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Filing # 199373329 E-Filed 05/29/2024 01:13:53 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2024-CA-000477-CI
BURTON SELIGMAN,
Plaintiffs,
vs.
STATE FARM FLORIDA INSURANCE
COMPANY,
Defendant.
__________________________________/
PLAINTIFFS’ MOTION TO COMPEL SOONER DEPOSITION DATES FOR
DEFENDANT’S CORPORATE REPRESENTATIVE AND FIELD ADJUSTER
DEPOSITIONS
COMES NOW, Plaintiff, Burton Seligman, by and through the undersigned counsel, and
pursuant to Florida Rules of Civil Procedure 1.280 and 1.380, and hereby files this Motion to
Compel Sooner Deposition Dates, stating the following in support:
1. Plaintiffs initiated this action for breach of contract against Defendant on or about
February 15, 2024.
2. On March 11, 2024, Plaintiff sent Defendant their initial request to depose
Defendant’s corporate representative and Defendant’s field adjuster, requesting dates within ninety
(90) days. (See Composite Exhibit “A”)
3. On March 14, 2024, Defendant provided dates for August 2024. In response to
Defendant’s proposed dates of August 2024, Plaintiffs requested sooner dates of availability.
Defendant stated August 2024 was the soonest availability. (See Composite Exhibit “A”)
4. On May 2, 2024, Plaintiff followed up on their request via email to Defendant
proposing deposition dates for Defendant’s corporate representative and Defendant’s field adjuster
within ninety (100) days. (See Composite Exhibit “A”)
5. On May 8, 2024, Defendant provided dates for both of the depositions to occur on
February 2025. (See Composite Exhibit “A”)
6. It is imperative that Plaintiff depose Defendant’s corporate representative and field
adjuster, as said individuals have knowledge of the facts surrounding the subject claim.
7. Plaintiffs seek earlier deposition dates so that this matter is not further delayed.
8. Plaintiffs would be severely prejudiced if they are unable to move forward with
said depositions.
9. Plaintiffs hereby certify their compliance with Florida Rule of Civil Procedure
1.380(a)(2) by conferring, or attempting to confer, with the person or party failing to make the
subject discovery in an effort to secure the information or material without court action.
WHEREFORE, the Plaintiff, Burton Seligman, respectfully requests this Honorable
Court to grant its Motion to Compel Sooner Deposition Dates and order Defendant’s depositions
to occur within sixty (60) days from the date of this Court’s order, and any and all additional relief
deemed just and proper by this Court.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 29, 2024, I electronically filed the foregoing with
the Clerk of the Court by using the Florida Courts E-Filing Portal which will send notice of this
electronic filing to counsel of record.
/s/ Guillermo Lopez
COHEN LAW GROUP
Guillermo Lopez Esq.
Florida Bar Number: 1018316
350 North Lake Destiny Road
Maitland, Florida 32751
Phone: (407) 478-4878
Fax: (407) 478-0204
Primary: glopez@itsaboutjustice.law
Secondary: emilyp@itsaboutjustice.law
Attorneys for Plaintiff
Exhibit A
* COHEN
LAW GROUP Emily Portalatin
ITSABOUTIUSTICE.LAW
Re: Burton Seligman v. State Farm Florida Insurance Company
1 message
Emily Portalatin Wed, May 8, 2024 at 10:25AM
To: "Sarah B. Scott"
Cc: "Guillermo Lopez, Esq." , "Ryan D. Scott"
Good afternoon,
Our office made the request to schedule the CR and FA depositions on March 11th of this year, these dates are almost a year out. We
will file Notice for February 20, 2025 at 10:00 am for the CR deposition and Notice for the FA deposition on February 21, 2025 at
10:00 am. Notices will follow shortly.
We will also be seeking court intervention.
Thank you,
EMILY PORTALATIN
Legal Assistant COHEN
supporting Guillermo Lopez, LAW GROUP
T5RBOUTISTICE.LRW
Esq.
407.478.4878 407.216.5221
emilyp@itsaboutjustice.law
350 North Lake Destiny Road
Maitland, Florida 32751
www.itsaboutjustice.law
inB300
CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or, (3)
strictly confidential. Ifyou are not the intended recipient ofthis message, you may not disclose, print, copy or disseminate this
information. Ifyou have received this in error, please advise the senderby reply e-mail or by telephone at (407) 478-4878 and
immediately delete this message and destroy all physical copies of same. Unauthorized interception of this e-mail is a violation of
federal criminal law.
On Wed, May 8, 2024 at 9:43 AM Sarah B. Scott wrote:
Good morning.
