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Pro Per Fails to Show That Peeved Judge Was Disqualified
By a MetNews Staff Writer
A pro per plaintiff failed yesterday to persuade the Court of Appeal for this district that the exasperation of Los Angeles Superior Court Judge Mark H. Epstein over the man’s antics in pursuing incessant efforts to have a default judgment against him vacated constituted bias, requiring his recusal.
Justice Anne H. Egerton of Div. Three authored the unpublished opinion. It affirms a default judgment in favor of Radical Studio, Inc. in an action brought by Kavi Virk, an entertainment industries consultant.
Aside from asserting prejudicial misconduct on the part of Epstein, Virk maintained that the default judgment contravenes rulings in three small claims actions he instituted and won.
“Because Virk fails to identify any inconsistencies with the prior judgments, he has not met his burden of showing error,” Egerton wrote.
2013 Contract
In 2013, Radical Studios entered into a contract Virk and his company, KSV, LLC, under which Virk and KSV were to be paid $10,000 for business development services in connection with a forthcoming horror flick, “Abattoir.” Radical Studios soon dispensed with Virk’s services.
He sued in small claims court for breach of contract; Radical Studios did not appear; Virk and was awarded $5,000. Radical Studios, contended that it defaulted because service was effected on its accountant who failed to inform the studio brass, but Div. Three of the Court of Appeal for this district on Jan. 13, 2016, summarily denied its petition for a forthcoming writ of mandate setting aside the judgment.
“Abattoir” was generally released on Dec. 9, 2016.
The next year, Virk made another trip to the small claims court, this time bagging a judgment under which he was awarded $1 and one percent of the picture’s profits. Generally panned by critics, it made no profit.
Radical Studios Sues
In 2018, Radical Studios got on the offensive, suing Virk in Los Angeles Superior Court. Seeking $2 million in damages, it complained of his breach of contract in connection with “Abattoir,” his litigation activity, and his claim for credits and recompense with respect to “Aladdin,” a film with which he allegedly had no connection.
Then-Los Angeles Superior Court Judge Gerald Rosenberg on Sept. 18, 2018, overruled Virk’s demurrer to the complaint and gave him 20 days within which to answer; instead of answering, he unsuccessfully sought reconsideration; with no answer on file, his default was entered on Oct. 25, 2018.
His motion to set aside the default was denied; reconsideration was denied but he was given leave to file a legally proper motion which he had failed to do; he filed no such motion; a default prove-up was held on March 11, 2021, at which Virk was not allowed to speak.
The next day, Virk filed another small claims action, claiming rights pertaining to Aladdin.” Proceedings were stayed pending outcome of the Superior Court case.
Epstein Awards Damages
On June 18, 2021, Epstein—the fourth judge to handle the case—awarded Radical Studios $75,000 in damages and enjoined Virk from disseminating confidential information. Contrary to Vick’s contention that Epstein failed to take heed of prior rulings, he declined to find that Virk had no interest in “Abattoir” because this would have contradicted the first small claims judgment.
Epstein said in the minute order:
“The Court now makes express what had been implicit on March 11, 2021. Virk’s repeated pleadings and refusal to file a proper motion to vacate default (and his inability to retain counsel for any extended period) is deliberate and tactical. It is not merely a self-represented litigant who is unfamiliar with complicated judicial procedure doing the best he can. Virk has spent more time in the courthouse than many lawyers; he knows what he is doing. His repeated inappropriate filings were meant to delay and defer a judgment. There comes a point where the policy favoring resolution of cases on their merits must yield to a litigant who chooses to obfuscate rather than litigate properly. That time has come, and the default prove-up therefore went forward.”
Effort to Delay
Virk moved for an order vacating the default judgment. Epstein denied it, saying:
“The date Virk filed the instant motion comes nearly ten months after the Court told Virk he could file a motion if he wanted to do so; a year and a half after Judge Marc Gross denied his motion for reconsideration; more than two years after Judge [Tony] Cho denied his prior motion to vacate default; and nearly three years after his default was first entered. He has offered no reason as to why he waited so long and the Court can only conclude that this is yet another attempt by Virk to delay entry of judgment. Further, Virk has not presented any evidence of vacating the default on equitable grounds even if statutory relief is unavailable.”
In his brief on appeal, Virk contended:
“The abuse of judicial discretion, ignoring the facts and law, and evidence of judicial misconduct is evidenced in sworn pleadings filed with the Los Angeles Superior Court as detailed in this appeal to vacate the default judgment and have this dispute tried further on the ‘merits’ as has been done since 2015 by a plethora of elected judges in the Los Angeles Superior Court and the California Court of Appeal’s Second District in Los Angeles.”
Virk attacked a declaration from attorney Michael Greenslade of the mid-Wilshire form of Greenslade Cronk, LLP, who had represented him at one point in his litigation with the studio as well as in other suits. Greenslade attested to the genuineness of emails he had sent Virk.
In one, Virk related that Epstein had told him he had “long run out of patience with” Virk and another reciting that the judge was “pissed” at Virk. Greenslade, in the latter communique, indicated a disinclination to become “embroiled” in the matter “given the vitriol the judge expressed today.”
Egerton’s Opinion
In yesterday’s opinion, Egerton spurned Virk’s contention that the judgment must be upset because Epstein struck a statement of disqualification on the ground that it stated no legal basis.
The jurist declared that documents Virk attached to his brief—which included Greenslade’s declaration—could not properly be considered because documents can only be attached if they are already in the record and the record was not referenced. A “more fundamental reason,” she continued, was that the denial of a disqualification-for-cause motion can only be challenged by a writ petition.
Egerton, nonetheless, commented:
“Even if the disqualification issue were properly before us and we could consider the exhibits attached to Virk’s brief, we would nevertheless reject his arguments on the merits. Contrary to Virk’s suggestions, the fact that Judge Epstein consistently ruled against him does not indicate bias and is not a ground for disqualification.”
Hearsay Evidence
She added:
“Nor are the emails from Virk’s attorney sufficient to require disqualification. Although the attorney authenticated the emails in a declaration, he did not attest to the truth of their contents. The emails, therefore, are inadmissible hearsay….The same is true of the critical reviews of Judge Epstein posted to The Robing Room.
Sanctions were denied because Radical Studios did not seek them, as required, by a separate motion.
The case is Radical Studios v. Virk, B316278.
Attorney Matthew I. Berger represented the studio, of which he was a co-founder. Virk was in pro per.
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