Preview
INDEX NO. 150388/2014
(FILED: NEW YORK COUNTY CLERK 0272672014)
NYSCEF DOC. NO. 18 RECEIVED NYSCEF 02/26/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
meron nit eoneanenbeeinniune
tse naton senuu nics usEsSebouaScEsceS eee
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION and WDF INC.,
AFFIRMATION IN
Plaintiffs, OPPOSITION
-against- Index No. 150388/14
ASPEN INSURANCE UK LIMITED and S & M
MECHANICAL CORP.,
Defendants.
a Sin eetntaweusevaeaticaceaLccuescace
MARTIN B. ADAMS, affirms the following to be true under the penalties
of perjury:
1 I am an attorney licensed to practice law in the State of New York. I
am associated with Dopf, P.C., attorneys for plaintiffs.
2. This Affirmation is submitted in opposition to the Motion by defendant
S & M MECHANICAL CORP. [“S & M”] to dismiss this action on the ground of prior
pending action.
3. This Affirmation is made upon information and belief, based upon the
file maintained by Your Affirmant’s office. I have reviewed that file and, on that basis, I
am fully familiar with the proceedings heretofore had herein.
“1s
POINT I
THIS DECLARATORY JUDGMENT ACTION
CONTAINS CAUSES OF ACTION AND SEEKS
RELIEF NOT RAISED OR SOUGHT IN THE
UNDERLYING PERSONAL INJURY ACTION
4. The underlying personal injury action involves alleged negligence and
alleged violations of Labor Law §§200, 240[1], and 241(6). This declaratory judgment
action seeks coverage under a liability insurance policy issued by defendant ASPEN
INSURANCE UK LIMITED [“ASPEN”] to defendant-insured S & M.
5. Plaintiffs in this declaratory judgment action has not filed any third-
party action or other claim in the underlying Larkin action seeking a declaration that S &
M’s insurer, ASPEN, is obligated to defend and indemnify plaintiffs in the Larkin action.
6. Defendant S & M correctly notes that the third cause of action in this
declaratory judgment action for failure to procure insurance is the same as the fourth
cause of action in the underlying third-party action against S & M for failure to procure
insurance. However, the first and second causes of action in this declaratory judgment
action against ASPEN address legal issues not addressed in the underlying Larkin action.
Defendant S & M does not deny that it has an interest in the outcome of those additional
legal issues, even though no formal relief is sought against defendant S & M under the
first and second causes of action in this declaratory judgment action.
7. In this declaratory judgment action, plaintiffs seek relief in the form of
insurance coverage from defendant ASPEN. The first and second causes of action are not
duplicative of any claim in the underlying Larkin action. Defendant S & M, as an insured
under the insurance policy from which plaintiffs also seek coverage, has a natural interest
in the outcome of those causes of action (defendant S & M, in its Motion, makes no
averment to the contrary).
Be
8. Defendant S & M is not entitled to dismissal of the declaratory
judgment complaint in its entirety. The first and second causes of action in this
declaratory judgment action, which are addressed to defendant ASPEN but about which
defendant S & M as the insured has an interest, allege damages [insurance coverage]
distinct from the damages sought in the underlying third-party action against third-party
defendant S & M (contribution and indemnity for any personal injury settlement or
judgment plaintiff Larkin may recover against plaintiffs herein).
9. The first and second causes of action in this declaratory judgment action
arise from facts [insurance coverage] that are different than the facts [Larkin’s personal
injury accident and damages] at issue in the underlying action.
10. This Honorable Court can stay the third cause of action asserted
against defendant S & M pending resolution of the fourth cause of action asserted against
S &M in the underlying Larkin action based upon failure to procure insurance. CPLR
§2201. At most, defendant S & M would be entitled to dismissal only of the third cause
of action as duplicative of the fourth cause of action asserted in the third-party complaint
in the underlying Larkin action. Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 14 (2d
Dep’t 2002)(Plaintiff's causes of action alleging breach of contract, breach of fiduciary
duty, and fraudulent misrepresentation were properly dismissed as being duplicative ofa
legal malpractice cause of action).
11. This action for a declaratory judgment is brought to forever settle the
rights of all interested parties — including S & M as the insured under the insurance policy
at issue. Defendant-insured S & M, who may be affected thereby, has been named as
party defendants.
