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LAW & MOTION TENTATIVE RULINGS
TUESDAY, DECEMBER 3, 2013 - 8:30 a.m.
COURTROOM 19 – Judge Arthur A. Wick
3055 Cleveland Avenue, Santa Rosa, CA 95403
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1. MCV-227173; American Express v. Zabaneh:
Due to the Notice of Settlement Filed in this case, the hearing on Plaintiff's Motion for Summary Judgment has been dropped from calendar.
Plaintiff American Express Bank’s requests for judicial notice are granted. Plaintiff has satisfied its burden with respect to the causes of action for open book account and account stated. Defendant has not opposed this motion or offered conflicting evidence. As there are no disputes of material fact and Plaintiff is entitled to judgment as a matter of law, Plaintiff’s Motion for Summary Judgment is granted. Plaintiff is to draft an order consistent with this ruling.
2. SCV-253008; Wray v. Bank of America:
Plaintiffs obtained a $2.1 million loan from Washington Mutual (WaMu), secured by real property. Shortly thereafter, WaMu went into bankruptcy and the loan was transferred. Plaintiffs argue that the chain of custody in the sales and transfer of the loan are improper and unable to be determined, which makes it so the current holders of the debt, Defendants, cannot foreclose, do not have any interest in the property used to secure the loan, and do not have any right to payments under the loan. Plaintiffs have not paid off the balance of the loan. Plaintiffs filed a First Amended Complaint (“FAC”) after Defendants demurred to the original complaint. With respect to Plaintiffs’ FAC, this court sustained a demurrer with leave to amend based on Plaintiffs failure to allege tender. Now, with respect to the Second Amended Complaint (“SAC”), Plaintiffs have again failed to allege tender, and argue in opposition to Defendant JP Morgan Chases’ demurrer that tender does not need to be alleged in order to plead a cause of action for quiet title.
On July 22, 2013, the Plaintiffs filed a SAC alleging Quiet Title. The gravamen of the SAC is that Defendants Bank of America and JP Morgan Chase (“JPM”) have no legitimate right or title to the Property, and therefore Plaintiffs seek to quiet title against them. Plaintiffs allege that they have attempted to ascertain which Defendant holds an interest in the deed of trust that encumbers the Property—but have been unsuccessful.
Defendant JP Morgan has demurred to the SAC, claiming that the SAC fails to allege facts sufficient to state a cause of action. In particular, Defendant argues that the Plaintiffs have failed to allege tender of the indebtedness. In addition, Defendant argues that Plaintiffs have failed to allege a valid basis for title.
Defendant requests the court take judicial notice of: (1) a Deed of Trust recorded on September 29, 2005, showing that WaMu loaned Plaintiffs $2.1 million in exchange for a secured interest in Plaintiffs’ real property located in Glen Ellen; (2) a corporate assignment Deed of Trust recorded on July 12, 2012, showing WaMu’s transfer of Plaintiffs’ loan, through the Receiver FDIC, to Bank of America; (3) a notice of default and election to sell under Deed of Trust recorded on September 4, 2012; and (4) a Notice of Trustee’s Sale recorded on December 14, 2012, in the Official Records of Sonoma County.
The requests for judicial notice are granted pursuant to Evidence Code section 452, subdivisions (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. 198 Cal.App.4th 256, 264 [holding that Evid. Code, § 452, subds. (c) and (h) allow a court to take judicial notice of the existence and recordation of real property records, including deeds of trust.)
The Plaintiffs’ objections to Defendant’s requests for judicial notice are overruled. (See Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at pp. 264-265.) Indeed, the fact that JPM entered into a purchase-and-assumption agreement with the FDIC to assume certain assets of WaMu, has been judicially noticed by several courts. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743.)
Plaintiffs have opposed Defendant’s demurrer, arguing that the tender rule is not required when pleading a cause of action for quiet title. (See Code Civ. Proc., § 761.020.) Further, Plaintiffs argue that Lucas v. Sweet (1956) 47 Cal.2d 20, 22, held that “In this state it is established that a cause of action to quiet title may be pleaded in general terms. . . . The amended complaint alleges that the plaintiff is the owner in fee simple of the described property, that each defendant claims some interest in the property, that each claim is wrongful and that no defendant has any interest in the property. Allegations such as these are ordinarily sufficient to state a cause of action to quiet title.” Based on this, Plaintiff alleges that it need not allege tender to state a cause of action for quiet title against Defendant.
