Amended Complaint Filed - No Fee - FIRST November 18, 2019 (2024)

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Ruling

JUSTIN WEBB, AN INDIVIDUAL, ET AL. VS JUSTIN CHOI, AN INDIVIDUAL, ET AL.

Jul 30, 2024 |23STCV12128

Case Number: 23STCV12128 Hearing Date: July 30, 2024 Dept: 78 Superior Court of California¿ County of Los Angeles¿ Department 78¿ ¿ JUSTIN WEBB, et al., Plaintiff(s), vs. JUSTIN CHOI, et al., Defendant(s). Case No.:¿ 23STCV12128 Hearing Date:¿ July 30, 2024 [TENTATIVE] ORDER DENYING MOTION FOR SANCTIONS I. BACKGROUND Plaintiffs Justin and Amanda Webb (collectively, Plaintiffs) filed this breach of contract action against defendants Justin Choi (Choi) and Bradley Blankenship (Blankenship) (collectively, Defendants) arising from the rental and destruction of a Winnebago. The First Amended Complaint (FAC) alleges the following. Plaintiffs and Choi entered into a rental contract dated July 11, 2022 for the rental period of August 27, 2022 to September 7, 2022. Blankenship signed an identical rental contract on July 11, 2022. On August 27, 2022, Blankenship picked up the Winnebago from Plaintiffs. On September 6, 2022, Plaintiffs learned that the Winnebago caught fire, and the driver and occupants of the Winnebago at the time of loss were persons unknown to Plaintiffs. Plaintiffs allege Defendants gave possession of the Winnebago to others without their consent, and the insurance company denied Chois claim under the Rental Endorsem*nt on the policy Choi purchased for the vehicle because the Winnebago was not in Chois possession at the time of loss. As such, Plaintiffs seek to recover the value of the vehicle. Defendant Choi moves for sanctions pursuant to CCP §§128.5 and 128.7, arguing that Plaintiffs First Amended Complaint (FAC) is meritless, the allegations of when Choi signed the lease agreement are false, and that Plaintiffs and their counsel knew it was false. Plaintiffs oppose the motion. As of July 23, 2024, no reply has been filed. Moving Argument Choi argues that he signed a rental agreement after the motor home was rendered unusable from the fire, and that Plaintiffs used this copy as proof that Choi signed the motor home rental agreement before the fire. Choi avers that he signed the rental agreement to aid Plaintiffs with their insurance claim. Choi contends that the metadata of the rental agreement contained in the FACs Exhibit 1 demonstrates that Plaintiffs used his after-the-fact signature. Choi argues that consequently, the rental agreement is false and unenforceable, because at the time he signed the rental agreement, there was nothing to rent to Choi. Opposing Argument Plaintiffs argue that the motion is procedurally defective because at the time of filing, Choi was in default. Plaintiffs argue that the subsequent setting aside of the default does not retroactively cure the defect of filing prior to the set aside. Plaintiffs also contend that under the safe harbor provision of section 128.7, Defendant failed to serve Plaintiffs at least 21 days prior to filing the motion because Choi served the motion on May 18, 2024, and filed it two days later on May 20, 2024. Plaintiffs assert that Choi rented the Winnebago from them, and that he had taken out an insurance policy to cover the period of time that it was rented from Plaintiffs. Plaintiffs argue that whether Choi signed the rental agreement in July or September 2022, that there is nothing prohibiting an earlier oral contract from being later reduced to writing. Reply Argument None filed. II. LEGAL STANDARD CCP § 128.5 Code of Civil Procedure section 128.5 provides that [a] trial court may order a party, the partys attorney, or both, to pay the reasonable expenses, including attorneys fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc., § 128.5(a).) Actions or tactics include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. (Id., § 128.5(b)(1).) Frivolous means totally and completely without merit or for the sole purpose of harassing an opposing party. (Id., § 128.5(b)(2).) CCP § 128.7 Code of Civil Procedure section 128.7 states that a court may impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers if the Court finds the following have been violated: It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. A court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189190.) A claim is factually frivolous if it is not well grounded in fact and is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. (Ibid.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit. (Ibid.) III. DISCUSSION Procedural Pursuant to the Safe Harbor conferred by section 128.7, a party's motion for sanctions may not be filed until 21 days (or any other period as the court may prescribe) after it is served. This allows an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) Plaintiff argues Choi served the motion on May 18, 2024, but filed the motion two days later on May 20, 2024. Choi preemptively addresses this, arguing that there is a conflict between sections 128.5 and 128.7s requirement that moving party give notice of the date and time of the hearing and with the Los Angeles County Courts rules requiring that a motion must be filed within 3 days of making the reservation or the reservation will be automatically cancelled. Indeed, the Court Reservation System (CRS) implemented this requirement as of February 26, 2024, and there does appear to be a conflict for practical consideration. At this time, the Court will not delve into this issue, as there are other reasons to deny the motion. As Plaintiff points out, entry of default cuts off a partys right to appear in the action, including by filing pleadings, until default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) Default was entered against Choi on November 16, 2023, and entry of default was set aside on June 26, 2024. (Min. Order, June 26, 2024.) The instant motion was filed on May 20, 2024, prior to the setting aside of the default. By technicality, if Choi sought to file this motion, it should have been done after June 26, 2024. This, alone, is sufficient grounds to deny the motion. Nonetheless, the Court will briefly address the motion on the merits. Merits Choi refers to Exhibit A to Mr. Chois declaration in support of the argument that Plaintiffs and their attorneys used an after-the-fact signed rental agreement. However, the Court is unable to locate any declaration by Choi, nor any Exhibit A in connection with this motion. Choi claims that sanctions should be imposed because Plaintiff falsely alleges that Choi signed the rental agreement before it was destroyed. However, the FAC alleges Choi entered into a rental contract for the Winnebago dated July 11, 2022& (emphasis added) The FAC does not mention when Choi signed the contract. The Court has reviewed the FACs Exhibit 1. In terms of metadata, it only demonstrates that Chois printed name and the printed date for plaintiff Justin Webbs signature were entered on September 11, 2022, which is four days after the rental period had already concluded, and five days after the Winnebagos destruction. Assuming, for the purposes of this, that Choi did sign the rental agreement after-the-fact, the FAC does not make any reference to when the contract was signed. Rather, the FAC only alleges that the rental contract was dated July 11, 2022. The Court does not see any obviously false allegations. Under section 128.5, A bad faith action or tactic is considered frivolous if it is totally and completely without merit or instituted for the sole purpose of harassing an opposing party. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135 (quoting Levy v. Blum (2001) 92 Cal.App.4th 625, 635).) Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit. (Id. (quoting Levy, supra, 92 Cal.App.4th at 635).) There must also be a showing of an improper purpose, i.e., subjective bad faith on the party of the attorney or party to be sanctioned. (Ibid).) Section 128.5 requires much more than a party acting with no good reason to justify an award of sanctions. (Id. at 136.) There must be a showing not only of a meritless or frivolous action or tactic, but also of bad faith. (Ibid.) Based on the foregoing, the Court cannot conclude that this action against Choi is indisputably meritless or frivolous, and that it was brought in bad faith. Under section 128.7, A claim is factually frivolous if it is not well-grounded in fact and is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit. [Citations.] (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.) For the same reasons as above, the Court cannot conclude that this action against Choi to recover for the loss of the vehicle was objectively unreasonable, even with Chois argument that he only signed the rental agreement for insurance purposes without assuming liability. Choi provides no authority that the liability clause contained in the rental agreement, knowingly signed after the vehicles destruction to collect on insurance, would be unenforceable against him. IV. CONCLUSION Based on the foregoing, Chois motion for sanctions is DENIED. The Court further declines awarding Plaintiffs request for $8,623.63 in attorney fees and costs for opposing the motion. Moving Party is ordered to give notice. DATED: July 29, 2024 __________________________ Hon. Michelle C. Kim¿ Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Ruling

