Lewis, Robert Lee, Jr Vs Clayton Mack Lewis, Melanie Raquel

Case Number: 24STCV05640 Hearing Date: July 16, 2024 Dept: 49 Hailey Lujan v. Nowhere Beverly Hills LLC, et, al. MOTION TO COMPEL ARBITRATION MOVING PARTY: Defendants Nowhere Beverly Hills, LLC dba Erewhon Market Beverly Hills; Nowhere Palisades, LLC dba Erewhon-Palisades; and Modern HR, Inc. RESPONDING PARTY(S): Plaintiff Hailey Lujan STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: While employed by Defendants, Plaintiff Hailey Lujan alleges she injured her foot at work. The injury resulted in working restrictions and the need for accommodations. Plaintiff alleges Defendants violated her restrictions and failed to promote her to the assistant manager position promised her. After raising complaints, Plaintiff was terminated. Defendants now move to compel Plaintiff to arbitrate the dispute pursuant to CCP § 1281 et seq. Plaintiff opposed. TENTATIVE RULING: Defendants Motion to Compel Arbitration is GRANTED. The action is stayed pending the results of the arbitration. A Status Review/OSC re: Dismissal is set for July 16, 2025 at 8:30 a.m. Defendants are ordered to give notice, unless waived. DISCUSSION: Motion to Compel Arbitration I. Objections to Evidence Plaintiff has submitted objections to evidence. This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.) As such, this court respectfully declines to rule on these objections. This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence. II. Legal Standard Under the FAA, there is a strong policy favoring arbitration. [Citations.] The overarching purpose of the FAA is to ensure the enforcement of arbitration agreements according to their terms .... [Citation.] Therefore, [a]rbitration is a matter of consent .... [Citations.] [¶] Although the FAA preempts any state law that stands as an obstacle to its objective of enforcing arbitration agreements according to their terms, ... we apply general California contract law to determine whether the parties formed a valid agreement to arbitrate their dispute. [Citations.] (Barrera v. Apple Am. Grp. LLC (2023) 95 Cal. App. 5th 63, 76.) It is settled that [u]nder both California and federal law, arbitration is strongly favored and any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. (Balandran v. Labor Ready, Inc. (2004) 124 Cal.App.4th 1522, 1527.) California also has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. Even so, parties can only be compelled to arbitrate when they have agreed to do so. (Avila v. S. California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835, 843.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Id.) An arbitration agreement is a contractual agreement. General contract law principles include that [t]he basic goal of contract interpretation is to give effect to the parties mutual intent at the time of contracting. [Citations.] ... The words of a contract are to be understood in their ordinary and popular sense. [Citations.] (Garcia v. Expert Staffing W., 73 Cal. App. 5th 408, 41213.) [T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . . (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353). Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute. (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205). [A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . . (CCP § 1281.4.) III. Analysis A. The FAA Applies The FAA provides for enforcement of arbitration provisions in any contract evidencing a transaction involving commerce. (9 USC § 2.) The term involving commerce is functionally equivalent to affecting commerce and signals an intent to exercise Congress commerce power to the full. (Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 US 265, 277.) The party asserting the FAA bears the burden to show it applies by presenting evidence establishing [that] the contract with the arbitration provision has a substantial relationship to interstate commerce . . . . (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.) Plaintiff executed two separate arbitration agreements during her employment. The most recent, 2023 Arbitration Agreement states that [a]ny arbitration proceeding under this Agreement shall proceed under and be governed by the Federal Arbitration Act ("FAA") because Employee, the Company, and MODERN HR are engaged in interstate commerce. (Holmes Decl. ¶ 13; Exh. B, p. 2.) Similarly, the 2020 Agreement provides that any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act. (Holmes Decl. ¶ 9; Exh. A, p. 6.) Accordingly, this court will consider and apply the FAA where necessary. (See Davis v. Shiekh Shoes, LLC (2022) 84 Cal. App. 5th 956, 963 [finding the FAA applies if it is so stated in the agreement.].) B. Existence of Agreement to Arbitrate 1. Defendants Initial Burden Defendants have the initial burden of producing prima facie evidence of a written agreement to arbitrate the controversy. (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 165.) [I]t is not necessary to follow the normal procedures of document authentication. (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215, 218.) Defendants submit a declaration from Michael Holmes, the Vice President of Human Resources & Business Development for Modern H.R., Inc. (Holmes Decl. ¶ 1.) Modern H.R. has provided outsourced human resources services to Nowhere Palisades, LLC DBA Erewhon Palisades since 2019 and to Nowhere Beverly Hills, LLC DBA Erewhon Beverly Hills and since 2022. (Id. ¶ 2.) These services include, among others, human resources information management, human resources policy consultation, investigative support, [and] payroll processing. (Id. ¶ 3.) Holmes has held his current position with Modern HR throughout this period. (Id. ¶ 2.) As Vice President of Human Resources & Business Development, Holmes attests that he is responsible for overseeing the Modern HRs human resources department personnel and is also responsible for ensuring compliance with Modern HRs electronic employee human resources management and information systems. (Id. ¶ 4.) Holmes represents that Erewhon-Beverly Hills and Erewhon-Palisades electronic employee human resources management and information system is used in the ordinary course of business and are made, kept, and securely maintained on a computer platform that is SOC1, Type 2, compliant. (Id. ¶ 5.) Holmes details the onboarding process for all new employees. (Id. ¶ 6.) New employees receive an email with a unique secure link specific to that employee that the new employee uses to register onto the secure employee web portal to complete a new hire packet. (Id. ¶ 6(b).) Employees must then create an account by creating a password and answering security questions. (Id. ¶ 6(c).) Employees then receive an autogenerated email containing a confirmation link. (Id. ¶ 6(d).) Upon clicking the link, employees are directed to the login page where they must enter their username and password. (Id. ¶ 6(e).) They then receive a dual authentication email or text with a unique code to confirm their identity. (Id.) Once the employee enters that unique code, they can complete the onboarding new hire documents. (Id.) After reviewing a document, employees click a button to consent and acknowledge their review and understanding of, and agreement to the terms of, the particular document. (Id. ¶ 6(f).) The system then generates an electronic signature stamp for the employee to memorialize that agreement that includes the employees name and date and time of acknowledgment. (Id. ¶ 6(g).) Holmes has reviewed Defendants records maintained for Plaintiff. (Id. ¶ 8.) Based on those records, Ms. Lujan accessed the electronic onboarding system on November 21, 2020, using an email address that she had provided to Erewhon Palisades and to which presumably only she had access. (Id.) Thereafter, Plaintiff completed her registration using a unique user ID and password to access the system, [and] she reviewed and signed a number of documents, including an ALTERNATIVE DISPUTE RESOLUTION POLICY AND ACKNOWLEDGEMENT. (Id. ¶ 8, 9; Exh. A.) Plaintiff then electronically signed the 2020 Arbitration Agreement. (Id. ¶ 11.) Then, in April of 2023, Plaintiff signed a 2023 Arbitration Agreement using substantially the same procedure. (Id. ¶ 13; Exh. B.) Holmes attests, based on his knowledge of Modern HRs secure human resources management information system web portal and [his] review of the records created and maintained therewith, that Ms. Lujans electronic signature on the 2020 Arbitration Agreement and the 2023 Arbitration Agreement could only be attributed to her. (Id. ¶ 14.) The 2020 agreement requires arbitration of any dispute arising out of or related to your employment, the terms and conditions of your employment and/or the termination of your employment, including, but not limited to& Claims of unlawful harassment, discrimination, retaliation or wrongful termination that cannot be resolved by the parties. (Id., Exh. A, p. 2.) Similarly, the more recent 2023 Agreement requires arbitration of claims for wrongful termination, discrimination, harassment, [and] retaliation& (Id., Exh. B, ¶ 2.) Considering this evidence, Defendants have met their initial burden to produce a written agreement to arbitrate the controversy here. 2. Plaintiffs Burden This switches the burden to Plaintiff, who bears the burden of producing evidence to challenge the authenticity of the agreement. (Gamboa, supra, 72 Cal. App. 5th at 165.) Plaintiff can do this in several ways, including by declar[ing] under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. (Id.) In opposition, Plaintiff disputes the validity of the Arbitration Agreements. Plaintiff attests that she does not recall signing forms regarding arbitration. (Lujan Decl. ¶ 5.) She further states that she had no understanding that [she] was signing something agreeing to arbitrate [her] claims. (Id. ¶ 6.) Instead, Plaintiff was told to electronically sign some documents, that these documents were just onboarding, and to sign it now. (Id.) Plaintiff maintains that she was never told that [she] had the right to consult with legal counsel, was not provided an opportunity to negotiate the terms of the arbitration agreement, and was not provided with a copy of the JAMS rules. (Id. ¶¶ 7, 8.) Considering this evidence, Plaintiff has met her burden to challenge the authenticity of the agreement. 