Nov 28, 2014

LAW & MOTION TENTATIVE RULINGS

TUESDAY, NOVEMBER 25, 2014 - 8:30 a.m.

COURTROOM 19 –Judge Arthur A. Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, NOVEMBER 24, 2014.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-254197 Thomas v. Fisher:

            This is on calendar for the Defendant’s motion for summary judgment. The Defendant proffers two grounds for summary judgment. The Defendant contends that the Plaintiffs lack any evidence that the decedent was negligently advised with respect to the annuities and pension. The Defendant further argues that the Plaintiff’s claims are barred by the applicable statutes of limitations. (Citing CCP § 340.6.)

The Plaintiffs oppose, arguing that the adduced evidence indicates that the Defendant negligently failed to advise the decedent that he needed to change the beneficiaries of the annuities and the pension in order to carry out his testamentary wishes post-death. The Plaintiffs adduce evidence that the decedent, on several occasions told the Plaintiffs  (at least one of) that it was his desire that they receive both annuities and split his pension benefits. Further, the Plaintiffs point to the trust documents themselves, which indicate that the subject assets were to be distributed to the Plaintiffs. Lastly, the Plaintiffs adduce a letter that allegedly was sent to the decedent which purports to instruct the decedent on how to fund the trust. The Plaintiffs contend that this letter fails to inform the decedent that he must change the beneficiary designations if he wishes to pass the subject assets to the Plaintiffs. The Plaintiffs argue that the fact that the decedent’s explicit instructions were to pass the subject assets to them, directives which were not affected by the Defendant at the very least infers negligence on the part of the Defendant.

The Plaintiffs further address the issue of the running of the statute of limitations, contending that their suit is timely. The Plaintiffs argue that the one year statute in CCP § 340.6 did not begin to run upon the death of the decedent, but rather commenced when they uncovered facts in their action against decedent’s wife that the Defendant may have provided negligent legal services to the decedent.

Summary Judgment in General

A summary judgment may be granted where it is shown that the entire “action has no merit or that there is no defense to the action or proceeding.” (CCP §437c(a).) In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom.  Inferences from circumstantial evidence can create a triable issue, as long as they are not based on speculation or surmise.  (Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)  These inferences must be "more likely than not." (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.)

Once the moving party has met its burden, the burden shifts to the other side to show that a triable issue of one or more material facts exist precluding grant of the motion. (See CCP §437c(p); Aguilar, supra at 850; Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 780.There is a policy to liberally construe the opposition’s evidence and strictly construe the evidence of the moving party.  (D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)

CCP § 340.6 provides, in pertinent part:
 

An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission….

The Defendant presents two potential dates for statute to start running, the date of the death of the decedent, or, alternatively, the date the Plaintiffs began to incur attorney fees as a consequence of learning that Maria had received the subject assets despite the trust’s explicit language. The Plaintiffs counter, arguing that while they were aware that Maria’s beneficiary designation entitled her to the subject assets, they were unaware that such a beneficiary designation trumped the trust’s provisions regarding those assets. (Plaintiffs’ Opp. Sep. Stat. Fact No. 12.)  The Plaintiff argue that they were unaware of the fact that the Defendant may have acted negligently until they received (in discovery during their trust contest against Maria) a letter sent from the Defendant to the decedent which instructed the decedent on how to  fund his trust. The Plaintiffs contend that instructions regarding the necessity of changing beneficiaries to the subject assets is noticeably absent.

Code of Civil Procedure “section 340.6(a) makes the plaintiff's actual or constructive discovery of the defendant's wrongdoing an element of its one-year-from-discovery limitations defense, it does not —nor does any other law—make the plaintiff's actual or constructive discovery of the defendant's wrongdoing an element of a prima facie claim for attorney malpractice. [Citations.]” (Samuels v. Mix (1999) 22 Cal.4th 1, 8.) Put another way, “defendant, if he is to avail himself of the statute's one-year-from-discovery limitation defense, has the burden of proving, under the ‘traditional allocation of the burden of proof’ [citations], that plaintiff discovered or should have discovered the facts alleged to constitute defendant's wrongdoing more than one year prior to filing [the] action.” (Id. at pp. 8–9, 91 Cal.Rptr.2d 273, 989 P.2d 701.) Furthermore, “ ‘ “[t]he question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact... [and] [i]t is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of law.” (Baright v. Willis, supra, 151 Cal.App.3d at p. 311.)

