The cases that were set on the October 30 calendar will be heard on November 6.
The cases that were originally set on November 6 will be heard as follows:
SCV-258451, Security National V. Evariste - continued to November 20 at 2:00 p.m. in Dept 19
SCV-261027, Gardner v. Calstar - continued to November 27 at 1:30 p.m. in Dept 19
SCV-264342, Sonoma v. Tinker - will be heard as originally scheduled, on November 6 at 3:00 p.m. in Dept 19
1. SCV-258662, Lopez v. Edgemont Farms
This matter is on calendar for attorney Dennis F. Moriarty’s motion to be relieved as counsel for defendants Edgemont Farms, LLC and Antonio Hernandez. Mr. Moriarty previously filed a motion to be relieved as counsel on May 9, 2019 and on June 26, 2019, the Court denied that motion, without prejudice, based on multiple procedural defects in the motion. Counsel has refiled the motion twice since then and although most of the defects have been remedied, Counsel has not filed a proof of service demonstrating that the motion was served to all parties or to the clients in accordance with the Rules of Court. (R. Ct. 3.1362(d).)
Accordingly, the motion is again DENIED, without prejudice.
Counsel for defendants shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
2. SCV-260544, Mc Lea’s Tire Service v. Northern Leasing System Inc.
This matter is on calendar for attorney William L. Miltner’s motion to be relieved as counsel for defendants Merchant Club of America, LLC; Northern Leasing Systems, Inc.; MBF Leasing, LLC; and Executech Lease Group, LLC. Plaintiffs have not opposed the motion.
Mr. Miltner’s motion is GRANTED. Unless oral argument is requested, the Court will sign the proposed orders lodged with the Court.
3. SCV-260907, Jabbar v. Rosen
This matter is on calendar for Plaintiff’s motion for attorneys’ fees and costs in the amount of $62,630.08 against all defendants, including Jan Rosen, an individual; 256 North, an entity unknown; and J.M. Rosen Cheesecake, a California corporation (collectively “Defendants”). Plaintiff brings this motion pursuant to Code of Civil Procedure section 1033.5(a)(10)(B); Labor Code section 1194; Government Code section 12965(b); and Civil Code section 1717. Plaintiff contends that because the action resulted in a settlement by which Defendants would pay Plaintiff a monetary amount, Plaintiff is necessarily the “prevailing party” and is entitled to recover his reasonable attorneys’ fees under the applicable statutes and under the parties’ settlement agreement. Plaintiff contends he has incurred $59,283.75 in attorneys’ fees and $3,346.33 in costs related to this action. Thus, Plaintiff seeks a total award of $62,630.08.
Defendants have not filed an opposition to the motion.
Plaintiff’s motion for attorneys’ fees is GRANTED, in part, and his motion for costs is GRANTED, in its entirety. Plaintiff is awarded $55,968.75 in fees and $3,346.33 in costs.
1. Entitlement to Recover Attorneys’ Fees and Costs
Plaintiff brings his motion for attorneys’ fees under Code of Civil Procedure section 1033.5(a); Labor Code section 1194; and Government Code section 12965(b). Plaintiff also seeks fees under the parties’ settlement agreement under Civil Code section 1717.
As a general rule, costs are awarded as a matter of right to the “prevailing party” and attorneys’ fees are awarded “as costs” to the prevailing “party” when authorized by contract, statute, or law. (Code Civ. Proc. §1033.5(a)(10).) The Code defines “prevailing party” for the purposes of “costs” as including “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc. §1032(a)(4).)
Labor Code Section 1194 provides employees with a right of action to recover the “unpaid balance of the full amount of [the legal] minimum wage or overtime compensation,” and “reasonable attorney’s fees.” (Lab. Code §1194(a); see also, Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1381 [“section 1194 is a ‘one-way’ fee-shifting statute, the purpose of which is to provide a needed disincentive to violation of minimum wage laws.”].) Government Code 12965(b) states in part that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs…” (Gov. Code §12965(b); see also, Chavez v. City of Los Angeles (2010) 104 Cal.Rptr.3d 710, 47 Cal.4th 970.) Neither the Labor Code nor the Government Code define the term “prevailing party” so a trial court has broad discretion to determine “on a practical level” which party, if any, was the prevailing party for purposes of an award of attorney fees. (See, Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1128-1129 [addressing Labor Code section 218.5]; see also, Bustos v. Glob. P.E.T., Inc. (2017) 19 Cal.App.5th 558, 562 [prevailing party status in a FEHA action is determined in this context “based on an evaluation of whether a party prevailed on a practical level…”.].) The Civil Code states that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code §1717(a).)
