Proof of Service: Davos Pointe Condominium Association v. Norman Silberberg, Sue Koeningsburg Silberberg

GIMENEZ vs FCA US LLC, A Motion for Attorney's Fees by JESSE CVPS2301644 DELAWARE LIMITED LIABILITY GIMENEZ, MARIO GIMENEZ COMPANY Tentative Ruling: Granted. Attorney fees granted in reduced, but reasonable amount of $21,491.50 payable to Plaintiff’s counsel and separate costs in the amount of $2,332.85 for a total amount of $23,824.35. Moving party to provide notice pursuant to CCP § 1019.5. This is a lemon law case. Suit filed April 6, 2023. Notice of Settlement filed April 2, 2024. Declaration of Michael Saeedian, Esq. counsel for Plaintiff sets forth the terms of the settlement agreement, including Plaintiff’s right to petition for reasonable fees, costs if they could not agree (Decl. p. 1) No opposition filed. Song Beverly Attorney Fees and Costs Under Civil Code § 1794(d) (Song-Beverly Act), “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s 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.” (Ibid.) In determining the reasonable amount of attorney fees, the court first determines a lodestar figure. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242; see also, Serrano v. Priest (1977) 20 Cal.3d 25, 48.) Lodestar is calculated by assessing the reasonable rate for comparable services in the local community, multiplied by the reasonable number of hours spent on the case. (Ibid; see also, Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1320.) The reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The experienced trial judge is the best judge of the value of professional services rendered in his or her court and may make his or her own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Id. at 1096.) The prevailing buyer in a Song Beverly Act action has the initial burden of showing the fees incurred were allowable and reasonably necessary to the conduct of the litigation. (Goglin, supra, 4 Cal. App. 5th at 470.) Once the initial burden is met, the burden of proof is on the opposing party to show by admissible evidence that the fees requested were unreasonable, either by the number of hours, the hourly rate, or both. (Maughan v. Google Technology (2006) 143 Cal. App. 4th 1242, 1261.) In this court’s experience, the hourly rates of Plaintiff's counsel do not appear to be reasonable for Riverside County, especially for this subject matter (See, EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 [the court may rely on its own experience in determining whether the hourly rate sought or hours spent in the matter are reasonable].) Plaintiff made no showing that she could not obtain local counsel, and therefore, is entitled to out-of-town rates. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615-619 [plaintiffs were entitled to Santa Monica rates for counsel when they proved they could not obtain local counsel].) Accordingly, the Court reduces the rates, and the total amount billed, as follows - $695.00 hourly rate reduced to $595.00 and $100 for law clerk hours (no authority in support thereof). Total attorney fees are thus reduced to $21,491.50. Costs As to costs, Plaintiff claims $2,332.85. These costs requested in Plaintiff’s memorandum of costs appear to be proper. Since Defendant did not raise any objections, Plaintiff is awarded their requested amount.

