Oct 31, 2014

Friday, October 31, 2014, 10:00 a.m.
Courtroom 17 – Hon. Gary Nadler
3035 Cleveland Avenue, Suite 200, Santa Rosa


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

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 MUST notify Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, October 30, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-229744, Matz v. Belmonte
Defendants’ demurrers for uncertainty are overruled. The demurrers on the ground that the complaint fails to state facts sufficient to constitute a cause of action are overruled as to causes of action 1-3 but sustained with leave to amend as to cause of action 4 for emotional distress.


Defendants’ motion to strike is denied as to allegations and prayer for, and supporting, punitive damages based on the requisite mental state. The motion is granted with leave to amend as to allegations and request for emotional distress damages.

Plaintiffs have leave to amend within 20 days of the service of the notice of entry of this order. Defendants are to serve the notice of entry of this order within 5 days of this order.

2. MSC-184258, Allison v. Faulconer
Appearances are required.

3. SCV-249112, Stanley v. Jones-Nichelini
Defendants’ motion to expunge lis pendens is granted. The request for imposition of fees and costs is denied. The declaration in support of this motion is without factual support.

4. SCV-253350, Baxter v. Bock

A. Respondents’ Motion for Attorneys’ Fees

The parties’ requests for judicial notice are granted.

Respondents’ motion for attorney’s fees and costs is granted in part.

The court determines that Respondents are the prevailing parties. Exhibit “A” to the Bock Declaration, which Bock authenticates as the fee agreement here involved, clearly entitles the prevailing party to fees and costs in an action to enforce the agreement. It states in full, “In the event it is necessary to bring an action to enforce this agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs.” Plaintiff does assert, inter alia, that the fee provision is not triggered as there was no “action.” He argues, only briefly and with no analysis or authority, that the provision only allows attorney’s fees for an “action” to enforce the agreement and that no party ever brought an “action,” adding that “such a contract action could not have been lawfully prosecuted” under Bus. & Prof. Code § 6021. However, section 6021 governs election of officers to the State Bar board of trustees which has no bearing on this issue. Presumably, Petitioner means a different statute that actually applies to fee provision, but this is unimportant. The more fundamental problem for Petitioner is that his argument is not only unpersuasive it is inherently self-defeating. The arbitration dispute resulting in the petition which Petitioner himself brought, essentially to enforce the fee agreement, constitutes an “action.”

Petitioner repeats his core argument in his motion to tax costs that Respondents have already had “two bites of the apple” in their earlier attempts to raise the issue in proposed judgments and the court crossed fees and costs out of the proposed judgment. However, this occurred because there was not yet a costs memo on file. This argument is no impediment to an award of attorneys’ fees.

Petitioner argues that the fees are grossly inflated. Petitioner cites to the declaration of one of his attorney’s, Thomas Kenney, who opines that it is “difficult to believe that [Respondents’] counsel spent 300 hours of attorney time” on this matter. Kenney Dec., ¶ 4. Petitioner also dismisses this action as a single, simple “motion” rather than full litigation that could require such effort.

Petitioner is correct that Respondents appear to be demanding a rather large fee award that would ordinarily be surprisingly high for such a proceeding. However, Respondents provide evidence demonstrating the work performed to the extent noted below. The history of this petition is anything but brief or typical, with an unusual and drawn out discovery dispute, a motion to amend, several continuances, case management conferences and law and motion hearings, and a large volume of documents. All of these proceedings have swollen this case far beyond a typical petition to confirm, modify, or vacate an arbitration award. Respondents correctly argue, with supporting authority, that a party cannot litigate tenaciously and drive up the litigation involved and then complain about the costs and time resulting. A party “‘cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.' [Citation.]” Serrano v. Unruh (1982) 32 Cal.3d 621, 638, quoted in International Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal (1999) 69 Cal.App.4th 287, 304.

In support of the determination of the “lodestar” to be applied, Kathryn C. Curry provides the following in her declaration. At paragraph 70, she purports to reprint a “Laffey-Matrix” attached as Exhibit “A”. Nothing further is provided as to what this is or what it shows; there is absolutely no foundation provided as to this exhibit. At paragraph 71, Ms. Curry provides what purports to be copies of the U.S. government pay tables for federal courts in various locations, attached as Exhibit “B”. Again, absolutely no foundation is provided with regard to this offering.