JOELLE BIRNBERG, ET AL. VS CRAFTSCAPE CREATIONS, LLC, ET AL.

Aug 01, 2024 |Echo Dawn Ryan |21STCV29820

Case Number: 21STCV29820 Hearing Date: August 1, 2024 Dept: 26 8/01/2024 Dept. 26 Hon. Rolf Treu, Judge presiding BIRNBERG, et al. v. CRAFTSCAPE CREATIONS, LLC, et al. (21STCV29820) Counsel for Plaintiffs/moving party: Robin Paley (Law Offices of Robin Paley) Counsel for Defendant/opposing party: Mario Rivera (Rivera & Associates) (1) PLAINTIFFS MOTION TO REINSTATE JURY DEMAND (filed 6/03/2024) (2) plaintiffs motion to vacate dismissal of doe defendants (filed 6/10/2024) TENTATIVE RULING The Court GRANTS Plaintiffs motion to reinstate jury demand. The Court GRANTS Plaintiffs motion to vacate dismissal of Doe Defendants. I. BACKGROUND On August 12, 2021, Plaintiffs Joelle Birnberg and Alex Braunstein filed this action against Defendants Craftscape Creations, LLC, Allen Abraham, and Does 1-10. Plaintiffs allege causes of action for: 1. Breach of Contract, 2. Negligence, 3. Trespass, and 4. Money Had and Received. The Complaint alleges the parties entered into an agreement for the performance of landscape work on Plaintiffs property. Plaintiff alleges there were several problems with Defendants landscape work and Plaintiff had to hire contractors to repair the damage to the property caused by Defendants workers and to finish the work. On January 3, 2024, All Doe and Roe Defendants in this action were dismissed without prejudice. On January 7, 2024, Plaintiffs served Hector Esparza, who had been added by Doe Amendment. Defendants Craftscape and Abraham were dismissed from the action on March 28, 2024. On July 3, 2024, Plaintiffs filed the instant Motion to Reinstate Jury Demand, arguing: · Plaintiffs move pursuant to Code of Civil procedure section 631(g), to reinstate their jury demand. · Plaintiffs late deposit of jury fees was inadvertent, and Plaintiffs moved promptly to seek relief once they realized their inadvertence. No prejudice will result to Defendant because this matter had been scheduled for a jury trial from November 29, 2022, to March 28, 2024, Defendant was served with Plaintiffs notice of posting jury fees on May 7, 2024, and Defendant will have more than two months to prepare for a jury trial even after the hearing of this motion. Defendant Hector Esparza filed an opposition, arguing: · Plaintiffs have waived their right to a jury trial and offer no just basis for the Court to excuse the behavior which led to that waiver. Furthermore, Plaintiffs request for relief will prejudice Defendant Esparza. Plaintiffs filed a reply, arguing: · First, Plaintiff asserts Defendants opposition was untimely and should be disregarded. · In Defendants opposition he merely makes conclusory statements that Defendant would be prejudiced, Defendant has failed to make any actual showing of prejudice. See e.g. Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 811 (requiring specific showing of prejudice). o In Johnson-Stovall, the Court gave notice to the plaintiff that he had waived jury fees and the plaintiff acted upon this notice. Here, Plaintiffs did not receive notice of any waiver but posted jury fees on their own approximately a month after Craftscapes dismissal when they discovered Craftscapes notice was no longer effective. On July 10, 2024, Plaintiffs filed the instant Motion to Vacate Dismissal of Doe Defendants, arguing: · Plaintiffs move, under Code of Civil Procedure § 473(b), this Court for an order vacating the dismissal without prejudice of unnamed Doe Defendants that was entered in this case on January 3, 2024. · Plaintiffs move on the grounds of the mistake and inadvertence of Plaintiffs and Plaintiffs counsel who did not become aware of Hector Esparzas status as a licensed, bonded contractor until very recently and after he was served with process on January 7, 2024. · Plaintiffs cannot add the bond company, SureTec Insurance Company, without an order vacating the dismissal of all Doe Defendants. Defendant did not file an opposition. Plaintiffs did not file a reply. II. DISCUSSION A. Plaintiffs Motion to Reinstate Jury Demand a. Timeliness of Opposition As an initial matter, Plaintiffs argue in their reply that Defendants opposition was untimely and should be disregarded. A court may properly consider papers that are not timely filed pursuant to CCP section 1005(b) unless substantial rights are affected. (Cal. Rules of Court, rule 3.1300(d); Code Civ. Proc., § 475.) The appearance of a party at the hearing of a motion and his or her opposition to the motion on the merits is a waiver of any procedural defects or irregularities in a motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Here, the Court moved the hearing date on this motion from June 28, 2024 to July 19, 2024. (Courts 06/18/24 Minute Order.) The Court stated in its order that the deadlines for filing opposition and reply remain governed by the original hearing date. (Ibid.) However, Defendant filed their opposition on July 3, 2024, past the original deadline. Although Defendants opposition was untimely, the Court does not find substantial rights were affected. Thus, the Court will consider the motions on the merits. b. Legal Standard for Motion to Reinstate Jury Demand The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate.¿ (Code Civ. Proc., § 631(a).)¿ CCP section 631 provides that [a]t least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case.¿ (Code Civ. Proc., § 631(b).)¿ The fee must be paid before the date scheduled for the initial case management conference in the action.¿ (Id., § 631(c).)¿ A party waives jury trial by failing to timely pay the fee, unless another party on the same side of the case has paid that fee.¿ (Id., § 631(f)(5).)¿ The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.¿ (Id., § 631(g).)¿ The trial court should grant a motion for relief of a jury waiver unless, and except, where granting such a motion would work serious hardship to the objecting party.¿ (Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 10 (quoting Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809).)¿ When there is doubt about whether to grant relief from a jury trial waiver, the court must resolve that doubt in favor of the party seeking a jury trial.¿ (Id.)¿ ¿ In a motion for relief from waiver of a jury trial, the crucial question is whether the party opposing relief will suffer any prejudice if the court grants relief.¿ (Mackovska, supra, 40 Cal.App.5th at 10.)¿ The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial.¿ (Id. (quoting Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 411).)¿ The mere fact that trial will be by jury is not prejudice per se.¿ (Id. (quoting Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 811).)¿ Denying relief where the party opposing the motion for relief has not shown prejudice is an abuse of discretion.¿ (Id.)¿ ¿ CCP section 631(g) authorizes the court, in its discretion and upon just terms, to allow a trial by jury although there may have been a waiver of a trial by jury.¿ (Code Civ. Proc., § 631(g).)¿ In exercising its discretion, a court is entitled to consider many factors, including the possibility of delay in rescheduling the trial for a jury, lack of funds, timeliness of request and prejudice to all the litigants.