LAW AND MOTION PROCEDURES AND POLICIES FOR CENTRAL JUSTICE CENTER DEPT CX102
CENTRAL
The Honorable Richard J. Oberholzer
for
The Honorable Linda S. Marks
The Orange County Superior Court has implemented administrative orders, policies, and procedures noted on the Court’s website to address the limitations and restrictions presented during the COVID-19 pandemic at Civil Covid-19. Due to the fluid nature of this crisis, you are encouraged to frequently check the Court’s website at https://www.occourts.org for the most up to date information relating to Civil Operations.
OBTAINING THE RULINGS:
Tentative rulings will usually be posted on the Internet by the day of the hearing. If your Internet service is not available, you may contact the clerk in Dept. CX 102 (657) 622-5302 to receive a copy of the tentative ruling via email. Tentative rulings are not posted on every case.
APPEARANCES:
If you are appearing remotely using the Zoom video-audio platform, please make sure your equipment is working properly since the court will require appearances that are both video and audio, not just audio.
Counsel and parties are required to observe the typical rules and procedures related to court appearances, including rules related to proper attire. Counsel and parties shall use their best efforts to eliminate all visual and auditory distractions. Please be mindful when you turn on your video that your background screen is appropriate for a remote court appearance.
SUBMISSION ON THE TENTATIVE
If a tentative ruling is posted and ALL counsel intend to submit on the tentative without oral argument, please advise the clerk via email as soon as possible. The email should be directed to CTownsend@occourts.org and copied to EVeloz@occourts.org. If all sides submit on the tentative ruling and so advise the Court, the tentative ruling shall become the Court’s final ruling and the prevailing party shall give Notice of Ruling. If there is no submission or appearance by either party, the Court will determine whether the matter is taken off calendar or will become the final ruling.
ORDERS
The Court’s minute order will constitute the order of the Court and no further proposed orders are required to be submitted, unless the Court or the law specifically requires otherwise. Where an order is specifically required by the Court or by law, the parties are required to do so in accordance with California Rules of Court, rule 3.1312(c) (1) and (2).
Where a proposed order is required (even where the motion is unopposed), the parties are ordered to submit it in 2 formats. One copy is to be filed in Word (without attachments), and another copy in .pdf format with all attachments/exhibits attached to it in accordance with the procedure set forth in CRC, rule 3.1312 (c) (1) and (2). Even when the order is unopposed and even when it is sought by stipulation, it must be submitted in these 2 formats in compliance with the procedure set forth in CRC, rule 3.1312 (c) (1) and (2).
Failure to follow CRC, rule 3.1312 may result in the order and/or the exhibits to the order not being brought to the Court’s attention. If in doubt, please consult your electronic service provider or the clerk in Department CX 102 at (657) 622-5302.
ARGUMENT:
Hearings on Civil Motions are heard Mondays at 10:00 a.m. All requests for oral argument will be granted. Argument will normally be limited to facts, law and argument not already submitted in the written Points & Authorities.
Depending on the length of the calendar, the Court will accept requests for Priority. Please advise the Court Clerk at time of check in.
NOTICE TO COUNSEL:
Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counsel appears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may be imposed.
COURT REPORTERS:
COURT REPORTERS: Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department. If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter. Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:
TENTATIVE RULINGS
Monday
July 31, 2023 at 10:00 AM
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1 |
Baden vs. Wang
2022-01245417 |
Motion to Compel Deposition (Oral or Written) filed by Riley C. Baden on 3/30/23
Continued to 10/23/2023 |
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Barriga vs. American Honda Motor Co., Inc.
