Tentative Rulings for November 13, 2019 Departments 403 ......2019/11/13 · 1 Tentative Rulings for November 13, 2019 Departments 403, 501, 502, 503 There are no tentative rulings

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Tentative Rulings for November 13, 2019

Departments 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

19CECG02948 Transport Funding, LLC, v. Bolanos, et al. (Dept. 502)

19CECG02340 Shefco, Inc. v. Yasuda et al. (Dept. 503)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(27) Tentative Ruling

Re: Snowden v. Ocwen Loan Servicing

Superior Court Case No. 19CECG02333

Hearing Date: November 13, 2019 (Dept. 403)

Motions: PHH MORTGAGE CORPORATION, successor to Ocwen Loan

Servicing’s Demurrer to the Complaint; Motion to strike portions

from the Complaint

Tentative Ruling:

To grant the Request for Judicial Notice; to sustain the demurrer; and to grant the

motion to strike. Leave to amend is granted. Plaintiff is granted 20 days’ leave to file

the First Amended Complaint. The time in which the complaint can be amended will

run from service by the clerk of the minute order. New allegations in the First Amended

Complaint are to be set in boldface type.

Explanation:

1. Judicial Notice

The court takes judicial notice of the recordation of the requested documents.

(Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th

1106, 1117.)

2. Demurrer

The function of a demurrer is to test the sufficiency of a plaintiff’s pleading by

raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) The test is

whether plaintiff has succeeded in stating a cause of action; the court does not

concern itself with the issue of plaintiff’s possible difficulty or inability in proving the

allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.)

First Cause of Action for Declaratory Relief

An actual and present controversy is a “fundamental” prerequisite for

declaratory relief. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [“The

fundamental basis of declaratory relief is the existence of an actual, present

controversy over a proper subject.”].) “Facts and not conclusions of law must be

pleaded which show a controversy of concrete actuality as opposed to one which is

merely academic or hypothetical . . . .” (Jessin v. County of Shasta (1969) 274

Cal.App.2d 737, 743-744.)

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Here, the complaint alleges plaintiff James Snowden (“James”) “started working

on a loan modification in the summer of 2017.” However, the Mortgage Assistance

Offer attached to the Complaint was only addressed to Leola Snowden (“Leola”) and

not James. To the extent that the Complaint attempts to set forth an alleged contract

between James and the defendant, the Complaint fails to allege whether James

returned the required acceptance form. Further, the Complaint also fails to allege

whether the trial payments were paid by their respective due dates. Also, there are no

allegations that plaintiff Mayra Snowden was a party to any of the alleged modification

efforts. Essentially, there do not appear to be facts of an actual existing controversy

sufficient to support a declaratory relief cause of action. Consequently, the demurrer

to the declaratory relief cause of action is sustained, with leave to amend.

Second Cause of Action for Breach of Contract

“[T]he elements of a cause of action for breach of contract are (1) the existence

of the contract, (2) plaintiff's performance or excuse for nonperformance, (3)

defendant's breach, and (4) the resulting damages to the plaintiff. [Citation.]” (Oasis

West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In the context of mortgage

modification trial payment plans, the plaintiffs must allege performance of conditions

precedent. (Bushell v. JPMorgan Chase Bank, N.A., (2013) 220 Cal.App.4th 915, 928.)

Here, the Complaint alleges James “started working on a loan modification in

the summer of 2017.” However, the Mortgage Assistance Offer attached to the

Complaint was only addressed to Leola and not James. To the extent that the

Complaint attempts to set forth an alleged contract between James and the

defendant, the Complaint fails to allege whether James returned the required

acceptance form. Further, the Complaint also fails to allege whether the trial

payments were paid by their respective due dates. Also, there are no allegations that

plaintiff Mayra Snowden was a party to any of the alleged modification efforts.

Essentially, there are insufficient facts to support a breach of contract cause of action.

Consequently, the demurrer to the breach of contract cause of action is sustained,

with leave to amend.

Third Cause of Action for Negligence

To establish a cause of action for negligence, the complaint must allege, “(1) the

defendant owed the plaintiff a duty of care, (2) the defendant breached that duty,

and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v.

BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

In this case, although the Complaint alleges James started working on a loan

modification in the summer of 2017, there is no allegation that he specifically was

granted the loan modification offer. Rather, the Mortgage Assistance Offer dated

1/9/2018 was solely addressed to Leola.

Additionally, to the extent the complaint attempts to allege that the loan

modification offer was untimely, there are no specific allegations as to when the offer

was received. (See Complaint, ¶14 alleging the loan modification letter was not

received until 2/6/18 – a date after the initial trial payment was due.) Accordingly, the

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negligence cause of action fails to allege sufficient facts demonstrating the existence

of a duty and breach of that duty. The demurrer to the negligence cause of action is

sustained, with leave to amend.

Fourth Cause of Action for Misrepresentation

A fraud cause of action requires the plaintiff to allege: “(1) a misrepresentation

(false representation, concealment, or nondisclosure); (2) knowledge of falsity (or

scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5)

resulting damage.” (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 990.)

Generally, there is a heightened pleading standard for fraud which requires “‘

“pleading facts which “show how, when, where, to whom, and by what means the

representations were tendered.” ’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Typically, where the allegations are against a corporate employer the burden is even

greater and, “the plaintiff must ‘allege the names of the persons who made the

allegedly fraudulent representations, their authority to speak, to whom they spoke,

what they said or wrote, and when it was said or written.” ’ ” ( Hamilton v. Greenwich

Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614, quoting Lazar, at p. 645; Tarmann

v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Here, although the Complaint alleges James started working on the loan

modification in the summer of 2017, no specific representations are alleged.

Accordingly, the cause of action is insufficiently pled. The demurrer the cause of action

is sustained, with leave to amend.

Fifth Cause of Action for Wrongful Foreclosure

Essentially, “[t]he elements of a cause of action to set aside a foreclosure sale

are (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale

of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party

attacking the sale suffered prejudice or harm; and (3) the trustor or mortgagor tenders

the amount of the secured indebtedness or was excused from tendering.” (West v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 800; see also Yvanova v. New

Centrury Mortgage Corp. (2016) [“A beneficiary or trustee under a deed of trust who

conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to

the borrower for wrongful foreclosure.”].)

However, mere technical violations and conclusory assertion are “inadequate to

survive demurrer.” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th

943, 951-952.)

