Sep 28, 2016







WEDNESDAY, SEPTEMBER 28, 2016, 3:00 P.M.

Courtroom 16 – Hon. Nancy Case Shaffer

3035 Cleveland Avenue, Santa Rosa



The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, September 27, 2016.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.





1.  MCV-214287, Capital One Bank v. Comaduran 

Appearances required.


2.  MCV-237972, Espinoza v. Feagan

Defendant’s unopposed motion to compel responses to form interrogatories, special interrogatories and demand for production is granted.

Within 20 days from the hearing of this motion, plaintiff shall serve verified responses to the discovery on defendant, without objection, and pay defendant $180 in sanctions.

Defendant shall submit an order consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.


3.  SCV-252561, USAA v. Soldis

Plaintiff/Cross-Defendant USAA FSB’s (“Plaintiff’s”) motion for attorney fees is granted in the amount of $106,906.00.  It is well-settled that the trial court has jurisdiction to determine the prevailing party and to rule on a request for attorney’s fees notwithstanding the filing of an appeal from the judgment.  (See, e.g., Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368 [jurisdiction to award CC § 1717 attorney fees and costs]; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360 [jurisdiction to rule on motion for statutory attorney fees]Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.)

Judge Labowitz has already determined that USAA is the prevailing party:  “USAA FSB is determined to be the prevailing party in this action and awarded its fees and costs according to proof.” (June 30, 2016 Order, 5:8-10.)  The time for objection to or motion for reconsideration of that determination has long since passed. 

Accordingly, the issue for the court on this motion is the reasonableness of the fee request.

Defendant does not dispute either the hourly fee or the number of hours; however, Defendant contends that $100,000.00 in fees is unreasonable given that the case was putatively over only $50.

Plaintiff notes that it has successfully disposed of all of Defendant’s claims.  Plaintiff contends that its fees are reasonable, and that it is entitled to all of its fees because the complaint and the cross-complaint were “inextricably intertwined.” (Citing Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1111.)  USAA notes that this case, from the outset, was highly contentious and heavily litigated, including a writ to the District Court of Appeal on the denial of Defendant’s anti-SLAPP motion.

Plaintiff has established that its fees are reasonable and that it is entitled to the fees it seeks; Defendant has failed to rebut the presumption of reasonableness.

The basic fee for comparable legal services in the community is the lodestar amount.  (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  The lodestar is determined based on a careful compilation of the time spent and the reasonable hourly compensation for each attorney involved in the presentation of the case.   (Serrano v. Priest, supra, 20 Cal.3d at 48.)

Hourly rates:  Plaintiff’s counsel charged hourly rates of $195.00-$240.00 per hour for the partner on the case, $175.00-$205.00 per hour for associate time, and $75.00 for paralegal time.  Counsel's own billing rates carry some weight of reasonableness. (See, e.g., Russell v Foglio (2008) 160 Cal.App.4th 653, 661.)  Plaintiff’s attorneys submitted evidence of their hourly rates, i.e. their own declarations. (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620.)  The California Supreme Court has held that: “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court ….” (Serrano v. Priest, supra, 20 Cal.3d at 49.)  To determine reasonable market value, courts must determine whether the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children’s Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.)  Based on the unrefuted information provided by Plaintiff and the court’s own experience, the hourly rates charged by Plaintiff’s counsel in this action are reasonable and within comparable rates charged by attorneys in this area.

Hours spent:  In Serrano v Unruh (Serrano IV) [(1982) 32 Cal.3d 621, 639] the court held that prevailing counsel are entitled to compensation for all hours reasonably spent: "[A]bsent circumstances rendering the award unjust, fees recoverable … ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim." (See also Center for Biological Diversity, supra, 185 Cal.App.4th at 897 ("absent 'circumstances rendering the award unjust, an … award should ordinarily include compensation for all the hours reasonably spent.' "); Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446(same).)  Plaintiff’s counsel have provided significant documentation and detail of the time spent on this case and Defendant “does not argue that the hours have not been spent.” (Opp.,  12:15-16.) 

