Preview
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X
ROSENBAUM, ROSENFELD &
SONNENBLICK, LLP R&R PROPERTIES, LLC,
AND COMPUTERIZED DIAGNOSTIC Index No. 150083/2014
SCANNING ASSOCIATES, P.C.,
Plaintiffs,
-against-
EXCALIBUR GROUP NA, LLC, A SUPERIOR
SERVICE AND REPAIR CO. INC., HOME
SYSTEMS ENGINEERING, INC., PHILIPS
HEALTHCARE, PHILIPS MEDICAL
SYSTEMS NORTH AMERICA COMPANY,
PHILIPS ELECTRONICS NORTH AMERICA
CORPORATION, PHILIPS MEDICAL
SYSTEMS NORTH AMERICA, INC.,
PHILIPS HEALTHCARE INFORMATICS,
INC. and ESTATE OF MERLE H.
EISENSTEIN,
Defendants.
-------------------------------------------------------------------------X
NOTICE OF ENTRY
PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the
Supreme Court, Appellate Division, First Department which was entered in the Office of the
Clerk of the Court on February 4, 2021
Dated: Kew Gardens, New York LIPSIUS-BENHAIM LAW LLP
February 8, 2021 Attorneys for Plaintiffs
By: ____________________________
Ira S. Lipsius, Esq.
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, New York 11415
Telephone: 212-981-8440
Facsimile: 888-442-0284
TO: All Parties via ECF Email: iral@lipsiuslaw.com
1
1 of 5
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021
FILED: APPELLATE DIVISION - 1ST DEPT 02/04/2021 06:52 AM 2020-00087
NYSCEF DOC. NO. 20 Supreme Court of the State of New YorkRECEIVED NYSCEF: 02/04/2021
Appellate Division, First Judicial Department
Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
13034 R&R THIRD PROPERTIES, LLC, et al., Index No. 150083/2014
Plaintiffs-Respondents-Appellants, 651377/2013
-against- Case No. 2020-00087
2020-00088
FEDERAL INSURANCE COMPANY,
Defendant-Appellant, Respondent,
GREATER NEW YORK MUTUAL INSURANCE
COMPANY et al.,
Defendants.
_______
ROSENBAUM, ROSENFELD & SONNENBLICK, LLP
et al.,
Plaintiffs-Appellants,
-against-
PHILIPS HEALTHCARE et al.,
Defendants-Respondents,
EXCALIBUR GROUP NA, LLC, et al.,
Defendants.
Rosner, Nocera & Ragone, LLP, New York (John A. Nocera of counsel), for appellant-
respondent.
Lipsius BenHaim Law, LLP, Kew Gardens (Ira S. Lipsius of counsel), for respondents-
appellants.
Gallo Vitucci Klar LLP, Woodbury (Gina M. Wischhusen of counsel), for respondents.
2 of 5
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021
Order, Supreme Court, New York County (David B. Cohen, J.), entered
September 11, 2019, which, to the extent appealed from as limited by the briefs, granted
defendant Federal Insurance Company’s motion for summary judgment dismissing the
claim for consequential damages against it, and otherwise denied the motion, and
granted the Philips defendants’ (Philips) motion for summary judgment dismissing the
unpleaded claim for tortious interference with contract against them, unanimously
modified, on the law, to deny Federal’s motion as to the claim for consequential
damages, and otherwise affirmed, without costs.
Although plaintiffs did not assert a specific claim for consequential damages,
their allegations are sufficient to support such a claim (see e.g. Acquista v New York Life
Ins. Co., 285 AD2d 73, 82 [1st Dept 2001]; Castor Petroleum, Ltd. v Petroterminal de
Panama, S.A., 90 AD3d 424 [1st Dept 2011]). Plaintiffs also disclosed that they were
seeking consequential damages in a supplemental response to Federal’s interrogatories,
as permitted by CPLR 3101(h) (see Castor Petroleum, 90 AD3d at 424).
Federal failed to establish prima facie that plaintiffs are not entitled to
consequential damages. The record is replete with issues of fact as to whether plaintiffs’
scanner could be repaired, obviating the need for replacement, which call into question
Federal’s good faith in investigating their insurance claim. However, even if Federal did
not act in bad faith, it would not be entitled to summary dismissal of the claim for
consequential damages, because it failed to establish that such damages were not
“within the contemplation of the parties as the probable result of a breach at the time of
or prior to contracting” (Panasia Estates, Inc. v Hudson Ins. Co., 68 AD3d 530, 530 [1st
Dept 2009] [internal quotation marks omitted]). It is undisputed that the scanner was
the focal point of plaintiffs’ practice diagnosing and treating patients and that the loss of
2
3 of 5
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021
the scanner caused extensive harm to plaintiffs. Thus, Federal would have been on
notice that plaintiffs would suffer business interruption losses if the scanner was not
repaired or replaced. As for plaintiffs’ separate business interruption insurance policies,
there are issues of fact whether these policies would cover business interruption losses
arising from Federal’s breach of its own policy.
