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Justices Uphold $7,315 Attorney Sanction for Frivolous Tactics in Seeking Entry of Default
Opinion Says Order Justified Based on Pursuit of Default After Rejection of Defendant’s Answer Due to Clerical Error
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal held yesterday that a trial judge’s order imposing a $7,315 sanction on a plaintiff’s attorney is supported by substantial evidence of bad faith and frivolity where the attorney repeatedly pursued the entry of a default judgment based on the court’s rejection of the defendant’s answer due solely to clerical errors.
The sanctions came about in a case by a tenant against her landlord after the defendant’s answer to the complaint—filed electronically with the court on the date it was due—was inadvertently rejected. Valencia attorney Pavel Y. Kouprine, representing the plaintiff, filed for a default judgment the next day despite having been served with the answer by mail.
Justice Martha K. Gooding authored the unpublished opinion affirming the order granting sanctions by Orange Superior Court Judge Craig L. Griffin and declining to reduce the amount of sanctions to below the $1,000 threshold for mandated reporting to the State Bar.
Gooding wrote:
“The court did not abuse its discretion in imposing the sanctions or in determining the amount of the monetary sanctions imposed….Kouprine’s conduct here is precisely the kind of egregious conduct by counsel that should be brought to the attention of the State Bar.”
Presiding Justice Kathleen O’Leary and Justice William W. Bedsworth joined in the opinion.
Kouprine, as counsel for plaintiff Natalia Strelkova, filed a complaint against Douglas Allen on June 6, 2022 relating to Strelkova’s rental of property from the defendant. After Allen’s answer to the complaint—filed by attorney Zachariah Tomlin—was rejected on July 11, 2022, Kouprine electronically filed a request for entry of default the following day.
The request was granted.
Tomlin contacted Kouprine on July 18, 2022 to propose a stipulation to set aside the default, which Kouprine declined to sign. On Aug. 2, 2022, upon an application by the clerk for correction of error, the default judgment was set aside but another typographical error in the order noted the default was filed in 2021 rather than 2022.
On Aug. 12, 2022, Kouprine filed a second request for default judgment against Allen, which the court clerk erroneously entered as requested. On Aug. 29, 2022, again in response to a clerk’s application for correction, Griffin entered an order vacating the second default.
The judge, on his own motion, issued an order to show cause regarding sanctions pursuant to Code of Civil Procedure §128.5, which provides that “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”
Tomlin filed a declaration detailing the attorney fees he had incurred in connection with the conduct identified by Griffin as potentially problematic.
Hearing on Sanctions
Griffin found that Kouprine’s “baseless refusal to stipulate to set aside the default” was undertaken in bad faith for the purpose of delay and that Kouprine’s professed explanations for filing the second request—based on the typographical error relating to the date of the default—were “facially nonsensical” and “plainly false.”
The judge ordered sanctions against Kouprine in the amount of $7,315 based on findings that Tomlin’s declared hourly rate of $550 per hour was reasonable and the 13.3 hours expended were properly claimed. The judge held Strelkova, Kouprine, and the Law Offices of Pavel Kouprine were jointly and severally liable for the sanctions.
Kouprine paid the ordered sanctions and Strelkova appealed. After the appeal was filed, Strelkova and Allen settled their dispute, but Kouprine requested that the appellate court hear the appeal as “[t]his appeal is focused on the action taken by the Respondent Court in reporting the attorney Pavel Kouprine to the California State Bar.”
Substantial Evidence
Gooding concluded that the appeal was not mooted by the settlement and said:
“Substantial evidence…supports the trial court’s findings that Kouprine acted in bad faith and pursued frivolous tactics solely to cause unnecessary delay when he refused to set aside the first default despite knowing it had been entered erroneously by the clerk and when he sought (and obtained) a second default despite knowing Allen’s answer had already been filed. It takes no elaborate analysis or citation to know that such conduct by an attorney is beyond the pale.”
The jurist declined Kouprine’s request to reduce the sanctions award to avoid the mandatory reporting provisions in Business and Professions Code §6086.7, which provides that a court shall notify the state bar upon “[t]he imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).”
Gooding acknowledged that sanctions should be reserved for serious violations of the standard of practice but said:
“[T]he findings in the trial court’s order imposing sanctions under Code of Civil Procedure section 128.5 are supported by substantial evidence. The court did not abuse its discretion in imposing the sanctions or in determining the amount of the monetary sanctions imposed.”
Kouprine Comments
Kouprine commented yesterday:
“It is unfortunate that I only have very limited time to comment on the ruling as this is a significant decision, in line with many other published opinions, which shall be well understood by each practicing attorney. The practice of law is carried in the real world and attorneys are often provided with numerous advantages over the opposing side due to various mistakes of the clerks, computer systems and power outages, etc. Using those advantages for the benefit of the client appears in line with the high duty owed to the client.”
He continued:
“However, as has been repeatedly outlined by our Courts and emphasized by this decision, attorney’s duty to act diligently in practicing law is fundamental and, to an extent, may preempt even the duty owed to a client to use every opportunity to improve the client’s position, in the unfortunate situations where those two duties come into conflict. It is important to remember that each attorney is the officer of the Court, a title which comes with very serious liabilities and consequences for taking that duty lightly.”
The case is Strelkova v. Allen (Kouprine), G062601.
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