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Plaintiff Dan Fingerman's motion for sanctions against defendants Capital One and James Kaufmann for violations of CCP § 128.7, for filing frivolous affirmative defenses
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Dan Fingerman In Propria Persona Mount & Stoelker, P.C. RiverPark Tower, Suite 1650 333 West San Carlos Street San Jose CA 95110-2740 Phone: (408) 279-7000 Fax: (408) 998-1473 Email: [email protected]
Superior Court of California Santa Clara County, Unlimited Jurisdiction
Dan Fingerman,
Plaintiff,
vs.
Capital One N.A., James Kaufmann, and DOES 1–100
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 1-08-CV-127344
Motion for Sanctions for Violations of CCP § 128.7
Date: January 26, 2010 Time: 9:00 a.m. Dept.: 1 Judge: Honorable James Kleinberg
Case No. 1-08-CV-127344 Motion for Sanctions for Violations of CCP § 128.7
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Notice of Motion
To all parties and their counsel of record:
Notice is hereby given that on January 26, 2010 at 9:00 a.m., or as soon thereafter as the
matter may be heard, in Dept. 1 of this court, located at 191 North First Street, San Jose CA 95113,
Plaintiff Dan Fingerman will, and hereby does, move for an order (1) striking the answers of Capital
One N.A. ("Capital One") and James Kaufmann or, in the alternative, striking certain or all of the
affirmative defenses of Capital One and Mr. Kaufmann and (2) imposing sanctions against Capital
One, Mr. Kaufmann, and their counsel of record Doll Amir & Eley LLP and Hemmy So in an amount
at least sufficient to compensate Plaintiff for their violations of CCP § 128.7. At present, that amount
is $3,078.02. That amount will grow if the defendants do not promptly withdraw their defenses or
oppose this motion. This motion is based on this Notice, other papers submitted in support of hereof,
the arguments and evidence submitted by the parties, including at oral argument, and all other
pleadings and matters of record in this action.
Date: November 13, 2009 Dan Fingerman, Plaintiff
Z:\CLIENTS\F CLIENTS\Finge001\Attorney_Notes\Drafts\128.7\Motion For Sanctions.doc
Case No. 1-08-CV-127344 Page i Motion for Sanctions for Violations of CCP § 128.7
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Table of Contents
Introduction............................................................................................................................................1
Argument ...............................................................................................................................................1
I. Background: California's Invasion of Privacy Act.............................................................................1
II. Eleven Affirmative Defenses Asserted By Both Defendants Are Frivolous ....................................3
A. The defendants' admitted that no factual basis exists for half their defenses .............................3
B. The defendants reneged on their agreement and have refused to withdraw any defenses..........4
C. The "Release" defense has no factual basis ................................................................................4
III. Sanctions Are Required to Deter Assertion of Frivolous Defenses ................................................5
Case No. 1-08-CV-127344 Page 1 Motion for Sanctions for Violations of CCP § 128.7
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Introduction
This case involves telephone calls that Capital One and James Kaufmann recorded illegally.
California's Invasion of Privacy Act prohibits recording of confidential conversations without the
consent of all parties. The defendants violated the Act by recording Plaintiff's phone calls without his
consent.
The defendants filed identical answers, each asserting a general denial and 22 affirmative
defenses. Eleven of those defenses are frivolous. The defendants' counsel initially admitted that no
facts exist to support those 11 defenses, and the defendants agreed to withdraw ten of them. Months
passed, and the defendants have reneged on that agreement and refused to withdraw their frivolous
defenses.
Litigants may not file or pursue pleadings without factual support, and attorneys may not sign
or pursue pleadings without factual support.1 The defendants and their counsel violated CCP § 128.7
at least twice — first by filing answers that contain affirmative defenses with no factual basis, and
second by pursuing them, when they failed to withdraw them.
The court has the authority to impose sanctions designed to deter such conduct by the
offending parties and by other, similarly-situated litigants. A sanction of striking the defendants'
answers is warranted because half of each answer is admitted to be frivolous. The statute expressly
authorizes sanctions designed to deter future conduct by others, and this court should send a message
— that egregious abuses of the litigation process will not be tolerated. In the alternative, the court
should strike the 11 frivolous defenses identified in this motion. In either scenario, the court should
also impose a monetary sanction in an amount at least sufficient to compensate Plaintiff for the costs
he incurred as a result of the violations of CCP § 128.7. As of the date of this motion, that amount is
$3,078.02. That amount will grow if the defendants do not promptly withdraw their defenses or
oppose this motion.