Here, the complaint alleges the foreclosure was wrongful because the loan was

sold without notice to the plaintiff and there was insufficient contact under Civil Code §

2923.5. However, notice of the loan transfer was not required under the deed of trust

(see Defendant’s RJN 6 §19) and the complaint itself acknowledges that one of the

plaintiffs had been working on a loan modification as early as the summer of 2017.

Additionally, the Complaint does not indicate tender. Accordingly, the complaint fails

to plead adequate facts to support a cause of action for wrongful foreclosure.

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Sixth Cause of Action for Setting Aside Foreclosure

Here, the complaint alleges, “[t]he procedure for foreclosure was not fair and

regular. There were irregularities in the foreclosure on account of which its validity is

challenged herein.” (Complaint, ¶ 37.) However, other than this conclusory allegation,

there are specific facts of irregularity. Rather, the Complaint alleges James “started

working on a loan modification in the summer of 2017” (Complaint, ¶ 14), yet fails to

allege whether James returned the required acceptance form. Further, the Complaint

also fails to allege whether the trial payments were paid by their respective due dates.

Additionally, there is no allegation that the plaintiff is willing to tender the amount of

indebtedness or whether any of the exceptions to the tender requirement apply.

Essentially, there do not appear to be facts sufficient to establish the elemental

requirement of procedural irregularity necessary to set forth a cause of action for

setting aside the foreclosure. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104;

West v. JPMorgan Chase, Bank, N.A. (2013) 214 Cal.App.4th 780, 800.) The demurrer is

sustained, with leave to amend.

Seventh Cause of Action for Unjust Enrichment

Here, the complaint states that the borrowers defaulted on the loan (Complaint,

¶43), an event which the associated deed of trust stated would lead to foreclosure.

(RJN Ex. 6.) Accordingly, there does not appear to be any basis for an assertion that

the defendants had been unjustly enriched. Moreover, it appears that unjust

enrichment is not a viable stand-alone cause of action. (Melchior v. New Line

Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Accordingly, the demurrer to the

unjust enrichment cause of action is sustained, with leave to amend.

Eighth Cause of Action for Breach of Covenant of Good Faith and Fair Dealing

Here, as discussed above in the breach of contract cause of action explanation,

the Complaint alleges James “started working on a loan modification in the summer of

2017.” (Complaint, ¶ 14.) However, the Mortgage Assistance Offer attached to the

Complaint was only addressed to Leola and not James. To the extent that the

Complaint attempts to set forth an alleged contract between James and the

defendant, the Complaint fails to allege whether James returned the required

acceptance form. Further, the Complaint also fails to allege whether the trial payments

were paid by their respective due dates. Essentially, there doesn’t appear to be facts

sufficient to neither support a breach of contract cause of action nor a breach of the

covenant of good faith and fair dealing associated with the purported contract.

Consequently, the demurrer to the breach of the covenant of good faith and fair

dealing cause of action is sustained, with leave to amend.

Ninth Cause of Action for Cancellation of Instruments

Here, the plaintiffs have not alleged willingness to tender the amount of

indebtedness which is generally required for cancellation. (see Fleming v. Kagan (1961)

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189 Cal.App.2d 791, 796.) Accordingly, the demurrer to the ninth cause of action for

cancellation is sustained, with leave to amend.

Tenth Cause of Action for Unfair Business Practices

Essentially, “[a] plaintiff alleging unfair business practices under these statutes

[UCL] must state with reasonable particularity the facts supporting the statutory

elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th

612, 619.)

Here, as discussed above, the causes of action are inadequately pled and thus,

there is no predicate for the UCL claim. The demurrer is sustained, with leave to amend.

Eleventh Cause of Action for Quiet Title

Here, as discussed above in the explanation for cancellation of instruments

cause of action, the plaintiffs have not alleged willingness to satisfy the tender

requirement. (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.) Accordingly, the

demurrer to the eleventh cause of action for quiet title is sustained, with leave to

amend.

3. Motion to Strike

Punitive Damages

“ . . . [p]unitive damages are recoverable in those fraud actions involving

intentional, but not negligent, misrepresentations.” (Alliance Mortgage Co. v. Rothwell

(1995) 10 Cal.4th 1226, 1241, citing, Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773,

790,; Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 799.

Here, as noted above, there are no specific allegations of intentional fraud.

Accordingly, the punitive damages claim is subject to a motion to strike. (CCP §

436(a).) CCP § 431.10(b).) Consequently, the motion to strike the requests for punitive

damages is granted.

Attorney Fees

Here, the Tenth Cause of Action asserted under the auspices of B&P Code §

17200 includes a request for attorney fees. However, that cause of action, as discussed

above, is inadequately pled. Moreover, attorney fees are not recoverable in B&P Code

§ 17200 actions. (See America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, fn.

10; Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97 fn. 7.) The motion

is to strike the attorney fees provisions is granted, with leave to amend.

Disgorgement

The cause of action for unjust enrichment contains a request for an order

“disgorging all profits, benefits, and other compensation obtained by the Foreclosing

Defendants from their wrongful conduct.” (Complaint, ¶ 41.) However, as discussed

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above, this cause of action is inadequately pled. The motion to strike the portion of the

Complaint seeking disgorgement is granted, with leave to amend.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

written order is necessary. The minute order adopting this tentative ruling will serve as

the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 11/12/19 .

(Judge’s initials) (Date)

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Re: Huff v. Sierra Meadows Senior Living, LLC

Case No. 18CECG03644


Motion: By proposed intervenor Certain Underwriters at Lloyd’s London on

behalf of Defendant Sierra Meadows Senior Living, LLC to

intervene.

Tentative Ruling:

To continue the hearing to 3:30 p.m. on Tuesday, November 26, 2019. Proposed

intervenor is to provide some evidence no later than November 20, 2019 that

defendant Sierra Meadows Senior Living, LLC is an insured under a policy issued by the

proposed intervenor. Alternatively, proposed intervenor may request oral argument

and present such evidence at the hearing.

Explanation:

California Code of Civil Procedure §387, subdivision (a) states, in pertinent part:

Upon timely application, any person, who has an interest in the matter in

litigation, or in the success of either of the parties, or an interest against

both, may intervene in the action or proceeding. An intervention takes

place when a third person is permitted to become a party to an action or

proceeding between other persons, either by joining the plaintiff in

claiming what is sought by the complaint, or by uniting with the

defendant in resisting the claims of the plaintiff, or by demanding

anything adversely to both the plaintiff and the defendant, and is made

by complaint, setting forth the grounds upon which the intervention rests,

filed by leave of the court and served upon the parties to the action or

proceeding who have not appeared in the same manner as upon the

commencement of an original action, and upon the attorneys of the

parties who have appeared, or upon the party if he has appeared

without an attorney.

