United Grand Corp. v. Malibu Hillbillies, LLC ( 2019 )

Filed 5/22/19; Certified for Publication 6/12/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
UNITED GRAND CORPORATION, B283833
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC554172)
v.
MALIBU HILLBILLIES, LLC, et al.,
Defendants and Respondents;
CYRUS SANAI,
Objector and Appellant.
APPEAL from orders and a judgment of the Superior
Court of Los Angeles County, Mark Borenstein, Edward B.
Moreton, and David Sotelo, Judges. Orders dismissed, judgment
affirmed.
Cyrus Sanai for Plaintiff and Appellant.
Cyrus Sanai, in. pro. per., for Objector and Appellant.
Cozen O’Connor, Erik L. Jackson and Nathan Dooley for
Defendants and Respondents.
D. Joshua Staub, in. pro. per., for Real Party in Interest.
_________________________
INTRODUCTION
This is the fifth and presumably final appeal in a lawsuit
which began in August 2014 as a garden variety commercial rent
dispute. In brief, Malibu Hillbillies LLC did not pay rent to its
landlord, appellant United Grand Corporation. United Grand
filed a civil action to recover the overdue rent from Malibu
Hillbillies and its guarantor, respondent Marcie Stollof.
Although appellant United Grand Corporation sought less than
$50,000 in unpaid rent and quickly obtained default judgments
against its tenant, Malibu Hillbillies LLC, and guarantor Stollof,
in the year and a half following the default judgment, United
Grand sought almost $2 million in attorney fees for its efforts to
enforce the judgment against respondent Marcie Stollof.
Early on in the life of this lawsuit, the trial court vacated
the default judgment against Stollof only and set the matter for
trial as to Stollof only. Nonetheless, while awaiting trial on the
complaint against her, she deposited the unpaid rent and accrued
interest with the Los Angeles Superior Court. United Grand took
the money. Upon learning of the payment, the trial court vacated
the trial date, found that United Grand had engaged in extensive
misconduct throughout the duration of this action and imposed a
terminating sanction striking from the complaint United Grand’s
prayer for attorney fees. This was, however, only a partial
sanction, as the trial court also entered judgment in favor of
United Grand and against Stollof in the amount of the unpaid
rent and accrued interest she had already paid and United Grand
had already received.
United Grand and its attorney Cyrus Sanai appeal from the
judgment striking the prayer for attorney fees. They also state
they are appealing from an order dissolving an injunction,
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sanctions orders against Sanai of less than $5000 and an order
denying attorney fees on appeal. While United Grand’s
statement of appealability is clear and supported by relevant
legal citations, the same cannot be said for its discussion of those
issues.
“In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.” (City of Santa Maria v.
Adam (2012) 211 Cal.App.4th 266, 286–287.) United Grand has
failed to meet this requirement for most of the issues it raises.
As set out below, many of its claims are forfeited. (Ibid.) The few
cognizable isolated claims of error are meritless. We affirm the
judgment of dismissal, the order dissolving the injunction and the
order denying attorney fees on appeal.
The sanctions identified in the statement of appealability
are owed by United Grand’s attorney Cyrus Sanai to Stollof’s
counsel Joshua Staub. Staub, who is a real party in interest as to
the sanctions orders, has moved to dismiss the appeal from the
sanctions orders under the disentitlement doctrine, as Sanai has
been found in contempt of court for failing to pay those sanctions
and he is the subject of an outstanding bench warrant. We
dismiss the appeal from the sanctions orders.
BACKGROUND
In August 2014, United Grand began this action by filing a
form complaint alleging Malibu Hillbillies breached its
commercial lease with United Grand and Stollof breached her
guaranty agreement. United Grand sought unpaid rent in the
amount of $46,395.86, attorney fees, and costs. United Grand
quickly obtained default judgments against Malibu Hillbillies
and Stollof. On April 13, 2015, Judge Rosenblatt entered
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judgment in the amount of $67,852.55 against Malibu Hillbillies
and Stollof “jointly and severally.” The total amount of the
amended judgment filed May 6, 2015, included $21,120 in
attorney fees through February 11, 2015 and $955.00 in costs.
The next three years of this action involved four appeals
and one petition for writ of habeas corpus, but little discovery and
no trial. Rather, almost all the proceedings involved disputes
over attorney fees in one form or another.
After entry of judgment United Grand focused its collection
efforts on Stollof, who resided in Maryland. Despite the
essentially uncontested nature of the case, United Grand’s
attorney Cyrus Sanai continued to generate a large amount of
attorney fees on the case. On April 29, 2015, United Grand
executed a Memorandum of Costs seeking $25,380 for post-
judgment attorney fees from February 11 to April 29, 2015.
United Grand enrolled its judgment in Maryland on
May 29, 2015.
In a second memorandum of costs filed June 2, 2015,
United Grand sought an additional $41,030.20 in attorney fees
for a one-month period. Thus, within six weeks of the April 13
judgment, United Grand sought $66,410.20 in post-judgment
attorney fees for enforcement of a $67,852.55 judgment.
In July 2015, Stollof tried to settle the case by offering to
pay the amount of the April 13, 2015 judgment. United Grand
refused the offer. United Grand’s attorney Sanai explained his
view of the litigation in the letter refusing the offer: “What your
client did not realize was that once judgment was entered,
unopposed requests for post-judgment attorney fees would be
rubber-stamped, and that myself and Maryland counsel could, if
we took post-judgment fees on contingency, obtain a multiplier on
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our lodestone rates.” United Grand’s counter-proposal was that
Stollof pay $255,318.59.
Concurrently with United Grand’s July 2015 settlement
proposal, United Grand served a third memorandum of costs
seeking $107,768.95 in attorney fees for the period June 3
through July 14, 2015. Thus, in less than a year after filing this
essentially uncontested lawsuit, United Grand sought
$195,299.15 in attorney fees, which totaled four times the
amount of the unpaid rent which the lawsuit has been brought to
recover.
Faced with this disproportionately large demand for
attorney fees, Stollof elected to move to set aside the default
judgment against her. While her motion was pending, Stollof
also moved to tax costs. By the time she filed the motion on
August 13, 2015, United Grand had filed a fourth memorandum
of costs seeking $159,939.27 for a total of $355,238.42 in attorney
fees for more than 125 hours of work. In November 2015, Judge
Borenstein awarded reduced attorney fees of $7,000 for 14.5
hours of work and costs of $240.
United Grand also pressed on with some post-judgment
discovery, and in October 2015 it obtained discovery sanctions
against Stollof in the amount of $2,500. Stollof promptly paid the
sanctions.
On December 24, 2015, Judge Rosenblatt granted Stollof’s
motion to set aside the default judgment against her. Malibu
Hillbillies also moved to set aside the default judgment against it,
but that motion was denied. United Grand appealed the trial
court’s order granting Stollof’s motion and Malibu Hillbillies
appealed the order denying its motion. (B268544 & B270076)
Neither appeal was successful. The next step should have been
5
to try the action against Stollof and to enforce the default
judgment against Malibu Hillbillies.
