Filed 6/15/15 Ledesma v. JP Morgan Chase CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GLEN LEDESMA, et al., B254614
Appellants, (Los Angeles County
Super. Ct. No. SC121080)
v.
JP MORGAN CHASE, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J.
Goodman, Judge. Affirmed.
Stephen F. Lopez for Appellants.
Attlesey | Storm and Suzanne S. Storm for Defendants and Respondents SFS
Equities, LLC and Roxcar, LLC.
_____________________________
As a sanction under Code of Civil Procedure1 section 128.7, subdivisions (b)(1)
and (b)(3), the trial court struck plaintiff Glen Ledesma’s complaint with prejudice and
ordered Ledesma and his attorney, Joseph DeClue, to pay sanctions in the amount of
$60,000. Ledesma and DeClue appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After years of litigation concerning the foreclosure of Ledesma’s property on
Roxbury Drive in Beverly Hills, Ledesma filed the instant suit on July 25, 2013, against
JP Morgan Chase Bank, SFS Equities, LLC and Roxcar, LLC. Ledesma asserted claims
for wrongful foreclosure and a violation of Civil Code section 2923.6, and sought to quiet
title to real property.
A. Initial Motion for Sanctions
In September 2013, defendants SFS Equities and Roxcar filed demurrers to the
complaint and moved for sanctions in the amount of $75,000 against Ledesma and
DeClue pursuant to section 128.7. Prior to the scheduled hearing, the court issued a
tentative ruling indicating its preliminary conclusion that the motion was meritorious;
that Ledesma and DeClue each violated section 128.7, subdivisions (b)(1) and (b)(3); that
Ledesma was forum-shopping, engaging in litigation for the purpose of harassment and
delay, and had committed perjury; that it was “undeniable” that Ledesma had lied under
oath; and that any reasonable attorney would have withdrawn the complaint. The court
stated its intent to impose $35,080 in monetary sanctions against Ledesma and DeClue
and to strike the complaint with prejudice. At the hearing, however, it became apparent
to the trial court that the motion was improper due to a notice defect. The court therefore
denied the motion without prejudice.
1 Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.
2
B. Renewed Motion for Sanctions
SFS Equities and Roxcar subsequently filed a renewed motion for sanctions,
supported by the following evidence: In June 2007 Ledesma obtained a loan in the
amount of $3,375,000 from Washington Mutual Bank relating to a property on Roxbury
Drive in Beverly Hills; the loan was secured by a deed of trust recorded in the Los
Angeles County Recorder’s Office as Instrument Number 20071527179. Ledesma had
admitted in prior litigation that he defaulted on this loan on or about September 2008.
After Washington Mutual failed, JP Morgan Chase acquired certain assets of Washington
Mutual, including Ledesma’s loan.
1. First Wrongful Foreclosure Action
In December 2009 Ledesma filed suit against JP Morgan Chase and another
defendant, Quality Loan Service Corporation (Super. Court. No. SC105901), alleging
causes of action for wrongful foreclosure of the Roxbury property and injunctive relief;
breach of contract; breach of the implied covenant of good faith and fair dealing; and
fraud. JP Morgan Chase filed a motion for summary judgment. Ledesma dismissed the
action without prejudice on the date that had been set for the hearing on the summary
judgment motion.
2. Second Wrongful Foreclosure Action
On May 13, 2013, the same day that a trustee’s sale was set for the Roxbury
property, Ledesma filed case number BC508624 against JP Morgan Chase, SFS Equities,
and another defendant. Ledesma alleged wrongful foreclosure on the Roxbury property,
asserted promissory estoppel, and sought declaratory relief, injunctive relief, and an
accounting. Ledesma sought a temporary restraining order to prevent the foreclosure sale
of the property that day, claiming that JP Morgan Chase failed to comply with Civil Code
section 2923.6 concerning his loan modification application. The temporary restraining
order was denied, and the court wrote in its ruling that the defendant had presented
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evidence that Ledesma “has been in default for approximately five years and it is not a
material violation of the [H]omeowner’s [B]ill of [R]ights when plaintiff waits five years
to make an application for a loan modification.” Ledesma, through DeClue, then
voluntarily dismissed the action without prejudice on June 24, 2013.
