First Niagara Bank Vs. Bates

HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 Tentative Ruling - 07/16/2024 Elizabeth Riles The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by Autonation Honda Fremont on 03/20/2024 is Granted in Part. This Tentative Ruling addresses defendant Edgren Motor Company, Inc. dba Autonation Honda Fremont’s (“Autonation”) two unopposed Motions to Compel plaintiffs Deborah Carter (“Carter”) and Russell Daniels (“Daniels”) (Carter and Daniels are collectively “Plaintiffs”) to Appear for their respective Depositions (the “Motions to Compel.”) The Motions to Compel are GRANTED IN PART, as set forth below. The Court ORDERS each of Carter and Daniels to appear for their respective deposition on dates mutually agreeable to the parties within forty-five days of the date on which the final Order on these Motions to Compel is entered. The Court ORDERS Plaintiffs to meet and confer with Autonation in good faith regarding dates for Plaintiffs’ respective depositions as ordered above. The Court ORDERS plaintiff Carter to pay a monetary sanction in the amount of $2,500.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Ms. Carter. The Court ORDERS plaintiff Daniels to pay a monetary sanction in the amount of $2,000.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Mr. Daniels. The Court notes possible defects in the relevant Notices of Deposition, which seek to conduct remote depositions of each of Plaintiffs by zoom videoconference but do not contain the location of the deposition officer. (See CCP §§ 2025.230, 2025.250, 2025.260 and CRC Rule 3.1010. Rule 3.1010 allows parties to conduct remote depositions, but the noticing party is required to make all arrangements to allow the deponent to participate remotely and expressly states that the deponent must appear “as required by statute.”) However, by failing to timely serve written objections to the Deposition Notices or to respond in any way to the Deposition Notices, the Court finds that Plaintiffs have waived any defects in the Notices of Deposition. Similarly, Plaintiffs have waived any objections to the present Motions to Compel by failure to timely respond. The Court has reviewed the evidence in support of Autonation’s monetary sanctions requests and finds that in the totality of the circumstances, including Plaintiffs’ in pro per status, Autonation’s out-of-pocket costs for court reporters, and the prior monetary sanctions awards against Plaintiffs in this action, the sanctions awards ordered above are appropriate. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 The Court reminds Plaintiffs that, although they may elect to represent themselves in pro per, they must comply with the same rules of civil procedure as litigants represented by professional legal counsel. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) The Court advises Autonation that Plaintiffs’ correct mailing address appears to be: 1705 E. 23rd STREET [not Avenue] Merced, CA 95340 Although Plaintiffs’ Complaint lists the wrong address, Plaintiffs’ Summons appears to contain the correct address. CONTESTING TENTATIVE RULINGS PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court’s own video-conferencing system. Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing date. To contest a tentative ruling, a party should do the following: First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion. Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed." Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone: Meeting ID: 160 5766 1931 1 669 254 5252, 16057661931# US (San Jose) 1 669 216 1590, 16057661931# US (San Jose) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 833 568 8864 US Toll-free

S-CV-0052500 Sierra Valley Construction Inc. vs. Swan Engineering Dropped. Default entered on 5/23/24. Default prove-up hearing is set for 02/24/25 at 1:00 pm in Dept. 40.