The CR has advised his first availability is 2/20/25. The FA has advised he is available 2/21/25 for deposition. I have requested earlier dates and will
advise if/when I receive same. Please advise if you would like to get these dates on the books as they are not being held, subject to availability and
will need to be confirmed prior to a notice being filed.
At your convenience, please advise as to availability for Plaintiff's deposition.
Thank you,
Sarah
From: Sarah B. Scott
Sent: Monday, May 06, 2024 11:32 AM
To: Guillermo Lopez, Esq.
Cc: emilyp@itsaboutjustice.law; Ryan D. Scott
Subject: RE: Burton Seligman v. State Farm Florida Insurance Company
Good morning.
I have requested the availability of the CR and FA and will advise as soon as I am able.
Thank you,
Sarah
From: Guillermo Lopez, Esq. [mailto:glopez@itsaboutjustice.law]
Sent: Thursday, May 02, 2024 3:08 PM
To: Sarah B. Scott
Cc: emilyp@itsaboutjustice.law; Ryan D. Scott
Subject: Re: Burton Seligman v. State Farm Florida Insurance Company
We can schedule the deposition to occur after May 14 to get them scheduled and on the books. If we resolve before then, then we can just cancel them.
Please let me know.
GUILLERMO LOPEZ, ESQ.
ATTORNEY
407.478.4878 407.478.0204
glopez@itsaboutjustice.law
350 North Lake Destiny Road
Maitland, Florida 32751
www.itsaboutjustice.law
CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work
product, or, (3) strictly confidential. If you are notthe intended recipient of this message, you may not disclose, print,
copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by
telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same.
Unauthorized interception of this e-mail is a violation of federal criminal law.
On Thu, May 2, 2024 at 3:00 PM Sarah B. Scott wrote:
Good afternoon.
Please advise if Mr. Guillermo is agreeable to postponing setting depositions until after the inspection has occurred.
Thank you,
Sarah
Sarah B. Scott
Legal Assistant
LAW OFFICES
Direct (904) 464-9024
KUBICKI Fax (904) 396-0380
DRAPER Sarah.Scott@kubickidraper.com
www.kubickidraper.com
1 Independent Drive
Suite 1601
Jacksonville, Florida 32202
Committed to DEl, and proudly certified: RING Platinum
From: Vladimir Kulishevskiy
Sent: Thursday, May 02, 2024 10:56 AM
To: Sarah B. Scott
Subject: FW: Burton Seligman v. State Farm Florida Insurance Company
From: Emily Portalatin [mailto:emilyp@itsaboutjustice.law]
Sent: Thursday, May 02, 2024 10:52 AM
To: PROPJAX-KD; Kara Kennedy Byrnes; Vladimir Kulishevskiy
Cc: Guillermo Lopez, Esq.
Subject: Re: Burton Seligman v. State Farm Florida Insurance Company
Good morning,
We are following up again in good faith to schedule the CR and FA depositions. Please see our availability below and kindly advise:
8/02 - 10:00 am
8/20 - 10:00 am or 2:00 pm
8/29 - 2:00 pm
9/03 - 10:00 am or 2:00 pm
9/12 - 10:00 am or 2:00 pm
Thank you,
EMILY PORTALATIN
Legal Assistant
supporting Guillermo Lopez,
Esq.
407.478.4878 407.478.0204
emilyp@itsaboutjustice.law
350 North Lake Destiny Road
Maitland, Florida 32751
www.itsaboutjustice.law
CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work
product, or, (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print,
copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by
telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same.
Unauthorized interception of this e-mail is a violation of federal criminal law.
On Mon, Mar 11, 2024 at 10:49 AM Emily Portalatin wrote:
Good morning!
Please see the attached letter from Attorney Guillermo Lopez. Our office would also like to schedule a telephone conference.
Please advise on when you are available to speak with Attorney Lopez.
Thank you,
EMILY PORTALATIN
Legal Assistant
supporting Guillermo Lopez,
Esq.
407.478.4878 407.478.0204
emilyp@itsaboutjustice.law
350 North Lake Destiny Road
Maitland, Florida 32751
www.itsaboutjustice.law
CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work
product, or, (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print,
copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by
telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same.
Unauthorized interception of this e-mail is a violation of federal criminal law.
Vladimir Kulishevskiy
Legal Assistant
LAW OFFICES Direct (904) 464-9029
KUBICKI Fax (904) 396-0380
DRAPER Vladimir.Kulishevskiy@
kubickidraper.com
www.kubickidraper.com
inX@f 1 Independent Drive
Suite 1601
Jacksonville, Florida 32202
Committed to DEl, and proudly certified: RING Platinum
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MAYER v. HSBC BANK, N.A.
PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6
Plaintiff’s motion is denied, in part.
I. BACKGROUND
This case involves an ongoing dispute concerning a loan obtained by plaintiff Mayer for a
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On January 13, 2017, Mayer filed a complaint against the lender defendants alleging
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On April 2, 2019, a notice of conditional settlement was filed and on May 21, 2020 the
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but the court retained jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce
the terms of the settlement agreement. The parties entered into a confidential settlement
agreement on April 17, 2020.1
On December 30, 2021, Mayer filed a motion to enforce settlement which was
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On January 11, 2024, Mayer filed an ex parte application for a temporary restraining
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sought to halt the foreclosure sale of the property in question as the loan went into default again.
On January 16, 2024, a hearing occurred on the TRO and preliminary injunction. The
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Mayer now brings another motion to enforce settlement.
1
The court notes that though this agreement is marked as “confidential”, the parties have raised
the terms of the agreement in both the moving papers and the opposition and have not requested
the pleadings be filed under seal.
Page 2 of 16
II. DISCUSSION
“Where the statutory requirements are met, the court may, upon motion, enter judgment
pursuant to the terms of a settlement agreement.” (Weil & Brown, Civil Procedure Before Trial
(TRG 2023) § 12:950.) Such judgment can be entered “where parties to pending litigation
stipulate to a settlement either orally before the court or in writing, signed by the parties or their
counsel outside court.” (Id. at § 12.952.)
Cal Code Civ Proc § 664.6 Judgment pursuant to terms of settlement provides:
(a) If parties to pending litigation stipulate, in a writing signed by the parties outside
of the presence of the court or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.
If requested by the parties, the court may retain jurisdiction over the parties to enforce the
settlement until performance in full of the terms of the settlement.
(b) For purposes of this section, a writing is signed by a party if it is signed by any of the
following:
(1) The party.
(2) An attorney who represents the party.
(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign
on the insurer’s behalf.
A settlement agreement is a contract, and the legal principles which apply to contracts
generally apply to settlement contracts. (Weddington Productions, Inc. v. Flick (1998) 60
Cal.App.4th 793, 810.)
“Under § 664.6, the court decides whether or not a factual dispute exists. If there is a
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determines issues such as (1) whether the attorney possessed actual [Citations], and (2) terms of
the agreement. [Citation.]” (1 California Trial Handbook § 16:41.)
The primary terms of the settlement agreement concern the reinstatement of the loan.
Paragraph 1 addresses Mayer’s obligation to reinstate the loan by making a payment of
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obligated PHH, within 30 days of receipt of the reinstatement amount to submit Universal Data
Forms to all three major credit reporting agencies, reporting the loan as paid as agreed from the
time Ocwen began servicing the loan through the effective date. The agreement contained a
Page 3 of 16
release limitation in paragraph 12 which included any future disputes between Mayer and PHH
and Defendants, arising out of the parties’ continuing relationship as mortgagor and mortgagee.
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1. Order that PHH clear all unpaid escrow fees from his account as they
wrongfully kept him from making his own tax payments and failed to properly
apply the $43,537.56 in property tax reimbursement that they received under the
settlement agreement. Going forward, PHH is not to open any escrow account.
The court reviewed the settlement agreement and it does not address an escrow account
or how the property taxes and insurance are to be paid or structured. This request is denied.
2. Mayer be released from making the June 1, 2020 – December 1, 2020 payments
due to PHH as he tendered the funds and PHH, through its attorney, wrongfully
did not apply the payments.
This appears to be a post-settlement agreement dispute and not part of the agreement
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Ocwen took over servicing through June 2024 to give Mayer time to refinance
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indicating the same at the request of Mayer, his attorneys or any lender wishing
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major credit reporting agencies in conformance with this provision of the agreement.
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reporting.
Page 4 of 16
5. Mayer to pay PHH 38 months of mortgage payments (which represents the
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rate of $3,432.96 equaling $130,452.48.
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payment due is $3,432.96.
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consequences (par. 15), compromise of disputed claims (par. 16), severability (par 17), binding
effect (par. 18), governing law (par. 19), further assurances (par. 20), counterparts (par. 21)
integration clause (par. 22), time is of the essence clause (par. 23), headings and captions (par.
24), and effective date (par. 25.).
