Apr 24, 2015

LAW & MOTION TENTATIVE RULINGS

TUESDAY, APRIL 21, 2015 - 8:30 a.m.

COURTROOM 19 –Judge Arthur 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 them 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, APRIL 20, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.


1.  SCV-256413 Serkes v. TD Service Company:

This is on calendar for the Plaintiff’s Motion for Preliminary Injunction. Plaintiff contends that he had an enforceable contract with the Defendants to modify the first mortgage on his home located at 20455 Hill Street, Monte Rio (Subject Property). In particular, the Plaintiff argues that he entered into a Trial Period Plan (TPP) with Defendant Seterus. The Plaintiff avers that he tendered payment under the TPP, however Defendant Seterus, instead of providing him relief under the TPP, is now attempting to foreclose on the Subject Property. The Plaintiff now seeks injunctive relief based on Defendant Seterus’s alleged violations of the Home Owner’s Bill of Rights (HOBR). The Plaintiff alleges that Defendant Seterus failed to discuss the full range of foreclosure alternatives in violation of CC § 2923.5, pursued a “dual-track” strategy by feigning a loan modification while pursuing foreclosure in violation of CC § 2923.6(c)-(d), failed to assign a single point of contact in violation of CC § 2923.7(a),  and that Defendant Seterus failed to issue a denial letter in compliance with CC § 2923.6(f). The Plaintiff seeks a preliminary injunction to keep the Defendants from selling the Subject Property pending a resolution of the action. Based on these allegations on December 1, 2014 the court issued a Temporary Restraining Order and OSC re Preliminary Injunction.

Defendant Seterus opposes arguing that the Plaintiff has failed to demonstrate a likelihood of success on the merits of his claims. The Defendant takes issue with the Plaintiff’s version of events regarding the TPP plan. The Defendant contends that the Plaintiff rejected the TPP plan, and then attempted to make an untimely payment after rejecting the terms of the proposed TPP. The Defendant argues that the Plaintiff’s allegation of a grace period that made his payment timely is not supported by the evidence. Further, the Defendant attacks each of the Plaintiff’s statutory claims. Further, the Defendant attacks causes of action for breach of the implied covenant of good faith and fair dealing, the claim made under BP § 17200, the breach of contract, and promissory estoppel claim. The Defendant further argues that it is inequitable to allow the Plaintiff to remain in the Subject Property, and that the Plaintiff should be required to post a bond and pay property taxes and insurance. The Defendant’s request for judicial notice is granted.

The purpose of a preliminary injunction is to maintain the status quo and prevent irreparable harm until the matter can be heard on the merits. (See Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal. App. 4th 1414, 1418.)  “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, supra at 1420; see also Butt v. State (1992) 4 Cal.4th 668, 677-678; Whyte v. Schlage Lock Co. (2002) 101 Cal. App. 4th 1443, 1449. )

                        1.         Irreparable Harm

An “irreparable injury is one for which either (1) its pecuniary value is not susceptible to monetary valuation, or (2) the item is so unique its loss deprives the possessor of intrinsic values not replaceable by money or in kind.” (Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal. App. 3d 454, 457.) Real property of any kind is usually deemed "unique" so that injury or loss cannot be compensated in damages. (See Civil Code §3387.) This is determinative if the real property is the party’s residence. (See Civil Code §3387.) In this case, the Plaintiff has established that the Property is his primary residence. 

2.         Prevailing on Merits

            In deciding whether to issue a preliminary injunction, the court weighs the likelihood of the plaintiff prevailing at trial and the relative harm that would result if a preliminary injunction does not issue. (King v. Meese (1997) 43 Cal.3d 1217, 1226. Necessarily, the court must weigh evidence and resolve any conflicts in making these determinations. (Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430.)

            Here, there are significant conflicts in the evidence regarding the Plaintiff’s position that his payment under the TPP was timely. The TPP letter, attached to the Complaint as Exhibit 2, plainly and clearly states that the first payment must be made by November 1, 2014—no grace period is mentioned anywhere in the document. That being said, the document directs the Plaintiff to “[r]eview the information below and contact us to get started, but act now—your offer expires December 2, 2014.” However, that expiration date refers to the “Mortgage Release Option” which is separate and apart from the TPP modification offer.

