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Ruling
HYSON vs SELECT PORTFOLIO SERVICING INC.
Sep 01, 2024 |CVPS2403212
HYSON vs SELECT PORTFOLIO Motion to be Relieved as Counsel forCVPS2403212SERVICING INC. LINDA HYSONTentative Ruling: Grant. Moving counsel is ordered to lodge with the Court within 5 days a revisedproposed order including all upcoming hearing dates. Counsel is reminded that they are not relieveduntil they have filed with the Court proof of service of the signed order upon their client.
Ruling
TOURAJ BEROOKHIM AND MAHIN ZARGARI BEROUKHIM, TRUSTEES OF THE 2008 TOURAJ BEROOKHIM AND MAHIN ZARGARI BEROUKHIM REVOCABLE TRU VS ELENOR BEROUKHIM GABAY, ET AL.
Aug 29, 2024 |22SMCV02216
Case Number: 22SMCV02216 Hearing Date: August 29, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 29, 2024 CASE NUMBER 22SMCV02216 MOTION Referees Motion For An Order For Final Distribution of Sale Proceeds MOVING PARTY Referee Richardson C. Griswold OPPOSING PARTY none BACKGROUND On November 3, 2022, Plaintiffs Touraj Berookhim and Mahin Zargario Beroukhim, Trustees of the 2008 Touraj Berookhim and Mahin Zargari Beroukhim Revocable Trust dated October 3, 2008 (Plaintiffs) filed this partition action against Defendants Elenor Beroukhim Gabay (Gabay) and Mansoor Berookhim (Mansoor) regarding real property co-owned by the three siblings, Plaintiff Touraj and Defendants Gabay and Mansoor. In 2004, Molook Ghayoum (Ghayoum) transferred ownership of her condominium to her two sons, Plaintiff Touraj and Defendant Mansoor, and her daughter, Defendant Gabay. The parties entered into an agreement on January 13, 2005, stipulating that Ghayoum would retain a lifetime right of occupancy and be responsible for all expenses associated with the property during her lifetime. Apparently, despite that agreement, Touraj paid all expenses on the property during his mothers occupancy. The parties do not dispute that Touraj paid the expenses. The parties dispute when Touraj provided notice to Mansoor and Gabay that he had been paying the property taxes and HOA expenses on the property; Touraj claims he provided regular notice to the other co-owners through verbal communications over the years. Gabay disputes that any such communication occurred. The parties do not dispute that on February 22, 2013, Touraj formally notified Gabay in writing of his ongoing payments and demanded reimbursem*nt. Gabay did not respond to Tourajs notice. Ghayoum died in December 2020. The property was sold on December 12, 2023 for $1,000,000, and the net proceeds of $926,789.35 are subject to distribution, pending resolution of Plaintiffs offset claims. Referee Richardson C. Griswold (Referee) now moves for an order for final distribution of the sale proceeds of the home, with findings and recommendations. The motion is unopposed. ANALYSIS The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. (Code Civ. Proc., § 872.140.) "Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenants interest. Credits include expenditures in excess of the cotenants fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) "As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that partys predecessor in interest. In such division and allotment, the value of such improvements shall be excluded." (Code Civ. Proc., § 873.220.) However, [t]he general principle of law that the right to partition is absolute must be confined in its application to ordinary joint tenancies or tenancies in common, where the right to partition is left to result as an ordinary legal incident of such tenancy, and that it was never intended to interfere with contracts between the tenants modifying or limiting this otherwise incidental right, nor to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards. (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014-1015 [cleaned up].) The only evidence of Tourajs purported communications to his siblings about paying the property expenses before February 22, 2013, other than Tourajs own testimony, is communication from Tourajs daughter to Gabay in 2019, where Tourajs daughter purportedly told Gabay, I tell my father to let that condo get foreclosed on, stop paying for the HOAs, property taxes&etc&[b]ut he then says, where is grandma going to live? Therefore, the Referee recommends construing all payments prior to the February 22, 2013 written notice as Tourajs gifts to his mother, to prevent foreclosure on the property and to allow her to continue to live there, as it is not equitable to charge the co-owners for expenses of which they had no notice or opportunity to mitigate. From February 22, 2013 until Ghayoums death in December 2020, because the co-owners were on notice of the expense payments but did nothing to modify or mitigate Tourajs payment of the property taxes and HOA fees, the Referee recommends pro-rating the expenses Touraj paid during that time among the three siblings. The parties agree that the expenses should be prorated from the date of Ghayoums death in December 2020 onward. Since February 22, 2013, Touraj has paid a total of $286,826.38, representing $88,949.85 in property taxes and approximately $197,876.53 in HOA fees. The Referee recommends apportioning $95,608.79 to Gabays 1/3 share of these expenses plus interest in the amount of $35,396.76, an amount Gabay does not dispute, for a total of $131,005.55. The Referee further recommends each party pay their own attorneys fees incurred. CONCLUSION AND ORDER Therefore, finding sufficient evidence and legal support in the record, the Court grants the Referees unopposed motion for an order apportioning $131,005.55 of Gabays share of the sale proceeds to Touraj as compensation for payments made toward the property since February 22, 2013. Further, Plaintiffs shall lodge a proposed Order in conformity with the Courts ruling on or before September 6, 2024 (the Court declines to issue the Order as proposed by the Referee), and based upon the Courts ruling, the Court vacates the Status Conference re Offsets scheduled for August 29, 2024. Further, the Court sets an Order to Show Cause re Dismissal of the Action on October 14, 2024 at 8:30 A.M. in Department 207. The Court will not require an appearance by counsel for the parties if a dismissal of the entire action is entered before October 14, 2024. Plaintiffs shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 29, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court
Ruling
JEANNE POOLE, ET AL. VS CRYSTAL PROPERTY MANAGEMENT INC., ET AL.