Ms. Curry stated that she graduated law school in 1991, that she was a partner at the law firm of Ropers, Majeski, Kohn & Bentley, and began working as a partner with GCA Law Partners, Inc. in 1991. At paragraphs 74-76, Ms. Curry describes the breadth of her professional experience. Kenneth R. Van Vleck also filed a declaration in support of Respondents’ fee request; his qualifications are contained in paragraphs 24-25. Mr. Van Vleck’s declaration includes that he reduced his customary hourly rate charged to Respondents from $425 per hour to $375. He states at paragraph 24 that “the reasonable hourly rate for legal services of an attorney in this area with more than 20 years of experience ranges between $415 and $525 per hour.”

The billings which are offered in support of Respondents’ request is contained in the Declaration of Kathryn C. Curry, referenced at paragraph 79 and attached as Exhibit “C.” These billings, according to Ms. Curry, exclude time spent in the fee arbitration.

1. Determination of the “Lodestar”

A determination of reasonable attorney’s fees initially involves application of the “lodestar” method. Under this approach, a base amount is calculated and considered along with the time reasonably spent.

A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. The court may also consider such factors as the skill and experience of an attorney, the nature of the work performed, the attorney’s expertise and the attorney’s customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.

The court has reviewed, inter alia, the declarations of Thomas Kenney and Janis Grattan. Given that Sonoma County is the relevant community, that the subject matter of this litigation is not particularly complex, and the skill and experience of defense counsel, the court determines that a reasonable hourly rate here applicable is $300 per hour for Ms. Curry and $325 per hour for Mr. Van Vleck.

2. Award

In determining the reasonable hours spent, the court disagrees that this was a “simple” motion. Although this matter stemmed from a binding arbitration, the court notes that there are currently eight court files. While this is not a factor upon which the court may base its decision, it does reflect the sheer volume of papers that were submitted in support of, and in opposition to, various proceedings involving this matter. The court considers all of the matters which have been the subject of these proceedings. That being said, the court has evaluated all of the billings submitted. The billings themselves provide some justification for a fee award. There is little additional evidence presented. Considering the matters contained in the court file, the court determines as follows: Ms. Curry will be entitled to 69.4 hours ($20,820); Mr. Van Vleck 34.2 hours ($11,115). The total attorneys’ fee award amounts to $31,935.

B. Petitioner’s Motion to Strike and Tax Costs

Petitioner’s motion to strike and tax costs is denied. Petitioner asserts that the memorandum of costs is untimely under Cal. Rules of Court, Rule 3.1700, arguing that the deadline for filing the memoramdum started to run on April 30, 2014 when this court first entered the order on the two petitions. Cal. Rules of Court, Rule 3.1700, as both sides agree, requires a prevailing party seeking costs to file a memorandum of costs “within 15 days after the date of mailing of the notice of entry of judgment … or the date of service of written notice of entry of judgment ….” On May 8, 2014, the court issued an amended ruling apparently correcting a typographical error. Petitioner, on May 15, 2014, filed a motion for reconsideration or new trial, which this court denied in full in June 2014. The court on July 10, 2014 entered and served judgment in Respondents’ favor.

Even if the April 30 order were to have started the deadline period running, and even if it were not triggered by the May 8 amendment, on the very day of the deadline Petitioner filed a motion to reconsider or have a new trial so that the prior order was at least by then no longer a final “judgment” for these purposes. Petitioner contends that his motion to reconsider changed nothing since in the end the court denied it and did not change the ruling. However, the fact that “nothing was changed” is not dispositive. Moreover, the April 30, 2014 order does not even appear to be a “judgment” for these purposes. The court determines that the memorandum is timely.

Petitioner next argues that this court’s judgment denies any claim for costs because Respondents included costs in their proposed judgment but the court crossed it out and denied Respondents’ ex parte requests for costs. As Respondents contend, such occurred as there was not yet a memorandum of costs and the matter was premature and unresolved. Moreover, as Respondents assert, they are the prevailing party. Code Civ. Proc. § 1032(a)(4) defines a “prevailing party” as one with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither side obtains any relief, and a defendant as to those plaintiffs who recover no relief against the defendant. It adds that in situations not specified, the prevailing party shall be determined by the court, which may or may not allow costs. Except as otherwise provided by statute, subsection (b) adds, the prevailing party is entitled “as a matter of right” to recover costs. A party can obtain fees as costs under section 1032 if they meet the requirements of Code Civ. Proc. § 1033.5(a)(10). Respondents are entitled to seek costs.