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

Case Number: 23GDCV00580 Hearing Date: July 18, 2024 Dept: E Hearing Date: 07/18/2024 8:30am Case No:23GDCV00580 Trial Date: UNSET Case Name : RECONSTRUCTION EXPERTS, INC., a Colorado corporation v. THE EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS ASSOCITATION, et al. [TENTATIVE RULING MOTION FOR ATTORNEYS FEES] RELIEF REQUESTED ¿ Relief requested based on initial moving papers filed on 1/30/2024: Plaintiff and Cross-Defendant Reconstruction Experts, Inc. (RE) will and hereby does move, pursuant to California Code of Civil Procedure section 405.38, to recover REs attorneys fees and costs incurred in prevailing on the Motion to Expunge Lis Pendens (Motion to Expunge) filed jointly on September 18, 2023, by Defendant The Excelsior at The Americana at Brand Homeowners Association (Excelsior) and the Member Defendants (as that phrase is used in the Motion to Expunge). As set forth in REs moving papers, RE in this motion requests the Court award a total of $174,694.00 in attorneys fees and $4,496.00 in costs incurred by RE as the prevailing party on the Motion to Expunge. RE requests this award against Excelsior and Member Defendants jointly and severally. RE intends to supplementally submit attorneys fees and costs in finalizing and filing this motion (during January 2024) before hearing with the Court on this matter. REs motion for attorneys fees and costs incurred in prevailing on the Motion to Expunge is based on this notice of motion and motion, California Code of Civil Procedure section 405.38, the concurrently filed supporting memorandum, all exhibits filed with the motion, the concurrently filed declaration of Jeffrey B. Baird, the concurrently filed declaration of David E. Nemeth Jr., the concurrently filed proposed order, all pleadings, papers, and records in this action, and on such further oral or documentary evidence which may be presented before or at the hearing on this motion. (Notice, p. 1-2.) Relief requested based on Supplemental Filing: Plaintiff and Cross-Defendant Reconstruction Experts, Inc. ("RE") will, and hereby does, moves and submits this supplemental filing requesting further prevailing party attorneys' fees and costs ("Supplemental Request") incurred to (i) prepare, draft, finalize, and file RE's January 30, 2024, Motion to Recover Prevailing Attorneys' Fees and Costs Pursuant to Code of Civil Procedure Section 405.38 (hereafter the "Initial Application") with respect to prevailing on the Motion to Expunge Lis Pendens ("Motion to Expunge") filed jointly on September 18, 2023 by Defendant and Cross-Complainant The Excelsior at The Americana at Brand Homeowners' Association ("Excelsior") and Defendant and Cross-Complainant Member Defendants ( as that phrase is used in the Motion to Expunge); (ii) work on this Supplemental Request preliminary draft; and (iii) to successfully oppose Excelsior's and the Member Defendants' Petition for Writ of Mandate ("Writ") filed in the Court of Appeal on the Motion to Expunge, as well as successfully file with the Court of Appeal RE's Application to File Certificate of Interested Entities or Persons Under Seal. RE in this Supplemental Request will separate the incurred attorneys' fees and costs related to the Court of Appeal legal services on the Motion to Expunge from the other fees and costs submitted herein associated with the Initial Application drafting and Supplemental Request drafting in this Court. RE's Initial Application will be heard on the same date, time, and courtroom department mentioned above as RE's Supplemental Request. The July 18, 2024 hearing date for RE's Initial Application and this Supplemental Request were set by the Court at the May 3, 2024 status conference in which counsel for RE, Excelsior, and the Member Defendants attended. In RE's Initial Application, RE provided notice this Supplemental Request will be submitted-prior to hearing-for the attorneys' fees and costs incurred to prepare, draft, finalize, and file the Initial Application in January 2024 because such amounts were not included in the Initial Application nor the Initial Application's accounting. RE here in this Supplemental Request submits the additional attorneys' fees and costs incurred in January 2024 related to the Initial Application filing, and the attorneys' fees and costs incurred in March 2024 for preliminarily working on this Supplemental Request, so these amounts can be accounted for together with the prior Initial Application amounts already submitted. RE in this Supplemental Request submits and seeks an additional $21,822.00 in attorneys' fees and $33.82 in costs incurred (i) in January 2024 to prepare, draft, finalize, and file the Initial Application; and (ii) in March 2024 to work on this Supplemental Request preliminary draft. As set forth