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Ruling
ANTONIO LUJAK, AN INDIVIDUAL VS TRAVIS BOTT, AN INDIVIDUAL, ET AL.
Aug 06, 2024 |23STCV22654
Case Number: 23STCV22654 Hearing Date: August 6, 2024 Dept: 37 HEARING DATE: Tuesday, August 6, 2024 CASE NUMBER: 23STCV22654 CASE NAME: Antonio Lujak v. Travis Bott, et al. MOVING PARTY: Defendant Travis Bott OPPOSING PARTY: Plaintiff Antonio Lujak TRIAL DATE: Not Set PROOF OF SERVICE: OK PROCEEDING: Motion to Quash Service of Summons OPPOSITION: 16 July 2024 REPLY: 29 July 2024 TENTATIVE: Defendant Botts motion to quash is granted. Plaintiffs request for sanctions is denied. Defendant to give notice. Background On September 19, 2023, Antonio Lujack (Plaintiff) filed a Complaint against Travis Bott (Bott); Traders Domain Fx Ltd. (Traders); Digi Ware Technology Ptd LTD (Digi Ware); and Does 1 to 100. The Complaint alleges twelve causes of action for: 1) Breach of Fiduciary Duties; 2) Negligence; 3) Rescission of Securities Transactions (Material Misrepresentations); 4) Joint and Several Liability Management; 5) Recession and Restitution (Violation of Qualification Requirements); 6) Joint and Several Liability of Offering Principals; 7) Fraud; 8) Conversion; 9) Declaration of Constructive Trust; 10) Negligent Misrepresentation; 11) Conspiracy; and 12) Accounting. On July 10, 2024, Defendant Travis Bott (Bott) filed a Motion to Quash the Plaintiffs Summons and Complaint for lack of personal jurisdiction. Plaintiff opposes the Motion. The matter is now before the court. motion to quash service of summons I. Legal Standard CCP § 418.10(a) states: A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve or file a motion&[t]o quash service of summon on the ground of lack of jurisdiction of the court over him or her.¿¿¿¿¿ ¿ When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.¿(State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557.)¿If the plaintiff meets his or her burden, the burden shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362. [When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.].) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Jewish Defense Org. v. Superior Court¿(1999) 72 Cal.App.4th 1045, 1055.) II. Evidentiary Objections Defendant Bott submitted evidentiary objections to the Declaration of Richard R. Farcus: Objections Nos. 1 and 4 are overruled as the Plaintiff may rely on well-pleaded allegations made in the Compliant. Objections Nos. 2, 3, 5, 10, 11, 12, 13, 14, and 15 are sustained as they are hearsay and lack foundation. Objections Nos. 6, 7, 8, 9, and 16 are overruled. III. Discussion Defendant Bott moves to quash the service of summons due to lack of personal jurisdiction. Defendant Bott submitted a declaration attesting that he has been a resident of the state of Utah for the last 12 years and does not direct, market, advertise, or employ any officer, distributor, servant, agent, employee, salesperson, or other representative within the State of California. (Botts Decl., ¶¶ 4, 7-11.) Bott asserts he does not maintain any bank accounts in California, pay taxes in California, or own any real property in California. (Bott, Decl., ¶ 12.) Bott asserts that he works for a Management Service Business in Utah, and has never been an employer, owner, or worked for Defendant Traders. (Bott Decl., ¶¶ 5, 6, 14.) Lastly, Defendant Bott asserts that he was served at the wrong address because he has not lived in Alpine, Utah for two and half years as that is the address of his legally separated wife and she is not authorized to accept service on his behalf. (Bott Decl., ¶ 15.) Therefore, Defendant Bott asserts that the May 20, 2024, Proof of Service by substitute service at the address 1651 East Box Elder Circle, Alpine UT 84004 is improper. In opposition to a motion to quash based upon lack of personal jurisdiction, complainants have the initial burden of filing evidence to show minimum contacts. (See Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 228.) It is plaintiff's burden to prove facts of jurisdiction by a preponderance of evidence. (Cornelison v. Chaney (1976) 16 Cal.3d 143, 155.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered as an affidavit supplying necessary facts. (Ziller Electronics Lab GmbH v. Superior Court¿(1988) 206 Cal.App.3d 1222, 1233.)