3. Unlawful Detainer Action
The Roxbury property was sold to Roxcar at a trustee’s sale on May 13, 2013.
Roxcar then filed a complaint for unlawful detainer against Ledesma. On July 17, 2013,
after a court trial, the court found in favor of Roxcar and against Ledesma regarding the
Roxbury property and awarded damages of $38,400. Counsel for Roxcar in the unlawful
detainer action supplied a declaration that described the events in that action. She
explained that while the case “was a simple post-foreclosure eviction,” Ledesma and his
son “tried all the tricks possible to delay the eviction.” First, Ledesma filed no answer
and allowed a default to be taken. On the eve of being locked out, Ledesma filed an ex
parte application to set aside the default. This application was denied. “Upon the denial
of the ex parte,” counsel declared, “Ledesma filed a bankruptcy which was later
dismissed.” After that, “Ledesma filed another 4 ex parte[]s, on July 1, 2013, July 11,
2013, July 15, 2013 and again after trial and judgment being entered on July 18, 2013.”
Ledesma’s request to stay execution on the writ and judgment after trial was also denied.
The eviction process and unlawful detainer action cost Roxcar $4,555, according to the
unlawful detainer counsel.
4. Bankruptcy Proceedings and Third Wrongful Foreclosure Action
In June 2013, Ledesma, represented by DeClue, filed for personal bankruptcy. On
July 9, 2013, Ledesma filed an adversary proceeding in bankruptcy court in his personal
bankruptcy action, United States Bankruptcy Court Case Number 8:13-bk-15322-ES.
The complaint alleged causes of action against JP Morgan Chase, SFS Equities, Roxcar,
and another defendant for wrongful foreclosure; violation of Civil Code section 2923.6;
quiet title; cancellation of instruments pursuant to Civil Code section 3412; violation of
4
the Truth in Lending Act (15 U.S.C. § 1641, subd. (g)); violation of the Business and
Professions Code section 17200 et seq.; slander of title; turnover of property of the estate
(11 U.S.C. § 542); equitable subordination (11 U.S.C. § 510, subd. (c)); and disallowance
of the defendants’ claims.
The bankruptcy court dismissed Ledesma’s bankruptcy petition and adversary
action without prejudice on August 23, 2013, because they had been filed in violation of
the court’s prior order that no bankruptcy action concerning the property be filed without
leave of court. In a July 16, 2013, hearing prior to the court’s order, DeClue
acknowledged that the court had previously “impose[d] a two-year bar on bankruptcy
proceedings involving the Roxbury property.” The court said, “[T]his is why the order
was originally imposed. [¶] There is a long history of bankruptcy abuses. There’s a long
history of fractional interest[s] being transferred back and forth, 25 percent to this entity,
25 percent to that entity, back and forth, forth and back . . . .”
The bankruptcy court advised DeClue that this pattern of bankruptcy abuse went
back years, to “I don’t know if it’s 2007 or 2009, we have Mr. Ledesma, probably the
original person that started all these 25 percent fractional transfers, and, you know, the
bankruptcies span different divisions, different LLC’s at different times . . . and if you
add up all the bankruptcies, all of the bankruptcies—and they’re all somehow
interrelated, you know. The new ones I’m seeing now are these new properties that are
new to me anyway, properties in New York, but these other properties, you know,
Roxbury, Huntly, West Knoll, they’ve all been tied up at different times in a number of
different bankruptcies, much to the frustration of creditors. [¶] None that I recall of these
bankruptcies have ever been successful. If you look at all of them over the time when
they first started—I don’t know if it was 2009 when they first started or 2010—there
could be as many as 10 bankruptcies involving all these properties at different times,
none of them successful, all fractional interest.”
The bankruptcy court explained that in the context of another property subjected to
the fractional interest scheme it had “painstakingly” traced the course of the fractional
interest transfers and bankruptcies, and that ultimately the parties had agreed on a
5
dismissal accompanied by “pretty onerous terms” based on “the history of the case, the
interrelation between the Ledesma[]s, the interrelation between the LLC’s that had been
created, it transferred back and forth.” The court said that it had made sense to impose
“as strict an order as possible to prevent more of the abuses that had been occurring.”