¿ (March v. Pettis (1977) 66 Cal.App.3d 473, 480.)¿ Whenever a doubt exists as to the propriety of granting relief, such doubt, by reason of the constitutional guarantee, should be resolved in favor of according a litigant a trial by jury.¿ (Bishop v. Anderson (1980) 101 Cal.App.3d 821, 823.)¿ Further, it is prejudicial to deny a request for a jury trial after a waiver when no prejudice is shown to the other party or to the Court.¿ (Id.)¿ However, relief will be denied where the only reason for the demand appears to be the partys change of mind or where a demand for a jury is being used as a pretext to obtain continuances and thus trifle with justice.¿ (March v. Pettis (1977) 66 Cal.App.3d 473, 480 (quoting Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476).)¿ c. Merits of Plaintiffs Motion to Reinstate Jury Demand Plaintiffs move, pursuant to Code of Civil procedure section 631(g), to reinstate their jury demand. Plaintiffs filed their complaint on August 12, 2021. Plaintiffs and the original named defendants Craftscape Creations, LLC and Allen Abraham demanded a jury trial. On December 14, 2021, this Court scheduled a trial for January 30, 2023. On November 29, 2022, the original Defendants Craftscape and Abraham filed a notice of posting jury fees. On January 7, 2024, Plaintiffs served Hector Esparza, who had been added by Doe Amendment. On March 29, 2024, Plaintiffs filed a dismissal as to Defendants Craftscape and Abraham. The dismissal was entered April 2, 2024. On May 6, 2024, Plaintiffs realized that the Craftscape Defendants dismissal rendered their jury demand ineffective and posted jury fees the next day on May 7, 2024. (Paley Decl., ¶ 3.) Plaintiffs failed to timely pay jury fees and thus waived trial by jury pursuant to Code of Civil procedure section 631(f). Plaintiffs assert the waiver of jury trial was inadvertent and that Plaintiffs moved promptly to seek relief once they realized their inadvertence. Plaintiffs argue no prejudice will result to Defendant because this matter had been scheduled for a jury trial from November 29, 2022, to March 28, 2024, Defendant was served with Plaintiffs notice of posting jury fees on May 7, 2024, and Defendant will have more than two months to prepare for a jury trial even after the hearing of this motion. Defendant opposes and argues he will be subjected to prejudice. Defendant also argues Plaintiffs provide no evidence to show good cause. However, [t]he trial court should grant a motion for relief of a jury waiver unless, and except, where granting such a motion would work serious hardship to the objecting party.¿ (Mackovska, supra, 40 Cal.App.5th at 10.) Here, the Court does not find Defendant has shown it will suffer serious hardship if the motion is granted. The Court notes that Defendant will have more than two months to prepare for a jury trial even after the hearing of this motion, which is sufficient time. Further, Defendant was on notice since November 29, 2022 to March 28, 2024 that this matter was scheduled for a jury trial. In Defendants opposition, he conclusively states he will be subject to prejudice, but does not specify in what way he will be prejudiced. Thus, Defendant has not shown he will be prejudiced other than having to try the case to a jury. As such, the Court finds there is good cause to permit relief from waiver of jury trial in this case because of counsels failure to timely post jury fees. Accordingly, Plaintiffs motion to reinstate jury demand is GRANTED. B. Plaintiffs Motion to Vacate Dismissal of Doe Defendants a. Legal Standard Code of Civil Procedure section 473(b) provides, in relevant part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc. § 473(b).) Section 473¿is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted . . . [citation omitted].¿ In such situations very slight evidence will be required to justify a court in setting aside the default . . . [citation omitted].¿ Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying¿section 473¿must be resolved in favor of the party seeking relief from default . . . [citation omitted].¿ Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. . . . [citation omitted]. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-234 superseded by statute on other grounds as noted in Wilcox v. Birtwhistle¿(1999) 21 Cal.4th 973.) Accordingly, the court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil of Procedure section 473(b), a motion to set aside/vacate a default cannot be brought more than 6 months after the entry of default and must be made within a reasonable time. Similarly, a motion pursuant to Code of Civil Procedure section 473(b) to vacate a default judgment must be made within six-months of the entry of default judgment. (CCP § 473(b).) The six-month time limit is jurisdictional. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App. 3d 965, 970.) Six months is defined as half a year for the purposes of this section which pursuant to section 6803 of the Government Code is the equivalent of 182 days. (Davis v. Thayer, (1980) 113 Cal.App.3d 892, 901-904.) b. Merits of Plaintiffs Motion to Vacate Dismissal Plaintiffs move to vacate the dismissal of Doe Defendants pursuant to Code of Civil Procedure section 473(b). First, the Court finds that Plaintiffs motion has been timely made. Under Code of Civil Procedure section 473(b), an application for relief must be made no more than six months after entry of the dismissal. Here, dismissal was entered on January 3, 2024. Plaintiffs had until July 3, 2024 to file this motion. Plaintiffs filed the instant motion on June 10, 2024, within the six month period. Plaintiffs assert that the January 3, 2024, dismissal of Doe Defendants be set aside on the grounds of their and their counsels inadvertence. In support, Plaintiffs submit the declarations of Plaintiff Birnberg and Plaintiffs counsel Robin Paley. They state that Plaintiffs and Plaintiffs counsel did not know that Defendant was a licensed, bonded contractor at the time the dismissal on January 3, 2024. (Paley Decl., ¶ 4.) Plaintiffs discovered that Esparza had his own contractors license on or around April 26, 2024, after Defendants Craftscape and Abraham were dismissed from the action and Craftscapes insurance company did not cover Esparza. (Ibid.) Thereafter, Plaintiffs checked the Contractors State License Board website, discovered that Esparza was bonded in 2019, and made inquiries with the bond company, SureTec Insurance Company. (Ibid.) In late May, Plaintiffs discovered that the 2019 bond had not been paid out. (Paley Decl., ¶ 5.) However, Plaintiffs cannot collect from the bond company without adding it as a party to this action. (Ibid.) Thus, without this knowledge, Plaintiffs counsel inadvertently acquiesced in the dismissal of Doe and Roe Defendants. Based on the forgoing, the Court finds that Plaintiffs inadvertence is a proper ground for relief. The Court also notes that no opposition has been filed to this motion. Accordingly, the Court GRANTS Plaintiffs motion to vacate dismissal of Doe Defendants. III. DISPOSITION The Court GRANTS Plaintiffs motion to reinstate jury demand. The Court GRANTS Plaintiffs motion to vacate dismissal of Doe Defendants.