In this case, Plaintiff contends he is the “prevailing party” under the relevant Code sections based on the fact that the parties settled the case and as a result, Plaintiff received a monetary payment. Although the amount of the payment is redacted and not disclosed to the Court in Plaintiff’s motion, Plaintiff contends that the mere fact he received some monetary recovery is sufficient for the Court to find him the “prevailing party.” Additionally, based on the fact that Defendants have not opposed the motion, Defendants impliedly concede that Plaintiff is the prevailing party in this action for the purposes of an award of attorneys’ fees. Finally, and at least with respect to the determination of prevailing party under the Code of Civil Procedure, a plaintiff who obtains a “net monetary recovery” as part of a settlement agreement may be deemed the “prevailing party” for purposes of attorneys’ fees and costs award where determination of fees and costs is reserved for post-settlement motion]. (See, DeSaulles v. Cmty. Hosp. of Monterey Peninsula (2016) 62 Cal.4th 1140, 1154 [“settlement payment constituted ‘net monetary recovery’ for former employee such that she was a “prevailing party”]; see also, Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443-1444 [“A plaintiff should not be denied attorneys’ fees because resolution in the plaintiff’s favor was reached by settlement…”]; Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 681, fn. 34 [notwithstanding settlement agreement, which was silent as to attorneys’ fees and costs, the court retained jurisdiction to determine whether plaintiffs were “successful” parties under Code of Civil Procedure section 1021.5]; Navigators Specialty Ins. Co. v. Moorefield Constr., Inc. (2016) 6 Cal.App.5th 1258, 1290 [stating the general rule that without an express waiver of fees and costs, “the plaintiff obtaining a monetary recovery in a settlement agreement would be the ‘prevailing party’ under Code of Civil Procedure section 1032, subdivision (a)(4) and therefore, under section 1032, subdivision (b), would be able to recover costs, which might include attorney fees under Code of Civil Procedure section 1033.5, subdivision (a)(10).”], citing, DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1144.)
Here, based on the settlement agreement and the fact that Plaintiff received a “net monetary recovery” under that agreement, as well as the fact that Defendants have not opposed the motion, the Court finds that Plaintiff is the “prevailing party” for purposes of Code of Civil Procedure section 1033.5; Labor Code section 1194; and Government Code 12965(b) and therefore, Plaintiff is entitled to reasonable attorneys’ fees.
However, Plaintiffs have not established a right to attorneys’ fees under Civil Code section 1717. Indeed, the only “contract” that Plaintiffs identify is the parties’ settlement agreement and the only reference to attorneys’ fees in that agreement does not provide a basis for an award under Civil Code section 1717. Specifically, the agreement states:
Plaintiff understands that his attorneys will submit their claim for costs and attorney fees to the Sonoma County Superior Court for determination and that Defendants reserve the right to challenge any claim, or any part of any claim made for costs and attorney fees. The parties agree that the Sonoma County Superior Court shall decide the allowable costs and attorney fees to be awarded to Plaintiff, if any, and that other than those costs and attorney fees awarded by the court to Plaintiff, each party shall bear their own attorney's fees and costs arising from the Action. All parties agree to comply with the Courts decision on timing and payment of attorney fees and costs, if any.
(See, Aqui Dec. at Ex. A, ¶13.)
Thus, although the agreement gives the Court continuing jurisdiction to “decide” the issue of attorneys’ fees; this was not an “action on a contract” and the fees sought were not “incurred to enforce that contract.” In fact, Plaintiff does not allege that an employment contract even existed. Therefore, Civil Code section 1717 is inapplicable to this purely statutory action.
2. Reasonableness of Fees
Every fee award analysis must consider the “reasonableness” of the fees requested, which in turn centers on fixing the “lodestar” number. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of compensation.” (Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608, 619–620, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136; see also, Serrano v. Priest (1977) 20 Cal.3d 25, 48, fn. 23.) The California Supreme Court has recognized that “the lodestar is the basic fee for comparable legal services in the community and that it may be adjusted by the court based on a number of factors in order ‘to fix a fee at the fair market value for the particular action…” (Ketchum, supra, 24 Cal.4th at 1134-1135.)
“Absent 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.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639; see also, Center for Biological Diversity v. City. of San Bernardino (2010) 185 Cal.App.4th 866, 897.) “Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (PLCM Group, Inc., supra, 22 Cal.4th at 1095.) However, the trial court has discretion to reduce a prevailing party’s attorney’s fees to the extent they were unnecessary or unreasonable. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 775; see also, Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1270, citing PLCM Group, Inc., supra, 22 Cal.4th at 1096.)
“The reasonable hourly rate [used in the lodestar calculation] is that prevailing in the community for similar work.” (PLCM Group, Inc., supra, 22 Cal.4th at 1095; see also, Rey v. Madera Unified Sch. Dist. (2012) 203 Cal.App.4th 1223, 1241; Ketchum, supra, 24 Cal.4th at 1132 [hourly rate used in lodestar calculation is “the basic fee for comparable legal services in the community;”]; Serrano, supra, Cal.3d at 640, fn. 31 [lodestar calculation uses the “comparable salaries earned by private attorneys with similar experience and expertise in equivalent litigation,” or “hourly amount to which attorneys of like skill in the area would typically be entitled.”]; Children’s Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783 [the court is often called upon to determine reasonable hourly rates of attorneys who appear in front of it and in order to determine “reasonable market value” and must determine whether the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work” in the community.].)