Ledesma, the court observed, “was part of this process because he—he was the original
transferor” of a fractional interest. The court said, “[T]his is a case with long legs that
appear to be mired in bankruptcy abuse that precede[s] this case.”
DeClue told the bankruptcy court that he “agree[d] with the Court’s
characterization regarding the bankruptcies.” DeClue agreed that “there are things that
were done that don’t make any sense.” He continued, “They certainly weren’t helpful.
There was no way that they could have been helpful. They could only have caused
problems.”
The bankruptcy court pointed out that Ledesma’s prior counsel had requested
relief from the order barring further filings, but that he had done so on an emergency
basis when any emergency was “self-created.” The court had denied the emergency
request without prejudice to a request made on regular notice, but no regular noticed
request was made. Instead, DeClue filed the new case and was now belatedly seeking to
ratify it. The court concluded that the new filings had been made “in complete disregard”
of prior orders and was therefore improperly filed. Should Ledesma wish to file again,
the court advised, he would have to seek leave to file in the proper case and would “have
to present a case on why this is not going to be another bad faith filing.” The court
specifically advised DeClue that he should examine the history of the other case in which
the filing order was made, because “in the context of the denial of the approval of the
disclosure statement” the court went through “what the disclosure statement did not
disclose, and it has—it has a lot of the history of these prior bankruptcies, starting in
2010, identifying the case numbers, the properties that were involved—or should I say
the Debtors and the properties, what happened, 180-day bars. There were three 180-day
bars that were imposed. I think that was—had to do with some L.A. cases. [¶] It shows
that there were four dismissals with 180-day bars. This is before we get to the Knoll
6
West case [in which the filing requirement order was imposed]. So there’s a pretty—
pretty good summary there of that tentative ruling as to what was taken into account at
the time that it was ultimately—the case was ultimately dismissed.” “So again,” the
bankruptcy court advised DeClue, “I leave it to you to determine whether or not you
think an emergency or some sort of expedited hearing [need] exists, but you’re going to
have to make a really good case for why it should be done on an expedited basis and
what’s different about this case than all the other eight, nine or 10 cases that have
previously been filed and dismissed and were completely unsuccessful and found to have
been filed in bad faith.”
Finally, the bankruptcy court explained, “This is not anything new. This has been
going on forever. This has been going on since like 2009, 2010. This is now 2013. So
he’s had this—he and Jonathan Ledesma and all these LLC’s have had these rolling
bankruptcies going on since 2010. That’s why if I seem a little insensitive to this it’s
because this isn’t their first time at the rodeo here. I mean, this has been going on for
some time, and, you know, he’s wanting now to come in and say, ‘I’m wearing the white
hat,’ but you know, when you’ve been part of a process that has just been filing
bankruptcy after bankruptcy and, you know, leaving a trail behind of bars and restrictions
and 180 days and seeking leave to—to refile and having that denied . . . you know, there
isn’t a great track record here.” In dismissing the bankruptcy case and the adversary
proceeding, the bankruptcy court expressly retained jurisdiction to consider and
determine any creditor motions for sanctions in connection with the filing of the case.
Roxcar’s bankruptcy attorney declared that Ledesma and his counsel had engaged
in “all manner of fairly sophisticated ‘tricks’ involving numerous bad faith bankruptcy
filings that were initiated in violation of specific bankruptcy court orders.” Counsel
reported that to date Roxcar had been successful in all the bankruptcy litigation: “With
regard to each proceeding in which I represented Roxcar, LLC, concerning Mr. Ledesma
and his related entities Roxcar, LLC was successful. With regard to all efforts and
proceedings in which Mr. Ledesma and his counsel sought relief as against Roxcar, LLC,
Mr. Ledesma and his counsel were always unsuccessful. It appears that virtually all of
7
Mr. Ledesma’s efforts were undertaken in attempts to preclude the bringing and/or
concluding of unlawful detainer proceedings.” These victories, however, cost Roxcar:
counsel declared that in the bankruptcy proceedings Roxcar had incurred $30,730 in
attorney fees and $947.46 in costs as of July 2013, with additional costs that were not yet
quantified having been incurred in the August 2013 bankruptcy proceedings.