in this Supplemental Request, the total attorneys' fees and costs incurred by RE at the trial court level to prevail on the Motion to Expunge, submit the Initial Application, and work on the Supplemental Request, is as follows: Initial Application and Supplemental Request Trial Court Attorneys' Fees : (i) Attorneys' Fees Submitted in Initial Application: $174,694.00 ( ii) Supplemental Request: Trial Court Attorneys' Fees: $21,822.00 (iii) Grand Total Trial Court Attorneys' Fees (i+ii): $196,516.00 Initial Application and Supplemental Request Trial Court Costs: (i) Costs Submitted in Initial Application: $4,496.00 (ii) Supplemental Request: Trial Court Costs: $33.82 (iii) Grand Total Trial Court Costs (i+ii): $4,529.82 Thus, in total, RE is entitled to $196,516.00 in attorneys' fees ("Trial Court Fees") and $4,529.82 in costs ("Trial Court Costs") to prevail on the Motion to Expunge at the trial court level. On December 7, 2023, Excelsior and the Member Defendants filed the Writ on the Motion to Expunge in the Court of Appeal. Based on the Writ, RE incurred further attorneys' fees and costs at the Court of Appeal level to file an opposition to the Writ ("Writ Opposition") and file a Certificate of Interested Entities or Persons Under Seal ("COIE Under Seal"). On May 2, 2024, after considering RE's Writ Opposition, the Court of Appeal denied the Writ and granted RE's COIE Under Seal. RE in this Supplemental Request therefore seeks the attorneys' fees and costs incurred at the Court of Appeal level to successfully file the Writ Opposition and COIE Under Seal as such tasks were performed as part of prevailing on the Motion to Expunge. As set forth in this Supplemental Request, RE requests $42,069.50 in attorneys' fees ("Appeal Fees") and $259.89 in costs ("Appeal Costs") as further prevailing on the Motion to Expunge at the Court of Appeal level related to successfully filing the Writ Opposition and COIE Under Seal. RE's attorneys' fees and costs for April 2024 legal services are reserved and not included in this Supplemental Request because such invoice was not finalized at the time of preparing this submission. For the same reason, RE also reserves all rights to fees and costs for May 2024 legal services to finalize and file this Supplemental Request. In total, accounting for the Initial Application and this Supplemental Request, RE submits and seeks the following total amounts for prevailing on the Motion to Expunge: (i) Trial Court Fees: $196,516.00 (ii) Appeal Fees: $42,069.50 (iii) Total Attorneys Fees: $238,585.50 (iv) Trial Court Costs: $4,529.82 (v) Appeal Costs: $259.89 (vi) Total Costs: $4,789.71 (vii) Grant Total Fees and Costs (iii + vi) $243,375.21 RE's Supplemental Request is based on this notice, the concurrently filed supporting memorandum; the concurrently filed declaration of Jeffrey B. Baird in support of the Supplemental Request; the concurrently filed declaration of David E. Nemeth in support of the Supplemental Request; the concurrently filed proposed order; and on such further oral or documentary evidence which may be presented before or at the hearing on the Supplemental Request. This Supplemental Request is also based on the Initial Application; California Code of Civil Procedure section 405.38; and all exhibits, declarations, and proposed order concurrently filed with the Initial Application. (Supplemental Notice, p. 1-5.) PROCEDURAL Moving Party: Plaintiff and Cross-Defendant, Reconstruction Experts, Inc. (Movant, Plaintiff, or RE) Responding Party: Defendants and Cross-Complainants, The Excelsior at the Americana at Brand Homeowners Association and Member Defendants 16/21 Day Lapse (CCP § 12c and § 1005(b): Ok Proof of Service Timely Filed (CRC, Rule 3.1300): Ok Correct Address (CCP § 1013, § 1013a): Uncertain The Court will hear argument as to if the moving papers were served on all Defendants. Scott Levine appears to represent Defendant Excelsior and the Member Defendants. The email address on the proof of service for Scott Levine matches with the email address that is listed on eCourt for Scott Levine. The proof of service also lists the attorneys for Defendant and Cross-Complainant Sierra Pacific Mortgage Company, Inc. The email address on eCourt matches with the email address on the proof of service as to Sierras counsel. The proof of service also lists that this motion was served on Defendant Pennymac Loan Services LLC, Rocket Mortgage LLC, AMWest Funding Corp, Evertrust Bank, and MERS. The email address on eCourt for these parties counsel does not match the email address on the proof of service for these parties counsel. Moving Papers : All filed on 1/30/2024: Notice; Memorandum; David E. Nemeth Jr. Declaration; Jeffrey B. Baird Declaration; Proposed Order; Proof of Service Moving Supplemental Papers : All filed on 5/13/2024: Notice For