Argument
I. Background: California's Invasion of Privacy Act
The Invasion of Privacy Act was enacted in 1967 to address a rising trend of intrusions upon
1 California Code of Civil Procedure ("CCP") § 128.7
Case No. 1-08-CV-127344 Page 2 Motion for Sanctions for Violations of CCP § 128.7
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the liberty of Californians.2 The preamble explains the repugnance in California's public policy "that
advances in science and technology have led to the development of new devices and techniques for
the purpose of eavesdropping upon private communications and that the invasion of privacy resulting
from the continual and increasing use of such devices and techniques has created a serious threat to
the free exercise of personal liberties and cannot be tolerated in a free and civilized society."3
"The purpose of the act was to protect the right of privacy by, among other things, requiring
that all parties consent to a recording of their conversation."4 The making of a recording, standing
alone, is an invasion of privacy — and, therefore, a violation of the Act — even if the recording is
never used or disseminated.5 Since "invasion of privacy involves an affront to human dignity,"6 the
legislature defined the mere making of a recording to be per se injurious,7 even if no "actual
damages" are suffered or threatened.8 The invasion, standing alone, is defined to be harmful, so the
statute requires only that a plaintiff plead the bare fact of the invasion itself.9
The legislature also recognized that civil actions are a key enforcement mechanism for
privacy invasions and that proving money damages may be difficult if an illegal recording is not used
or disseminated.10 Still, the legislature intended "that no violation of the privacy act is to go
unpunished" and concluded that each intrusion "is worth at least $3,000."11 The legislature has since
increased its estimate of the harm to $5,000 for each invasion.12 Thus, the Act provides that a
prevailing plaintiff may recover the greater of: (1) a "minimum damages award" of $5,000 per
invasion or (2) three times his "actual damages".13 The "minimum damages award" accrues
2 Stats. 1967 ch. 1509 § 1, pp. 3584–3588, enacting Cal. Penal Code §§ 630–637.2; see also Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95, 115–116 (2006); Flanagan v. Flanagan, 27 Cal. 4th 766, 768–69 (2002) (citing Van Boven, Electronic Surveillance in California: A Study in State Legislative Control, 57 Cal. L. Rev. 1182 (1969) ("Van Boven")) 3 Cal. Penal Code § 630 (preamble to the Invasion of Privacy Act, Cal. Penal Code §§ 630 – 638); see also Montalti v. Catanzariti, 191 Cal. App. 3d 96, 99 (1987) (discussing the legislative purpose of the Act) 4 Flanagan, 27 Cal. 4th at 769 5 See e.g., Shulman v. Group W Productions Inc., 18 Cal. 4th 200, 234–35 (2000) (citing Warden v. Kahn, 99 Cal. App. 3d 805, 813–14 (1979)); Coulter v. Bank of America National Trust & Savings Assn., 28 Cal. App. 4th 923 (1994) 6 Cal. Penal Code § 630 7 Cal. Penal Code § 637.2(a) 8 Cal. Penal Code § 637.2(c) 9 Friddle v. Epstein, 16 Cal. App. 4th 1649, 1660–61 (1993) (discussing Cal. Penal Code § 637.2(c)) 10 See e.g., Lieberman v. KCOP Television Inc., 110 Cal. App. 4th 156 (2003) 11 Friddle, 16 Cal. App. 4th at 1660–61 12 Stats. 1992, ch. 298, § 11; Friddle, 16 Cal. App. 4th at 1658, note 6 13 Cal. Penal Code § 637.2(a); Friddle, 16 Cal. App. 4th at 1660–61 (discussing the legislature's intent in the Invasion of Privacy Act and citing Van Boven, 57 Cal. L. Rev. at 1252); see also Ribas v. Clark, 38 Cal. 3d 355, 364–65 (1985)
Case No. 1-08-CV-127344 Page 3 Motion for Sanctions for Violations of CCP § 128.7
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separately for each illegal recording, not merely once for a whole course of conduct.14 Other
recoverable "actual damages" include "legal expenses in attempting to recover the recording."15
II. Eleven Affirmative Defenses Asserted By Both Defendants Are Frivolous
The defendants filed identical answers on June 22, 2009. Each answer is signed by the
defendants' counsel, Hemmy So of the law firm Doll Amir & Eley LLP.16 Each answer asserts a
general denial, followed by 22 affirmative defenses.17 All of the defenses lack merit, but 11 of them
— half of each answer — are so frivolous that the defendants' counsel candidly admitted that they
lacked any factual basis when the parties met and conferred.