2022-01253659 |
Motion to Compel Production filed by Salvador Barriga on 3/20/23 Plaintiff Salvador Barriga aka Salvador Barrigo (“Plaintiff”) moves to compel Defendant American Honda Motor Co., Inc. (“Defendant”) to serve further responses to Requests for Production of Documents Nos. 18, 22-23, 26-31, and 45-46, and imposing monetary sanctions in the amount of $3,172.50. A demanding party may move for an order compelling further response to a demand for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must set forth specific facts showing good cause to justify the discovery sought and be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310(b)(1)-(2).) Requests for Production of Documents No. 18 Tentative Ruling: The Motion is DENIED as MOOT as to No. 18, as Defendant represents that it has served a further response. Requests for Production of Documents Nos. 22-23 and 26-31 These requests seek several categories of policies and procedures from Defendant. Defendant’s responses indicate that it is unable to comply the requests because no such documents have ever existed. Plaintiff argues further responses should be compelled because it is highly unlikely that Defendant has no such written policies and procedures. Plaintiff argues that without formal training policies and procedures, Defendant would have to train new employees by word of mouth. The Court finds that Defendant’s responses are Code-compliant and sufficient. Plaintiff’s argument that it is unlikely that no responsive documents exist is unsupported and Plaintiff has therefore failed to support this Motion with specific facts showing good cause to justify an order compelling further response. Tentative Ruling: The Motion is DENIED for Requests for Production of Documents Nos. 22-23 and 26-31. Requests for Production of Documents Nos. 45-46 These requests seek all documents evidencing complaints by owners of 2020 Honda Odyssey vehicles regarding any of the complaints Plaintiff had regarding the subject vehicle and all documents evidencing warranty repairs to 2020 Honda Odyssey vehicles regarding any of the components upon which repairs were performed under warranty. Plaintiff argues these documents are relevant to whether a defect or nonconformity existed in the subject vehicle, Defendant’s failure and/or inability to repair that defect or nonconformity, and whether Defendant’s refusal to repurchase or replace the vehicle was willful, thereby subjecting Defendant to civil penalties. Defendant contends these requests are overbroad in that they are not limited to the Plaintiff’s own subject vehicle and only those repairs and complaints made regarding Plaintiff’s own vehicle are relevant here. The Court finds that documents evidencing other customers’ complaints similar to the alleged defects claimed by the plaintiff, limited to vehicles of the same year, make, and model of the subject vehicle are relevant to Plaintiff’s claims. If there are documents showing that a large number of other customers experienced complaints with their 2020 Honda Odysseys similar to Plaintiff’s, Plaintiff could use that to prove the existence of a defect or nonconformity. However, to limit the burden on Defendant, the Court finds that this request should be limited to only those vehicles of the same year, make, and model as the subject vehicle purchased in California. Tentative Ruling: The Motion is GRANTED as to Request No. 45 with the limitation of applying only to those vehicles of the same year, make, and model as the subject vehicle purchased in California. Request No. 46 Plaintiff’s arguments in support of further response are the same as with No. 45—the documents will show whether a defect or nonconformity existed in Plaintiff’s vehicle and Defendant’s inability to repair such defect or nonconformity. While complaints about vehicles of the same make, model, and year may tend to show that Plaintiff’s own vehicle had a defect or nonconformity, records regarding warranty repairs in other vehicles has no bearing on Defendant’s ability to repair Plaintiff’s subject vehicle. Only the repair records for Plaintiff’s own vehicle are relevant to this issue. Tentative Ruling: The Motion as to Request No. 46 is DENIED. The Court finds that Defendant acted with substantial justification in opposing the instant Motion and therefore declines to award monetary sanctions. Plaintiff to give notice.
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CHADBOURNE vs. HARTNETT
2022-01246058 |
1. Motion for Attorney Fees filed by Jodi Chadbourne, Coleen
High and Timothy Hartnett on 3/24/23
Motion #1: Plaintiffs Jodi Chadbourne, Colleen High, and Timothy Hartnett (“Plaintiffs”) move for an award and reapportionment of Plaintiffs’ attorney’s fees and costs incurred in this action based on the grounds that Defendant Mary Kathrine Hartnett’s (“Defendant”) inequitable actions forced Plaintiffs to incur unnecessary attorney’s fees that could have been entirely avoided. Referee David M. Goodrich (“Referee”) moves for an order approving the Referee’s Final Report, approving the fees and costs of the Referee, authorizing the Referee to distribute funds, authorizing the Referee to execute any and all documents necessary to close all bank accounts and issue 1099s, relieving the Referee of any further duties and obligations upon distribution of all proceeds, and authorizing the Referee to exonerate/cancel the bond posted for the sale. Code of Civil Procedure section 874.040 provides: “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” “There is no ambiguity in the language of section 874.040. It simply states that the trial court must apportion the costs incurred in a partition action based upon either the parties’ interests in the property, or equitable considerations.” (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1025, emphasis in original.) The costs of partition expressly include reasonable attorney’s fees incurred or paid by a party for the common benefit and the fee and expenses of the referee. (Code Civ. Proc., § 874.010.) “Whether the services are for the common benefit must be decided upon the facts and circumstances in each particular case.” (Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 433.) “[T]he purpose of the statute is to divide the cost of the legal services among the parties benefitted by the result of the proceeding.” (Ibid.) Equitable apportionment should be the exception rather than the rule. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 546.) Costs of partition should normally be apportioned in proportion to the interests of the parties but may be equitably apportioned where litigation for the common benefit arises among only some of the parties, or where the interest of the parties are not identical. (See id. at pp. 546-548.) Neither of the two instances which call for equitable apportionment are found here. This litigation has not arisen among only some of the parties interested in the property; all those who had an ownership interest in the property are named parties. Further, the interests of the parties are identical. Each Plaintiff and Defendant owned an undivided 25% interest in the property prior to its sale. Thus, the Court finds that the attorney’s fees and costs should be apportioned among the parties equally. The Court finds the number of hours expended to be reasonable. Plaintiffs’ counsel has spent more than 95.3 hours prosecuting this partition action. (Declaration of Paul A. Hoffman, ¶ 12.) The attorneys who performed work in this action have billing rates of $395 and $300 pr hour. (Id. ¶ 6.) Before filing this lawsuit, Plaintiffs’ counsel sent a letter to Defendant to request that she agree to sell the subject property to avoid the filing of this lawsuit. (Id. ¶ 2.) Defendant failed to sign or return the proposed agreement. (Ibid.) After this lawsuit was filed, Defendant failed to respond or answer, which led to the entry of default. (Id. ¶ 4.) The Court further finds the billing rates and total amount of fees to be reasonable. (See Hoffman Decl., Ex. 6 [billing records].) Tentative Ruling: Plaintiff’s Motion for an award of $39,513.30 in attorney’s fees and costs is GRANTED. However, the request that the total of attorney’s fees and costs be apportioned to Defendant only is DENIED. The attorney’s fees and costs shall be apportioned equally among the parties. Motion #2 Receivers must prepare, serve and file (by noticed motion or stipulation of all parties) a “final account and report, a request for discharge, and a request for exoneration of the receiver’s surety.” (Cal. Rules of Court, Rule 3.1184(a).) If the report seeks allowance for compensation to the receiver or attorneys for the receiver, it must state in detail what services were rendered and whether previous allowances have been made. (Id., Rule 3.1184(d).) Upon approval of the receiver’s report and accounting, the receiver is normally discharged, and the bond exonerated. The order discharging the receiver and settling the account is res judicata as to all claims against the receiver. (Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 234.) Here, the Court finds that the Referee has complied with the requirements for filing and serving a final account and report, request for discharge, and request for exoneration of surety. The Referee has incurred a total of $14,944.14 in fees and costs in this action. (Declaration of David M. Goodrich, ¶ 15, Ex. 11.) The property at issue in this matter has been sold and the Referee has received net sale proceeds of $2,326,550.80. (Id. ¶ 9.) As discussed above, the costs of partition which may be apportioned among the parties expressly include the fee and expenses of the referee. (Code Civ. Proc., § 874.010.) As with the attorney’s fees and costs, the Court finds no reason why the fees and expenses of the Referee should not be apportioned equally among the parties. Tentative Ruling: The Referee’s Motion is GRANTED with an order that the Referee’s fees and expenses be equally apportioned among Plaintiffs and Defendants. Plaintiffs to give notice
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4 |
Edmond vs. Brandt
2021-01212238 |
Motion to Compel Deposition (Oral or Written) filed by Raymond E. Brandt on 3/21/23
Off Calendar |
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5 |
Elias vs. Jensen
2020-01139897 |
Motion for Judgment on the Pleadings filed by Thomas and Theodore McIntosh on 3/15/23 The Motion for Judgment on the Pleadings filed by Defendants Thomas McIntosh and Theodore McIntosh (the “McIntosh Defendants”) is CONTINUED to a date to be determined at the hearing on 7/31/2023. Plaintiff, David Elias’s Request for Continuance is DENIED. However, the Court continues the motion as set forth below. No declaration is attached to the motion or separately but concurrently filed with the motion establishing compliance with the meet and confer requirements of Code of Civil Procedure section 439. (See ROA 205.) Tentative Ruling: The Court ORDERS Plaintiff and the McIntosh Defendants to schedule a telephonic meet and confer conference to take place within 10 days to discuss each issue raised by the motion. The McIntosh Defendants to file a declaration in compliance with Code of Civil Procedure section 439(a), no later than five (5) court days before the new hearing date. No other briefing is allowed. Clerk to give notice