3. Defendants Final Burden This places the final burden on Defendants to establish with admissible evidence a valid arbitration agreement between the parties. (Gamboa, supra, 72 Cal. App. 5th at 165.) In determining whether Plaintiff signed the agreement by a preponderance of the evidence, this court must necessarily sit as the trier of fact and resolve evidentiary conflicts. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). First, the instant case distinguishable from Ruiz, a case relied on by Plaintiff. In Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal. App. 4th 836, 844, the issue was whether an electronic signature was the act of the employee. The employee did not recall signing the agreement. And the employer provided only a Declaration from the employers business manager offer[ing] her unsupported assertion that [the employee] was the person who electronically signed the 2011 agreement. (Id.) The court held that [i]n the face of [the employees] failure to recall electronically signing the 2011 agreement, and the employers failure to adequately authenticate the agreement, the electronic signature was insufficient to support a finding that the electronic signature was, in fact, the act of [the employee]. (Civ. Code, § 1633.9, subd. (a).) The court noted that authenticating an electronic document or signature is not a difficult evidentiary burden to meet, but that it was not met in that case. (Id. at 844.) The facts here, however, are more in line with Espejo v. S. California Permanente Med. Grp. (2016) 246 Cal. App. 4th 1047, 1053. There, the court came to the opposite conclusion of Ruiz, finding the employer had met its burden by attaching to their petition a copy of the purported arbitration agreement bearing Espejo's electronic signature. (Id. at 1060 [emphasis added].) Unlike in Ruiz, the Espejo defendant had sufficiently security precautions regarding transmission and use of an applicant's unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement. (Id. at 1062.) Likewise, here Defendants have sufficiently described the electronic onboarding process. Defendants have also explained the security measures in place that suggests with reasonable certainty that only Plaintiff could have signed the agreement. Authenticating an electronic signature, after all, is not a difficult evidentiary burden to meet. (Ruiz, supra, 232 Cal. App. 4th at 844.) Plaintiffs failure to recall signing the agreement must be given little weight. Lacking is any firm denial that Plaintiff did not sign the Arbitration Agreement. Based on a preponderance of the evidence and the totality of the circumstances, this court finds that Defendants have met their burden to establish with admissible evidence a valid arbitration agreement between the parties. (Gamboa, supra, 72 Cal. App. 5th at 165.) C. Arbitration Against Individual Defendants Plaintiff next argues the arbitration agreement does not apply to disputes between her and Defendants Beto Doe and Josh Doe, because they are not parties to the contract. Plaintiff argues that Defendants are, at most, incidentally named in or benefitted by the arbitration agreements. The 2020 Agreement provides: The ADR Policy will be mandatory for ALL DISPUTES ARISING BETWEEN EMPLOYEES, ON THE ONE HAND, AND NOWHERE PALISADES, LLC DBA EREWHON-PALISADES AND/OR ITS OUTSOURCED HUMAN RESOURCES PROVIDER MODERN HR, INC., AND/OR THEIR RESPECTIVE EMPLOYEES AND OFFICERS (HEREINAFTER COLLECTIVELY THE COMPANY), ON THE OTHER HAND. (Holmes Decl., Exh. A, p. 1.) Similarly, the 2023 Agreement provides: Employees agreement to arbitrate claims against the Company or MODERN HR includes claims that Employee may bring against the Companys or MODERN HRs respective parent, subsidiary, affiliated or client entities as well as against owners, directors, officers, managers, employees, agents, brokers, contractors, attorneys, including in their capacity as benefit plan administrators or fiduciaries to any employee benefit plan of which Employee is a participant or beneficiary and insurers of the Company or MODERN HR (hereinafter Company Entities). (Holmes Decl., Exh. B, p. 1.) Generally, a party must be a signatory to the contract to enforce the arbitration clause. (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236 (JSM).) However, the Court of Appeal has held that under the principle of equitable estoppel, a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are intimately founded in and intertwined with the underlying contract obligations. [Citation.] (Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 786; Rowe v. Exline (2007) 153 Cal. App. 4th 1276, 1287 citing Turtle Ridge, 140 Cal.App.4th at 833 [a signatory plaintiff who sues on a written contract containing an arbitration clause may be estopped from denying arbitration if he sues nonsignatories as related or affiliated persons with the signatory entity].) In addition, although [s]omeone who is not a party to a contractual arbitration provision generally lacks standing to enforce it, there is a recognized exception for third parties who are agents of a party to a contract. (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal. App. 5th 840, 856; Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418 [If, as the complaint alleges, the individual defendants, though not signatories, were acting as agents for the [Defendant], then they are entitled to the benefit of the arbitration provisions.]). Here, Plaintiff alleges that Defendant Beta Doe and Defendant Josh due were each a Manager, Officer, Shareholder, Director, Supervisor, Manager, Managing Agent, Owner, Principal, and/or Employee of Employer Defendant. (Compl. ¶¶ 5, 6.) Plaintiff also alleges there was a unity of interest and ownership between the Defendants and that each of the Defendants have been the officer, agent, employee and/or representative of the remaining Defendants and has acted within the course and scope of such agency and employment& (Id. ¶¶ 8, 14.) Thus, the individual Doe Defendants may invoke arbitration under either an equitable estoppel or agency theory. D. Plaintiffs Unconscionability Defense to Enforcement Plaintiff goes on to argue, that evening assuming an agreement to arbitrate exists, it should be disregarded based on principles of unconscionability. Unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Sanchez v. Valencia Holding Company, LLC (2015) 61 Cal.4th 899, 910.) Under California law, an arbitration agreement must be in some measure both procedurally and substantively unconscionable in order for the agreement to be unenforceable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 982.) But they need not be present in the same degree. . . . [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Armendariz, supra, 24 Cal.4th at p. 114.) 1. Procedural Unconscionability Plaintiff first argues the agreement is procedurally unconscionable because she was not provided a copy of the JAMS Rules. (See Lujan Decl. ¶ 8 [stating I was not provided with a copy of the Judicial Arbitration and Mediation Services, Inc. (JAMS) rules reference in the Agreement].) The employers failure to attach the arbitration rules to the agreement, however, is not dispositive (See Peng v. First Republic Bank (2013) 219 Cal. App. 4th 1462, 1472 [failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability].) The failure to attach a copy of arbitration rules could be a factor supporting a finding of procedural unconscionability where the failure would result in surprise to the party opposing arbitration. (Lane v. Francis Cap. Mgmt. LLC (2014) 224 Cal. App. 4th 676, 690.) In Lane, the Court found there was not a surprise element where, as here, the arbitration providers rules could be accessed on the internet. (Id.) At most, the failure to attach the governing rules adds slight procedural unconscionability to that already existing based on the adhesive nature. Next, Plaintiff argues the agreement was procedurally unconscionable because it was a contract of adhesion. The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. [Citation]. (Id. at 113). Based on the circumstances, the court agrees with Plaintiff that the dynamic demonstrates a classic contract of adhesion. The take it or leave it nature of the agreement is sufficient to establish some degree of procedural unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915). This means the substantive terms of the agreement must be scrutinized to ensure they are not manifestly unfair or one-sided. (Id.) 2. Substantive Unconscionability Plaintiff next argues the agreement is substantively unconscionable, again relying on the assertion she was not provided the JAMS rules. But Plaintiff misstates the case law when arguing that Defendants failure to provide the rules is a factor for substantive unconscionability. (See e.g., Carbajal v. CWPSC, Inc. (2016) 245 Cal. App. 4th 227, 247; Harper v. Ultimo (2003) 113 Cal. App. 4th 1402, 1407; Fitz v. NCR Corp. (2004) 118 Cal. App. 4th 702, 721; Zullo v. Superior Ct. (2011) 197 Cal. App. 4th 477, 485.) Rather, in each of these cases, the Court addressed the employers failure to provide a copy of the governing arbitration rules as it pertained to procedural unconscionability. Therefore, Plaintiff has failed to advance any argument that the agreement was substantively unconscionably. For that reason, the agreement is not unconscionable. (See Armendariz, supra, 24 Cal.4th at 114 [holding an arbitration agreement must be both procedurally and substantively unconscionable to invalidate it].) Accordingly, Defendants Motion to Compel Arbitration is GRANTED. The action is stayed pending the results of the arbitration. A Status Review/OSC re: Dismissal is set for July 16, 2025 at 8:30 a.m. Defendants are ordered to give notice. IT IS SO ORDERED. Dated: July 16, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: 22IWUD02358 Hearing Date: July 16, 2024 Dept: B Hearing Date: July 16, 2024 Moving Parties: Plaintiff 6232 Manchester LLC Responding Party: Defendant Orb Tertius LLC Motion to Enforce Settlement Agreement The Court considered the moving, opposition, and reply papers and supplemental declarations. RULING The motion is DENIED WITHOUT PREJUDICE. BACKGROUND On November 29, 2022, plaintiff 6232 Manchester LLC filed an unlawful detainer complaint against