AR
POINT II
DEFENDANT S & M HAS NOT INDICATED
THAT IT AGREES TO BE BOUND BY ANY
ORDER OR JUDGMENT IN THIS
DECLARATORY JUDGMENT ACTION
12. Any determination as to coverage of ASPEN’s insurance policy in
favor of plaintiffs would naturally affect the rights of S & M, which is an insured under
that insurance policy.
13. Plaintiffs seek a declaration that defendant ASPEN is obliged to
defend and indemnity plaintiffs in the Larkin action. Plaintiffs also seek reimbursement
from ASPEN for all amounts expended by plaintiffs in defending and potentially paying
a settlement or judgment in the Larkin action.
14. Defendant S & M does not state that it has no objection to the grant of
relief in favor of plaintiffs and against the insurance policy of which defendant S & M is
an insured.
15. No relief should be granted on defendant S & M’s Motion absent a
declaration from S & M that it is not adverse to plaintiffs’ claims and waives any
objection to, or defense against the claims against ASPEN. Casanas v. Carlei Group.
LLC, 105 A.D.3d 570, 964 N.Y.S.2d 31 (1* Dep’t 2013)(Action by tenants seeking a
declaration of their rights as lessees of two apartments; defendant manager of the owner
of the building had complete control over the owner, and had to be a party to insure that
he was collaterally estopped by a judgment from conveying the property or contesting the
validity of the tenants’ leases).
16. Plaintiffs named S & M as a defendant in this declaratory judgment
action so that (i) S & M has notice of these proceedings and an opportunity to be heard,
and (ii) S & M is bound by any decision issued in this declaratory judgment action.
cA
17. Defendant S & M has not stated in its Motion that, in the event of
dismissal, it agrees to be bound by any decision in this declaratory judgment action.
Accordingly, defendant’s motion should be denied.
18. Defendant S & M, as the insured, should not be dismissed from this
action only to later exercise an opportunity to subvert any decision or judgment that may
be issued in this declaratory judgment action. Should relief be granted on defendant S &
M’s Motion, then the relief should include a directive that defendant S & M is bound by
any decision or judgment affecting coverage under defendant ASPEN INSURANCE UK
LIMITED’s insurance policy in which S & M is an insured.
19. Your Affirmant certifies that, to the best of Your Affirmant’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances, the presentation of this Affirmation in Opposition is not frivolous.
WHEREFORE, plaintiffs respectfully request that defendant S & M
MECHANICAL CORP.’s Motion be denied, together with such other and further relief
as to this Court seems just and proper.
Dated: New York, New York
February 24, 2014
MARTIN B. ADAMS
sSz
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Cindy Cuello, being duly sworn, deposes and says: That she is not a party to the action.
That she is over 18 years of age and resides in Bronx, New York.
On February 25, 2014, deponent served the within AFFIRMATION IN OPPOSITION
upon:
GOLDBERG SEGALLA
Attorneys for Defendant
ASPEN INSURANCE UK LIMITED
600 Lexington Avenue, Suite 900
New York, New York 10022
by depositing a true copy of same, enclosed in a post-paid, properly addressed wrapper, in a post
office official depository under the exclusive care and custody of the United States Postal
Service within the State of New York.
CE.
Cindy Cucllo
Sworn to before me this
25" day of February, 2014.
Ment A__
jotary Public
LINE P. CHANCE
Notary Public,‘State of New York
No. 011
Quslified
in
Commission Expires Sone
77, 2012
4840-7477-8904, v. 1
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Floyd Williams, being duly sworn, deposes and says: That he is not a party to the action.
That he is over 18 years of age and resides in Bronx, New York.
On February 25, 2014, deponent served the within AFFIRMATION IN OPPOSITION
upon:
BY HAND
MOUND COTTON WOLLAN & GREENGRASS
Attorneys for Defendant
S&M MECHANICAL CORP.
One Battery Park Plaza
24 Whitehall Street
New York, NY 10004-1486
At the address designated by said attorney(s) for that purpose by personally hand delivering a
true copy of same enclosed in a properly addressed wrapper at their offices located at the address
listed above within the State of New York.
Zi 42
Floyd Williams
Sworn to before me this
25" day of February, 2014.