In this case, Plaintiff is requesting an award of $59,283.75 in attorneys’ fees, which includes 156.7 hours billed by two firms at rates between $250 and $450 an hour for attorneys and $125 an hour for a paralegal. The Court finds that 156.7 hours is “reasonable” for this case. However, the $450 hourly rate charged by Ms. Moscowitz is not “reasonable” under the circumstances here and Plaintiff has provided no basis for this rate. (See, PLCM Group, Inc., supra, 22 Cal.4th at 1095; see also, Rey, supra, 203 Cal.App.4th at 1241; Ketchum, supra, 24 Cal.4th at 1132.) Accordingly, the Court reduces Ms. Moscowitz’s rate to $400 per hour.
3. Plaintiff is Entitled to Recover Costs
Code of Civil Procedure section 1033.5(a) lists the specific “statutory” costs that a prevailing party may recover, as a matter of right. (Code Civ. Proc. §1033.5(a).) All costs allowed “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation[,]” and all costs shall be “reasonable in amount.” (Code Civ. Proc. §1033.5(c)(2)-(3).) “Whether a cost item was ‘reasonably necessary’ to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) If a requested cost is covered by section 1033(a), “[a] verified memorandum of costs is prima facie evidence of [the] propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Bender v. City of Los Angeles (2013) 217 Cal.App.4th 968, 989, citing Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.)
Here, Plaintiff seeks a total of $3,346.33 in costs, all of which are allowed, as a matter of right, under section 1033.5(a). These costs are “reasonable” and Plaintiff’s memorandum of costs is prima facie evidence that the costs were proper and reasonably necessary to the litigation. Accordingly, Plaintiff’s request for $3,346.33 in costs is granted.
Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
4. SCV-263325, Kahn v. Wood
This case arises from three independent automobile accidents involving Plaintiff and the various Defendants that occurred on October 13, 2016; October 25, 2016; and June 6, 2017. In her single complaint, Plaintiff alleges that she sustained “overlapping injuries involving the same body parts or systems…as a result of each of the three accidents, and the injuries Plaintiff sustained in the first accident of October 13, 2016, were aggravated by the second accident of October 25, 2016, and further aggravated by the third accident of June 6, 2017.” (Plaintiff’s Complaint at ¶11.) Plaintiff joined all defendants in a single action “pursuant to Section 379 (c) of the Code of Civil Procedure.” (Ibid.)
In this motion, Plaintiff moves to compel defendant Ryan Wood (“Defendant”) to provide verified responses to Plaintiff’s Special Interrogatories, Set Two, and Demand for Inspection, Set One; and to produce all items sought in the Demand for Inspection. Plaintiff brings the motion under Code of Civil Procedure sections 2030.210, et seq. and 2031.210, et seq. and on the grounds that despite granting an extension of time for Defendant to respond, Defendant failed to provide any responses to the subject discovery. Plaintiff also seeks $900 in monetary sanctions for her “reasonable” attorneys’ fees and costs to bring the motion. In his opposition, Defendant states in part that “[a]ll of the information sought by plaintiff has already been responded to through separate discovery methods and verified as such” and that “[t]he responses plaintiff now seeks have not been withheld in any manner and will be forwarded to plaintiff’s counsel before the hearing on this motion.” (See, Treppa Dec. at ¶¶4-5.)
In his reply, Plaintiff contends that “Defendants’ Opposition lacks merit and should be rejected” because “Plaintiff does not already have the information she seeks herein…[t]his is entirely new discovery” and “[d]efendant has failed to state how and when Plaintiff allegedly obtained the information sought herein.” (Reply at 1:26-28.) Additionally, Plaintiff points out that “since Defendant failed to serve any responses whatsoever, any such objections have been waived.” (Id. at 2:1-4, citing Code Civ. Proc. §§2030.290(a) and 2031.300(a).)
Plaintiff’s motion to compel is GRANTED. If Defendant has not already done so, Defendant SHALL provide Code compliant verified responses, without objections, to Plaintiff’s Special Interrogatories, Set Two, and Demand for Inspection, Set One, within twenty (20) days of service of the Court’s final ruling. Plaintiff SHALL also produce or make available for inspection all items identified in Plaintiff’s Demand for Inspection, Set One, within twenty (20) days of service of the Court’s final ruling. Plaintiff’s request for sanctions is also GRANTED, in part, and Defendant’s attorney, James Treppa, is ORDERED to pay $560.00 to Plaintiff within twenty (20) days of service the Court’s final ruling.
Code of Civil Procedure section 2030.290 provides that if a party to whom interrogatories were directed fails to serve timely responses, the responding party waives all objections, including those based on privilege and work product protection, and the propounding party may move for an order compelling responses. (Code Civ. Proc. §2030.290(a)-(b); see also, Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) All that the moving party needs to show in its motion is that a set of interrogatories was properly served, that the time to respond has expired, and that no response has been provided. (See, Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) Similarly, Code of Civil Procedure section 2031.300 provides that if a party fails to serve timely responses to requests for production of documents, the responding party waives all objections, including those based on privilege and work product and “[t]he party making the demand may move for an order compelling [a] response to the demand.” (Code Civ. Proc. §2031.300(a)-(b).) When the motion to compel seeks a response to document requests, as opposed to further responses, no showing of “good cause” is required. (See, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:1487, p. 8H-34.)