It appears that the proposed party-in-intervention may have a right to intervene

in this matter. (Code of Civ.Proc. §387, subd.(b).) The moving party has asserted that it

is the insurer for defendant Sierra Meadows Senior Living, which is alleged to be a

suspended corporation. As a result, litigation in the moving party’s absence “may as a

practical matter impair or impede that person’s ability to protect that interest.” (Id.)

Furthermore, even if intervention of right were not available, the proposed

intervenor could participate under permissive intervention. (Kuperstein v. Superior Court

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(1988) 204 Cal.App.3d 598, 600.) The proposed intervenor appears to be able to show

that it has a direct interest in the litigation and that participating will not substantially

enlarge the issues, and that intervention will not tread on the rights of other parties. (Id.)

However, while the moving party has provided documentation that Sierra

Meadows Senior Living, LLC is a suspended corporation, it has provided no evidence

showing that there is an insurance policy that covers this case. The court will therefore

continue the hearing to allow moving party to provide such documentation.

The hearing is continued to 3:30 p.m. on Tuesday, November 26, 2019. Proposed

intervenor is to provide some evidence that defendant Sierra Meadows Senior Living,

LLC is an insured under a policy issued by the proposed intervenor no later than

November 20, 2019. Alternatively, proposed intervenor may request oral argument and

present such evidence at the hearing.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 11/12/19 .


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(2)

Tentative Ruling

Re: In re Bianca Sweidy


Hearing Date: None.

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Orders signed. Hearing off calendar.

Pursuant to Code of Civil Procedure section 1019.5(a), no further written order is

necessary. The minute order adopting this tentative ruling will serve as the order of the

court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 11/12/2019 .


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(20)

Tentative Ruling

Re: Hernandez v. Sunshine Raisin Corp., et al.



Motion: Approve PAGA Settlement, Attorneys’ Fees

Tentative Ruling:

To deny the plaintiff’s motions to approve the PAGA settlement, and for

attorneys’ fees and costs, without prejudice.

Explanation:

Labor Code section 2699, subdivision (a), the Private Attorneys General Act of

2004 (“PAGA”), provides,

Notwithstanding any other provision of law, any provision of this code that

provides for a civil penalty to be assessed and collected by the Labor and

Workforce Development Agency or any of its departments, divisions,

commissions, boards, agencies, or employees, for a violation of this code,

may, as an alternative, be recovered through a civil action brought by an

aggrieved employee on behalf of himself or herself and other current or

former employees pursuant to the procedures specified in Section 2699.3.

In addition, “The superior court shall review and approve any settlement of any

civil action filed pursuant to this part. The proposed settlement shall be submitted to the

agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd.

(i)(2).)

There are very few cases discussing section 2699, and none discuss the standards

under which a court is to assess a settlement. Nor has the Legislature provided any

structure or standards for making the assessment. Published California case law has not

done so either. However, the common practice when ruling on PAGA settlements

seems to be to follow existing law on class action settlements.

Fairness of the Settlement

“[A court must be] provided with basic information about the nature and

magnitude of the claims in question and the basis for concluding that the consideration

being paid for the release of those claims represents a reasonable compromise.”

(Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 133.)

“The well-recognized factors that the trial court should consider in evaluating the

reasonableness of a class action settlement agreement include ‘the strength of

plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the

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risk of maintaining class action status through trial, the amount offered in settlement, the

extent of discovery completed and stage of the proceedings, the experience and

views of counsel, the presence of a governmental participant, and the reaction of the

class members to the proposed settlement.’ This list ‘is not exhaustive and should be

tailored to each case.’ Relying on an earlier edition of Newberg on Class Actions, the

court in Dunk asserted that ‘a presumption of fairness exists where: (1) the settlement is

reached through arm's-length bargaining; (2) investigation and discovery are sufficient

to allow counsel and the court to act intelligently; (3) counsel is experienced in similar

litigation; and (4) the percentage of objectors is small.’” (Kullar, supra, at p. 128,

internal citations omitted.)

While plaintiff makes a showing that the settlement was reached through arm’s-

length bargaining at mediation, with the parties both accepting the mediator’s

proposed settlement, insufficient information is provided to determine the fairness of the

settlement.

Plaintiff alleges a variety of statutory violations, and seeks statutory penalties in

connection with each. The FAC seeks statutory penalties as follows:

a. Penalties under Labor Code § 558 in the amount of $50 for each underpaid

aggrieved employee for each pay period the aggrieved employee was

underpaid in addition to an amount sufficient to recover underpaid wages,

and $100 for each subsequent violation for each underpaid employee for

each pay period for which the employee was underpaid in addition to an

amount sufficient to recover underpaid wages;

b. Penalties under Labor Code § 226.3 in the amount of $250 for each

aggrieved employee per pay period for each violation, and $1,000 for each

aggrieved employee per pay period for each subsequent violation;

c. Penalties under Labor Code § 256 for any aggrieved employee who was

discharged or quit, and was not paid all earned wages at termination in

accordance with Labor Code §§ 201 and 202, in the amount of a civil

penalty of one day of pay, at the same rate, for each day that he or she was

paid late, until payment was/is made, up to a maximum of thirty (30) days;

d. For all violations of Labor Code provisions for which a civil penalty is not

specifically provided, including violations of Labor Code §§ 226.7, 1194, 1197,

and 2802, penalties under Labor Code § 2699(f), in the amount of $100 for

each aggrieved employee per pay period for the initial violation and $200 for

each aggrieved employee per pay period for each subsequent violation.

(FAC ¶ 37.)

Discussing the valuation of the claims, plaintiff’s counsel states in his declaration

that he calculated the maximum penalties and then determined an appropriate range

of recovery for settlement purposes. Counsel then vaguely references some defenses

that might be raised, but does not really discuss the strengths of weaknesses of the

claims for which penalties are sought. (See, e.g., Boucher Dec. ¶ 25-27.)

Counsel does not provide to the court either his calculation of the maximum

penalties or state what he determined to be an appropriate range of recovery for

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settlement purposes. Nor is sufficient information provided for the court to make these

calculations.

The court’s estimation of maximum potential penalties appears astronomically

high in comparison to the gross settlement amount. By way of example, looking at the

PAGA penalties for unpaid wages, Labor Code § 2699(f)(2) provides that the civil

penalty is $100 for each aggrieved employee per pay period for the initial violation and

$200 for each aggrieved employee per pay period for each subsequent violation.