By March 2016, United Grand had not filed a “code
compliant” acknowledgement of satisfaction of judgment for the
discovery sanctions Stollof had paid in October 2015. Stollof filed
a motion to compel United Grand to file such an
acknowledgement. The trial court granted the motion and
ordered United Grand to file a “code compliant”
acknowledgement by May 6, 2016. The court also ordered United
Grand’s attorney Sanai to pay Stollof’s counsel Joshua Staub
attorney fees in the amount of $500 by June 1, 2016. This order
was later amended nunc pro tunc to require United Grand, not
Sanai, to pay the fees.
On May 4, 2016, United Grand filed a noncompliant
acknowledgement. Stollof filed a request to show cause initiating
indirect contempt proceedings against United Grand. On May
24, United Grand again filed a noncompliant acknowledgement.
The court signed the order to show cause (OSC) and directed
United Grand to explain why it should not be adjudged in
contempt of court for failing to file a code-compliant
acknowledgement.
While the dispute over the acknowledgement dragged on,
Stollof again attempted to resolve the dispute with United Grand.
Among other options, Stollof suggested transferring the funds she
had deposited in the Maryland Court to the Los Angeles Superior
Court. United Grand rejected Stollof’s April 2016 and May 2016
offers. On August 1, 2016, Stollof filed a motion to deposit
$56,705, representing the full amount of unpaid rent plus
interest through May 2016, with the Los Angeles Superior Court.
The court granted the motion and Stollof deposited the funds.
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United Grand remained focused on the contempt
proceedings for the noncompliant acknowledgement. On August
15, 2016, United Grand filed a motion to vacate the OSC re
contempt and dismiss the contempt proceedings. The trial court
denied the motion and set a trial date on the OSC of January 18,
2017. On October 7, United Grand filed a notice of appeal in case
No. B279215 purporting to appeal from the various orders related
to the filing of the acknowledgement of satisfaction. Relying on
the pendency of its appeal, United Grand filed a series of
unsuccessful applications for stays of pending contempt
proceedings in the trial court.1 On December 1, 2016, Judge
Borenstein granted a stay of the contempt proceedings until
January 5, 2017, to permit Stollof and Staub to seek dismissal of
United Grand’s appeal from the Court of Appeal. (It was later
dismissed on July 13, 2018 under the disentitlement doctrine.)
In the midst of these attempts to stay the contempt trial, on
November 23, 2016, United Grand withdrew the $56,705 Stollof
had deposited with the Los Angeles Superior Court. United
Grand’s withdrawal of the funds caught the attention of Judge
Sotelo in Department 40, where the complaint against Stollof had
been sent for trial. Judge Sotelo wondered if United Grand’s
withdrawal of funds meant the case was “no longer at issue.” In
mid-December, Judge Sotelo issued an OSC why the complaint
should not be stricken as to Stollof. The hearing on the OSC was
set for the morning of January 5, 2017. The trial court “vacated
the trial date and asked counsel for suggestions on how to
1 These attempts would ultimately result in new sanctions
against Sanai and a finding of contempt related to his actions in
seeking a stay.
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proceed.” Judge Sotelo later stated he was unaware of the
pending contempt proceedings in Department 44.
On December 30, 2016, we deferred the motion to dismiss
the appeal in B279215 to the panel. That same day, United
Grand gave e-mail notice that it intended to apply ex parte on
January 5, 2017 at 8:30 a.m. in Department 44 for a stay of the
contempt proceedings, the same date and time set for the hearing
on Judge Sotelo’s order concerning dismissal of the complaint in
Department 40. An ex parte application for a stay was filed; it
included a request for sanctions.
On January 5, Judge Lu, sitting temporarily in Department
44 in Judge Borenstein’s absence, granted United Grand a stay of
the contempt trial until January 11, and ordered United Grand to
appear on that date and “address any further stay with the
Honorable Mark Borenstein.” Activity proceeded in Department
40 on January 5 as well: Judge Sotelo set a hearing date of
February 6, 2017 for the OSC re dismissal.
Upon his return to court, Judge Borenstein continued the
ex parte application for a stay and sanctions to January 13, 2017.
On January 12, 2017, Stollof filed an opposition to the January 5,
2017 application, and she requested sanctions. On January 13,
2017, Judge Borenstein issued an OSC directing attorney Sanai
to appear on February 2, 2017 and show cause why he should not
be ordered to pay “defendant’s reasonable attorney fees for the
ex part[e] application and request for sanctions filed on January
5, 2017.”
At the hearing on the OSC on February 2, 2017, Judge
Borenstein ordered Sanai to pay $3,600 in attorney fees to Staub,
Stollof’s counsel, pursuant to Code of Civil Procedure section
128.5, subdivision (c), and to pay a “penalty” of $1,000 to the
8
court pursuant to Code of Civil Procedure Section 128.7,
subdivision (d). On February 22, 2017, Judge Borenstein issued
an order which states: “The Court finds that no reasonable
attorney would have sought over $48,000 of sanctions as Cyrus
Mark Sanai did in the Ex Parte Application.”
On February 6, 2017, Judge Sotelo held a hearing on the
OSC re dismissal of the complaint and took the matter under
submission.
On March 8, 2017, United Grand filed a written motion to
reconsider Judge Borenstein’s February 22, 2017 sanctions order.
On March 17, 2017, Judge Sotelo issued his ruling on the
OSC re dismissal of the complaint. The court noted that it had
“attempted to understand what rational, reasonable, or common
sense and legal reasons hinder the closure of this no longer ‘at
issue’ litigation. Other than the typical post-judgment questions
of costs, post-judgment interest, and reasonable attorney fees,
there is nothing left to dispute. [¶] In reviewing the case files,
what stands out, what appears most telling, is a [July 15, 2015]
declaration Mr. Sanai submitted, stating that his ‘former client’
paid him for services rendered only up to obtaining a judgment
and his handling of the ‘enforcement stage of the case’ was on
contingency: ‘I have agreed that my compensation for attorney’s
fees will be limited to the amounts awarded by this Court and
actually recovered . . . .’ ” The court noted that United Grand and
its counsel Sanai had sought “close to $2 million” in attorney fees
by that point.
Turning to the appropriate disposition of the case, the court
noted “Defendant’s counsel [has] listed, in detail, dozens of
actions taken by Plaintiff, Mr. Sanai, or both that constitute
pervasive misconduct. Counsel [has] asked the court to exercise
9
[sic] its inherent powers of dismissal under [Code of Civil
Procedure] section 581, subdivision (m).” The court considered
“simply entering a judgment for Plaintiff against Stollof in the
amount already collected by Plaintiff, then determining
reasonable costs and attorney fees, as would be the ‘normal
course.’ ” Ultimately, however, the court determined that
through “Plaintiff’s and Mr. Sanai’s misconduct, [the case] has
lost its essential character” and that “Mr. Sanai’s use of law and
his abuse of court procedure has not been for the legitimate
purpose of his client’s claim.” The court noted that it had the
inherent authority to dismiss the case, but “[r]ather than
terminate this litigation (as to Stollof) for the deliberate and
egregious misconduct by Plaintiff or Plaintiff’s lawyer, or both,
this court has come to the conclusion that it can adequately
restore common sense and fairness in this clearly ‘extreme
situation’ by imposing a significant sanction less than full or total
dismissal, although full dismissal would not be [sic] improper.”