Case Number: 23STCV20484 Hearing Date: July 18, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT WELLS FARGO BANK, NATIONAL ASSOCIATION, Plaintiff, vs. DANIEL RAY GONZALEZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23STCV20484 [TENTATIVE] ORDER DENYING MOTION TO AMEND JUDGMENT Dept. 48 8:30 a.m. July 18, 2024 On August 25, 2023, Plaintiff Wells Fargo Bank, National Association filed this action against Defendant Daniel Ray Gonzalez as the Personal Representative of the Estate of Robert Kim Gonzales. On May 28, 2024, the Court entered default judgment. On June 18, 2024, Plaintiff filed a motion to amend the judgment nunc pro tunc so that the Judgment Debtors name can be corrected. (Motion at p. 1.) Counsel declares that [i]t has come to [her] attention that due to clerical error individually and was left out of Defendants name. (Ramirez-Browning Decl. ¶ 3.) The Estate has no funds because they were transferred to Gonzalez as personal representative. (Ramirez-Browning Decl. ¶ 4.) Plaintiff contends that Gonzalez is personally responsible for the debts and should be included as an individual in the judgment so Plaintiff can pursue collection of the judgment. (Ramirez-Browning Decl. ¶¶ 4-5.) The Complaint does allege that Gonzalez is sued in his individual capacity, and also as the Personal Representative of the Estate of Robert Kim Gonzales. (Complaint ¶ 2.) However, nowhere else was Gonzalez named in his individual capacity. The Complaints caption identifies the Defendants as DANIEL RAY GONZALEZ, as Personal Representative of ROBERT KIM GONZALES, Deceased, and DOES 1-20. Accordingly, summons issued for DANIEL RAY GONZALEZ, as Personal Representative of ROBERT KIM GONZALES, Deceased, and DOES 1-20. Plaintiff applied for service via publication and later filed a Proof of Publication that gave notice to DANIEL RAY GONZALEZ, as Personal Representative of ROBERT KIM GONZALES, Deceased, and DOES 1-20. Gonzalez was sued only as personal representative of the Estate. Gonzalez was never sued or served in his individual capacity. Adding him to the judgment in his individual capacity is not a correction of a mere clerical errorit is the addition of an entirely new defendant. [A] trial courts authority to amend its judgment nunc pro tunc is limited to correcting clerical errors in the judgment. ( Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1009.) Plaintiff may still be able to amend the judgment in other ways, such as by adding an alter ego of the original judgment debtor, but a nunc pro tunc amendment is not appropriate when this amendment is more than a mere clerical error. Accordingly, the motion to amend judgment is DENIED. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 18th day of July 2024 Hon. Thomas D. Long Judge of the Superior Court

24CV00800 BURDGE v. AIRSTREAM INC. AIRSTREAM’S MOTION TO STAY The motion to stay is denied. I. BACKGROUND Kathryn Burdge’s (“Burdge’) amended complaint, filed on March 26, 2024, alleges a violation of the Song-Beverly Consumer Warranty Act in relation to her purchase of a 2023 Airstream Atlas RV. She purchased the Airstream in Temecula, California and she resided in Page 6 of 9 Santa Cruz County at the time of the purchase. Burdge asserts various deficiencies/defects with the RV. In connection with the purchase of the Airstream, Burdge signed a Limited Warranty which stated, in part, the following: “LEGAL REMEDIES: EXCLUSIVE JURISDICTION FOR DECIDING LEGAL DISPUTES RELATING TO THE ALLEGED BREACH OF EXPRESS WARRANTY AND BREACH OF THE IMPLIED WARRANTIES ARISING BY OPERATION OF LAW AS WELL AS THOSE RELATING TO REPRESENTATIONS OF ANY NATURE RESTS IN THE COURTS WITHIN THE STATE OF MANUFACTURE, WHICH IS OHIO.” (Ex. B to Dec. of March.) This language is found on the second page of the Limited Warranty and is the second paragraph before the signature line for the purchaser. The sales contract is 6 pages long and signatures were required on each page and, on some pages, multiple signatures on each page. II. MOTION Airstream seeks to stay this action to allow Burdge to re-file the case in Ohio, the forum selection state. Airstream bases its motion on the above-referenced forum selection clause contained in the signed limited warranty. Airstream contends a motion to enforce a forum selection clause is a motion to stay (or dismiss) the action to allow a plaintiff to file in the proper court. Airstream argues the forum selection provision is mandatory and reasonable. Further, Airstream acknowledges Burdge cannot be compelled to waive her rights under Song-Beverly, and thus, it will stipulate to have the Ohio courts apply Song-Beverly in this case. Airstream contends a stay would allow for time to determine if the Ohio courts would apply Song-Beverly. If they will not, then Burdge could bring the case back to Santa Cruz. Burdge opposes the stay. She argues Airstream failed to provide evidence demonstrating she freely and voluntarily agreed to the forum selection clause. Even though Burdge signed the limited warranty “she had to sign the document even if she did not understand the importance of the forum selection clause.” (Opp