5. Fourth Wrongful Foreclosure Action
On July 25, 2013, Ledesma, represented by DeClue, filed this action asserting
causes of action for wrongful foreclosure, violation of Civil Code section 2923.6, and to
quiet title. In this verified complaint, Ledesma alleged that he entered into a promissory
note with Washington Mutual Bank that was secured by a deed of trust against the
Roxbury property. He then alleged that “the signatures and initials in the recorded Deed
of Trust and related Adjustable Rate Rider are neither his signature nor his initials.” He
further alleged that JP Morgan Chase never owned the loan. SFS Equities and Roxcar
asserted that these allegations were in conflict with a declaration Ledesma filed in a prior
lawsuit in which he stated, “On June 16, 2007, I originally financed the Roxbury Property
by personally executing a promissory note for the sum of $3,375,000.00 and a deed of
trust under which I was designated as the borrower, Washington Mutual Bank was
designated as the lender, and Quality Loan Service Corp. was designated as the trustee.”
SFS Equities and Roxcar argued to the trial court that the complaint was presented
for the improper purposes of delay and harassment and that the causes of action asserted
were frivolous and lacking evidentiary support. They requested sanctions against
Ledesma and DeClue in the amount of $75,000. SFS Equities and Roxcar supported their
sanctions request with evidence that Ledesma’s filings had caused them to incur
approximately $30,000 in attorney fees and that it was estimated that further work on the
present motion was anticipated to total $5,100.
8
C. Opposition to Renewed Motion for Sanctions
In opposition to the renewed motion for sanctions, Ledesma and DeClue claimed
that a number of assertions made by SFS Equities and Roxcar in their motion were false.
They claimed that the causes of action did in fact have merit and were supported by both
facts and law. Finally, they asserted that SFS Equities and Roxcar were impermissibly
attempting to recover costs related to the bankruptcy litigation.
By declaration Ledesma denied that his prior lawsuits were dismissed solely for
the purpose of delay of the foreclosure proceedings. He asserted that he dismissed his
first civil case (Case No. SC105901) based on his understanding that JP Morgan Chase
would deal with him in good faith concerning a loan modification. When JP Morgan
Chase “refused to do so,” Ledesma claimed, he was forced to again pursue legal action.
The second wrongful foreclosure case (Case No. BC508624), Ledesma declared, was not
dismissed because he was denied an injunction or was shopping for a new judge; instead,
“I dismissed this case because of information learned after the case was filed. The
information acquired after the filing of the case changed the character of the lawsuit and
forced me to name an additional defendant.”
Ledesma contended that his “only goal has been and continues to be to deal with
the true owner of my loan in good faith, working to a modification of the loan.” He
denied perjuring himself, clarifying that he believed that the deed of trust he signed was
not the one that was recorded. He also denied filing ten bankruptcies and stated that he
had filed “only one personal bankruptcy.” Ledesma did not acknowledge the other
bankruptcy proceedings except to acknowledge that his personal bankruptcy case had
been dismissed because of a ruling that he needed permission to file a bankruptcy “based
upon a ruling of another bankruptcy case.”
DeClue denied dismissing Ledesma’s second wrongful foreclosure civil suit (Case
No. BC508624) “solely for the purpose of delay of foreclosure proceedings, eviction
proceedings, or because [an application for a temporary restraining order] was denied.”
He claimed that he dismissed the suit, which had been filed by Ledesma’s prior counsel,
9
because it did not include claims he knew to be well-founded and it did not include
Roxcar as a defendant. He asserted that these factors “made it more appropriate to
dismiss that case without prejudice, rather than move the court for leave to amend.”
D. Ruling on the Renewed Motion for Sanctions
The court heard the motion for sanctions on January 13, 2014. The court
concluded that the extraordinary relief of sanctions and striking the complaint was
appropriate due to “extraordinary circumstances.” The court began by observing that
SFS Equities and Roxcar had complied with the safe harbor provisions of section 128.7,
subdivision (c)(1) but that Ledesma “failed to withdraw his complaint (notwithstanding
the Court’s written and oral statements at the October 17, 2013 hearing regarding the bad
faith of Plaintiff and his counsel).”