Supplemental Filing; Memorandum Supplemental Filing; David E. Nemeth Jr. Declaration for Supplemental Filing; Jeffrey B. Baird Declaration for Supplemental Filing; Proposed Order Supplemental Filing; Proof of Service Opposition Papers : Opposition; Proof of Service; Scott D. Levine Declaration; Mitchell S. Golub Declaration; Reply Papers : Reply; Proof Of Service ANALYSIS Prevailing Party Under CCP § 405.38, The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorneys fees and costs unjust. ( Ibid .) The party successfully defending against the motion to expunge the lis pendens is the prevailing party for purposes of 405.38. (See J & A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 44.) Here, Movant/Plaintiff, was the prevailing party based on the fact that this Court denied Defendants motion to expunge the lis pendens on 11/17/2023. (See 11/9/2023 and 11/17/2023 Minute Orders). Reasonable Attorneys Fees and Costs The initial moving papers filed on 1/30/2024 request attorneys fees in the amount of $174,694.00 and costs in the amount of $4,496.00. Movant submitted the declarations of Jeffrey B. Baird (Baird), counsel for Movant, and David E. Nemeth Jr., an attorney that does not represent Movant who opines on the reasonableness of Movants fees. The request the initial moving papers are based on the fees and costs for September, October, and November 2023 based on services incurred opposing the motion to expunge. The initial moving papers argue that the fees and costs sustained after being served Defendants motion to expunge were necessary to: (i) analyze Defendants Motion to Expunge; (ii) outline and research authority in the preparation of REs defense; (iii) prepare a 25-page Opposition pleading; (iv) significant involvement with REs percipient witnesses and experts to prepare admissible factual support for the various components underlying the Liens claim entitlement and accounting; (v) work with REs percipient witnesses and experts to finalize the respective declarations (157 pages in total); (vi) review voluminous Project records and prepare a Notice of Lodgment with 86-exhibits in support of the Lien; and (vii) multiple hearings with the Court and oral arguments on the Motion to Expunge. (See Pl. Mot. p. 16.) The explanation for the reasonableness of Movants requests for fees and costs can more fully be examined in the declarations of Baird and Nemeth. The supplemental papers request additional fees and costs. [The moving papers noted that supplemental papers would be filed.] The supplemental request filed on 5/13/2024 requests additional attorneys fees of $21,822.00 and costs of $33.82 from the services related to filing the initial moving papers for this motion and the services related to the supplemental papers filed on 5/13/2024. The supplemental papers also request attorneys fees in the amount of $42,069.50 and costs of $259.89 for services rendered in the Court of Appeal to successfully oppose the writ. In total, based on initial and moving papers, Movant requests attorneys fees in the amount of $238,585.50 and costs of $4,789.71. The supplemental papers also include declarations of Baird and Nemeth attesting to the reasonableness of these requests. General Legal Standard - Lodestar and Multiplier A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. ( Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations omitted].) The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [citation] The court may also consider whether the amount requested is based upon unnecessary or duplicative work. ( Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time. ( Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. ( Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) ...[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. ( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) The Court has the discretion to reduce the amount of fees (or deny recovery altogether) when the amount of attorney fees is inflated. ( Serrano v. Unruh (1982) 32 Cal.3d 621, 635; Meister v. Regents of the Univ. of California (1998) 67 Cal. App. 4th 437, 455). In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of fees customarily charged by that attorney and others in the community for similar work. ( Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.].) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys fees are recoverable. ( Serrano v. Unruh (1982) 32 Cal.3d 621, 624 ( Serrano IV ).) The lodestar amount may be adjusted by the court based on factors including (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, [and] (4) the contingent nature of the fee award.¿ ( Bernardi¿v. County of Monterey¿( 2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132].)¿ The purpose of any lodestar and the increase thereto is intended to approximate market-level compensation for such services and is entirely discretionary.