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Lee vs. Chapin Developers
2022-01256157 |
Motion for Leave to File Cross Complaint filed by Chapin Developers on 5/10/23
Defendant Chapin Developers (“Chapin”) seeks leave to file a cross-complaint against Plaintiffs Nina Lee and Kenneth Lee for Breach of Contract and Common Counts. The motion is unopposed. A party against whom a complaint has been filed may file a cross-complaint asserting a cause of action against the person who filed a complaint against him. (CCP §428.10(a).) If a party against whom a complaint has been filed fails to allege in a cross-complaint any “related” cause of action he has against the plaintiff, such party may not thereafter in any other action, assert against the plaintiff, the “related” cause of action not pleaded. (CCP §426.30(a).) If a person failed to file a compulsory cross-complaint, whether through oversight, inadvertence, mistake, neglect or other cause, he can seek leave to file it at any time during the course of the action. (Code Civ. Proc. § 426.50.) The court “shall” grant leave so long as defendant is acting in good faith. (Id.; see also Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99 [even on “eve of trial,” leave to file compulsory cross-complaint is mandatory absent bad faith].) “[A] strong showing of bad faith [must] be made in order to support a denial of the right to file a cross-complaint under this section.” (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) Here, the proposed cross-complaint is transactionally related to the main action, and the interests of justice would be furthered by granting leave. (CCP §§ 426.10(c), 426.50.) This is an action to quiet title to property located in Orange, California. The proposed cross-complaint concerns the failure to pay rent for use of the same property. The causes of action in the cross-complaint arise out of the same series of transactions or occurrences as those alleged in the complaint. Tentative Ruling: The motion for Leave to File Cross Complaint is GRANTED. Defendant is ORDERED to file the proposed Cross-Complaint attached to the Declaration of Stephen G. Hammers as Exhibit 1 without any changes, modifications, or alterations within 10 days. Moving party to give notice.
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Montoya vs. Palafox
2022-01239435 |
Motion for Summary Judgment and/or Adjudication filed Aaron
Fowler, MD, Inc. and Aaron Fowler on 5/16/23
Plaintiffs allege in the Complaint that Defendants negligently failed to diagnose and treat plaintiff Kimberly Montoya’s left middle cerebral artery infarct in a timely manner and, as a result, she suffered permanent and catastrophic injuries. (Compl. ¶23.) Plaintiff Kimberly Montoya asserts a cause of action for medical negligence and her husband, Andrew Montoya, asserts a cause of action for loss of consortium. First Cause of Action for Medical Negligence The elements of a professional negligence cause of action are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420; Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment a reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983-984.) “The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) When a defendant moves for summary judgment on a professional negligence claim and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of Univ. of California (1989) 215 Cal.App.3d 977, 984-985.) Defendants submitted a declaration from Robbin Cohen, M.D., who states his qualifications and the records he reviewed to support his opinion. (Cohen Decl., ¶¶2, 4-5.) He ultimately opines that “Dr. Fowler met the standard of care for cardiothoracic surgeons in the State of California in 2021 in all respects in the care and treatment provided to Kimberly Montoya.” (Cohen Decl., ¶8.) He also opines that “there is nothing Dr. Fowler did or failed to do in violation of the standard of care that was a substantial factor in negligently causing or contributing to any injury of the plaintiff.” (Cohen Decl., ¶10.) Defendants also submitted a declaration from Thomas Ela, M.D. Dr. Ela states his qualifications and the records he reviewed to support his opinion. (Ela Decl., ¶¶2, 4-5.) Dr. Ela opines that, at the time Dr. Fowler first saw Mrs. Montoya, calling a code stroke, including obtaining a CT scan of the brain would not have changed Mrs. Montoya’s treatment and outcome. (Ela Decl. ¶12.) In opposition to the motion, Plaintiffs submit declarations from their own experts, Robert Shuman, M.D. and Todd Lempert, M.D. Dr. Shuman states his qualifications and the records he reviewed to support his opinion. (Shuman Decl., ¶¶4-12.) Dr. Shuman opines that the standard of care required Dr. Fowler to immediately call a Code Stroke and/or order a STAT CT scan of Mrs. Montoya’s head, which he did not do. (Shuman Decl. ¶20.) Plaintiff’s other expert, Dr. Lempert, states his qualifications and the records he reviewed to support his opinion. (Lempert Decl., ¶¶4-10.) Dr. Lempert is a physician with experience in thrombectomies and embolectomies for patients with evolving strokes. (Lempert Decl. ¶9.) He