at pg. 3.) That is, Burdge was required to sign the acknowledgment of document and that does not prove she waived her rights under Song-Beverly freely and voluntarily. Burdge asserts Airstream failed to provide evidence that the designated forum will not diminish her rights afforded under California law. Specifically, she argues, even if the court finds she freely and voluntarily agreed to the forum selection clause, Airstream cannot show that Ohio law will not diminish her substantive rights. Burdge contends Airstream’s offer to stipulate to have the Song-Beverly apply in Ohio is insufficient because the choice of law in the Limited Page 7 of 9 Warranty states that Ohio law will govern procedural issues and how the express warranty is construed and interpreted. III. DISCUSSION “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79; CCP § 128(a)(3) [“Every court shall have the power to do all of the following: To provide for the orderly conduct of proceedings before it, or its officers.”].) "The procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens." (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294.) “California law is ‘in accord with the modern trend which favors enforceability of such [mandatory] forum selection clauses. [Citations.] No satisfying reason of public policy has been suggested why enforcement should be denied a forum selection clause appearing in a contract entered into freely and voluntarily by parties who have negotiated at arm's length. For the foregoing reasons, we conclude that forum selection clauses are valid and may be given effect, in the court's discretion and in the absence of a showing that enforcement of such a clause would be unreasonable.’ [Citation.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 444-445.) “‘California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state's public policy.’ [Citation.]” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) “The party opposing enforcement of a forum selection clause ordinarily ‘bears the substantial burden of proving why it should not be enforced.’ [Citations.] That burden, however, is reversed when the claims at issue are based on unwaivable rights created by California statutes. In that situation, the party seeking to enforce the forum selection clause bears the burden to show litigating the claims in the contractually designated forum ‘will not diminish in any way the substantive rights afforded … under California law.’ [Citations.]” (Id.) (Emphasis added.) In this case, while she did sign the limited warranty, the court agrees with Burdge that the warranty was not signed knowingly as to the forum selection clause and that application of the clause would be unreasonable and/or unfair. The clause is buried in the second to the last paragraph and is written in legalese such that a reasonable consumer could not be expected to understand they were acquiescing to file a lawsuit in Ohio. The exclusive jurisdiction section does not adequately inform the consumer that they would need to file suit in Ohio for warranty issues, especially given that Burdge lives in California and purchased the Airstream in Page 8 of 9 California. The court also notes the length of the sales contract and number of signatures required as factors which balance in Burdge’s favor. The court does not find Airstream has carried its burden in demonstrating that Burdge’s substantive rights will not be diminished in any way if the case is brought in Ohio. Despite the offer of Airstream’s counsel to stipulate to apply California law in Ohio, there is no guarantee the Ohio courts will agree to this arrangement; that is, what is the effect of the stipulation in the Ohio courts? Second, Airstream’s proposal would create two pending actions, which does not promote judicial economy. Third, having California courts apply California law simply makes more sense in terms of protecting Burdge’s rights under the Song-Beverly Act and for efficient case management. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 9 of 9

SIMMONS, ET AL. VS. LIBERTY MUTUAL INSURAN Case Number: CVCV21-0198289 This matter is on calendar for review for status of removal. On December 1, 2021, the Court received a “Notice of Removal of State Action.” Based on the Notice, the Court suspended its jurisdiction pursuant to 28 USC § 1446. No Status Report has been filed. An appearance is necessary on today’s calendar to provide the Court with a status of the federal action. THE PEOPLE OF THE STATE OF CALIFORNIA VS. $12,276.00

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL. Case Number: CVG21-0000494 This matter is on calendar for review of the case. The Court notes that the matter is on calendar on Monday, July 22, 2024 at 1:30 p.m. in Department 23 for hearing on a Motion to Approve Stipulation for Judgment Entered in Civil Case and Approval of Motion to Affix Attorney’s Fees as an Element of Costs in Civil Judgment. The July 22, 2024 hearing is confirmed. A future review hearing will be calendared on July 22, 2024. Today’s review hearing is dropped from calendar. No appearance is necessary on today’s calendar.