Ruling

Hadley, et al. vs. American Honda Motor Co, Inc.

Jul 31, 2024 |23CV-0201803

HADLEY, ET AL. VS. AMERICAN HONDA MOTOR CO, INC.Case Number: 23CV-0201803This matter is on calendar for review regarding status. The Court notes that the parties filed aStipulation to Continue Trial on July 19, 2024. However, no proposed order on the Stipulationhas been filed. The trial is therefore still set to commence on September 9, 2024. The parties areordered to lodge a proposed order on the Stipulation to Continue Trial forthwith. This matter iscontinued to Monday, August 12, 2024, at 9:00 a.m. in Department 64 for confirmation of filingthe proposed order and for trial resetting. No appearance is necessary on today’s calendar.

Ruling

Grayot, Chad vs. Exclusive Auto Group, Inc. et al

Aug 12, 2024 |S-CV-0045347

S-CV-0045347 Grayot, Chad vs. Exclusive Auto Group, Inc. et al** NOTE: telephonic appearances are strongly encouragedAppearance required.

Ruling

3500 SEPULVEDA LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL. VS 6220 SPRING ASSOCIATES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Jul 29, 2024 |24STCV12643

Case Number: 24STCV12643 Hearing Date: July 29, 2024 Dept: 32 3500 SEPULVEDA LLC, et al., Plaintiffs, v. 6220 SPRING ASSOCIATES, LLC, Defendant. Case No.: 24STCV12643 Hearing Date: July 29, 2024 [TENTATIVE] order RE: defendants demurrer to complaint BACKGROUND On May 20, 2024, Plaintiffs 3500 Sepulveda LLC and 13th & Crest Associates LLC filed this action for breach of contract against Defendant 6220 Spring Associates, LLC. The complaint alleges that in 2005, Plaintiffs and Defendant (collectively, the parties) acquired a commercial property in Manhattan Beach, California (Hacienda Property) as tenants in common. (Compl. ¶ 7.) The parties allegedly entered into an agreement (TIC Agreement) providing for their respective interests in the Hacienda Property, requiring payment of costs and expenses in proportion to those interests, and allowing the prevailing party in any litigation arising out of the TIC Agreement to recover its costs and attorneys fees. (Id., ¶ 8.) The parties were allegedly involved in a dispute with the owner of a neighboring property (RREEF), who had planned an expansion project which the parties disapproved of. (Compl. ¶ 9.) This dispute resolved in a settlement agreement between the parties and RREEF. (Ibid.) Upon realizing that the RREEF expansion project would still encroach on the Hacienda Property, the parties decided to sue RREEF for breach of the settlement agreement. (Id., ¶ 12.) However, Defendants principal, Richard Rizika (Rizika), requested that Defendant not be named as a plaintiff in the lawsuit against RREEF. (Id., ¶ 12.) Accordingly, the parties allegedly entered into an oral contract whereby Plaintiffs would file suit against RREEF for the benefit of all the parties, Defendant would provide assistance to the litigation, and Defendant would bear its proportionate share of costs and liabilities related to the lawsuit. (Ibid.) RREEF ultimately prevailed in the litigation and was awarded $2,737,174 in attorneys fees and costs. (Compl. ¶ 14.) Plaintiffs paid the award in full, but Defendant has refused to reimburse Plaintiffs for its 28.3% pro rata share, or $775,578.25. (Id., ¶¶ 15-16.) This action followed. The complaint asserts two causes of action for breach of contract: (1) for the written TIC Agreement; and (2) for the oral agreement regarding litigation responsibilities. On July 1, 2024, Defendant filed the instant demurrer to the complaint. Plaintiffs filed their opposition on July 16, 2024. Defendant filed its reply on July 23, 2024. LEGAL STANDARD A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) MEET AND CONFER Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See French Decl.) JUDICIAL NOTICE a. Court Documents (Exhibits 2-12) Defendants request for judicial notice is GRANTED as to Exhibits 2 through 12 as [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (See Evid. Code, § 452(d).) However, the Court does not take judicial notice of the truth of the matters asserted in such filings. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) b. Purported Contract (Exhibit 1) Defendants request for judicial notice is DENIED as to Exhibit 1 because it constitutes extrinsic evidence that is reasonably subject to dispute and is not capable of immediate and accurate determination by a source of indisputable accuracy. (See Evid. Code, § 452(h).) [T]he existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452, subdivision (h). (The Travelers Indemnity Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 354-55.) The existence and terms of a private agreement are not facts that are not reasonably subject to dispute and that can be determined by indisputable accuracy. (Ibid.) The contract is not undisputed, and Plaintiff objects to judicial notice of the document. For the Court to find that Defendants proffered document is the true and accurate TIC Agreement, it would have to engage in the kind of fact-finding appropriate for a trial on the merits, not for a hearing on demurrer. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1146.) [A] court cannot simply look at a piece of paper and conclude as a matter of law it is a contract between the parties. (Ibid.) Defendants cited cases do not support judicial notice of a contract under the circ*mstances here. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743; Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949; Ingram v. Flippo (1999) 74 Cal.App.4th 1280; Salvaty v. Falcon Cable TV (1985) 165 Cal.App.3d 798.) Therefore, the Court does not take judicial notice of the purported TIC Agreement attached as Exhibit 1. DISCUSSION I. Breach of Written Agreement a. General Principles To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A breach of contract can be alleged by simply plead[ing] the legal effect of the contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) [A] general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.) b. Terms of the TIC Agreement According to the complaint, the TIC Agreement provides for the parties respective interests in the Hacienda Property, requires payment of costs and expenses in proportion to those interests, and allows the prevailing party in any litigation arising out of the TIC Agreement to recover its costs and attorneys fees. (Compl. ¶ 8.) In particular, Plaintiffs allege that Section 2.01 of the TIC Agreement reads as follows: Each Co-Owner shall bear such Co-Owners proportionate share of the costs and expenses associated with the operation, management and ownership of the Property. Each Co-Owners proportionate share of such costs and expenses shall equal such Co-Owners Percentage Interest. (Ibid.) Defendant argues that Plaintiffs fail to properly plead the terms of the TIC Agreement because Plaintiffs have neither attached the contract nor recited the terms verbatim. However, the allegations sufficiently set forth the legal effect of the contract, thus Plaintiff is not required to attach the contract or plead its terms verbatim. (Miles, supra, 236 Cal.App.4th at p. 402.) Additionally, Plaintiffs have pled verbatim the term that was allegedly breached, Section 2.01 of the TIC Agreement. (See Compl. ¶ 8.) c. Obligation to Pay RREEF Judgment Defendant argues that Section 1.02(b) of the TIC Agreement provides that the parties cannot be liable to each other except as expressly set forth in the agreement, and Plaintiffs have not alleged any express term requiring a party to pay a judgment rendered against another party. However, as discussed above, the Court cannot consider extrinsic evidence of the agreement, and the agreement cannot be judicially noticed. Instead, Plaintiffs allegation that Section 2.01 of TIC Agreement requires each party to bear its proportionate share of costs associated with the operation, management, and ownership of the Hacienda Property must be assumed true. (See Compl. ¶ 8.) It must also be assumed true that Defendants have breached the TIC Agreement by failing to pay their pro rata share of the costs, expenses, and liabilities incurred in the RREEF Lawsuit. (Id., ¶ 20.) For demurrer purposes, Plaintiffs have pled a reasonable interpretation of the contract. (See Aragon-Haas, supra, 231 Cal.App.3d at p. 239.) Specifically, it may be reasonably inferred that the costs and expenses associated with the operation, management and ownership of the Property include judgments incurred in litigation involving the Property. Because the complaint alleges that each party under the TIC Agreement was responsible for its proportionate share of such costs and expenses, Defendants alleged refusal to pay its share of the RREEF judgment sufficiently constitutes a breach of contract. Defendant argues that the complaint misquotes Section 2.01 of the TIC Agreement. According to Defendant, the actual terms of Section 2.01 require each party to cover all costs and expenses incurred by that party which the other parties have not authorized. However, as discussed above, the Court cannot take judicial notice of extrinsic evidence of the contract. For pleading purposes, Plaintiffs allegation of the contract terms is assumed true. (Aragon-Haas, supra, 231 Cal.App.3d at p. 239.) Defendant cannot disprove this allegation on a demurrer. Furthermore, the allegations support a reasonable inference that Defendant authorized the costs incurred in the RREEF litigation because the parties allegedly agreed to litigate the case together and cover their proportionate share of costs regardless of who was named in the complaint against RREEF. (See Compl. ¶ 12.) III. Breach of Oral Agreement a. Certainty Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. (Civ. Code, § 1598.) To be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) Defendant argues that the alleged oral contract is impermissibly vague because it cannot be objectively evaluated whether Plaintiffs prosecuted the RREEF lawsuit for the benefit of all the Tenants in Common, or whether Defendant sufficiently participated in and actively supported the case. (See Compl. ¶ 12.) The Court disagrees. The terms are sufficiently certain for pleading purposes and support an inference that a valid oral contract was formed. Again, Plaintiffs need only plead the legal effect of the contract. An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.) The precise terms and their meaning are matters of proof beyond the scope of a demurrer. Moreover, those terms are not the material terms underpinning the breach of contract claim. Rather, the claim is based on Defendants refusal to pay their pro rata share of the costs, expenses, and liabilities incurred in the RREEF Lawsuit. (Id., ¶¶ 23, 25.) For pleading purposes, it may be reasonably inferred that the RREEF judgment is a cost or liability covered by the agreement. Defendants obligation to pay such costs is sufficiently certain and calculable. The scope of the duty and the limits of performance are sufficiently defined because the alleged contract makes clear that Defendant is responsible for costs equal to its proportionate share in the Hacienda Property, and the judgment incurred in the RREEF litigation is in a definite amount. (See Ladas, supra, 19 Cal.App.4th at p. 770.) Thus, there is a rational basis for the assessment of damages. (Ibid.) Therefore, the alleged oral agreement is sufficiently certain. b. Consideration It is essential to the existence of