Here, the Plaintiffs knew “weeks” after the decedent’s death that Maria had received the subject assets that they had anticipated would be distributed to them. Noticeably absent from any of the undisputed facts are any indications that the Defendant had negligently advised the decedent with respect to carrying out the terms of the trust. The Defendant’s discussion of “actual injury” misses the mark here. Actual injury arising from the negligence of the attorney does not start the running of the statute under CCP § 340.6, but rather the statute is tolled until “plaintiff has … sustained actual injury.” (CCP § 340.6(a)(1).) The question here is whether the Plaintiffs were on actual notice, or inquiry notice of the Defendant’s alleged negligence. CCP § 340.6 requires that the Plaintiffs “should have discovered [ ] the facts constituting the wrongful act or omission.”

Nothing presented by the Defendant establishes that the Plaintiffs were on inquiry notice of the Defendant’s purported negligence prior to the discovery of the November 2007 letter. The salient point here is that the Trust documents themselves are not alleged to have been prepared negligently—rather the allegations contend that the advice provided to the decedent was negligent. The Defendant has not provided any evidence that would demonstrate that the Plaintiffs were aware (or should have been aware) that the Defendant had allegedly failed to provide the decedent  the information necessary to effectuate his wishes, as set forth in the trust.

The Defendant’s reliance on Heyer v. Flaig [(1969) 70 Cal.2d 223] is misplaced. There, the action was founded on the negligent failure to draft the decedent’s will to account for her later married spouse—a fact that would be known immediately upon the will being probated. Moreover, the issue in Heyer was not one of notice (probably because the issue of notice was obvious), but rather an issue when the statute ran, either upon the drafting of the negligent instrument, or upon the death of the testator. Here, the issue of notice is less clear—and disputed.

Further, the evidence presented by the Defendant does not establish that the Defendant’s “adversarial” approach to the Plaintiff’s position should have put them on notice of the alleged negligence. The Court of Appeal’s discussion of a similar issue in Johnson v. Haberman & Kassoy [(1988)  201 Cal.App.3d 1468, 1476 superseded by statute on other grounds as stated in Laird v. Blacker (1991) 229 Cal.App.3d 159] is itself instructive, the court opined: “The crucial time is not when plaintiff discovered, or should have discovered … alleged fraud and misappropriation of money but only when he discovered or should have discovered that his lawyers acted negligently. Plaintiff's being on notice of the general underlying misconduct … is not the equivalent of being on notice of the attorneys' malpractice in failing to properly advise, inform, or otherwise protect his interests….” As discussed above, there are disputed issues of fact as to when the Plaintiffs were on notice of the Defendant’s alleged malpractice despite their disappointment in not receiving the subject assets.

The Defendant’s reliance of CCP § 340.6(b) is misplaced. The action here is based on the Defendant’s alleged malpractice, in particular the Plaintiffs contention that the Defendant failed to properly advise the decedent, which is specifically covered under CCP § 340.6(a). The action is not based on an “instrument in writing.” (See e.g. Benard v. Walkup (1969) 272 Cal.App.2d 595 [a legal malpractice action based on an attorney's failure to prosecute a client's personal injury claim pursuant to a written contingent fee contract to do so is an action founded on an instrument in writing].) Notably, the Defendant fails to cite any case for the application of CCP § 340.6(b) to facts similar to those presented here.

Further, there are issues of material fact in dispute that preclude summary judgment. The Plaintiffs present evidence that infers that the Defendant failed to provide adequate legal advice with respect to the subject assets. In particular, the Plaintiffs present evidence that the decedent made it clear to them that they would be receiving the subject assets after his death. (Plaintiffs’ Additional Facts No. 12.) Further, the Plaintiffs adduce evidence that at least one of them reviewed the trust documents, which indicate that the assets were to be received by them. Lastly, the Plaintiffs present the 2007 letter which omits mention of the fact that to effectuate the transfer of the subject assets, the decedent would have had to make a beneficiary change. (Plaintiffs’ Opp. Sep. Stat. Fact No. 8.)  In opposition that Defendant contends that he did advise the decedent regarding the necessity of changing beneficiary designation. (See Sep. Stat. Fact Nos. 4 &6.)