Orb Tertius LLC based on a three-day notice to quit. On January 25, 2023, the court (Inglewood) overruled defendants demurrer. On March 1, 2023, the court (Inglewood) grants defendants motion to compel further responses and production to defendants request for production of documents. On March 22, 2023, the court (Inglewood) granted defense counsels motion to be relieved as counsel. On May 1, 2023, defendant filed a notice of association of counsel. On May 31, 2023, the court (Inglewood) granted plaintiffs consolidated motion to compel responses to interrogatories and request for production of documents, set two and deemed the requests for admission, set one, admitted. The court denied plaintiffs request for sanctions. On June 16, 2023, the case was reclassified to Dept. M. On July 23, 2023, the court granted defendants motion for leave to withdraw and to amend defendants responses to requests for admission and relief from order. On December 19, 2023, the court denied plaintiffs motion to compel defendants PMQ as moot as the deposition had taken place and defendant had produced documents. On May 6, 2024, pursuant to written stipulation, the trial scheduled for May 6, 2024 was continued to May 28, 2024. On May 28, 2024, the minute order indicates that the parties had reached a global settlement, and that the non-jury trial was trailed to May 30, 2024 to finalize the settlement agreement. On May 30, 2024, the minute order indicates that the parties had reached a settlement and the court set an OSC re dismissal for June 21, 2024. On July 1, 2024, a joint stipulation and order was entered for writ of possession and to retain jurisdiction to enforce settlement after dismissal pursuant to CCP §664.6. LEGAL AUTHORITY CCP §664.6 states: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. A trial court, when ruling on a section 664.6 motion, acts as a trier of fact. Section 664.6s express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions to settlement. Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App. 4th 884, 889 (citation omitted). CCP §187 states: When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. The courts inquiry in ruling on a motion for judgment pursuant to CCP §664.6 is generally limited to a determination of whether the parties entered into a valid and binding settlement, and the material terms thereof. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200, 209 n.4. Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon. Hernandez v. Board of Educ. of Stockton Unified School Dist. (2004) 126 Cal. App. 4th 1161, 1176. The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement. Id. DISCUSSION Plaintiff requests an order to enforce the terms of the settlement agreement as against defendant Orb Tertius, LLC, including that judgment be entered against defendant for $675,000 in favor of plaintiff; for writ of possession of the property be issued immediately; defendant must leave all trade fixtures; and for attorneys fees and costs in the amount of $9,515 for enforcing the settlement agreement. According to the joint stipulation and order entered on July 1, 2024, judgment will be entered against defendant for $675,000 in favor of plaintiff, for possession and forfeiture of the lease. Judgment will be stayed in accordance with the terms of the settlement agreement and the judgment will be reduced to $300,000 in accordance with the settlement agreement. Writ of possession will issue immediately in favor of plaintiff but lockout stayed for five months to October 31, 2024. If defendant is in escrow in accordance with the settlement agreement, then the lockout will be stayed to nine months while in escrow no later than January 31, 2025. The parties agreed that the Court retain jurisdiction under CCP §664.6 to enforce the settlement agreement terms. See Joint Stipulation and Order for Writ of Possession and to Retain Jurisdiction to Enforce Settlement after Dismissal filed on July 1, 2024, Exh. A. Plaintiff asserts that defendant Orb breached the settlement agreement as follows and is thus in default: (1) defendant failed to comply with the notices from the City of Los Angeles within a reasonable amount of time to bring the roll-up door of the property up to code, which exposes plaintiff to legal risk; and (2) defendant failed to make the first payment and said payment was also incomplete. Under the settlement agreement, under paragraph 9 Event of Default, the parties agree that breaching any term of the settlement agreement, the occurrence of any of the following shall constitute an Event of Default: (a) Failure by Orb to timely make any payment of the Settlement Consideration . . . . (e) Upon the occurrence of any Event of Default, Manchester shall be allowed to immediately seek possession of the Premises and file any related motion to confirm the stipulated judgment of $675,000 is reinstated. City of Los Angeles notices As to City of Los Angeles notices, the settlement agreement states that Orb will comply with the notices from the City of Los Angeles to bring space up to code (the roll-up door) within a reasonable amount of time after signing the agreement. Manchester will coordinate with Orb to coordinate with the city inspector. After signing the agreement, Orb shall contact and meet the city inspector to go over the required work necessary to comply with the notice. Settlement Agreement, 8(b). Plaintiff asserts that on June 4, 2024, plaintiffs counsel sent an email to defense counsel with respect to the notices from the LA Department of Building and Safety. On June 10, 2024, defense counsel emailed plaintiffs counsel that we have all of the intention within the reasonable amount of time, to contact the City. In opposition, defendant argues that plaintiffs claims regarding ADA compliance and the roll-up door are unfounded, as the roll-up door has been in place for nine years without any complaints or complications. In any event, defendant asserts, it has a reasonable amount of time to take any action with the city. Defense counsel states in his declaration that his assistant has already begun the process of making an appointment with the inspector online but has not been able to complete the required steps because the portal asks for an upload of all relevant documents. Defense counsel states that they contacted plaintiffs counsel for the notices. In reply, plaintiff argues that defendant misrepresents defendants known code violations and that letters from the City of Los Angeles were stipulated trial exhibits and discussed at defendants deposition. In a supplemental declaration, Milton Sznaider states that through his counsel he has arranged for an inspection by the city. Payment of rent, CAM, additional payment As to payment, the settlement agreement under monthly rent and CAM current charges states, For clarity, the Parties agree that the base rent will increase to $9,655.31 as of August 1, 2024 pursuant to the Lease; the CAM fee (not including utilities) is $2,093.50; the HVAC fees monthly is $38.88; the Utility cam fee will be determined after June 2024; and all late fees are 10% pursuant to the Lease. Settlement Agreement, 6(b). Defendant agreed also to pay an additional $3,000 a month due at the same time as rent. Settlement Agreement, 6(c). Plaintiff contends that defendant Orb Tertius failed to make a timely and complete payment in violation of the settlement agreement terms. Plaintiff asserts that on June 6, 2024, plaintiffs counsel sent an email to defense counsel that defendant owed landlord $11,506.47 in rent/CAM/utilities and $3000 in additional monthly payments for a total of $14,506.47 for June 2024 payable to plaintiffs counsel. Defendant paid $12,942.97. Plaintiff contends that defendant still owes $1,563.50 and that defendant incurred a late fee of $156.35. Plaintiff explains that on June 10, 2024, defense counsel emailed plaintiffs counsel that the amounts paid are not incorrect--$9,655.31 rent and $3,000 additional payment. In opposition, defendant argues that it did not materially breach the settlement agreement and has made substantial efforts to comply with the settlement agreements payment terms. It paid an initial $30,000 in accordance with 6.a.(a) and a $3,000 monthly payment (as required by 6.c.). Defendant asserts that a second $3,000 payment for July is about to be paid with the July rent. Defendant contends that the settlement agreement stipulated monthly rent and CAM charges but did not specify the exact amount of CAM charges for the period prior to August 2024. Defendant contends that it paid the old CAM rate of $530 with the June payment, as the settlement agreement seems to indicate in paragraph 6.b. that the increase will occur in August. In any event, the disputed amount, defendant argues, is only around $1,600 for June and for July and will be paid to satisfy plaintiffs insistence on its version of possible interpretations. In reply, plaintiff reiterates its position that defendant had not complied with the settlement agreement because it did not pay the proper monthly amounts and through its attorney to the plaintiff and that defendants version of possible interpretations is in bad faith as defendant has always known it underpaid the CAM charges. In a supplemental declaration by Milton Sznaider, he states that since the opposition was filed, he caused the transfer of $16,341.59 on July 5, 2024 to plaintiffs counsel. He also states that when the June payment was made, he was under the impression that the CAM payments would remain as they had been without increasing during the 5-8 month settlement period and that although he still believes that the payments were to be $530 he will continue to make the additional CAM payments. The Court finds that plaintiff has not shown that defendant has materially breached the settlement agreement and in default. As to the roll-up door, the settlement agreement specifies within a reasonable time and defendant has shown confirmation that they have been in contact with the inspector. As to payment, it appears that even if defendant were in default, it has paid the amount due and is no longer in default. Thus, the motion is DENIED WITHOUT PREJUDICE. ORDER The motion is DENIED WITHOUT PREJUDICE. Plaintiff is ordered to give notice. Moving party [or prevailing party] is ordered to give notice of ruling .