Aug 29, 2024 |23STCV29224
Case Number: 23STCV29224 Hearing Date: August 29, 2024 Dept: 52 Tentative Ruling: Defendants Crystal Property Management, Inc. and Hollypark Apartments GPs Demurrer and Motion to Strike Portions of Complaint Demurrer Defendant Crystal Property Management, Inc. (Crystal) demurs to the third and fourth causes of action alleged by plaintiffs Jeanne Poole, Jayden Robinson, Jaylen Owens, and Logan Johnson. Defendant Hollypark Apartments GP (Hollypark) demurs to all six causes of action. Defendant Hollypark Plaintiffs do not allege sufficient facts to constitute any cause of action against Hollypark. The complaint is also uncertain as to Hollypark. The complaint mentions Hollypark only once: in the caption identifying the parties. The body of the complaint refers to FPI Management Inc. (Comp., ¶ 6), which is not a party. The complaint makes no factual allegations about Hollypark. Plaintiffs opposition does not address this argument. 3rd Cause of Action for Nuisance Plaintiffs do not allege sufficient facts for this cause of action against Crystal. Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (El Escorial Owners Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) A nuisance in many, if not in most, instances, especially with respect to buildings or premises, presupposes negligence. (Ibid.) A plaintiff does not adequately allege nuisance when it is merely a clone of a claim for negligence using a different label. (Ibid.) Plaintiffs third cause of action for nuisance arises from the same factual allegations as the claim for negligence. Plaintiffs allege defendants own or manage the subject property and did not correct dangerous conditions there. (Comp., ¶¶ 40-46, 56-58.) Plaintiffs opposition argues this cause of action is not duplicative because it is based on an intentional tort theory. (Opp., p. 4.) But the only intentional conduct plaintiffs allege for the nuisance cause of action is that Despite being required by law to abate the nuisance, defendants willfully failed to correct conditions rendering the premises a nuisance. (Comp., ¶ 43.) Failing to do something defendants were required to do is a quintessential form of negligence. Adding the word willfully does not change that. 4th Cause of Action for Intentional Infliction of Emotional Distress Plaintiffs do not allege sufficient facts for this cause of action against Crystal. Plaintiffs must allege (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Plaintiffs do not adequately allege the second element. Only emotional distress of such substantial quantity or enduring quality that an individual in civilized society should not be expected to endure it constitutes severe emotional distress. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) The complaint must plead specific facts that establish severe emotional distress resulting from defendants conduct. (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.) The complaint alleges, [P]laintiffs suffered and continue to suffer severe mental and emotional distress. This emotional distress has caused plaintiffs to sustain general and special damages in amounts to be proven at trial. (Comp., ¶ 53.) These conclusory allegations do not satisfy plaintiffs burden of pleading facts establishing their emotional distress was substantial or enduring. Motion to Strike Defendants Crystal Property Management, Inc. and Hollypark Apartments GP move to strike eight portions of plaintiffs complaint. Attorney Fees Defendants notice of motion states they move to strike two portions of the complaint concerning recovery of attorney fees. (Notice, p. 2, Nos. 1, 8.) The memorandum of points and authorities, however, only briefly mentions the issue of attorney fees in the introduction. (Motion, p. 4.) The court may construe the absence of a memorandum as an admission that the motion & is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) Assuming defendants did not waive their grounds for striking these portions of the complaint, the complaint does allege a contractual basis for attorney fees. It alleges, Pursuant to the written lease the plaintiffs are entitled to recover their reasonable attorneys fees and costs of suit in this action. (Comp., ¶ 27.) Plaintiffs allegation that they are not in possession of this lease agreement (id., ¶ 12) does not preclude them from alleging its terms. On a motion to strike, the court must assume the truth of plaintiffs allegation that the lease includes a provision for attorney fees. Punitive Damages Plaintiffs do not allege sufficient facts to recover punitive damages from defendants, who are both business entities. For an entity to be liable for punitive damages, the advance knowledge and conscious disregard [of an employees unfitness], authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294(b).) [M]anaging agents are employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. (Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455, 464.) Plaintiffs do not adequately allege any officer, director, or managing agent of either defendant committed, authorized, or ratified an act of oppression, fraud, or malice. They allege Jake Cejka was a property manager at the subject property and was involved in all aspects of the day-to-day operations (Comp., ¶ 10), but they do not allege he was an officer, director, or managing agent of either defendant. Moreover, they make only allegations about his general role at the propertynot factual allegations about what he personally did. Thus, assuming Cejka is a managing agent, plaintiffs do not allege facts showing he committed acts of oppression, fraud, or malice. Disposition Defendant Crystal Property Management, Inc.s demurrer to plaintiffs third and fourth causes of action is sustained with 20 days leave to amend. Defendant Hollypark Apartments GPs demurrer to the entire complaint is sustained with 20 days leave to amend. Defendants Crystal Property Management, Inc. and Hollypark Apartments GPs motion to strike is granted in part as to portions of the complaint regarding punitive damages. The court hereby strikes the following portions of the complaint with 20 days leave to amend: the entirety of paragraphs 38, 48, 52, 54; the following portion of paragraph 51: The conduct of defendants as herein alleged was egregious, extreme and outrageous and done with reckless disregard of the likelihood to inflict severe emotional distress (page 9, lines 1-2); and paragraph 3 of the prayer.
Ruling
HUGH FARZANEH, INDIVIDUALLY AND VS SHIVA SAFAEE, ET AL.
Aug 30, 2024 |6/18/2022 |19SMCV01876
Case Number: 19SMCV01876 Hearing Date: August 30, 2024 Dept: I The court has already issued the judgment. Accordingly, there will be no hearing today and the court will set no future hearings.