The court entered “judgment in favor of Plaintiff United
Grand Corporation, against Defendant Marcie Stollof, in the
amount of $56,705.00.” The court also exercised “its inherent
discretionary authority and strikes and dismisses Plaintiff’s
request and prayer for attorney fees against Defendant Marcie
Stollof based on the finding that Plaintiff and or Mr. Sanai
engaged in pervasive misconduct.” The court concluded, “THIS
ACTION THEN, IS A PARTIAL ‘TERMINATING SANCTION’
UNDER [CODE OF CIVL PROCEDURE] SECTION [581],
SUBDIVISION (m). Since the court has the authority to strike or
dismiss this matter in its entirety, it therefore has the authority
to strike and dismiss Plaintiff’s attorney fees request.”
10
On March 29, 2017, United Grand moved ex parte to stay
the dismissal order. It was promptly denied on the merits. On
April 11, 2017, Judge Sotelo filed an order and judgment of
dismissal. United Grand moved for a new trial.
On May 3, 2017, a hearing was held on Sanai’s motion to
reconsider the February sanctions order against him totaling
$4,600. Judge Borenstein denied the motion on the ground that
Sanai had failed to show new or different facts. On June 2, 2017
Sanai filed a notice of appeal of the February 22, 2017 order in
case No. B282942.
On June 8, 2017, Staub, to whom the $4,600 in sanctions
was to be paid, began proceedings to enforce the February
sanctions orders. He obtained an order for Sanai to appear at a
judgment debtor examination set for August 14, 2017.
On July 12, 2017, United Grand and Sanai filed a notice of
appeal in this case, B283833, which challenges the final
judgment and the February 2017 sanctions orders. Nonetheless
proceedings related to the sanctions continued in the trial court.
Sanai failed to appear for his scheduled judgment debtor
examination. The court issued a bench warrant which was held
until September 29, 2017.
On September 28, 2017, United Grand filed a petition for
writ of supersedeas and stay in this court seeking to stay
enforcement of the February 22, 2017 sanctions orders and “the
September 29, 2017 show cause and debtor proceedings.” We
denied the petition/request for stay the next day, September 29,
2017.
Judgment debtor proceedings in the trial court were then
continued several times, until November 29, 2017. On that date,
when the matter was called for hearing, Sanai refused to be
11
sworn for the examination. “The court warns judgment debtor of
direct contempt for refusal to move forward with the exam.” The
matter was transferred to Judge Borenstein (then in Dept. 35). A
December 7, 2017 hearing was set for an OSC “to determine
whether actual cause will issue.” The OSC was continued to
December 15, 2017. On December 18, 2017 the court issued an
order for Sanai to appear on January 30, 2018 and show cause
why he should not be held in contempt for failing to comply with
the Court’s sanctions orders of February 2, 2017 and February
22, 2107. The court issued a separate order on December 18
ordering Sanai to show cause why he should not be sanctioned for
failing to comply with the February 2017 orders.
On January 2, 2018, we issued an order dismissing the
appeal in B282942 on the ground that the January and February
2017 orders were not directly or separately appealable. We
denied United Grand/Sanai’s motion to consolidate the appeal
with the instant appeal.
On January 30, 2018, Judge Borenstein found “that Cyrus
Sanai has willfully failed to pay by 3-1-2017, the sanctions under
CCP 177.5 and attorney fees pursuant to the order dated
February 22, 2017. [¶] The Court orders Cyrus Sanai to pay
sanctions pursuant to CCP 177.5 in the amount of $1,500 to the
clerk of the court no later than 2-28-2018. [¶] . . . [¶ The
examination of Judgment Debtor Cyrus Sanai is continued to
March 21, 2018.” The court arraigned Sanai on the contempt
charge and set a contempt trial date of March 21, 2018.
The sanctions proceedings continued. On March 21, 2018,
Judge Borenstein held a trial on the contempt charge and found
Sanai guilty. Sentencing was set for March 26, 2018. Sanai was
released on his own recognizance.
12
On March 26, 2018, the court pronounced sentence on the
contempt verdict: “Mr. Sanai shall be imprisoned in the
Los Angeles County jail until he performs the acts specified in
the Court’s orders dated February 2 and February 22, 2017; and
[¶] 2. Pursuant to Civil Procedure Code §1218(a), Mr. Sanai shall
pay to D. Joshua Staub reasonable attorneys’ fees and costs
incurred in connection with the contempt proceedings. [¶]
3. Execution of this sentence is stayed until 4 pm on April 13,
2018, at which time Mr. Sanai shall surrender at the Inmate
Reception Center at the Los Angeles County Jail, until a further
stay is granted.”
On April 12, 2018, in this court Sanai filed a “Petition for
writ of mandate, habeas corpus or other appropriate relief.”
(B289357) On April 23, 2018, we denied Sanai’s request to stay
the trial court’s March 26, 2018 order sentencing Sanai for
contempt of court. On March 4, 2019, under the disentitlement
doctrine we denied the petition which challenged both the
underlying February 2017 sanctions orders and the contempt
proceedings.
DISCUSSION
Throughout its opening and reply briefs, United Grand has
repeatedly disparaged the trial court judges and the quality of
their legal work. To give just one example, United Grand has
characterized Judge Sotelo’s findings as “gibberish” and “legal
nonsense.” Not only is such disparagement inappropriate, it is
ineffective. Name-calling and ridicule are not cogent legal
arguments. We do not repeat or consider these inappropriate and
irrelevant remarks.
The remainder of United Grand’s briefs are not sufficient to
show error. United Grand has not provided the required
13
separate headings for many of the points it raises in its brief,
resulting in a disorganized and at times unintelligible legal
discussion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [party’s brief
must “[s]tate each point under a separate heading or
subheading, . . . and support each point by argument and, if
possible, by citation of authority”].) Appropriate headings require
litigants to “ ‘present their cause systematically and so arranged
that those upon whom the duty devolves of ascertaining the rule
of law to apply may be advised, as they read, of the exact
question under consideration, instead of being compelled to
extricate it from the mass.’ [Citation.]” (Opdyk v. California
Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn 4.)
Although we exercise our discretion to consider those issues we
can discern in United Grand’s unsystematic and often incoherent
arguments, there are times when it is simply not possible for us
to understand what United Grand is arguing. Any arguments
not discussed in this opinion are deemed forfeited. (Pizarro v.
Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure to provide
proper headings forfeits issues that may be discussed in the brief
but are not clearly identified by a heading.”].)