testifies that “an interventional radiologist such as [himself] is the medical specialist who determines whether a thrombectomy will medically benefit a stroke patient.” (Id.) Dr. Lempert opines that the calling of a Code Stroke at around 0800 on February 20, 2021 would have changed Kimberly Montoya’s treatment and her ultimate catastrophic outcome. (Lempert Decl., ¶18.) Dr. Lempert opines that, to a reasonable degree of medical probability, Mrs. Montoya’s stroke occurred sometime after 1505 when the anesthesiologist gave her Protamine to reverse the effect of heparin (an anticoagulant). (Lempert Decl., ¶17.) Had a Code Stroke been called at 0800, a CT scan and CT perfusion scan of the head would have been performed. To a reasonable degree of medical probability, these studies would have shown salvageable brain tissue and she would have undergone mechanical thrombectomy. (Lempert Decl., ¶18.) According to Dr. Lempert, this treatment would have significantly improved her clinical functioning in the area of her brain where the stroke occurred. (Id.) Defendants contend that Dr. Lempert’s causation opinion is speculative and not supported by reasoned facts. The court disagrees. In connection with a motion for summary judgment, “[t]he moving party's evidence is strictly construed, while that of the opponent is liberally construed, and any doubts as to the propriety of granting the motion are resolved in the opponent's favor.” (Smith v. Freund (2011) 192 Cal.App.4th 466, 471, citing Greenberg v. Superior Court (2009) 172 Cal.App.4th 1339, 1346.) Contrary to Defendants’ assertion, the declarations at issue in this case are distinguishable from those at issue in Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146. In Sanchez, Plaintiff’s expert testified that Plaintiff “should have been transported immediately.” (Sanchez at 157.) However, the expert ignored the undisputed evidence that Plaintiff could not have been transported any faster. Thus, his opinion was based on assumed facts that were contrary to the undisputed facts of the case. In addition, Defendant’s expert testified that there was no medical literature supporting the theory that delays in treatment of less than thirty minutes affect patient outcome in cases of subdural hematoma. Plaintiff’s expert provided nothing to rebut that testimony. (Id. at 162.) Here, unlike in Sanchez, the testimony of Dr. Lempert has been supported with reasoned facts. Defendants do not disagree with the facts relied upon by Dr. Lempert, but, rather, argue that his opinion is not supported by enough facts. Based on the parties’ expert declarations, there are triable issues of fact as to whether the conduct of Defendants fell below the standard of care and as to causation. Second Cause of Action for Loss of Consortium As Plaintiff Andrew Montoya’s claim for loss of consortium is wholly dependent on his wife’s medical negligence claim, there are triable issues of fact as to that cause of action as well. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 (“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”; “The elements of a loss of consortium claim are: 1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant's act.”) Tentative Ruling: The motion of Defendants Aaron Fowler, M.D. and Aaron Fowler, M.D., Inc. (“Defendants”) for summary judgment or, in the alternative, for summary adjudication, is DENIED. Defendants’ objections to the declarations of Dr. Lempert and Dr. Shuman are OVERRULED. Moving parties to give notice.
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Orozco vs. General Motors, LLC
2021-01235248 |
Motion to Compel Deposition (Oral or Written) filed by Adriana A. Orozco on 3/22/23
Plaintiffs Adriana Angelica Orozco and Juan Rivera Sierra (“Plaintiffs”) move to compel the deposition of General Motors’ person most knowledgeable on 29 topics. On reply, Plaintiffs clarify that they are not compelling Defendant to produce the documents requested notice of deposition. Therefore, the court will not address the requests for production that accompany the notice of deposition. As Defendant correctly points out, if Plaintiffs were seeking to compel production, a separate statement would be required pursuant to California Rules of Court, rule 3.1345(a). As California Rules of Court, rule 3.1345(a) states, “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement,” including a motion to “compel or to quash the production of documents or tangible things at a deposition.” (Cal. Rules of Court, rule 3.1345, subd. (a)(4).) The parties appear to agree that Defendant’s person most knowledgeable should testify regarding categories 1, 2, 3, 4, 9, 14, 15, and 29. The court will not address these categories and Defendant is ordered to produce its person most knowledgeable as to these categories. Tentative Ruling: The Motion is granted as to Categories 5, 6, and 20. Defendant put Category 20 at issue by its 18th Affirmative Defense. The Motion is granted as to Categories 10, 11, 12, 13, 16, 17, 23, and 24 but limited to vehicles the same year, make and model of the subject vehicle. The Motion is granted as to Category 27 but limited to discussion of any policy and/or procedure used to evaluate customer requests for repurchase pursuant to the Song-Beverly Consumer Warranty Act, from the date of purchase to the present. The Motion is denied as to Categories 7, 8, 18, 19, 21, 22, 25, 26, and 28 on the grounds that they are overbroad. No sanctions are awarded. Plaintiffs to give notice.