Case Number: EC063728 Hearing Date: July 18, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: July 18, 2024 TRIAL DATE: Disposed (8/16/21) CASE: Soni v. Cartograph, Inc. CASE NO.: EC063728 MOTION TO SET ASIDE/VACATE JUDGMENT AND STAY OF EXECUTION AND PROCEEDINGS MOVING PARTY : Plaintiff Surjit P. Soni dba The Soni Law Firm RESPONDING PARTY : Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. SERVICE: Filed on June 14, 2024 OPPOSITION: Filed on July 3, 2024 REPLY: Filed on July 11, 2024 RELIEF REQUESTED Plaintiff Surjit P. Soni dba The Soni Law Firm seeks an order setting aside and vacating the August 16, 2021 Judgment in this case and all orders issued by Judge Ralph C. Hofer since November 25, 2020. Plaintiff also requests a stay of execution on the judgment in this case until this motion is ruled upon. BACKGROUND On March 18, 2015, Plaintiff Surjit P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES 1-10. The Complaint asserted eight causes of action for: 1. Breach of Contract 2. Quantum Meruit 3. Money Had and Received 4. Book Account 5. Fraudulent Misrepresentation 6. Negligent Misrepresentation 7. Fraudulent Inducement to Enter into Contract 8. Breach of Guaranty On August 16, 2021, this Court entered Judgment in favor of Defendants and awarded attorneys fees and costs in the amount of $334,458.41. On October 22, 2021, Plaintiff filed an appeal as to the August 16, 2021 Judgment. The matter was finally disposed on August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021 Judgment. On June 14, 2024, Plaintiff filed the instant motion to set aside/vacate judgment and stay of execution and proceedings. On July 3, 2024, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed an opposition. On July 11, 2024, Plaintiff filed a reply. TENTATIVE RULING Plaintiff Surjit P. Soni dba The Soni Law Firms Motion to Set Aside and Vacate Judgment and Stay of Execution and Proceedings is DENIED. LEGAL STANDARD Pursuant to Code of Civil Procedure Section 663a, subdivision (a), A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: (1) After the decision is rendered and before the entry of judgment&(2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. (Code Civ. Proc., § 663a(a).) A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶](1) Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] (2) A judgment or decree not consistent with or not supported by the special verdict. (Code Civ. Proc., § 663.) DISCUSSION Plaintiff moves for an order setting aside and vacating the August 16, 2021 Judgment pursuant to Code of Civil Procedure Section 663a(a)(2). Plaintiff contends all orders issued by Judge Hofer after November 25, 2020 are void and should be vacated pursuant to Code of Civil Procedure Section 170.4, subdivision (c)(1) because Judge Hofer took inconsistent positions with respect to his relationship with Attorney Jeffrey G. Sheldon in sworn declarations and it impacted his impartiality in this present case. Furthermore, Plaintiff contends Judge Hofer refused to recuse himself from this case when Plaintiff brought a Code of Civil Procedure Section 170.6 Preemptory Challenge and Motion to Disqualify in 2020 on the basis that Judge Hofer was presiding over case involving someone who had extensive litigation against his close and personal friend. Moreover, Plaintiff contends only after appeal and affirmance of his rulings on attorney fee and costs motions did Judge Hofer voluntarily recuse himself in the interest of justice pursuant to Code of Civil Procedure Section 170.1, subdivision (a)(6)(A)(i). As such, Plaintiff argues Judge Hofer must be deemed disqualified pursuant to Code of Civil Procedure Section 170.6. Lastly, Plaintiff argues Judge Hofer should not have ruled on the sufficiency of his Statement of Disqualification pursuant to Code of Civil Procedure Section 170.3, subdivision (5)(c)(5). By contrast, Defendants argue Plaintiff fails to disclose the dispute between him and Attorney Sheldon occurred thirteen (13) years ago. Defendants also argue there is no evidence that Judge Hofer ever discussed Plaintiff with his friend. Similarly, Defendants contend in Judge Hofers order striking Plaintiffs Ex Parte Application seeking disqualification, he stated he had a past and casual relationship with Attorney Sheldon. On the other hand, Defendants contend Judge Hofers minute order recusing himself from the case, Siguo Su v. Sherry Lin, et. al. (Case No. 19GDCV00656) on July 28, 2020, states he was a close and personal friend of Jeffrey G. Sheridan and his family, so he appears to be discussing a different person than Attorney Sheldon. Likewise, Defendants assert there is no basis other than pure speculation to assume Judge Hofer recused himself due to a relationship with Attorney Sheldon, let alone create doubt as to his impartiality in handling this case. Moreover, Defendants argue Plaintiffs Ex Parte Application for disqualification raised no grounds for disqualification and was untimely, thus Judge Hofers order striking the application were proper under Code of Civil Procedure Section 170.4, subdivision (b). Additionally, Defendants contend the instant motion is untimely because it was filed outside the fifteen (15) day deadline. Finally, Defendants argue to the extent Plaintiff seeks reconsideration of Judge Hofers 2020 order striking the Ex Parte Application, it fails to comply with Code of Civil Procedure Section 1008. Here, the Court finds that the instant motion fails on both procedural and substantive grounds discussed more thoroughly below. First, Plaintiff seeks to set aside and vacate the August 16, 2021 Judgement. However, the Notice of Entry of Judgment was served on Plaintiffs counsel of record on August 25, 2021. (Soni Decl., ¶19n, 19r, Exs. 14, 18.) Thus, Plaintiff had until September 16, 2021 to seek to set aside or vacate the August 16, 2021 Judgment because it would have been fifteen (15) days from the service of the notice of entry. Further, the Court had until December 15, 2021 to move to set aside or vacate the judgment on its own pursuant to Code of Civil Procedure Section 663a, subdivision (b). Next, the instant motion does not raise any arguments to suggest the August 16, 2021 is based on an incorrect legal conclusion or erroneous judgment inconsistent with the facts of this case. Neither does the motion raise any arguments indicating the judgment is inconsistent with a special verdict. Although Defendants do not make this argument, the case law supporting a motion pursuant to Code of Civil Procedure 663a stand for the proposition that such motion may only be brought on the grounds set forth in Code of Civil Procedure Section 663. In Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, the court held A motion to vacate under section 663 may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist. ( Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 477.) However, [i]n ruling on a motion to vacate the judgment the court cannot in any way change any finding of fact. ( Id. ) Moreover, Plaintiff cites to no other legal authority that would allow this Court to set aside or vacate the August 16, 2021 and other orders issued by Judge Hofer, let alone on the basis raised in the present motion, i.e., Judge Hofers alleged inconsistent statements concerning his relationship Attorney Sheldon and his voluntarily recusal due to purported impartiality. Code of Civil Procedure 170.4, subdivision (c)(1), states in pertinent part, If a statement of disqualification is filed after a trial or hearing has commenced by the start of voir dire, by the swearing of the first witness or by the submission of a motion for decision, the judge whose impartiality has been questioned may order the trial or hearing to continue, notwithstanding the filing of the statement of disqualification. The issue of disqualification shall be referred to another judge for decision as provided in subdivision (a) of Section 170.3, and if it is determined that the judge is disqualified, all orders and rulings of the judge found to be disqualified made after the filing of the statement shall be vacated. (Code Civ. Proc., § 170.4(c)(1).) Even though Plaintiff cites this statute in support of his contention that Judge Hofers Judgment and orders are void, there is no indication that Plaintiffs Ex Parte Application was filed under the circumstances set forth in Code of Civil Procedure 170.4, subdivision (c)(1). Last, assuming arguendo that Plaintiff was seeking reconsideration of the order to strike his Ex Parte Application for Disqualification on the basis that Judge Hofers inconsistent statements regarding his relationship with Attorney Sheldon warrants disqualification, the motion does not meet the requirements set forth in Code of Civil Procedure Section 1008. Pursuant to Code of Civil Procedure Section 1008, subdivision (a), [w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc., § 1008(a).)¿As it relates to new or different facts, circumstances, or law under Code of Civil Procedure Section 1008, subdivision (a), the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.¿ ( Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Furthermore, facts of which the party seeking reconsideration was aware at the time of the original ruling are not new or different. ( In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)¿ In this instant case, Plaintiff does not appear to set forth new or different facts, or arguing that theres been a change in the law, and such motion would be untimely as it would not have been filed within the ten (10) days required under Code of Civil Procedure Section 1008. CONCLUSION Based on the foregoing, Plaintiff Surjit P. Soni dba The Soni Law Firms Motion to Set Aside and Vacate Judgment and Stay of Execution and Proceedings is DENIED. MOTION TO CORRECT THE JUDGMENT MOVING PARTY: Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. RESPONDING PARTY : Plaintiff Surjit P. Soni dba The Soni Law Firm SERVICE: Filed on June 20, 2024 OPPOSITION: Filed on July 3, 2024 REPLY: Filed on July 9, 2024 RELIEF REQUESTED Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. seek an order correcting the spelling of Plaintiff Surjit P. Sonis name in the final judgment. BACKGROUND On March 18, 2015, Plaintiff Surjit P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES 1-10. The Complaint asserted eight causes of action for: 1. Breach of Contract 2. Quantum Meruit 3. Money Had and Received 4. Book Account 5. Fraudulent Misrepresentation 6. Negligent Misrepresentation 7. Fraudulent Inducement to Enter into Contract 8. Breach of Guaranty On August 16, 2021, this Court entered Judgment in favor of Defendants and awarded attorneys fees and costs in the amount of $334,458.41. On October 22, 2021, Plaintiff filed an appeal as to the August 16, 2021 Judgment. The matter was finally disposed on August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021 Judgment. On June 20, 2024, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed the instant motion to correct the judgment. On July 3, 2024, Plaintiff filed an opposition. On July 9, 2024, Defendants filed a reply. TENTATIVE RULING Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion to Correct the Judgment is GRANTED. LEGAL STANDARD Pursuant to Code of Civil Procedure Section 473, subdivision (a)(1), The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party , or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars ; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473(a)(1).) Similarly, The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc., § 473(d).) Essentially, [a] court of general jurisdiction has the power, after final judgment, and regardless of lapse of