United Grand has also failed to support many of its points
with cogent argument, legal authority or specific citations to the
record on appeal. Further, parts of the briefs appear to consist of
only partially successful attempts to cut and paste text from
previous briefs. “In order to demonstrate error, an appellant
must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” (City of
Santa Maria v. Adam, supra, 211 Cal.App.4th at pp. 286–287.)
Although we exercise our discretion to consider arguments for
which we can discern a legal or factual basis in the briefs, there
14
are many instances when no such basis is apparent. “We are not
obliged to make other arguments for [appellant] [citation], nor
are we obliged to speculate about which issues counsel intend to
raise.” (Opdyk v. California Horse Racing Bd., supra,
34 Cal.App.4th at pp. 1830-1831, fn. 4; In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to
develop appellants’ arguments for them.”].) We may and do
“disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt.” (City of Santa Maria v. Adam, supra, at p. 287.)
I. UNITED GRAND HAS NOT SHOWN THE TRIAL
COURT ERRED IN DISMISSING THE PRAYER FOR
ATTORNEY FEES.
United Grand makes four arguments related to the
propriety of Judge Sotelo’s order of dismissal. He contends
(1) there is no “legal reason” for the order; (2) the court lacked
jurisdiction to make the order; (3) the court failed to provide
adequate notice it intended to strike the prayer for attorney fees;
and (4) it was error to deny United Grand contractual attorney
fees. United Grand has forfeited almost all these claims; those
claims which are not forfeited are meritless.
A. United Grand Has Not Shown The Judgment Lacks
Legal Support.
United Grand has entitled its first section: “This is The
Unusual Situation Where a Trial Court Announced the Outcome
it Wanted Without Having a Legal Reason for Getting There,
Demonstrating Prejudice.” This heading gives no indication of the
jumble of arguments that are contained in the section that
follows. We can discern five possible arguments within this
15
section: (1) there is insufficient evidence to support the trial
court’s findings of misconduct; (2) the actions described are not
misconduct; (3) the dismissal is improperly based on attorney
misconduct alone; (4) the dismissal is improperly based on the
trial court’s hostility to awarding contingent fees with a
multiplier; (5) collateral estoppel and issue preclusion bar a
judgment based only on the amount of unpaid rent and interest.
We consider those arguments to the extent possible below. Any
other arguments are deemed forfeited. (Pizarro v. Reynoso,
supra, 10 Cal.App.5th at p. 179.) We are not “obliged to speculate
about which issues counsel intend to raise.” (Opdyk v. California
Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.)2
2 In the Statement of the Case section of its opening brief,
United Grand argues that several of the statements in Judge
Sotelo’s order(s) to show cause were factually inaccurate.
Arguments of error do not belong in a section entitled “Statement
of the Case” and subtitled “Procedural History,” particularly
when a different section of the brief is labelled “Legal
Discussion.” More importantly, an OSC “acts as a summons to
appear in court on a certain day and, as its name suggests, to
show cause why a certain thing should not be done.” (Cedars-
Sinai Imaging Medical Group v. Superior Court (2000) 83
Cal.App.4th 1281, 1286.) United Grand was free to argue the
inaccuracy of the statements in the OSC at the hearing on the
order. United Grand does not explain the relevance of
statements which appear in the OSC but not in the court’s final
order. We see none.
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1. United Grand Ignores Most Of The Trial Court’s
Findings Of Misconduct And Fails To Provide
Adequate Citations To Support The Claims It
Does Make.
United Grand contends the trial court’s findings of fact in
support of dismissal are “totally unsupported by substantial
evidence” or do not identify actions which constitute misconduct.
United Grand addresses only a portion of the summary of
misconduct from the court’s order of dismissal, responding only to
the findings in the following paragraph: “The Defendant’s list of
misconduct includes the breach of the implied covenant of good
faith through the outrageous demands of Plaintiff or Mr. Sanai,
or both; Plaintiff or its lawyer’s unreasonable refusal to give
effect to Stollof’s payment of funds into the Maryland Court;
Plaintiff or its lawyer’s failure to give effect to the payment of
funds and their withdrawal from this Court; Plaintiffs or
Plaintiffs lawyer’s failure to respect Judge Michelle Rosenblatt’s
December 24, 2015 and January 18, 2016 orders vacating the
judgment against Stollof and eight other failures to give notice
when ordered; Plaintiffs or Plaintiff’s lawyer’s refusal to the
immediate release of the $56,615 held in the Maryland Court,
requiring Stollof [sic] to incur legal fees and cost to bring a
motion; Plaintiff or Plaintiffs lawyer’s refusal to agree to the
transfer of the $68,418 held in Maryland and deposit of an
additional $12,000 into this Court, again, requiring Stollof to
bring a motion for deposit.”
United Grand ignores the trial court’s preface to this
paragraph explaining that “In support of his motion, Defendant’s
counsel listed, in detail, dozens of actions taken by Plaintiff, Mr.
Sanai, or both that constitute pervasive misconduct. Counsel
17
asked the court to exercise of its inherent powers of dismissal
under [Code of Civil Procedure] section 581, subdivision (m).”
United Grand also ignores the court’s additional findings given in
subsequent paragraphs that “The list of suggested misconduct
consists of many additional actions and inactions by Plaintiff or
Plaintiff’s lawyer, or both, displaying contempt towards Judge
Rosenblatt (who set aside the default), Judge Borenstein
(assigned to the post-judgment collections processes of defaulted
Defendant Malibu Hillbillies), and towards this Court. [¶]
Additionally, Defendant identifies vexatious conduct by Plaintiff
or Plaintiff’s lawyer, or both, including meritless statements of
disqualification, petitions of writ of mandate, refusal to file
acknowledgement of satisfaction, filing of motions when leave to
file had been refused, as well as being cited for contempt and
contemptuous courtroom conduct.”
Even without the findings in the single paragraph
identified and quoted by United Grand in his brief, there is ample
evidence of misconduct in the paragraphs he ignores, particularly
as set forth in detail in Stollof’s supporting brief and Staub’s
declaration, both expressly incorporated by Judge Sotelo into his
order.3 Thus, even if United Grand were correct in its criticisms
of the findings in the single, summary paragraph it quotes and
we disregarded those findings, reversal would not be warranted.
3 The court stated: “This court adopts the comprehensive
summary of conduct by Plaintiff’s lawyer, as listed in detail in
Defendant Stollof’s Brief in Support of Order Striking Complaint
as to Defendant Marcie Stollof, filed January 27, 2017.”
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a. United Grand’s Sufficiency of the Evidence Claim
Is Forfeited.
United Grand argues that the finding that it failed on eight
occasions to give notice as ordered is “manifestly false” and that
notice of all relevant order was given. The specific dates for non-
notice are found in defendant’s Brief In Support Of Order
Striking Complaint As To Defendant Marcie Stollof and
accompanying declaration. United Grand fails to provide record
citations to support his claim that he gave notices on those dates,
or that notice was not required.