The court next concluded that Ledesma and DeClue each violated section 128.7,
subdivisions (b)(1) and (b)(3). The court explained, “The moving and reply papers detail,
at length, a troublesome pattern of forum-[]shopping, harassment, and delay by Plaintiff
and attorney De[C]lue in an improper effort to stymie foreclosure and post-foreclosure
disposition of the subject real property, which misconduct even included serial
bankruptcy filings and a violation of a Bankruptcy Court order. The moving and reply
papers also unquestionably establish that Plaintiff lied under oath in the verified
complaint in this action by asserting that he did not sign the deed of trust which is the
subject of this action (Complaint, para. 10)–and that any reasonable attorney would have
realized this and withdrawn the complaint.” The court was not persuaded by Ledesma
and DeClue’s accounts of their actions as being motivated by proper litigation purposes.
The court characterized Ledesma and DeClue’s responses to these arguments as “less
than convincing. Indeed, Plaintiff’s attempts to dismiss Defendants’ overwhelming
evidence of forum-shopping, harassment, delay, and perjury smack of sophistry and
misdirection.”
The trial court concluded that monetary sanctions were appropriate “in light of the
outrageous conduct by Plaintiff and his counsel . . . .” The court found that an award of
10
attorney’s fees to SFS Equities and Roxcar in the amount of $50,000 would deter
Ledesma and DeClue from filing similar actions in the future and from “engaging in the
types of unprofessional conduct demonstrated by attorney De[C]lue in litigating this
action.” The court explained that it determined the amount of sanctions based on its “43+
years of legal experience, including 19+ years as a bench officer, its familiarity with the
action, [and] the goal of effecting deterrence rather than punishment in imposing
sanctions under [section] 128.7.” Specifically, the court noted, “The amount [of
sanctions] is larger than that which the Court intended to impose in connection with the
prior iteration of the motion because, puzzlingly, Plaintiff chose to maintain this action
notwithstanding the Court’s written and oral statements at the October 17, 2013 hearing
regarding the bad faith of Plaintiff and his counsel. This strongly indicates that severe
sanctions are necessary in order to deter such future conduct.”
The court further ordered that Ledesma and DeClue pay $10,000 in sanctions
under section 128.7, subdivision (d) to the superior court for the purpose of “deterring
Plaintiff, attorney De[C]lue, and others from filing similar actions in the future, and
engaging in the types of unprofessional conduct demonstrated by attorney De[C]lue in
litigating this action.” Finally, the court struck the complaint with prejudice. The court
also noted for appellate purposes that it concluded that DeClue had violated section
128.7, subdivision (b)(2) in filing the action, and that if the court had not imposed
sanctions on DeClue under section 128.7, subdivisions (b)(1) and (b)(3), it would have
done so pursuant to section 128.7, subdivision (b)(2).
Ledesma and DeClue appeal.
DISCUSSION
Section 128.7 “authorizes trial courts to impose sanctions to check abuses in the
filing of pleadings, petitions, written notices of motions or similar papers.” (Musaelian
v. Adams (2009) 45 Cal.4th 512, 514.) Subdivision (b) of the statute states, in pertinent
part, that “[b]y presenting to the court, whether by signing, filing, submitting, or later
advocating, a pleading, petition, written notice of motion, or other similar paper, an
11
attorney . . . is certifying that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances, all of the following
conditions are met: [¶] (1) 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. [¶] (2) The claims, defenses, and other legal contentions therein are warranted
by existing law. . . . [¶] (3) The allegations and other factual contentions have evidentiary
support. . . .” (§ 128.7, subd. (b).) Subdivision (c) states that “[i]f, after notice and a
reasonable opportunity to respond, the court determines that subdivision (b) has been
violated, the court may, subject to the conditions stated below, impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are
responsible for the violation.” (§ 128.7, subd. (c).) Sanctions may include “directives of
a nonmonetary nature,” “an order to pay a penalty into court,” and “payment to the
movant of some or all of the reasonable attorney’s fees and other expenses incurred as a
direct result of the violation.” (§ 128.7, subd. (d).)