Assuming the aggrieved employees were paid bi-weekly and worked each pay period

through the “PAGA Period” starting March 21, 2015, there were around 107 pay periods,

and also assuming a violation each pay period as to each aggrieved employee (of

which there are 2,404, see Boucher Dec. ¶ 14), then the maximum penalties appear to

total $51,205,200. The maximum penalty for the first pay period would be $240,400

($100 x 2,404 employees). The maximum penalty for the other 106 pay periods would

be $50,964,800 ($200 x 2,404 employees = $480,800 x 106 pay periods = $50,964,800).

The gross $650,000 settlement is only 0.012% of the maximum potential penalty for this

one alleged violation. The court realizes that the assumptions that went into this

valuation are most certainly not accurate, but these are the assumptions the court must

make without more information.

Plaintiff must provide more detail on the valuation of each alleged violation,

including the average number of pay periods worked per aggrieved employee, an

estimation of the number and frequency of the statutory violations, and a clearer

assessment of the strengths and weaknesses of plaintiff’s claims as to each alleged

violation. In short, show your math.

Attorney’s Fees

“Any employee who prevails in any action shall be entitled to an award of

reasonable attorney’s fees and costs.” (Lab. Code § 2699, subd. (g).)

Plaintiff’s counsel seeks an order awarding fees amounting to one-third of the

gross settlement. While the court has discretion to make a fee award based on a

percentage of the settlement, the court is not required to do so. It can also use the

lodestar method to calculate fees, or it can order plaintiff’s counsel to provide enough

information to double check the reasonableness of a percentage fee award using a

lodestar-style analysis. (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 503-504.)

Based on the time spent on this matter, and the hourly rates of counsel, based

on a, fees amounting to one-third of the $650,000 gross settlement would be

reasonable.

Incentive

Pursuant to the Settlement Agreement, plaintiff seeks an incentive award of

$7,500. Such enhanced awards are commonly awarded to plaintiffs in class actions,

but this is not a class action. There is no provision in PAGA that permits the LWDA to

receive an incentive payment, thus there is no basis in law for allow plaintiff to obtain

one. Plaintiff cites to no authority for the requested enhancement.

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Pursuant to Cal. Rules of Court, Rule 3.1312 and Code Civ. Proc. § 1019.5(a), no

further written order is necessary. The minute order adopting this tentative ruling will

serve as the order of the court and service by the clerk will constitute notice of the

order.

Tentative Ruling


(Judge’s Initials) (Date)

15

(30)

Tentative Ruling

Re: Kenneth McCorkle v. Deputy District Attorney Samuel Luzadas Jr.



Motion: Defendant Samuel Luzadas, Jr.’s Motion to Dismiss

Tentative Ruling:

To grant. This case is dismissed without prejudice to the cause, on the condition

that no other action on the cause may be commenced in another court prior to

satisfaction of this court's order for costs and fees, dated October 3, 2018. (Code Civ.

Proc., § 399, subd. (a).)

Explanation:

California Code of Civil Procedure section 399, subdivision (a) authorizes a court

to dismiss a case without prejudice if the costs and fees relating to a transfer order are

not timely paid. In pertinent part, it states:

If the transfer is sought solely, or is ordered, because the action or proceeding

was commenced in a court other than that designated as proper by this title,

those costs and fees, including any expenses and attorney's fees awarded to the

defendant pursuant to Section 396(b), shall be paid by the plaintiff before the

transfer is made... If those costs and fees are not paid... within 30 days after

notice of finality of the order of transfer, the court on a duly noticed motion by

any party may dismiss the action without prejudice to the cause on the

condition that no other action on the cause may be commenced in another

court before satisfaction of the court's order for costs and fees. (Code Civ. Proc.,

§ 399, subd. (a).)

Consequently, if the plaintiff fails to pay the costs and fees within 30 days and no

further challenge is made to the transfer order then any party may move for dismissal

without prejudice. (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1037 [holding that

the case was properly dismissed where transfer costs were not paid within 30 days after

plaintiff was served with notice of the transfer order].)

Here, on October 3, 2018, plaintiff was provided notice of this court’s ruling,

wherein defendant’s motion for transfer of venue was granted and defendant was

awarded $675 in attorney’s fees as a result thereof. Plaintiff thereafter appealed the

Transfer Order to the Fifth District Court of Appeals. On August 5, 2019, following

dismissal of the appeal by the Fifth Appellate District and subsequent order of remittitur,

defendant once again provided plaintiff with Notice of Finality of Transfer Order. Plaintiff

was therefore required to pay the $ 675 in attorney’s fees within 30 days after receiving

service of the Notice of Finality of Transfer Order, or by September 4, 2019.

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As of the date of filing of this motion, e.g., September 16, 2019, plaintiff has failed

to pay any of the transfer fees and costs awarded to the defendant. Accordingly,

defendant’s motion to dismiss is granted.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

tentative ruling will serve as the order of the court and service by the clerk will constitute

notice of the order.

Tentative Ruling



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Re: Bagga v. City National Bank


Hearing Date: November 13, 2019

Motion: By Defendant City National Bank, for Summary Judgment or, in the

alternative, for Summary Adjudication.

Tentative Ruling:

To grant the motion for Summary Judgment. To grant the motion for Summary

Adjudication as to the First and Second causes of action. To deny the motion for

Summary Adjudication in all other respects.

Explanation:

Note- as of November 8, 2019, no opposition appears in the Court’s files.

Defendant City National Bank (“CNB”) moves for Summary Judgment, or, in the

alternative, Summary Adjudication as to Plaintiff’s Second Amended Complaint.

Defendant’s main argument is that the evidence does not support the claims plead by

Plaintiff.

To obtain summary judgment, “all a defendant needs to do is to show that the

plaintiff cannot establish at least one element of the cause of action.” Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the

burden shifts to the plaintiff to demonstrate that one or more material facts exist as to

the cause of action or as to a defense to a cause of action. (CCP § 437(c),

subdivision(p)(2).)

In a summary judgment motion, the pleadings determine the scope of relevant

issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

A defendant need only “negate plaintiff's theories of liability as alleged in the

complaint; that is, a moving party need not refute liability on some theoretical possibility

not included in the pleadings.” (Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th

486, 493 (emphasis in original).)

The court examines affidavits, declarations and deposition testimony as set forth

by the parties, where applicable. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698.)

Any doubts about the propriety of summary judgment are to be resolved in favor of the

opposing party. (Yanowitz v. L’Oreal USA, Inc. (2003) 106 Cal.App.4th 1036, 1050.)