An appellant must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule
8.204(a)(1)(C).) “ ‘The appellate court is not required to search
the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party
fails to support an argument with the necessary citations to the
record, . . . the argument [will be] deemed to have been waived.
[Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246.) United Grand has forfeited this claim.
b. United Grand’s Claim That Its Conduct Was Not
Misconduct Is Forfeited.
United Grand identified four instances of misconduct in
Judge Sotelo’s order which he claims are not improper conduct at
all. United Grand has failed to adequately support these claims
with cogent argument or appropriate legal or factual citations.
Accordingly, they are all forfeited.
First, United Grand claims “the filing of an appeal
challenging Judge Rosenblatt’s orders was a procedural right,”
not misconduct. Judge Sotelo did not find the filing of an appeal
to be misconduct. United Grand appears to be referring to Judge
19
Sotelo’s finding that “Plaintiffs or Plaintiffs lawyer’s failure to
respect Judge Michelle Rosenblatt’s December 24, 2015 and
January 18, 2016 orders vacating the judgment against Stollof.”
As United Grand should know, this refers to its claim on
February 8, 2016 that “Plaintiff has on January 19, 2016, and
continues to have today, a fully enforceable judgment, which is
enforceable against Stollof.” United Grand made this claim in a
declaration signed by Sanai and submitted to the Maryland
court. United Grand does not explain how this claim made on
February 8, 2016 was accurate in light of the trial court’s vacatur
of the default against Stollof on December 24, 2015. “We are not
obliged to make other arguments for [appellant] [citation], nor
are we obliged to speculate about which issues counsel intend to
raise.” (Opdyk v. California Horse Racing Bd., supra,
34 Cal.App.4th at pp. 1830-1831, fn. 4; In re Marriage of Falcone
& Fyke, supra, 164 Cal.App.4th at p. 830.)
Second, United Grand also claims that it was not
misconduct or unreasonable to refuse “to give effect to Stollof’s
payment of funds into the Maryland Court; Plaintiff or its
lawyer’s failure to give effect to the payment of funds and their
withdrawal from this Court.” United Grand contends the amount
deposited in those courts was less than half the amount of its
judgment and so it was not unreasonable to turn it down.4 The
4 United Grand has claimed at various times to have
obtained a judgement of $137,315.22 against Stollof and Malibu
Hillbillies. On or about August 12, 2015, Judge Rosenblatt
appears to have granted an ex parte request from United Grand
to add amounts of the April 30 and June 2, 2015 Memorandum of
Costs to the judgment. The order stated “The Clerk of this Court
is ordered upon presentation of this order to immediately,
without any delay, excuse or other intervening act, enter onto the
20
quoted finding has no specific time reference, but Stollof clearly
suggested disbursing the previously-deposited funds in the
Maryland court after the judgment against her had been vacated.
She deposited the funds in the California court after the
judgment against her was vacated. Thus, United Grand’s factual
premise is faulty. “We are not obliged to make other arguments
for [appellant] [citation], nor are we obliged to speculate about
which issues counsel intend to raise.” (Opdyk v. California Horse
Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4; In re
Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
Next, United Grand similarly claims that it was not
misconduct to oppose Stollof’s transfer of the funds in the
Maryland court to a California court. United Grand did not
operative judgment” the additional amounts of $25,380.00 and
$41,030.20. It is far from clear whether or when Sanai presented
the order to the clerk and obtained an amended judgment. Sanai
has provided a copy of what he claims is the amended judgment
in a late-filed volume 4 of the appellant’s appendix in this appeal.
Disturbingly we have been unable to locate a reference to that
document or the document itself in the trial court’s docket.
Assuming for the sake of argument that United Grand did
obtain such a judgment, its existence makes no material
difference to our analysis on this appeal. Judge Rosenblatt set
aside the default judgment against Stollof four months later,
including the part of the judgment finding her jointly and
severally liable with Malibu Hillbillies. To the extent that
United Grand relies on this judgment to rationalize its rejection
of Stollof’s attempts to settle the case in the summer of 2015, that
reliance is misplaced. In rejecting Stollof’s settlement proposal,
United Grand’s counter-offer was for $255,000, almost twice the
$137,315.22 judgment it claimed to possess.
21
provide any reason for opposing the transfer. United Grand
simply contends it was “standing on rights granted pursuant to
an injunction issued by Judge Borenstein in 2015” which
continued in effect. United Grand has not provided a record cite
for this injunction and so this claim is waived. (Nwosu v. Uba,
supra, 122 Cal.App.4th at p. 1246.)
Finally, in its reply brief, United Grand argues that Judge
Sotelo’s statement that United Grand committed post-judgment
misconduct by breaching the “the implied covenant of good faith”
is contrary to settled law. Because United Grand makes its claim
of error concerning the covenant of good faith for the first time in
its reply brief, we do not consider it.
“We will not ordinarily consider issues raised for the first
time in a reply brief. [Citation.] An issue is new if it does more
than elaborate on issues raised in the opening brief or rebut
arguments made by the respondent in respondent’s brief.
Fairness militates against allowing an appellant to raise an issue
for the first time in a reply brief because consideration of the
issue deprives the respondent of the opportunity to counter the
appellant by raising opposing arguments about the new issue.
[Citation.]” (American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 275–276.)
2. United Grand Has Not Shown
Misapportionment Of Blame
United Grand contends Judge Sotelo “laid the entire blame
for the litigation conduct on appellant Sanai” and that dismissal
of an action requires the fault to lie with the client alone. United
Grand is incorrect both legally and factually.
United Grand relies on the following quote to support its
claim: “Trial courts should only exercise this authority in extreme
22
situations, such as when the conduct was clear and deliberate,
where no lesser alternatives would remedy the situation
[citation], the fault lies with the client and not the attorney
[citation], and when the court issues a directive that the party
fails to obey.” (Del Junco v. Hufnagel (2007) 150 Cal.App.4th
789, 799, italics added.) This is simply a non-exclusive list of
extreme situations which justify dismissal as a sanction. The
court in Del Junco found both the party and her attorney were to
blame: “When [Hufnagel] had counsel, things did not improve. . . .
The actions of Hufnagel and her counsel were willful and
deliberate, caused unnecessary delay, and wasted the trial court’s
resources. The actions caused Dr. Del Junco to incur
unnecessary expense. Under these circumstances the trial court
had the jurisdiction to strike Hufnagel’s answer and enter
default.” (Id. at p. 800.)
The court in this case made the same finding of joint
misconduct. The court’s core reason for dismissal was that
“Through Plaintiff’s and Mr. Sanai’s misconduct, [the case] has
lost its essential character.” The court repeatedly stated that
misconduct was committed by “Plaintiff or Plaintiff’s lawyer, or
both.” United Grand points to nothing in the record showing that
Sanai was solely responsible for the extensive misconduct in this
case. Further, given the length of this case and the number of
appeals involved, it would be more than reasonable to infer that
United Grand was deliberately indifferent to whether its
litigation conduct was appropriate and it failed to adequately
discuss with its counsel the conduct of the litigation. (See
Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th
736, 743-744, 768.)