It is well settled that evidence offered in opposition to a motion for summary judgment must be liberally construed, while the moving party's evidence must be construed strictly, in determining the existence of a “triable issue” of fact. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21,; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839; Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) Further, the inferences arising from the Plaintiffs’ evidence regarding the decedent’s wishes are reasonable. (See CCP § 437c(c).)

Accordingly, and for the foregoing reasons, the Defendant’s motion for summary judgment is denied in its entirety. The request for judicial notice is granted. The Plaintiffs’ objection to the Defendant’s points and authorities is overruled. The Defendant’s objections Nos. 1, 2, 8 and 9 are sustained; the balance of the Defendant’s objections are overruled. The Plaintiffs shall draft an order consistent with this ruling.

 

2.  SCV-254998 Mid-Century Ins. v. DeVilbiss:

            This matter has been dropped from calendar as moot, as a Dismissal of the entire case was filed on November 4, 2014.

 

3.  MSC-183449 Baker v. Brook:

            The case is ordered reinstated on the civil active list.  All parties are to appear.

           

4.  MSC-183575 Wolff v. O’Connor:

            The case is ordered reinstated on the civil active list.  All parties are to appear.

 

5.  SCV-241055 Teuma v. Martin:

            The hearings in this matter shall be continued to the law and motion calendar on December 30, 2014.

 

6.  SCV-251615 Timmons v. Land:

            This is on calendar for the Defendant’s motion to declare the Plaintiff a vexatious litigant, and to require him to furnish security to maintain the instant lawsuit. This is the second such motion on calendar dealing with Mr. Timmons. In Timmons v. Duclos SCV 251718, the court has found that Mr. Timmons met the definition of a vexatious litigant. CCP § 391.(b)(4) provides that a vexatious litigant is one who “[h]as previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.” (CCP § 391(b)(4); see In re Shieh (1993) 17 Cal.App.4th 1154, 1166.) Further, where a plaintiff has already been declared vexatious and previously received the benefit of a noticed motion, a defendant moving under Sec.391.7 need not again establish the plaintiff’s status.  (See Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 222-223). 

Accordingly, this court adopts its findings from SCV 251718, and finds that Mr. Timmons is a vexatious litigant. Further, the court finds that the Plaintiff has no reasonable probability of success on the merits of his claims. Defendant’s motion to declare Plaintiff Danny R. Timmons a vexatious litigant is granted. Additionally, Defendant’s motion that Plaintiff be required to post security for this litigation in an amount of at least $25,000.00 is also granted.

The Defendant shall draft an order consistent with this ruling.

 

7.  SCV-251718 Timmons v. Duclos:

            The Plaintiff contends, as far as the court can discern, that the Defendant has committed a variety of torts against the Plaintiff during their family law case, which have left him psychologically disabled. By way of background, the Plaintiff and Defendant divorced in 1982—they have one child together. The Plaintiff also alleges that the Defendant was an employee of three separate corporations which the Plaintiff alleges the Defendant breached her fiduciary duties. Frankly, the Plaintiff is difficult to follow, and the allegations are disjointed and often fall into the category of non-sequitur.

Defendant moves pursuant to CCP §§391 through 391.7 for a ruling that Danny R. Timmons be deemed a vexatious litigant. Further the Plaintiff contends that that there is no reasonable probability of success in this action, and asks the court  for an order that Timmons be required to post security for this present litigation in an amount of at least $25,000.00.

Defendant’s Request for Judicial Notice contains copies of court documents and registers of actions. The Request is properly granted.

Plaintiff opposes the motion on the grounds that it is frivolous, meritless and is brought for the sole purpose of harassment, to cause unnecessary delay, and to needlessly increase the cost of litigation. Further, the Plaintiff contends that some of the cases listed in the instant motion do not qualify under the vexatious litigant statute. The Plaintiff also contends that he has repeatedly sought settlement of the case, but has been rebuffed by the Defendant.

In a separate pleading, the Plaintiff has asked for a continuance of all matters to February or March of 2015, contending that the Defendant has acted criminally, and in in violation of international law with respect to service of motions and pleadings on the Plaintiff. The Plaintiff’s motion for a continuance is denied.

Under CCP Sec.391, a vexatious litigant is a person who does any of the following:  “In the immediately preceding seven‑year period has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.” (CCP § 391(b)(1); see Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 778 .) “After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (I) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.” (CCP § 391(b)(2  “In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” (C.C.P. 391(b)(3); see In re Luckett (1991) 232 Cal.App.3d 107, 109.)