18

A court will “liberally construe plaintiff's evidentiary submissions and strictly

scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or

ambiguities in plaintiff's favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56,

64.)

Furthermore, the moving party must identify for the court the matters it contends

are “undisputed,” and cite the specific evidence showing why it is entitled to judgment

as a matter of law. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337

(“This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate

statement, it does not exist.” (emphasis in original).)

1. First Cause of Action for Wrongful Foreclosure.

To prove the elements for wrongful foreclosure, a plaintiff must prove that: (1) the

trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real

property pursuant to a power of sale in a mortgage or deed of trust; (2) the party

attacking the sale was harmed; (3) in cases where the mortgagor challenges the sale,

the plaintiff must show they tendered the amount of the indebtedness. (Miles v.

Deutsche Bank National Trust, Co. (2015) 236 Cal.App.4th 394, 408.)

The operative pleading alleges that CNB: (1) failed to provide the proper legal

notice with respect to the Notice of Default; (2) refused to accept pay that was due;

(3) purposefully hired an inspector to inflate the amount of repairs needed beyond

what was actually needed; (4) accepted payments without objection or claiming that

Plaintiff was in breach; (5) breached the terms of the loan agreement by not

immediately claiming payment for fees or fines on the Note; and, (6) failing to maintain

accounting records under the Note. (SAC ¶84.)

As to this Cause of Action, Defendant provides evidence of the following:

(1) The notice of default was properly calculated and served. (UMF 13-14.)

The evidence offered in support of this contention are the Notice of Default

recorded in the Recorder’s office on June 18, 2014, and the Substitution of Trustee

recorded on June 18, 2014. (RJN, Exhs. M & N.) Also cited is the Declaration of Michael

Rosenheck who states that the Notice of Default and Substitution were drafted and

recorded in compliance with Civil Procedure sections 2923.3 and 2934a. (Rosenheck

Decl. ¶12.) There is no evidence to rebut this, and so it appears that Defendant has met

its burden to show that the notice of default was properly calculated and served.

(2) Plaintiff did not tender payment of the reinstatement amount. (UMF 16)

The evidence offered in support of this is the declaration of Rosenheck wherein

he states that Plaintiff did not tender any of the full restatement amounts. (Rosenheck

Decl. ¶13.) However, he also provides evidence of notice of only the first reinstatement

amount, of $58,547.08. (Rosenheck Decl. ¶13, Exhibit H.) There is no evidence that

Plaintiff had notice of the other two reinstatement amounts, which were each well over

$100,000.

19

The Second Amended Complaint alleges that Plaintiff attempted to tender an

amount of $100,000 but that this was rejected. (SAC ¶71.) It is unclear when this tender

offer was attempted. Regardless, it does appear that Rosenheck’s declaration alone

meets Defendant’s burden to show that valid tender was not received.

(3) CNB hired a “neutral party to prepare a property condition report. The

cost of repairs was $180,580.00. In any event, the cost of repairs was

irrelevant, since they were never part of any reinstatement amount provided

to Plaintiff.

Even from the claims as framed by the pleadings, it is unclear what relevance or

role the purported inflated repair fees have to the claim for wrongful foreclosure, since

there is no evidence that the repair fees were included as part of any demand for

tender.

(4)-(5) The Note provides that an acceptance of any late charge or delayed

payment does not waive the right to seek remedies.

Likewise, the terms of the agreement indicate that acceptance of late

payments does not waive any potential late fees.

The Court finds that Defendant has met its burden to show that Plaintiff cannot

show the elements of wrongful foreclosure, inasmuch as Defendant has shown that the

foreclosure was not done illegally, fraudulently, or with willful oppression. Since there is

no opposition, then the motion is granted as to the First Cause of Action for Wrongful

Foreclosure.

2. Second Cause of Action for Negligence.

Here, the complaint alleges that CNB had a duty to exercise reasonable case to

maintain proper and accurate loan records. (SAC ¶87.) However, as noted by

Defendant, under California law, and absent special circumstances not alleged here, a

bank does not owe a borrower any duties beyond those in the loan document.

(Nymark v. Heart Fed. Savs. & Loan Ass’n. (1991) 231 Cal.App.3d 1089, 1096.) As a result,

the motion is granted as to the Second Cause of Action as a matter of law.

3. Fourth and Fifth Causes of Action for Negligent Misrepresentation and for Fraud.

The fraud and negligent misrepresentation claims are based on the allegations

that CNB misrepresented the status of payments made under the Note with regard to

their timeliness and as to the payment of certain property taxes. (SAC ¶¶102-103, 106,

110.)

However, Defendant argues that Plaintiff admitted to making late payments and

that she did not timely pay the second installment of property taxes for 2014, and relies

on paragraphs 52 and 54 of the Second Amended Complaint. However, paragraph 52

merely recites allegations in a letter Plaintiff received, and Paragraph 54 makes no

mention of a late payment.

20

In any event, Defendant argues that the evidence shows that there was a lack

of timely payments. (SAC, Exh.C.) However, Exhibit C is described as a summary of

payments generated by City National Bank showing mortgage payments made by

Plaintiff. (SAC ¶25.) There is nothing verifying the late payments or admitting that

payments were late. Moreover, Exhibit C was printed on October 9, 2014. There is

nothing to indicate that late fees or the increased interest rates were charged

contemporaneously with the alleged late payments, or that any notice was given to

Plaintiff of the fees or rates.

Plaintiff’s fraud claim, as noted by Defendant, is based on allegations that she

was not told of late fees or late tax payments until well after they were allegedly

incurred. Whether or not the payments were late or whether the taxes were not paid is,

at least as far as this claim is concerned, beside the point; the allegation is that the fact

of the late fees and increased rates were concealed or misrepresented. (SAC ¶¶102-

103, 106, 110.) To disprove the claim, therefore, Defendant would have to show that

Plaintiff had notice of the late fees, the increased interest rates, or the unpaid taxes.

Defendant, for the most part, has not done so.

At best, Defendant has shown that a letter was sent to Plaintiff on May 15, 2014,

regarding only the unpaid taxes. (SAC, Exh. E.) However, this alone is insufficient to show

that Defendant did not conceal the truth from Plaintiff throughout the terms of the loan

from 2009 to 2014. Therefore, Defendant has not borne its burden to show that the claim

is without merit based on the evidence presented by Defendant, the motion is denied

as to the Fourth and Fifth Causes of Action.

4. The Seventh Cause of Action for Violation of Business and Professions Code

§17200 and the Eighth Cause of Action for Civil Conspiracy.