23
3. Sanai’s Legal Work Did Not Warrant A
Multiplier
United Grand contends generally that Judge Sotelo’s ruling
“demonstrates an absolute hostility to Plaintiff obtaining
contingent fees with a multiplier.” Based on the record before us,
the only multiplier warranted in this case would be a negative
one. (Rogel v. Lynwood Redevelopment Agency (2011) 194
Cal.App.4th 1319, 1330 [affirming negative multiplier “where the
record showed that the prevailing parties’ lawyer did little more
than duplicate pleadings filed in related cases”]; Thayer v. Wells
Fargo Bank, (2001) 92 Cal.App.4th 819, 834.)
To give just two examples of the quality of Sanai’s legal
work, he misspelled Stollof’s name on a form complaint even
though the correct spelling of her name appeared in documents
attached as exhibits to the complaint. He later had to bring a
motion to correct the judgment to reflect the correct spelling of
her name. Sanai’s first default judgment package for Malibu
Hillbillies was rejected because it listed two agents for service of
process. In granting Stollof’s motion to tax costs, Judge
Borenstein made it clear that he was unimpressed by not only the
quality of Sanai’s post-judgment work, but also the number of
hours of work claimed. Sanai sought more than 125 hours for the
3.5 months after the entry of the default judgments; Judge
Borenstein found only 14 hours were reasonable and necessary.
4. United Grand’s Collateral Estoppel Claim
Based On Stollof’s Status As Guarantor Of
Malibu Hillbillies Is Deemed Abandoned.
United Grand contends the dismissal of its prayer for
attorney fees demonstrates a “fundamental misunderstanding of
what was at issue.” United Grand argues because the default
24
judgment against Malibu Hillbillies was never vacated, collateral
estoppel and issue preclusion required that Stollof’s answer be
stricken or that she be required to pay the amount of the
judgment against Malibu Hillbillies to satisfy her obligation as
guarantor. United Grand maintains that Stollof could not satisfy
her obligation by simply paying the amount of unpaid rent plus
interest.
As Stollof points out, she and Malibu Hillbillies were
named separately as defendants in this action and were sued for
breach of two different agreements. Malibu Hillbillies was sued
for breach of the lease agreement and Stollof for breach of the
guaranty agreement. (See Talbott v. Hustwit (2008)
164 Cal.App.4th 148, 151 [“ ‘A contract of guaranty gives rise to a
separate and independent obligation from that which binds the
principal debtor.’ ”]; see also All Bay Mill & Lumber Co. v. Surety
Co. (1989) 208 Cal.App.3d 11, 17-18; accord, National Technical
Systems v. Superior Court (2002) 97 Cal.App.4th 415, 421-422.)
In reply, United Grand contends it never claimed issue
preclusion applied because Stollof was a guarantor of Malibu
Hillbillies. United Grand clearly made this argument at page 34
and pages 41 to 42 of its opening brief. In light of United Grand’s
repudiation of the argument in its reply brief, we will treat the
claim as abandoned.
United Grand does make a second and different issue
preclusion claim near the end of its brief; there it claims that
issue preclusion applies because Stollof is the sole member of
Malibu Hillbillies and so was in privity with it. We discuss that
claim post.
25
B. The Trial Court Had Jurisdiction To Strike The Prayer
For Attorney Fees.
United Grand’s second major section is entitled: “The Judge
Sotelo’s Orders Was Outside his Jurisdiction and An Improper
Effort to Extort Settlement.” This section makes little sense.
United Grand makes numerous references to documents in this
case, but provides only one record cited in six pages. The section
appears to have been cut and pasted from other documents. To
give just one example, United Grand writes, “By finding that this
is ‘misconduct’ this Court is collaterally attacking Judge
Borenstein’s order, which it cannot amend, and directly attacking
the appellate jurisdiction of the Court of Appeal.” Since “this
Court” is the Court of Appeal, United Grand’s argument makes
no sense. Further, the section is not presented in a logical or
sequential order. To give just one example, United Grand writes:
“Judge Sotelo’s judgment is void (and this ‘improper’, ‘irregular’
and an ‘abuse of discretion’) for three related reasons. Second,
the Court’s order explicitly seeks to punish Plaintiff . . . .”
We consider the three intelligible arguments United Grand
makes in this section.
First, United Grand appears to argue Judge Sotelo granted
a new trial as to Malibu Hillbillies and when he did, his actions
did not comply with statutory procedures for granting a new trial.
Judge Sotelo did not grant a new trial, or alter or amend United
Grand’s judgment against Malibu Hillbillies. The effect of his
order and judgment of dismissal as to Stollof only has the effect of
barring recovery against Stollof on the judgment against Malibu
Hillbillies. United Grand has not cited any legal authority to
support its argument that a bar to recovery from a guarantor
amounts to an alteration or amendment of the judgment against
26
the primary debtor. “In order to demonstrate error, an appellant
must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” (City of
Santa Maria v. Adam, supra, 211 Cal.App.4th at pp. 286–287.)
United Grand has failed to satisfy this requirement and its
argument is forfeited.
Next, United Grand claims Judge Sotelo lacked jurisdiction
to make the March 17, 2017 and April 11, 2017 orders because
they were made during the pendency of United Grand’s appeal
from Judge Rosenblatt’s order vacating the default judgment
against Stollof.
As Stollof accurately points out in her brief, United Grand
acknowledged in the trial court that “The primary example of
collateral matters not affected by a notice of appeal are awards of
attorney fees or sanctions. See Bankes v. Lucas (1992) 9
Cal.App.4th 365, 368 (‘Consequently, filing of a notice of appeal
does not stay any proceedings to determine the matter of costs
and does not prevent the trial court from determining a proper
award of attorney fees claimed as costs’); Silver v. Gold (1989)
211 Cal.App.3d 17, 26 (filing of notice of appeal of dismissal order
does not divest court of jurisdiction to award sanctions.)” Relying
on those cases, United Grand “filed a motion for ‘legal fees’
against David Cohen notwithstanding the pending appeal.”
United Grand has offered no explanation for its change of
position on this issue, and cites no law contrary to the cases it
cited earlier, quoted above. Under the reasoning of those two
cases, Judge Sotelo clearly had jurisdiction to issue his orders,
which involved the denial of attorney fees as a sanction for
misconduct.
27
Finally, United Grand argues “Judge Sotelo lacked
jurisdiction to impose attorney fees or eliminate their entitlement
without statutory authorization. Baugess v. Paine (1978)
22 Cal.3d 626. Judge Sotelo’s so-called ‘inherent power’ does not
include the power to impose monetary sanctions or deprive a
party of their right to request them, let alone deprive a party
from obtaining fees already authorized in a judgment affirmed by
the Court of Appeal.”
As a sanction, Judge Sotelo declined to award attorney fees.