Paragraph 12 states the agreement does not release (1) claims arising out of the failure of
either Party to perform in conformity with the terms of this Agreement; (2) any future disputes
between the Borrower and PHH and Defendants, including their successors and assigns,
which arise out of or relate to the Parties’ continuing relationship as mortgagor and
mortgagee; and (3) PHH and Defendants’ (including their successors’ and assigns’) right to
foreclose. (Emphasis added.)
Page 5 of 16
Defendants’ Evidentiary Objections
Declaration of Mayer
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6. Overruled except as to the statement “wrongly paid them”, which is sustained.
7. Sustained as to the phrase “wrongfully advanced.”
8-14. The court declines to rule on evidentiary objections which were not dispositive to
its ruling on the motion before it.
15-16. Overruled.
Declaration of Simmons
1 – 9. The court declines to rule on evidentiary objections which were not dispositive to
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REDDING BUSINESS PARK, LLC VS. AMAZING FINDS, LLC, ET AL.
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ARAUJO vs GENERAL MOTORS, LLC
Jul 24, 2024 |
CVPS2305503
Demurrer on 1st Amended Complaint for
ARAUJO vs GENERAL
CVPS2305503 Breach of Contract/Warranty by GENERAL
MOTORS, LLC
MOTORS, LLC
Tentative Ruling: Overruled
Defendant to file their answer within 20 days of this order becoming final.
Plaintiff to provide notice pursuant to CCP 1019.5.
This is a lemon law case. On 3/27/2024, Plaintiffs filed their operative First Amended Complaint (“FAC”)
against GM, alleging (1) violation of Civ. Code § 1793.2(d), (2) violation of Civ. Code § 1793.2(b), (3)
violation of Civ. Code § 1793.2(a)(3), (4) breach of the implied warranty of merchantability, and (5)
fraudulent inducement – concealment.
GM now demurs to the fifth cause of action for fraudulent inducement – concealment on the grounds
that it fails to state facts relevant to the elements of the claim and fails to allege a transactional
relationship giving rise to a duty to disclose. It concurrently moves to strike the demand for punitive
damages from the FAC.
In opposition, Plaintiffs argue that their FAC contains all essential elements of fraudulent inducement
– concealment cause of action, and that a “transactional relationship” is not required under California
law for the manufacturer to have a duty to disclose. With respect to punitive damages, Plaintiffs argue
that they have sufficiently alleged GM’s oppression, fraud, and malice to support punitive damages,
which are available under the Song-Beverly Act.
In reply, GM reemphasizes that it had no duty to disclose to Plaintiffs and that Plaintiffs’ allegations in
the FAC fail to establish a fraud cause of action. With respect to punitive damages. GM argues that
Plaintiffs have failed to state a viable cause of action for fraud because their fraud cause of action fails.
Demurrer
A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action.
(CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation
by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. (1990) 51
Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded
and of facts which may be inferred from those expressly pleaded. (Crowley v. Katleman (1994) 8 Cal.4th
666, 672.) A demurrer, however, does not admit contentions, deductions, or conclusions of fact or law.
(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the
court must grant the plaintiff leave to amend if there is a reasonable possibility that the defects can be
cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
5th Cause of Action – Fraudulent Inducement
The elements of fraudulent concealment are: “(1) the defendant must have concealed or suppressed a
material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the
defendant must have intentionally concealed or suppressed the fact with the intent to defraud the
plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he
had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression
of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA)
Corp. (1992) 6 Cal.App.4th 603, 612–13.)
As concealment is a species of fraud, it must also be pled with specificity. (Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) Less specificity is required where the
defendant necessarily possesses the information. (Committee on Children’s Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 216.) As noted by one court, it is not practical to allege facts showing
how, when and by what means something did not happen. (Alfaro v. Community Housing Improvement
Sys. Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) However, if the concealment is based on
providing false or incomplete statements, the pleading must at least set forth the substance of the
statements at issue. (Id.)
In this case, Plaintiffs have sufficiently alleged all the elements of a fraudulent inducement –
concealment cause of action in the FAC. The FAC alleges that Plaintiffs entered into a warranty contract
with GM on 6/4/2021 (¶¶ 6–7); that GM knew of the defects posed by the subject vehicle prior to
Plaintiffs’ purchase and withheld from Plaintiffs (¶¶ 63–64, 67–70, 72); that GM had exclusive/superior
knowledge of the defects (¶¶ 65–70, 73a–73b); that the defects presented a safety hazard (¶¶ 25, 64);
that Plaintiffs would not have purchased the subject vehicle had they known about the defects (¶¶ 66,
70, 75, 78); and that Plaintiffs suffered damages (¶ 78). These allegations are sufficient, at the pleading
stage, to assert a cause of action for fraudulent inducement – concealment.