Case Number: 21STCV11734 Hearing Date: July 17, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 17, 2024 Case Name: Deborah K. Ogawa v. American Honda Motor Co., Inc. Case No.: 21STCV11734 Motion: Motion for Attorneys Fees and Costs Moving Party: Plaintiff Deborah K. Ogawa Responding Party: Defendant American Honda Motor Co., Inc. Tentative Ruling: Plaintiffs Motion for Attorneys Fees and Costs is GRANTED in the amount of $70,212. As to Plaintiffs costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700. I. Background Plaintiff purchased a 2018 Honda Odyssey manufactured and distributed by Defendant American Honda Motor Co., Inc. Plaintiff alleges that the vehicle contained or developed defects during the warranty period. Plaintiff alleges that shepresented the vehicle to Defendant for repairs and Defendant was unable to repair the vehicle within a reasonable number of attempts. Plaintiff alleges Defendant failed to provide her with restitution pursuant to Song-Beverly Consumer Warranty Act. Plaintiff filed the operative Second Amended Complaint on November 8, 2021. Plaintiff filed a Notice of Conditional Settlement on May 3, 2024. II. Legal Standard A prevailing buyer in an action under Song-Beverly shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.¿¿(Civ. Code, § 1794,¿subd. (d).) The prevailing party has the burden of showing that the requested attorney fees were reasonably necessary to the conduct of the litigation, and were reasonable in amount. ( Robertson v. Fleetwood Travel Trailers of California Inc. ¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him]. ( Levy v. Toyota Motor Sales, USA, Inc .¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. ( Nightingale v. Hyundai Motor America¿ (1994) 31 Cal.App.4th 99, 104.)¿¿ ¿¿ A court may reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.¿¿( Morris v. Hyundai Motor America¿ (2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. ( Id. ¿at p. 38.) However, the analysis must be reasonably specific and cannot rely on general notions of fairness. ( Kerkeles¿v. City of San Jose¿ (2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyers damages recovery. ( Warren v. Kia Motors America, Inc.¿ (2018) 30 Cal.App.5th 24, 39.) III. Request for Judicial Notice Plaintiff and Defendant request judicial notice of court opinions in other Song Beverly cases discussing counsels rates. The request for RJN is granted. IV. Evidentiary Objections Defendants Objections to Shahians Declaration are overruled. Defendants Objections to Castros Declaration are sustained. Plaintiffs Objections to Stuhlbergs Declaration are overruled. IV. Discussion Plaintiff moves for attorneys fees as prevailing party under Civil Code §1794(d) and the parties settlement agreement. Plaintiff obtained a settlement of $82,500 from Defendant after three years of litigation wherein Defendant agreed that Plaintiff would be prevailing party for purposes of a fee motion. (Castro Dec., ¶78, Ex. 4.) Plaintiff argues she is clearly the prevailing party under Civil Code §1794(d) and is entitled to a mandatory fee award in the amount of $129,110.59 based on (1) $84,751.50 in attorneys fees for Strategic Legal Practices, APC (SLP); (2) a 1.35 multiplier enhancement; (3) $11,196.06 in costs and expenses for SLP; and (4) an additional $3,500 for Plaintiffs counsel to review the Opposition, draft the Reply and attend the hearing on the Motion. Plaintiffs attorneys fees are based on 164.6 hours of attorney time. Plaintiffs counsel identifies no fewer than nineteen attorneys who worked on this case. The hourly rates of these attorneys ranged from $350 to $650. Defendant does not dispute that Plaintiff is entitled to attorneys fees as prevailing party under Civil Code §1794(d). Defendant argues, however, that when the parties were negotiating settlement, Plaintiff represented that the attorneys fees would range from $40,000 to $50,000. Defendant argues Plaintiffs request for $129,110.59 in fees is excessive. Defendant argues Plaintiff is, at most, entitled to $21,000 for this cookie cutter litigation. Defendant objects to the hourly rate and number of attorneys assigned to the case as excessive. Defendant argues the hourly rate should be set at no more than $350/hr for all attorneys. Defendant objects to the number of hours as excessive given the cookie-cutter nature of Song Beverly litigation. Defendant attached as Exhibit A to the Opposition a table addressing each of the time entries submitted by Plaintiff. Defendant also objects to the costs requested and requests a reduction of $6,023. Number of hours excessive and improper time entries submitted Plaintiff