence to support it). [Karwasky v. Zachay (1983) 146 CA3d 679, 681, 194 CR 292, 293]

However, MP fails to establish how the Motion for Judgment on the Pleadings was frivolous or how it was intended to harass her. In reviewing the Notice of Motion, and Ex. 1 attached to the Declaration of Sylva, it can be gleaned that MP’s position is that because the JOP was denied, it was frivolous. However, more needs to be established to show frivolousness. Simply attaching a meet and confer letter which cites to Probate Codes does not suffice to establish frivolousness in this instance.

CCP§128.7 An attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied “certification” as to its legal and factual merit; and is subject to sanctions for violation of this certification. [CCP § 128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 CA4th 619, 623— statute inapplicable to pre-1995 cases]

The purpose of the statute is “to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.” [Musaelian v. Adams (2009) 45 C4th 512, 514.]

Sanctionable conduct under CCP § 128.7 is limited to “presenting” a “pleading, petition, written notice of motion, or other similar paper” to the court. [CCP § 128.7(b)]

By “presenting” the papers to the court, an attorney or unrepresented party certifies that it has read the paper, and “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”:

• Proper purpose: “It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” (CCP § 128.7(b)(1) (emphasis added);

• Legal merit: “The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” (CCP § 128.7(b)(2) (emphasis added);

• Evidentiary support: “The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery” (CCP § 128.7(b)(3) (emphasis added)); and “The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief” (CCP § 128.7(b)(4) (emphasis added)).

Violation of any of these certifications may give rise to sanctions. [Eichenbaum v. Alon (2003) 106 CA4th 967, 976, 131 CR2d 296, 302]

Here, as indicated above, it appears MP is arguing that counsel presented the JOP for an improper purpose; i.e, to harass MP; and that the JOP had no legal merit. However, there is no showing whatsoever that the Motion was brought to harass MP.

As to whether the legal contentions were warranted by existing law, in the opposition RP argues that “the basis of the motion was primarily focused on the first cause of action, which is a claim for breach of an oral agreement between two romantic partners—a Marvin claim. (See Marvin v. Marvin (1976) 18 Cal.3d 660.) The argument raised in the MJOP was precisely the issue in two different cases discussing the issue of Marvin claims where creditor claims were pertinent.” (Opp page 4:22-26.)

RP argues those cases were McMackin v. Ehrheart (2011) 194 Cal.App.4th 128, 136-137 and Allen v. Stoddard (2013) 212 Cal.App.4th 807, 815.) Notably, MP, who has the burden here, failed to indicate how reliance on McMackin or Allen was without merit or unreasonable. As such, the Motion is DENIED.

RP requests sanctions in the amount of $5,787.20. (Declaration of Ilian Alchehayed, ¶¶2.)

CCP§128.5(f)(1)(C), “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”

Sanctions in the amount of $4,137.20 to be paid to Defendant, Esther Castaæeda, as an individual and as Personal Representative of the Estate of Miguel Castaæeda Rivas. RJN is granted. RP to give notice.

2. Motion to Dismiss Defendant, Esther Castaæeda, as an individual and as Personal Representative of the Estate of Miguel Castaæeda Rivas, moves for an order dismissing the Verified Third Amended Complaint as to all Defendants, and specifically as to Defendants Miguel Angel Castaæeda, Jr., Jose Manuel Castaæeda aka Jose Manuel Castaæeda Rivas, Janet Jimenez, Angelica Castaæeda, Anthony Castaæeda, Alejandro Castaæeda, Andrea Xitlalli Castaæeda, Cynthia Alvarez, and Does 12 through 20, on the grounds that a summons was not served on all Defendants previously identified as Doe Defendant Nos. 2, 4 through 6, and 8 through 10, and 12, within three years of the commencement of the action against them, there has not been a proof of service of the summons and complaint filed within three years and sixty days of commencement against said defendants, and at least one party not served was an indispensable party which requires dismissal of the entire action, and such dismissal is mandatory under CCP§ 583.210.

Motion is DENIED.

Unless a statutory exception applies, the court must dismiss the action for failure to serve defendant within 3 years or return proof of service within 60 days after the 3-year period. [CCP § 583.210.]

An action is “commenced” when the original complaint is filed against the defendants named therein. Therefore, the 3-year period for service and filing proof of service runs from that date, rather than from the date of any later amended complaint (even if the amended complaint is the only one served). [CCP § 411.10; Perati v. Atkinson (1964) 230 CA2d 251, 253-254.]

The above rule applies even where the defendant seeking dismissal was served as one of the “Doe” defendants named in the original complaint, which was later amended to show his true name. Because “Doe” was named in the original complaint, the 3-year period for service and filing proof of service of summons runs from the date the complaint was filed. [Lesko v. Sup.Ct. (Lopez) (1982) 127 CA3d 476, 484-485— original complaint named only “Doe” defendants to stop running of statute of limitations; Inversiones Papaluchi S.A.S. v. Sup.Ct. (Robinson Helicopter Co., Inc.) (2018) 20 CA5th 1055, 1061, 229 CR3d 701, 704—cross-complaint dismissed where original crosscomplaint named “Roes 1-25” but defendants not designated as Roes until almost three years later and not served until more than three years later; time for service ran from filing of original cross-complaint]

Where an amended or supplemental complaint joins new defendants (not simply substituting a real name for one of the “Does” named in the original complaint), the action is deemed “commenced” as to the new defendants from the date of filing of the amended or supplemental complaint. [See Hennessey’s Tavern, Inc. v. American Air Filter Co. (1988) 204 CA3d 1351, 1354—makes no difference that defendants first named in amended complaint were allegedly alter egos of defendant named in original complaint]

Here, the original complaint was filed on 3/21/2023 against Does 1-10. The causes of action pled in the original complaint were (1) Breach of Express Oral Promise (2) Specific Performance of a Property Agreement. As such, as to DOES 1-10, and the authority set forth above, Plaintiff had until approximately 3/21/2026 to serve Does 1-10.