The Plaintiff insists, however, that he was verbally advised by the Defendant that his late TPP payment would be accepted. Indeed, the evidence suggests that the Plaintiff submitted the first TPP payment on November 13, 2014, and that the Defendant rejected that payment a week later—after foreclosure proceedings had commenced. It is clear that the Defendant accepted the TPP payment on November 13, 2014—this suggests that the TPP was in place. The evidence submitted by the Defendant, namely phone logs, is not suggestive of any other inference. The logs themselves are full of acronyms and jargon, and are cut off on the margin making them unintelligible. The declaration submitted by the Defendants was not made on personal knowledge of the phone conversations with the Plaintiff, but instead relies on the phone logs. The Plaintiff has submitted sufficient evidence to support his claim of dual tracking under CC § 2923.6.

Since the Plaintiff has presented evidence that he is likely to succeed on the merits of his claims, he is entitled to a preliminary injunction enjoining the Defendant from proceeding with the instant foreclosure. As a condition of the preliminary injunction, the Plaintiff shall post a bond in the amount of $25,000.  Further, the Plaintiff shall pay and keep all property taxes current on the Subject Property. The Plaintiff shall draft an order consistent with this ruling.

 

2.  MCV-190699 Creditors Trade Assoc. v. Bellmer:

This is on calendar for the Plaintiff’s motion to compel post-judgment discovery. The motion is denied. On March 18, 2008, the Plaintiff obtained an order compelling post-judgment discovery against this Defendant, and was awarded sanctions for nearly identical discovery. The Plaintiff is not entitled to successive orders to compel and successive awards of sanctions. The Plaintiff is now limited to enforcing the existing order. 

The Plaintiff shall draft an order consistent with this ruling.


3.  SCV-252068 Cotton v. Cotton:

Attorney Fees

This is on calendar for the Plaintiff/Cross-Defendant Marie Cotton’s (Plaintiff) motion for attorney fees and costs following her successful appeal on her anti-SLAPP motion. The Plaintiff seeks fees of $44,273.35, jointly and severally, against Defendants/Cross-Complainants Soul Cotton and Michael Gonzales (Defendants).

The Defendants oppose the motion, arguing that the motion is procedurally flawed, in that it fails to provide proper notice of the motion, and that the time records submitted in support of the motion are “untrustworthy and should not be utilized.” The Defendants contend that the Plaintiff is attempting to rely on a spreadsheet which generally details the number of hours, as opposed to the actual billing records. Further, the Defendants argue that the billings as presented excessive, contending that the Plaintiff’s appeal “was a copy of the motion filed in the Superior Court.” Further, the Defendants oppose the motion on the grounds that the Plaintiff’s attorney fails to detail her experience with SLAPP motions. Lastly, the Defendants contend that the fee should be reduced on account of their inability to pay a substantial award. The Defendants ask that the court stay enforcement of any award.

The Plaintiff’s request for judicial notice is granted, and the Defendants’ evidentiary objections are overruled.  

A party 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).) Further: “A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499; Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 138–139 [party that successfully defends on appeal trial court's grant of anti-SLAPP motion to strike may obtain award of costs, including attorney fees].) “[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.)

Any fee award analysis centers on the reasonability of the Plaintiff’s request—which in turn centers on fixing the lodestar number. Serrano III requires the trial court to first determine a “touchstone” or “lodestar” figure based on a “careful compilation of the time spent and reasonable hourly compensation for each attorney ... involved in the presentation of the case.” (Serrano v. Priest (1971) 20 Cal.3d 25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 625 (“Serrano IV”).)

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.)   Plaintiff’s attorney seeks an hourly rate of $395 per hour for herself, and a $125 per hour rate for her paralegal.  No evidence has been adduced in the opposition.  (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].) Instead, the Defendants argue that the Plaintiff’s attorney fails to detail her experience in anti-SLAPP motions, and points out that an attorney who can garner $395 per hour would not take a full 24 hours of billable time to draft and defend a fee motion. Notwithstanding the number of hours submitted, the court finds that a billing rate of $395 per hour is reasonable. This court is often called upon to determine reasonable hourly rates of attorneys who appear in front of it. To determine reasonable market value, courts must determine whether the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children’s Hosp. & Med. Ctr. v Bontá (2002) 97 Cal.App.4th 740, 783.) The court is persuaded that Ms. Freeman’s sought after rate of $395 per hour is a reasonable hourly rate. (Ketchum v Moses (2001) 24 Cal.4th 1122; PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, 1094.) There was no opposition to the $125 per hour rate for Ms. Freeman’s paralegal—and the court finds this hourly rate reasonable.

Time Spent

The touchstone of an award of attorney fees is reasonableness. Here, the Plaintiff claims 107.40 attorney hours and 1.7 paralegal hours for the developing, researching, drafting both the underlying motion, this attorney fees motion, and prosecuting the appeal. The Defendants contend that the billing records themselves are not credible evidence to support the number of hours expended.