With respect to Plaintiffs’ claim that they need not allege tender to state a cause of action for quiet title against Defendant, based on the holding in Lucas, that case goes on to rule that the general allegations stated to be sufficient “are insufficient only if the rest of the complaint reveals a defect in the plaintiff’s title.” (Ibid.) Black’s Law Dictionary defines defective title as “A title that cannot legally convey the property to which it applies, usu. because of some conflicting claim to that property.” (Black’s Law Dictionary, (9th edition, 2009) Title.) Here, there is a defect in the plaintiff’s title, as evidenced by Defendants’ claims of interest to the property Plaintiff seeks to have quieted.
While Lucas does not state what additional pleading is required when there is a defect in the title, it is found elsewhere that the additional allegation to be pled is tender. This is because numerous cases hold that “tender” is required to win a cause of action for quiet title on the merits. (See Miller v Provost (1994) 26 Cal. App. 4th 1703, 1707 (tender required in a quiet title action against a lender); Aquilar v. Bocci (1974) 39 Cal.App.3d 475, 477 [trustor is unable to quiet title without discharging his debt].) In addition, federal authority explicitly supports this. (Kelley v. Mortgage Registration Systems, Inc., (N.D. Cal 2009) 642 F.Supp.2d 1048, 1057 [to state a claim for quiet title, plaintiffs must show that “they are the rightful owners of the property, i.e., that they have satisfied their obligations under the Deed of Trust].)
As evidenced by the Deed of Trust, Plaintiffs owe a debt on the Subject Property. (RJN Exh. 1.) Plaintiffs have failed to allege that either a full or unconditional tender of the amount owing under the Deed of Trust has been made or that such payment will be made as is required by California law instead asserting that “upon information and belief, Plaintiffs maintain that all obligations under the Note have been fully satisfied or are no longer enforceable.” (SAC ¶32) This allegation is devoid of any specific facts to support their claim that Plaintiffs have repaid their loan, or that they have any reason to believe that the loan has been fully repaid. Accordingly, without tendering to Defendant the outstanding amount owed, Plaintiffs simply cannot obtain cancellation of the Deed of Trust, absolution of their unpaid debt, and free and clear title to the Subject Property.
Accordingly, the demurrer to the SAC is sustained, with leave to amend.
Defendant is to draft an order consistent with this ruling.
3. SCV-253874; Fly Fishing Outfitters v. Vintage Airport:
This is a dispute between two adjoining land owners, the Plaintiff FFO, and the Defendant Vintage Airport, LLC. The Subject Property involves a portion of the Plaintiff’s property which adjoins the Defendant’s south boundary and a north-south runway. The area in question was, in the past, used as part of the runway, but as part of a 1992 settlement agreement and stipulated judgment the runway was demolished. However, the Plaintiff allowed the Defendant emergency overrun use of the property—permission that was rescinded. Now, the Plaintiff has filed a quiet title action seeking judgment that the Defendant has no right to the Subject Property.
This is on calendar for the Defendant’s Demurrer, and the Plaintiff’s motion for sanctions.
The gravamen of the Defendant’s demurrer is that the Plaintiff has not joined all indispensable parties to the action. In particular, the Defendant argues that the Plaintiff’s complaint for quieting title is defective in that it fails to name the County of Sonoma and the Airport Land Use Commission. The Defendant contends that the Plaintiff is seeking to extinguish all third party rights to the Subject Property, and that as a result, the County (and the Board of Supervisors) and ALUC rights are potentially affected. The Defendant argues that the Subject Property is subject to certain restrictions, including Runway Protection Zones, Inner Safety Zones, Inner Turning Zones, and Sideline Safety Zones—restrictions that, the Defendant argues, would be affected by the instant lawsuit.
The Plaintiff opposes the demurrer, arguing that it is procedurally defective, in that it relies on evidence outside of the Complaint, and that on the merits, neither the County nor the ALUC are indispensable parties. The Plaintiff takes issue with the Defendant’s reliance on allegations that do not appear in the Complaint, and the argument that the County and ALUC are indispensable parties, as none of the facts, as recited by the Defendant, actually appear in the Complaint. The Plaintiff argues that the FCC’s mandate preempts the county and state interests elucidated by the Defendant.
The parties’ respective requests for judicial notice are denied. Further, the court will not and did not consider Mr. Peterson’s testimony or the evidence attached to his declaration, or the testimony of Mr. Zeldin or the evidence attached to his declaration. This is on calendar for a demurrer—not an evidentiary hearing.
Here, the Defendant’s arguments are unpersuasive and procedurally flawed. First a hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) The Defendant’s entire argument is premised on “facts” that must be culled from documents and evidence that do not appear on the face of the Complaint. The Complaint seeks to quiet title in favor of the Plaintiff against the Defendant because the Defendant has asserted a right to use the Plaintiff’s property, and nothing more.