a contract that there should be . . . [a] sufficient cause or consideration. (Civ. Code, § 1550.) Consideration consists of a benefit bestowed or a detriment suffered as bargained for by the parties. (A. J. Industries, Inc. v. Ver Halen (1977) 75 Cal.App.3d 751, 761.) [C]ourts do not weigh the quantum of the consideration as long as it has some value. (Ibid.) However, the consideration selected must be the forbearance or acquisition of some legal right. If they select something which is not a legal right, the acquisition or forbearance of it constitutes no consideration. (Shortell v. Evansferguson Corp. (1929) 98 Cal.App. 650, 655.) Furthermore, [a] promise to perform a preexisting legal duty is not supported by consideration. (Us Ecology v. Cal. (2001) 92 Cal.App.4th 113, 129.) Under the alleged oral contract, Plaintiffs agreed to file a lawsuit against RREEF for the benefit of the parties, and Defendant agreed to assist in the lawsuit and to pay its pro rata share of all costs, expenses, and liabilities related to the lawsuit. (Compl. ¶ 12.) Defendant argues that Plaintiffs agreement not to name Defendant in their complaint against RREEF is not consideration because Plaintiffs had no legal right to have Defendant be named as a party in the first place. However, Plaintiffs had a legal right not to file any lawsuit at all. Therefore, by agreeing to file the lawsuit, Plaintiffs forwent a legal right and provided consideration. Defendant additionally argues that it had a preexisting legal duty to participate in the lawsuit because it was named as a cross-defendant in RREEFs cross-complaint. Therefore, according to Defendant, its alleged promise to participate in the lawsuit was not consideration. The complaint alleges that Defendant agreed to support the case by, among other things, participating in strategy discussions, making strategic decisions, and providing documents, testimony, and other assistance reasonably required. (Compl. ¶ 12.) The case being supported inferably refers to Plaintiffs complaint against RREEF, because the parties allegedly agreed to challenge RREEFs expansion project together through a lawsuit filed by Plaintiffs. Defendant had no preexisting duty to support Plaintiffs complaint against RREEF. Defendants subsequent obligation to defend itself against RREEFs cross-complaint is a separate duty unrelated to its promise to support Plaintiffs complaint. Furthermore, Defendant had no preexisting duty to participate in the lawsuit at the time the alleged contract was formed, because RREEF did not file its cross-complaint until after Plaintiffs initiated the underlying litigation. (See Steiner v. Thexton (2010) 48 Cal.4th 411, 424 [the adequacy of consideration is determined at the time of the agreement].) Lastly, Defendants alleged promise to pay a portion of the costs, expenses, and liabilities of the litigation independently constitutes consideration even if its promise to participate was not consideration. Therefore, the alleged oral contract does not fail for want of consideration. c. Judicial Admissions Defendant argues that Plaintiffs are foreclosed from seeking liability against Defendant because the parties filed an ex parte application in the RREEF litigation to correct the district courts decision to reflect the fact that only 3500 Sepulveda filed the Directors Writ Litigation. (See Def.s RJN, Ex. 6.) The parties made this request out of a concern that if all of them were considered responsible for filing the Directors Writ Litigation, they could be held jointly and severally liable in the event RREEF prevailed. (Ibid.) According to Defendant, Plaintiffs present attempt to hold Defendant liable for the judgment is incompatible with the position they took in the ex parte application. Defendant further contends that Plaintiffs cannot make Defendant pay for the judgment after failing to petition the district court to include Defendant as a judgment debtor. However, the Directors Writ Litigation implicated in the ex parte application appears to be distinct from the RREEF litigation mentioned in Plaintiffs complaint. It cannot be determined on a demurrer that the ex parte application referred to the same litigation. In any case, which party is named as the judgment debtor in the RREEF litigation has no bearing on the parties separate agreement to cover the costs of the litigation. The parties application to correct the district court decision was not an admission that the parties could not independently agree to share the costs of the litigation, including the judgment. This action is not a collateral attack on the district court decision, but an attempt to enforce the parties independent agreement. Therefore, the prior ex parte application does not constitute a judicial admission precluding Plaintiffs from suing Defendant for breach of contract. d. Statute of Frauds The statute of frauds requires certain contracts to be in writing and subscribed by the party to be charged. (Civ. Code, § 1624(a).) One such contract is [a] special promise to answer for the debt, default, or miscarriage of another. (Id., § 1624(a)(2).) However, the statute of frauds does not apply where there is partial performance or reliance. (See Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555; Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1040, fn. 10.) Plaintiffs allege that they performed their side of the agreement by filing suit against RREEF. (Compl. ¶ 13.) This also shows that Plaintiffs relied on Defendants promise to pay the costs of the litigation. Defendant also partially performed by paying some of the litigation costs. (Ibid.) Thus, the statute of frauds does not bar the oral contract claim. CONCLUSION Defendants demurrer is OVERRULED.

