San Miguel Joint Union Motion for Sanctions
Andréa Marcus (State Bar No. 188098)
Law Offices of Andréa Marcus
133 De La Guerra Street, #143
Santa Barbara, CA 93101-2247
Telephone: (805) 687-6455
Fax: (888) 215-9021
Attorney for SEAN S.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN LUIS OBISPO
|SAN MIGUEL JOINT UNION SCHOOL DISTRICT
CALIFORNIA DEPARTMENT OF EDUCATION
Real Party In Interest.
|CASE NO.: CV071147
REAL PARTY’S DECLARATION AND MOTION TO STRIKE PETITIONER’S [PROPOSED] ORDER GRANTING ATTORNEYS’ FEES AND COSTS, AND REQUEST FOR SANCTIONS AGAINST SAN MIGUEL JOINT UNION SCHOOL DISTRICT, AND/OR ITS COUNSEL
I, Andréa Marcus, declare as follows:
I am an attorney licensed to practice in the State of California and I am the attorney of record for Student, named Real Party in Interest in this litigation. I know the following of my own personal knowledge, and if called to testify, could and would testify competently thereto.
The court filed its Tentative Ruling granting Real Party’s Motion on December 29, 2008.
Having considered all of the evidence and argument, oral and documentary, submitted in support and in opposition to the Motion, and based on the evidence provided by Real Party, the court has adopted its tentative ruling granting fees and costs, as modified on December 30, 2008. Said ruling was served by mail by the court clerk on December 31, 2008, and received by Attorney for Real Party on January 8, 2009.
The court having found in its ruling that Real Party was the prevailing party, and is entitled to fees and costs as described therein, this court ordered “Ms. Marcus [counsel for Real Party In Interest]” (hereinafter, “counsel for Real Party”) to submit an appropriate form of order for review and approval by Ms. Inman (hereinafter, “counsel for the District). Pursuant to Rule of Court 3.1312(a) & (b), Ms. Marcus prepared and served both counsel for the District, as well as Gabriel C. Vivas, counsel for the California Department of Education, copies of her “[PROPOSED] ORDER AWARDING REAL PARTY’S ATTORNEY’S FEES AND COSTS; PROOF OF SERVICE Cal. Rules of Court 3.1312.” This document was served to counsel for the District via fax, on January 12, 2008 at 11:07am.
Pursuant to California Rule of Court 3.1312(a), the District’s failure to notify Ms. Marcus’s office of any disapproval of the Proposed Order within 5-days, is deemed approval of said Proposed Order.
Now, the District asserts that it failed to receive the “PROPOSED ORDER. . .” of January 12, and is attempting to file its own, claiming that it is doing so “pursuant to the court’s order.” However, this court ordered Ms. Marcus to file the Proposed Order, not the District’s counsel. Further, pursuant to California Rule of Court 3.1312(a) not only is such Order is to be filed by the prevailing party, the “[Proposed] Order. . .” that the District now attempts to file, is untimely:
“Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court’s order.” California Rule of Court 3.1312(a).
Ms. Marcus received this court’s ruling on January 8, and her proposed order was therefore timely delivered to Ms. Inman for approval via articulated approval, or approval by default from lack of communication from Ms. Inman. Under the Rule cited above, Ms. Inman “approved” Ms. Marcus’s proposed order by default.
Ms. Inman’s actions on behalf of the District are disingenuous as Ms. Marcus has provided the court with proof of service to Ms. Inman on January 12, 2009 (via email to Ms. Tetley), and is therefore meant to mislead the court; Ms. Inman’s misrepresentation to the court is further meant to harass Real Party, as she is fully aware that responding to such misrepresentation requires the utilization of the scarce resources of a solo practitioner who represents economically disadvantaged children, who will receive no further fees for her time on this case. Such filing is also meant to cause unnecessary delay, as the court’s final order in this case is suspended while it must waste time determining these unnecessary subsequent filings.
28 U.S.C. §1927, provides that any “attorney who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs …” In United States v. Ross, 535 F.2d 346 (6th Cir.1976), the court defined vexatious conduct as “lacking justification and intended to harass.” 535 F.2d at 346. Generally, an attorney 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, 62 CR2d 865, 867]. The person presenting the paper to the court impliedly certifies that: 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.
Here, the filing of an additional “ORDER. . .” (where the court has requested none from counsel for the District), beyond the period provided for such filing by the prevailing party as per California Rule of Court 3.1312(a), instead of timely responding to counsel for Real Party’s “PROPOSED ORDER. . . “ is clearly meant to delay payment of ordered attorneys’ fees and costs to Real Party. It is particularly harassing where it omits portions of great importance, such as the provision that the fees shall be paid within 30-days of said order, and payment for incurred in lodging, meals, supplies, shipping/postage, photocopying and filing fees, as provided for in the court’s ruling, totaling $2416.13.
Therefore, counsel for Real Party respectfully requests that counsel for the District’s “Order Granting Motion for Attorneys’ Fees and Costs,” be stricken, and that counsel for the District be sanctioned in the amount of $455.00 for the 1.3 hours it has taken counsel for Real Party to respond to this frivolous filing, and $79.00, which is the amount counsel for Real Party will have to pay AAA Legal Services to file this pleading with the court, for a total of: $534.00.
I declare, under penalty of perjury, that the foregoing is true, and respectfully submit this motion to the court for its consideration.
Attorney for Real Party, Sean S.
PROOF OF SERVICE BY FASCIMILE:
I am employed in the county of Santa Barbara, State of California. I am over the age of 18 years of age and am not a party to the within action; my business address is 133 East De La Guerra Street, #143, Santa Barbara, California. I served the following document via facsimile: REAL PARTY’S DECLARATION AND MOTION TO STRIKE PETITIONER’S [PROPOSED] ORDER GRANTING ATTORNEYS’ FEES AND COSTS, AND REQUEST FOR SANCTIONS AGAINST SAN MIGUEL JOINT UNION SCHOOL DISTRICT, AND/OR ITS COUNSEL, on the following parties:
Schools Legal Service
PO Box 2445
Bakersfield, CA 93303
|Gabriel C. Vivas
Deputy General Counsel
California Department of Education
1430 N Street, Suite 5319
Sacramento, CA. 95814
Office: (916) 319-0860
FAX: (916) 319-0155
I faxed these documents by telephone.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration is executed at Santa Barbara, California, on the date set forth below.
LAW OFFICES OF ANDRÉA MARCUS
DATE: January 27, 2009
BY: ANDRÉA MARCUS
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