TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. Do not call the department to verify if you should appear or not. Please read below for the information.  If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

 

September 27, 2016

2:00 P.M.

 

 

#

Case Name

Tentative

 

 

 

1

Derakhshan vs Merona Trust #1333

(1) Motion for Judgment on the Pleadings (MJOP) (2) CMC          

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Defendants Wells Fargo Bank, N.A. and Deutsche Bank National Trust Company’s unopposed Motion for Judgment on the Pleadings for the 3rd cause of action (fraud) is GRANTED, without leave to amend.

 

The motion was timely and properly served, and is unopposed.

 

With respect to Count 1, Defendants correctly contend that the statement made (i.e., “No, you cannot sell the house, but ask the Wells Fargo attorney.”) is not a “misrepresentation” stating that there would be no foreclosure related activity against the subject property.  In addition, specific pleading requires facts that clearly allege every element of fraud. (Starfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)  Defendants correctly contend that with respect to this factual allegation, Plaintiffs have failed to plead specific facts showing knowledge of the falsity, intent to defraud, justifiable reliance, and resulting damages. 


With respect to Count 3, Defendants contend that Plaintiffs have failed to plead sufficient facts in support of each element of the fraud claim with particularity.  Indeed, Plaintiffs have failed to plead sufficient facts with specificity showing knowledge of falsity by the corporate Defendants, intent to defraud, justifiable reliance by Plaintiffs, and resulting damages. 

 

(2) CMC is continued to 10-27-16, Dept. C13, at 8:45 am. 

 

Prevailing party is to give notice. 

 

 

 

2

Haggerty vs Canaday

(1) Demurrer to Complaint (2) Motion to Strike    

 

Tentative Ruling:  (1) The demurrer to each of the five causes of action in the plaintiff’s complaint as alleged against Defendants Lee Ann Canaday and Canaday Group Inc. is SUSTAINED WITH LEAVE TO AMEND. (2) The motion to strike punitive damages is DENIED AS MOOT.

 

The allegations are insufficient to state any of the five causes of action pled. Even if the assessor records showed 2300 sq. ft., the allegation that the defendants represented that the assessor records showed 4900 sq. ft. does not support a misrepresentation or breach of duty which creates any damages.  It just means that the number in the roll was different. Even if the alleged representation that the property was 4900 was not correct and it was less, the causes do not support a finding of liability because there is no allegation as was to what the actual footage is.

 

Statute of Limitations:      The Statute of Limitations for Plaintiffs' First, Second and Third COAs for fraud is three years.  (Code Civ. Proc., § 338(d).)  The Statute of Limitations for Plaintiffs' Fourth and Fifth COAs for breach of fiduciary duty and statutory duties is two years. (Code Civ. Proc., § 343; Civ. Code §2079.4.)

 

Plaintiffs Complaint was filed May 11, 2016.  The subject home was purchased by the plaintiffs in March 2007 with closing occurring 60 days later in May 2007. (Complaint ¶¶ 11-12.)  The subject oral representations which were allegedly made between March and May 2007. (Id.)

 

As to the statute of limitations, plaintiffs allege delayed discovery.  Plaintiffs allege they did not discover the falsity of the Defendants' misrepresentation until April of 2015, while attempting to sell the subject property. At that time, Plaintiff discovered - for the first time - that the floor size "per assessor" was significantly smaller than 4900 sq. ft. Thus, the according to plaintiffs, the property was materially less valuable than they were led to believe. (Complaint ¶ 18.)

 

Defendants argue the statute had to run earlier than 9 years after the plaintiff brought the property.  It does seem highly unlikely plaintiffs did not know (or, alternatively,  they should have known) about the difference in square footage during the 9 years since the home was purchased and/or the alleged misrepresentation were made if the actual square footage was one half of what it was represented to be.  What is not clear is how much smaller the property is alleged to actually be as opposed to how much smaller the assessor says it is.  Under the current state of the pleadings it cannot be said that the plaintiffs must have known about the difference or must have had reason to know about the difference prior to actual discovery.  That determination is a question of fact that cannot be made as a matter of law on a demurrer. 