Section 128.7 further provides that “[a] sanction imposed for violation of
subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or
comparable conduct by others similarly situated.” (§ 128.7, subd. (d).) The Legislature
accordingly designed the statute “to be remedial, not punitive.” (Li v. Majestic Industry
Hills, LLC (2009) 177 Cal.App.4th 585, 591.) “While section 128.7 does allow for
reimbursement of expenses, including attorney fees, its primary purpose is to deter filing
abuses, not to compensate those affected by them.” (Musaelian v. Adams, supra, 45
Cal.4th at p. 519; see also Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685,
699 [sanctions under section 128.7 “‘are not designed to be punitive in nature but rather
to promote compliance with statutory standards of conduct’”].)
“A trial court is to apply an objective standard in making its inquiry concerning
the attorney’s or party’s allegedly sanctionable behavior in connection with a motion for
sanctions brought under section 128.7. [Citations.]” (Optimal Markets, Inc. v. Salant
(2013) 221 Cal.App.4th 912, 921.) “A court has broad discretion to impose sanctions if
the moving party satisfies the elements of the sanctions statute. [Citation.] However, the
12
sanctions statute ‘“must not be construed so as to conflict with the primary duty of an
attorney to represent his or her client zealously. Forceful representation often requires
that an attorney attempt to read a case or an agreement in an innovative though sensible
way. Our law is constantly evolving, and effective representation sometimes compels
attorneys to take the lead in that evolution.”’ [Citation.]” (Peake v. Underwood (2014)
227 Cal.App.4th 428, 441.) The trial court’s award of sanctions under section 128.7 is
reviewed on appeal for an abuse of discretion. (Ibid.)
We find no abuse of discretion here. The record in this case amply supports the
trial court’s conclusion that Ledesma and DeClue filed this latest action “primarily for an
improper purpose” as part of a years-long campaign to frustrate creditors and stymie the
foreclosure proceedings on the Roxbury property. (§ 128.7, subd. (b)(1).) The trial court
could easily conclude on the record before it that the complaint was merely the latest
tactic in an ongoing effort to delay the final resolution of issues relating to the property.
The trial court was presented with evidence of multiple civil proceedings alleging
wrongful foreclosure that were dismissed either when the desired preliminary relief was
not granted or when a determination on the merits was imminent. For instance, Ledesma
filed his first wrongful foreclosure action only to dismiss it immediately before the
summary judgment motion was to be heard. He dismissed his second wrongful
foreclosure action after failing to obtain a temporary restraining order blocking the
foreclosure sale. The record also demonstrated a history of years of abuse of the
bankruptcy court by Ledesma that resulted in determinations of bad faith, filing bars,
orders requiring prior approval before further filings, and the dismissal of actions filed by
DeClue and Ledesma in violation of these orders. As the bankruptcy court advised
DeClue, Ledesma had previously pursued a series of bankruptcy cases that “were
completely unsuccessful and found to have been filed in bad faith.” The multi-year
history of misuse of the bankruptcy courts was even conceded by DeClue in his
representation of Ledesma before the bankruptcy court: after the court detailed the long
history of misconduct that preceded the most recent filing, DeClue told the court that he
“agree[d] with the Court’s characterization regarding the bankruptcies.” Examining the
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instant complaint against this backdrop of dilatory tactics, the trial court could reasonably
find that it was simply the newest iteration in the campaign to preclude the conclusion of
proceedings regarding the Roxbury property and that it was filed for the improper
purposes of delay, harassment, forum-shopping, and needless increase in litigation costs.2
Ledesma and DeClue argue that even if sanctions were appropriate, the actual
sanctions imposed by the court were excessive. While section 128.7, subdivision (d)
requires that sanctions be limited to what is sufficient to deter repetition of the improper
conduct or comparable conduct by others similarly situated, “[a] court has broad
discretion to impose sanctions if the moving party satisfies the elements of the sanctions
statute.” (Peake v. Underwood, supra, 227 Cal.App.4th at p. 441.) We presume that the
court’s order is correct and do not substitute our judgment for that of the trial court.