Ruling
SEAN LAMONT DENT, SIR, ET AL. VS MIGUEL ANGEL VALLE
Aug 28, 2024 |21TRCV00381
Case Number: 21TRCV00381 Hearing Date: August 28, 2024 Dept: 8 Tentative Ruling HEARING DATE: August 28, 2024 CASE NUMBER: 21TRCV00381 CASE NAME: Sean Lamont Dent, et al. v. Miguel Angel Valle, et al. MOVING PARTY: Plaintiffs, Sean Lamont Dent and Sean Lamont Dent Jr. RESPONDING PARTY: Defendant, Miguel Angel Valle (No Opposition) MOTION: (1) Motion for Attorneys Fees Tentative Rulings: (1) GRANTED in the amount of $26,816.24. I. BACKGROUND A. Factual On May 20, 2021, Sean Lamont Dent, Sir, Sean Lamont Dent Jr, Icolin Joy Gayle, Talal Omar, and Musa Ali Eisa filed a complaint against Miguel Angel Valle for (1) self-help, (2) conversion, (3) trespass, (4) breach of warranty of habitability, (5) breach of covenant of quiet enjoyment, (6) nuisance, (7) negligence, (8) premises liability, (9) unfair competition/unfair business practice, and (10) IIED. Plaintiffs allege that defendant is the owner, agent, and manager of the apartment building located at 10507 S. Inglewood Avenue. Plaintiffs allege a rodent infestation, inadequate garbage facilities, defective stairs, inadequate gas facilities, no running hot water, inoperable heater, lack of utilities, no smoke detectors, defective wiring/outlets, defective plumbing, flooding, and mold/mildew. Plaintiffs also allege that on January 22, 2021, while plaintiffs Dent Sr. and Jr. were not at home, defendant entered the subject property, changed the locks, and locked the doors to the property with keys and lock preventing plaintiffs from entering the unit. Defendant carried away, misappropriated, or discarded plaintiffs personal property. Defendant unlawfully demanded rent. In December 2023, the Court received testimony and exhibits from the parties across four days, and the parties completed closing arguments on January 9, 2024. This Court found in favor of Plaintiffs, Dent and Junior. On March 8, 2024, this Court issued its preliminary statement of decision containing findings on material disputed issues of fact and the Courts intended conclusion of law. After receiving no objections or other responses to the preliminary statement of decision, this Court issued a Final Statement of Decision on June 7, 2024. Subsequently, this Court directed the Clerk to give Notice of Entry of Judgment in favor of Sean Lamont Dent, Sr. and against Miguel Angel Valle in the amount of $4,977, and in favor of Sean Dent Junior against Miguel Angel Valle in the amount of $2,150. Now, Plaintiffs, Sean Lamont Dent and Sean Lamont Dent Jr. (Dent Plaintiffs) file a Motion for Attorneys Fees in the amount of $27,105.25 to be awarded as a result of the entry of judgment in their favor and against Defendants. B. Procedural On July 16, 2024, Dent Plaintiffs filed a Motion for Attorneys Fees. To date, no opposition has been filed. II. ANALYSIS¿ A. Legal Standard Attorneys fees are recoverable when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10), attorney fees when authorized by contract, statute or law are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5). Here, Plaintiffs assert that they were the prevailing parties in an action brought under a statute, Civil Code §789.3, the statute prohibiting, among other things, a landlord from engaging in self-help efforts to induce a tenant to vacate a rental unit without following the statutory eviction process, including the landlord interrupting or terminating the tenants utilities or lock out the tenant from the renal until such as by changing the locks, or by removing the tenants personal property from the rental unit without the tenants prior written consent. Where a contract specifically provides for attorneys fees and costs incurred to enforce the contract, attorneys fees and costs must be awarded to the party who is determined to be the prevailing party on the contract. (Civ. Code., § 1717, subd. (a).) Reasonable attorneys fees shall be fixed by the court and shall be an element of the costs of suit. (Ibid.) A prevailing party is defined to include the party with a net monetary recovery . . . . (Code Civ. Proc., § 1032, subd. (a)(4).) In determining what fees are reasonable, California courts apply the lodestar approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the [t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.) Relevant factors include: (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) A plaintiffs verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) B. Discussion Here, the Dent Plaintiffs moving papers indicate that they are seeking attorneys fees for prevailing at trial and as a result of the Judgment being entered in their favor. The Dent Plaintiffs argue that they are entitled to an award of reasonable attorneys fees because the Defendant/Landlord willfully caused, directly or indirectly, the interruption of termination of utility service furnished to the Plaintiffs/Tenants, including, but not limited to, water, heat, light, electricity, under the control of the landlord; and removed the tenants personal property, the furnishings, and other items without the prior written consent of the tenant in violation of California Civil Code section 789(3). After a four (4) day trial, the Court found in favor of Plaintiffs, awarding Plaintiff, Sean Lamont Dent damages in the sum of $4,977 and Sean Lamont Dent Jr. damages in the sum of $2,150. The Dent Plaintiffs now seek attorneys fees in the total amount of $40,657.87, and argue this amount is reasonable for approximately 2.5 years of contested litigation, which translated to a total of 73.55 hours, plus a requested multiplier of 1.5. Items Requested in Motion for Attorneys Fees Dent Plaintiffs note that the base lodestar award s the product of seventy hours and fifty-five minutes (70.55) of work by Macauley Ekpenisi at an hourly rate of $375 per hour for a total sum of $26,745.25, and three (3) hours for paralegals or office clerks at $120 per hour for a total sum of $360. The total of both amounts requested is $27,105.25, but Dent Plaintiffs also request a multiplier of 1.5 of the total fees of $27,105.25 for a total attorney fees award of $40,657.87. Preliminarily, this Court notes that 70.55 hours multiplied at a $375 hourly rate totals $26,456.24, not $26,745.25. As such, Mr. Ekpenisis math is slightly off for the total of his time spent on the case. Thus, the Court notes that the amount awarded to Plaintiff will be the re-calculated amount. Ekpenisis Hourly Rate is Reasonable Here, the Court finds that counsel for the Dent Plaintiffs, Macauley Ekpenisi, is reasonable. In support of his hourly rate, Ekpenisi has filed a declaration (Ekpenisi Decl.) outlining the basis for his hourly rate. Ekpenisi notes that he was admitted to practice law in Nigeria as a Barrister and Solicitor of the Supreme Court of Nigeria in 2000. (Ekpenisi Decl., ¶ 4.) Ekpenisi notes that he engaged in active law practice in Nigeria from December 2000 until he relocated to the United States of America in 2003. (Ekpenisi Decl., ¶ 5.) In 2014, Ekpenisi was admitted to the California Bar, and was subsequently admitted to the New