Ly
Co
Notary Public
Gel
CINDY CUELLO
Notary Public, State New York
No. 01CU6242207
Qualified in Bronx Count
ion Expires May 31, nb
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Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
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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
INDEX NO. 150388/2014 (FILED: NEW YORK COUNTY CLERK 0272672014) NYSCEF DOC. NO. 18 RECEIVED NYSCEF 02/26/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meron nit eoneanenbeeinniune tse naton senuu nics usEsSebouaScEsceS eee THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION and WDF INC., AFFIRMATION IN Plaintiffs, OPPOSITION -against- Index No. 150388/14 ASPEN INSURANCE UK LIMITED and S & M MECHANICAL CORP., Defendants. a Sin eetntaweusevaeaticaceaLccuescace MARTIN B. ADAMS, affirms the following to be true under the penalties of perjury: 1 I am an attorney licensed to practice law in the State of New York. I am associated with Dopf, P.C., attorneys for plaintiffs. 2. This Affirmation is submitted in opposition to the Motion by defendant S & M MECHANICAL CORP. [“S & M”] to dismiss this action on the ground of prior pending action. 3. This Affirmation is made upon information and belief, based upon the file maintained by Your Affirmant’s office. I have reviewed that file and, on that basis, I am fully familiar with the proceedings heretofore had herein. “1s POINT I THIS DECLARATORY JUDGMENT ACTION CONTAINS CAUSES OF ACTION AND SEEKS RELIEF NOT RAISED OR SOUGHT IN THE UNDERLYING PERSONAL INJURY ACTION 4. The underlying personal injury action involves alleged negligence and alleged violations of Labor Law §§200, 240[1], and 241(6). This declaratory judgment action seeks coverage under a liability insurance policy issued by defendant ASPEN INSURANCE UK LIMITED [“ASPEN”] to defendant-insured S & M. 5. Plaintiffs in this declaratory judgment action has not filed any third- party action or other claim in the underlying Larkin action seeking a declaration that S & M’s insurer, ASPEN, is obligated to defend and indemnify plaintiffs in the Larkin action. 6. Defendant S & M correctly notes that the third cause of action in this declaratory judgment action for failure to procure insurance is the same as the fourth cause of action in the underlying third-party action against S & M for failure to procure insurance. However, the first and second causes of action in this declaratory judgment action against ASPEN address legal issues not addressed in the underlying Larkin action. Defendant S & M does not deny that it has an interest in the outcome of those additional legal issues, even though no formal relief is sought against defendant S & M under the first and second causes of action in this declaratory judgment action. 7. In this declaratory judgment action, plaintiffs seek relief in the form of insurance coverage from defendant ASPEN. The first and second causes of action are not duplicative of any claim in the underlying Larkin action. Defendant S & M, as an insured under the insurance policy from which plaintiffs also seek coverage, has a natural interest in the outcome of those causes of action (defendant S & M, in its Motion, makes no averment to the contrary). Be 8. Defendant S & M is not entitled to dismissal of the declaratory judgment complaint in its entirety. The first and second causes of action in this declaratory judgment action, which are addressed to defendant ASPEN but about which defendant S & M as the insured has an interest, allege damages [insurance coverage] distinct from the damages sought in the underlying third-party action against third-party defendant S & M (contribution and indemnity for any personal injury settlement or judgment plaintiff Larkin may recover against plaintiffs herein). 9. The first and second causes of action in this declaratory judgment action arise from facts [insurance coverage] that are different than the facts [Larkin’s personal injury accident and damages] at issue in the underlying action. 10. This Honorable Court can stay the third cause of action asserted against defendant S & M pending resolution of the fourth cause of action asserted against S &M in the underlying Larkin action based upon failure to procure insurance. CPLR §2201. At most, defendant S & M would be entitled to dismissal only of the third cause of action as duplicative of the fourth cause of action asserted in the third-party complaint in the underlying Larkin action. Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 14 (2d Dep’t 2002)(Plaintiff's causes of action alleging breach of contract, breach of fiduciary duty, and fraudulent misrepresentation were properly dismissed as being duplicative ofa legal malpractice cause of action). 