¿ (Id.)¿ The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.¿ ( Weeks v. Baker & McKenzie¿ (1998) 63 Cal.App.4th 1128, 1171-72.) Opposition on Reasonableness The Opposition argues that Movants requests for attorneys fees and costs is unreasonable. Exhibit A in the Levine Declaration in the Opposition includes the Oppositions objections to Movants billing entries. Opposition argues that Movants requests include entries that are unrelated to the Motion to Expunge, duplicative entries, excessive hours, administrative tasks billed by attorneys at high hourly rates, and more. Opposition argues the billing entries lack specificity, are vague, include block billing, and make it unclear if they pertain to the motion to expunge. Opposition also cites to a case that supports the argument that courts can compare opposing counsels fees to help determine whether the moving partys fees are reasonable. Substantially Justified Movant argues Defendants did not act with substantial justification in filing the motion to expunge because it lacked evidentiary and legal merit. As to what is considered substantial justification under § 405.38, neither party provides case law directly on point as to what is considered substantial justification. Opposition accurately points out that Movants argument regarding J&A Mash is not directly on point because that case did not define substantial justification. However, both parties cite case law that substantial justification has been understood to mean being justified to a degree that would satisfy a reasonable person reasonably based in both law and fact. Opposition argues that unlike the motion to expunge, the present motion concerns the reasonableness of Excelsiors position rather than its success. Opposition argues that just because the Court did not agree with Excelsiors position does not at all mean it was not substantially justified. Opposition argues that nowhere in the Courts order on the motion to expunge the lis pendens or during the hearing did the Court suggest that Excelsiors motion was frivolous or that it abused the lis pendens procedure for ulterior motives. Movant also argues that Defendants were not substantially justified in filing the motion to expunge by citing portions from the 11/9/2023 Minute Order. For example, this Court in the 11/9/2023 Minute Order stated, Rather than coherent argument, the Movant turns repeatedly to overheated rhetoric that aids no one, generating more heat than light. (11/9/2023 Minute Order p. 38-39.) Further, Movant points to a portion of the 11/9/2023 Minute Order that states: This type of rhetoricaccusing another party of extort[ion] and strong-arm tactics, name-calling, etc.is utterly unhelpful and ineffective, and suggests that rhetoric is being deployed in place of detailed and well-supported legal argument. Plaintiffs detailed legal argument in opposition, supported by numerous detailed and specific declarations, with supporting exhibits, makes Movants suggestion that Plaintiff is engaged in any kind of sham or extort[ion] utterly lacking in credibility. There is nothing about the Plaintiffs case, in the Courts view, that would suggest to any reasonable observer that it is a fraudulent activity and misuse of the courts. Those are grave accusations to level against opposing counsel, and counsel for Movant should be prepared to address those accusations at the hearing. (Min. Order, 11/9/2023, p. 39.) The Court will hear argument. Recovering Fees and Costs for the Instant Motion and On Appeal Movant cites authority that although not directly on point, supports the position that Movant can recover for fees and costs for the filing of the instant motion and for filing of the opposition of the appeal. Opposition argues that Movant cannot recover for the filing of the instant motion and the fees and costs on appeal. Opposition bases its arguments on the language of the statute because 405.38 does not directly mention recovering fees and costs for the filing of the motion for attorneys fees and the appeal. Opposition argues that 405.38 only applies to making or opposing the motion to expunge. Opposition argues that the words of the statute should be given their ordinary and usual meaning. The Court will hear argument. Neither party provides arguments that are directly on point. Apportionment Opposition argues that Movant did not apportion the request for fees and costs between the Association and Member Defendants. While Opposition argues that courts have discretion in apportioning fees based on relative culpability, Opposition provides no argument as to what is a fair way to apportion fees and costs. Further, the Reply argues that the Defendants filed a joint motion to expunge. The Court will hear argument. Fees Not Required at this Point Opposition argues that