 

Allegations are Insufficient:  The current allegations are insufficient to support any of the five causes of action.  Plaintiff alleges defendant Lee Ann Canaday represented in writing and orally to the plaintiffs that the Property had a floor size of 4900 sq. ft. "per assessor.” (Complaint, ¶ 13.)  Plaintiffs alleges the assessor records stated that the Property's floor size was approximately 2300 sq. ft.  Plaintiffs also allege the architect's plan for the Property also showed that the Property's square footage was less than 4900.  (Complaint, ¶ 13.) Plaintiffs also allege the property was significantly smaller than 4900 sq. ft. (Complaint, ¶ 18.)

 

The complaint alleges Fraud, Negligent Misrepresentation and Constructive Fraud based upon the same alleged misrepresentations. The Breach of Fiduciary Duty and Breach of Statutory Broker's Duties claims are also based upon the same misrepresentations.

 

As pled, the plaintiffs allege defendants misrepresented (1) the square footage set forth in the assessor’s records and (2) the actual square footage of the property. 

 

The assessor’s records indicated 2300 sq. feet, not 4900 sq. ft.  The square footage in the records (which may or may not have been the actual square footage) was significantly smaller than represented. Even though the footage set forth by the assessor was almost one half what plaintiffs were told it was, there is no allegation that the records were accurate. (i.e., that the property really is 2300 sq. feet).  The problem is that plaintiffs do not allege what the actual square footage of the property is.  The misrepresentation about what the assessor’s records state (as opposed to what is actually present) is immaterial.  As long as the actual footage was as represented, there would be no harm caused by a lower assessed footage. 

           

The misrepresentation about the actual footage present is not well pled either because the plaintiffs do not allege what the actual square footage is.  Thus, there can be no finding of materiality or harm from the allegations.


 

 

3

JPH Consulting, Inc. vs Jarvis

(1) Demurrer to First Amended Complaint (FAC) (2) CMC         

 

Tentative Ruling:  Defendant Chelsea Rhone Captive Services, LLC’s Demurrer to the FAC is SUSTAINED with 20-days lave to amend as to the 2nd and 3rd COAs; and OVERRULED as to the 6th COA as follows.

 

As to the 2nd and 3rd COAs (intentional and negligent misrepresentation), the FAC fails to allege who on behalf of Defendant CHELSEA RHONE made the allegedly fraudulent representation, the person’s authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (See Tarmann v. State Farm Mut. Auto. Ins. Co., (1991) 2 Cal.App.4th 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”] The FAC also does not allege that Defendant Jarvis was Defendant CHELSEA RHONE’S agent. Paragraph 50 only alleges that “Universal, Chelsea Rhone, and Care West are all agents, employees and co-conspirators of each other…” The FAC does not allege that Defendant JARVIS was an agent of Defendant CHELSEA RHONE. For example, paragraph 27 does not allege Defendant Jarvis was Defendant CHELSEA RHONE’S agent, only that Chelsea Rhone was Universal’s agent.

 

The 2nd COA (fraudulent misrepresentation) is also not barred by the statute of limitations. The FAC alleges the representations were made in “May 2003, June 2012, and continually throughout his tenure as Plaintiffs’ insurance broker, agent, and fiduciary…” (See FAC, ¶ 47.)  “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred…In order for the bar…to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.)

 

As to the 6th COA (conversion), the FAC alleges a specific, identifiable sum of money converted by Defendants in paragraph 72. This allegation is not barred by the “sham” pleading doctrine, because in the original Complaint, Plaintiffs did not did not allege the amount converted could not be ascertained as alleged by Defendant, Rather, in paragraph 71, Plaintiffs alleged “Defendants converted a substantial portion of the contributions for their own use and benefit…”. Paragraph 72 alleged Plaintiffs could not precisely determine the amount of damages, but this allegation pertained to the “damages in overcharged premiums, attorneys’ fees and costs, settlement payments, and the lack of investment income” – not the amount converted.

 

Moving Party is to give notice.

 

 


 

 

4

Maksoud vs Tuttle-Click, Inc.

(1) Motion to Quash Discovery Subpoena (2) Motion to Quash Discovery Subpoena                                                                                    

 

Ruling:  Off Calendar per MP – no hearing will be held.  Motions withdrawn by moving party, 9-14-16.