¿ Plaintiff offers only the declaration of his attorney, Richard D. Farkas. Farkas presents evidence that Defendant Botts is involved in another case entitled EM1 Capital LLC vs. Bott, et. al., United States District Court case number 2:24-cv-01044-SB-SSC, in which Bott attests under penalty of perjury under the laws of the United States that he has been a citizen of Utah since 2016 and that his permanent address is 1651 Box Elder Circle, Alpine Utah 84004. (Farkas Decl. Ex. A, ¶ 4.) The declaration was executed on February 13, 2024. (Farkas Decl. Ex. A.) Under the doctrine of judicial estoppel, the court accepts that service was proper at 1651 Box Elder Circle. (See The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 842.) However, the fact that service is proper is insufficient to show that the court has personal jurisdiction over Defendant Bott in this action. For specific jurisdiction, courts consider the relationship among the defendant, the forum and the litigation. (Snowey v. Harrahs Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendants contacts with the forum, and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice. (Ibid.)¿¿¿¿ Plaintiffs reliance on a copy of the First Amended Complaint in EM1 Capital LLC vs. Bott, et. al., United States District Court case number 2:24-cv-01044-SB-SSC, and a Third-Party Complaint in the same action does not establish that the court has personal jurisdiction over Bott in this action. Plaintiff cites no case law in which the court may rely on allegations made in the complaint of another action to assert personal jurisdiction over the defendant in a similar action. Instead, each party's contacts with the forum [s]tate must be assessed individually. (In re Boon Global Limited (9th Cir. 2019) 923 F.3d 643, 651 citing Calder v. Jones (1984) 465 U.S. 783, 790.) Plaintiff submits no evidence Bott has purposefully availed himself of the benefits of conducting business in California and has minimum contacts with the State of California such that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. (Brue v. Shabaab (2020) 54 Cal.App.5th 578, 589.) Other than then the conclusory allegations in the Complaint, Plaintiff offers no evidence that Bott reached out to Plaintiff about a business venture and that the venture was entered into and/or aimed at Plaintiff as a resident of California. The Complaint alleges that it was Plaintiff who contacted Defendant Pak about the investing with Defendant Traders. (Compl., ¶ 12.) When jurisdiction is at issue, the court accepts well-pleaded allegations as fact. (Brue, supra, 54 Cal.App.5th at p. 590.) However, if the allegation is based on information and belief, the plaintiff must allege what information leads the Plaintiff to believe that the allegations are true. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.) The Complaint fails to allege what information led Plaintiff to believe that Bott is an authorized agent or representative or owner or operator of Defendant Traders. The Complaint fails to allege specific facts to show that Defendant Bott reached out to Plaintiff in California to entice him to invest with Defendant Traders, such that there was purposeful availment. Plaintiffs Exhibit D, purporting to show screenshots in Plaintiffs cell phone showing a message from Pak/David forwarded from Travis Bott is not authenticated by Plaintiffs testimony and fails to explain who the intended recipient, Goldie longstocking, is and their connection to Plaintiff. (Farkas Decl., Ex. D.) Exhibit D fails to show Bott intended that his message be forwarded to Plaintiff and that he knew Plaintiff was a resident of California. The other screenshot appears to show the name Adam Powell and fails to explain how the screenshots relate to Plaintiff or Defendant Bott. Consequently, there is no evidence showing Defendant Bott is connected with Defendant Traders and that Defendant Bott has sufficient minimum contacts with California such that the court may exercise personal jurisdiction. Therefore, the Motion to quash is granted. Plaintiffs request for sanctions is denied. Conclusion Defendant Botts motion to quash is granted. Plaintiffs request for sanctions is denied. Defendant to give notice.
Ruling
Edgar Lopez Martinez vs AMERICAN HONDA MOTOR CO., INC., a California Corporation
Aug 06, 2024 |23CV01847
23CV01847MARTINEZ v. AMERICAN HONDA PLAINTIFF’S MOTION TO COMPEL REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO The motion is denied as moot. Defendant provided responses the day this motion wasfiled (which was within four (4) business days of the parties’ agreed-upon extension of time).The court declines to impose sanctions against plaintiff.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.