A. The defendants' admitted that no factual basis exists for half their defenses
Plaintiff met and conferred with the defendants about this motion by letter on July 7 and by
telephone on July 27, 2009.18 The reasons why those defenses are frivolous are summarized in
Plaintiff's July 7 letter to Hemmy So, the defendants' counsel.19 During the July 27 telephone call,
Ms. So acknowledged that no factual basis exists for all 11 challenged defenses for the reasons stated
in Plaintiff's July 7 letter.20 During that call, the defendants refused to withdraw one of the
challenged defenses but did agreed to withdraw these ten:21
• Statute of Limitations (2d defense)
• Laches (4th defense)
• Excessive Damages (9th defense)
• Lack of Standing (12th defense)
• Failure to Join Indispensable Parties (19th defense)
• Defenses based on contract:
o Impossibility and Impracticality (13th defense)
o Frustration of Purpose (14th defense)
o Prior Breach of Agreements (15th defense)
o Lack of Mutual Consent (16th defense)
o Voidable Contract (21st defense) 14 Coulter, 28 Cal. App. 4th at 935; CashCall Inc. v. Superior Court, 159 Cal. App. 4th 273, 293 n 11 (2008) 15 Lieberman, 110 Cal. App. 4th at 167 16 Fingerman Declaration at ¶ 2 and Exhibits 2 and 3 17 Fingerman Declaration Exhibits 2 and 3 18 Fingerman Declaration at ¶¶ 4–6 19 Fingerman Declaration at ¶ 4 and Exhibit 4 20 Fingerman Declaration at ¶¶ 6–10 and Exhibit 4 21 Fingerman Declaration at ¶¶ 6–10
Case No. 1-08-CV-127344 Page 4 Motion for Sanctions for Violations of CCP § 128.7
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By asserting these defenses with no factual basis, each defendant violated CCP § 128.7. By
signing the answers and presenting them to the court for filing, Ms. So and Doll Amir & Eley LLP
violated CCP § 128.7. These violations might have been cured by withdrawal of the defenses — but
the defendants reneged on their agreement to withdraw them.
B. The defendants reneged on their agreement and have refused to withdraw any defenses
In the months since July 27, 2009, the defendants have taken no steps to withdraw any
defenses.22 Plaintiff reminded Ms. So of their agreement to withdraw their defenses on October 28,
2009.23 Ms. So acknowledged that the defenses should be withdrawn and represented that they
would be withdrawn promptly.24 Again, since October 28, 2009 the defendants have taken no steps
to withdraw any defenses.
This reneging on the agreement and failure to withdraw the defenses constitutes a second
decision by the defendants and their counsel to pursue the defenses. This is a separate and
independent violation of CCP § 128.7 by the defendants and their counsel.
C. The "Release" defense has no factual basis
The only challenged defense that the defendants did not commit to withdraw was the 18th
defense, titled "Release".25 This defense states: "Plaintiff's claims are barred by any release and/or
releases executed by Plaintiff and individuals, firms, corporations, or entities other than Plaintiff."26
When the parties met and conferred on July 27, 2009, Ms. So admitted that: (1) Ms. So has no
knowledge of any fact that supports the Release defense, and (2) to her knowledge, neither defendant
has knowledge of any fact that supports the Release defense.27 The defendants have made no attempt
to justify their assertion of the Release defense and their refusal to withdraw it during any meet &
confer session.
Ms. So attempted to justify her personal reluctance to withdraw the Release defense but
carefully articulated that these are reasons held by her personally, and not the defendants.28 Ms. So's
22 Fingerman Declaration at ¶¶ 11–14 23 Fingerman Declaration at ¶ 12 24 Fingerman Declaration at ¶ 12 25 Fingerman Declaration at ¶¶ 6–10 26 Fingerman Declaration at ¶ 7 and Exhibits 2 and 3 27 Fingerman Declaration at ¶¶ 8–9 28 Fingerman Declaration at ¶ 9
Case No. 1-08-CV-127344 Page 5 Motion for Sanctions for Violations of CCP § 128.7
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two stated reasons were: (1) as defense counsel, she is conservative, and she likes to preserve as
many defenses as possible by asserting them in answers, in case they turn out to be valid; and (2) she
could conceive of a hypothetical set of facts in which a release might exist.29 However, Ms. So could
identify no fact or document that she reasonably expected to surface during discovery to support the
Release defense.30
Before the end of the July 27 meet & confer call, Ms. So agreed that the defendants would
reconsider whether the Release defense would be withdrawn and that she would inform Plaintiff of
their decision.31 In the months since July 27, Ms. So has made no attempt to communicate with
Plaintiff again concerning the Release defense. During the October 28 meet & confer call, Ms. So
represented that the defendants had not reconsidered the Release defense.32
By asserting the Release defense with no factual basis, each defendant violated CCP § 128.7.