Further, and tellingly, the Defendant does not cite any controlling legal authority for the position that the County, or the ALUC, are indispensable or necessary parties to what is pled as a dispute between adjoining land owners. The cases cited by the Defendant in its briefs do not support the position that a regulatory board is an indispensable party to a neighbor dispute. ( See e.g. Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495 [holding that a real estate developer was an indispensable party to a challenge to a zooming permit allowing the developer to develop certain property].)
It is axiomatic that “[a] person is an indispensable party [only] when the judgment to be rendered necessarily must affect his rights.” ( Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 262 [emphasis added].) Whether a party qualifies as indispensable is ordinarily treated as a matter where the trial court has a large measure of discretion in weighing factors of practical realities and other considerations. (Kaczorowski v. Mendocino County Board of Supervisors (App. 1 Dist. 2001) 106 Cal.Rptr.2d 14.
The Defendant never answers the basic question: How would the proposed indispensable parties’ respective rights be affected? The Defendant provides speculation about what the Defendant may have to do if it cannot claim a right to use the Subject Property. Indeed, the Defendant speculates as to what the ALUC and the County may have to do—but nowhere does the Defendant state what rights of the proposed indispensable parties are in jeopardy via the instant lawsuit. Importantly, the Plaintiff is not challenging any act of the County or ALUC in this lawsuit. Here, the safety zones discussed by the Defendant rely on the assumption that the Defendant has permission to use the Subject Property—an assumption that the Complaint seeks to challenge. It seems that the only rights at issue are between the Plaintiff and the Defendant—to be more precise, whether the Plaintiff can exclude the Defendant from using the Subject Property.
As pointed out by the Plaintiff, if the Defendant so strongly believes that the County and the ALUC are necessary parties, there is no barrier to it adding them—but the failure of the Plaintiff to name these parties does not warrant sustaining this demurrer.
Moreover, the Defendant also demurs to the Second Cause of Action for Declaratory Relief, but relies on exactly the same arguments; as such that demurrer is overruled as well.
Also on calendar is the Plaintiff’s motion for sanctions on the grounds that the demurrer is procedurally and substantively “improper.” The Defendant opposes, arguing that the sanctions motion is “premature” and an attempt to “color” the demurrer.
To recover sanctions for the signing of an improper pleading, the movant need not show subjective bad faith, but instead that the challenged conduct was objectively unreasonable. (See SASCO v. Rosendin Elec., Inc. (App. 4 Dist. 2012) 143 Cal.Rptr.3d 828, 834-835.)
Here, the Plaintiff has satisfied the procedural hoops for filing a motion for sanctions; however, the challenged pleading was not objectively unreasonable.
Accordingly, the demurrer is overruled and the motion for sanctions is denied. The Plaintiff is to draft an order consistent with this ruling.
4. MCV-223808; Ngirmidol v. Triemer:
All counsel are to appear. All counsel may appear by telephone via CourtCall.
5. SCV-248629; Cameron v. Vintage Greens:
Attorney Rachel Brilliant’s motion to be relieved as counsel fails for a number of reasons. First, the declaration is not on form MC-052, as required by California Rules of Court, rule 3.1362(c): “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney’s Motion to be Relieved as Counsel—Civil (form MC-052).” (First italics added, second italics in original.)
Second, the proof of service does not reflect that a proposed order was served on the client. (Cal. Rules of Court, rule 3.1362(d) [“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case”].) However, the Brilliant Declaration, filed instead of the MC-052 declaration, conflicts with the proof of service because it states that a proposed order was served on the client. (Brilliant Declaration, ¶ 5.) This inconsistency is troubling because it is not known how Ms. Brilliant could declare under penalty of perjury that a proposed order was served on the client when the proof of service is signed under penalty of perjury by Meuy S. Saechao, and reflects that (1) the notice of motion and (2) the motion to be relieved as counsel were the only documents served on the client.
Third, the declaration does not state facts showing that the service address is the current business address. “If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that . . . The service address is the current residence or business address of the client.” (Cal. Rules of Court, rule 3.1362 (d).) The Brilliant Declaration states, “The motion and accompanying documents were mailed to my client’s current business address: P.O. Box 470, Fulton, CA 95439. A true and correct copy of MORRIS HEATING’s current Contractor’s License Detail obtained from the California Contractors State License Board is attached hereto as Exhibit C.” (Brilliant Declaration, ¶ 6.) However, there was no Exhibit C attached to the moving papers.
The motion to be relieved as counsel is denied without prejudice.
6. SCV-248922; Sax v. Benedetti:
This is back on calendar after being continued from October 15, 2013 hearing on the Motion for Reconsideration. All parties agree that the original motion to enter judgment under CCP § 664.6 was not served (until October 15, 2013) on the conservator for Defendant Benedetti, Mr. Bryan Lindelli. As such, Defendant Benedetti was not aware of the motion, and was not afforded an adequate opportunity to oppose that motion.