Defendants’ sole argument as to why summary adjudication should be granted

as to the Seventh Cause of Action for Violation of Business and Professions Code §17200

and the Eighth Cause of Action for Civil Conspiracy is because all other claims are

subject to summary adjudication. Since the motion is denied as to the Fourth and Fifth

Causes of Action, it is denied as to this claim as well.

5. The Ninth Cause of Action for Breach of Contract.

Plaintiff’s claim under the Second Amended Complaint was that: (1) Plaintiff

substantially performed under the Note; (2) CNB failed to provide proper Notice under

the Note; (3) CNB failed to keep a proper accounting under the Note; and (4) CNB

improperly assessed late fees under the Note.

Defendant argues as follows:

(1) Plaintiff was in default under several different provisions of the Note;

(2) Defendant did not address this issue.

(3) Defendant notes that there is no express obligation regarding accounting,

but that, nevertheless, CNB properly accounted for plaintiff’s payments and

obligations.

(4) Defendant argues that it properly accounted for all late fees.

21

Defendant cited to no legal authority for its argument concerning the breach of

contract claim.

Part of Plaintiff’s claim for breach of contract, by Defendant’s own admission, is

that Defendant failed to give Plaintiff proper notice under the Note. Although a

different issue with Notice is addressed in the claim for Wrongful Foreclosure, it appears

that Defendant simply did not address this claim at all in the moving papers as to this

cause of action. Given the lack of legal or factual authority as to this issue, and the lack

of evidence presented, the motion cannot be granted as to this cause of action.

For all these reasons, the motion for summary judgment is denied. The motion for

summary adjudication is granted as to the First and Second Causes of Action. In all

other respects, the motion for summary adjudication is denied.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling



22



Re: Martin v. State Center Community College District



Motion: Plaintiff’s Motion to Compel Deposition of Chancellor Paul

Parnell, Ph.D

Plaintiff’s Motion to Compel Deposition of Carole Goldsmith

SCCCD’s Motion for Protective Order re Deposition of

Chancellor Paul Parnell, Ph.D.

Tentative Ruling:

To deny plaintiff’s motions to compel depositions of Carole Goldsmith and Paul

Parnell. To grant State Center Community College District’s (“SCCCD”) motion for

protective order regarding the deposition of Chancellor Parnell, and impose $1,050 in

monetary sanctions against plaintiff and in favor of SCCCD, to be paid to SCCCD’s

counsel within 30 days of service of the order by the clerk.

Explanation:

Set for November 13 are three motions concerning depositions of “apex

witnesses” for SCCCD: Fresno City College Campus President Carole Goldsmith, and

Chancellor Paul Parness, Ph.D.

On March 21, 2019 plaintiff served a notice to take the deposition of Dr. Parnell

on May 30, 2019, and President Goldsmith on May 31, 2019. On May 22, 2019 SCCCD

served written objections to the deposition notices on the grounds that they are apex

witnesses, and “[SCCCD] cannot agree to produce this apex witness for deposition

unless and until Plaintiff can establish that [the witness] has a superior or unique

knowledge about the relevant matters and Plaintiff has exhausted less intrusive means

of discovery.” Plaintiff’s counsel appeared at the depositions on the dates noticed and

made records of the non-appearances.

Plaintiff filed motions to compel the depositions solely on the ground that

because it did not file a motion for protective order prior to the depositions, any

objection on “apex witness” ground is waived. Subsequent to the filing of the motions

to compel, SCCCD agreed to produce President Goldsmith for deposition.

Accordingly, as to President Goldsmith, the only remaining issue is whether SCCCD

should be sanctioned.

23

SCCCD’s apex witness objections are not waived for failure to move for a

protective order before the depositions took place, and plaintiff cites to no authority so

providing. “Before, during, or after a deposition, any party, any deponent, or any other

affected natural person or organization may promptly move for a protective order."

(Code Civ. Proc. § 2025.420(a), emphasis added.) The protective order may include

the direction “[t]hat the deposition not be taken at all” or that “examination of the

deponent be terminated.” (Code Civ. Proc. § 2025.420(b)(1), (16).) The Civil Discovery

Act does not require that the motion for protective order be made before the

deposition, and explicitly permits the motion to be filed after.

A protective order prohibiting the deposition of a corporate president may be

granted where it is shown he or she lacks knowledge or involvement in the litigation,

and such deposition is being sought prior to plaintiff's exhaustion of less intrusive means

of discovery. Such “high level" (or “apex”) depositions “raise a tremendous potential for

discovery abuse and harassment." (Liberty Mut. Ins. Co. v. Superior Court (1992) 10

Cal.App.4th 1282, 1287-1288.)

Where a party seeks to depose an “apex” witness and that party seeks a

protective order, “the trial court should first determine whether the plaintiff has shown

good cause that the official has unique or superior personal knowledge of discoverable

information.” (Id.) “If not … the trial court should issue the protective order and first

require the plaintiff to obtain the necessary discovery through less-intrusive means.”

(Id.)

SCCCD has shown that the two witnesses are apex witnesses. Plaintiff does not

dispute this point.

At no point, either in meet and confer or in the motions to compel, has plaintiff

shown that the witnesses have unique or superior personal knowledge of discoverable

information.

Plaintiff’s insistence on taking these witnesses’ depositions without making the

required showing is not appropriate.

Though SCCCD agreed to produce President Goldsmith for deposition prior the

hearing on the motion to compel, no sanctions will be imposed. Code of Civil

Procedure section 2025.450(g)(1) allows sanctions only where the motion to compel is

successful and only where the opposing party acts without substantial justification.

Plaintiff has never disputed that President Goldsmith is an apex witness, and has never

made the showing set forth by Liberty Mutual. The deposition testimony relied upon in

plaintiff’s reply does not indicate that President Goldsmith has any unique or superior

personal knowledge (or any at all) of facts relevant to the litigation. Despite the fact

that SCCCD has agreed to proceed with the deposition, the court would have

sustained the objection. SCCCD had substantial justification to maintain its apex

witness objection. Plaintiff will not be awarded any sanctions.

For the reasons discussed above SCCCD’s motion for protective order as to

Chancellor Parnell will be granted. Code of Civil Procedure section 2025.420(h)

mandates sanctions in favor of a party who successfully secures a protective order

24

where the opposing party does not act with substantial justification. SCCCD asserted a

viable objection to the deposition, and plaintiff never showed or argued that

Chancellor Parnell has unique or superior personal knowledge of discoverable

information. Reasonable sanctions in the sum of $1,050 will be imposed.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),

no further written order is necessary. The minute order adopting this tentative ruling will

serve as the order of the court and service by the clerk will constitute notice of the

order.