counsel expended 164.6 hours on this litigation, which was pending for approximately three years and was litigated up to the eve of trial. Parties submitted motions in limine and engaged in a last minute mediation before Judge Stern. (Minute Order dated January 4, 2024.) · Improper redactions. Based on a review of Plaintiffs time entries, the entries on the following dates are so heavily redacted that the court cannot determine their reasonableness or the nature of the task performed: (1) 3/15/22, Avelino, .5 hours @ $595/hr for a total of $297.50; (2) 9/29/22, Mkrdech, 7.6 hours @ $350/hr for a total of $2,660; (3) 11/9/22, Carvalho, .7 hours @ $550/hr for a total of $385; (4) 11/10/22, Mkrdech, 1.4 @ $350/hr for a total of $490; (5) 6/28/23, Carvalho and .7 hours @ $570/hr for a total of $399. As such, the requested fee award is reduced by $4,231.50 for failure to provide sufficient detail regarding the work performed. (Shahian Dec., Ex. 20, pp. 1 and 2.) · Unreasonably excessive time entries. Counsel Deleon spent (1) 2.4 hours on 5/10/23 preparing for deposition of Defendants PMQ; (2) 3.4 hours on 5/11/23 preparing for deposition of Defendants PMQ; and (3) 7.8 hours on 5/12/23 preparing and taking the deposition of Defendants PMQ. The billable rate for the task was $575/hr. Counsels entry on 5/12/23 also improperly block billed multiple tasks. (Shahian Dec., Ex. 20, p. 2.) The amount billed for the PMQ deposition totaled $7,820. The amount of billable time for both preparation and taking the deposition is reduced from 13.6 hours @ $575/hr to 8 hours @ $575/hr for a total of $4600, a reduction of $3,220. Counsel Miller indicates that he spent 10 hours preparing for, travel to and attend continued FSC on January 5, 2024. (Shahian Dec., Ex. 20, p. 3.) The Jury Trial/FSC began at 9 a.m. and the settlement was put on the record. (Minute Order dated 1/8/24.) There is nothing indicating that preparation for and attendance at the FSC on 1/5/24 would have required 10 hours. The 1/5/24 entry by Miller for 10 hours @ $595/hr for a total of $5,950 is reduced to 5 hours @ $595/hr for a total $2,975, a reduction of $2,975. · Estimated time for reply prep and hearing attendance . Plaintiffs counsel estimates $3,500 for preparation of the reply and hearing attendance. Counsel does not provide an hourly rate for this estimate. However, using the maximum rate allowed as discussed below ($575/hr), the number of hours spent would be 6 hours @ $575/hr for a total of $3,500. Given the reply, including objections and additional evidence, six hours for opposition review, reply prep and hearing attendance is reasonable. In total, the requested fees are reduced by $10,426.50 due to excessive hours or improperly redacted time entries. This leaves a balance of $72,073.50. Hourly rates The hourly rates to be used in computing the lodestar must be within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work. ( Children's Hospital & Medical Center v. Bonta ́ (2002) 97 Cal.App.4th 740, 783; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (The reasonable hourly rate is that prevailing in the community for similar work). Particularly where it is difficult to obtain evidence of market based rates for the same type of work, the courts look at fees charged for cases requiring similar skills. ( The Utility Reform Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, 536537; Prison Legal News v. Schwarzenegger (9th Cir.2010) 608 F.3d 446, 454455 (all attorneys in the community engaged in equally complex Federal litigation, no matter the subject matter). In determining the reasonable rate and reasonable hours, the Court looks to that prevailing in the community for similar work. ( PLCM Group, Inc. , supra , 22 Cal.4th at 1095; Ketchum, supra , 24 Cal.4th at 1132 (the lodestar is the basic fee for comparable legal services in the community). A reasonable trial court might determine that the similar workor comparable legal services related to insurance defense litigation, rather than to civil litigation in general. Were the court to so conclude, it could view the relevant market to be that of insurance defense litigation and litigators, rather than general civil litigation. The market rate for such services might be limited accordingly. Again, we emphasize that such determinations lie within the broad discretion of the trial court. ( Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702703.) The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar work. ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate. ( Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) The trial court is not required to adopt counsels opinion as to the market rate for services of the type performed. ( Syers Properties III , supra , 226 Cal.App.4th at 702.) The trial court may accept the actual rate charged as the reasonable rate. ( Id. ) Plaintiffs counsel consisted of nineteen attorneys who performed work at hourly rates of $350, $385, $400, $450, $460, $475, $495, $550, $570, $575, $595, $610, $620 and $650. (Shahian Dec., Ex. 20, p. 5.) Counsel Shahian testifies as to his extensive experience in Song Beverly litigation, but he does not seek recovery for his time supervising this matter. ( Id. at ¶¶1-45, 86.) The experience and background of the remaining attorneys is set forth in Shahians declaration. ( Id. at ¶¶46-84.) Based on a review of the attorneys profiles and the market rate charged for similar services based on the courts own experience, the hourly rates charged above $575 are excessive. Those hours billed at $595, $610, $620 and $650 are recalculated at the hourly rate of $575. · Avelino. 7.8 hours @ $595 for a total of $4,641 reduced to $4,485, for total reduction of $156. · Carvalho. .9 hours @ $595 for a total of $535 reduced to $517, for total reduction of $18. · Lunn. 4.9 hours @ $620 and 9.8 @ $650 for a total of $9,408 reduced to $8,452.50, for a total reduction of $955.50. · McCallister and Miller. 34.5 hours @ $595 for a total of $20,527.50 reduced to $19,837.50, for a total reduction of $690. · Vaziri. 1.2 hours @ $610 for a total of $732 reduced to $690, for a total reduction of $42. The adjustment of hourly rates claimed by six of the nineteen attorneys will also address the overstaffing issue raised by Defendant. In total, the requested fee award is reduced by $1,861.50 for excessive hourly rates. Applying this further reduction to the balance of $72,073.50, the total remaining attorneys fees total $70,212. Multiplier Relevant factors to determine whether an enhancement is appropriate include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. ( Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 351.) Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation. ( Id. ) The court may not consider the contingent nature of the representation in both setting the lodestar and applying a modifier. ( Id .) Another factor considered by a court in applying a multiplier is the result obtained. The results obtained factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit. ( Graham v. DaimlerChrysler Corp . (2004) 34 Cal.4th 553, 582.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. ( Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.) Plaintiff fails to present any facts that would require a multiplier to compensate counsel for their services at fair market value. The lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. The cases did not involve any novel legal issues. There is no justification to apply a multiplier. Costs Plaintiff includes a request for an award of costs in the amount of $11,196.06. (Shahian, Dec., Ex. 20, pp. 4-5.) Defendant objects to the costs on grounds that no supporting documentation is provided, several entries associated with the demurrer provide no explanation as to the nature of the $896.95 in costs, the basis for $2,837.89 in deposition costs when the deposition only lasted a few hours and $4,614 in unnecessary reporter fees on 1/3/24, 1/8/24 and 1/10/24. Parties stipulated that Defendant would pay Plaintiffs reasonable fees and costs. (Castro Dec., Exs. 2 and 4, ¶2.) Parties also referenced a Motion for Attorneys Fees and Costs and stipulated that Plaintiff would be prevailing party for purposes of such a motion. However, there is nothing explicitly stating that Plaintiff would not be required to file a memorandum of costs under California Rules of Court, rule 3.1700. Based on the mandatory language of California Rules of Court, rule 3.1700, Plaintiff must comply with the procedure for recovery of costs under California Rules of Court, rule 3.1700, which requires submission of a verified memorandum of costs within 15 days of mailing of notice of entry of judgment. Submission of a memorandum of costs would organize the requested costs into categories under Code of Civil Procedure section 1033.5. A memorandum of costs would also trigger Defendants right to tax those costs by noticed motion, with an opportunity to reply to any opposition. Plaintiffs request for fees by noticed motion is denied. Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700. Conclusion Plaintiffs Motion for Attorneys Fees and Costs is GRANTED as to the request for attorneys fees in the amount of $70,212. As to Plaintiffs costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700.