Accordingly, the motion for reconsideration is granted, and the court’s June 4, 2013, order granting the Plaintiff’s motion to enter judgment pursuant to CCP § 664.6 is stricken in its entirety. Further, the court will place the Plaintiff’s original motion to enter judgment pursuant to CCP § 664.6 (which the conservator for Defendant Benedetti has now been served), on the January 14, 2014’s law and motion calendar. Deadlines for any opposition (or reply) briefs will be governed by code.
The parties are to appear to discuss the proposed resolution of this matter.
7. SCV-251043; Bank of New York Mellon v. Fields:
This matter was referred to the discovery facilitator program and Mr. James DeMartini was appointed as the discovery facilitator. The court, on its own motion, will continue the matter to January 14, 2014 at 8:30 am to allow for the facilitation process to be completed.
8. SCV-252780; Mendoza v. Albers:
Attorney Shapiro’s motion to be relieved as counsel is Granted. California Rules of Court, rule 3.1362 has been satisfied in full.
Counsel is to present the court with a proposed order.
9. SCV-253673; Emmons v. Casanovas:
On May 15, 2013, the Plaintiffs filed a five cause of action Complaint against the Defendant, alleging that the Defendant was creating a nuisance by cultivating marijuana in his unit. The Plaintiffs argue that the Defendant’s alleged cultivation created noxious smells, and annoying, loud noises throughout the evening. Eventually, according to the Plaintiffs, they were forced to report this activity to the police, PMRD, and the HOA. The Plaintiffs even filed a small claims case in an attempt to abate the alleged nuisance.
In response to the Complaint, the Defendant filed a Cross-Complaint, alleging indemnification, apportionment, nuisance, IIED, and invasion of privacy. The Defendant alleges that the Plaintiffs actions, to wit, reporting the alleged marijuana cultivation to the police, PMRD, and the HOA, were false, known to be false and designed to inflict injury on Defendant/Cross-Complainant. The Defendant alleges that each agency that investigated concluded that the Defendant was not cultivating marijuana in his residence. The Defendant argues that the Plaintiffs’’ acts were taken in bad faith, in order to annoy him, and caused him emotional distress.
In response to the Cross-Complaint, the Plaintiffs filed an anti-SLAPP motion, arguing that the Defendant’s Cross-Complaint is a thinly veiled attempt to retaliate for Plaintiff’s lawful activities, and should be stricken in its entirety. On October 7, 2013, the court granted the Plaintiffs motion to strike, and this motion for attorney fees followed.
By way of the instant motion, the Plaintiffs seek $41,431.95 in attorney fees for research, drafting, arguing and winning their anti-SLAPP motion. The Defendant opposes, arguing that the attorney fees request does not represent “reasonable attorney fees.” The Defendant contends that the 150 hours claimed for a 10 page straightforward anti-SLAPP motion is not reasonable. The Defendant argues that the Plaintiff is seeking fees for work that was not related to the anti-SLAPP motion (e.g. work on discovery, settlement letter and “stalking concerns”). The Defendant also seeks a stay on the attorney fees motions pending the outcome of an appeal.
Here, Plaintiff’s counsel is seeking $300 per hour for Mr. Lewis and Ms. Beletsis, and $150 for Ms. Rodgers. Counsel's own billing rates carry some weight of reasonableness. (See, e.g., Russell v Foglio (2008) 160 Cal.App.4th 653, 661.) The Plaintiff’s attorneys have submitted evidence of the hourly rates, their education and experience. (See Center for Biological Diversity v County of San Bernardino (Hawarden Dev. Co.) (2010) 188 Cal.App.4th 603, 620.) The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. ( Ketchum v. Moses (2001) 24 Cal.4th 1122; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094.) 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.) Reviewing the declarations, and the evidence submitted in support thereof, the court finds that the claimed hourly rates are reasonable, and represent the market rate for these attorneys.
Plaintiff’s counsel claim nearly 150 hours of work for this single motion. 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).)
Here, the court does not believe that the claimed number of hours for this single motion are reasonable. Plaintiff’s counsel find themselves in a catch-22, they claim to have significant amount of experience in prosecuting anti-SLAPP motions, but then ask for fees that exceed all other requests in the court’s experience—indeed, the instant application doubles the most recent motions on attorney fees following successful anti-SLAPP motions that had similar complexity.
Accordingly, after a thorough review of the docket, underlying anti-SLAPP moving papers, opposition and reply—and the briefs and time records in this motion—the court will award the Plaintiff 82.5 hours of attorney time at $300 per hour, for a total award of $24,700.00. The court will decline to stay this motion pending appeal.
The Plaintiff is to draft an order consistent with this ruling.