Vexatious litigant statutes were created to curb misuse of the court system by those acting in propria person who repeatedly relitigate the same issues.  These persistent and obsessive litigants often file groundless actions against judges and other court officers who made adverse decisions against them.  Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.  Vexatious litigant statutes are constitutional and do not deprive a litigant of due process of law.  (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221.)

In People v. Harrison (2001) 92 Cal.App.4th 780, the trial court entered an order on its own motion declaring a criminal defendant a “vexatious litigant” and issued a prefiling order under CCP Sec.391.7 (requiring permission to file further motions, etc.).  The Court of Appeal vacated the order declaring D a vexatious litigant.  The Court stated: “Plaintiff has already been declared a vexatious litigant Regarding the merits of the motion, defendant has sufficiently shown that plaintiff meets the definition of a vexatious litigant pursuant to CCP § 391(b)(1) and (3).”

First, Plaintiff meets the definition of a vexatious litigant pursuant to CCP § 391(b)(1).  Plaintiff has in the immediately preceding seven-year period commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been finally determined adversely to him. (See CCP § 391(b)(1).) Qualifying cases are: (1) Timmons v. Matonak, Solano County Sup. Ct. No. FCS 040261 (dismissed without prejudice); (2) Timmons v. Mull, Solano Sup. Ct. No. FCS040313 (case dismissed); (3) Timmons v. Clancy Solano Sup. Ct. No. FCS040159 (demurrer sustained without leave to amend, judgment entered); (4) Timmons v. Crow Solano County Court No. FCS040454 (demurrer sustained without leave to amend, judgment entered); (5) Timmons v. Wick USDC ND CA No. 3:14-CV-01228-NC (case summarily dismissed); (6) Timmons v. DuClos USDC ND CA No. 3:14-CV-00794-SBA (case summarily dismissed); (7) Timmons v. Zinn USDC ND CA No. 3:14-CV-00748-SBA (case summarily dismissed); (8) Timmons v. Land USDC ND CA No. 3:14-CV-01116-MEJ (case summarily dismissed). Each of these cases was commenced, prosecuted, or maintained in propria persona by the Plaintiff in the last seven years, and each has been finally determined adversely to him.

Plaintiff also meets the definition of a vexatious litigant under CCP § 391(b)(3), which provides: “In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.”  Plaintiff’s actions establish a pattern of delaying litigation by filing unmeritorious motions as a matter of course and engaging in other tactics that are frivolous. (See Dec. Van Der Putten, Exhibits D through H.)

Defendant has established that Plaintiff qualifies as a vexatious litigant under CCP § 391(b)(1) and (3). Therefore, as to Defendant’s request for a prefiling order, the motion is GRANTED. Pursuant to CCP § 391.7, the court will enter a prefiling order which prohibits Plaintiff from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.

With regard to defendant’s request that Plaintiff be required to post security in the amount of $25,000.00, Defendant asserts that there is no reasonable probability that Plaintiff will prevail on the causes of action against this Defendant. (See CCP § 391.1.) Defendant has provided evidence demonstrating the meritless nature of the lawsuit, and provided argument in her memorandum of points and authorities making the case that the action lacks merit.

Plaintiff, on the other hand, has not submitted any cogent, credible evidence refuting the content of defendant’s persuasive evidence.      

Accordingly, Defendant’s motion to declare Plaintiff Danny R. Timmons a vexatious litigant is granted. Additionally, Defendant’s motion that Plaintiff be required to post security for this litigation in an amount of at least $25,000.00 is granted. Defendant’s counsel is to draft an order consistent with this ruling, and provide Judicial Council Form MC-700 for the court’s signature.

 

8.  SCV-251784 Industrial Waste v. Carpenter:
            Attorney Fees

This is on calendar for the Defendants Bruce Murphy and Intelliwaste Inc’s (the Defendants) motion for attorney fees following their partially successful anti-SLAPP motion. The Defendants seek fees of $45,446.17, jointly and severally, against Plaintiffs Industrial Waste and Debris Box Service, Inc. (Industrial Waste), Global Material Recovery Systems Inc. (Global), Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin. Further, the Defendants seek fees of $28,119, jointly and severally, against Plaintiffs Industrial Waste and Global. The Defendants argue that these fees were reasonable and necessary to the prosecution of their anti-SLAPP motion, and that they are statutorily entitled to these fees. The Defendants seek to segregate the fees on account of the fact that Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin did not file opposition to the anti-SLAPP motion.