 

5

 

PDCCapital Group, LLC vs Richardson

Demurrer to Complaint

                          

Ruling:  Off Calendar – no hearing will be held.  Moving Party dismissed from action on 6-27-16. 

 

6

Pratt vs Tresor Investments, LLC

Demurrer to Cross-Complaint

 

Ruling:  Off Calendar – no hearing will be held.  Unopposed Demurrer to the First Amended Cross-Complaint of Kenneth John Fischbeck is sustained with 20 days leave to amend pursuant to Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Cross-Complainant has failed to oppose the demurrer to the FAXC which the Court has construed as an abandonment of the claims.

 

MP is to give notice.

 

7

Roe vs City of Fountain Valley

 

Motion for Summary Judgment and/or SAI

 

Tentative Ruling: Dismissal of Fourth, Fifth and Sixth Causes of Action: If Plaintiff has not already done so, Plaintiff is ordered to file a request for dismissal dismissing the fourth, fifth and sixth causes of action.  

 

Summary Adjudication of the First, Second, Third and Seventh Causes of Action [Issues (a), (b), (c) and (g)]: As acknowledged by Plaintiff in his opposition, the viability of the four remaining actions in the FAC depends on whether the officers’ use of force was reasonable. 

 

First COA (Violation of the Bane Act): The Bane Act provides protection whenever a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of state or federal statutory or constitutional rights. (Civ. Code, § 52.1.)  “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)  The Bane Act was intended to address only egregious interferences with constitutional rights, where the act of interference with a constitutional right must itself be deliberate or spiteful, beyond just any tort, such as negligence.  (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959.) 

 

Second COA (Assault and Battery): In a battery action against a police officer, plaintiff has the burden of proving unreasonable force as an element of the tort.  (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1274-1275—to require police officer to prove reasonable force as affirmative defense would “invite a flood of litigation.”) 

 

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. … [T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. …” ’ In calculating whether the amount of force was excessive, a trier of fact must recognize that peace officers are often forced to make split-second judgments, in tense circumstances, concerning the amount of force required.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527–528, internal citations omitted.)  “A police officer's use of deadly force is reasonable if ‘“‘the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’ …” …’ ” (Brown, supra, 171 Cal.App.4th at 528.)

 

Third COA (Negligence): The elements of a negligence claim are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  For purposes of negligence, police officers have a duty to use reasonable care in deciding to use and in fact using deadly force.  (Brown v. Ransweiler, supra, 171 Cal.App.4th at 534.) 

 

Seventh COA (Violation of 42 U.S.C. § 1983): In federal civil rights actions under 42 U.S.C. § 1983, the federal counterpart of state battery or wrongful death actions, the rule is that plaintiff must establish, as part of the affirmative case, the unreasonableness of the force used.  (Edison v. City of Anaheim, supra, 63 Cal.App.4th at 617.) 

 

Public officials sued for civil rights violations (under 42 USC § 1983) based on their performance of discretionary functions are entitled to a qualified immunity defense: i.e., they are immune from liability for their acts provided they did not violate “clearly established statutory or constitutional rights.”  (See Harlow v. Fitzgerald (1982) 457 US 800, 818; Saucier v. Katz (2001) 533 US 194, 202—“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”)  This defense generally turns on the objective reasonableness of the actions taken without regard to the knowledge or subjective intent of the official involved (i.e., the defense is not rebutted by evidence that defendant's conduct was “malicious” or otherwise improperly motivated). (Crawford-El v. Britton (1998) 523 US 574, 588.) 

 

Defendants submit evidence demonstrating that the officers’ use of force was reasonable under the circumstances.  (DSS ¶¶ 1-33.) 