Finally, Petitioner argues that Respondents seek costs which are not recoverable. Code Civ. Proc. § 1033.5 governs what items a prevailing party under Code Civ. Proc. § 1032 may claim as costs. Code Civ. Proc. § 1033.5(b) sets forth items that are not allowable as costs except when the law expressly authorizes them. These include, relevant here, fees for experts not ordered by the court; investigation expenses in preparing the case for trial; and postage, telephone, and photocopying charges.

Generally, expert fees are available only for experts ordered by the court. Code Civ. Proc. § 1033.5(a)(8),(b)(1). However, under Code Civ. Proc. § 998, if a plaintiff rejects a defendant’s offer and fails to obtain a more favorable outcome, the plaintiff must pay the defendant’s costs from the time of the offer and the court “may require” the plaintiff to “pay a reasonable sum to cover costs of the services of expert witnesses … actually incurred and reasonably necessary in either, or both, preparation for trail or arbitration, or during trial or arbitration ….”

Petitioner argues that the “attachment expenses” are not recoverable because there was no attachment here. Respondents contend that they inadvertently put the amount in the wrong line and the worksheet attached to the memorandum details these showing that they were service and filing expenses which Respondents simply put in the wrong spot. As Respondents contend, these costs are not specifically allowed or barred in 1033.5 and thus fall under subdivision (c)(4) for costs that the court may allow in its discretion. Respondents contend that they incurred these costs in order to provide fast service in the context of Petitioner’s fast-paced aggressive litigation and that it was less costly than personally serving or filing the documents. These costs are deemed unrecoverable.

Petitioner argues that Respondents may not recover $333.96 claimed for bridge tolls and mileage. As both sides agree, 1033.5 expressly allows such costs for attending depositions but is otherwise silent, leaving such costs outside of depositions to the court’s discretion. As Respondents contend, these costs seemed necessary for appearing at the hearings and ex parte applications, and Petitioner’s requests for continuance. These costs are recoverable.

Petitioner next attacks costs for Rapid Legal filing fees. The propriety of these is the same as for the service expenses discussed above as “attachment” expenses and the parties offer the same analyses. These costs are recoverable.

Petitioner attacks the CourtCall costs. These costs are recoverable.

5. SCV-255465, Friends of the Gualala River v. County of Sonoma
Real Parties in Interest Ernest Ohlson dba Ohlson Ranch and Ronald Ohlson’s demurrer to the first amended petition is overruled.

Real Parties in Interest rely on the statute of limitations in Gov. Code § 65009(c)(1)(E). This appears to be a generally applicable statute of limitations applying in general to the designated types of decisions. Petitioners assert that section 65009 only applies to actions challenging “conditions” in permits or conditional-use permits but this is unpersuasive. Section 65009 itself only states that it apples to actions challenging conditions but cases which Real Parties in Interest cite, and Petitioners admit, clearly state that 65009 also applies to challenges to conditional-use permits themselves. Also, as noted, 65009 states that it applies to decisions under 65901, which is the provision that governs both conditional-use permits and “other permits.” Therefore, it applies to any permit, not merely conditions.

Critically, Pub. Resources Code section 21167 sets forth the applicable statute of limitations for actions claiming failure to comply with CEQA. These include a 30-day statute of limitation to challenge approvals of EIRs and the like plus a 180-day statute of limitation for actions claiming that an agency violated CEQA by not conducting CEQA review where required. It expressly states that “[a]n action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows: …” and then sets forth different statutes of limitations to apply in different circumstances. Pertinent here is subdivision (a), which states, in full and with emphasis added,

“An action or proceeding alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.”

This is a specific statute that by its very language applies to all actions alleging failure to comply with CEQA. It applies here since Petitioners allege failure to comply with CEQA. As with section 65009, the CEQA statutes of limitations are unusually short in order to further the policies of ensuring “finality and predictability” in land-use planning decisions. Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1490-1491.

As Petitioners argue, it is a general standard of construction that a specific provision on a subject controls over a more general one. Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 859. In this case, the statute of limitation for CEQA actions specifically is the more specific provision and section 65009 the more general statute of limitation for actions involving permits. It is also notable that section 65009 sets forth statutes of limitations for such a wide range of zoning, general plan, and permit decisions that, if it applied even in CEQA actions then it would trump the CEQA statute of limitation in many cases. For example, CEQA applies to any “Project,” which expressly includes “issuance … of a lease, permit, license, certificate, or other entitlement” in Pub. Recourse Code § 21065. See also Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 257-262 (CEQA applies to projects consisting of government approval of privately initiated permits and the like). CEQA also applies to adoption or amendments of zoning or planning documents such as a general plan, rezoning of property, and the like. Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 277-281 (CEQA applies to adoption of a general plan); City of Carmel-By-the-Sea v. Board of Supervisors of Monterey County (1989) 183 Cal.App.3d 229 (CEQA applies to rezoning of property). In Real Parties in Interest’s view, the CEQA statutes of limitations would not apply to any of these decisions and instead Gov. Code § 65009 would control, proposition that lacks authority.