The Plaintiffs oppose the motion, arguing that the Defendants “did not succeed in any meaningful way.”[1] The Plaintiffs contend that the Defendants only succeeded to knock out a single cause of action, to wit, intentional interference with economic advantage, and the claims made by Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin (who did not oppose the underlying motion). The Plaintiffs contend that the actions of Plaintiffs Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin were, essentially, a voluntary dismissal. The Plaintiffs argue that Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin “never intended to bring this action against the Defendants.”  As such, the Plaintiffs contend that the Defendants were not the prevailing party on the anti-SLAPP motion.

A defendant who brings a successful motion to strike under CCP § 425.16 is entitled to attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122,1131; § 425.16(c).) However, “a defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate.” (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1305.)

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.... The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; see also City of Santa Rosa v. Patel (2010) 191 Cal.App.4th 65.)

The Plaintiffs contend that the Defendants were not altogether successful, and therefore are not “prevailing parties.” The Plaintiffs’ arguments are partially correct. While the motion was not completely successful, it did knock out several Plaintiffs, and a cause of action for intentional interference with economic advantage. To characterize the Defendants as unsuccessful is not a tenable position. The Defendants position that they are entitled to all of their fees is likewise an untenable position.

Defendants who partially succeed on an anti-SLAPP motion generally is considered a prevailing party and therefore entitled to fees and costs, unless the results of the motion were so insignificant that defendant did not achieve any “practical benefit” from bringing the motion. This determination lies within the “broad discretion” of the trial court. (See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 [defendants who successfully eliminated trade libel cause of action “prevailed” although defamation claim remained in the litigation]; compare Moran v. Endres (2006) 135 Cal.App.4th 952, 954 [fees denied entirely where the only claim stricken (for conspiracy) had no practical effect, so that “defendant cannot in any realistic sense be said to have been successful”].)

But only those fees and costs incurred in connection with the successful portion of the anti-SLAPP motion that is granted in part may be recovered. (See Malin, supra; and Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82.) Here, the Defendants were successful as to all of Curtis Michelini, Sr., Charles Hardin, Sr., Harry Hardin, and Global’s claims, which certainly advanced the Defendants litigation posture. (See Malin, supra at 1305.) Further, as mentioned above, the Defendants were successful in knocking out Industrial Waste’s intentional interference claim. Thus, the Defendants are entitled to fees for their efforts with respect to those issues. While Curtis Michelini, Sr., Charles Hardin, Sr. and Harry Hardin did not oppose the motion, nor did they dismiss the Defendants—indeed they were named parties to the operative pleading. Had they not intended to make claims against the Defendants they should not have signed on to the complaint—since they did lend their names to the complaint, and since that led to the Defendants having to make the underlying motion, they are not off the hook for those fees.

As alluded to above, the court must fix the fees for the successful portion of the motion based on the lodestar.

Hourly Rate

Counsel's own billing rates carry some weight of reasonableness.  (See, e.g., Russell v Foglio (2008) 160 Cal.App.4th 653, 661.)   Defendants’ attorneys have submitted evidence of the hourly rates, which range from $340 per hour to $425 per hour (for a blended rate of $372.48).  No substantive opposition has been provided on this point, and the rates are reasonable.  (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620 [holding that if the opposing party does not submit evidence to contradict evidence of the moving party's rates, they are presumed reasonable].)

Time Spent

The touchstone of an award of attorney fees is reasonableness. Here, the Defendants claim 122.6 hours for the developing, researching, drafting both the underlying motion, and this attorney fees motion, which equates to $45,446.17. Further, the Defendants seek an additional 74.9 hours to prepare for and draft the reply to the opposition, which equates to $28,119.  The number of hours sought by the Defendants is unreasonable.

The Defendants are represented by able and experienced counsel. While the motion did veer off into some complicated territory, e.g. issues related limited public figures; it was not un-tread territory. Furthermore, the Defendants were not altogether successful in their motion. The court is also concerned regarding the block billing that occurred. As pointed out by the Plaintiffs, many multiple hour entries from the Defendants attorneys contain vague explanations of what work was performed—making this court’s job even that much more difficult in determining a reasonable amount of hours. Having dealt with many of these anti-SLAPP motions, and reviewing the underlying motion, the court finds that the Defendants time would more reasonably be in the range of 80 hours for the motion, reply, and the instant motion. Taking the number of hours and dividing by the total attorney fees sought, the court comes to a blended hourly rate of $372.48, which multiplied by 80 hours equals $29,798.