fees are not required to be awarded at this point in the litigation because Movant and Excelsior signed a contract with a prevailing party clause. Opposition argues that if Movant prevails now, it is uncertain whether these attorneys fees and costs will be returned to Excelsior if it becomes the prevailing party at trial. Opposition argues that it would be absurd if Excelsior prevails at trial, but the Court now finds that Excelsior did not act with substantial justification in filing the motion to expunge. The Reply argues that 405.38 mandates an award of attorneys fees and costs to the prevailing party and that the legislature did not require a prevailing party to wait until the end of the underlying litigation to recover on the motion to expunge with respect to attorneys fees and costs. Opposition also argues this motion should be stayed pending the conclusion of litigation. TENTATIVE RULING The Court will hear argument. Correct Address (CCP § 1013, § 1013a): Uncertain The Court will hear argument as to if the moving papers were served on all Defendants. Scott Levine appears to represent Defendant Excelsior and the Member Defendants. [Not entirely clear who all the Member Defendants are. Opposition does not indicate who Member Defendants are.] The email address on the proof of service for Scott Levine matches with the email address that is listed on eCourt for Scott Levine. The proof of service also lists the attorneys for Defendant and Cross-Complainant Sierra Pacific Mortgage Company, Inc. The email address on eCourt matches with the email address on the proof of service as to Sierras counsel. The proof of service also lists that this motion was served on Defendant Pennymac Loan Services LLC, Rocket Mortgage LLC, AMWest Funding Corp, Evertrust Bank, and MERS. The email address on eCourt for these parties counsel does not match the email address on the proof of service for these parties counsel.

Case Number: SC022567 Hearing Date: July 18, 2024 Dept: N TENTATIVE RULING Assignee of Record SMS Financial XI, LLCs Motion for Assignment Order Re: Rights to Payment of Money Due or to Become Due [Rockrose Capital LLC] is GRANTED. The rights to payment of money due or to become due from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, are hereby assigned to Assignee of Record SMS Financial XI, LLC until such time the judgment of the present action has been fully satisfied. Further, Rockrose Capital LLC and its constituent members shall pay any sums due or to become due to Defendants/Judgment Debtors Eric Cutujian and Roger Cutan, from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, directly to Aires Law Trust Account fbo SMS Financial XI LLC, 6 Hughes, Suite 205, Irvine, California 92618 until such time the judgment of the present action has been fully satisfied. Assignee of Record SMS Financial XI, LLC to give notice. REASONING Request for Judicial Notice Assignee of Record SMS Financial XI, LLC (Assignee) requests judicial notice of the Articles of Organization for Rockrose Capital LLC filed with the California Secretary of State on August 8, 2022, and the Statement of Information for Rockrose Capital LLC filed with the California Secretary of State on September 9, 2022. Assignees request is GRANTED pursuant to Evidence Code section 452, subdivision (c). Analysis Code of Civil Procedure section 708.510, subdivision (a)(4), states, in part: Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to . . . [r]oyalties. Code of Civil Procedure section 708.510, subdivision (c), further provides: . . . [I]n determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following: (1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor. (2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support. (3) The amount remaining due on the money judgment. (4) The amount being or to be received in satisfaction of the right to payment that may be assigned. The judgment creditor may also apply for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. (Code Civ. Proc., § 708.520, subd. (a).) In its discretion, the Court may require the judgment creditor to provide an undertaking. (Code Civ. Proc., § 708.520, subd. (b).) The judgment debtor may make a claim of exemption, which requires a noticed motion and a declaration complying with Code of Civil Procedure section 703.520. (Code Civ. Proc., § 708.550.) The declaration must include the claimants information, a description of the property claimed to be exempt, a financial statement, and facts to support the claim. (See Code Civ. Proc., §§ 703.520; 703.530.) Assignee moves the Court for an order requiring that the rights to payment of money due or to become due from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, be assigned to Assignee until such time the judgment of the present action has been fully satisfied. Assignee also