 

Plaintiff, however, fails to raise a triable issue of fact as to the reasonableness of the force used by the officers.  Specifically, the majority of the pertinent facts are not disputed, i.e., the officers were informed Plaintiff had been consuming alcohol and had been involved in a fight with his stepson (DSS ¶ 2); the officers were advised Plaintiff’s wife reported he had been drinking, had taken pills and he had stated he wanted to take his life (DSS ¶ 7); the officers were advised Plaintiff had firearms, but one of the firearms were missing (DSS ¶ 8); the officers were advised Plaintiff kept other weapons in the garage (DSS ¶ 10); the officers were acquainted with Plaintiff and knew about his LAPD career, tactics and training (DSS ¶¶ 13-14); Plaintiff was actively resisting as he failed to obey the officers’ commands (DSS ¶¶ 16-23); Plaintiff verbally taunted the officers, moved forward keeping his hands near his waistband (DSS ¶¶ 16-23); and after securing Plaintiff, the officers found a pair of brass knuckles in his pants pocket (DSS ¶ 31). 

 

The undisputed facts demonstrate the officer’s response deploying a less-lethal bean bag round was reasonable to control a rapidly evolving and escalating situation. 

 

Accordingly, the motion for summary adjudication of issues (a), (b), (c) and (g) is granted.  Since all of the causes of action in the FAC have been adjudicated, the motion for summary judgment is granted. 

 

Motion for Summary Judgment:  Since all of the causes of action in the FAC have been adjudicated, the motion for summary judgment is granted. 

 

Moving Defendants are to give notice. 

 

 

 

 

 

 

 

 

8

Ross vs Linda Stone successor trustee

(1) Demurrer to Third Amended Complaint (TAC) (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  Defendant Orange Coast Title Company of Southern California’s Demurrer to the TAC is taken off calendar. The parties have not only failed to comply with Code of Civil Procedure section 430.41, they have now twice violated this Court’s orders.   The Clerk is to give notice.

 

MP had a demurrer to the SAC on calendar for 5-24-16. However, prior to that date it withdrew that motion (likely because a TAC had already been filed, mooting the demurrer).  On that same date, there was a CMC wherein the Court noted “All parties to comply with Code of Civil Procedure section 430.41 prior to filing a Demurrer.” Despite the Order of this Court and Code of Civil Procedure section 430.41, there was then no declaration pursuant to section 430.41 in connection with the Demurrer to the Third Amended Complaint on calendar for 8-16-16. Accordingly, the Court continued the demurrer to today’s date, 9-27-16 for the parties to comply with section 430.41.  No declaration as to any section 430.41 compliance has been filed with the court.

 

Accordingly, the Court takes the demurrer off calendar.

(2) CMC is continued to 11-10-16, Dept. C13, at 8:45 am. 

 

 

9

Smartstop Asset Management L.L.C. vs Premier Sports Group, LLC

(1) Demurrer to Complaint (2) Motion to Compel Arbitration      

 

Tentative Ruling:  (1-2) Defendants Premier Sports Group and James Bennett’s Demurrer to Complaint is OVERRULED and the Motion to Compel Arbitration is DENIED, without prejudice, as follows.

 

(1) As to the 1st COA (breach of contract) alleged by Plaintiff Smartstop Asset Management, L.L.C., this claim is sufficiently alleged for purposes of demurrer. The Complaint alleges in paragraph 16 that Smartstop Self Storage Operating Partnership, LP, sold its interests to a third-party, retained its ownership and management of its Canadian Properties and “now operates under the name Smartstop Asset Management, LLC.” The Complaint also alleges in paragraph 22 that Plaintiff Smartstop and Defendant Premier entered into a written contract on September 1, 2014. In ruling on a demurrer, the “court looks to the face of the complaint and treats the demurrer as admitting all the material facts alleged.” (Doheny Park Terrace Homeowners Ass'n, Inc. v. Truck Ins. Exch. (2005) 132 Cal. App. 4th 1076, 1085.)

 

The Court GRANTS judicial notice of Exhibits A and E-K only as to the existence of these contracts pursuant to Evidence Code section 452(g) and (h). However, “the truth of statements contained in the document and its proper interpretation are not subject to judicial notice…” (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 113.)

 

(2) The Court DENIES, without prejudice, Defendants’ alternative request for the Court to compel arbitration as to the 1st COA brought by Plaintiff Smartstop Asset Management, L.L.C. in the event it OVERRULES their Demurrer.