Here, Plaintiff has sufficiently shown that Defendant’s responses were due on August 13, 2019 and despite Plaintiff’s efforts to meet and confer, Defendant failed to respond. (See, Hubbs Dec. at ¶¶9-13.) Thus, to the extent Defendant has not already done so, verified responses must be provided. Furthermore, the Code provides that “[i]f a monetary sanction is authorized…the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §2023.030(a); see also, Code Civ. Proc. §§2030.290(c); 2031.300(c).) Here, the fact that the Defendant may have provided the information sought in response to “separate discovery methods” does not relieve Defendant of his statutory obligation to respond to Plaintiff’s discovery here and does not amount to “substantial justification” or make an award of sanctions “unjust.” Accordingly, the sanctions are awarded as stated above.
Plaintiff’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
5. SCV-263697, Favuzzi v. Ebling
This is a personal injury in which Plaintiff alleges multiple injuries, including traumatic brain injury, resulting from a “motor vehicle versus auto accident.” In this motion, Defendant moves to compel Plaintiff’s mental examination based on Plaintiff’s claim of brain injury from the October 2017 accident. Defendant brings the motion under Code of Civil Procedure sections 2032.210-2032.320 and on the grounds that Plaintiff has “placed his mental condition in controversy by claiming a brain injury as a result of the subject October 2017 accident…” (Motion at 2:5-7.) Defendant contends there are “specific facts” from Plaintiffs deposition testimony, medical records, and a recent independent physical examination conducted by Deborah Doherty, M.D., which provide support for the requested exam. Additionally, Defendants aver that the initial examination by Dr. Doherty was interrupted by a paralegal working for Plaintiff’s attorney and this “disruption impeded Dr. Doherty’s ability to get a full and accurate history from and examination of Plaintiff.” (Opp. at 2:23-3:2.) Thus, Defendants contend there is “good cause” for the examination with Dr. Berg and such an examination is necessary to determine (1) whether Plaintiff suffers from traumatic brain injury; and (2) whether there is a connection between the injury producing event and the alleged TBI.
Plaintiff opposes the motion and argues that Defendant has not shown sufficient “good cause” for the requested mental examination. Specifically, Plaintiff points out that Plaintiff has already undergone a three hour defense medical examination and although this was primarily a physical examination conducted by a medical doctor, the exam included a neurological examination, clinical interview, and 12 cognitive tests. (Opp. at 1:26-21.) Plaintiff contends that the new exam Defendants seek to conduct would be an impermissible second mental exam and Defendant has failed to “show good” cause to support their request. Additionally, Plaintiff points out that he has offered to share the “raw test data and a 25 page report” from his own neurological testing if Defendant will drop the present motion but Defendants declined. Finally, Plaintiff contends that the requested mental examination would subject Plaintiff to “unduly painful, protracted and intrusive testing” and should be denied.
In reply, Defendants argue that “Plaintiff has not only placed his mental condition in controversy, he has made it the focus of his case by claiming the subject October 2017 accident caused him to suffer a traumatic brain injury.” (Reply at 1:26-2:1.) Additionally, Defendant contends that the previous physical examination by Dr. Doherty, a physiatrist specializing in physical medicine and rehabilitation, does not preclude a second exam by Dr. Berg, a licensed clinical psychologist who holds a doctoral degree in psychology and neuropsychology and that Plaintiff’s claims of TBI provide “good cause” for the requested examination. (Id. at 2:23-4:5.)
After reviewing the parties’ briefs in support of and in opposition to the motion, and for good cause shown, Defendants’ motion to compel a mental examination of Plaintiff under Code of Civil Procedure section 2032.320 is GRANTED. Plaintiff is ORDERED to appear for the examination on November 5, 2019 at 9:00 A.M., at the office of Johanna Berg, Ph.D., located at 5665 College Avenue, Oakland, California. If Plaintiff is unavailable on that date, the parties shall meet and confer to determine if there is another time/date that is acceptable to the parties and to Dr. Berg, but not later than November 22, 2019.
The Code provides that “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc. §2032.220(a)-(b).) Thus, where a plaintiff is seeking recovery for personal injuries, defendant has a right to conduct an independent medical examination under certain conditions. However, the Code distinguishes between a physical examination and a mental examination and provides that any party seeking a mental examination must obtain leave of court based on a showing of “good cause.” (Code Civ. Proc. §2032.320(a).) “Good cause” generally requires a showing of relevancy to the subject matter and specific facts justifying discovery, i.e., a showing of the need for the information and lack of means of obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d 833.)
The Code “does not limit the number of examinations but cumulative discovery is prohibited.” (Sporich v. Superior Court (1990) 77 Cal.App.4th 422, 428, superseded on other grounds in Albertson v. Superior Court (2001) 25 Cal.4th 796; see also, Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1254-1255; Irvington–Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738.) “[M]ultiple [mental] examinations should not be ordered routinely…” (Shapira, supra, 224 Cal.App.3d at 1255.)
