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Cavalry Spv I, Llc Vs Kirk, Amy M

Case Last Refreshed: 1 year ago

Cavalry Spv I, Llc, filed a(n) Breach of Contract - Commercial case represented by Wilkinson, Daniel R., against Kirk, Amy M, in the jurisdiction of Benton County, OR, . Benton County, OR Superior Courts .

Case Details for Cavalry Spv I, Llc v. Kirk, Amy M

Filing Date

May 10, 2018

Category

Contract

Last Refreshed

October 01, 2022

Practice Area

Commercial

Filing Location

Benton County, OR

Matter Type

Breach of Contract

Case Outcome Type

Judgment

Parties for Cavalry Spv I, Llc v. Kirk, Amy M

Plaintiffs

Cavalry Spv I, Llc

Attorneys for Plaintiffs

Wilkinson, Daniel R.

Defendants

Kirk, Amy M

Case Events for Cavalry Spv I, Llc v. Kirk, Amy M

Type Description
Docket Event Notice - Judgment Entry
Docket Event Closed
Docket Event Digitized Judgment Document
General Jgm of Dismissal

Judge: Donohue, Matthew

Docket Event Notice - Rule 7 - 63 Day
Docket Event Return - Service (Not Served)
Docket Event Summons
Docket Event Arbitration - Eligible
Docket Event Service
Docket Event Complaint
See all events

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JOHN P. MIDDLETON, ET AL. VS ROY LEE, ET AL.
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Case Number: 19STCV30580 Hearing Date: July 12, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 12, 2024 Case Name: Middleton, et al. v. Lee, et al. Case No.: 19STCV30580 Matter: Motion to be Relieved as Counsel Moving Party: Marc Rohatiner, counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC Responding Party: Unopposed Notice: OK Ruling: The Motion is granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Marc Rohatiner seeks to be relieved as counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC. The Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362. Moving party to give notice. Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

CLEAR HOMES LLC, A NEW MEXICO LIMITED LIABILITY VS. BRENDAN MICHAEL WEE ET AL
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Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 2. DEFENDANT BRENDAN WEE, ERIKA HILTON MOTION FOR JUDGMENT ON THE PLEADINGS is Off Calendar - Per request of moving party. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Ruling

Edwards, et al. vs. General Motors LLC
Jul 11, 2024 | 22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC Case Number: 22CV-0200334 Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”) against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022. Following extensive motion practice, primarily concerning discovery issues, the parties settled the matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier, and $19,917.80 in costs. Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of Cameron Major on the grounds that certain statements and supporting exhibits are improper argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are OVERRULED. Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The attorney’s fee award is limited to the amount the court determines was reasonably incurred by the buyer in commencing and prosecuting the action, based on actual time expended. The prevailing buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's fee award, using the lodestar method, the judge begins by deciding the reasonable hours the prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct non-contingent litigation of the same type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be compensated at rates that reflect the reasonable market value of their services in the community. Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is the best judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752. Reasonableness of Hours: The court has discretion to decide which of the hours expended by the attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115, 133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. Absent clear indication they are erroneous, verified time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397. Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time records to support their request. Defendant challenges numerous specific entries. (Opposition pp. 8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections. Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The parties engaged in extensive law and motion practice over 22 months of litigation. The matter settled on the eve of trial for the maximum possible recovery under the law. The Court finds the time spent was reasonably expended, with the following exceptions: 1) time billed by Erika Kavicky – no information regarding this attorney’s qualifications and experience has been provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela Mason – no information regarding this individual’s position, qualifications or experience has been provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4 by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours reasonably expended on this matter are therefore 267.7. Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632. A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243. The Court is the best judge of the value of professional services provided and may use its discretion to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find local counsel but was unable to do so. The Court has reviewed this voluminous case file, which contains numerous discovery motions supported by attorney declarations regarding fees. It appears that Plaintiff has not previously submitted a declaration regarding inability to find local counsel in support of hourly rates above reasonable local rates. The Court has previously, consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the interest of consistency within this case, and fairness to Defendants who have previously been ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable rate for the associate in this matter. The Court notes that the billing records submitted do not break out total hours billed by each individual partner and associate. Considering the large number of billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates. Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates. Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks. Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not demonstrated a multiplier is warranted in this case. The issues involved in this litigation were neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced and skilled in this area of law, but this case involved routine issues under Song-Beverly. This litigation precluded other employment to the extent any litigation would. The matter was taken on a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’ Counsel obtained the maximum award for the client. However, simply obtaining a positive result in a factually and legally standard Song-Beverly case does not warrant a multiplier. Costs and Expenses: The Song-Beverly Act provides that the court will award a successful plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of costs and expenses in the amount of $19,917.80. However, the declarations submitted in support of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the opportunity to review and oppose those costs, as they were raised for the first time in the Reply brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are business expenses of Counsel, not proper litigation expenses. As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and costs. The total costs and expenses reasonably incurred are $14,567.67. The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and serve a declaration which includes the recalculated totals for attorney fees using the Court- approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in Department 64 for review regarding the supplemental declaration and proposed order. If a satisfactory supplemental declaration and proposed order are submitted at least five court days prior to the continued date, the hearing may be vacated. P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE TESTATE OR INTESTATE SUCCESSORS OF NORA