 

The Court also DENIES, without prejudice, Defendants’ request for the Court to compel arbitration of Plaintiffs Michael Creed, Rob Britton, Evan Huffman, Zach Bell, Eric Marcotte, and Bobby Sweeting’s claims against Defendants.

 

Each of the eight contracts at issue contain their own arbitration and/or mediation clauses and will need to be specifically addressed. Although Plaintiffs concede their claims are subject to arbitration and/or mediation, Plaintiffs do oppose the motions to compel arbitration on a limited basis. Plaintiffs are requesting that each of their claims be arbitrated together in one proceeding in California with Defendants ordered to pay for their half of the fees for arbitration.

 

The Court ORDERS Defendants to file a separate noticed Motion and Motion Compelling Arbitration and to specifically include briefing on the issues “limited opposition” of Plaintiffs identified above.

 

Defendants are ORDERED to Answer the Complaint within the next 30-calendar days.

 

Moving Party is to give notice.

 

 


 

 

10

Scilabs Nutraceuticals, Inc. vs Luberski, Inc.

(1) Motion for Terminating Sanctions (2) OSC re Dismissal (3) Review Hearing

 

Tentative Ruling:  Ranch’s unopposed Motion for Terminating Sanctions against Plaintiff/Cross-Defendant Paul Edalat is GRANTED. 

 

The court dismisses the claims made by Paul Edalat in the Third Amended Complaint, strikes the Answer filed by Paul Edalat to the First Amended Cross-Complaint, directs the clerk to enter default against Mr. Edalat on the First Amended Cross-Complaint, and imposes monetary sanctions against Mr. Edalat in the amount of $2,475.00.  Monetary sanctions are due within 30-days.  The court directs moving party to prepare a proposed Order and Judgment.  Moving party is to give notice

 


 

 

 

 

11

Thomas Gallaway Corp vs Call and Jensen

(1) Motion for Leave to File Amended Complaint (2) CMC          

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Plaintiff Thomas Gallaway Corp., dba Technologent’s motion for leave to file first amended complaint is denied without prejudice

 

Counsel for Plaintiff represents that this case is voluminous and that after spending a significant amount of time sorting through the evidence and discussing issues with Martin Deniston in particular over the course of the year, they both agreed it was appropriate to file a First Amended Complaint with more facts based on documents to streamline the issues in the case (Motion, Ryan Decl. ¶ 3); and that counsel removed some unnecessarily descriptive language, a few unsupported allegations, and did his best to draft a First Amended Complaint to make this case more accurately plead and focused (Id. at ¶ 4).   

 

Plaintiff, however, failed to comply with the requirements of CRC 3.1324.  Specifically, Plaintiff fails to specify WHEN the facts giving rise to the amended allegations were discovered, and WHY the request for amendment was not made earlier; and what allegations in the previous pleading are proposed to be deleted and/or added, if any, and where, by page, paragraph, and line number, the deleted and/or additional allegations are located.  Thus, the motion is denied without prejudice. 

 

(2) CMC is continued to 10-31-16, Dept. C13, at 8:45 am.

 

Defendants Call & Jensen and David Sugden are to give notice.

 

12

Waknine vs Club Series South Homeowners Association

Motion to File Undertaking  

 

Tentative Ruling:  Defendant Club Series South of Seacliff on the Greens' Motion for an order requiring plaintiff to file an undertaking pursuant to Code of Civil Procedure section 1030 is denied.  Defendants Seacliff On The Greens Community Association, and Huntington West Properties, Inc.’s joinder was taken off calendar.

         

The purpose of Code of Civil Procedure section 1030 is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within this court's jurisdiction; and prevent out-of-state residents from filing frivolous lawsuits against California residents.  (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331.)   

 

To prevail on the motion, the moving party must show: (1) the plaintiff resides out-of-state or is a foreign corporation; and (2) there is a reasonable possibility” the moving defendant will prevail in the action. (Code Civ. Proc., § 1030(a).)  Moving defendants have not established that plaintiff is not a resident of California.  To the contrary, the plaintiff presents evidence which establishes that she is not only a resident of California but has been for over 40 years.  As such, there is no basis to grant the relief requested.