In this case, Defendants have demonstrated sufficient “good cause” for the requested mental examination. To start, there appears to be no dispute that Plaintiff is claiming traumatic brain injury as a result of the accident and thus, Plaintiff’s mental health is certainly “relevant” to this action. Further, Defendants have shown that their initial examination of Plaintiff was primarily a “physical” examination conducted by a physiatrist specializing in physical medicine and rehabilitation. As Dr. Doherty states in her Declaration, “[a]n independent neuropsychological evaluation by a Ph.D.-level licensed psychologist/neuropsychologist who specializes in traumatic brain injury claims…is required to assist in determining whether Plaintiff has mental deficits and whether they are attributable in whole or part to the subject October 17, 2017 accident or to the serious head injury he sustained years ago.” (See, Doherty Dec. at ¶5.)
Thus, based on the well-established policy of liberally construing the discovery statutes in favor of disclosure, there is sufficient “good cause” for the requested mental examination. (See, Harabedian v. Superior Court In & For Los Angeles Cty. (1961) 195 Cal.App.2d 26, 31 [statutes relating to discovery procedures should be liberally construed in favor of disclosure.].) Plaintiff’s “offer” to share the report from his own neuropsychologist in exchange for Defendants waiving their right to request an independent examination is not sufficient to show Defendants’ ability to obtain the information elsewhere.
Additionally, Defendants have also shown that the paralegal who accompanied Plaintiff to the initial examination improperly disrupted that examination and “impeded Dr. Doherty’s ability to get a full and accurate history from and examination of Plaintiff.” (Patrick Dec. at ¶7.) The law is clear that the entire examination should occur in the presence of the examiner and examinee alone. (Edwards v. Superior Court (1976) 16 Cal.3d 905, 906 [“a psychiatric examination of a party in a Civil case should ordinarily be conducted without counsel if the examination is to remain an effective and meaningful device for ascertaining the truth.”].)
Finally, Defendants have sufficiently specified the “time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (Code Civ. Proc. 2032.310(b).) The motion specifies that the examination will be conducted by Dr. Joanna Berg, Ph.D., a duly licensed psychologist/neuropsychologist, on November 5, 2019 at 9:00 A.M., at her office, located at 5665 College Avenue, Oakland, California. (See, Amended Patrick Dec. at ¶¶3, 13.) Additionally, the motion specifies the manner, conditions, scope and nature of the examination, including the specific tests that will be performed. (Id. at ¶¶14-15.) Plaintiff fails to show that the examination would be “unduly painful, protracted and intrusive,” as alleged.
Accordingly, the motion is granted.
Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312. Additionally, the written order shall comply with Code of Civil Procedure section 2032.320(d) and shall specify the person or persons who will perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (See, Code Civ. Proc. §2032.320(d).)
6. SCV 264342 County of Sonoma v. Tinker
This matter is on calendar for Sonoma County’s Motion for a Default Judgment and Permanent Injunction against defendant William Tinker (“Tinker”). The County filed the underlying Complaint on April 26, 2019 for the appointment of a receiver and for injunctive relief related to multiple public nuisances on Tinker’s property. The County served Tinker on May 6, 2019 and served defendant Deutsche Bank National Trust Company, as Trustee for the Long Beach Mortgage Loan Trust 2005-WL2 (“Deutsche Bank”) on or about May 2, 2019. On August 30, 2019, when neither defendant had filed a response to the Complaint, the County filed a Request for Entry of Default against both defendants and the default was entered the same day.
In this motion, the County moves for a default judgment under Code of Civil Procedure section 585(b) and requests that the Court issue a permanent injunction enjoining Tinker from, among other things, “maintaining or allowing others to maintain or conduct any activity or use upon the Property which is a violation of Chapter 7 (Building) and Chapter 26 (Zoning) of the Sonoma County Code or contrary to the ordinances of the County of Sonoma, the Health and Safety Code § 17910, including §17920.3, and the Code of Regulations, including, to wit: maintaining substandard housing and a nuisance and maintaining junkyard conditions and hoarding on the Property.” (See, Motion at 7:8-15.) The County also requests an Order requiring Tinker to pay $265,665.00 in penalties, which are continuing to accrue at $70 per day for Building Code violations and $15 per day for Zoning Code violations. Further, the County requests DHS abatement costs in the amount of $1,018.78; County Counsel costs in the amount of $1,162.04; and County Counsel’s fees in the amount $80,898.50.
Neither defendant filed an opposition to the motion.
The County’s Request for Judicial Notice is GRANTED. The County’s Motion for a Default Judgment and Permanent Injunction is GRANTED and the County’s request for abatement costs, civil penalties, and attorneys’ fees is also GRANTED.