The court will reduce the fee award, accounting for the fact that the Defendants were not altogether successful in their endeavors. However, the court notes, that apportionment of the fees, given the evidence provided by the Defendants would be nearly impossible. The fee records are not sufficiently detailed to provide the court with the ability to determine how many hours were spent on each of the distinct causes of action or theories. Accordingly, the court will reduce the $29,798 by 25%, to account for the fact that the claims of Industrial Waste were not knocked out.

Conclusion

Accordingly, the court will award to the Defendants attorney fees of $22,348 and costs in the amount of $1,055.17 against all Plaintiffs, jointly and severally. The Defendants shall draft an order consistent with this ruling.

Motion to Compel Further Responses

This is also on calendar for the Defendant Ernie Carpenter’s motion to compel further responses to discovery. The Plaintiff opposes, contending that much of the requested discovery is irrelevant, overly burdensome, and in some cases would reveal confidential trade secrets. The Plaintiff however, has agreed to provide supplemental responses with respect to the interrogatories requesting discovery on damages, and will produce documents relevant to the claims and defenses.

As the parties are no doubt aware, it is incumbent on the party objecting to the discovery to justify their objection to avoid producing the discovery requested. A motion for further responses requires the moving party to explain the reasons why further answers should be ordered (CRC 3.1345(c)(3)), but the responding party has the burden of proving the validity of its objections. (See Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 98.) Here, the Plaintiffs have failed to justify their objections, or to establish that the discovery sought would lead to the dissemination of confidential trade secrets.

Plaintiff Global Materials objected to Special Interrogatories 44-75. These included four broader categories of discovery identified by the Defendant in his motion. The Plaintiff interposed a host of objections, but has failed to justify any of them. Further, and inexplicably, the Plaintiff interposed a privacy objection, an objection not available to an entity such as the Plaintiff. Further, the Plaintiff has not established, beyond conclusory statements, that any of the requested discovery would constitute confidential trade secrets. The court notes that the Plaintiff has indicated it will seek a protective order, however the docket indicates no such motion has been filed.

The Defendant also seeks discovery with respect to the material diverted from the landfills from Plaintiff Global Materials, specifically Special Interrogatories 85-87, and Plaintiff Industrial Carting Special Interrogatories 85-87. Again, the requests were met with boilerplate objections. The Plaintiff has simply failed to establish that its objections were justified, and the Defendant has demonstrated that the discovery is relevant. Accordingly, the court will order the Plaintiff to provide further responses, without objection.

With respect to the document requests, to all Plaintiffs Nos. 18, 20, 22-38, 40, 42, 44-46, the Plaintiffs again have failed to support their objections. Indeed, their objections seem to suggest that the Defendant does not need these documents to prove his case. This is not the test for whether discovery is relevant to the matter. Here, the Defendant has established that these documents will potentially lead to admissible evidence, and that they are relevant.

Accordingly, the Defendant’s motion is granted in its entirety, except as to those items re damages, that the Plaintiffs have agreed to produce. The Plaintiffs shall produce all further responses within 15 days of this order. Neither party seeks sanctions, so none are ordered. The Defendant shall draft an order consistent with this ruling.

 

9.  SCV-254921 Clark v. Perry:

            This is on calendar for two discovery motions. The Defendants are moving to compel further responses to discovery that they served on both Plaintiffs. While there are two motions on file against each of the Plaintiffs, the relief sought is identical. Further, as a result of the Plaintiffs serving amended responses, the Defendants have amended the motions significantly.  The Defendants now seeks further responses to Special Interrogatories Nos. 28 and 29, Form Interrogatory Nos. 2.3, 2.5, 2.6,2.7, 7.2, 9.1, 9.2,11.1, 11.2, 17.1 as it applies to RFAs 1,3,7,8,10,14-16, 50.2, and 50.5 Requests for the Admission of Genuineness of Documents J, K, & S, Requests for Admissions Nos. 8 and13, Requests for Production of Documents Nos. 23 and 24. Defendants seek $3,360 in sanctions

The Plaintiffs oppose arguing that Credit Cars Inc. is a suspended corporation that is not authorized to participate in the instant litigation. Further, the Plaintiffs argue that the discovery requests were propounded in bad faith, are duplicative, and overly burdensome. Plaintiffs contend that their amended responses were proper and responsive to the discovery. Plaintiffs seek $1,820 in sanctions.