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Quay Works LLC vs. Morris Cerullo World Evangelism
2019-01056982 |
Motion for Attorney Fees filed by Morris Cerullo World Evangelism on 4/4/23
Cross-Defendant/Cross-Complainant, Morris Cerullo World Evangelism (“Cross-Defendant” or “MCWE”) moves for an order awarding attorney fees and costs against Cross-Complainants Dennis D’Alessio (“D’Alessio”), Vertical Media Group, Inc., and Newport Harbor Ventures, LLC (collectively “Cross-Complainants”), jointly and severally under Code of Civil Procedure section 425.16(c)(1) as the prevailing party under the anti-SLAPP statute. MCWE requests an award of $53,494 against Cross-Complainants, inclusive of fees for the anti-SLAPP motion ($41,339), and the instant fee motion ($12,155). Code of Civil Procedure section 425.16(c)(1) provides that a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.” “[U]nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fees “should ordinarily include compensation for all hours reasonably spent, including those relating solely to the fee. [Citation.]” (Id. at pp. 1133, 1141.) It is undisputed that MCWE prevailed on its anti-SLAPP motion on the Cross-Complaint brought by Cross-Complainants Dennis D’Alessio, Vertical Media Group, Inc., and Newport Harbor Ventures, LLC, and is entitled to attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c)(1). (See ROA 486, 03/13/23 MO.) Reasonableness of Fees for the Anti-SLAPP Motion The lodestar method is used for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342.) The court first determines the time spent and the reasonable hourly compensation of each attorney and then determines whether that lodestar figure should be adjusted based on relevant factors. (Ibid.) “As the moving party, the prevailing defendant seeking fees and costs ‘ “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” [Citation.] To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.] ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]’ (Ibid.) The court also may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]’ [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. V. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) “When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Ibid.) Here, MCWE seeks 71 hours for Attorney Daniel Watts, and 12.2 hours for paralegals Jill Trost and Linda Koller. (Declaration of Daniel Watts, ¶ 16; Ex. E, ROA 499.) As noted by Cross-Complainants, this totals 83.2 hours, not 93.2 hours. The Court deducts 0.3 hours by Linda Koller on May 8, 2020, and 0.6 hours by Attorney Watts on April 9, 2020, as these entries do not appear to be for time spent on the anti-SLAPP motion. The Court reduces the following block billed time entries by the paralegals which totals 7.9 hours by 20%: · October 25, 2022 - Jill Trost (2 hours) work includes demurrer and motion to strike NHOM’s Answer · May 26, 2020 – Linda Koller (1.3 hours) · May 11, 2020 – Linda Koller (1.5 hours) fees for work on discovery requests/responses · April 9, 2020 – Linda Koller (2.1 hours) fees for work on discovery requests/responses · March 12, 2020 – Linda Koller (1 hour) This results in a reduction of 1.58 hours (7.9 hours x. 0.20), rounded to 1.6 hours, from the paralegal time. Cross-Complainants additionally argue that the hours claimed by MCWE are unreasonable and include time that cannot be recovered, such as the following: · March 13, 14, 2023 – Attorney Watts (0.5 hours and 1.5 hours respectively) to review and analysis court’s tentative order on anti-SLAPP motion, and to prepare for and oral argument at hearing · April 3, 7, and 8, 2020 – Attorney Watts (0.2 hours, 0.6 hours, 0.5 hours, respectively) for communications that involve non-essential work · April 1, 2020 – Attorney Watts (1.5 hours) researching the basic rule that speculative damages are not available · March 26, 2020 – Attorney Watts (7.3 hours) for arguments that would be included in a demurrer None of these entries appear unreasonable, and appear to be reasonably spent on the anti-SLAPP motion. Based on the foregoing, the Court finds that 70.4 hours by Attorney Watts and 10.3 hours by the two paralegals to be time reasonably spent on the anti-SLAPP motion. Reasonableness of Hourly Rates MCWE contends that the hourly rates for $550 per hour for 12th-year attorney, Daniel Watts, and $150 per hour for paralegals Jill Trost and Linda Coller, are reasonable, and that these rates have already been found reasonable Judge Richard Lee in December 2022. (Declaration of Daniel Watts, ¶¶ 14(1), 15, 16; Exs. F, G, ROA 499.) In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.) The reasonableness of the hourly rates is not opposed. The requested hourly rates appear to