Baugess does not discuss striking attorney fees. Judge Sotelo did
not impose monetary sanctions or deprive United Grand of its
right to request sanctions. Post-judgment attorney fees sought as
costs are not sanctions. Judge Sotelo’s order and judgment does
not bar United Grand from enforcing its judgment against
Malibu Hillbillies.
More generally, there can be no dispute that a trial court
has power to dismiss an entire action in extreme situations.
(Del Junco v. Hufnagel, supra, 150 Cal.App.4th at p. 799.) Judge
Sotelo found ample grounds to dismiss the entire complaint due
to United Grand’s and Sanai’s misconduct in prolonging the
litigation and requesting over $2 million in attorney fees. Judge
Sotelo’s limited dismissal of a portion of United Grand’s
complaint was an act of leniency. It is difficult to comprehend
United Grand is seriously arguing that Judge Sotelo could have
dismissed the entire action as to Stollof, but erred in dismissing
only a portion of it.
28
C. United Grand Has Forfeited Its Claim Of Inadequate
Notice Of The Trial Court’s Intent To Strike The Prayer
For Attorney Fees.
United Grand has entitled the third section of its brief “The
Trial Court Violated Due Process by Imposing Sanctions Without
Notice.” This section simply asserts, without citation to the
record, that no notice was given by Judge Sotelo.
United Grand received extensive procedural safeguards:
the trial court’s December 15, 2016 order informed United Grand
the court was setting a hearing for an OSC Why the Complaint as
Stollof Should Not Be Stricken; United Grand had an opportunity
to and did file a brief and it had an opportunity to be heard at the
hearing on the OSC. The trial court’s subsequent order set forth
in detail its basis for the terminating sanction. United Grand
makes no attempt to reconcile its bare claim of a due process
violation with these extensive procedural safeguards.
“In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.” (City of Santa Maria v.
Adam, supra, 211 Cal.App.4th at pp. 286–287.) United Grand
cites one case in this section, but then fails to “explain how it
applies in his case.” (See Hodjat v. State Farm Mutual
Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 (Hodjat).)
Accordingly, we treat the matter as forfeited.
II. UNITED GRAND HAS NOT SHOWN THE TRIAL
COURT ERRED IN DENYING ATTORNEY FEES ON
APPEAL OR IN DISSOLVING AN INJUNCTION.
In addition to appealing from the judgment of dismissal,
United Grand appeals from an order denying attorney fees on
appeal and an order dissolving an injunction.
29
A. United Grand’s Argument Concerning Denial Of
Attorney Fees By Judge Moreton Is Unintelligible And
Is Forfeited.
United Grand entitled the fifth section of its brief: “It Was
Error to Deny Contractual Attorney Fees to Plaintiff.” This
section appears to consist of a mash-up of two claims: (1) Judge
Sotelo lacked jurisdiction “to overturn the judgement” entered by
Judge Rosenblatt, and (2) Judge Moreton erred in denying
attorney fees at some unspecified time during the case. The
argument concerning Judge Sotelo presumably relates to the
judgment of dismissal. The reference to Judge Moreton may
involve the order denying attorney fees on appeal which United
Grand mentions in its statement of appealability. If so, these two
arguments do not belong under the same general heading.
The argument concerning Judge Sotelo consists of two
sentences, both of which assert that the judge overturned or
vacated the judgment by striking a portion of the complaint. In
fact, Judge Rosenblatt vacated the judgment as to Stollof long
before Judge Sotelo became involved in this case. “In order to
demonstrate error, an appellant must supply the reviewing court
with some cogent argument supported by legal analysis and
citation to the record.” (City of Santa Maria v. Adam, supra,
211 Cal.App.4th at pp. 286–287.) United Grand has failed to
meet this burden. We are not obliged to speculate about the
arguments United Grand intended to raise. (Opdyk v. California
Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.)
United Grand’s argument concerning Judge Moreton is less
developed. United Grande asserts: “Judge Moreton’s order
denying contractual attorney fees based on the rulings of the two
other judges was void, because it relied upon the validity of a void
30
order. It was also wrong, because the orders of these judges were
void, voidable and erroneous.” United Grand provides no record
cite for its argument concerning Judge Moreton, and so has
forfeited this claim. (Nwosu v. Uba, supra, 122 Cal.App.4th at p.
1246.)5
In addition to the lack of appropriate headings, record
citations and fact-based arguments in this section, there is also a
dearth of legal authority. United Grand cites one case in this
section, but then fails to “explain how it applies in his case.” (See
Hodjat, supra, 211 Cal.App.4th at p.10.) Accordingly, we treat
the matter as forfeited.
B. United Grand Has Forfeited Its Claim Concerning The
Injunction
At one point in the proceedings, the trial court issued an
injunction prohibiting Stollof from withdrawing the funds she
had deposited at the state court in Maryland. The trial court
later dissolved the injunction once the funds were redeposited
5 In United Grand’s statement of the case, United Grand
mentions Judge Moreton in connection with a statement that
United Grand was the prevailing party on the appeal in case No.
B270076 and so entitled to attorney fees. United Grand was not
the prevailing party in that appeal. United Grand sought
reversal of the trial court’s order vacating the default judgment
against Stollof. We affirmed that order. We found Stollof
entitled to costs on appeal. United Grand’s argument “fail[s] to
disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.” (City of Santa Maria v. Adam,
supra, 211 Cal.App.4th at p. 287.) Again, we are not required to
speculate about the arguments United Grand intended to raise.
(Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at
pp. 1830-1831, fn. 4.)
31
with the Los Angeles County Superior Court. United Grand’s
entire argument on this topic consists of the following statement:
“Judge Sotelo vacated the injunction against removing money
from the account in Maryland, presumably based on his finding
that the [sic] order was wrong, and the injunction should be
reimposed.” This argument is completely inadequate. “In order
to demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal analysis and
citation to the record.” (City of Santa Maria v. Adam, supra, 211
Cal.App.4th at pp. 286–287.) United Grand has failed to meet
this burden. We are not obliged to speculate about the
arguments United Grand intended to raise. (Opdyk v. California
Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.)
United Grand has forfeited this argument
III. UNITED GRAND’S ATTEMPTS TO RAISE OTHER
ISSUES ARE BARRED
A. United Grand Has Forfeited Its Argument That Claim
Or Issue Preclusion Applies To Stollof Due To Privity.
United Grand literally repeats its argument, first made on
appeal in case No. B270076, that claim or issue preclusion apply
to Stollof as the “sole member” of Malibu Hillbillies, a limited
liability corporation, including its no longer cognizable argument
that vacating the default judgment against Stollof was improper.
It again argues Stollof should not be permitted to file an answer
denying allegations admitted by Malibu Hillbillies. It adds: “This
is one of the issues which should have been litigated at trial, but
which the trial court’s erroneous judgment prevented from being
litigated. This Court declined in addressing the issue in the prior
appeal, but it must permit Plaintiff the right to litigate at trial.”