York Bar in 2018. (Ekpenisi Decl., ¶ 5.) Ekpenisi notes that he is a sole practitioner, and that he has been representing consumers since he began to practice law when he opened his office in 2014 in California. (Ekpenisi Decl., ¶ 6.) Ekpenisi asserts that his primary practice area is civil claims and litigations, including personal injury, landlord/tenant disputes, employment law and civil rights cases. (Ekpenisi Decl., ¶ 6.) He further notes that he has handled over 500 cases in his area of practice that resulted in and out of court settlements and trials in California alone. (Ekpenisi Decl., ¶ 6.) Ekpenisi asserts that his requested rate of $375 is based on his experience as an attorney, the nature of the case, length of time expended, the complexity of the legal issues involved in this matter, challenges presented, and risk taken to prosecute his clients rights. (Ekpenisi Decl., ¶ 7.) Further, Ekpenisi notes that he had more than four (4) different legal assistants and support staff working on the case at bar at different times in his office and is requesting three (3) hours at the rate of $120 per hour for work performed by those clerks because he will necessarily pay them for their wages for working on this case by law and his office is entitled to recover the amount spent. (Ekpenisi Decl., ¶ 8.) Here, the Court finds that the hourly rate of both Ekpenisi and Ekpenisis paralegals are reasonable. Reasonableness of Time Spent Attached to Ekpenisis declaration as Exhibit 2 is the billing statement detailing the work Ekpenisi performed with time allotments on this case. In reviewing the billing record, the Court finds that most of the time spent on tasks was reasonable, and as to some other task such as the time claimed to attend various hearings, the Court has no contrary evidence from the Defense. Accordingly, the Court finds that the amount of time spent on the hearings and trial in this case to be reasonable. Thus, the Court finds that attorneys fees may be awarded in the adjusted lodestar amount of $26,456.24, plus $360 in paralegal time for a total of $26,816.24. The Request for a Multiplier of 1.5 is Not Appropriate This Court finds that a lodestar multiplier is not appropriate here. While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Nonetheless, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included with the lodestar. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) [A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable. (Id. at 1139.) Here, Plaintiff is requesting a lodestar multiplier of 1.5. The Court notes that this case involved a landlord-tenant dispute, and nothing before the Corut indicates that the case presented a particularly novel issue or that the quality of representation far exceeded the quality of representation that would have been provided by attorneys of comparable skill and experience billing at the same rates. Accordingly, this Court declines the award of a lodestar multiplier. III. CONCLUSION For the foregoing reasons, this Courts tentative ruling is to GRANT Plaintiffs Motion for Attorneys Fees in the amount of $26,816.24.which accounts for the hourly rate and time spent by both Ekpenisi and his paralegal(s). The request for a lodestar multiplier is denied. Dent Plaintiffs are ordered to provide notice.
Ruling
Jason Neel vs United States Real Estate Corporation, et al
Aug 26, 2024 |22CV01758
22CV01758NEEL v. SUPERIOR LOAN SERVICING, et al CROSS-DEFENDANT DONALD SCHWARTZ’S SPECIAL MOTION TO STRIKE As discussed below, the motion is denied. I. BACKGROUND This is a convoluted fact pattern, which stems from plaintiff Neel’s efforts to forestall theforeclosure of his home and unwind allegedly fraudulent conveyances encumbering his home.Plaintiff’s allegations are as follows: Plaintiff owns property which was purchased “free and clear” in 2018, located at 144Palo Verde Terrace, Santa Cruz. Plaintiff has cognitive impairments. In January and March2018, plaintiff committed various criminal offenses. In March 2018, plaintiff hired DonaldSchwartz and Ed Russo to represent him. In addition to his criminal charges, plaintiff’s erraticbehavior also caused the HOA where his home is located to bring a civil suit against him.Schwartz was his attorney in that matter as well. (FAC ¶¶ 18-20.) According to the allegations in the FAC, from January 2018 to August 2020, plaintiff wasunable to manage his financial affairs, unable to contract with knowledge or understanding, andsusceptible to financial abuse. Between April 2019 and November 2019, plaintiff was declaredincompetent to stand trial for certain criminal offenses. During a portion of this period, plaintiffwas a patient at Napa State Mental Hospital. Plaintiff has been diagnosed with Psychotic orSchizoaffective Disorder, Bipolar II, Dissociative Disorder, and Social Anxiety. Attorney Schwartz raised the issue of plaintiff’s lack of capacity in the HOA civil actionand at one point, requested the court name a guardian ad litem. The guardian ad litemrecommended by Schwartz was Cody Molica. Plaintiff granted a power of attorney (“POA”) to Page 6 of 14Molica to pay his expenses while incarcerated. Molica, a law school graduate who had workedwith both Schwartz and Russo, agreed to serve as plaintiff’s attorney in fact. On 3/17/19,plaintiff executed a POA in favor of Molica. Plaintiff thought his powers were limited to payingbills. (FAC ¶ 21.) Prior to the execution of POA #1, Molica and co-conspirator Derek Wheat had alreadyarranged with defendant CNA Equities Group, LLC (“CNA”) to borrow money againstplaintiff’s residence, which was debt-free. This loan was taken out without either plaintiff’sconsent or knowledge. Molica engaged CNA to broker a loan of $367,500. The lender was Yeva,Inc. dba Saxe Mortgage Co. The escrow was handled by Fidelity Escrow Co. (FAC ¶ 23.) Molica allegedly orchestrated a fraudulent lease agreement between plaintiff and NathanPerry to characterize the loan as one for business purposes. The lease was dated retroactively forthe three-year period of 10/1/17-10/1/20 and called for $2,500/month rent. Neel does not knowPerry and Perry never lived at the residence and ultimately received $10,430 in checks from the2019 loan proceeds. The lease agreement predated Neel’s January 2018 purchase of the Property.