Mr. David King, Esq. provided facilitation which greatly narrowed the issues. The court thanks him for his service.

While the Plaintiffs are correct that a suspended corporation may not defend a lawsuit, Credit Cars Inc. does not appear to be a participant in the instant action. The caption of the case indicates that Credit Cars is a d/b/a of Defendant Perry.

Special Interrogatories Nos. 28 & 29

These interrogatories seek discovery regarding the amount of costs and attorney fees that the Plaintiffs have incurred as alleged in the operative complaint. The Plaintiffs objected on the basis that the requests were not relevant. While the Plaintiffs provided a supplemental response, it was not responsive. Here, the Plaintiffs have not justified their objections to these interrogatories, and the Defendants are entitled to further responses.

Form Interrogatories 2.3, 2.5, 2.6, 2.7, 7.2, 9.1, 9.2,11.1, 11.2, 17.1, 50.2 & 50.5

Form Interrogatories 2.3, 2.5, 2.6,2.7, 7.2, 9.1, 9.2,11.1, 11.2 seek general information regarding the parties and their respective claims. The Plaintiffs responses to these FROGS were incomplete and included non-specific objections. The court has reviewed the Plaintiffs responses and will order that the Plaintiffs provide further responses to FROGs 2.3, 2.5, 2.6, 2.7, 7.2, 9.1, and 9.2.

Form Interrogatory 17.1 requires the responding party to provide further information with respect to denials of requests for admissions. The Defendants contend that the Plaintiffs responses are not responsive to the interrogatories, and omit certain responses altogether. The Plaintiffs contend that they served amended responses, but have failed to provide those responses to the court. After reviewing the responses provided by the Defendants in their separate statement the Plaintiffs must provide further responses to FROG 17.1 as to RFAs 1, 3 and 10.

Form Interrogatory 50.2 requires the responding party to identify any breaches of any agreement in the operative pleading.  The Plaintiffs response is appropriate and responsive. The Plaintiffs identify a single breach and indicate when that breach occurred, no further response is required. Likewise with FROG 50.5, the Plaintiffs response is appropriate.

Requests for the Admission of Genuineness of Documents J, K, & S

Document J is purported to be a contract with an arbitration clause. The Plaintiffs denied the genuineness of the document, no further response it necessary. Document K is purported to be a credit approval, and Document S purports to be a buyers’ guide. The Plaintiffs indicate that they can neither admit nor deny the genuineness of these documents. The Plaintiffs however fail to “state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (CCP § 2033.220(c).) The Plaintiffs are therefore ordered to provide responses that comply with the Discovery Act as to documents K and S.

Requests for Admissions Nos. 8 & 13

Neither responses provided by the Plaintiffs are compliant with the Discovery Act. (See CCP § 2033.220.) The Plaintiffs are (again) ordered to provide responses that comply with the Discovery Act.

Requests for Production of Documents Nos. 23 and 24

These requests relate to Paragraphs 56 and 58 of the complaint, and seek all documents that relate to the allegations contained therein. The Plaintiffs objected, contending that the requests misstated the allegations. The Defendants are entitled to a code compliant response, and the Defendants have not justified their objections. The court finds that there is good cause to compel a further response.

Conclusion

Accordingly, and for the foregoing reasons the Plaintiffs shall provide further responses, within 20 days of this order, to Special Interrogatories Nos. 28 and 29, Form Interrogatory Nos. 2.3, 2.5, 2.6, 2.7, 7.2, 9.1, and 9.2, 17.1 as it applies to RFAs 1,3, and10,  Requests for the Admission of Genuineness of Documents K, & S, Requests for Admissions Nos. 8 and13, Requests for Production of Documents Nos. 23 and 24. Further the court finds that the Defendants are entitled to $2,620 in discovery sanctions.

The Defendants are to draft an order consistent with this ruling.





[1] Throughout the Opposition the Plaintiffs confusingly refer to themselves as both “plaintiffs” and “defendants.”

© 2014 Superior Court of Sonoma County