moves the Court for an order requiring that Rockrose Capital LLC and its constituent members shall pay any sums due or to become due to Defendants/Judgment Debtors Eric Cutujian and Roger Cutan (Defendants), from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, directly to Aires Law Trust Account fbo SMS Financial XI LLC, 6 Hughes, Suite 205, Irvine, California 92618 until such time the judgment of the present action has been fully satisfied. Assignee has provided proof of its judgment renewed against Defendants on May 9, 2023, in the amount of $755,590.55. (Mot., Aires Decl. ¶ 3, Ex. A.) Assignee has also provided evidence that Defendants are members of Rockrose Capital LLC, as the Articles of Organization and Statement of Information for that entity bear signatures which appears to have been drawn by the same hand as the signatory to the declaration of Eric Cutujian filed with this Court on November 8, 2023. (Mot., Req. for Judical Notice, Exs. 1, 2; Aires Decl. ¶¶ 4, 5.) As of the date of entry of this order, neither Defendant has filed a claim of exemption, nor have they filed an opposition to this motion. Accordingly, Assignee of Record SMS Financial XI, LLCs Motion for Assignment Order Re: Rights to Payment of Money Due or to Become Due [Rockrose Capital LLC] is GRANTED. The rights to payment of money due or to become due from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, are hereby assigned to Assignee of Record SMS Financial XI, LLC until such time the judgment of the present action has been fully satisfied. Further, Rockrose Capital LLC and its constituent members shall pay any sums due or to become due to Defendants/Judgment Debtors Eric Cutujian and Roger Cutan, from Rockrose Capital LLC, whether located at 999 Avenue of the Stars, 11th Floor, Los Angeles, California 90067, or elsewhere, directly to Aires Law Trust Account fbo SMS Financial XI LLC, 6 Hughes, Suite 205, Irvine, California 92618 until such time the judgment of the present action has been fully satisfied.

Case Number: 20SMCV00216 Hearing Date: July 15, 2024 Dept: I The court has reviewed the objections to the orders of assignment and restraint. The basic objection seems to be that Mr. Hirsh substituted into the case as counsel for Jona Rechnitz. At the time the original motion was servedin April 2024the substitution had not yet occurred and Mr. Hirsh was not counsel. The court, however, continued the original hearing because the court did not believe that electronic service of this particular motion was sufficient standing alone. Mr. Hirsh claims that even after the motion was re-served, he did not get a copy. However, Mr. Goldflam declares the contrary. He states that he served Mr. Hirsh with a courtesy copy of the papers. He claims that a courtesy copy was proper because Mr. Hirsh had not yet (and still has not, according to Mr. Goldflam) done what is necessary to substitute in officially. Mr. Goldflam states that notice of the moving papers was mailed to all parties with that courtesy copy on May 15, 2024. The next day, May 16, 2024, Mr. Goldflam states that he gave notice of the courts ruling electronically to the various parties, including Mr. Hirsh (again, in the form of a courtesy copy), and he has attached the email. Between the proof of service and the email, the court is confident that adequate notice was given. Mr. Hirsh also states that during a telephone call he asked if there was anything on the calendar other than a debtors exam and that Mr. Goldflam told him that nothing else was on even though the hearing on the assignment motion was on the calendar. Mr. Goldflam denies saying anything like that. The court notes that its docket is public. Mr. Hirsh had the opportunity to look at the docket and see for himself whether there was anything pending. Overall, the court is confident that adequate notice was given for the order. Mr. Hirsh makes no objection as to form or substance, and it appears to conform with the courts ruling. The court will, therefore, sign the order and the objections are OVERRULED. There will be no hearing as there is no noticed motion.

FOULKE, ET AL. VS. FORD MOTOR COMPANY Case Number: CVCV21-0197638 This matter is on calendar for review regarding status of dismissal. At the hearing on April 8, 2024, counsel for Plaintiff informed the Court that the only issue that remains pending in Federal Court is attorney fees. No status report was filied informing the Court of the status of attorney fees and no Request for Dismissal has been filed. An appearance is necessary on today’s calendar.

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.

VERDIN VS. NISSAN NORTH AMERICA, INC. Case Number: 23CV-0202892 This matter is on calendar for review regarding status of mediation. No status report has been filed. An appearance is necessary on today’s calendar.