GM nonetheless argues that Plaintiffs failed to allege a duty to disclose. This argument is not
persuasive. A duty to disclose arises under four circumstances in which nondisclosure or concealment
may constitute actionable fraud: “(1) when the defendant is in a fiduciary relationship with the plaintiff;
(2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when
the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes
partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 311 [citation & internal quotation marks omitted].) The last three require an evidence
of some transaction, i.e. direct dealings between the plaintiff and the defendant. (Id. at 311–12.)
Here, the allegations in the FAC are sufficient for pleading purposes to demonstrate that GM and its
agents owed a duty to disclose known defects but that they purposely withheld such disclosures from
consumers, including Plaintiffs. (See FAC ¶¶ 63–74.) Plaintiffs are not required at the pleading stage to
prove the agency relationship between GM and its dealership, and there is no question that GM
communicates to consumers, at least in part, through its authorized dealers. (See, e.g., Daniel v. Ford
Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226–27.)
Moreover, in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted 2/1/2023,
S277568), the court addressed the sufficiency for concealment for pleading purposes in fraud in a lemon
law case. The Dhital court found that plaintiffs alleged a transmission defect in numerous vehicles,
including the plaintiff’s, the defendant knew of the defect and the hazard they posed, defendant had
exclusive knowledge of the defect and failed to disclose that information, defendant intended to deceive
plaintiffs by concealing known defects, the plaintiffs would not have purchased the vehicle if they had
known of the defects, and they suffered damages on the sum paid to purchase the vehicle.
Here, Plaintiffs’ allegations largely mirror the allegations as discussed above. (See FAC ¶¶ 25, 63–70,
72, 75, 78.) Accordingly, the Court must overrule the demurrer on this ground.
Ruling
SARGON RESTORATION, INC., A CALIFORNIA CORPORATION, ET AL. VS MORRISON STUDIOS, LTD. L.P.
Jul 26, 2024 |
23BBCV01735
Case Number:
23BBCV01735
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
sargon restoration, inc.
,
et al.
,
Plaintiffs,
v.
morrison studios, ltd. lp
,
Defendant.
Case No.:
23BBCV01735
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
Motion for attorneys fees pursuant to CCP § 8488 in the amount of $4,550.00
BACKGROUND
A.
Allegations
Plaintiffs Sargon Restoration, Inc. (Restoration), Environmental Abatement, Inc. (Abatement), and L.Y. Environmental, Inc. (L.Y.) allege that they each entered into an agreement with Defendant Morrison Studios, Ltd. L.P. (Defendant) by which Plaintiffs each agreed to furnish certain labor, services, equipment, and materials for a work of improvement at the property located at 5001 Lankershim Boulevard, North Hollywood, CA 91601.
Plaintiffs allege that they performed all conditions and obligations required, but Defendants breached their contractual obligations by failing and refusing to compensate each of the Plaintiffs.
Plaintiffs allege that the reasonable value and market price of said labor, services, equipment, and materials when provided and at all relevant times herein mentioned and now is as follows: (1) the sum of $378,950.05 to Restoration for fire and water restoration &; (2) the sum of $16,000.00 to Abatement for construction and fire/water restoration &; and (3) the sum of $6,375.00 to L.Y. for environmental testing&.
(FAC, ¶13, Exs. B-D.)
The first amended complaint (FAC), filed July 2, 2024, alleges causes of action for: (1) breach of written contract (Restoration); (2) breach of oral contract (Abatement); (3) breach of oral contract (L.Y.); (4) Quantum Meruit (Restoration); (5) Quantum Meruit (Abatement); and (6) Quantum Meruit (L.Y.).
B.
Relevant Background and Motion on Calendar
On April 30, 2024, Defendant filed a petition for removal of the mechanics lien on the property located at 5001 Lankershim Blvd., North Hollywood, CA 91601.
On May 13, 2024, Plaintiffs filed an opposition brief.
On May 16, 2024, Defendant filed a reply brief.
On May 31, 2024, the Court granted Defendants petition to release the property from the mechanics lien.
On May 31, 2024, the Court signed the Order on the Petition to Remove Mechanics Lien from Property Pursuant to Civil Code, § 8480.
LEGAL STANDARD
Civil Code, § 8488 states:
(a) At the hearing both (1) the petition [for an order to release the property from the claim of lien] and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The
petitioner has the initial burden of producing evidence on those matters.
The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The
claimant
has the burden of proof as to the validity of the lien.