The Code provides that if the defendant has been served, other than by publication, and no response has been filed “the clerk, upon written application of the plaintiff, shall enter the default of the defendant” and “[t]he plaintiff thereafter may apply to the court for the relief demanded in the complaint.” (Code Civ. Proc. §585(b).) “The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just.” (Ibid.) “If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose.” (Ibid.) Additionally, Sonoma County Code section 1-7 allows for the assessment of civil penalties and recovery of costs, including “any administrative overhead, salaries and expenses incurred by the following departments: health services, permit and resource management, county counsel, district attorney, transportation and public works, agriculture/weights & measures, and fire and emergency services.” (See, SCC at §1-7(d).)
In this case, the County’s Complaint; entry of default; and this motion for default judgment and permanent injunction provide sufficient evidence for the Court to enter the judgment and injunction as requested. Accordingly, the motion is granted.
Unless oral argument is requested, the Court will sign the Proposed Order lodged with the motion.
7. SCV-264602, Voss v. Boland
This case, and a related prior case that resulted in a stipulated judgment, arise from the parties’ joint ownership of property located at 177 Willow Street, in Santa Rosa, CA (the “Property”). In the prior action, (SCV-261244), Plaintiff filed a First Amended Complaint for partition of the Property on September 8, 2017 and on January 17, 2018, Defendant filed a First Amended Cross-Complaint for quiet title. Thereafter, the parties engaged in mediation with attorney Robert Murray and on September 17, 2018, Plaintiff filed a notice of settlement of the entire case stating that the case would be dismissed no later than November 7, 2018 conditioned on “the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement.” On February 2, 2019, Plaintiff filed a second notice of settlement which stated the case would be dismissed no later than March 25, 2019.
Under the settlement agreement, Defendant agreed to pay Plaintiff $150,000 in exchange for Plaintiff’s interest in the Property. According to Plaintiff, “[t]he agreement explicitly contemplated that [Defendant] would refinance the Property to pay this sum [to Plaintiff].” (Complaint at ¶9.) The settlement agreement also authorized Plaintiff to file a stipulated judgment in the event Defendant failed to complete the refinance by March 4, 2019. (Ibid.) However, shortly after the settlement was reached, Defendant “informed Plaintiff that in order to complete the refinance, she would need Plaintiff to execute a quit-claim deed of his interest in the Property.” (Id. at ¶12.) “Believing Plaintiffs representations, and in order to comply this the parties’ settlement agreement, Plaintiff executed a quitclaim deed and delivered it to Defendant” and “made it clear that his delivery of the deed was conditioned upon [Defendant] completing the refinance and paying him his settlement funds.” (Id. at ¶¶12-13.) Thereafter, Defendant “breached the parties’ agreement by failing to complete the refinance and pay Plaintiff his funds by March 4, 2019” and breached again “on or about March 20, 2019” when she “recorded the quit-claim deed provided to her by Plaintiff, completed a refinance in the amount of $240,000 [but] failed to pay Plaintiff the amount required by the settlement agreement and stipulated judgment.” (Id. at ¶¶18-21.)
On March 25, 2019, Plaintiff filed a lis pendens on the Property in the prior action and on May 1, 2019, Defendant’s new attorney, Sarah Lewers, filed a “Stipulation for Entry of Judgement and Order” under Code of Civil Procedure section 664.6 which entered judgment based on the terms of the settlement agreement. Specifically, the judgment states:
1. Defendants “shall pay to [Plaintiff] the sum of one hundred fifty thousand dollars and zero cents ($150,000.00) in exchange for [Plaintiff’s] entire interest in the real property located at 177 Willow Street, Santa Rosa, California, 95401…The parties understand and agree [Defendant] intend[s] to access the equity in the Subject Property to fund the one hundred fifty thousand dollars and zero cents ($150,000.00) payment to [Plaintiff]. [Plaintiff] agrees to assist with the execution of any and all documents required to do so, including but not limited to execution of a quitclaim deed.”
2. [Defendant] will Secure financing to pay the sum of one hundred fifty thousand dollars and zero cents ($150,000.00) to [Plaintiff] within six months of September 4, 2018. Should [Defendant] fail to obtain financing to pay the sum of one hundred fifty thousand dollars and zero cents ($150,000.00) to [Plaintiff] within six months of September 4, 2018,[Plaintiff] may file the instant Stipulation. This Stipulation shall not be filed before March 5, 2019.
2. (sic) Judgment may be entered for [Plaintiff] and against [Defendant] in the sum of one hundred fifty thousand dollars and zero cents ($150,000.00).
3. The Court “ought to retain jurisdiction over this matter upon dismissal, that this Stipulation shall be enforceable pursuant to Code of Civil Procedure section 664.6, and the parties hereby request this Court retain jurisdiction over this matter to enforce this Stipulation in the event of breach.
Based on the entry of the stipulated judgment, the prior case was adjudicated and dismissed, without prejudice, and the Court expressly retained jurisdiction “for purposes of enforcement of this Stipulation pursuant to Code of Civil Procedure section 664.6.”