Ruling
Marco Corona vs General Motors, LLC
Aug 05, 2024 |23CV01898
23CV01898CORONA v. GENERAL MOTORS PLAINTIFF’S MOTION TO COMPEL REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE The motion is granted in part. Defendant shall provide code-compliant further verified responses and responsivedocuments for request nos. 7, 10, 16-18, 24, 28-30, 47, 87, 89, 90, 92-97, 101, 102, 109, and 110within 21 days of the hearing pursuant to the terms of the parties’ Stipulated Protective Order.Defendant’s further responses shall identify which documents are responsive to which requests.If any documents are withheld pursuant to any privilege, defendant shall also serve a privilegelog. In the event of future discovery motions brought against defendant, the court willseriously consider the imposition of monetary sanctions against defendant and/or counsel, suasponte even if not requested by plaintiff. The court declines to rule on plaintiff’s objections to the Declaration of Sandra Habibsince they are not dispositive to the ruling on this motion.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 4 of 4
Ruling
UNI-GLORY DEVELOPMENT, INC. VS. FAIRVIEW EAST LLC
Aug 05, 2024 |EC066531
Case Number: EC066531 Hearing Date: August 5, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT UNI-GLORY DEVELOPMENT, INC., Plaintiff(s), vs. FAIRVIEW EAST, LLC, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: EC066531 [TENTATIVE] ORDER RE: APPLICATION FOR DEFAULT JUDGMENT Dept. 3 8:30 a.m. August 5, 2024 ) I. INTRODUCTION Cross-complainant Fairview East, LLC (Fairview East) seeks a default judgment against cross-defendants Engles Shen & Associates, Inc. (Engles Shen), DLAC, Inc. (DLAC), and Golden City International, Inc. (Golden City) (collectively, Defaulting Cross-Defendants). Item 8 of the most recently-submitted proposed judgment, filed on July 29, 2024, identifies a judgment in the sum of $205,890.40 against [DLAC], $145,339.36 against [Engles Shen], and $145,339.36 against Golden City with DLAC and Engles Shen jointly and severally liable for $80,435. Despite the submission of this revised proposed judgment and the supplemental brief, the application for default judgment remains deficient and Fairview Easts request for a default judgment cannot be entered at this time. First, Fairview East alleges that DLAC, an architectural firm, allegedly caused $100,000 of damage from 50 days of delay due to errors made as to the map requirements. (Fourth Amended Cross-Complaint, ¶ 20.) In Fairview Easts supplemental brief, Fairview East argues it sustained $20,928 in damages from the delay caused by DLAC based on the interest accrued over 50 days on a $3,055,500 loan with a 5% annual interest rate. Yet Fairview East still does not explain how the plethora of bills and fees from 2014 to 2017 are relevant to damages owed by DLAC due to 50 days of delay, nor does it explain why it calculates prejudgment interest beginning on January 17, 2014. As for Engles Shen, Fairview East submits receipts showing that it sustained $85,206.80 in damages to redo the foundation and fix an incorrect design caused by Engles Shen. (Ex. 5, pp. 45-46.) The operative Fourth Amended Cross-Complaint alleges that Engles Shen caused only $80,000 damages, therefore, Fairview Easts recovery against Engles Shen is limited to $80,000. Prejudgment interest is calculated by Fairview East starting June 23, 2016 to July 29, 2024, but there is no explanation for this start date. Last, Fairview East fails to show that it is entitled to a judgment of $145,339.36 against Golden City. In Paragraph 21 of the Fourth Amended Cross-Complaint, Fairview East alleges that Golden City caused damages in the amount of $80,000. Fairview Easts Eric Ho cites to Exhibit 6 of his declaration and claims that Golden Citys incompetent and incomplete construction services caused a total of $332,032.27 in damages. However, Exhibit 6 consists of a collection of receipts and there is no explanation for how Golden City is responsible for any of them. And, as with Fairview Easts calculation of prejudgment interest for DLAC and Engles Shen, there is no explanation for why prejudgment interest is being calculated beginning on June 23, 2016. Based on the foregoing, the hearing on the default prove-up is CONTINUED to September 10, 2024, at 8:30 a.m. in Department 3 of the Alhambra Courthouse. All revised and additional supporting papers must be submitted no later than 10 court days before the hearing. Dated this 5th day of August, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
STEVEN SMITH ET AL VS FORSHPAN CAPITAL LLC ET AL
Aug 08, 2024 |BC642674