(b) If judgment is in favor of the petitioner, the court shall order the property released from the claim of lien.
(c)
The prevailing party is entitled to reasonable attorney's fees
.
(Civ. Code, § 8488 [emphasis added].)
DISCUSSION
Defendant moves for attorneys fees in the amount of $4,550.00 pursuant to Civil Code, § 8488(c).
[1]
In opposition, Plaintiffs acknowledge that Defendant succeeded on the merits of its petition but argue that the attorneys fees claimed are excessive.
(Opp. at p.2.)
Plaintiff does not take issue with defense counsels hourly rate of $350, but argues that the 13 hours she spent on a simple petition in light of her accomplished experience is unreasonable when Defendants motion to remove the lien and the motion for attorneys fees appear to be forms that were reproduced with dates and information to fill in.
(
Id.
)
As stated above, the parties do not dispute that Defendant prevailed on the petition for removal of the mechanics lien.
As such, Defendant is entitled to recover reasonable attorneys fees from Plaintiffs.
The only issue is whether the $4,550.00 requested by Defendant is reasonable in amount.
Defense counsel, Araksya Boyadzhyan, provides her declaration in support of the motion for attorneys fees.
Ms. Boyadzhyan states that her hourly rate is currently $350/hour.
(Boyadzhyan Decl., ¶5.) She details her legal experience; she was admitted into practice in Claifornia in December 2014 and spearheaded Mgdesyan Law Firms civil litigation department.
(
Id.
, ¶¶6-7.)
She states that she spent 13 hours on this action, which included: 0
.5 hour expended drafting correspondence and meeting and conferring with Plaintiffs counsel regarding the removal of the mechanics lien; .4 hours researching in preparing the Petition; 3 hours expending in drafting the Petition to Remove the Mechanics Lien, the Request for Judicial Notice, and my declaration in support of the Petition; 2 hours expended on researching and drafting the Reply to Plaintiffs Opposition to the Petition; 1 hour to attend the hearing on the Petition; 0.5 hour expended drafting the Proposed Order on Removal of the Mechanics Lien; and 2 hours expended in researching and drafting the instant motion for attorneys fees.
(
Id.
, ¶8.)
Ms.
Boyadzhyan anticipates spending additional time if the motion for attorneys fees is opposed.
(
Id.
, ¶9.)
Plaintiffs argue that Ms.
Boyadzhyans 4 hours spent in researching to prepare the petition and 3 hours to draft the petition are unreasonable in light of Plaintiffs belief that the petition was clearly a form documents with dates and names filled in.
(Opp. at p.2.)
They also argue that spending 2 hours on this motion for attorneys fees is also unreasonable when it is a form motion with stock declarations with blanks filled in.
(
Id.
)
The Court finds that the time spent by Ms. Boyadzhyan to research and prepare the Petition is not unreasonable.
The Court will not make a determination regarding whether the Petition or this attorneys fees motion were forms as claimed by Plaintiffs.
Regardless of whether they were form documents, Ms. Boyadzhyan would still have had to have expended time to research the law and the facts of the particular case before her, prepare the Petition and attorneys fees motion, and draft the requisite accompanying papers (declarations, requests for judicial notice, etc.).
The expenditure of 13 hours for two law and motion matters is not unreasonably high.
Ms. Boyadzhyan has adequately explained the time she has spent and the Court sees no grounds to reduce the fees.
The requested sum is reasonable for the work done on the Petition and the attorneys fees motion and is not excessive in amount.
The motion for attorneys fees is granted in the amount of $4,550.00.
CONCLUSION AND ORDER
Defendant Morrison Studios, Ltd. L.P.s motion for attorneys fees is granted in the amount of $4,550.00.
Defendant shall provide notice of this order.
DATED: July 26, 2024
___________________________
John J. Kralik
Judge of the Superior Court
[1]
(The Court notes that Defendants make reference to the Code of Civil Procedure, § 8488, but the correct section is
Civil Code
, § 8488(c).)
Ruling
North Mill Equipment Finance LLC vs. Berzin, Bella
Aug 05, 2024 |
S-CV-0052536
S-CV-0052536 North Mill Equipment Finance LLC vs. Berzin, Bella
No appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Berzin, Bella
Ruling
CENTRAL VALLEY FAST FOODS, INC., A CALIFORNIA CORPORATION, et...
Jul 26, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
22CV021552
22CV021552: CENTRAL VALLEY FAST FOODS, INC., A CALIFORNIA
CORPORATION, et al. vs PRILA FOOD, INC., A CALIFORNIA CORPORATION, et al.