 

MONETARY SANCTIONS AGAINST MOVING DEFENDANT, CLUB SERIES SOUTH'S COUNSEL, FOR FILING A MERITLESS MOTION:   In opposition to the motion, plaintiff requests that the court set a sanctions motion.  Plaintiff cites no authority, evidence or argument to supports an order setting a sanctions motion pursuant to Code of Civil Procedure sections 177.5, 128.7 et seq. or CRC 2.30.

 

A Code of Civil Procedure section 128.7 motion involves a two-step process. The moving party first serves the sanctions motion on the offending party without filing it. The opposing party then has 21 days to withdraw the improper pleading and avoid sanctions (the so-called “safe harbor” waiting period). At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (Code Civ. Proc., § 128.7(c)(1).) Plaintiff did not comply with the safe-harbor requirement of section 128.7.  Plaintiff has presented no evidence to support a finding that the defendants or their attorneys violated a Rule of Court such as to warrant sanctions pursuant to CRC 2.30. Nor has plaintiff presented evidence to support a finding that the defendants or their attorneys violated a court order such as to warrant sanction pursuant to Code of Civil Procedure section 177.5.

 

PLAINTIFF, THERESE WAKNINE'S OBJECTIONS TO DEFENDANTS' EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANTS' MOTION:  Objections 1 - 4 are overruled.  The testimony is not hearsay.  It is supported by a proper foundation.  The arguments go to the weight of the evidence, not its admissibility.

 

 


 

 

13

Walsh vs Vestiage, Inc.

Motion for Attorney Fees 

 

Ruling:  Off Calendar – no hearing will be held.  The unopposed Motion by Plaintiff, John P. Walsh, for an award of attorney fees from Defendant David Scott Kimball is GRANTED. 

 

Plaintiff is awarded attorney fees of $61,226.75, as costs. 

 

Moving Party is to give notice.

 

The Personal Guaranty entered into by Defendant provides for the recovery of attorney fees incurred in the enforcement of the Personal Guaranty.  (Motion, Walsh Decl., ¶ 5, Exh. A, ¶ 16.)  Plaintiff is the prevailing part in this action.  (See Judgment entered on July 8, 2016.)  Thus, Plaintiff is entitled to reasonable attorney fees as costs. 

 

To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present: (1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services.  (Martino v. Denevi (1986) 182 Cal.App. 3d 553, 558-59.)  In many cases, however, the trial court will be aware of the nature and extent of the attorney's services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file.  (Id. at 559.)  In California, testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.  (Id.)  If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred by the prevailing party, then the burden shifts to the opposing party to show that the items are unreasonable.  (Decoto Sch. Dist. of Alameda County v. M & S Tile Co. (1964) 225 Cal. App. 2d 310, 316-17.) 

 

When an attorney fee provision authorizes fees for some causes of action, but not others, allocation of fees is within the trial court's discretion.  (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604-1605— trial court did not abuse its discretion in failing to apportion fees when all causes of action relied on same facts and legal services for contract causes of action could not be separated from lawsuit as a whole; Thompson Pac. Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555-556.) 

 

Plaintiff requests an award of $62,051.75, based upon a reduced hourly rate of $275.00 per hour.  Specifically, attorney Holly Walker represents she spent 186.11 hours ($51,180.25), which includes the time spent preparing this motion and anticipated time attending the hearing at 3.0 hours, prosecuting this case through summary adjudication and entry of judgment; and that attorney Mark N. Strom has spent 37.50 ($10,312.50) prosecuting this case, for a combined total of 223.61 hours of time spent.  (Motion, Walker Decl. ¶ 7.)  Counsel also represents all of the time was reasonable and necessary to accomplish the required tasks, and to enable Plaintiff to prevail in this action.  (Ibid.)  A copy of the statement of account is attached as Exhibit “A.”  (Id., ¶ 8, Exh. A.) 

 

It appears the hourly rate charged by counsel is reasonable.  It also appears that based on the history of this case that the hours spent is reasonable and that allocation of fees is not necessary since all causes of action relied on same facts and the breach of personal guaranty claim cannot be separated from lawsuit as a whole.  The motion is not opposed. Thus, the motion is granted with a deduction of three hours of time ($825.00) for attending the hearing, for a total of $61, 226.75.