32
Appellant’s summary of our prior opinion is not quite
accurate. We held in our prior opinion that “Appellant provides
no authority for the proposition that respondent should be bound
by the admissions of another party, based on ‘privity’ or
otherwise.” (United Grand Corp. v. Stollof (July 6, 2017,
B270076) [nonpub. opn.], at [p. 16].) Appellant has not remedied
that defect in this appeal: it has simply cut and pasted the
privity argument from its brief in the earlier appeal without any
new authority.
Were we to address this claim anew, we would find
fundamental problems with United Grand’s argument that issue
preclusion could play any role in this case at all. Collateral
estoppel traditionally applies to second or successive actions
between the same parties or parties in privity with them.
(Border Business Park, Inc. v. City of San Diego (2006)
142 Cal.App.4th 1538, 1563 [claim preclusion “operates as a bar
to the maintenance of a second suit” while issue preclusion
“ ‘ “precludes a party to an action from relitigating in a second
proceeding matters litigated and determined in a prior
proceeding.” ’ ” (internal quotation marks omitted)]; see also
People v. Barragan (2004) 32 Cal.4th 236, 253.)6 This is not a
6 This is not an absolute rule. “The California Supreme
Court and Courts of Appeal have expressed doubt that the
doctrine of collateral estoppel applies in further proceedings in
the same litigation . . . . The issue, however, has not been
resolved definitively.” (People v. Yokely (2010) 183 Cal.App.4th
1264, 1273; People v. Barragan, supra, 32 Cal.4th at p. 253
[noting court has not yet decided whether collateral estoppel
“ ‘even applies to further proceedings in the same litigation.’ ”].)
33
successive action; it is the original action. Further, United Grand
fails to provide legal authority to support its claim that the
doctrine of privity should be applied to Stollof. Generally, the
doctrine of privity is used to bind non-parties to the initial action.
(See Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14
Cal.App.5th 663, 672–673.) Stollof has always been a party to
this action.
B. Further Objections To The Appellate Decision B279215
Are Stricken.
On July 13, 2018, while this appeal was pending, we issued
our opinion in appeal No. B279215. In that opinion, we applied
the disentitlement doctrine to dismiss United Grand’s appeal
from the trial court’s April 29, 2016 order directing United Grand
to file a code-compliant acknowledgement of satisfaction of
judgment and to pay certain attorney fees. United Grand filed a
petition for rehearing, claiming inter alia that our dismissal was
void. We denied the petition. United Grand filed a petition for
review with the California Supreme Court, contending inter alia
that our dismissal was void. On September 26, 2018, the Court
denied review. (S250791.)
United Grand does not acknowledge the unsettled state of
the law, or provide any argument to support a resolution of this
open question. “[A]n appellant is required to not only cite to valid
legal authority, but also explain how it applies in his case.”
(Hodjat, supra, 211 Cal.App.4th at p. 10.) “[W]e may disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.” (City of Santa
Maria v. Adam, supra, 211 Cal.App.4th at p. 287.) We do so with
United Grand’s claim of collateral estoppel.
34
In his October 22, 2018 reply brief in this matter, United
Grand again contends our dismissal of B279215 was void. There
are many reasons this argument is improper. United Grand has
already made the permitted procedural challenges to our
decision, and those challenges have been denied. There is no
legal basis for an appeal from a prior appeal in the same court. It
is difficult to characterize this argument as anything other than
frivolous. On our own motion, we order the argument stricken
from United Grand’s reply brief.
IV. THE APPEAL OF THE FEBRUARY 2017 SANCTION
ORDERS IS DISMISSED
United Grand’s counsel Cyrus Sanai appeals from Judge
Borenstein’s February 2017 orders imposing sanctions. Stollof
has moved to dismiss the appeal under the disentitlement
doctrine. We agree disentitlement is warranted as to Sanai’s
appeal from the sanctions orders. We dismiss his appeal of the
sanctions orders.
“An appellate court has the inherent power, under the
‘disentitlement doctrine,’ to dismiss an appeal by a party that
refuses to comply with a lower court order.” (Stoltenberg v.
Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229.)
“ ‘Appellate disentitlement “is not a jurisdictional doctrine, but a
discretionary tool that may be applied when the balance of the
equitable concerns make it a proper sanction . . . .” [Citation.]’
[Citation.] No formal judgment of contempt is required; an
appellate court ‘may dismiss an appeal where there has been
willful disobedience or obstructive tactics. [Citation.]’ [Citation,
italics added.) The doctrine ‘is based upon fundamental equity
and is not to be frustrated by technicalities.’ ” (Id. at p. 1230,
internal quotation marks omitted.)
35
The “disentitlement doctrine ‘is particularly likely to be
invoked where the appeal arises out of the very order (or orders)
the party has disobeyed.’ ” (Ironridge Global IV, Ltd. v.
ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265.) “[T]he
merits of the appeal are irrelevant to the application of the
doctrine.” (Ibid.)
Here, there has been a finding of contempt. On March 21,
2018, Judge Borenstein held a trial on the contempt charge and
found Sanai guilty. The matter was continued to March 26, 2018
for sentencing. Sanai was released on his own recognizance.
On March 26, 2018, the court ordered: “Mr. Sanai shall be
imprisoned in the Los Angeles County jail until he performs the
acts specified in the Court’s orders dated February 2 and
February 22, 2017; and [¶] 2. Pursuant to Civil Procedure Code
§1218(a), Mr. Sanai shall pay to D. Joshua Staub reasonable
attorneys’ fees and costs incurred in connection with the
contempt proceedings. [¶] 3. Execution of this sentence is stayed
until 4 pm on April 13, 2018, at which time Mr. Sanai shall
surrender at the Inmate Reception Center at the Los Angeles
County Jail, until a further stay is granted.”
On April 12, 2018, Sanai filed a “Petition for writ of
mandate; habeas corpus or other appropriate relief.” (B289357)
On April 23, 2018, we denied Sanai’s request to stay the trial
court’s March 26, 2018 order sentencing Sanai for contempt of
court. On March 4, 2019, we denied the petition, which
challenges both the underlying February 2017 sanctions orders
and the contempt proceedings.
Sanai did not report to jail and the trial court issued a
bench warrant for his arrest. He is currently a fugitive from
justice. He has willfully disobeyed the trial court’s order. Under
36
the circumstances he is not entitled to challenge the sanctions
orders on appeal.
DISPOSITION
Sanai’s appeal from the February 2017 sanctions orders is
dismissed. The judgment is affirmed in all other respects. Stollof
is entitled to recover her costs on appeal.
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
37
Filed 6/12/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
UNITED GRAND CORPORATION, B283833
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC554172)
v.
MALIBU HILLBILLIES, LLC, et al.,
ORDER CERTIFYING OPINION
Defendants and Respondents; FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
CYRUS SANAI,
Objector and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on May 22,
2019, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
[There is no change in the Judgment.]
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GRIMES, Acting P. J. STRATTON, J. WILEY, J.