Ruling

UNIVERSITY OF SAN FRANCISCO VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT

Jul 29, 2024 |CGC22597932

Matter on the Law & Motion calendar for Monday, July 29, 2024, Line 6. DEFENDANT COMMUNITY INITIATIVES' MOTION FOR SUMMARY JUDGMENT Or In The Alternative For Summary Adjudication. Off calendar. Notice of settlement of entire case filed June 24, 2024. =(302/RBU)

Ruling

Steven Palm vs. Hiller Aircraft Corporation

Jul 30, 2024 |20CECG00763

Re: Palm v. Hiller Aircraft Corp. Case No. 20CECG00763Hearing Date: July 30, 2024 (Dept. 403)Motion: Plaintiff’s Motion to Seize PropertyTentative Ruling: To deny plaintiff’s motion to seize the personal property of Hiller AircraftCorporation.Explanation: Plaintiff moves for an order directing the sheriff to seize 31 items of property, mostlyshipping containers and helicopter manufacturing equipment, from Hiller at 925 M Streetin Firebaugh, California, pursuant to Code of Civil Procedure section 699.030. Section699.030 provides, The judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the levying officer to seize the property in the private place. The application may be made whether or not a writ has been issued and whether or not demand has been made pursuant to subdivision (a). The application for the order shall describe with particularity both the property sought to be levied upon, and the place where it is to be found, according to the best knowledge, information, and belief of the judgment creditor. The court may not issue the order unless the judgment creditor establishes that there is probable cause to believe that property sought to be levied upon is located in the place described. (Code Civ. Proc., § 699.030, subd. (b).) In denying the prior motion to seize property, the court found that plaintiff neededto give notice of the motion to Daquan Jones, who has a judgment against Hiller formillions of dollars arising out of a related action. (Jones v. Hiller Aircraft Corp., Fresno Sup.Ct. case no. 18CECG04044.) In that case, Jones was severely injured after he wasassaulted by Steven Palm, who was then the manager of Hiller Aircraft and is now theplaintiff in the present action. The jury in the Jones case found that Hiller was liable forPalm’s misconduct under respondeat superior principles and imposed a total judgmentof over $8.5 million against Hiller and the City of Firebaugh. The jury also found that Palm’sshare of the fault was 45%, Hiller’s share was 25%, and the City of Firebaugh’s share was25%, with 5% of the responsibility attributed to John Cheatham. (See Judgment enteredin Jones v. Hiller Aircraft, Jones’ Request for Judicial Notice, Exhibit A. The court takesjudicial notice of the judgment in the other action under Evidence Code section 452(c)and (d).) The judgment was entered in the Jones case on June 22, 2021. (Ibid.) Jones subsequently recorded a judgment lien against Hiller on September 17, 2021with the Secretary of State. (Exhibit B to Jones’ Request for Judicial Notice. The courttakes judicial notice of the judgment lien under Evidence Code section 452(c).)Therefore, Jones has a recorded judgment lien against Hiller which takes priority over thejudgment obtained by Palm against Hiller in December of 2023. Under Code of Civil Procedure section 697.600, “A judgment lien on personalproperty has priority over any other judgment lien thereafter created on the property.”(Code Civ. Proc., § 697.600, subd. (a).) “For the purpose of this section, if two or morejudgment liens attach to after-acquired property at the same time under subdivision (b)of Section 697.530, the judgment lien first filed has priority.” (Code Civ. Proc., § 697.600,subd. (b).) In the present case, Jones recorded his judgment lien against Hiller Aircraft inSeptember of 2021, over two years before Palm obtained his judgment against Hiller inDecember of 2023. It is unclear if Palm has recorded a judgment lien against Hiller yet.In any event, Jones’ judgment lien was recorded long before Palm even obtained ajudgment against Hiller, much less recorded a judgment lien. Therefore, Jones’ judgmentlien takes priority over Palm’s judgment, and Jones has the right to collect on his judgmentfirst. Jones states that his judgment has not yet been satisfied, although Hiller states thatit has paid about $950,000 on the judgment so far and intends to pay more in the nearfuture. Since Jones’ judgment has not yet been paid in full, Jones has priority over Palm’sjudgment. Thus, Palm does not have the right to “jump the line” and seize Hiller’s propertyto satisfy his own judgment before Jones’ judgment has been fully paid. In his reply, Palm argues that Jones agreed to settle with Hiller for $1.9 million, andthat he agreed to withdraw his lien after Hiller paid the first $950,000 to him. Hiller has nowpaid Jones $950,000, so Palm argues that Jones should withdraw the judgment lienpursuant to the settlement agreement. If Jones no longer has a judgment lien, thenJones’ judgment no longer has priority over Palm’s judgment. However, regardless of the settlement agreement between Jones and Hiller, thereis no evidence that Jones has yet withdrawn his judgment lien against Hiller. At this time,the evidence indicates that Jones still has a lien against Hiller, and his judgment thereforetakes priority over Palm’s judgment. In addition, Palm never states that he has recordeda judgment lien against Hiller, so he has not shown that he has a lien with priority overJones’ judgment. As a result, Jones’ judgment still has priority, and Palm has no right toseize Hiller’s property to satisfy his judgment before Jones’ judgment has been satisfied. Palm also argues that section 697.600 does not apply where the creditor hasagreed to receive installment payments in the future to satisfy his judgment. (Code Civ.Proc., § 697.510.) Here, Palm points out that Jones agreed to settle with Hiller in exchangefor several installment payments totaling $1.9 million. Therefore, Palm argues that Jones’lien is invalid and does not take priority over his judgment. Under Code of Civil Procedure section 697.510, “Except as provided in subdivision(b) of Section 697.540, a judgment lien may not be created under this article if the moneyjudgment is payable in installments unless all of the installments under the judgment havebecome due and payable at the time the notice of judgment lien is filed.” (Code Civ.Proc., § 697.510, subd. (a).) In the present case, Jones obtained a judgment on June 22, 2021, and herecorded his judgment lien on September 17, 2021. (Exhibits A and B to Jones’ Requestfor Judicial Notice.) The judgment was not payable in installments according to its terms.It was not until years later that Jones settled with Hiller and agreed to accept installmentpayments to satisfy the judgment. Therefore, the judgment lien was not invalid at thetime it was created, and no one has sought or obtained an order determining the lien tobe invalid since the settlement. As a result, Jones’ lien remains valid and enforceable onits face, and it takes priority over Palm’s judgment. Since Jones’ lien has priority over Palm’s judgment, Palm should not be allowed toseize Hiller’s property to satisfy his judgment until Jones’ judgment has been satisfied. Asa result, the court intends to deny the motion to seize Hiller’s property. Also, because the court intends to deny the motion based on Jones’ judgmentlien taking priority over Palm’s judgment, the court does not have to reach the merits ofHiller’s arguments, including that Palm has unclean hands and should not be allowed toenforce the judgment, that the property he seeks to seize are fixtures that are not subjectto seizure under section 699.030, that the FAA regulations bar seizure of Hiller’s property,and that Palm has not sufficiently described the property he seeks to seize. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 7/26/2024 . (Judge’s initials) (Date)