Case Number: BC642674 Hearing Date: August 8, 2024 Dept: 73 08/08/2024 Dept. 73 Hon. Rolf Treu, Judge presiding SMITH, et al. v. FORSHPAN CAPITAL, LLC, et al. (BC642674) Counsel for Plaintiffs/moving party: Ethan Brown (Brown Neri Smith & Khan LLP) Counsel for Defendants: Norm Rodich (Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP), Michael McCollum (McCollum Counsel) PLAINTIFFS MOTION FOR ATTORNEYS FEES AND LITIGATION COSTS (filed on 06/28/2024) TENTATIVE RULING Plaintiffs Motion for Attorneys Fees and Litigation Costs is GRANTED. The Court awards Plaintiffs $46,900.85 in attorneys fees and $50,557.29 in costs to be paid out of the settlement fund. BACKGROUND On December 2, 2016, Plaintiffs Steven Smith, Oscar George, Robert Margolis, and Tirso George Jr. (collectively Plaintiffs), filed this shareholder derivative action. In their operative complaint, Plaintiffs allege derivative claims for breach of contract, breach of fiduciary duty and an accounting against Defendants Forshpan Capital, LLC and Morton Forshpan, and nominal Defendant Mojave Square LLC. Plaintiffs allege that Forshpan Capital, as managed by Morton Forshpan, caused harm to the company by failing to pay property taxes owed by Mojave Square, failing to prudently manage the property and ensure timely payment of taxes, failing to file necessary corporate documents, failing to consummate a sale of the property to limit any losses, and refusing to maintain and provide books and records as required. On April 19, 2024, the parties executed a settlement agreement for this proceeding and filed a motion for preliminary approval of the settlement with the Court on May 15, 2024. On June 26, 2024, the Court granted Plaintiffs Motion for Preliminary Approval of Derivative Claims Settlement. On June 28, 2024, Plaintiffs filed the instant Motion for Attorneys Fees and Litigation Costs, arguing: · The Settlement Agreement provides for the payment of money back to the LLC to be distributed to the members according to their interests. · Since Plaintiffs obtained a benefit for the LLC and its members, Plaintiffs seek court approval of an award of attorneys fees and costs. o The Supreme Court of the United States has long held that, where a representative party has, through its efforts, created a common fund for, or conferred a substantial benefit upon, an identifiable class or corporate entity, like Plaintiffs and their counsel did here, that party is entitled to attorneys fees for the creation of such benefits. See, e.g., Boeing v. Van Gernert, 444 U.S. 472 (1980); Mills v. ElectricAuto Lite Co., 396 U.S. 375 (1970) · Plaintiffs requests for attorneys fees and costs are also reasonable. Plaintiffs attorneys fees are a fraction of their regular hourly rate fees. · Plaintiffs also incurred all costs in the ordinary course of litigation. These included arbitration fees, deposition costs, mailings, copying fees, and filing fees, among others. No opposition has been filed. ANALYSIS A. Legal Standard As a general rule, the prevailing party may recover certain statutory costs incurred in the litigation up to and including entry of judgment. [Citations.] These costs may include attorney fees, if authorized by contract, statute . . . or law. [Citation.] . . . attorney fees require a separate noticed motion. [Citations.] (Lucky United Props. Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.) This motion may be brought: (1) after judgment or dismissal, for fees incurred up to and including the rendition of judgment in the trial court--including attorneys fees on an appeal before the rendition of judgment&; and (2) on an interim basis, upon remittitur of appeal, of only fees incurred on appeal. (CRC, Rule 3.1702(b)-(c).) 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. (Id.) 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.) B. Discussion a. Entitlement to Attorneys Fees Plaintiffs move for an award of attorneys fees to be paid out of the settlement in this case. Plaintiffs contend that they are entitled to attorneys fees under the common-fund doctrine. Under the American rule, which is embodied in Code of Civil Procedure section 1021 in California, as a general proposition each party to a litigation must pay his or her own attorneys fees. There are statutory exceptions to this rule, and the courts have created several exceptions pursuant to their inherent equitable powers. Exceptions to the American rule created under the courts' equitable powers include the common fund and substantial benefit doctrines. (Cziraki v. Thunder Cats, Inc. (2003) 111 Cal.App.4th 552, 557, footnotes omitted.) [I]f the litigation has succeeded in creating or preserving a common fund for the benefit of a number of persons, the plaintiff may be awarded attorney fees out of that fund. [Citation.] Likewise, if a judgment confers a substantial benefit on a defendant, such as in a corporate derivative action, the defendant may be required to pay the attorney fees incurred by the plaintiff. In Fletcher v. A.J. Industries, a California appellate court concluded a substantial benefit warranting an award of attorney fees to a successful plaintiff in a shareholder derivative action exists where the results of the action maintain the health of the corporation and raise the standards of fiduciary relationships and other economic behavior, or prevent [s] [sic] an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder's interest. (Cziraki, supra, 111 Cal.App.4th 552, 557-58, footnotes omitted.) In a derivative action, the corporation represents the class of beneficiary shareholders. When the corporation pays attorney fees to