(FAC ¶ 24.) Molica is alleged to have completed fraudulent and inaccurate Uniform ResidentialLoan Applications on behalf of Neel, which reported that Neel received $2,500/month in rentalincome from the property. (FAC ¶25.) The net proceeds of the loan were distributed to Schwartz’s Trust account on 3/27/19,where Molica directed Schwartz to distribute the funds. None of the funds were used forplaintiff’s benefit. One check of $60,000 was paid to Jeffrey Vieyre of Funding Solutions. (FAC¶ 26.) On 5/1/19, Schwartz drafted a new POA requiring both Schwartz’s and Molica’ssignatures and stated the POA was only for paying bills and HOA issues and not for aspects ofthe house. At the time the second POA was executed, plaintiff was unaware Molica already usedthe POA to affect his home via the new loan. (FAC ¶ 27.) Molica withdrew over $1,000,000 from plaintiff’s bank account, using the two POAs. Athird POA was executed on 5/28/20. On 9/9/20, Molica refinanced the property for $439,000which paid off the 2019 loan; two days later it was mortgaged for an additional $35,000. (FAC¶¶ 28-30.) Plaintiff contends the refinance was done for no valid financial reason and actuallycost Molica money to obtain. CNA’s files contain another Residential Loan Application signed by Molica withnumerous fraudulent statements. (FAC ¶ 32.) Defendants CNA and Rushmyfile (“RMF”) co-brokered the 2020 Loan. Defendants United States Real Estate Corporation (“USREC”), CNA,and RMF knew Molica had failed to make any of the payments on the 2019 loan, that the Page 7 of 14refinance was fraudulent, that none of the loans were for business purposes, and that the 2020loans were also fraudulently obtained. (FAC ¶34.) After Molica failed to make payments on the 2020 Loan, USREC instructed DefendantSuperior Loan Servicing to commence foreclosure proceedings. Neel has delivered notices ofrecission. USREC filed a Notice of Default and election to sell on 4/16/21. On 7/23/21, USRECfiled a Notice of Trustee’s Sale. II. PLEADINGS A. Complaint and amended complaint Plaintiff originally filed this action in Alameda County on 8/13/21 to halt USREC’spending non-judicial foreclosure. Scwhartz was plaintiff’s original attorney of record, butsubstituted out in favor of plaintiff’s current counsel on 11/19/22. The action was subsequentlytransferred to Santa Cruz Superior Court by stipulation, and thereafter, plaintiff filed hisoperative first amended complaint (“FAC”) on 10/11/22. The FAC added new causes of actionand new party defendants, among others, including the brokers involved in the USREC Loan,CNA Equities Group, LLC (“CNA”) and Rushmyfile, Inc. (“RMF”). The FAC alleges thatplaintiff is a dependent adult who lacks mental capacity, that plaintiff was fraudulently inducedto sign the subject powers of attorney, and that plaintiff had no knowledge of either of the loans.The FAC further alleges that the subject loans were part of an extended scheme to convert andsteal the equity in plaintiff’s property. (FAC ¶¶ 21-38.) The fraud scheme was allegedly directedby unnamed third parties and Molica, the attorney-in-fact appointed in the powers of attorney,who has been defaulted under USREC’s cross-complaint. (FAC ¶¶ 22-23, 28.) The FAC allegesthat the broker and lender defendants facilitated the fraud by accepting fraudulent loanapplications and documentation. (FAC ¶¶ 24-25, 29-35, 40-41.) B. Cross-complaint On 12/13/22, USREC cross-complained against Neel, CNA, RMF, and Molica fordeclaratory relief, reformation, quiet title, equitable subrogation, equitable lien, judicialforeclosure, implied contractual indemnity and equitable indemnity. USREC claims to be a bonafide encumbrancer who made the loan to plaintiff in good faith without knowledge of plaintiff’salleged lack of capacity or the scheme. The cross-complaint seeks to affirm the validity of theUSREC Deed of Trust or, alternatively, force judicial foreclosure of a lien by equitablesubrogation in the amount of at least $407,328, representing the amount of the USREC loanproceeds used to satisfy in full all prior liens against the property. USREC’s Cross-Complaintalso seeks indemnity against brokers CNA and RMF, Molica and Roes 25-50. (Cross-Complaint¶¶41-49.) Page 8 of 14 C. Doe amendment adding Schwartz as defendant On 11/20/23, plaintiff Neel named Schwartz as Doe 1 under his causes of action forabuse of a dependent adult, conversion, and aiding and abetting. Plaintiff alleges that Schwartz,who was plaintiff’s attorney from 2018 to 2022 and had raised plaintiff’s lack of mental capacityin various proceedings, caused Molica to be appointed plaintiff’s guardian ad litem, suggestedplaintiff give Molica the power of attorney for the 2019 loan, drafted at least one other power ofattorney plaintiff signed in favor of Molica and Schwartz, and facilitated distribution of loanproceeds for the benefit of third parties other than plaintiff. (FAC ¶¶ 19-23, 26-30.) Schwartzanswered on 11/27/23. D. Roe amendment adding Schwartz as cross-defendant On 1/26/24, USREC named Donald Schwartz as Roe 25 to the cross-complaint for theseventh cause of action for implied contractual indemnity and for the eighth cause of action forequitable indemnity. (Cross-Complaint, 12/13/22.) On 6/4/24, USREC voluntarily dismissed Schwartz from the implied contractualindemnity cause of action, leaving Schwartz as a Roe for equitable indemnity only. (Dismissal,6/4/24.) III. MOTION A. Moving papers Cross-defendant Schwartz moves to strike the cross-complaint for equitable indemnitypursuant to CCP § 425.16(b)(1), “A cause of action against a person arising from any act of thatperson in furtherance of the person’s right of petition or free speech under the United StatesConstitution or the California Constitution in connection with a public issue shall be subject to aspecial motion to strike, unless the court determines that the plaintiff has established that there isa probability that the plaintiff will prevail on the claim.” (Emphasis added.) Moving party fails to identify the type of free speech allegedly at issue here. Undersection 425.16(e), there are four types of petitioning or speech: (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, Page 9 of 14 (3) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) Any other conduct in furtherance of the exercise of constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (CCP §425.16(e).) The only protected activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)This would fall under categories (1) and (2), above. Schwartz contends that his filing of the underlying complaint on Neel’s behalf againstUSREC is petitioning or free speech activity and that USREC cannot succeed on its claim ofequitable indemnity against Schwartz since it is procedurally defective and cannot overcome thelitigation privilege or an attorney’s absolute immunity when acting as an agent. Schwartz relieson Navellier v. Sletten (2002) 29 Cal.4th 82, 89, to support his claim. Under Navellier, “thecritical consideration is whether the cause of action is based on the defendant’s protected freespeech or petitioning activity.” (Navellier v. Slettin, supra, 29 Cal.4th at 89.) Schwartz alsoargues the equitable indemnity cause of action “insinuates a conspiracy” between Neel andSchwartz and so must comply with CCP § 1714.10 which requires a showing of reasonableprobability of prevailing in the action with supporting affidavits. He contends no suchcompliance with section 1714.10 can be found in the cross-complaint and it is therefore “doomedto failure.” Schwartz contends that the cross-complaint is an end run around the attorney clientrelationship (between him and Neel) and USREC seeks to force him to testify against his client. B. Opposition USREC argues that Schwartz cannot meet the first prong of the anti-SLAPP analysissince the indemnity cross-complaint is not based on Schwartz’s right of petitioning or freespeech. It contends that Schwartz has been sued by plaintiff for the fraudulent scheme