For similar reasons, the motion court correctly declined to dismiss the remainder
of the complaint against Federal. While Philips certified in October 2011 that the
scanner had been repaired, issues of fact remain as to whether that representation was
accurate. It is unclear from the record whether the scanner was fully operational at that
time, given that the technician only took phantom CT images in 2011 and the scanner
was not used on a patient. Moreover, the scanner did not work in the follow-up
inspections following Philips’ certification. Plaintiffs’ pre-litigation consultant concluded
that the scanner could not have been ready for patient use in October 2011, and
plaintiffs claim that they have been unable to use the scanner since April 2011.
The court correctly dismissed the unpleaded claim for tortious interference with
contract against Philips. No such claim is asserted among the various claims against
3
4 of 5
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021
Philips, and the complaint’s allegations are insufficient to support such a claim. There
are no allegations that Philips intentionally and improperly procured a breach of that
contract (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 4, 2021
4
5 of 5
Related Content
in New York County
Case
Vandelay Industries Tm Llc, Vandelay Industries Km Llc, Vandelay Industries Am Llc v. Bitwise Hold 10 Private Index Fund, Llc, Bitwise Asset Management, Inc., Bitwise 10 Crypto Index Fund, Bitwise Investment Advisors, Llc, Hunter Horsley, Matt Hougan, Teddy Fusaro, James Farrell
Jul 08, 2024 |
Commercial - Contract |
Commercial - Contract |
653436/2024
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ADAM AMER VS RITA NORIEGA, ET AL.
Jul 09, 2024 |
23STCV10432
Case Number:
23STCV10432
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Adam Amer,
Plaintiff,
Case No.:
23STCV10432
vs.
Tentative Ruling
Rita Noriega, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion to Determine Good Faith Settlement
Moving Party
: Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean
Responding Party
: None
T/R
:
DEFENDANTS MOTION TO FOR APPROVAL OF GOOD FAITH SETTLEMENT IS GRANTED.
DEFENDANTS TO NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at¿
SMCdept54@lacourt.org
¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.
The Court considers the moving papers.
No opposition was filed.
Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors upon giving notice in the manner provided in Code of Civil Procedure, section 1005(b).
(CCP § 877.6(a)(1).)
A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
(CCP § 877.6 (c).)
The party contesting the settlement bears the burden of proving that the settlement is in bad faith.
(CCP § 877.6 (d).)
Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean apply for approval of their good faith settlement with Plaintiffs. After extensive negotiations Defendants agreed to settle with Plaintiffs for $30,000. Defendants admit no fault, and state the settlement is proportionate to their potential share of liability. Only one cause of action was brought against them. There is no challenge to the settlement, and the non-settling defendants have defaulted. The Court finds that the settlement is in good faith.
The application is GRANTED.
Ruling
JONATHAN NEIL & ASSOCIATES, INC. VS HEALING HANDS CARE, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
23STCV20520
Case Number:
23STCV20520
Hearing Date:
July 9, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
Jonathan Neil & Associates, Inc.,
Plaintiff,
v.
Healing Hands Care, Inc., a California Corporation; Ara Tovmassian aka Ara Mesrop Tovmassian and DOES 1 through 50, inclusive,
Defendants.