be reasonable and commensurate with the prevailing rates charged by attorneys and paralegals with similar experience, practicing in the same area of law within the County of Orange, and these rates for Attorney Watts and Paralegals Trost and Coller have been recently awarded in another case. Therefore, attorney’s fees in the amount of $40,265 ($38,720 for Attorney Watts and $1,545 for two paralegals) was reasonably spent on the anti-SLAPP motion. Fees for Instant Motion Cross-Complainants argue that MCWE does not provide any basis for the hours requested in preparation of the instant fee motion and simply asks for a flat rate without providing evidence of time spent. The Declaration of Daniel Watts states, “attorney Daniel Watts spent 15.6 hours reviewing time entries and redacting them, as well as researching and drafting this fee motion and supporting declaration, which will be billed to the client during our next monthly billing cycle. I estimate I will spend an additional 5.0 hours on the reply brief in support of this fee motion and 1.5 hours on oral argument which totals 22.1 hours.” (Watts Decl., ¶ 16, ROA 499.) The Court deducts 5.0 hours on the reply brief should be This results in a total amount of 17.1 hours (22.1 hours – 5 hours) which appears reasonably incurred for the instant fee motion. Thus, the Court awards $9,405 for fees incurred for this motion. Tentative Ruling: Based on the foregoing, the Court GRANTS the motion and AWARDS a total of $49,670 ($40,265 + $9,405) in attorney’s fees against Cross-Complainants Dennis D’Alessio, Vertical Media Group, Inc., and Newport Harbor Ventures, LLC, jointly and severally. Fees Against D’Alessio Cross-Complainants cite to authority providing that a judge may consider the losing party’s financial circumstances when determining a reasonable fee, and that a judge has discretion to determine that a reasonable fee award is $0 when the losing party is unable to pay the fee award, but makes no such arguments and presents no evidence in support of these contentions. Instead, they argue that fees should not be imposed against D’Alessio as his new counsel did not draft the current cross-complaint, and that as D’Alessio was not a party to either the Management Contract or Settlement Agreement, it is unclear why D’Alessio was named as a party to this Cross-Complaint. This argument is made without citation to authority supporting that such facts would support a refusal to impose fees against D’Alessio. Arguments not supported by authority are waived. (See Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165 [issues mentioned “without fully or properly briefing them” are waived]; Mission Shores Assn. v. Pheil (2008) 166 Cal. App. 4th 789, 796 [noting that “every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived and pass it without consideration. [Citations.]”]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [legal proposition not supported by authority is forfeited].) The Court GRANTS Cross-Complainants’ Request for Judicial Notice
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10 |
Rivera vs. M703 Kroger West
2022-01241515 |
1. Motion to Be Relieved as Counsel of Record filed by William
Rivera on 3/27/23 Arin Khodaverdian (“Moving Attorney”) moves to be relieved as counsel of record for Plaintiff William Rivera. The motion is unopposed. Moving Attorney has stated a basis for permissive withdrawal under Rules of Professional Conduct, Rule 1.16. The motion satisfies the notice, declaration, and proposed order requirements of Cal. Rules of Court, Rule 3.1362. Tentative Ruling: The Motion to be Relieved is GRANTED. The order relieving counsel will be effective upon counsel filing proof of service of a of the signed order on the client and on all parties that have appeared in the case. (California Rules of Court, Rule 3.1362(e).). Moving Attorney shall give notice
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11 |
Salehpour vs. Pyfrom
2015-00817971 |
Motion to Compel Further Responses to Form Interrogatories filed by Roya Salehpour on 3/13/23