and byUSREC only for contribution as an alleged joint tortfeasor. It argues that an anti-SLAPP motionis justified only when the conduct upon which the claim is based is an act in furtherance of theright to petition. Merely because some protected activity may have occurred preceding thecomplaint is not enough; the conduct constituting the protected activity is itself the wrongcomplained of. (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) Essentially, USREC argues that no petitioning activity is involved at all in its claim forindemnity in the event it is liable. The Cross-Complaint alleges: “In the event it is determined that the USREC Deed of Trust is invalid, in whole or inpart, such resulting loss to Cross-Complainant will arise solely by reasons of the cross-defendants’ intentional or negligent conduct,” and “if Cross-Complainant suffers loss or damages Page 10 of 14as a result of Plaintiff’s claims, such damages were caused entirely or partly by the breach ofcontract, violation of statutory duty, negligence, fraud, or other tortious conduct of the cross-defendants.” (Cross-Complaint ¶¶ 42, 46.) USREC argues these allegations fail to mention nor rely upon protected petitioning orfree speech activity by Schwartz and instead, they allege a straightforward claim for equitableindemnity against Schwartz and USREC’s other alleged joint tortfeasors based on plaintiff’sallegations of a fraudulent power of attorney and mortgage loan scheme. USREC points out this is Schwartz’s second anti-SLAPP motion in an apparent effort tostall discovery and prevent his deposition from proceeding. The first motion was brought justprior to Schwartz’s noticed deposition, then Schwartz filed for bankruptcy and withdrew the firstmotion. Once the bankruptcy was dismissed, meaning this case’s discovery could proceed,Schwartz filed this second anti-SLAPP motion, effectively staying this case’s discovery again. C. Reply Cross-defendant’s reply argues the cross-complaint against him was filed to gainadvantage and should be viewed with distrust. He contends he never owed any duty to USRECand actually secured restraining orders against it to stop the foreclosure of Mr. Neel’s home. Inshort, the reply does not persuade this Court that petitioning activity arises from USREC’s cross-complaint against Schwartz. III. LEGAL STANDARDS A. Anti-SLAPP The Legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action thatare brought to chill the valid exercise of the constitutional rights to free speech and to petition thegovernment for redress of grievances. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The court must engage in a two-prong analysis on an anti-SLAPP motion, with shiftingburdens of proof as to each prong. In prong one, the court determines whether the conductunderlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speechor petition. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) This is a threshold issue; if moving partyfails to show the conduct is constitutionally protected, the court need not address prongtwo. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Under the second prong,the burden shifts to plaintiff to prove a legally sufficient claim and to prove with admissibleevidence a reasonable probability of prevailing. (Navellier v. Sletten (2002) 29 Cal.4th 82,88.) Plaintiff cannot rely on the allegations of the complaint but must produce evidence Page 11 of 14admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)To defeat the motion, plaintiff need only demonstrate a prima facie case as to either part of theclaim. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570; Weil & Brown, CaliforniaProcedure Before Trial (The Rutter Group) §§ 7:1005, 7:1020.) If the anti-SLAPP is granted, the court may not grant leave to amend to allege or omitfacts demonstrating the complaint is not subject to the anti-SLAPP statute. (Simmons v.Allstate (2001) 92 Cal.App.4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend thecomplaint once the court finds the prima facie showing has been met would completelyundermine the statute by providing the pleader a ready escape from [Code of Civil Procedure]section 425.16's quick dismissal remedy. Instead of having to show a probability of success onthe merits, the SLAPP plaintiff would be able to go back to the drawing board with a secondopportunity to disguise the vexatious nature of the suit through more artful pleading. This wouldtrigger a second round of pleadings, a fresh motion to strike, and inevitably another request forleave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,1005.) A defendant party who prevails on an anti-SLAPP motion is entitled to recover his or herattorney’s fees and costs incurred on the motion, but not for the entire litigation. §425.16(c). Adefendant who prevails on only part of the motion may be entitled to an award of fees and costs(but only those associated with the successful part of the motion), unless the results of the motionwere so insignificant that the defendant did not achieve any practical benefit from the motion.The court has broad discretion in making this determination. (Weil & Brown, §7:1135.) B. Equitable indemnity A claim for equitable indemnity requires proof that the same harm for which plaintiffmay be held liable is properly attributable in whole or in part to the defendant. (Platt v. ColdwellBanker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn. 7.) IV. DISCUSSION A. Defendant Schwartz has not met his initial threshold burden – cross-complaint’s cause of action for equitable indemnity does not arise from protected activity Schwartz moves to strike the cross-complaint against him for equitable indemnity. Thatclaim seeks to shift liability from USREC to others (including Schwartz) if plaintiff succeedssince USREC alleges those other parties are really at fault, not it. The proper focus here is todetermine the cause of Schwartz’s potential damages in the cross-complaint, and if that causesprings from Schwartz’s protected activity. Page 12 of 14 Schwartz will only be liable to USREC if plaintiff succeeds in proving USREC is not abona fide encumbrancer and invalidates the deed of trust. To do that, plaintiff will havesucceeded in proving the fraudulent scheme – in which plaintiff alleges Schwartz was a part. Thegravamen of the indemnity claim then is the underlying allegations in plaintiff’s FAC – thescheme – and not in any protected speech by Schwartz. “In determining ‘whether the challenged claims arise from acts in furtherance of thedefendants’ right of free speech or right of petition under one of the categories set forthin section 425.16, subdivision (e). [Citation.] … ‘[w]e examine the principal thrustor gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statuteapplies.’’[Citation.] The ‘gravamen is defined by the acts on which liability is based, not somephilosophical thrust or legal essence of the cause of action.’ [Citation.] In other words, ‘for anti-SLAPP purposes [the] gravamen [of plaintiff’s cause of action] is defined by the acts on whichliability is based.’