time, to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself , so that the records will conform to and speak the truth. [Citations.] ( Ames v. Paley (2001) 89 Cal.App.4th 668, 672.) DISCUSSION Here, Defendants contend there is a clerical error in the Final Judgment entered on August 16, 2021. Specifically, Defendants assert the Final Judgment contains a misspelling of Plaintiff Surjit P. Sonis name in the fourth paragraph on line 17. The fourth paragraph, line 17 spells Plaintiffs first name as Surgit, instead of Surjit. (Weisel Decl., ¶2, Ex. A.) In opposition, Plaintiff argues correction of the Final Judgment is both unnecessary and a wasted exercise because the judgment is void or voidable as a result of Judge Hofers voluntary self-recusal in the interests of justice. As addressed in the tentative for Plaintiffs Motion to Set Aside and Vacate Judgment, Plaintiff fails to raise arguments pursuant to Code of Civil Procedure Section 663 that supports setting aside or vacating the Final Judgment. Furthermore, Plaintiffs contention that Code of Civil Procedure Section 473, subdivision (d) only relates to errors made by the clerk or the Court is incorrect. As cited in the legal standard section of the tentative, California courts have interpreted Code of Civil Procedure Section 473, subdivision (d) to include errors by legal counsel. Thus, Defendants properly seek relief under Code of Civil Procedure Section 473, subdivision (d) in the instant motion. Lastly, Plaintiff does not refute that his first name is misspelled in the Final Judgment. CONCLUSION Based on the foregoing, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion to Correct the Judgment is GRANTED. MOTION FOR ATTORNEYS FEES MOVING PARTY: Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. RESPONDING PARTY : Plaintiff Surjit P. Soni dba The Soni Law Firm SERVICE: Filed on September 8, 2023 OPPOSITION: Filed on December 29, 2023 REPLY: Filed on January 5, 2024 RELIEF REQUESTED Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. seek an order awarding the reasonable attorneys fees and costs incurred on appeal and post-appeal in the amount of $109,021.00. BACKGROUND On March 18, 2015, Plaintiff Surjit P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES 1-10. The Complaint asserted eight causes of action for: 1. Breach of Contract 2. Quantum Meruit 3. Money Had and Received 4. Book Account 5. Fraudulent Misrepresentation 6. Negligent Misrepresentation 7. Fraudulent Inducement to Enter into Contract 8. Breach of Guaranty On August 16, 2021, this Court entered Judgment in favor of Defendants and awarded attorneys fees and costs in the amount of $334,458.41. On October 22, 2021, Plaintiff filed an appeal as to the August 16, 2021 Judgment. The matter was finally disposed on August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021 Judgment. On September 8, 2023, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed the instant motion for attorneys fees. On December 29, 2023, Plaintiff filed an opposition. On January 5, 2024, Defendants filed a reply. TENTATIVE RULING Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion for Attorneys Fees is GRANTED in the amount of $109,021.00. OBJECTIONS TO EVIDENCE The Court OVERRULES Plaintiffs objections to the declaration of Jessica Weisel. LEGAL STANDARD Neither party to the arbitration may recover costs or attorney's fees incurred in preparation for or in the course of the fee arbitration proceeding with the exception of the filing fee paid pursuant to subdivision (a) of this section. However, a court confirming, correcting, or vacating an award under this section may award to the prevailing party reasonable fees and costs incurred in obtaining confirmation, correction, or vacation of the award including, if applicable, fees and costs on appeal . (Bus. & Prof. Code, § 6203(c).) DISCUSSION Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) seek $109,021.00 in attorneys fees consisting of $86,946 in fees for litigation or collection efforts, $13,705.00 in fees for preparing the instant motion, and $9,000.00 in additional fees for filing a reply to the opposition. Here, the parties do not dispute Defendants were the prevailing parties on appeal and are entitled to attorneys fees and costs. However, Plaintiff contends the Court of Appeal only awarded Defendants costs on appeal. This argument is irrelevant because Defendants may also recover reasonable attorneys fees and costs associated with having to obtain confirmation of the arbitration award including appellate costs and fees. Defendants done just that by opposing Plaintiffs appeal of the August 16, 2021 Judgment that confirmed the arbitration award. Next, Plaintiff contends Defendants cannot recover attorneys fees because they were represented by pro bono counsel. The California case law does not support such contention. In Aerotek, Inc. v. Johnson Group Staffing Company, Inc. (2020) 54 Cal.App.5th 670, the court reiterated even attorneys who perform services pro bono may obtain reasonable attorney fees under a fee-shifting statute. ( Aerotek, Inc. v. Johnson Group Staffing Company, Inc. (2020) 54 Cal.App.5th 670, 683.) Finally, Plaintiff asserts Defendants are seeking recovery at excessive billing rates where the motion fails to provide adequate descriptions of the work performed and contain time entries that are blocked billed. As such, Plaintiff argues a negative lodestar of at least 30 percent should be placed on the billing rates requested. However, Defendants advance the declaration of their attorney Jessica Weisel, which attests to the prevailing market rates for appellate lawyers involving complex litigation issues. (Weisel Decl., ¶¶37-46.) Additionally, Weisel attests to the number of hours expended by each attorney and paralegal in this matter in connection to the preparing the response brief to the second appeal, holding a moot court, preparing for oral argument, and even engaging in settlement talks. ( Id. at ¶¶27-35.) Thus, Defendants describe the type of work that was performed and the associated hours expended to complete these tasks including preparing the present motion. CONCLUSION Based on the foregoing, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion for Attorneys Fees is GRANTED in the amount of $109,021.00. Dated: July 18, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court

Case Number: 24STCV00249 Hearing Date: July 18, 2024 Dept: 78 DEPT: 78 OSC DATE: 07/18/2024 CASE NAME/NUMBER : MARTA ELVIRA RODRIGUEZ CAPACHO vs NUEVO SAN MIGUEL RESTAURANT GROUP INC. , et al. REQUEST FOR COURT JUDGMENT AGAINST [DEFAULTING PARTY] : Nuevo San Miguel Restaurant Group Inc. RECOMMENDATION: CONDITIONAL GRANT: Principal damages: $44,886.12 Attorneys fees: $1,736.58 Interest: $322.14 Costs: $619.31 TOTAL: $47,564.15 TENTATIVE Plaintiff Marta Elvira Rodriguez Capacho (Plaintiff) filed this action against Nuevo San Miguel Restaurant Group Inc. (Defendant) and Does 1 through 20 for damages arising from her employment with Defendant as a waitress . Plaintiff sets forth eight causes of action for (1) failure to pay wages, (2) failure to pay minimum wages, (3) failure to pay overtime compensation, (4) failure to pay meal and rest periods, (5) failure to pay itemized wage and hour statements, (6) waiting time penalties, (7) failure to permit inspection of personnel and payroll records, and (8) unfair competition . Plaintiff seeks default judgment against Defendant, and she has properly dismissed all unnamed Doe defendants. (Req. for Dismissal, June 21, 2024.) The request for default judgment submitted on June 21, 2024 is CONDITIONALLY GRANTED provided Plaintiff submits a new CIV-100 which completes Item 8 . Even though Defendant is not an individual defendant (Req. for Judicial Notice, June 21, 2024 ) , this section must still be completed pursuant to CRC 3.1800(a)(5) . Item 8(e) expressly provides for business entities. Upon Plaintiff submitting a new CIV-100 in conformity with the foregoing, the following shall apply. Principal Damages Plaintiff seeks $44,886.12 in principal damages , as pled in the complaint , for the following: U npaid minimum wage compensation ( $8,196.00 ) , unpaid overtime compensation ( $4,180.96 ), payment of meal and rest period compensation ( $23,187.76 ), damages pursuant to Labor Code §226 ( $4,000.00 ), w aiting time penalties pursuant to Labor Code §§201-203 ( $4,571.40 ), and statutory penalties pursuant to Labor Code §1198.5 ( $750.00 ). Plaintiff sufficiently supports the $44,886.12 in principal damages requested , and it is therefore granted. Interest Plaintiff seeks prejudgment interest in the amount of $2,250.90 based on 10% per annum of the principal damages . However, Plaintiff does not demonstrate that she is entitled to prejudgment interest of 10% for the entirety of the principal amount. For example, this prejudgment calculation includes $23,187.76 for meal and rest break penalties. A claim for meal and rest break penalties under Labor Code section 226.7 is not an action brought for nonpayment of wages that entitles a plaintiff to attorney fees and interest. ( Id . at p. 1259; Naranjo v. Spectrum Security Services, Inc . (2019) 40 Cal.App.5th 444, 475.) Plaintiff is entitled to prejudgment interest on only her lost wages. Interest is awarded as to Plaintiffs damages in the amount of $12,376.96 ($8,196.00 + $4,180.96) for unpaid wages . Pursuant to Labor Code § 218.6, this amount is multiplied by a 10% interest rate for annual interest in the amount of $ 1,237.70 (rounded up by the cent) . This amount is then divided by 365 days for a daily interest of $ 3.39 . Plaintiff seeks interest from January 4, 2024 to entry of default judgment , which was on April 8, 2024. (See Entry of Default, April 8, 2024.) The amount of $ 3.39 multiplied by 95 days for prejudgment interest equates to $322.14 . Therefore, prejudgment interest in the total amount of $322.14 will be awarded . Attorney Fees Plaintiff seeks $8,531.50 in attorney fees. However, Plaintiffs request for attorneys fees is greater than that listed in the Los Angeles Superior Court, L ocal Rule 3.214 fee schedule. An application for a fee greater than listed in the foregoing schedule because of extraordinary services must include an itemized statement of the services rendered or to be rendered.¿ ( Local Rule 3.214 (d). ) Although Plaintiffs counsel provides an itemized statement of services , Plaintiffs counsel has not demonstrated that the work performed on this case was extraordinary within the meaning intended by Local Rule 3.214(d) . Consequently, the Court find s that no extraordinary services were rendered to justify the total fee requested greater than the fee schedule. Pursuant to Local Rules of Court 3.214 , the following will apply: $10,000.01 to $50,000, $690 plus 3% of the excess over $10,000 . Plaintiff is granted $1,736.58 in attorneys fees. The amount of $1,736.58 allowable is based on the following calculation: ($44,886.12 - $10,000) x 3% + $690 = $1,736.58 Costs Plaintiff seeks costs in the amount of $696.52 for $ 558.26 in clerks filing fees, $61.05 in process servers fees, $17.21 in postage fees, and $60.00 in investigation fees via Transunion. The clerks filing fees and process servers fees fees are allowable pursuant to CCP § 1033.5 (a)(1) and (a)(4) . However, investigation fees and postage are not ( CCP § 1033.5 (b)(2) and (b)(3) ) ; the non-conforming costs of $77.21 will be stricken . Plaintiff is granted $619.31 in costs. Conclusion Plaintiff is entitled to default judgment in the reduced amount of $47,564.15 , consisting of $44,886.12 in damages, $ 322.14 in prejudgment interest, $1,736.58 in attorney s fees, and $619.31 in costs .