the successful plaintiff, all shareholders indirectly share the cost of the beneficial litigation with the shareholder who brought the action. (Cziraki, supra, 111 Cal.App.4th 552, 558.) Here, Plaintiffs assert that the common-fund doctrine applies because Plaintiffs successfully prosecuted their derivative claims against Defendants, resulting in a settlement fund to be paid by Defendants to Plaintiffs for the benefit of its shareholders. The Court finds Plaintiffs meet their burden in establishing that the common-fund doctrine applies. Plaintiffs were successful in prosecuting its derivative claims against Defendants, which resulted in a common fund for the benefit of the shareholders. As such, Plaintiffs counsel may be awarded its attorneys fees out of this fund. Defendants do not oppose this motion and, therefore, do not show why Plaintiffs should not be entitled to attorneys fees. b. Reasonableness of Attorneys Fees and Costs Plaintiffs request $46,900.85 in attorneys fees and $50,494.74 in litigation costs to be paid out of the settlement fund. The parties settled for a total of $193,750. That payment includes a $35,000 payment for the services that Plaintiffs rendered in this action, with $12,500 to Oscar George, $7,500 to Robert Margolis, $10,000 to Steven Smith, and $5,000 to Tirso George, Jr. The $193,750 payment, minus the payment to Plaintiffs for their services rendered, and minus Plaintiffs attorneys fees (33%) and costs (as incurred), shall be distributed pro-rata to all members of Mojave Square (excepting Defendants Forshpan Capital and Morton Forshpan) based on their investment percentage as calculated after removing those not entitled to any settlement proceeds. (Courts 6/26/24 Minute Order, p. 4.) Plaintiffs counsel submits its billing invoices which show that counsel spent more than 470 hours on litigation tasks in this case. (Brown Decl. ¶ 4, Ex. A.) Plaintiffs counsel, Mr. Brown and Mr. Barnes, were the only two attorneys primarily involved in this case. (Brown Decl. ¶ 7.) Plaintiffs counsels hourly rates are typically $675 and $395 per hour. (Brown Decl. ¶ 8.) Plaintiffs counsel attest to their experience and that their rates are comparable to rates for attorneys of similar skill. (Brown Decl. ¶¶ 8-9.) Plaintiffs assert that calculating the amount of hours spent by counsel on this case at their typical hourly rate would equal $176,447.50 in attorneys fees. However, here, Plaintiffs request for attorneys fees is only $46,900.85 at the 33% contingency fee. As to the work performed in this matter, Plaintiffs assert the parties litigated the case extensively. (Brown Decl. ¶ 4.) Written discovery was exchanged, more than 2,500 documents were exchanged, all parties and one third-party deposition was taken, and subpoenas for business records were served. (Ibid.) Discovery was extensive given that the LLC was formed in 2005, thus, investigation included facts going back more than a decade after the case was filed. (Ibid.) Once discovery was completed, Defendants moved for summary judgment/adjudication. That motion was partially granted and partially denied. (Ibid.) Regarding the litigation costs, Plaintiffs assert they reasonably and necessarily incurred $50,494.74 in litigation expenses in connection with commencing, prosecuting, and settling the claims against Defendants. Reimbursem*nt of litigation expenses is also appropriate under the Common Fund Doctrine. (See Fletcher v. A.J. Industries, Inc. (1968) 266 Cal.App.2d 313, 319 and 329 (affirming an order awarding costs and attorneys fees in a derivative action). Plaintiffs counsel submitted their invoices showing the expenses incurred for this case included filing fees, service fees, mailings, copying and printing, parking, arbitration fees, court reporter fees, and mediation fees. (Brown Decl. ¶ 10, Ex. B.) The biggest expense, $25,334.37, in this case was arbitration fees, for the Honorable Richard Stone of Signature Resolution. (Ibid.) Based on the foregoing, the court finds that Plaintiffs request for $46,900.85 in attorneys fees and $50,494.74 in litigation costs is reasonable. The Court finds Plaintiffs counsel establishes that they have performed a substantial amount work litigating Plaintiffs claims against Defendants and have generally been successful. The amount of work discussed above well exceeds the $46,900.85 in attorneys fees that Plaintiffs request in this motion. Plaintiffs counsel submits their billing invoices and establishes the reasonableness of their hourly rates, of the hours spent prosecuting Plaintiffs claims against Defendants and of the litigation costs incurred. Neither Defendants nor any other party opposes this motion and, therefore, does not show why it should not be granted. The Court therefore GRANTS Plaintiffs motion for attorneys fees. The Court awards Plaintiffs $46,900.85 in attorneys fees and $50,557.29 in costs to be paid out of the settlement fund. DISPOSITION Plaintiffs Motion for Attorneys Fees and Litigation Costs is GRANTED. The Court awards Plaintiffs $46,900.85 in attorneys fees and $50,557.29 in costs to be paid out of the settlement fund.