Plaintiff moves to compel Defendant’s further response to Form Interrogatory No. 15.1 on the grounds that his response is insufficient. Further, Plaintiff contends Defendant had previously agreed to supplement the response in email correspondence, but later changed his mind. In opposition, Defendant does not address the sufficiency of his response, but argues that he does not need to provide a further response at all given the fact that he filed an amended answer. Defendant admits in correspondence filed under ROA 208 that amended answer “remains the same, absent the titles.” Thus, the disputed affirmative defenses remain the same. Further Form Interrogatory 15.1 requests Defendant to provide information regarding each denial of a material allegation and each special or affirmative defense in his “pleadings” and the Answer to the SAC would be the “pleading.” Defendant fails to cite any authority support Defendant’s position and his position appears contrary to the limitations on discovery, as serving the exact same interrogatory would be objectionable as duplicative and the Civil Discovery Act limits the how many times an interrogatory may be asked, but instead permits a party to serve three supplemental interrogatories. (See, CCP §§ 2030.030, 2030.070; also, Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 493 [Where a party has clearly failed to meet the time limits to bring a motion to compel further responses, he may not reset the clock through the stratagem of asking the same question again.) Tentative Ruling: Plaintiff Roya Salehpour’s Motion to Compel Defendant’s Further Response to Form Interrogatory 15. 1 is GRANTED. Defendant is ORDERED to provide further, verified responses to Form Interrogatory 15. 1 within 14 days’ notice of this ruling. Plaintiff’s request for sanctions is DENIED. Moving Party to give notice.
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12 |
Reed vs. Ghanem
2021-01225738 |
Motion to Compel Deposition (Oral or Written) filed by Ahd Ghanem on 6/22/23
Off Calendar – Notice of Settlement Filed
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13 |
West L.A. Properties vs. The Bruery, LLC
2023-01318419 |
Application for Right to Attach Order/Writ of Attachment filed by West L.A. Properties on 4/28/23
Plaintiff West L.A. Properties (“Plaintiff”) filed an Application for Right to Attach Order and Order for Issuance of Writ of Attachment in the amount of $44,156.09. The court notes that Defendant failed to timely file and serve its opposition pursuant to Code of Civil Procedure sections 1005 and 484.060. Code of Civil Procedure section 484.060 states: “If the defendant desires to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall file and serve upon the plaintiff no later than five court days prior to the date set for the hearing a notice of opposition. The notice shall state the grounds on which the defendant opposes the issuance of the order or objects to the amount sought to be secured by the attachment and shall be accompanied by an affidavit supporting any factual issues raised and points and authorities supporting any legal issues raised. If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc., § 484.060.) Here, there is no proof of service filed in support of the opposition. The opposition was also filed on 07/25/2023 but was due 07/24/2023. Even without considering the late opposition, the court finds that Plaintiff has not carried its burden. But here the court considers the late opposition to address and circumvent raising of the same issues in a subsequent filing. An “attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” (Code Civ. Proc., § 483.010, subd. (a).) Importantly, a court must find the following before it issues a right to attach order: “(1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero.” (Code Civ. Proc., § 484.090, subd. (a).) “A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1118 [citing Code Civ. Proc., § 481.190].) “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.” (Code Civ. Proc., § 484.030.) Code of Civil Procedure section 484.020 sets forth the specific information that must be included in the application and executed under oath. “The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.” (Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106.) Here, the court finds that Plaintiff has not carried its burden. First, Plaintiff has not provided a “description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment” as required pursuant to Code of Civil Procedure section Code Civ. Proc., § 484.020(e). Moreover, Plaintiff also has not established the requisite probable validity of its breach of lease claim. To succeed on its claim, Plaintiff must establish damages. The court finds that Defendant has presented sufficient evidence and legal authority that calls into question whether Plaintiff will obtain a judgment against Defendant on its breach of lease claim. As Defendant correctly argues, “[u]nless the total detriment suffered, whether by loss of rentals or consequential damages, exceeds the amount to be received under the new lease there is in fact no detriment, and hence no damages.” (Willis v. Soda Shoppes of California, Inc. (1982) 134 Cal.App.3d 899, 905.) Defendant’s objections are OVERRULED. Tentative Ruling: The Application is DENIED WITHOUT PREJUDICE. Defendant to give notice
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