Doe 1 is MP Esther Castaneda (ROA 14) Doe 2 is MIGUEL ANGEL CASTANEDA (ROA 16) Doe 3 is Daniel S. March (ROA 18) Doe 4 is JOSE MANUEL CASTANEDA aka JOSE (ROA 20) Doe 5 is JANET JIMENEZ (ROA 22) Doe 6 is ANGELICA CASTANEDA (ROA 10) Doe 7 is Esther Castaneda, in her fiduciary capacity as Administrator of the Estate of Jose Miguel Castaneda- Rivas, deceased

Doe 8 is ANTHONY CASTANEDA (ROA 703) Doe 9 is ALEJANDRO CASTANEDA (ROA 702) Doe 10 is ANDREA XITLALLI CASTANEDA (ROA 701) Doe 12 is CYNTHIA ALVAREZ (ROA 563)

As to Doe 2, ROA 469 establishes that Miguel Angel Castaneda was served with the Complaint on 1/28/2026 and was thus timely.

As to Doe 4, Jose Manuel Castaneda aka Jose, he was served via substituted service on 1/28/2026 (ROA 719) and is thus timely.

As to Doe 5, Janet Jimenez, she has not been served. [However, dismissed 1/15/2026. (ROA 406)]

As to Doe 6, Angelica Castaenda, ROA 473 establishes that she was served 1/28/2026, and thus timely.

As to Doe 8, Anthony Castaneda, he has not been served.

As to Doe 9, Alejandro Castaneda, he has not been served.

As to Doe 10, Andrea Xiltlalli Castaneda, she has not been served.

Therefore, as to Anthony, Alejandro, and Andrea because the statutory periods appear to have expired, the burden is on plaintiff to show some excuse for the delay in service; e.g., estoppel, waiver, tolling, “impossible, impracticable, or futile,” etc. [Putnam v. Clague (1992) 3 CA4th 542, 549.]

The mandatory 3-year period for service is tolled so long as any of the following conditions exist:

• Defendant was not amenable to service; or

• Prosecution of the action was stayed, and the stay affected service of summons; or

• The validity of service was the subject of litigation between the parties; or

• For any other reason, service was “impossible, impracticable, or futile” due to causes beyond plaintiff’s control (excluding failure to discover relevant evidence). [CCP § 583.240 (emphasis added)]

The statutory time for service of summons is tolled for whatever period defendant was “not amenable to the process of the court.” [CCP § 583.240(a)]

The burden is on plaintiff to show that defendant was not amenable to service of process during all or some part of the 3-year period. [Perez v. Smith (1993) 19 CA4th 1595, 1597.]

Notably, as to these three Defendants, they appear to be minors. Minors and persons without legal capacity to make decisions lack capacity to sue in their own names or to defend an action brought against them. Instead, litigation must be conducted through a guardian, conservator of the estate, or guardian ad litem. [CCP § 372(a)]

If a guardian or conservator has not previously been appointed for the minor or person lacking decisionmaking capacity, a guardian ad litem must be appointed unless one of the limited statutory exceptions applies. [CCP § 372(a)]

In this instance, the guardian ad litem for the abovementioned Defendants was not appointed until 1/13/2026. See ROA 402. 7/13/2026, the Guardian Ad Litem was served with the Amendment adding her as Doe 11. (ROA 700).

Arguably, Defendants were not amendable to service until a Guardian Ad Litem was appointed. Moreover, prosecution of the action as to all minors appears to have been stayed while the issues relating to the Guardian Ad Litem were resolved.

As to Doe 12, Cynthia Alvarez, she was not sub’d in as a Doe until 5/19/2026. (ROA 563). Because the original Complaint only went up to DOE 10, the statute does not start on the date the original Complaint was filed. Rather, the statute started on 1/29/2025 when the SAC was filed naming DOES 11-20. Therefore, Plaintiff has until 2028 to serve Defendant Cynthia.

The Court takes judicial notice of its own documents only, and RJNS are otherwise denied. Plaintiff to give notice.

112 Ramirez vs. Costco Wholesale Corporation

24-01443647 Motion for Summary Judgment and/or Adjudication Defendant Costco Wholesale Corporation (“Costco”) moves for summary judgment or, in the alternative, adjudication of issues as to Plaintiff Robert Ramirez’s (“Plaintiff”) complaint. For the reasons set forth below, the motion is DENIED.

Preliminary Issues As an initial matter, the opposition was not timely filed. Plaintiff’s counsel has submitted a declaration extensively recounting the reasons why the opposition was not timely filed, which include various illnesses of its attorneys. In reply, Costco urges the court to disregard the untimely opposition but does not seek additional time to prepare its reply or contend that it