Ruling
CHONG vs FCA US LLC
Aug 06, 2024 |CVRI2400310
Motion to Strike Complaint on Complaintfor Other Employment (Over $35,000) ofCVRI2400310 CHONG vs FCA US LLCJAMES JOSEPH by JHAWARINDUSTRIES LLC.Motion to Compel Defendant'sCVRI2400310 CHONG vs FCA US LLC Responses to Special Interrogatories(Set One) by MAYRA CHONGMotion to Compel Order EstablishingAdmissions to Plaintiff's Requests forAdmission (Set One), and for MonetaryCVRI2400310 CHONG vs FCA US LLCSanctions Against Defendant FCA USLLC and/or its Counsel in the Amount of$1,900.00 by MAYRA CHONGMotion to Compel Motion to CompelDefendant's Responses to Requests forCVRI2400310 CHONG vs FCA US LLC Production of Documents (Set One) andfor Monetary Sanctions by MAYRACHONGCVRI2400310 CHONG vs FCA US LLC Motion to CompelCVRI2400310 CHONG vs FCA US LLC Motion to CompelCVRI2400310 CHONG vs FCA US LLC Motion to CompelCVRI2400310 CHONG vs FCA US LLC Motion to CompelTentative Ruling:Plaintiff Mayra Chong alleges that she purchased a 2018 Dodge Durango that had defectiveelectrical system, engine, structure/steel frame, transmission, axle/steering/suspension, tires,infotainment system, brake system, technology system and powertrain. On 1/18/24, Plaintiff filedher Song-Beverly complaint for: (1) Civil Code §1793.2(d); (2) Civil Code §1793.2(b); (3) CivilCode §1793.2(a)(3); (4) breach of express warranty; (5) breach of implied warranty ofmerchantability; and (6) negligent repair.Plaintiff moves to compel initial responses to set one of form interrogatories, specialinterrogatories and requests for production, and deem admissions admitted as to each Defendant,served on 3/6/24 via e-service. Plaintiff has not received any responses. Plaintiff seeks $2,900.00($500 x 5.5 hours plus $157.50 for filing) against Defendant and its counsel on each motion.Defendant FCA opposes the motion contending that the motions are moot as it served responseson 7/18/24 with verifications coming. It asserts the failure to respond was due to mistake ofcounsel. It argues that there is no basis for sanctions.Defendant Moss Bros., in an untimely opposition, asserts that it also served its responses on7/25/24 with verifications coming. It otherwise repeats the arguments of Defendant FCA.In reply as to FCA, Plaintiff contends on 7/22/23, the court issued a tentative ruling which grantedthe motions, and the court should have adopted it, rather than allow FCA to speak at the hearingwhich Plaintiff was not present. She argues that the court should disregard the Defendant’sopposition. For both Defendants, Plaintiff contends their responses are not code-compliant andthere has been no production of documents.AnalysisCCP §2030.290(b) and §2031.300(b) allow the propounding party to file a motion to compelresponses to interrogatories and document demands if a response has not been received. Ifresponses are untimely, responding party waives objections. (CCP §§ 2030.290(a),2031.300(a).)Here, Defendants served unverified responses with objections. The trial court retains authority tocompel responses irrespective of the late responses. (Sinaiko Healthcare Consulting, Inc. v.Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405-407.)An unverified response is ineffective as it is the equivalent of providing no response at all.(Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 (applying to requests foradmissions).) The untimely responses also included objections. Defendants request relief fromwaiver of the objections. The court, upon motion, may relieve that party from waiver if: (1) theparty subsequently served a response that is in substantial compliance with the discovery statutesand (2) the party’s failure to timely serve the response due to mistake, inadvertence or excusableneglect. (Id.) The same standard governing relief under CCP §473 applies to these motions.(City of Fresno v. Super. Ct. (1988) 205 Cal.App.3d 1459, 1467.) However, Defendants did notfile a motion—it cannot request relief from waiver via opposition.Accordingly, the Court grants all the motions to compel and orders Defendants to serve codecompliant verified responses without objections within 14 days of this order.For the requests for admissions, failure to respond permits the propounding party to move for anorder deeming the admissions admitted. (CCP §2033.280.) The court shall grant the motion“unless it finds that the party to whom the requests for admission have been directed has served,before the hearing on the motion, a proposed response…in substantial compliance with Section2033.220.” (CCP §2033.280(c).) For requests for admission, they are taken in totality of theproposed response, rather than each individual response. (St. Mary v. Superior Court (2014) 223Cal.App.4th 762, 782.) Again, Defendant included