By signing the answers and presenting them to the court for filing, Ms. So and Doll Amir & Eley
LLP violated CCP § 128.7. These violations might have been cured by withdrawal of the Release
defense, if the defendants had withdrawn it. However, the Release defense has not been withdrawn.
This refusal to withdraw the Release defense constitutes a second decision by the defendants and
their counsel to pursue the Release defense. This is a separate and independent violation of CCP
§ 128.7 by the defendants and their counsel.
III. Sanctions Are Required to Deter Assertion of Frivolous Defenses
Section 128.7 of the Code of Civil Procedure empowers the court to impose sanctions for
their conduct. The sanction should be "sufficient to deter repetition of this conduct or comparable
conduct by others similarly situated."33 The statute gives the court broad discretion to determine an
appropriate sanction.
In this case, striking the defendants' answers is an appropriate sanction. This is not a case
where one incorrect defense was included by mistake among others that were valid. Rather the
defendants and their counsel filed answers that were fully half frivolous. Worse, the defendants
29 Fingerman Declaration at ¶ 9 30 Fingerman Declaration at ¶ 9 31 Fingerman Declaration at ¶ 10 32 Fingerman Declaration at ¶ 12 33 CCP § 128.7(d)
Case No. 1-08-CV-127344 Page 6 Motion for Sanctions for Violations of CCP § 128.7
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admitted having no factual basis for half their answers, yet they still refuse to withdraw them.
Litigants and their counsel owe a duty of candor to the court, and the court cannot permit a pleading
to stand when half the pleading has been admitted frivolous. The court must send a message to deter
"comparable conduct by others similarly situated" — that message is that the litigation process
cannot be abused so egregiously.
In the alternative, if the court does not strike the both defendants' answers, the court should
strike at least the portions that are frivolous. Thus, in the alternative, the court should strike at least
the 11 frivolous defenses identified in this motion.
In either scenario, the court should also impose monetary sanctions against both defendants
and their counsel. The amount of the monetary sanctions should be at least enough to compensate
Plaintiff for the costs incurred to deal with the violations of CCP § 128.7. As of the date of this
motion, that amount is $3,078.02. That amount will grow if the defendants do not promptly
withdraw their defenses or oppose this motion.
Date: November 13, 2009 Dan Fingerman, Plaintiff
Proof of Service; Case No. 1-08-CV-127344 Page 1
Case No. 1-08-CV-127344 Proof of Service
I am a citizen of the United States, over the age of 18. I am familiar with my employer's usual business practice for collection and processing of correspondence, including for mailing via the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service on the same day of the collection in the usual course of business. My business address is Mount & Stoelker, P.C.; RiverPark Tower, Suite 1650; 333 W. San Carlos Street; San Jose CA 95110-2740.
On the date set forth below, following ordinary business practice, I served the document(s) listed below, as follows:
(1) Motion for Sanctions for Violations of CCP § 128.7
Persons Served: Attorneys For: Defendants Capital One N.A. and James Kaufmann Hunter R. Eley, Esq.; Ronald M. St. Marie, Esq.; Hemmy So, Esq. Doll Amir & Eley; 1888 Century Park East, Ste. 1106; Los Angeles CA 90067 Fax: (310) 557-9101 Email: [email protected]; [email protected]; [email protected]; [email protected]
Electronic Mail. I caused such document(s) to be transmitted via electronic mail on this date to the email addresses listed above, pursuant to agreement among the parties.
Mail. I caused such document(s), placed in sealed envelope(s) with prepaid postage thereon, to be placed in the U.S. mail at San Jose, California.
Overnight. I caused such document(s), placed in sealed package(s) with prepaid postage thereon, to be delivered to an overnight courier at San Jose, California.
Fax. I caused such document(s) to be transmitted by facsimile transmission on this date to the offices of the addressee(s), at the fax numbers indicated above.
Personal Service. I caused such document(s), placed in sealed package(s), to be delivered by hand this date to the office(s) of the addressee(s), as set forth above.
I declare under penalty of perjury under the laws of the United States and the State of California that the above is true and correct, to the best of my knowledge. Executed on the date set forth below.
Date: November 13, 2009 Dan Fingerman
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![COURTROOM CONTROL: CONTEMPT AND …xa.yimg.com/kq/groups/1895676/885089917/name/JudgesContemptHandbk+...Sanctions Under CCP §128.7 5. ... [§3.80] Postjudgment Motion for Sanctions](https://img.pdfslide.us/doc/110x75/5b4bb6d27f8b9aa82c8cf9db/courtroom-control-contempt-and-xayimgcomkqgroups1895676885089917namejudgescontempthandbksanctions.jpg)