Ruling

Richard Bartel vs Chicago Title Insurance Company
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16CV02814 BARTEL v. CHICAGO TITLE INSURANCE COMPANY (UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS Given the parties representation that they are finalizing a stipulation, no tentative will be posted. Page 3 of 3

Ruling

Edwards, et al. vs. General Motors LLC
Jul 10, 2024 | 22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC Case Number: 22CV-0200334 Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”) against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022. Following extensive motion practice, primarily concerning discovery issues, the parties settled the matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier, and $19,917.80 in costs. Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of Cameron Major on the grounds that certain statements and supporting exhibits are improper argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are OVERRULED. Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The attorney’s fee award is limited to the amount the court determines was reasonably incurred by the buyer in commencing and prosecuting the action, based on actual time expended. The prevailing buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's fee award, using the lodestar method, the judge begins by deciding the reasonable hours the prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct non-contingent litigation of the same type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be compensated at rates that reflect the reasonable market value of their services in the community. Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is the best judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752. Reasonableness of Hours: The court has discretion to decide which of the hours expended by the attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115, 133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. Absent clear indication they are erroneous, verified time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397. Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time records to support their request. Defendant challenges numerous specific entries. (Opposition pp. 8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections. Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The parties engaged in extensive law and motion practice over 22 months of litigation. The matter settled on the eve of trial for the maximum possible recovery under the law. The Court finds the time spent was reasonably expended, with the following exceptions: 1) time billed by Erika Kavicky – no information regarding this attorney’s qualifications and experience has been provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela Mason – no information regarding this individual’s position, qualifications or experience has been provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4 by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours reasonably expended on this matter are therefore 267.7. Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632. A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243. The Court is the best judge of the value of professional services provided and may use its discretion to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find local counsel but was unable to do so. The Court has reviewed this voluminous case file, which contains numerous discovery motions supported by attorney declarations regarding fees. It appears that Plaintiff has not previously submitted a declaration regarding inability to find local counsel in support of hourly rates above reasonable local rates. The Court has previously, consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the interest of consistency within this case, and fairness to Defendants who have previously been ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable rate for the associate in this matter. The Court notes that the billing records submitted do not break out total hours billed by each individual partner and associate. Considering the large number of billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates. Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates. Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks. Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not demonstrated a multiplier is warranted in this case. The issues involved in this litigation were neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced and skilled in this area of law, but this case involved routine issues under Song-Beverly. This litigation precluded other employment to the extent any litigation would. The matter was taken on a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’ Counsel obtained the maximum award for the client. However, simply obtaining a positive result in a factually and legally standard Song-Beverly case does not warrant a multiplier. Costs and Expenses: The Song-Beverly Act provides that the court will award a successful plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of costs and expenses in the amount of $19,917.80. However, the declarations submitted in support of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the opportunity to review and oppose those costs, as they were raised for the first time in the Reply brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are business expenses of Counsel, not proper litigation expenses. As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and costs. The total costs and expenses reasonably incurred are $14,567.67. The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and serve a declaration which includes the recalculated totals for attorney fees using the Court- approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in Department 64 for review regarding the supplemental declaration and proposed order. If a satisfactory supplemental declaration and proposed order are submitted at least five court days prior to the continued date, the hearing may be vacated. P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE TESTATE OR INTESTATE SUCCESSORS OF NORA