Ruling

IBARRIA vs GENERAL MOTORS, LLC

Aug 01, 2024 |CVRI2202953

IBARRIA vs GENERALCVRI2202953 Motion for Attorney's FeesMOTORS, LLCTentative Ruling: Grant motion to award attorney’s fees in the reduced amount of 33,409.50. Amotion to tax cost was already on 7/29/24.Factual / Procedural ContextPlaintiff filed the instant lawsuit on 7/15/22, alleging standard Song-Beverly claims againstDefendant. Plaintiff served the Complaint on Defendant on 7/22/22. Defendant filed its Answer on8/22/22. After various discovery and an attempted mediation, on 11/29/23, Plaintiff accepted asettlement of $66,561.78.Plaintiff moves for attorney’s fees of $33,409.50, anticipated fees of $2,697.50 and costs of$916.62.Defendant opposes the motion, contending the fees are excessive and Plaintiff’s Lodestar is notjustified by the results. It contends that time spent on basic discovery and administrative tasksare duplicative entries and/or are not recoverable. If further asserts the rate claimed by Ms.Gonzalez is not reasonable.The Reply reasserts many of the same arguments made in the moving papers contendDefendant’s conclusory opinions are not evidence that the fees are unreasonable andDefendant’s summary of the billing is misleading and deceptive.AnalysisUnder Civ. Code §1794(d), “[i]f the buyer prevails in an action under [the Song-Beverly Act], thebuyer shall be allowed by the court to recover as part of the judgment a sum equal to theaggregate amount of costs and expenses, including attorney’s fees based on actual timeexpended, determined by the court to have been reasonably incurred by the buyer in connectionwith the commencement and prosecution of such action.” In the present case, there is no disputethat Plaintiffs are the prevailing parties in this action and is entitled to reasonable attorney feesand costs. Thus, the only question to be determined by this motion is the amount of the award.The California Supreme Court has indicated that attorney fee awards “should be fullycompensatory.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) Thus, in the absence of“circ*mstances rendering an award unjust, an attorney fee award should ordinarily includecompensation for all of the hours reasonably spent, including those relating solely to the fee.” (Id.)However, “[a] fee request that appears unreasonably inflated is a special circ*mstance permittingthe trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d621, 635.)At issue in this motion is the reasonableness of Plaintiff’s request. Importantly, the matter ofreasonableness of a party’s attorney fees is within the sound discretion of the trial court.(Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) 1 Fee motions shouldordinarily be based upon detailed time records. (Crespin v. Shewry (2004) 125 Cal.App.4th 259,271.) The records should detail crucial information as the types of issues involved, servicesperformed, numbers of hours, billing rates, etc. (Martino v. Denevi (1986) 182 Cal.App.3d 553,559.) 2 In determining the reasonable amount of attorney fees, the court first determines a lodestarfigure (time reasonably spent by each biller multiplied by an hourly rate that is reasonable for eachbiller). (Serrano, supra, 20 Cal.3d at 48.) In exercising its discretion, the Court may consider all ofthe facts and the entire procedural history of the case in setting the amount of a reasonableattorney fee award. (Bernardi v. Cnty. of Monterey (2008) 167 Cal.App.4th 1379, 1394; see alsoPLCM Grp. V. Drexler, (2000) 22 Cal.4th 1084, 1096 [factors considered in determining thereasonableness of a party’s attorney fees include the nature of the litigation, its difficulty, theamount involved, the skill required in its handling, the skill employed, the attention given and thesuccess or failure].) The court does not need expert testimony to determine the reasonableamount of a fee award. (PLCM Grp., supra, 22 Cal.4th at 1095.)In the present case, Plaintiff’s counsel’s billing records indicate a lodestar figure of $33, 409.50,anticipated fees of $2,697.50 related to the reply to this Motion and costs of $916.62. (See, Decl.of Iradia Gonzalez at ¶ 52-57, Ex. 23-24.) According to the billing records, the firm billed 83.4hours using four attorneys at hourly rates of $200, $525, $415, $525 and $550.Defendant only challenges the hourly rate of Iradia Gonzalez at $415 per hour contending thatthis rate is not reasonable for an attorney barred in 2020. However, with rates ranging from $220to $550 an hour in Riverside, the rate for Ms. Gonzalez seems reasonable. (See, EnPalm, LLCv. Teitler (2008) 162 Cal.App.4th 770, 774 [the court may rely on its own experience in determiningwhether the hourly rate or hours spent in the matter are reasonable].)Additionally, Defendant challenges a few specific entries as unreasonable, administrative and/orblock billing. However, these entries seem reasonable and for most of the entries challenged,Defendant offers no explanation for the unreasonableness other than stating that Plaintiff routinelydoes these tasks in the lemon law context. This is not a sufficient reason to reduce the billingrecords.The only fees that should be cut is the $2,697.50 in anticipated fees for reviewing the Opposition,preparing the reply brief and attending the hearing. In her amended declaration with the Reply,Plaintiff’s counsel does not address or provide evidence for the actual amount of fees incurred forthese tasks. Thus, there is no evidence supporting these fees.As to costs, Plaintiff claims he is entitled to $916.22 However this issue was already address in aprior motion to tax costs on 7/29/24.1 The amount of fees awarded by a trial court is subject to a very deferential standard of review. (Serrano v. Priest(1977) 20 Cal.3d 25, 49; see also In re Lugo (2008) 164 Cal.App.4th 1522, 1544–45 [“The only proper basis ofreversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks theconscience and suggests that passion and prejudice influenced the determination”].) With respect to a fee award, it iswell recognized that the trial court is in the best position to evaluate the work of the attorneys. (Downey Cares v.Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997.)2 However, “[t]estimony of an attorney as to the number of hours worked on a particular case is sufficient evidenceto support an award of attorney fees, even in the absence of detailed time records.” (Martino, supra, 182 Cal.App.3dat 559; see also Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375–76.) The court is then entitledto make its own evaluation of the reasonable worth of the work done in light of the nature of the case and the credibilityof counsel’s declaration, unsubstantiated by time records and billing statements. (See Weber v. Langholz (1995) 39Cal.App.4th 1578, 1587.)3.Motion to Strike Answer on ComplaintXEROX FINANCIALfor Breach of Contract/Warranty (OverSERVICES LLC vsCVRI2400812 $35,000) of XEROX FINANCIALBEAUMONT COPY CENTERSERVICES LLC as to BEAUMONTINC.COPY CENTER INC.Tentative Ruling: Grant.

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