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer 8 Feld LLP(2017) 18 Cal.App.5th 95, 111.) As mentioned, Schwartz fails to identify the category of free speech at issue. “Thedefendant's burden is to identify what acts each challenged claim rests on and to show how thoseacts are protected under a statutorily defined category of protected activity. [Citation.]” (Bonni v.St. Joseph Health System (2021) 11 Cal.5th 995, 1009; Baral v. Schnitt (2016) 1 Cal.5th 376,396.) The court finds this failure significant since it prevents a full analysis of the allegedprotected activity for the first anti-SLAPP step. Again, the only activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)But analyzing the acts on which Schwartz’s potential liability is based, there is no protectedactivity at issue here. Schwartz is only liable under the cross-complaint if the USREC deed oftrust is invalidated. The deed is only invalidated if plaintiff proves the fraudulent scheme, inwhich Schwartz allegedly participated. Schwartz’s conduct creating liability under the cross-complaint is not in any way protected activity – it does not arise from his representation of Mr.Neel. Instead, it arises from his tortious conduct against Mr. Neel, likely in contravention to hisethical duty to Mr. Neel. Since Schwartz fails to establish the alleged conduct is protected activity, the court neednot move to the second prong of the anti-SLAPP analysis. B. Civil Code §1714.10 and agent’s immunity do not afford Schwartz any protection here Schwartz’s argument that cross-complainants failed to comply with the pre-filingrequirements of Civil Code § 1714.10 is meritless. “No cause of action against an attorney for a Page 13 of 14civil conspiracy with his or her client arising from any attempt to contest or compromise a claimor dispute, and which is based upon the attorney’s representation of the client, shall be includedin a complaint or other pleading unless the court enters an order allowing the pleading thatincludes the claim for civil conspiracy to be filed after the court determines that the party seekingto file the pleading has established that there is a reasonable probability that the party will prevailin the action….” (Civil Code §1714.10(a).) There are no conspiracy allegations in the cross-complaint; Schwartz concedes this whenhe admits “[t]he Cross-Complaint insinuates a conspiracy between Mr. Neel’s former attorney(Schwartz) and others….” (MPA p. 9, emphasis added.) Further, the FAC does not allegeconspiracy between Schwartz and his client – it alleges a conspiracy by Schwartz against hisclient. That is not covered by section 1714.10, and if somehow a conspiracy under the codesection had been alleged, it was Schwartz’s duty to bring a motion to strike when he was namedas a Doe, not when he was named as a Roe to a different pleading. Schwartz’s contention that attorney-agency immunity insulates him from liability underthe cross-complaint is also misplaced. As stated, Schwartz is only liable for equitable indemnityif he’s established as a bad actor under the FAC, and in that case, he will be found to have actedagainst his client’s interests, not for them. C. Sanctions against Schwartz Prevailing cross-complainant USREC shall be entitled to reasonable fees and costsincurred on the special motion to strike (not the entire litigation). (CCP §425.16(c); LafayetteMorehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) USREC seeks $9,490.00 ($7,300.00 for the prior withdrawn anti-SLAPP motion and$2,190.00 for the updated opposition to this motion). USREC’s counsel Edward Egan Smith’shourly rate is $365.00 and he declares he spent no less than 20 hours preparing USREC’sopposition to the initial motion and at least six hours updating and preparing this opposition. Thecourt finds that 13 hours of work is a reasonable duration of time preparing an opposition to thislatest motion and awards $4,745.00 in fees to USREC, payable by cross-defendant Schwartz nolater than 9/20/24.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 14 of 14
Ruling
JAMES LEE VS EMAAR LA PROPERTIES, LLC
Aug 28, 2024 |SC129270
Case Number: SC129270 Hearing Date: August 28, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 28, 2024 CASE NUMBER SC129270 MATTER Request for Default Judgment MOVING PARTIES Cross-Complainants Emaar LA Properties, LLC and EJL Homes Realty and Construction, Inc. Cross-Complainants Emaar LA Properties, LLC (Emaar) and EJL Homes Realty & Construction, Inc. (EJL) (together, Cross-Complainants) request for default judgment against Cross-Defendant JCL Contractors, Inc. (JCL) in the amount of $1,117,288.57, which is composed of special damages in the amount of $654,866.51; prejudgment interest in the amount of $436,863.35; and costs in the amount of $24,333.68. Cross-Complainants separately request attorneys fees via a noticed motion. The Court notes that $654,866.51 + $436,863.35 + $24,333.68 = $1,116,063.54, not the requested $1,117,288.57. a. Damages The Second Amended Cross-Complaint (SACC) alleges five causes of action for (1) Breach of Written Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranties; (4) Negligence; and (5) Declaratory Relief. JCL was served with a copy of the second amended summons and second amended cross-complaint via substitute service on May 29, 2024. Default was entered against JCL on July 11, 2024, and the Roe Defendants were dismissed on August 8, 2024. The SACC seeks $770,510.61 in special damages. (SACC at pp. 10-11.) Therefore, the amount of damages does not exceed the amount demanded in the SACC. (See Code Civ. Proc., § 580, subd. (a) [The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 [when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint].) In support of the request, Cross-Complainants provide the declaration of Eric Jencks, explaining that EJL hired JCL to perform demolition, and installation, of drywall, wood, metal studs, and door frames on the interior units in a 22-story luxury high rise condominium project, Beverly West. (Jencks Decl. ¶¶ 1, 3-6 and Exs. 1-2.) Cross-Complainants also provide the declaration of Delbert Bern, who avers that JCL performed drywall work on the project negligently. (Bern Decl. ¶¶ 1-8 and Exs. 3-4.) The Jencks Declaration and Exhibits 5-6 thereto, also demonstrate that Cross-Complainants expended $219,366.51 on linear diffuser repairs and $435,500 to remediate the penthouse units. (Jencks Decl. ¶¶ 10-11 and Exs. 5-6 thereto.) The Court notes that $219,366.51 + $435,500 = the requested $654,866.51. Therefore, the Court finds that Plaintiff is entitled to the requested $654,866.51 in damages. b. Prejudgment Interest The interest computation for the $436,863.35 requested is stated as follows: · $654,866.51 x 10% interest rate for breach of contract ÷ 365 days/yr = $179.41 daily interest · $179.41 daily interest x 2,435 days (November 29, 2017 to August 2, 2024) = $436,863.35 Therefore, Plaintiff is entitled to the requested prejudgment interest in the amount of $436,863.35. c. Costs Cross-Complainants also request $25,558.71 in costs composed of $3,578.10 in filing fees, $222.52 in process server fees, $775 in court reporter fees, and $20,983.09 in other fees