Ruling

SECOND SITE LLC VS PAUL SCOTT ET AL
Jul 11, 2024 | BC723513
Case Number: BC723513 Hearing Date: July 11, 2024 Dept: 68 Dept. 68 Date: 7-11-24 Case BC723513 Trial Date: 8-12-24 SUMMARY JUDGMENT MOVING PARTY: Defendants, Erba, Inc., et al. RESPONDING PARTY: Plaintiff, Second Site, LLC RELIEF REQUESTED Motion for Summary Judgment SUMMARY OF ACTION Plaintiff Second Site, LLC alleges entry into a partnership agreement with defendant Los Angeles Wellness Center (LAWC), whereby the parties would operate as a partnership from September 26, 2016, through September 26, 2019, with two three year options to renew. The agreement required Plaintiff a right of first refusal for the purchase of the marijuana dispensary license held by Los Angeles Wellness Center during any option period for fair market value. On a date after July 30, 2017, LAWC opened a facility on 4665 Melrose Ave., then moved the facility to 4881 Topanga Canyon Blvd. Meanwhile, a facility operated by defendant Erba, Inc. operated a facility on Pico, acquired LAWC rights in alleged violation of the partnership agreement. On September 26, 2018, Plaintiff filed a complaint against a number of parties, including Erba, Inc., for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith And Fair Dealing; Breach Of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; Declaratory Relief; and, Injunctive Relief. On October 15, 2018, Plaintiff filed a 170.6 challenge and the action was reassigned. On December 21, 2018, Plaintiff dismissed the City of Los Angeles without prejudice. On February 1, 2019, Plaintiff filed a first amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Breach of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; and, Declaratory Relief. On April 18, 2019, the court sustained the demurrer in part and overruled the demurrer in part. On March 4, 2022, defendant Paul Scott filed a cross-complaint for Breach of Contract; Breach of Fiduciary Duty; Negligent Misrepresentation; and, Fraud. On August 12, 2020, the court sustained the demurrer to the cross-complaint with leave to amend. On September 14, 2020, Scott filed a first amended cross-complaint. On November 20, 2020, the court granted Plaintiff leave to file a second amended complaint. On December 9, 2020, Plaintiff filed the second amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Declaratory Relief; Aiding and Abetting, and Accounting. The second amended complaint added in new defendants as well. On January 14, 2021, the court sustained the demurrer to the first amended cross-complaint with leave to amend. On February 22, 2021, Scott filed a second amended cross-complaint. On April 1, 2021, and April 22, 2021, new defendants filed 170.6 challenges, which were rejected. On April 22, 2021, the court overruled the demurrer to the Second Amended Cross-Complaint. RULING : Denied Request for Judicial Notice: Granted in Part/Denied in Part. · The court takes judicial notice of the second amended complaint, but not for the truth of the content. · The court takes judicial notice of the existence of Proposition D and California Health & Safety Code section 11379.6(a) only. Any consideration of the sections should be addressed in the points and authorities. · The court cannot take judicial notice of the articles of incorporation downloaded from the California Secretary of State website in that the mere filing of said items in no way constitutes an official act of the Secretary of State. Defendants Erba, Inc., Jay Handal, Devon Wheeler, and Gabriel Dezio, move for summary judgment on the second amended complaint. Defendants move on grounds that the partnership agreement regarding marijuana licensing rights in an and of itself constituted an illegal agreement, thereby preventing enforcement of the agreement. Plaintiff Second Site, LLC in opposition maintains no illegality in the contract exists. Any additional operations were separately licensed and therefore never in violation of Proposition D. Defendants in reply reiterate the illegal nature at the core of the agreement and illegal cultivation operations. Defendants also challenge Plaintiffs failure to meet their burden of proof establishing triable issues of material fact. The pleadings frame the issues for motions, since it is those allegations to which the motion must respond. ( Citation. ) ( Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472. ) The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. ( Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. ( Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. ( Ibid .) When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment. ( Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork. ( Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).) Defendants argument for illegality in the purpose of the contract relies on a finding that Plaintiff sought to operate multiple growth and/or dispensary facilities under a single license. According to Defendants, the licensing requirements governed by the City of Los Angeles only allow for single site operations per license. The agreement regarding the operation for multiple sites under a single license therefore constituted a statutory violation and therefore an illegal agreement. Malum prohibitum means prohibited by statute malum prohibitum contracts are illegal as contrary to a statute. ( Russell City Energy Co., LLC v. City of Hayward (2017) 14 Cal.App.5th 54, 71.) If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. (Civ. Code, § 1608.) [T]he doctrine of illegality considers whether the object of the contract is illegal . It does not turn on whether the illegality applies to the party seeking to enforce the agreement. ( McIntosh v. Mills (2004) 121 Cal.App.4th 333, 346.) [M]alum prohibitum contracts may be enforceable despite their illegality if the parties were not in pari delicto. ( Id . at p. 344 (footnote 10).) The court reviews certain material terms of the agreement. In addition to the partnership