Gillette v. Ruiz CA2/4

Filed 11/6/13 Gillette v. Ruiz CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JEFFREY GILLETTE, B244625

Plaintiff and Respondent, (Los Angeles Country Super. Ct. No. LC087647) v.

CARLOS RUIZ,

Defendant;

HENRY M. LEE et al.,

Real Parties in Interest and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Huey P. Cotton, Judge. Reversed. Henry M. Lee, Law Corporation, Henry M. Lee and Michelle Tran, for Appellants. No appearance for Respondent. ______________________________

Attorneys Henry M. Lee and Robert Myong appeal from an order imposing sanctions in the amount of $3,500 against Lee and $1,500 against Myong for failure to file a notice of related case. We agree with appellants that the trial court abused its discretion in imposing sanctions and reverse the sanctions order.

FACTUAL AND PROCEDURAL SUMMARY The underlying case stems from a dispute between Jeffrey Gillette and Carlos Ruiz, who formed a partnership to buy land, build on it, and sell the building. In 2009, Gillette sued Ruiz for fraud and breach of contract, alleging Ruiz mismanaged the property and misappropriated money from the partnership. In December 2010, a default judgment was entered against Ruiz. Ruiz unsuccessfully moved to set it aside. In March 2012, appellants filed a complaint on Ruiz’s behalf in Los Angeles Superior Court, case No. BC480390, seeking to set aside the default judgment and the subsequent sheriff’s sale of Ruiz’s interest in the property. On June 1, Gillette filed an ex-parte application to consolidate the two cases. Appellants filed an opposition on Ruiz’s behalf, taking the position that the cases were not related. On June 21, the court ordered counsel for Ruiz to file a notice of related case or risk sanctions. On June 22, Gillette filed such a notice. In July, the court ordered the cases related. In August, Gillette filed a motion to consolidate and sought sanctions under Code of Civil Procedure section 128.7 (hereafter, section 128.7). He argued that case No. BC480390 had been filed for an improper purpose. The court continued the motion to consolidate until October 23 and issued an order to show cause (OSC) why sanctions in the amount of $1,500 should not be imposed for failure to file a notice of related case. The reporter’s transcript indicates the OSC was issued against Ruiz, but the minute order states it was against Ruiz’s counsel. Michelle Tran, an attorney in Lee’s law firm, responded to the OSC on Ruiz’s behalf and appeared at the October 5 hearing on the OSC regarding sanctions. She told the court that appellants were Ruiz’s active counsel when the decision not to file a notice of related case was made and that Lee approved the response to the OSC. The court