07/26/2024 Compliance Hearing in Department 17
Tentative Ruling - 07/25/2024 Frank Roesch
CMC/Compliance hearing 07/26/24 @9:00 am in Dept 17
Join ZoomGov Meeting
https://www.zoomgov.com/j/16146216257
Meeting ID: 161 4621 6257
Preview
Filing # 199373329 E-Filed 05/29/2024 01:13:53 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2024-CA-000477-CI BURTON SELIGMAN, Plaintiffs, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. __________________________________/ PLAINTIFFS’ MOTION TO COMPEL SOONER DEPOSITION DATES FOR DEFENDANT’S CORPORATE REPRESENTATIVE AND FIELD ADJUSTER DEPOSITIONS COMES NOW, Plaintiff, Burton Seligman, by and through the undersigned counsel, and pursuant to Florida Rules of Civil Procedure 1.280 and 1.380, and hereby files this Motion to Compel Sooner Deposition Dates, stating the following in support: 1. Plaintiffs initiated this action for breach of contract against Defendant on or about February 15, 2024. 2. On March 11, 2024, Plaintiff sent Defendant their initial request to depose Defendant’s corporate representative and Defendant’s field adjuster, requesting dates within ninety (90) days. (See Composite Exhibit “A”) 3. On March 14, 2024, Defendant provided dates for August 2024. In response to Defendant’s proposed dates of August 2024, Plaintiffs requested sooner dates of availability. Defendant stated August 2024 was the soonest availability. (See Composite Exhibit “A”) 4. On May 2, 2024, Plaintiff followed up on their request via email to Defendant proposing deposition dates for Defendant’s corporate representative and Defendant’s field adjuster within ninety (100) days. (See Composite Exhibit “A”) 5. On May 8, 2024, Defendant provided dates for both of the depositions to occur on February 2025. (See Composite Exhibit “A”) 6. It is imperative that Plaintiff depose Defendant’s corporate representative and field adjuster, as said individuals have knowledge of the facts surrounding the subject claim. 7. Plaintiffs seek earlier deposition dates so that this matter is not further delayed. 8. Plaintiffs would be severely prejudiced if they are unable to move forward with said depositions. 9. Plaintiffs hereby certify their compliance with Florida Rule of Civil Procedure 1.380(a)(2) by conferring, or attempting to confer, with the person or party failing to make the subject discovery in an effort to secure the information or material without court action. WHEREFORE, the Plaintiff, Burton Seligman, respectfully requests this Honorable Court to grant its Motion to Compel Sooner Deposition Dates and order Defendant’s depositions to occur within sixty (60) days from the date of this Court’s order, and any and all additional relief deemed just and proper by this Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 29, 2024, I electronically filed the foregoing with the Clerk of the Court by using the Florida Courts E-Filing Portal which will send notice of this electronic filing to counsel of record. /s/ Guillermo Lopez COHEN LAW GROUP Guillermo Lopez Esq. Florida Bar Number: 1018316 350 North Lake Destiny Road Maitland, Florida 32751 Phone: (407) 478-4878 Fax: (407) 478-0204 Primary: glopez@itsaboutjustice.law Secondary: emilyp@itsaboutjustice.law Attorneys for Plaintiff Exhibit A * COHEN LAW GROUP Emily Portalatin ITSABOUTIUSTICE.LAW Re: Burton Seligman v. State Farm Florida Insurance Company 1 message Emily Portalatin Wed, May 8, 2024 at 10:25AM To: "Sarah B. Scott" Cc: "Guillermo Lopez, Esq." , "Ryan D. Scott" Good afternoon, Our office made the request to schedule the CR and FA depositions on March 11th of this year, these dates are almost a year out. We will file Notice for February 20, 2025 at 10:00 am for the CR deposition and Notice for the FA deposition on February 21, 2025 at 10:00 am. Notices will follow shortly. We will also be seeking court intervention. Thank you, EMILY PORTALATIN Legal Assistant COHEN supporting Guillermo Lopez, LAW GROUP T5RBOUTISTICE.LRW Esq. 407.478.4878 407.216.5221 emilyp@itsaboutjustice.law 350 North Lake Destiny Road Maitland, Florida 32751 www.itsaboutjustice.law inB300 CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or, (3) strictly confidential. Ifyou are not the intended recipient ofthis message, you may not disclose, print, copy or disseminate this information. Ifyou have received this in error, please advise the senderby reply e-mail or by telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same. Unauthorized