Tentative Ruling

Issued By: A.M. Simpson on November 12, 2019 .


25

(30)

Tentative Ruling

Re: Rene Diaz v. Bella Vista Estates



Motion: Motion to dismiss, by defendants: Donald P. Dick Air Conditioning,

Inc. and Radco Exteriors, Inc.

Tentative Ruling:

To deny.

Explanation:

Defendant Donald P. Dick Air Conditioning, Inc. is defaulted in this action. And

entry of a defendant's default instantaneously cuts off its right to appear in the action.

The defendant is “out of court.” It has no right to participate in the proceedings until

either (a) its default is set aside (in which event, it may respond to the complaint), or (b)

a default judgment is entered (in which event, it may appeal). (Devlin v. Kearny Mesa

AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.)

Defendant cites to: Hughs v. Kimble (1992) 5 Cal.App.4th 59, 69 – in support of

the proposition that the case can be dismissed, despite the default. However, Hughs

holds that a court could, on its own motion, dismiss such a case. It does not hold that a

defaulted defendant can bring such a motion.

Accordingly, defendant Donald P. Dick Air Conditioning, Inc.’s motion to dismiss

is denied.

The court acknowledges that this motion is also made on behalf of defendant

Radco Exteriors, Inc. However, on September 3, 2019, defendant Radco Exteriors, Inc.

was dismissed from the action. Its claims are therefore moot.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

tentative ruling will serve as the order of the court and service by the clerk will constitute

notice of the order.

Tentative Ruling

Issued By: A.M. Simpson on November 12, 2019 .


26



Re: Rangel v. Gerawan Farming



Motion: By plaintiffs for final approval of settlement and attorney’s fees,

costs, and incentive awards

Tentative Ruling:

To grant final approval of settlement and order that class counsel submit a

proposed judgment by December 3, 2019. To grant attorney’s fees, but in the amount

of $600,000. To grant costs, but in the amount of $10,895.63. To grant incentive awards

in the amount of $6,000 individually for each class representative. To grant $60,000 in

costs to the class administrator. The amount to be paid to class members is therefore

$2,905,104.47.

To set August 26, 2020 as the date for the parties to return to report on the

payout of the settlement fund, and amendment of the judgment for any unpaid

residue distribution, pursuant to Code of Civil Procedure section 384.

Explanation:

1. Final Approval of Settlement

California Rules of Court, rule 3.769(g) states: “Before final approval, the court

must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h)

states: “If the court approves the settlement agreement after the final approval

hearing, the court must make and enter judgment. The judgment must include a

provision for the retention of the court's jurisdiction over the parties to enforce the terms

of the judgment. The court may not enter an order dismissing the action at the same

time as, or after, entry of judgment.”

The Manual of Complex Litigation, Fourth (Federal Judicial Center 2004), section

21.641 states:

In evaluating the settlement, the court should take into account

not only the presentations of counsel but also information from

other sources, such as comments from class representatives and

class members, presentations by objections, the court’s own

knowledge of the case obtained during pretrial proceedings, and

information provided by special masters or experts appointed by

the court to assess the settlement.

27

The Court vetted the fairness of the settlement through two different hearings,

each with its own filings, prior to this particular motion. The settlement meets the

standards for fairness, and the class has approved it, with no objections and only 60

opt-outs from a class of over 12,000 members. Final approval is granted.

2. Attorneys’ Fees

a. General Standards

In Laffitte v. Robert Half International Inc. (2016) 1 Cal.5th 480, the California

Supreme Court held that a fee award in a class action can be determined fair and

reasonable based on a percentage of the fund calculation or use of the lodestar

method. The two methods can also be used to cross-check each other.

With the lodestar method, the court assessing attorney’s fees begins with a

touchstone or lodestar figure, based on the “careful compilation of the time spent and

reasonable hourly compensation of each attorney . . . involved in the presentation of

the case." (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) The lodestar consists of "the

number of hours reasonably expended multiplied by the reasonable hourly rate. . . ."

(PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, emphasis added; Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1134.)

In referring to "reasonable" compensation, the California Supreme Court

indicated that trial courts must carefully review attorney documentation of hours

expended; "padding" in the form of inefficient or duplicative efforts is not subject to

compensation. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) The constitutional

requirement of just compensation, "cannot be interpreted as giving the [prevailing

party] carte blanche authority to 'run up the bill.'" (Aetna Life & Casualty Co. v. City of

Los Angeles (1985) 170 Cal.App.3d 865, 880.)

The person seeking an award of attorney’s fees "is not necessarily entitled to

compensation for the value of attorney services according to [his] own notion or to the

full extent claimed by [him]. [Citations.]" (Salton Bay Marina, Inc. v. Imperial Irrigation

Dist. (1985) 172 Cal.App.3d 914, 950.) Reasonable hourly compensation is the "hourly

prevailing rate for private attorneys in the community conducting noncontingent

litigation of the same type." (Ketchum v. Moses, supra, 24 Cal.4th at p. 1133.) The

"experienced trial judge is the best judge of the value of professional services rendered

in his court." (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 832.)

The trial court may rely on its own expertise and knowledge to calculate

reasonable attorney fees. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.)

"When the trial court is informed of the extent and nature of the services rendered, it

may rely on its own experience and knowledge in determining their reasonable value."

(In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 300.) The court is not limited to the

28

affidavits submitted by the attorney. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618,

625.)

b. Non-Local Counsel Not Necessary

The Court finds that San Joaquin Valley law firms handling employment litigation,

including class actions, are available to handle this type of case, concerning whether

seasonal farmworkers may be entitled to Labor Code section 203 penalties upon

termination at the end of a season. In Doe v. D.M. Camp & Sons (E.D. 2009) 2009 WL

921444, Mr. Barsamian of Fresno represented an employer who was charged with

violating Labor Code section 203 for seasonal farm worker layoffs. A San Joaquin Valley

lawyer was one representing a class of farmworkers for Labor Code section 203

violations in Valenzuela v. Giumarra Vineyards Corp. (E.D.Cal. 2009) 614 F.Supp.2d 1089.

San Joaquin Valley attorneys represented the class in Amaro v. Gerawan Farming, Inc.

(E.D. Cal. 2014) 2014 WL 1419405, with Mr. Barsamian of Fresno on the defense side. Mr.