Case Number: 24STCV05755 Hearing Date: July 16, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 16, 2024 Case Name: Emir Phillips v. Gary Fidler, et al. Case No.: 24STCV05755 Motion: (1) Special Motion to Strike (anti-SLAPP) (2) Special Motion to Strike under CCP (anti-SLAPP) Moving Party: (1) Defendants Gary D. Fidler and Gary D. Fidler, APLC (2) Defendants Amanda Robertson and Barham 22 nd Street LLC Responding Party: (1) and (2) Plaintiff Emir Phillips, in pro per Tentative Ruling: Defendants Gary D. Fidler and Gary D. Fidler, APLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract, GRANTED as to protected conduct incorporated into the sixth cause of action for breach of privacy (Complaint, 7:21-22) and DENIED as to the unprotected conduct in the sixth cause of action for breach of privacy (Complaint, 7:23-25-8:1-3.) Defendants are awarded fees in the amount $9,500. Defendants Amanda Robertson and Barham 22 nd Street LLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract. Defendants are awarded fees in the amount $6,412.50. I. Background Plaintiff alleges Defendants defamed Plaintiff and painted him in a false light when they attached his LinkdIn page as an exhibit to a pending unlawful detainer complaint and made false allegations regarding his employment. Plaintiff alleges Defendants falsely stated or conveyed the meaning that he was engaging in the unauthorized practice of law. Plaintiff alleges Defendants have also breached the lease agreement by filing the pending unlawful detainer action. Plaintiff alleges Defendants have also violated his privacy by setting up security cameras on the rental premises. On March 7, 2024, Plaintiff filed a complaint against Defendants Gary Fidler, esq., Gary D. Fidler APLC, Barham 22 nd Street, LLC and Amanda Robertson. Plaintiff alleges (1) defamation; (2) false light; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; (5) breach of lease agreement; and (6) breach of the right of privacy. II. Discussion Defendants Gary D. Fidler and Gary D. Fidler, APLC (collectively, Fidler) and Defendants Barham 22 nd Street, LLC (Barham) and Amanda Robertson (collectively, Landlord Defendants) move to strike each cause of action alleged in Plaintiffs complaint pursuant to Code of Civil Procedure section 425.16. Barham is the corporate landlord of the premises leased by Plaintiff that is the subject of a pending unlawful detainer (UD) action. Robertson is Barhams principal. Fidler is the attorney of record for Barham in the UD action. Fidlers anti-SLAPP Motion is directed to all causes of action. Landlord Defendants anti-SLAPP Motion is only directed to the first through fifth causes of action and excludes the sixth cause of action for breach of privacy. Fidler and Landlord Defendants anti-SLAPP Motions substantially overlap. For this reason, both anti-SLAPP Motions will be analyzed together. Where their arguments deviate from one another, they will be discussed separately. A. Request for Judicial Notice Fidlers request for judicial notice (RJN) of the Unlawful Detainer Complaint filed by Defendants against Plaintiff is GRANTED as to its filing but not the truth of the underlying allegations. B. Objections Fidler objects to Plaintiffs surreply filed on July 8, 2024. Plaintiff was not entitled to file a surreply. However, the improper surreply does not prejudice the Defendants and no further briefing is required. C. Legal Standard A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc., §425.16, subd. (b)(1).) As used in this section, act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., §425.16, subd. (e).) Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has at least minimal merit. If the plaintiff cannot make this showing, the court will strike the claim. ( Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether first prong is met based on gravamen test but must determine whether each factual bases supplies the element of claim or merely provides context].) Bonni expressly rejected the gravamen test, which had been applied in the past. ( Bonni, supra , 11 Cal.5th at 1009.) On the first step, courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. ( Bonni, supra , 11 Cal.5th at 1009.) Once defendant demonstrates that a cause of action arises from protected conduct, the burden shifts to plaintiff on the second step to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) The second prong of the statute deals with whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff. A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as an anti-SLAPP. With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit. ( Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) The probability of prevailing is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict. Thus, in opposing a anti-SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. ( Taus v. Loftus (2007) 40 Cal.4th 683, 714 (a summary-judgment-like procedure).) Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks even minimal merit' constitutes anti-SLAPP. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) In order to establish a probability of prevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim. ( La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 470.) D. Fidler and Landlord Defendants satisfy their burden on the first prong of anti-SLAPP as to the first through fifth causes of action; Fidler satisfies the first prong of anti-SLAPP as to the sixth cause of action The filing of a lawsuit is an exercise of the First Amendment right to petition the government. Consequently, claims that arise out of the filing of a suit arise from protected activity for purposes of the anti-SLAPP statute. ( Bonni , supra , 11 Cal.5th at 1024.) Plaintiffs causes of action are based on Defendants filing of the pending UD action against him, their attachment of his LinkdIn profile to the UD complaint and their allegations regarding his employment status in the UD complaint. (Complaint, 3:3-19 (allegations regarding statements made in UD complaint and action); 3:26-27 (allegations that UD action itself breached the lease agreement).) These statements qualify as protected statements under Code of Civil Procedure section 425.16, subdivisions (e)(1) and (2) as any written or oral statement or writing made before a&judicial proceeding& and any written or oral statement or writing made in connection with an issue under consideration by a&judicial body (hereinafter referred to as the Protected Conduct). The Protected Conduct necessarily supplies an essential element of Plaintiffs defamation, false light, NIED, IIED and breach of lease claims, as required to satisfy the first prong under Bonni . Plaintiff explicitly alleges that the Protected Conduct is the conduct upon which these causes of action are based. (Complaint, 5:24-25 (defamation); 6:9-10 (false light); 6:20-21 (NIED); 7:3-4 (IIED); 7:14-15.) As such, Fidler and Landlord Defendants satisfy the first prong as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of lease. Fidler also moves to strike the sixth cause of action for breach of privacy. Plaintiffs sixth cause of action is based explicitly on Defendants installation of security cameras. (Complaint, 7:23-25.) Installation of security cameras does not qualify as protected conduct (the Unprotected Conduct). However, Plaintiff incorporates all preceding allegations of protected conduct, raising doubt as to whether he bases his breach of privacy claim in part on the Protected Conduct . In his surreply, Plaintiff removes any doubt as to whether the Protected Conduct supplies an element of the breach of privacy claim. (Plaintiffs Reply filed on July 8, 2024, 4:20-25-5:1-5.) Plaintiff argues Defendants invaded his right to privacy by attaching his LinkdIn page to the UD complaint. ( Id. ) As such, Plaintiffs sixth cause of action is based in part on Protected Conduct and in part on Unprotected Conduct. Defendant Fidlers anti-SLAPP motion therefore proceeds to the second prong as to the Protected Conduct alleged in the sixth cause of action. The Unprotected Conduct is outside the scope of section 425.16 and is unaffected by the outcome of Fidlers anti-SLAPP motion. Even if Fidler prevails on his motion as to the Protected Conduct alleged in the sixth cause of action, the sixth cause of action would still be pending based on the Unprotected Conduct. The allegations of protected conduct would merely be excised from the sixth cause of action. ( Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394, 398 (anti-SLAPP statute should be used like a scalpel, just as an ordinary motion to strike is, excising the protected activity from the mixed cause of action but leaving the cause of action intact as to the unprotected activity).) Plaintiffs response to Defendants first prong arguments misunderstands the basis for Defendants claim of protected conduct. Plaintiff argues that section 425.16 does not apply, because the parties dispute is a private dispute in which the public has no interest. However, public interest or a public issue is only required under Code of Civil Procedure §425.16(e)(3) and (4). Defendants are not arguing protected conduct based on subsections (e)(3) or (e)(4). Defendants argue protected conduct based on subsections (e)(1) and (e)(2), statements before a judicial body or statements in connection with an issue under review by a judicial body. Defendant Fidler and Landlord Defendants therefore satisfy the first prong of anti-SLAPP as to the first through fifth causes of action. Based on Plaintiffs surreply, the first prong of anti-SLAPP is satisfied as to the Protected Conduct alleged in the sixth cause of action for breach of privacy. E. Plaintiff fails to satisfy his burden on the second prong On the second prong, the Court accept[s] as true all evidence favorable to the plaintiff and assess[es] the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks even minimal merit' constitutes anti-SLAPP. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) Because Defendants have satisfied their burden on the first prong of the anti-SLAPP statute as to the first through fifth causes of action, the burden shifts to the Plaintiff to establish the probability of prevailing on those claims. ( Ralphs Grocery Co. , supra , 17 Cal.App.5th at 261.) Plaintiff must establish each element of these causes of action with admissible evidence. ( Id. ) However, a defendant moving to strike under CCP §425.16 may assert an affirmative defense on the second prong of anti-SLAPP. ( Peregrine Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 (defendant established that plaintiff investors claims were time barred as a matter of law and plaintiff failed to establish likelihood of prevailing in face of that showing).) [A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense. ( Id. ) Once the defendant demonstrates that a plaintiffs claim is barred by an affirmative defense, the plaintiff must demonstrate that a probability of prevailing despite that affirmative defense. ( Id. ) i. Plaintiff fails to submit prima facie evidence establishing the probability that he will prevail Plaintiff fails to demonstrate the probability of prevailing on the first through fifth causes of action, because (1) Plaintiff fails to submit prima facie evidence establishing the elements of the first through fifth causes of action and (2) Fidler and Landlord Defendants establish an absolute affirmative defense based on Civil Code section 47(b), the litigation privileged. Plaintiffs evidence consists of (1) emails regarding the security camera (Opposition, Ex. 1); (2) Plaintiffs resume or curriculum vitae (Opposition, Ex. 2); (3) a copy of Plaintiffs drivers license and a copy of an Enrollment to Practice Before the Internal Revenue Service (Opposition, Ex. 3); and (4) various news articles submitted to establish Plaintiffs Internet presence (Opposition, Ex. 4). Plaintiff also submits an unauthenticated document allegedly evidencing his Doctorate of Business Administration. (Surreply, Ex. 1.) Plaintiffs evidence is inadmissible, because it is not authenticated. Even if it were considered, it fails to establish that the statements made in the UD proceeding were false or misleading, or that Plaintiff suffered any damages, including the severe emotional distress required to recover for NIED and IIED. The emails pertain to the Unprotected Conduct, which is outside the scope of the anti-SLAPP. None of these documents are authenticated, nor are they relevant