11. This action for a declaratory judgment is brought to forever settle the rights of all interested parties — including S & M as the insured under the insurance policy at issue. Defendant-insured S & M, who may be affected thereby, has been named as party defendants. AR POINT II DEFENDANT S & M HAS NOT INDICATED THAT IT AGREES TO BE BOUND BY ANY ORDER OR JUDGMENT IN THIS DECLARATORY JUDGMENT ACTION 12. Any determination as to coverage of ASPEN’s insurance policy in favor of plaintiffs would naturally affect the rights of S & M, which is an insured under that insurance policy. 13. Plaintiffs seek a declaration that defendant ASPEN is obliged to defend and indemnity plaintiffs in the Larkin action. Plaintiffs also seek reimbursement from ASPEN for all amounts expended by plaintiffs in defending and potentially paying a settlement or judgment in the Larkin action. 14. Defendant S & M does not state that it has no objection to the grant of relief in favor of plaintiffs and against the insurance policy of which defendant S & M is an insured. 15. No relief should be granted on defendant S & M’s Motion absent a declaration from S & M that it is not adverse to plaintiffs’ claims and waives any objection to, or defense against the claims against ASPEN. Casanas v. Carlei Group. LLC, 105 A.D.3d 570, 964 N.Y.S.2d 31 (1* Dep’t 2013)(Action by tenants seeking a declaration of their rights as lessees of two apartments; defendant manager of the owner of the building had complete control over the owner, and had to be a party to insure that he was collaterally estopped by a judgment from conveying the property or contesting the validity of the tenants’ leases). 16. Plaintiffs named S & M as a defendant in this declaratory judgment action so that (i) S & M has notice of these proceedings and an opportunity to be heard, and (ii) S & M is bound by any decision issued in this declaratory judgment action. cA 17. Defendant S & M has not stated in its Motion that, in the event of dismissal, it agrees to be bound by any decision in this declaratory judgment action. Accordingly, defendant’s motion should be denied. 18. Defendant S & M, as the insured, should not be dismissed from this action only to later exercise an opportunity to subvert any decision or judgment that may be issued in this declaratory judgment action. Should relief be granted on defendant S & M’s Motion, then the relief should include a directive that defendant S & M is bound by any decision or judgment affecting coverage under defendant ASPEN INSURANCE UK LIMITED’s insurance policy in which S & M is an insured. 19. Your Affirmant certifies that, to the best of Your Affirmant’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the presentation of this Affirmation in Opposition is not frivolous. WHEREFORE, plaintiffs respectfully request that defendant S & M MECHANICAL CORP.’s Motion be denied, together with such other and further relief as to this Court seems just and proper. Dated: New York, New York February 24, 2014 MARTIN B. ADAMS sSz AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Cindy Cuello, being duly sworn, deposes and says: That she is not a party to the action. That she is over 18 years of age and resides in Bronx, New York. On February 25, 2014, deponent served the within AFFIRMATION IN OPPOSITION upon: GOLDBERG SEGALLA Attorneys for Defendant ASPEN INSURANCE UK LIMITED 600 Lexington Avenue, Suite 900 New York, New York 10022 by depositing a true copy of same, enclosed in a post-paid, properly addressed wrapper, in a post office official depository under the exclusive care and custody of the United States Postal Service within the State of New York. CE. Cindy Cucllo Sworn to before me this 25" day of February, 2014. Ment A__ jotary Public LINE P. CHANCE Notary Public,‘State of New York No. 011 Quslified in Commission Expires Sone 77, 2012 4840-7477-8904, v. 1 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Floyd Williams, being duly sworn, deposes and says: That he is not a party to the action. That he is over 18 years of age and resides in Bronx, New York. On February 25, 2014, deponent served the within AFFIRMATION IN OPPOSITION upon: BY HAND MOUND COTTON WOLLAN & GREENGRASS Attorneys for Defendant S&M MECHANICAL CORP. One Battery Park Plaza 24 Whitehall Street New York, NY 10004-1486 At the address designated by said attorney(s) for that purpose by personally hand delivering a true copy of same enclosed in a properly addressed wrapper at their offices located at the address listed above within the State of New York. Zi 42 Floyd Williams Sworn to before me this 25" day of February, 2014. Ly Co Notary Public Gel CINDY CUELLO Notary Public, State New York No. 01CU6242207 Qualified in Bronx Count ion Expires May 31, nb 4838-7961-1928, v. 1 2 ac a8 5828 B3 Bs os £3 ss az 2a8 3 az 25 s= c= z= nF PE =z< xs =37= Rae =e = ae a =Z2 <€ os we me | Zz on | xm =a =a aa et y> t a3 as se Ra am E26 Qu oc =z aZ sas BZ om ge ze "Qs z= To zo aS Sy aE.O on Sar a9 >a oe cm 2a.a5 oc D< ao on om =o re oA 22° oes SS az aA = of ml sz B £5 = Zo 8 p= re