interception of this e-mail is a violation of federal criminal law. On Wed, May 8, 2024 at 9:43 AM Sarah B. Scott wrote: Good morning. The CR has advised his first availability is 2/20/25. The FA has advised he is available 2/21/25 for deposition. I have requested earlier dates and will advise if/when I receive same. Please advise if you would like to get these dates on the books as they are not being held, subject to availability and will need to be confirmed prior to a notice being filed. At your convenience, please advise as to availability for Plaintiff's deposition. Thank you, Sarah From: Sarah B. Scott Sent: Monday, May 06, 2024 11:32 AM To: Guillermo Lopez, Esq. Cc: emilyp@itsaboutjustice.law; Ryan D. Scott Subject: RE: Burton Seligman v. State Farm Florida Insurance Company Good morning. I have requested the availability of the CR and FA and will advise as soon as I am able. Thank you, Sarah From: Guillermo Lopez, Esq. [mailto:glopez@itsaboutjustice.law] Sent: Thursday, May 02, 2024 3:08 PM To: Sarah B. Scott Cc: emilyp@itsaboutjustice.law; Ryan D. Scott Subject: Re: Burton Seligman v. State Farm Florida Insurance Company We can schedule the deposition to occur after May 14 to get them scheduled and on the books. If we resolve before then, then we can just cancel them. Please let me know. GUILLERMO LOPEZ, ESQ. ATTORNEY 407.478.4878 407.478.0204 glopez@itsaboutjustice.law 350 North Lake Destiny Road Maitland, Florida 32751 www.itsaboutjustice.law CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or, (3) strictly confidential. If you are notthe intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same. Unauthorized interception of this e-mail is a violation of federal criminal law. On Thu, May 2, 2024 at 3:00 PM Sarah B. Scott wrote: Good afternoon. Please advise if Mr. Guillermo is agreeable to postponing setting depositions until after the inspection has occurred. Thank you, Sarah Sarah B. Scott Legal Assistant LAW OFFICES Direct (904) 464-9024 KUBICKI Fax (904) 396-0380 DRAPER Sarah.Scott@kubickidraper.com www.kubickidraper.com 1 Independent Drive Suite 1601 Jacksonville, Florida 32202 Committed to DEl, and proudly certified: RING Platinum From: Vladimir Kulishevskiy Sent: Thursday, May 02, 2024 10:56 AM To: Sarah B. Scott Subject: FW: Burton Seligman v. State Farm Florida Insurance Company From: Emily Portalatin [mailto:emilyp@itsaboutjustice.law] Sent: Thursday, May 02, 2024 10:52 AM To: PROPJAX-KD; Kara Kennedy Byrnes; Vladimir Kulishevskiy Cc: Guillermo Lopez, Esq. Subject: Re: Burton Seligman v. State Farm Florida Insurance Company Good morning, We are following up again in good faith to schedule the CR and FA depositions. Please see our availability below and kindly advise: 8/02 - 10:00 am 8/20 - 10:00 am or 2:00 pm 8/29 - 2:00 pm 9/03 - 10:00 am or 2:00 pm 9/12 - 10:00 am or 2:00 pm Thank you, EMILY PORTALATIN Legal Assistant supporting Guillermo Lopez, Esq. 407.478.4878 407.478.0204 emilyp@itsaboutjustice.law 350 North Lake Destiny Road Maitland, Florida 32751 www.itsaboutjustice.law CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or, (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same. Unauthorized interception of this e-mail is a violation of federal criminal law. On Mon, Mar 11, 2024 at 10:49 AM Emily Portalatin wrote: Good morning! Please see the attached letter from Attorney Guillermo Lopez. Our office would also like to schedule a telephone conference. Please advise on when you are available to speak with Attorney Lopez. Thank you, EMILY PORTALATIN Legal Assistant supporting Guillermo Lopez, Esq. 407.478.4878 407.478.0204 emilyp@itsaboutjustice.law 350 North Lake Destiny Road Maitland, Florida 32751 www.itsaboutjustice.law CONFIDENTIALITY NOTICE This Transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or, (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please advise the sender by reply e-mail or by telephone at (407) 478-4878 and immediately delete this message and destroy all physical copies of same. Unauthorized interception of this e-mail is a violation of federal criminal law. Vladimir Kulishevskiy Legal Assistant LAW OFFICES Direct (904) 464-9029 KUBICKI Fax (904) 396-0380 DRAPER Vladimir.Kulishevskiy@ kubickidraper.com www.kubickidraper.com inX@f 1 Independent Drive Suite 1601 Jacksonville, Florida 32202 Committed to DEl, and proudly certified: RING Platinum