to Plaintiffs first through fifth causes of action or the sixth cause of action to the extent based on the Protected Conduct. Plaintiffs evidence does not demonstrate how the LinkedIn page was false, how the UD Complaint painted him in a false light or how any of the allegations in the UD Complaint were false. With regard to the UD Complaints allegation that Plaintiff referred to himself on LinkedIn as DBA JD, the complaint does not allege that Plaintiff represents himself to be lawyer admitted to practice law. (RJN, Ex. 1, Unlawful Detainer Complaint, p. 2 of 3.) Defendants alleged, If DBA is a statement by Defendant Emir Phillips that he is doing business as JD, this too, is a false representation, since unless he is licensed to practice law in Arkansas, he has been disbarred by the California State Bar. ( Id. ) Defendants allegation is not a statement of fact, e.g. Phillips is representing himself to be a barred lawyer. Defendants allegation is an if, then statement, i.e. if Plaintiff intended DBA JD to mean he was doing business as a licensed lawyer, then such a statement would be false. Defamation must be based on a statement of fact. ( Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Plaintiff fails to establish that this conditional statement is an actionable assertion of fact or that it cast him in a false light. Plaintiffs evidence also fails to establish that the information on his LinkedIn page was private information or how attaching it to the Unlawful Detainer complaint was a serious invasion of privacy. Plaintiff fails to submit any evidence regarding LinkdIn, the nature of the information placed on LinkdIn, e.g. how it got there, how private that information is, whether there is a legally protected interest over information placed on LinkdIn, and why attaching it to a UD complaint would be a serious invasion of privacy. A plaintiff alleging an invasion of privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. ( Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 3940.) Plaintiff therefore fails to satisfy his burden on the second prong of anti-SLAPP. Plaintiff fails to submit prima facie evidence of each element of his first through sixth causes of action. ii. Defendants establish that Plaintiffs first through fifth causes of action, as well as the sixth cause of action to the extent based on Protected Conduct, are barred by the litigation privilege Civil Code section 47, subdivision (b) is an absolute affirmative defense to all tort causes of action, except the tort of malicious prosecution. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 322 (noting that there is not a complete overlap between statements protected under the anti-SLAPP statute and the litigation privilege.) [S]ection 47(b) operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution, whose requirements include malice, lack of probable cause, and termination in the plaintiff's favor. ( Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) Generally, the litigation privilege precludes liability in tort, not liability for breach of contract. If one expressly contracts not to engage in certain speech or petition activity and then does so, applying the privilege would frustrate the very purpose of the contract if there was a privilege to breach it. Thus, the privilege will apply to contract claims only if the agreement does not clearly prohibit the challenged conduct, and if applying the privilege furthers the policies underlying the privilege. ( Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 787 (on anti-SLAPP motion, litigation privilege did not apply to contract claims based on defendants breach of contractual obligation to conduct nonjudicial foreclosure in accordance with California law; application of privilege would undermine, not further, policy goals of litigation privilege).) Fidler and Landlord Defendants assert the litigation privilege as an affirmative defense. Based on Plaintiffs allegations, the Protected Conduct that supplies an essential element of the first through fifth causes of action is also protected by the litigation privilege under Civil Code section 47, subdivision (b). Plaintiffs first through fifth causes of action are based entirely on statements made by Fidler and Landlord Defendants in the pending unlawful detainer action. Such statements are a privileged publication under section 47, subdivision (b) as a publication made&in any&(2) judicial proceeding. Plaintiffs breach of contract action is based on Defendants filing of the unlawful detainer action. Plaintiff fails to demonstrate that the Lease Agreement clearly prohibits the filing of an unlawful detainer action. Moreover, the underlying policy goals of Civil Code section 47, subdivision (b) would be furthered if applied to Plaintiffs breach of contract claim. In opposition, Plaintiff fails to identify any applicable exception to the litigation privilege or any grounds to find that the litigation privilege does not apply. In his surreply, Plaintiff argues the litigation privilege does not apply, because (1) Defendants allegedly acted with malice and (2) Defendants acts were illegal. Plaintiff is incorrect that the litigation privilege does not apply to publications made with malice. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice. ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.) The intention of the party making the privileged communication is irrelevant because the privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. ( Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288.) While the litigation privilege does not apply to an action for malicious prosecution, Plaintiff does not allege such a claim. ( Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.) Plaintiff also fails to establish that the litigation privilege does not apply to illegal conduct. Plaintiff cites Flatley v. Mauro (2006) 39 Cal.4th 299 for the proposition that the litigation privilege does not apply to acts that are illegal as a matter of law. Flatley does not stand for that proposition. Flatley found that, while the litigation privilege and section 425.16 overlap, illegal conduct that may be protected by the litigation privilege may not necessarily be protected under CCP §425.16. ( Flatley, supra , 39 Cal.4 th at 323-325.) Applying the litigation privilege to some forms of unlawful litigation-related activity may advance those broad goals notwithstanding the occasional unfair result in an individual case. ( Id. at 324.) Flatley found that acts illegal as a matter of law are not protected conduct under Code of Civil Procedure section 425.16. ( Id. at 330-331 [defendants letter to plaintiff was extortion as a matter of law and therefore undeserving of protection by the anti-SLAPP statute].). Flatley made no such finding as to the litigation privilege. Plaintiff fails to establish that he can prevail in the face of Defendants showing that Plaintiffs claims based on Protected Conduct are barred by the litigation privilege. For this additional reason, Plaintiff fails to satisfy his burden on the second prong. D. Request for Attorneys Fees A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs incurred in connection with the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action. An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees). However, a fee award under the anti-SLAPP statute may not include matters unrelated to the anti-SLAPP motion, such as attacking service of process, preparing and revising an answer to the complaint, or summary judgment research. Similarly, the fee award should not include fees for obtaining the docket at the inception of the case or attending the trial court's mandatory case management conference because such fees would have been incurred whether or not the defendant filed the motion to strike. In short, the award of fees is designed to reimburse the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit. ( 596 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 (affirming trial court reduction of requested fees under CCP §425.16(c) from $152,529.15 to $28,290 based on finding that (1) hourly rate of $750 was excessive for San Diego and finding reasonable rate to be $275; (2) defendants improperly included work spent on tasks other than the anti-SLAPP motion and that were duplicative; and (3) the anti-SLAPP motion was only to one cause of action that was not especially novel or complex).) While a prevailing defendant on a anti-SLAPP is entitled to mandatory fees, he or she is entitled only to reasonable attorney fees, and not necessarily the entire amount requested. ( Id. ) A defendant who partially succeeds on an anti-SLAPP motion generally is considered a prevailing party and therefore entitled to fees and costs, unless the results of the motion were so insignificant that defendant did not achieve any practical benefit from bringing the motion. This determination lies within the broad discretion of the trial court. ( Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Only those fees and costs incurred in connection with the successful portion of the anti-SLAPP motion that is granted in part may be recovered. ( Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82.) The fee award is against the losing plaintiff, not the losing plaintiff's attorney. Plaintiff's counsel is not a party to the action and thus not subject to a fee award under CCP § 425.16. ( Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.) i. Fidler Request for Attorneys Fees Fidler moved to strike all six causes of action from the complaint. Fidler successfully struck the first through fifth and a portion of the sixth. As such, Fidler is entitled to mandatory fees as prevailing party on the anti-SLAPP motion. Although Fidler did not obtain dismissal of the entire sixth cause of action, he significantly reduced the conduct at issue therein. Fidler requests attorneys fees in the amount of $19,060 based on 15 hours of motion prep, 4 hours of opposition review and reply prep and an additional 1 hour for hearing attendance. Fidler therefore asks for a total of 20 hours @ $950/hr. To determine the reasonable hourly rate, courts consider the rate prevailing in the community for similar work. This market rate approach has been applied in cases involving in-house counsel, contingency fees, and pro bono work. In each of these cases, courts have refused to limit the market rate to the attorney's fee arrangement with the prevailing party. Although the terms of a fee contract may be considered, they do not compel any particular award. ( Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055-1056.) The court should consider the market rate for similar work or comparable legal service. ( Id. at 1057.) In doing so, the court might determine the relevant market to be that of insurance defense litigation and litigators, rather than civil litigation in general. The market rate for such services might be limited accordingly. ( Id . at 1057.) The amount of time Fidler spent on this motion is reasonable. However, Fidlers hourly rate is excessive. Fidler fails to establish that $950/hr is reasonable based on the market rate for similar work or comparable legal services. Fidlers request for attorneys fees is granted in the amount of $9,500 (20 hours @ $475/hr) ii. Landlord Defendants Request for Attorneys fees Landlord Defendants completely prevailed on its anti-SLAPP Motion, successfully striking the first through fifth causes of action. Landlord Defendants request for attorneys fees in the amount of $7,375 based on 13.5 hours. Of the 13.5 hours, 10 hours were @ $475/hr and 3.5 hours were @ $750/hr. The amount of time spent on the anti-SLAPP is extremely reasonable. The hourly rate of $750 is excessive for the reasons discussed in connection with Fidlers request for attorneys fees. Landlord Defendants are awarded $6,412.50 based on 13.5 hours @ $475/hr. Conclusion Defendants Gary D. Fidler and Gary D. Fidler, APLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract, GRANTED as to protected conduct incorporated into the sixth cause of action for breach of privacy (Complaint, 7:21-22) and DENIED as to the unprotected conduct in the sixth cause of action for breach of privacy (Complaint, 7:23-25-8:1-3.) Fidler Defendants are awarded attorneys fees in the amount $9,500. Defendants Amanda Robertson and Barham 22 nd Street LLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract. Landlord Defendants are awarded attorneys fees in the amount $6,412.50.