Moss’ billings show he spoke with counsel in Amaro in working on this case. The

California Division of Labor Standards Enforcement issued an opinion letter in 1996 on

this subject.1

In this matter, there are many well-qualified employment attorneys in Fresno who

also work on class actions, up to and through trial, representing many types of workers,

including farm workers. Therefore Fresno rates are appropriate for the attorneys.

c. Mr. Moss

The hourly rate for an attorney of Mr. Moss’s experience and qualifications in

Fresno is $500. The Court deducts 49 hours from his time for travel to and from Fresno, as

that would not be a charge required of local counsel. The Court also deducts the .3

hours charge for reporting the settlement to the Daily Journal as firm advertising, not

services to the class in this case. The Court also deducts 2 hours of time spent viewing

the favorable July 9, 2019 tentative and preparing for a hearing at which no counsel

was present. That results in a cut of 51.3 hours, leaving 427.55 hours of compensable

time, for a lodestar of $213,775.00.

d. Mr. Bollinger

The Court finds that a reasonable rate in Fresno for an attorney of Mr. Bollinger’s

experience and education is $400. The Court deducts 8 hours stated for reviewing

pleadings, and 2 of the 5 hours for preparing this motion. The remaining time is 58.5

hours of compensable time, for a lodestar of $23,400.00.

1 https://casetext.com/analysis/payment-of-wages-at-temporary-layoff

https://casetext.com/analysis/payment-of-wages-at-temporary-layoff

29

e. Mr. Majarian

The Court recently found that a reasonable local fee for Mr. Majarian’s time is

$400 per hour. The Court deducts 14 hours from the time Mr. Majarian spent on the

mediation as travel time, and another 11.9 hours as excessive. That leaves him with a

day of time for each mediation session, as well as all time spent on data review and

expert discussions. Mr. Majarian billed excessive amounts of time (7.8 hours) for

emailing and talking with co-counsel and holding staff meetings. (See In re Taco Bell

Wage and Hour Actions (E.D.Cal. 2016) 222 F.Supp.3d 813, 832-833 [discussing

problematical nature of such billing].) That leaves Mr. Majarian with 103.5 hours of time,

for a lodestar of $41,400.00.

f. Final Figure

The lodestar for all three attorneys in this case is $278,575 for a total of 589.55

hours. They seek one-third of the settlement, but they have not shown any particularly

difficult issues, discovery disputes, dispositive motions, appeals, or other factors which

would justify a multiplier higher than twice the lodestar. The Court awards $600,000 in

fees, which is slightly higher than 2.1 times the lodestar. A recent federal case in New

York notes fee percentages between 13 percent and 25 percent for class attorney fee

awards as appropriate. (Stinson v. City of New York (S.D.N.Y. 2017) 256 F.Supp.3d 283,

297.) The fee awarded here is between 15 percent and 16 percent of the common

fund, a generous award given the amount of work done. The Court also approves the

fee split, including the referral fee.

3. Costs

The right to recover costs is determined entirely by statute. “It is axiomatic that

the right to recover costs is purely statutory, and, in the absence of an authorizing

statute, no costs can be recovered by either party” (Davis v. KGO-TV (1998) 17 Cal.4th

436, 439.) Code of Civil Procedure section 1033.5(c)(2) states: “Allowable costs shall be

reasonably necessary to the conduct of the litigation rather than merely convenient or

beneficial to its preparation.” Further, subsection (c)(3) provides: “Allowable costs shall

be reasonable in amount.”

All of Mr. Majarian’s costs are for travel to Fresno ($201.85) and federal express,

for client mail ($43.60). Postage is not a permitted expense (Code Civ. Proc. §

1033.5(b)(3)). The travel costs were incurred solely because counsel did not live in

Fresno, and were not “necessary” as local counsel who handle such matters were

available.

For Mr. Moss’ firm, one cost sought is translation fees. Such fees are not listed as

either permitted or prohibited by Code of Civil Procedure section 1033.5; therefore,

they may be awarded in the Court’s discretion, and the Court allows such costs here.

The Court also permits the expert fees, as the Court’s ruling on the first motion for

preliminary approval noted the need for expert testimony. Mr. Moss has several items of

costs which are not appropriate, those being for postage, travel, Westlaw, and

30

retrieving documents from federal and Los Angeles courts. (Ladas v. California State

Auto Ass'n (1993) 19 Cal.App.4th 761, 776 [holding that computer legal research costs

are not recoverable].) Improper costs total $4,419.55 for Mr. Moss’ firm.

Deducting the $4,665.00 from the total costs of $15,316.18 in costs sought results

in an award of permissible costs of $10,985.63.

4. Incentive Awards

Incentive awards are payments to class representatives for their

service to the class in bringing the lawsuit. In cases where the class

receives a monetary settlement, the awards are often taken from

the class's recovery. Although we have approved incentive

awards for class representatives in some cases, we have told

district courts to scrutinize carefully the awards so that they do not

undermine the adequacy of the class representatives.

Where a class representative supports the settlement and is treated

equally by the settlement, the likelihood that the settlement is

forwarding the class’s interest to the maximum degree practically

possible increases . . . But if such members of the class are

provided with special ‘incentives’ in the settlement agreement,

they may be more concerned with maximizing those incentives

than with judging the adequacy of the settlement as it applies to

class members at large.

(Radcliffe v. Experian Information Solutions (9th Cir. 2013) 715 F.3d 1157, 1163 (internal

citations omitted).

Here, the class representatives do not provide specific estimates of their hours,

but it appears that each spent at least 50 hours on the case, including participating in

two mediations. Each states concerns over possible loss of job prospects due to being

class representatives, but none can state any particular jobs lost. The awards sought

are around three times the highest payout to a class member, and less than 1 percent

of the total recovery. No conflict appears. In Rodriguez v. Danell Custom Harvesting,

LLC (2018) 327 F.R.D. 375, 389-390, the judge awarded $4,000 per class member in a

farm worker case. That case was resolved more quickly than the instant matter. The

Court finds that $6,000 for each individual class representative here is an appropriate

incentive payment, for a total of $24,000.

5. Administrative Costs

The costs sought by the administrator are higher than usual here, $60,000, but the

number of class members was large, as well. The amount sought is less than $5.00 per

class member, and is approved.

31

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

written order is necessary. The minute order adopting this tentative ruling will serve as

the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KAG on 11/8/19.


Documents

Tentative Rulings for November 13, 2019 Departments 403 ......2019/11/13 · 1 Tentative Rulings for November 13, 2019 Departments 403, 501, 502, 503 There are no tentative rulings