Instead of seeking to enforce the judgment in the prior action under section 664.6, Plaintiff filed the present action (SCV-264602) on June 11, 2019 for fraud, breach of contract, and violation of Penal Code 496(a) (receiving stolen property). Plaintiff’s fraud claim is based on Defendant’s alleged misrepresentations that she needed the quit claim deed in order to complete the refinancing and her promise that she would record the quitclaim concurrently with her payment to Plaintiff of the $150,000. (Complaint at ¶33.) Plaintiff’s cause of action under Penal Code section 496(a) and (c) is based on the same facts and allegations that Defendant “knew the property was stolen, concealed and misappropriated from Plaintiff…” (Id. at ¶47.)
On July 22, 2019, Defendant filed the Cross-Complaint that is now the subject of Plaintiff’s Anti-SLAPP motion. In the Cross-Complaint, Defendant asserts causes of action for rescission of the contract, abuse of process, and quiet title. The rescission claim is based on an allegation that Defendant “was intimidated and traumatized due to the yelling [at the mediation] and signed the Settlement Agreement under duress.” (Cross-Complaint at ¶18.) The abuse of process claim appears to be based on an allegation that Plaintiff and his counsel, Jack Weaver, “hindered [Defendant] from obtaining the loan within the time prescribed by the settlement agreement” [e]ven going as far as bullying [Defendant] throughout the process in multiple emails.” (Id. at ¶31.) Defendant alleges that “[t]hese emails included ‘payment to [Plaintiff] is a pre-condition to the filing of the Quit Claim Deed,’ ‘instructions will authorize the filing of the Quit Claim Deed only when the $150,000 is released to him,’ thereby preventing [Defendant] from re-financing due to the legal impossibility of such demands.” (Ibid.) Defendant’s claim for quiet title is based on the parties’ competing claims to an interest in the property.
In response to the Cross-Complaint, Plaintiff filed a special motion to strike under Code of Civil Procedure section 425.16 on the grounds that “the statements and actions of [Plaintiff] and his attorney are subject to Section 425.16(e)(2) as being ‘in connection with an issue under consideration or review by a legislative, executive, or judicial body.” (Motion at 6:18-20.) Plaintiff argues that the “statements and actions [alleged] literally arise from actions actually taken in mediation of the underlying lawsuit” and “[Defendant] is essentially saying that things that [Plaintiff] and his attorney purportedly did, during mediation, and the underlying litigation, put her under ‘duress’ and therefore, justify rescission of the contract and a claim for abuse of process.” (Id. at 7:5-9.) Plaintiff contends that these communications are protected under the litigation and/or mediation privilege and therefore, are barred under the SLAPP statute.
Claiming to have met the “first prong” of the Anti-SLAPP analysis, Plaintiff contends the burden shifted to Defendant to show a probability of prevailing on the merits. Here, Plaintiff argues that Defendant cannot meet that burden because all her claims are barred by the doctrine of res judicata. Plaintiff claims that Defendant is attempting to relitigate the same lawsuit that she filed in 2017 and the parties resolved in settlement and a subsequent stipulated judgment. Accordingly, Plaintiff avers that Defendant’s entire action is barred by res judicata.
Defendant did not file a timely opposition to the motion and on October 8, 2019, the Court posted its tentative ruling to grant the special motion to strike. Also on October 8, 2019, Defendant’s attorney filed an attorney Declaration in Opposition to the motion and explained that he had inadvertently missed the date for his opposition and was requesting that the hearing be continued to allow him time to oppose the motion. Defendant also requested oral argument the following day. Both parties appeared at the hearing on October 9, 2019, and Defendant again requested a continuance. After hearing argument from both parties, the Court agreed to continue the hearing to October 30, 2019 and allowed Defendant to file an opposition by October 18, 2019 and allowed Plaintiff to file a reply by October 25, 2019.
In her opposition, Defendant concedes that “[Plaintiff’s] motion succeeds on the first prong [of the Anti-SLAPP analysis]” but argues the motion “fails on the second prong…and should be denied straightaway.” (Opp. at 5:23-24.) With respect to the second prong, Defendant contends that the “the standard of proof for establishing a probability of prevailing is ‘low’” and in this case, Defendant “has a probability of prevailing on her claims for Breach of Contract with an amendment to the Cross-Complaint and as discussed below, [Plaintiff’s] objections [to the Cross-Complaint] are meritless.” (Id. at 6:19-22.) Additionally, Defendant contends that “this motion could not be granted without giving [Defendant] the opportunity for discovery on the merits.” (Id. at 5:24-25.) In support of this apparent request for discovery, Defendant cites to Code of Civil section 425.16(g) for the proposition that “before an anti-SLAPP motion may be granted, a plaintiff is entitled to conduct formal discovery has a probability (sic) of establishing the merits of her claims.” (Id. at 5:19-22.) Based on these arguments, Defendant concludes that “[t]he Court should deny Voss’ Special Motion to Strike on the merits and each party should pay their own Attorney’s fees.” (Id. at 7:15-18.)
In reply, Plaintiff contends that Defendant “has failed to provide any admissible, competent evidence that shows she has a likelihood of prevailing on the merits of her claim.” (Reply at 1:9-10.)