and options agreement, paragraph 14 of the operative complaint alleges a profit sharing agreement with reference to operations (e.g. facilities in more than one location). The next paragraph continues that the agreement itself was based on a City of Los Angeles Measure D compliant dispensary for the sale of marijuana products in accordance with requirements regulations of the City of Los Angeles and Department of Cannabis Regulations. The partnership agreement identifies three separate locations for intended operations: 8010-8012 Remmet Ave in Canoga Park; 7027-7029 Eton Ave in Canoga Park; and, 4665 Melrose Ave in Los Angeles. [Declaration of Arthur Hodge, Ex. 1-2.] Defendants cite to Proposition D for support of the argument regarding a prohibition of operations in more than one location per license. Notwithstanding the provision, and lack of challenge from Plaintiff on the specific subject, the Los Angeles Municipal Code indicates a repeal of Proposition D: The voters of the City of Los Angeles adopted Article 5.1 of Chapter IV of the Los Angeles Municipal Code regarding medical marijuana (Sections 45.19.6 through 45.19.6.9) as part of Proposition D, a referendum submitted to the voters by the City Council at the election held on May 21, 2013. The Council shall adopt an ordinance repealing these provisions of Proposition D (Sections 45.19.6 through 45.19.6.9) effective January 1, 2018, unless the Council adopts a Resolution, by majority vote, specifying another date for the repeal. The Council retains and possesses authority to amend, by ordinance, these provisions of Proposition D prior to its repeal. Sections 45.19.6 through 45.19.6.9 no longer appear operative. While the alleged breach appears to have occurred sometime after 2017, the argument in support of the motion for summary judgment in no way addresses the impact of the repeal of the operative statute. The court declines to make the arguments for moving parties, as it is their burden to establish the lack of a valid claim through the affirmative defense of illegal contract. The City of Los Angeles apparently now regulates cannabis operations via the guidelines of Proposition M, as presented under Los Angeles Municipal Code section 104.00, et seq. Plaintiff tacitly acknowledges the superseding of Proposition M for Proposition D based on a position that immunity conveyed to any licensee under Proposition D automatically extended under Proposition M, as long as compliance by the licensed operator was previously established. Defendants in reply offer no counter argument or even acknowledgment of Proposition M, and instead continues to reiterate Proposition D. The court accepts Proposition M as the governing statute given the lack of sufficient clarification, as is the burden of moving parties. Even under Proposition M, however, Plaintiff acknowledges the single site location restriction. Thus, the argument for statutory illegality remains a consideration. On the other locations identified in the parties agreement, Plaintiff contends the additional sites constituted separate assets in existence prior to the agreement. Furthermore, the cultivators at said second sites obtained separate licenses under Proposition M/LAMC 104, et seq. guidelines. Plaintiff also denies any violation of processor laws. Plaintiff alternatively maintains reformation and severability prevent any declaration of a void contract. Plaintiff concludes with a suggestion of waiver and estoppel in that Defendants waived said defense or are estopped. The court declines to consider the severability, waiver and estoppel arguments, in that the said counter arguments constitute new argument beyond the scope of the framed issues from the pleadings and as presented in the motion. Furthermore, as discussed below, the court finds the merits of the argument do not warrant further consideration into these potential issues at the time of the instant motion. More perfunctory, Defendants rely on an assumption that the agreement itself assumes multiple, licensed required operations under a single license without actually providing a copy of the entire agreement, or actually particularly addressing the meaning and context of the terms of the agreement. The court cites to fundamental contract interpretation rules. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.) The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. (Civ. Code, § 1638.) When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this Title. (Civ. Code, § 1639.) The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. (Civ. Code, § 1641.) A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. (Civ. Code, § 1643.) The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. (Civ. Code, § 1644.) However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. (Civ. Code, § 1648.) Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. (Civ. Code, § 1652.) Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. (Civ. Code, § 1655.) ( Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 880881.) A contract term should not be construed to render some of its provisions meaningless or irrelevant. ( Estate of Petersen (1994) 28 Cal.App.4th 1742, 1754 (footnote 4).) A well-settled maxim states the general rule that ambiguities in a form contract are resolved against the drafter. (Citations.) But that is a general rule; it does not operate to the exclusion of all other rules of contract interpretation. It is used when none of the canons of construction succeed in dispelling the uncertainty. ( Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448.) The plain language of the agreement only references a relocation of the Dispensary to Melrose, with future operations contemplated at two additional locations on Remmet Ave. and Eton Ave. for 120 lights + extraction and 80 lights + Dispensary operations. Defendants cite pages and pages of deposition testimony regarding operations without actually addressing the parties understanding