In Serrano v Unruh (Serrano IV) [(1982) 32 Cal.3d 621, 639] the court held that prevailing counsel are entitled to compensation for all hours reasonably spent: "[A]bsent circumstances rendering the award unjust, fees recoverable … ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim." (See also Center for Biological Diversity, supra, 185 Cal.App.4th at 897 ["absent 'circumstances rendering the award unjust, an … award should ordinarily include compensation for all the hours reasonably spent.' "); Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446 [same].)  Note further that courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. (See, e.g., PLCM Group, supra, 22 Cal.4th at 1095 n4; see also Concepcion v. Amscan Holdings, Inc., supra, 223 Cal.App.4th at p. 1324, and authorities cited therein [“It is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method”].)

Here, the court is concerned that the number of hours expended for the fee motion is unreasonable. The Plaintiff seeks 24.9 hours at $395 for the fee motion—this represents $9,480, or nearly one quarter of the total fees sought.  Court will reduce the fee award with respect to the hours sought for the instant motion from 24.9 hours to 12 hours. The Defendants’ contention that the evidence submitted by the Plaintiff is somehow untrustworthy is unsupported and misplaced. As explained above, the fee proponent need not submit detailed time records, and the evidence submitted by the Plaintiff’s attorney is sufficient to support the number of hours. Further, the Defendants contention that the award should be reduced based on their inability to pay is unsupported by any citation to legal authority.

Conclusion

Accordingly, the court will award to the Plaintiff attorney fees of $37,895.50. The court notes that the motion also seeks costs in the aggregate amount of $3,076.40 for costs in bringing the underlying anti-SLAPP motion and for costs on appeal. The portion of the motion seeking costs was unopposed, and is therefore granted. The Plaintiff shall draft an order consistent with this ruling.

 

4.  SCV-255031 Batko v. Lithia of Santa Rosa:

This is on calendar for the Plaintiff’s motion to compel deposition of employees and the person most knowledgeable at Defendant Lithia of Santa Rosa, Inc. The Plaintiff contends that on November 12, 2014 he noticed the depositions of six of Defendant Lithia’s employees for December 2, 2014. The Plaintiff avers that the Defendant contacted the Plaintiff prior to the scheduled depositions in an attempt to reschedule. The Plaintiff contends that the Defendant never objected to the deposition notices, nor did the Defendant provide alternate dates for the depositions. This motion followed.

The Plaintiff argues that he is entitled to take the noticed depositions, and entitled to $2,047.50 in sanctions.   Defendant Lithia’s opposition to the motion does not dispute, nor address, the Plaintiff’s substantive claims, but rather argues that the Plaintiff is not entitled to discovery sanctions on the basis that Plaintiff failed to request sanctions in the notice of the motion. The Plaintiff replies, arguing that the body of the motion placed the Defendant on notice of the sanctions request.

CCP § 2023.040 (emphasis added) provides:
 

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

 

Here, the Plaintiff’s notice of motion fails to “identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” The Plaintiff’s omission precludes an award of sanctions as it is a necessary prerequisite to entitlement for sanctions.

Accordingly, since the Plaintiff’s motion to compel is not opposed on its merits, it is granted, and the Defendant shall produce the individuals for deposition within 10 days of this order. As discussed above, the Plaintiff’s request for sanctions is denied.  The Plaintiff shall draft an order consistent with this ruling.

           

5.  SCV-255908 Oxenberg v. United Parcel Service:

            The motion in this matter has been dropped by the moving party.

           

6.  SCV-256690 In Re A. Avila:

            This is on calendar for a Petition to Transfer of Structured Settlement Payments.  In 2006, Alejandro Avila, the proposed payee, entered into a settlement of a personal injury suit that entitled him to a series of five (5) structured payments totaling $125,899.58. Mr. Avila has agreed to sell his interest in the future structured settlement payment due on May 29, 2018 for $25,000.00 to the Petitioner for $15,100.  The payment amount reflects a discount rate of 16% percent.  Petitioner avers that the money will be used to defray loan payments.

The Petition, however, fails to satisfy the requirements of the applicable Insurance Code sections as it does not include Mr. Avila’s street address (Insurance Code § 10139.5).

If the Petitioner provides his street address at or before the hearing on the matter, the Petition for Approval of Transfer of Structured Settlement Payment Rights will be granted, otherwise it will be denied without prejudice.

 

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