Case No.:
23STCV20520
Hearing Date:
7/9/24
Trial Date:
12/6/24
[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
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
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X ROSENBAUM, ROSENFELD & SONNENBLICK, LLP R&R PROPERTIES, LLC, AND COMPUTERIZED DIAGNOSTIC Index No. 150083/2014 SCANNING ASSOCIATES, P.C., Plaintiffs, -against- EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE AND REPAIR CO. INC., HOME SYSTEMS ENGINEERING, INC., PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE INFORMATICS, INC. and ESTATE OF MERLE H. EISENSTEIN, Defendants. -------------------------------------------------------------------------X NOTICE OF ENTRY PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the Supreme Court, Appellate Division, First Department which was entered in the Office of the Clerk of the Court on February 4, 2021 Dated: Kew Gardens, New York LIPSIUS-BENHAIM LAW LLP February 8, 2021 Attorneys for Plaintiffs By: ____________________________ Ira S. Lipsius, Esq. 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, New York 11415 Telephone: 212-981-8440 Facsimile: 888-442-0284 TO: All Parties via ECF Email: iral@lipsiuslaw.com 1 1 of 5 FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021 FILED: APPELLATE DIVISION - 1ST DEPT 02/04/2021 06:52 AM 2020-00087 NYSCEF DOC. NO. 20 Supreme Court of the State of New YorkRECEIVED NYSCEF: 02/04/2021 Appellate Division, First Judicial Department Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ. 13034 R&R THIRD PROPERTIES, LLC, et al., Index No. 150083/2014 Plaintiffs-Respondents-Appellants, 651377/2013 -against- Case No. 2020-00087 2020-00088 FEDERAL INSURANCE COMPANY, Defendant-Appellant, Respondent, GREATER NEW YORK MUTUAL INSURANCE COMPANY et al., Defendants. _______ ROSENBAUM, ROSENFELD & SONNENBLICK, LLP et al., Plaintiffs-Appellants, -against- PHILIPS HEALTHCARE et al., Defendants-Respondents, EXCALIBUR GROUP NA, LLC, et al., Defendants. Rosner, Nocera & Ragone, LLP, New York (John A. Nocera of counsel), for appellant- respondent. Lipsius BenHaim Law, LLP, Kew Gardens (Ira S. Lipsius of counsel), for respondents- appellants. Gallo Vitucci Klar LLP, Woodbury (Gina M. Wischhusen of counsel), for respondents. 2 of 5 FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021 Order, Supreme Court, New York County (David B. Cohen, J.), entered September 11, 2019, which, to the extent appealed from as limited by the briefs, granted defendant Federal Insurance Company’s motion for summary judgment dismissing the claim for consequential damages against it, and otherwise denied the motion, and granted the Philips defendants’ (Philips) motion for summary judgment dismissing the unpleaded claim for tortious interference with contract against them, unanimously modified, on the law, to deny Federal’s motion as to the claim for consequential damages, and otherwise affirmed, without costs. Although plaintiffs did not assert a specific claim for consequential damages, their allegations are sufficient to support such a claim (see e.g. Acquista v New York Life Ins. Co., 285 AD2d 73, 82 [1st Dept 2001]; Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424 [1st Dept 2011]). Plaintiffs also disclosed that they were seeking consequential damages in a supplemental response to Federal’s interrogatories, as permitted by CPLR 3101(h) (see Castor Petroleum, 90 AD3d at 424). Federal failed to establish prima facie that plaintiffs are not entitled to consequential damages. The record is replete with issues of fact as to whether plaintiffs’ scanner could be repaired, obviating the need for replacement, which call into question Federal’s good faith in investigating their insurance claim. However, even if Federal did not act in bad faith, it would not be entitled to summary dismissal of the claim for consequential damages, because it failed to establish that such damages were not “within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” (Panasia Estates, Inc. v Hudson Ins. Co., 68 AD3d 530, 530 [1st Dept 2009] [internal quotation marks omitted]). It is undisputed that the scanner was the focal point of plaintiffs’ practice diagnosing and treating patients and that the loss of 2 3 of 5 FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021 the scanner caused extensive harm to plaintiffs. Thus, Federal would have been on notice that plaintiffs would suffer business interruption losses if the scanner was not repaired or replaced. As for plaintiffs’ separate business interruption insurance policies, there are issues of fact whether these policies would cover business interruption losses arising from Federal’s breach of its own policy. For similar reasons, the motion court correctly declined to dismiss the remainder of the complaint against Federal. While Philips certified in October 2011 that the scanner had been repaired, issues of fact remain as to whether that representation was accurate. It is unclear from the record whether the scanner was fully operational at that time, given that the technician only took phantom CT images in 2011 and the scanner was not used on a patient. Moreover, the scanner did not work in the follow-up inspections following Philips’ certification. Plaintiffs’ pre-litigation consultant concluded that the scanner could not have been ready for patient use in October 2011, and plaintiffs claim that they have been unable to use the scanner since April 2011. The court correctly dismissed the unpleaded claim for tortious interference with contract against Philips. No such claim is asserted among the various claims against 3 4 of 5 FILED: NEW YORK COUNTY CLERK 02/08/2021 04:35 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/08/2021 Philips, and the complaint’s allegations are insufficient to support such a claim. There are no allegations that Philips intentionally and improperly procured a breach of that contract (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 4, 2021 4 5 of 5