(Ibid.) Only if the court’s action is “sufficiently grave to amount to a manifest
miscarriage of justice” is an appellant entitled to relief on appeal. (Ibid.)
Ledesma and DeClue have not established any abuse of discretion here. Their
allegation of excessiveness is conclusory: after quoting a court opinion relating to
sanctions, they assert—without explanation, detail, or citation to the record—that the
monetary award went far beyond the purpose of deterrence, bore no relationship to the
time spent by the trial court or to the moving parties’ costs, and was designed to punish
them. They continue, “Even more disturbing is the dismissal of the complaint without
any analysis or consideration. Again this seem[s] to be designed to punish, not deter.
The award in this case simply does not stand up to scrutiny in basis or amount or in terms
of striking Plaintiff’s entire complaint.” These flat allegations fall far short of
establishing any error by the trial court or any miscarriage of justice in imposing the
selected sanctions. The evidence before the trial court permitted the conclusions that
Ledesma was engaged in abusive, bad faith litigation tactics in both the superior court
and the bankruptcy court for years; that DeClue had been advised of the abuses that had
2 Because we conclude that the sanctions were properly imposed under section
128.7, subd. (b)(1), we need not reach the question of whether sanctions were warranted
under section 128.7, subdivision (b)(3).
14
occurred prior to his representation of Ledesma but plunged into the campaign to misuse
the courts nonetheless; and that not even the trial court’s strong indication that sanctions
would be forthcoming dissuaded them from their course of conduct. Moreover, the trial
court offered a detailed explanation for its award of sanctions, expressly stating that the
award was based on the court’s legal and judicial experience, its familiarity with the
action, and the goal of effecting deterrence rather than imposing punishment.
Specifically, the court noted that Ledesma and DeClue’s intransigence in refusing to
abandon arguments when advised of the imminence of sanctions prompted it to determine
that the sanctions should be even higher than the court had originally contemplated,
because even a clear warning that sanctions would have been imposed if the sanctions
motion had been properly noticed had failed to cause them to reconsider their conduct.
The court concluded that the substantial amounts of $50,000 in attorney fees and $10,000
in sanctions payable to the court were necessary to deter future unprofessional conduct by
Ledesma, DeClue, and others. In light of the litigation history and the parties’ conduct in
this case, this conclusion was manifestly within the scope of the trial court’s discretion
and was supported by the record.
The trial court, furthermore, determined that striking the complaint with prejudice
was appropriate. We acknowledge that the dismissal of an action with prejudice is a
severe sanction that generally is only warranted in exceptional circumstances, and it is
usually imposed only after some determination of the merits of the claims alleged. (See,
e.g., Jimenez v. Madison Area Tech. College (7th Cir. 2003) 321 F.3d 652, 658.) In this
instance, the record demonstrates that any absence of a determination on the merits of
Ledesma’s claims is attributable to Ledesma, who has already voluntarily dismissed two
prior civil wrongful foreclosure actions and pursued self-prolonged bankruptcy litigation
so abusive that it resulted in filing bars and pre-filing authorization requirements that he
then violated, leading to the dismissal of still more actions. Moreover, dismissal of a
lawsuit is within the authority of the court when a litigant’s conduct “abuses the judicial
process.” (Pope v. Fed. Express. Corp. (8th Cir. 1992) 974 F.2d 982, 984 [upholding
15
dismissal of action as a sanction under rule 11 of the Federal Rules of Civil Procedure3
(28 U.S.C.)].) The trial court was presented with a record that supported and permitted
the conclusion that dismissal of the complaint with prejudice was warranted due to the
exceptional circumstance of Ledesma’s numerous years of profound litigation abuse.
Appellants have not demonstrated any abuse of discretion in this conclusion.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
STROBEL, J.*
3 California courts may look to federal decisions interpreting rule 11 of the Federal
Rules of Civil Procedure when examining the provisions of section 128.7 because section
128.7 is modeled on rule 11. (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 413.)
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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