of the execution of the terms of the agreement, such as reliance on a single license (under Proposition D), intent to obtain additional licenses, or other forms of business operations (and potential, required growth licenses). [Hode Decl., Ex. 3: Deposition of Ronald Glantz.] One witness in fact even admits to an uncertainty as to business operations for dispensary operations, but also references a separate cultivation operation for the Remmet facility without any necessity of a dispensary license. [Hode Decl., Ex. 4: Deposition of Michael Sapir.] The court finds no support for improper intended illegal operation of a second dispensary under a single license. At the core of the agreement regarding the Remmet facility, the unchallenged testimony from Sapir regarding the lack of any need for a BTRC license for a non-dispensary operation in and of itself undermines any argument for said license violation. As for Eton, Defendants reference testimony from Sapir regarding operations, and undisputed material fact number seven (7) in the separate statement directly cites to the Sapir deposition 71:3-15, but no such pages are incorporated into the actual Hodge Declaration. Even relying on the purported copied portions of the deposition transcript incorporated into the points and authorities, however, it only appears Eton was for cultivation. There is no indication of any distribution requirement or licensing requirements. [See Declaration of Michael Sapir.] Thus, given the intended relocation of the single dispensary from Topanga to Melrose under the Proposition M license requirement, Defendants fail to establish any actual violation of the statute for purposes of the subject motion. Defendants anticipated this potential, and alternatively argue that said cultivation operations violate Cali fornia Health and Safety Code section 11379(a). The statute states in relevant part: Except as otherwise provided ... every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance ... unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment... (Health & Saf. Code, § 11379.) Defendants cite to language regarding extraction activities, but the plain language of the statute appears to address transpiration and distribution rather than extraction or other forms of cannabis processing activity. The correct section is Cali fornia Health and Safety Code section 11379.6, subdivision (a): Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance ... shall be punished by imprisonment ... and by a fine not exceeding fifty thousand dollars ($50,000). (Health & Saf. Code, § 11379.6.) Defendants again cite back to unattached deposition testimony from Sapir. [Undisputed Material Fact 15, Sapir Depo, 251.2-22.] The court considers the represented testimony from the points and authorities, whereby Sapir purportedly testified to extraction operations at an unspecified location. Under this assumption, Defendants conclude said extraction operation constituted an illegal activity, thereby again voiding the agreement. The broad scope of the terms of the agreement renders some validity to the argument as to the partnership agreement for a potential illegal extraction operation constituting a void term by statute. Plaintiff acknowledges the meth lab penalty statute identified as Cali fornia Health and Safety Code section 11379.6, but maintains an exemption to the statute exists for operations utilizing non-flammable carbon dioxide extraction processes. [Sapir Decl.] (See Health & Saf. Code, § 11362.3, subd. (a)(3) [ Volatile solvent means a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures ].) Defendants in reply maintain the exemption was not applicable as the relied upon at the time were not in existence. Thus, the violation occurred at the time of formation. Defendants state the new regulations were adopted in 2018, and the contract was in fact formed prior to 2018. [L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) A distinction arises however when a statutory change merely clarifies, rather than changes, existing law. A change that clarifies existing law properly applies to all transactions predating its enactment, where if an action substantially changes the legal consequences of past actions or upsets expectations based in prior law, the proactive presumption applies. ( Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) The conclusive argument in reply regarding a prospective application of the statute without address of potential clarification for non meth lab related activities renders the argument incomplete. The court again declines to make the argument for Defendants. For purposes of the subject motion, the court therefore finds no illegal conduct based on the operation of a carbon dioxide based extraction facility also presents no basis for the determination of an illegal extraction operation thereby voiding the partnership agreement in regards to said operations. Finally, given the claimed wrongful conduct by Defendants in transferring the license in violation of the agreement, Defendants fail to dispel a potential in pari delicto challenge to the application of the defense of malum prohibitum. In other words, the court declines to find the illegal contract provision applicable in favor of parties summonsed to the court due to their own allegedly wrongful conduct. The court therefore finds triable issues of material fact arising from the parties partnership agreement based on the lack of any evidence of any actual statutory violation under the operative regulation as passed Proposition M and reflected in Los Angeles Municipal Code 104, et seq., California Health and Safety Code section 11397.6, subdivision (a). To the extent Defendants depend on said argument for relief against all claims, and the court cannot accord on any of the presented argument, the motion for summary judgement is DENIED in its entirety. Trial remains set for August 12, 2024. Moving Defendants to give notice to all parties.