Case Number: 23STCV31057 Hearing Date: July 18, 2024 Dept: 68 Dept. 68 Date: 7-18-23 Case #23STCV31057 Trial Date: Not Set SPECIAL MOTION TO STRIKE MOVING PARTY: Defendants, Topa Insurance Company, et al. RESPONDING PARTY: Plaintiffs, Faramarz Massachi RELIEF REQUESTED Special Motion to Strike the Complaint SUMMARY OF ACTION Plaintiffs Faramarz and Mojgan Massachi allege a burst pipe caused significant water damage in their home, thereby leading to the submission of a claim to Defendants Topa Insurance Company and Hippo Analytics, Inc. The parties subsequently disputed the claim adjustment process which led to an appraisal hearing. The appraisal panel found in favor of Plaintiffs. On December 19, 2023, Plaintiffs file their complaint for 1. Breach of Contract; 2. Breach of the Implied Covenant of Good Faith and Fair Dealing; and 3. Violation of Bus. & Prof. Code, § 17200, et seq. Topa Insurance Company answered the complaint on January 22, 2024, and filed an amended answer on February 1, 2024. RULING : Denied Defendants Topa Insurance Company(Topa) and Hippo Analytics, Inc. (Hippo) move to strike limited portions of the introductory paragraphs, as well as the first, second, and third causes of action. [1] Defendants move on grounds that the identified allegations and claims arise from privileged and protected conduct. Plaintiff in opposition challenges the motion as relying on allegations not integral to the claim, thereby barring application of the statute. Plaintiffs also maintain a likelihood of prevailing on the merits even if Defendants shift the burden. Defendants in reply emphasize the reliance on the undisputed privilege conduct as integral to the claims, and therefore barred. Defendants also maintain Plaintiffs lack evidence of a probability of prevailing on the claim. Timing A special motion to strike must be filed within 60 days from service of the complaint (with an additional five days under Code of Civil Procedure section 1013(a) for service by mail), or at any later time that the court deems proper. (Code Civ. Proc., § 425.16, subd. (f).) The complaint was filed December 19, 2023. The December 26, 2023 filed proofs of service indicate personal service on both defendants on December 21, 2023. The instant motion was filed on February 16, 202457 days after service. The motion is timely. Application of the Anti-SLAPP Statute Defendants contend the complaint specifically arises from the allegations in the underlying complaint regarding the appraisal process. The appraisal process itself constitutes a protected activity under the litigation privilege. Hippo Analytics, Inc. also specifically notes that any separate and distinct conduct under the wrongful withholding of insurance benefits claim against Topa Insurance Company comprises a course of conduct without any direct nexus to the insurance based claims, and therefore barred. In addition to citation to the complaint, Defendant Topa Insurance Company also submits a declaration in support, which the court can rely upon in determining whether moving party meets the threshold for shifting the burden in a special motion to strike. (Code Civ. Proc., § 425.16, subd. (b)(2); Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679 [The court interprets the activities of the parties through the allegations in order to determine free speech activity but need not adhere to the strict form of the operative pleading in order to make such determinations].) Defendant offers the declaration in order to present the conclusions of the adjustment process, including the appraisal process. [Declaration of Kelly Yates.] Plaintiffs in opposition contend the allegations regarding the appraisal conduct constitute incidental allegations, in order to establish a pattern of conduct intended to delay or withhold benefits due under the policy. Plaintiffs deny any reliance on litigation privilege protected activity as any way integral to the sought after relief. Code of Civil Procedure section 425.16 provides that [a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." ( Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. ( Taus v. Loftus , supra , 40 Cal.4th at p. 712.) An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., § 425.16.) The anti-SLAPP applies where the allegations of the defendants protected activity are the gravamen or principal thrust of the cause of action. ( Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. ( Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute].) .) [W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons. ( Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 889.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Courts must draw a careful distinction between a cause of action based squarely on a privileged communication & and one based upon an underlying course of conduct evidenced by the communication. ( White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.) In determining the application of the special motion to strike statute, the court focuses not on the label of the cause of action, but on the underlying activities alleged in the challenged pleading. ( 1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. ( Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) [A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action. ( Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. ( Navellier v. Sletten , supra , 29 Cal.4th 82, 92.) The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint. ( California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. ( Navellier v. Sletten , supra , 29 Cal.4th at p. 89.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. ( Navellier v. Sletten , supra , 29 Cal.4th at p. 89.) Courts must draw a careful distinction between a cause of action based squarely on a privileged communication & and one based upon an underlying course of conduct evidenced by the communication. ( White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.) The challenged allegations of the complaint begins with the dispute over the scope and quality of the damages, thereby leading to the appraisal process. Hippo was responsible for the claim adjustment process on behalf of Topa. As the dispute progressed, Hippo subsequently hired its own counsel for representation in the appraisal process and settlement discussions. The communications were not productive, and Hippo instead demanded an Examination Under Oath (EUO) as a condition of participating in the appraisal process. According to Plaintiffs, the focus of the EUO regarded a prolonged disagreement over tile replacement. The appraisal process eventually occurred and the panel found in favor of Plaintiffs. Defendants also challenge the damages claim. [5:24-28; 6:1-9:18; 11:1-12:17.] The parties agree that certain alleged underlying conduct, such as the appraisal process itself, constitutes litigation privileged activity. Plaintiffs contend a distinction exists between Plaintiffs efforts to recover damages for the wrongful withholding of insurance benefits due under the policy, which insulates the action from any privileged conduct bar. Section 1152, subdivision (a), provides that offers of compromise are inadmissible to prove the liability of the offeror for the loss or damage. In insurance litigation, [t]he language of this section does not preclude the introduction of settlement negotiations if offered not to prove liability for the original loss but to prove failure to process the claim fairly and in good faith. (Citation.) ( Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 915.) Although Defendants challenge the cases as not directly addressing a special motion to strike or the insurers right to petition, the court finds the language instructive. The issue is not the content of the settlement offer itself, if any, but the course of conduct presented as alleged indifference towards meaningful negotiations. In a second case involving alleged bad faith handling of an uninsured motorist claim, a court found the course and conduct of the insurer in no way related to furthering the course and conduct of its rights to petition. The conduct centers on the delay in responding to and resolving plaintiff's claim. None of this conduct involved [Insurers] right to petition. While communications preparatory to bringing (or responding to) an action or arbitration might, under the proper circumstances, be deemed to fall within the scope of section 425.16 (citations), the conduct complained of here does not cross this threshold. The outlined actions (or nonactions) occurred as part of a coverage dispute between an insurer and its insured, and occurred long before any arbitration or other proceeding commenced. (Citation.) ... While ... an insurer is entitled to defend itself against unmeritorious claims, the fact that a dispute exists that might ultimately lead to arbitration does not make every step in that dispute part of a right to petition. ( Beach v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 93-94; Miller v. Zurich American Ins. Co. (2019) 41 Cal.App.5th 247, 258-259.) Again, contrary to the argument in reply, the court finds the cases on-point. While Plaintiffs rely on the appraisal valuation total as a demonstration of the large disparity between the parties positions thereby constituting supporting evidence of the wrongfully withheld benefits, the resulting sum in no way necessarily interlinked the entire adjustment process leading up to the privileged appraisal. The course of conduct specifically articulates a separate and distinct course of conduct leading up to the indisputably privileged appraisal. The law and public policy support a finding for a separate and distinct course of unprivileged conduct leading up to the appraisal process itself constituting unprivileged conduct. The cases specifically reject an insurers right to incorporate non-privileged conduct under the guise of the right to petition as a means of thwarting potential bad faith claims. The extensive case law on both the general subject and specific case regarding insurance bad faith causes of action therefore categorically leads to the conclusion of a failure to shift the burden as to the first prong by Topa. The insurer, however, also raised a valid argument regarding the distinction in bad faith claims as to adjusters on which Plaintiffs present no apparent opposition. An insurance adjuster in no way participates in the contractual relationship between the parties. ( Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1416.) Again, the conduct of Hippo itself leading up to the appraisal was by no means privileged conduct. While Hippo is named in all causes of action, the scope of the motion requires a finding of privileged conduct barring all claims. Consideration of the validity of the claims based on the entitlement to seek damages against a non-contracting party requires a finding beyond the scope of the subject motion. The court motion is therefore denied as to this separate argument regarding the Hippo as a proper to any and all claims in its role as adjuster to Topa. Finally, to the extent the second prong of the test depends on the litigation privilege barring all claims, the court finds the litigation privilege inapplicable to the subject cased based on the relied upon authority in the first section. [See Declaration of Alex Cohen.] The motion is therefore DENIED in its entirety as to both defendants. Any counter motion for attorney fees by Plaintiffs must be filed in a separate noticed motion. [See Declaration of Sara McClain.] Demurrer to the complaint scheduled for July 23, 2024. Defendants to provide notice. [1] Page 5:24-28; 6:1-28; 7:1-28; 8:1-8; 8:9-28; 9:1-4; 9:5-28; 10:1-18; 11:1-15; 11:16-28;12:1-3; 12:4-17.

Case Number: 22STCV22161 Hearing Date: July 18, 2024 Dept: 48 Hearing on Motion for Order to Challenge Plaintiff's Clawback The Court will not post a tentative. The Court will hear oral argument.

Case Number: 24STCP01548 Hearing Date: July 15, 2024 Dept: 9 Petitioner must double check the spelling and legibility of the new name on the proposed decree. If Petitioner is satisfied with the spelling and legibility of the new name on the proposed decree, NO APPEARANCE IS NECESSARY. If the new name is not clearly written and correctly spelled on the proposed decree, Petitioner must appear at the hearing to submit a corrected proposed decree. The petition is granted. A copy of the signed decree will be available in Room 112 of the Clerk's Office seven days after the date of the hearing. Once the proposed decree is signed, it cannot be amended without a new petition to change name.