Case Number: 23CHCV03809 Hearing Date: July 16, 2024 Dept: F43 Dept. F43 Date: 7-16-24 Case #23CHCV03809, Glow Med Spa, Inc., vs. Bela, Inc. Trial Date: N/A MOTION TO QUASH SERVICE OF SUMMONS MOVING PARTY: Defendant Bela, Inc. RESPONDING PARTY: Plaintiff Glow Med Spa, Inc. RELIEF REQUESTED Defendant has requested that the Court quash the service of summons. RULING : Motion is denied. SUMMARY OF ACTION This case, filed on December 14, 2023, is related to a dispute involving the unauthorized commercial use of a likeness and trademark dilution. Plaintiff Glow Med Spa, Inc., (Plaintiff) filed proof of service on January 11, 2024. The proof of service indicates that Defendant Bela, Inc., (Defendant) was served via substituted served on January 9, 2024. The process server indicates that the documents were left with an employee of Defendant at Defendants office or usual place of business. After that, the process server indicates that the documents were mailed on January 10, 2024. On February 7, 2024, Defendant filed its motion to quash service of summons. On April 2, 2024, Plaintiff filed a second proof of service that indicates that the process server served the complaint on Defendants agent for service of process via personal service on March 14, 2024. The sole basis for Defendants motion to quash is that it cannot be served because it is a terminated legal entity. Plaintiff argues in its opposition, filed on July 2, 2024, that courts still have jurisdiction over terminated legal entities; that the case law cited by Defendant is a mix of unpublished opinions and superior court cases; and that Plaintiffs service of process was valid. Defendant has not filed a reply to Plaintiffs opposition. ANALYSIS The return of process is prima facie evidence of proper service. (Evidence Code § 647; Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) Where proof of service exists, the burden is then on the other party to produce evidence that they were not, in fact, served. (See Evidence Code § 604; Palm Property Investments, LLC v. Yadegar 194 Cal.App.4th 1419.) Simply denying receipt of service is not sufficient to overcome the presumption of service. ( Palm Property , 194 Cal.App.4th at 1428.) Plaintiff has filed proofs of service that are prima facie evidence of service, including both the original substituted service and subsequent personal service. Defendant has not produced evidence that it was not served. Instead, Defendant argues that it cannot be served because it is a terminated legal entity. In support of this argument, Defendant cites two unpublished cases, which have no precedential value. (See Cal. Rules of Court Rule 8.1115(a).) The first is Chang v. City of Upland (Cal. Ct. App., June 25, 2009, No. E046204) 2009 WL 1816645. Even if this case held some persuasive value, it does not appear to stand for the proposition that terminated entities cannot be sued. The crux of Chang was that the Plaintiff failed to name certain defendants in her complaint. It is not applicable to the current case. The same can be said for Turner v. Hertz Corporation (Cal. Ct. App., May 30, 2014, No. F065250) 2014 WL 2432891, which Defendant cites but only deals with whether an estate was properly served. Furthermore, Plaintiff cites authority in its opposition that supports its argument that terminated entities may be served. Plaintiff cites Cal. Corp. Code § 2010(a), which states, A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations& Additionally, Corp. Code § 2010(b) states, No action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof. Claims may be asserted against a dissolved corporation irrespective of whether they arose before or after dissolution, and the corporation remains liable. (See Corp. Code § 2011(a).) Based on these code sections, Defendant was properly served, regardless of whether it was a terminated entity, as terminated entities may still sue or be sued. Plaintiff also argues that Defendant is still an active business because it continues to run a website (See Farivar Decl., ¶ 11, Ex. E), but even if it were not an active business, Plaintiff could still maintain an action against it. Because Defendant was properly served, regardless of its active status, then Defendants motion to quash service of summons is denied. Moving party to give notice.