mediator fees and transportation. (CIV-100.) The request for costs is granted as Cross-Complainants are the prevailing parties in the action. (Code Civ. Proc., § 1032, subd. (a)(4).) Cross-Complainants expound upon the requested costs in the memorandum of costs, where they itemize $3,578.20 in filing fees; $135.53 in courier service fees; $203 in remote appearance fees; $21.16+$218.40+$5.00=$244.56 in toll road, mileage, and parking fees to attend a client meeting, mediation, and a site inspection, and $20,400 in mediator and judicial reference fees. Code of Civil Procedure section 1033.5 permits court reporter fees as established by statute. Cross-Complainants have not provided any information about the statute pursuant to which the court reporter fees requested. Similarly, the Court has no information about the requested courier service fees, which are presumably requested in addition to the $222.52 in process server fees. The Code does not authorize courier service fees, nor have Cross-Complainants demonstrated that such fees were reasonably necessary to the litigation. The Court finds, however, that the $203 remote appearance fees and the $244.56 in toll road, mileage, and parking fees were not reasonably necessary to obtaining a default judgment against JCL. Similarly, the Court does not see how, and Cross-Complainants do not explain how the $20,400 requested in mediator and judicial reference fees were reasonably necessary to obtain a default judgment against JCL. Therefore, Cross-Complainants have only substantiated the $3,578.10 in requested filing fees and $222.52 in process server fees. As such, the Court awards costs in the amount of $3,800.62. CONCLUSION Cross-Complainants have only shown entitlement to judgment in the amount of $1,095,530.48, composed of $654,866.51 in special damages, $436,863.35 in prejudgment interest, and $3,800.62 in costs. The Court addresses Cross-Complainants request for attorneys fees in connection with the separately noticed motion. If Cross-Complainants accept the Courts ruling, the Court will cause the Default Judgment to be entered, including the amount awarded for attorneys fees. DATED: August 28, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court
Ruling
SYDNEY BAEK VS LASUPPORTIVEHOUSING, LLC
Aug 27, 2024 |24CMCV00508
Case Number: 24CMCV00508 Hearing Date: August 27, 2024 Dept: A 24CMCV00508 Sydney Baek v. LASUPPORTIVEHOUSING, LLC Tuesday, August 27, 2024 [TENTATIVE] ORDER CONTINUING HEARING ON DEFAULT JUDGMENT I. BACKGROUND This action arises from Defendants alleged breach of a written lease agreement for four different parcels of residential real property. Plaintiff alleges $288,804 in damages for Defendants alleged failure to pay rent. The clerk entered defendant against Defendant, LA SupportiveHousing, LLC on June 16, 2024. Plaintiff does not allege sufficient facts to support the foundation or authenticity of the business records submitted. The complaint alleges principal damages of $288,804.00. (Complaint 4:18-19.) However, Plaintiffs Damage History Note shows principal damages for unpaid rent and repairs totaling $281,221.00. (Ex. 2, .pdf 16.) Plaintiff requests expenses for repair and cleaning totaling $55,183 (Baek decl., ¶ 19). However, the sum of all invoices is $46,483.00 (Baek Decl., Ex. 3.) Invoice 2007 11164 repair/replace and repair 9940 2/17/23 11164 1⁄2 repair/replace 9750 4/2/23 11166 repair/replace 9300 12/5/22 11166 1⁄2 repaint 10,000 2/16/23 11164 1⁄2 rekey 165 2/28/23 11164 1⁄2 install refrigerator/Stove 750 2/16/23 11164 1⁄2 security 1200 12/30/22 11164 security for 26 days 2500 5/12/22 Security 2600 3/22/23 11166 & 11166 1⁄2 new keys and locks 278 TOTAL 46,483 Additionally, Invoice # 2007 was submitted twice. While Plaintiff mentions recovery of attorney fees, there is no discussion of the basis for its calculation, nor is it separately accounted for in the proposed judgment (Baek decl., ¶ 21.) Costs of $635 are established. Plaintiff collected $10,000 for a security deposit. (Lease, Ex. 1, ¶ 4.A.) The landlord may recover reasonably necessary amounts to remedy tenant defaults in the payment of rent, to repair damages to the premises caused by the tenant, or to clean the premises upon termination of the tenancy, if the payment or deposit is made for any or all of those specific purposes." (Civ. Code, § 1950.5; (a); Civ. Code, § 1950.7(c).) Declarant Baek does not account for the security deposit and whether it was applied to the back rent, cleaning, or repairs. Accordingly, the hearing on Plaintiffs request for court judgment is continued for Plaintiff to submit a supplemental declaration supporting the submission of the business records, a calculation of damages supported by invoices and receipts, allocation of the security deposit, evidence to support principal damages and a re-calculation of principal damages, for back rent damages for repairs/cleaning. If attorneys fees were sought, Plaintiff is ordered to explain the basis for such fees, its calculation, and apply it separately in the proposed judgment where indicated. The hearing is continued to October 31, 2024 at 8:30 a.m. in Department A of the Compton Courthouse. Plaintiff is ordered to provide a supplemental declaration discussing the foregoing discrepancies at least 10 court days before the hearing.
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Arcpe 1 Llc v. Theodore Brinson, John Doe # 1” through “JOHN DOE # 12,” said names being fictitious, parties intended being possibly tenants or occupants of premises, and corporations, other entities, or persons who claim, or may claim, a lien against the premises,
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U.S. Bank Trust, N.A., As Trustee For Lsf9 Master Participation Trust v. Ronald Farish, Diane Kolotylo-Farish AKA DIANE KOLOTYLO AKA DIANE M. KOLOTYLO-FARISH AKA DIANE M. FARISH AKA DIANE KOLOTYLO FARISH, Beneficial New York, Inc., Chrysler Financial Services Americas Llc Fka Daimlerchrysler Financial Services Americas Llc, Citibank (South Dakota), N.A., Daniel E. Brick, Trustee, Sefcu, John Does And Jane Does, Said Names Being Fictitious, Parties Intended Being Possible Tenants Or Occupants Of Premises, And Corporations, Other Entities Or Persons Who Claim, Or May Claim, A Lien Against The Premises., Chris Aydelopte, Travis Leader, Donna Acker
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Lake Shore Savings Bank v. James M Stein, Capital One Bank (Usa) N.A., John Doe, Jane Doe, Doe Corp., Doe Partnership
Feb 13, 2024 |Daniel J Furlong |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Residential |802283/2024
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May 30, 2023 |Emilio Colaiacovo |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |806634/2023
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Freedom Mortgage Corporation v. Jason T. Mcinerney, Secretary Of Housing And Urban Development, The People Of The State Of New York, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon the premises being foreclosed herein
Dec 05, 2022 |Daniel J Furlong |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |814768/2022