Plaintiff’s Request for Judicial Notice of Exhibits 1-6 is GRANTED and Plaintiff’s motion to strike under Code of Civil Procedure section 425.16 is also GRANTED. Defendant’s request to conduct discovery is DENIED.
Section 425.16 provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc. §425.16(b)(1); see also, Takhar v. People ex rel. Feather River Air Quality Mgmt. Dist. (2018) 27 Cal.App.5th 15, 24.) “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The focus of the anti-SLAPP statute is not the form of the plaintiff’s cause of action, but on the activity in which the defendant engaged that gives rise to its asserted liability-and whether that activity constitutes protected speech or petitioning. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
The Code provides that “[a]s used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. §425.16(e).) As the California Supreme Court has explained, “because a cause of action ‘arising from any act…in furtherance of the…right of petition’ is subject to the anti-SLAPP motion…‘[a] cause of action arising from [a] defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “Any act” includes “communicative conduct such as the filing, funding, and prosecution of a civil action.” (Ibid; see also, Takhar, supra, 27 Cal.App.5th at 27-28.)
In determining whether a claim arises from protected activity, the court disregards the label and instead examines the claim’s principal thrust or gravamen” and “identifies the allegedly wrongful and injury-producing conduct…that provides the foundation for the claim.” (Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1520.)
Here, the “gravamen” of Defendant’s cross-complaint and the alleged wrongful conduct upon which Defendant’s claims are based clearly took place in the course of negotiating a settlement in mediation. Multiple cases have applied the anti-SLAPP statute in the context of settlement negotiations. (See e.g., GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 [“attorney’s communication with opposing counsel directly implicates the right to petition and thus is subject to a special motion to strike;”]; see also, Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418 [claims that arose from attorney’s acts of negotiating a settlement are protected activity under the Anti-SLAPP statute.”].) Thus, Defendants’ claims are clearly covered under the statute. In fact, Defendant concedes this prong in her opposition. (Opp. at 5:23 [“Ultimately [Plaintiff’s] motion succeeds on the first prong…”].) Therefore, the burden shifted to Defendant to “demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384.)
To meet this burden, Defendant was required to show that that the claims in her Cross-Complaint are both “legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment” if the evidence submitted by Defendant is “credited.” (Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 36–37, quoting, Navellier, supra, 29 Cal.4th at 89, 88.) “The pleadings ‘frame the issue to be decided.’” (Abir Cohen Treyzon Salo, LLP v. Lahiji, 2019 WL 4877286, at *3, quoting, Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, abrogated on other grounds, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.) “The anti-SLAPP statute describes what evidence a court may consider in this second step” and “provides that ‘[i]n making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 941, quoting Code Civ. Proc. §425.16(b)(2).) “[A] plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’” (Id. at 940, quoting, San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 95.) “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at 396.) Indeed, the very purpose of an anti-SLAPP motion is to weed out meritless suits by requiring the plaintiff, in this case Defendant and Cross-Complainant to marshal sufficient admissible evidence to make a prima facie showing that its claims have potential merit. (Id. at 384.)
In this case, Defendant has failed to present any evidence, let alone “competent admissible evidence,” to make a prima facie case to show the merit of her causes of action for rescission of the contract, abuse of process, and quiet title. Instead, the only “evidence” Defendant presents is the largely inadmissible declaration of her attorney stating that after he informed Plaintiff’s counsel of his intent to amend the Cross-Complaint, “he quickly filed the anti-SLAPP [motion]” which “effectively prejudiced the Cross-Plaintiff barring the Cross-Plaintiff from amending the Cross-Complaint to remove the current causes of action and amend to include a Breach of Contract and correlating cause of action.” While Defendant is correct that she “cannot avoid an anti-SLAPP motion by amending the complaint,” the fact remains that the declaration of her attorney is not admissible “evidence” that supports any of her claims, not even a breach of contract claim. (See, Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547; accord, Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411 [“[a] plaintiff…may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint ... in response to the motion’ ”]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [§ 425.16 makes no provision for amending the complaint.”].) Because Defendant has not presented any evidence to support her claims, the Court need not and does not address Plaintiff’s argument that the claims are barred by res judicata.
Finally, Defendant cites to Code of Civil Procedure section 425.16(g) for the proposition that “before an anti-SLAPP motion may be granted, a plaintiff is entitled to conduct formal discovery has a probability (sic) of establishing the merits of her claims.” (Id. at 5:19-25.) Relying on this section, Defendant contends that “this motion could not be granted without giving [Defendant] the opportunity for discovery on the merits.” (Ibid.) However, this is simply incorrect. The statute specifically states that “[a]ll discovery proceedings in the action shall be stayed” upon the filing of an anti-SLAPP motion. (Code Civ. Proc. §425.16(g).) Additionally, Code states that “[t]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Ibid.) Here, Defendant has failed to identify any “specific discovery” that she seeks to conduct and fails to make any showing of “good cause” to support such a result.
Accordingly, the special motion to strike is GRANTED.
*This is the end of the Tentative Rulings*