Other decisions have repeatedly held that the CEQA statute of limitation applies to cases in which other statutes of limitations might otherwise ostensibly apply. In Committee for a Progressive Gilroy v. State Water Resources Control Board (1987) 192 Cal.App.3d 847, 859, petitioners challenged a decision of the State Water Resources Control Board (SWRCB) on the ground that it incorrectly determined that CEQA did not apply. Petitioners filed the action within the 180-day statute of limitation for such CEQA actions, the same type at issue in the instant case, in Pub. Resource Code § 21167. The SWRCB argued that the lawsuit was untimely under the shorter statute of limitation in the Water Code challenging decisions of the SWRCB. The appellate court expressly rejected the SWRCB argument and held that the CEQA statutes of limitations apply whenever reviews are based on CEQA. In doing so, it warned that courts must not apply statutes of limitations in a manner that would create a “trap” for the “unwary” petitioner, explaining, with emphasis added, that

“[s]ince CEQA applies to every public agency, many of which have their own statute of limitations for ordinary review purposes, literally scores of limitation periods might arguably govern review of CEQA decisions. Such a chameleonic construction would render the CEQA periods at best superfluous and at worst a trap for the unwary petitioner.”

Real Parties in Interest rely on a case that they claim leads to the opposite conclusion, Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110. The court in that case ruled that the action before it was untimely under the 90-day statute of limitation of section 65009 rather than the 30-day CEQA statute of limitation under 21167 but it did so because specific facts regarding service of the petition in that case meant that the outcome depended on the two provisions’ rules on service, rather than the statutes of limitations themselves. Explaining that under ordinary construction principles, “if two different statutes of limitation apply to a particular claim, then the shorter period controls over the longer one, unless the statutes can be harmonized,” the court ruled that the “service” provisions of 65009 and CEQA could be harmonized. The court noted that a petition may be timely filed under 65009 but be dismissed due to failure to serve it on time, while CEQA’s 10-day service rule may be extended for good cause. In that case, the petitioner served the petition after 65009’s deadline but within the CEQA deadline because it had received an extension under the CEQA statute. The court ruled that the CEQA rule was not mandatory but 65009’s service requirement is mandatory. This decision is somewhat odd, tortured, and unclear while applying it the way Real Parties in Interest demand seems both incorrect and to conflict with the authority and principles discussed above.

Real Parties in Interest also contend that in Forest Unlimited, et al. v. Sonoma County Bd. of Supervisors, SCV-244332 (the “Prior Action”), this court ruled that the ordinance makes this permit-approval process ministerial and not discretionary.

This court has already addressed this same basic argument before, regarding the impact of the same ordinance and the effect of the Prior Action, in a similar case, SCV-254679, Watertrough Children’s Alliance v. County of Sonoma, et al. In that case, the real party in interest demurred to the petition on the grounds that it failed to state facts sufficient to constitute a cause of action due to collateral estoppel because “a party in privity with” petitioner previously raised this same issue in the Prior Action, the relief sought was not “tenable” because should petitioner prevail the only ordinance governing vineyard development would become inoperative; and the decision was ministerial and discretionary. On April 16, 2014, this court overruled the demurrer in its entirety.

The Prior Action challenged the validity and language of the ordinance while this case challenges the approval of the permit and project under the framework of the ordinance. Even if there is overlap between the analyses and if the issue of whether this project approval was discretionary requires reference to the ordinance or even the ruling in the Prior Action, such does not necessarily mean that the two issues are the same at all. They could be in the end, but at this stage nothing even supports such a contention.

The demurrer is overruled.

The Case Management Conference is continued to Thurs., Jan. 29, 2015, at 3:00 p.m. in Courtroom 17.

6. SCV-255710, Dutt v. Ocwen Loan Servicing, LLC
Defendants’ demurrer to complaint is sustained as to causes of action 2 and 7, with leave to amend. The other causes of action are overruled. Request for judicial notice is granted.

Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order. Defendant is to serve the notice of entry of this order within 5 days of this order.

7. SCV-255725, Morse v. Newport Murrietta Land Co.
DROPPED pursuant to stipulation and order filed 10/29/14.

8. SCV-256191, Bean v. Wells Fargo Bank, N.A.
Appearances are required.


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