objections nearly in all responses, which arewaived. (CCP §2033.280.) Nor did Defendants file a separate motion to seek relief from waiver.But, Defendant did provide a response of admit, deny or inability to response. However, theresponses remain unverified. Because there have been no verifications the Court grants themotions to Deem Admissions Admitted.For interrogatories and requests for production, the court shall impose sanctions unless the losingparty acted with substantial justification or other circ*mstances render the sanction unjust. (CCP§§ 2030.290(c), 2031.300(c).) Here, sanctions are unjust in light of the Defendants’ assertions ofmistake for failing to provide responses due to calendaring errors. However, Plaintiff had to filethe motions in order to get responses. The Court will award Plaintiff $360 in costs for the filingfees for each motion to Compel (6 x $60 = $360)However, sanctions are mandatory for requests for admissions. (CCP §2033.280(c).) Plaintiff’srequest $500 x 5.5 hours for a total of $2,750 per motion. However, the Court will award $500 x2 hours per motion for a total of $1000 per motion plus $120 in filing fees for a total sanction of$2,120 as to the Motion to Deem Admissions Admitted.Total sanctions in the amount of $2,480 payable to Plaintiff forthwith.
Ruling
ERAN CHEN VS JESUS VALENCIA
Aug 07, 2024 |24VECV00769
Case Number: 24VECV00769 Hearing Date: August 7, 2024 Dept: T 24VECV00769 CHEN V VALENCIA Motion to withdraw: Grant subject to submission of completed order and filing proof of service on the client. Please include name, address, telephone number and email of client on the order. CMC is continued (120 days, plaintiff ordered to appear)
Ruling
GISSELLE MACIEL VS CARMAX AUTO SUPERSTORES, INC., ET AL.
Aug 08, 2024 |23STCV24773
Case Number: 23STCV24773 Hearing Date: August 8, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 8, 2024 TRIAL DATE: Not set CASE: Gisselle Maciel v. CarMax Auto Superstores, et al. CASE NO.: 23STCV24773 MOTION FOR ATTORNEYS FEES, COSTS, AND EXPENSES MOVING PARTY: Plaintiff Gisselle Maciel RESPONDING PARTY: Defendants CarMax Auto Superstores, Inc., et al. I. INTRODUCTION On April 20, 2023, Plaintiff, Giselle Maciel, filed a consumer arbitration demand against Defendant CarMax Auto Superstores, Inc. (CarMax) with JAMS. On July 26, 2023, JAMS issued to CarMax an invoice for payment of arbitration fees. Payment was requested by August 26, 2023. Plaintiff inquired whether CarMax had timely paid the invoice. On September 27, 2023, JAMS confirmed they had not received payment from CarMax. On September 30, 2023, Plaintiff notified JAMS of her election to withdraw her case from arbitration and proceed in court pursuant to Code of Civil Procedure section 1291.98(b)(1). Thereafter, JAMS confirmed receipt of Plaintiffs request and closed its file on the arbitration. On October 11, 2023, Plaintiff filed her Complaint against CarMax, CarMax Business Services, LLC, and Safeco Insurance Company of America (collectively, Defendants) in this court. Thereafter, Plaintiff filed a Motion to Compel Arbitration Fees and Costs. The court granted the motion on February 6, 2024. Plaintiff was awarded $7,875. On April 11, 2024, Plaintiff filed a Notice of Settlement. Plaintiff now moves for an order awarding Plaintiff $29,469.50 in attorneys fees and $1,426.61 in costs. Defendants filed an opposition. Plaintiff replied. II. DISCUSSION Plaintiff seeks a total award of $30,896.11, consisting of $29,469.50 in attorneys fees and $1,426.61 in costs. On April 11, 2024, the parties agreed to settle the matter. ¿ The settlement provides for attorneys fees and costs by motion. (Compendium of Exhibits (COE), Ex. 3, ¶ B.5.) Civil Code section 1794, subdivision (d) provides: (d) If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. (Emphasis added.) The parties do not dispute that Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act. Accordingly, Plaintiff is entitled to an award of reasonable attorney fees and costs as the prevailing party.[1] The only matter at issue is the reasonableness of the fees and costs requested. Attorney Fees The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) The determination of what constitutes a reasonable fee generally begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate&. [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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, (4) the contingent nature of the fee award&. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of fees customarily charged by that attorney and others in the community for similar work. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.) The court has broad discretion in determining the amount of a reasonable attorneys fee award which will not be overturned absent a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) The Court need not explain its calculation of the amount of attorneys fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.) 1. Reasonable Hourly Rate¿ Plaintiff retained Auto Fraud Legal Center LLP for this matter which involved work by attorneys Christopher P. Barry, Gregory T. Babbit, Josh Green, Michael A. Klitzke, Nathan Kiyam, Kathy Pham, and Ahmed Yousef. (Barry Decl., ¶ 7.)¿ Plaintiff seeks a blended average hourly rate of $433.38. (Barry Decl., ¶ 6.)¿ Defendants do not challenge the reasonableness of Plaintiffs counsels hourly billing rates. Based upon general prevailing rates in the Los Angeles area for this type of litigation, and the lack of opposition to Plaintiffs counsels hourly rates, the court finds the foregoing blended rate to be reasonable. 2. Number of Hours Reasonably Expended¿ Plaintiffs records reflect a total of 68 hours billed.¿(Barry Decl., ¶ 6; COE, Ex. 4.) ¿ [I]t is the burden of the challenging party to point to the specific items challenged [within the moving partys verified billing invoice], with a sufficient argument and citations to evidence.¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.¿ (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)¿¿¿ ¿ Defendants object to Plaintiffs counsels fees and costs as duplicative and excessive.¿ (Opp., pp. 4-6.)¿ Without adequately identifying which entries are objectionable, Defendants contend the fees and costs sought here are duplicative of Plaintiffs Motion to Compel Arbitration Fees and Costs. Defendants also object to the amount of billing given that Plaintiff did not propound any discovery and Plaintiffs counsels oppositions to Defendants demurrer and motion to strike in this matter are nearly identical to oppositions Plaintiffs counsel has prepared in other cases. This court agrees with some of these observations.¿¿¿ ¿ The court notes that this case did not progress towards trial.¿ Indeed, no trial date was ever set. Along the way, Plaintiff did not propound any written discovery. There was little law and motion practice beyond Defendants demurrer and motion to strike and Plaintiffs initial fees and costs motion.¿ Moreover, there was nothing particularly complex or unique about this case.¿ The issues involved were applicable to other consumers vehicles, thereby triggering economies of scale in terms of Plaintiffs counsels efficiency in litigating this type of lemon law case.¿ The court also notes this case settled exactly six months after it was filed. Considering these facts, the court agrees that in some instances, the time quoted is excessive or unreasonable under the circ*mstances.¿¿ ¿ Based on the foregoing, and in view of the totality of the circ*mstances, the court finds that the total amount of reasonable attorneys fees in this case, using a lodestar methodology, is $17,335.20.¿ This was calculated by multiplying the hourly rate of $433.38 by 40 hours out of 68 hours billed, which the court deems to be the total amount of reasonable attorneys fees expended in this matter. IV. CONCLUSION Plaintiff is awarded $18,761.81, consisting of $17,335.20 in attorneys fees and $1,426.61 in costs. Plaintiff to give notice. Dated: August 8, 2024 Kerry Bensinger Judge of the Superior Court [1] Nevertheless, Defendants argue that Plaintiff should not be awarded any additional fees and costs. The argument is not well taken. Under the terms of the settlement, Defendants agreed to not dispute Plaintiffs underlying entitlement to attorneys fees and costs based upon the claim(s) in the Action. (COE, Ex. 3, ¶ B.5.) Having expressly agreed to some award, Defendants cannot now argue otherwise. Defendants do not stop there. Defendants also argue that Plaintiff should not have been awarded fees in connection with her Motion to Compel Arbitration Fees and Costs. In support, Defendants cite Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal.App.5th 222 for the proposition that the Federal Arbitration Act prevents a plaintiff from withdrawing a case from arbitration for a defendants failure to timely pay arbitration fees pursuant to Code of Civil Procedure section 1281.97. Defendants argument lacks merit. Plaintiffs Motion to Compel Arbitration Fees and Costs is not at issue here. Further, as stated in Plaintiffs counsels declaration, and as noted in the billing entries, Plaintiff is not seeking fees duplicative of the Motion to Compel Arbitration Fees. (See Barry Decl., ¶ 7; see also COE, Ex. 4.) Accordingly, the court does not express any view on Hernandez and its relation to the courts previous ruling granting Plaintiffs Motion to Compel Arbitration Fees and Costs.
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