The lodestar figure is a mathematical expression of the fees expended but it does not necessarily end this court’s analysis. “The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)  In determining the reasonable amount of fees in this case, the court considered the fact that this case centered around Plaintiff’s right to offset an alleged overdraft of less than $10,000 with $50 out of Soldis’ account.  Based solely on the small amount in issue, the amount of attorney fees, $106,906.00 would appear to be out of proportion to the interests involved.  However, the court must also consider Defendant’s aggressive approach to the litigation, and the amount of time necessary to respond to motions and proceedings initiated by the Defendant, including responding to his anti-SLAPP motion and the unsuccessful appeal he filed when it was denied.  Defendant took a scorched earth approach to a commercial dispute over a $50 fee that Plaintiff applied to an overdraft.  The trial court file now includes five volumes, although the case was resolved on summary judgment, and thus did not go to trial.  While the total amount of attorney fees is high, Defendant was largely responsible for the disproportionately high amount of attorney hours incurred in this “low value” dispute.  The court does not intend to imply that Defendant was not entitled to pursue all avenues available to him to defend plaintiff’s action and to assert his claims.  However, it was necessary and reasonable for Plaintiff’s to incur substantial fees to defend against Defendant’s actions, in order to prevail, as it has, on its initial claim.

A memorandum of costs having been filed previously by USAA; the request for costs other than fees in this motion is denied without prejudice as moot.  Plaintiff’s request for judicial notice is granted.


4.  SCV-254383, State Farm v. Teal 

Appearances Required.


5.  SCV-258297, California Taxpayers v. Rohnert Park

Defendant City of Rohnert Park’s demurrer to the first amended complaint is sustained without leave to amend.

The court finds the 30-day limitations period under Government Code §53341 applies to this reverse validation action.  “[E]ven a constitutional right is subject to reasonable statutory periods of limitation within which to commence an action for its vindication.”  (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 886.)  “What constitutes a reasonable time is a question ordinarily left to the Legislature, whose decision a court will not overrule except where palpable error has been committed. [Citation.]”  (Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 846, citation omitted.)

Here, even though plaintiff challenges the Mello-Roos Act (Gov. Code §§53311, et seq.) itself as unconstitutional, the 30-day limitations period imposed by the Legislature in Government Code §53341 is not clearly erroneous. Therefore, plaintiff was still required to file this action within the period established by the Act, notwithstanding the alleged unconstitutionality of the Act.

Plaintiff’s allegations regarding future levies of the special tax pursuant to the challenged election do not save the first amended complaint. Government Code §53341 provides an express accrual trigger which began to run when the special tax was approved on November 24, 2015. The continuous accrual theory advanced by plaintiff does not apply here because the express language of Government Code §53341 dictates the accrual date. (See Utility Cost Management v. Indian Wells Valley Water District (2001) 26 Cal.4th 1185, 1195; Barratt Am., Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 819–20.)

Therefore, plaintiff’s action is time-barred since it was not filed within 30 days of the special tax approval.

Defendant shall submit an order consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.


6.  SCV-258675, Sawabeh International v. Genesis, TIP

The demurrers previously set on this calendar pursuant to stipulation and order were continued, per parties’ further request, to allow consolidation of all demurrers. 

CORRECTION:  Continued to October 7, 2016 at 3:00 p.m., Dept. 23, CIVIL AND FAMILY LAW COURTHOUSE, 3055 Cleveland Avenue, Santa Rosa, CA.


7.  SCV-258723, Davis v. The Whiskey Tip

Defendants’ motion to set aside entry of default is granted.

There is no evidence before the court that plaintiff served defendants with a statement of damages pursuant to CCP §425.11 before obtaining entry of default. “[W]hen a statement of damages is required but not served, the underlying entry of default is invalid [] and is subject to set-aside.” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1521.)

Additionally, the court finds the defaults should be set aside based upon defendants’ excusable neglect. (CCP §473(b).) There is evidence that the manner of service of the summons and complaint contributed to the delay; defendants acted diligently in retaining counsel; and plaintiff will suffer no prejudice if this motion is granted.

Accordingly, the motion is granted and defendants are to file responsive pleadings to the complaint within 30 days of entry of this order.

Defendants shall submit an order consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.


8.  SCV-259421, Safeway, Inc. v. Blaska

This is on calendar for Safeway, Inc.’s motion for preliminary injunction and order to show cause why a preliminary injunction should not issue against defendants John Does 2, 4, 7 & 8 enjoining them from entering the Safeway stores and the privately owned walkways directly in front of the Safeway stores located in Santa Rosa, California at 2785 Yulupa Avenue, 1799 Marlow Road, 100 Calistoga Road, 2300 Mendocino Avenue and 2751 Fourth Street. 

Safeway did not file proofs of service of the order to show cause and motion for preliminary injunction on defendants as required by this court’s order issued on September 16, 2016.

Accordingly, Preliminary injunctive relief is denied at this time and the temporary restraining order is terminated.

Safeway shall submit an order consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.   


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