Ruling

Mariam Diarra vs Carson Kelly, et al
Jul 14, 2024 | 23CV02998
23CV02998 DIARRA v. KELLY et al MOTION FOR AN ORDER DECLARING CARSON KELLEY’S JUDGMENT DEBT TO MARIAM DIARRA TO BE A COMMUNITY PROPERTY DEBT The motion is denied without prejudice. Diarra obtained a default judgment against Carson Kelly and Humanize Global, US, Inc. in the amount of $40,718.24. The underlying complaint alleged Labor Code violations, breach of contract, promise without intent to perform, and violations of Business and Professions Code section 17200. Carson Kelly is alleged to be the managing agent of Humanize Global. Diarra worked for or was contracted by Carson Kelly and Humanize Global. Diarra, now as judgment creditor, moves the court to declare that the debt of Carson Kelly is a debt of the marital community of Carson Kelly and his wife Shannon Kelly, to declare the wages of Shannon Kelly be subject to garnishment to satisfy Diarra’s judgment against Carson Kelly, and to authorize that a writ of execution issue in her name. Family Code section 902 defines debt as “an obligation incurred by a married person before or during marriage, whether based on contract, tort, or otherwise.” Family Code section 910, subdivision (a) states that “[e]xcept as expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or the judgment for debt.” Page 3 of 4 Diarra has not made a sufficient showing in this motion as follows: 1. Evidence of a marriage between Shannon and Carson Kelly, including the date Carson and Shannon married. The only evidence are the vague statements from counsel and Diarra in their declarations. 2. Evidence that Humanize Global US, Inc. was community property, rather than the separate property of Carson Kelly. In light of the above deficiencies, the court need not reach the merits of the motion. 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 4 of 4

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