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IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIAHP DAVINCI COURT, LLC ) ) Plaintiff, ) CIVIL ACTION NO.: ) 24-A-04626-6v. ) ) )CITY OF PEACHTREE CORNERS, )GEORGIA, ) ) Defendant. ) DEFENDANT’S MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS AND BRIEF IN SUPPORT COMES NOW, Defendant, CITY OF PEACHTREE CORNERS, GEORGIA (“City”or “Defendant”) and having been duly served in the above-stated case with HP Davinci Court,LLC (“Plaintiff”)’s Complaint seeking declaratory relief and damages (“Complaint”), files this asits Motion to Dismiss and Motion for Judgment on the Pleadings, showing the Court thefollowing: INTRODUCTION Plaintiff feels wronged because its Application for rezoning of the property at 3720 and3740 Davinci Court, Peachtree Corners, GA 30092 (“Property”) from Office-Business Park(“OBP”) to Mixed Use Development (“MUD”) was denied by the Defendant after duly noticedpublic hearings and consideration of the public health, safety, welfare, and the law. In response,Plaintiff sued Defendant. Plaintiff’s Complaint must be dismissed because it is a legally-deficientchallenge to Defendant’s exercise of a quintessentially legislative power. This is a simple motionto grant for two main reasons: 1. First Plaintiff failed to assert or show an express constitutional or statutory waiver of Defendant’s sovereign immunity. It is well established that in the absence of an express waiver of sovereign immunity, the superior courts lack jurisdiction to hear claims for declaratory relief. 2. Second, Plaintiff alleges that the Defendant’s denial of its Application constitutes a taking of its property, but Plaintiff failed to present any viable claim to Defendant before denial of its Application. The long-standing, well-established caselaw of over 40 years holds that a plaintiff’s failure to present claims before the final decision of a local governing body bars the superior court’s subject matter jurisdiction to hear belated claims. For each of the above-stated reasons and as will be discussed with supporting law below,Defendant’s motion must be granted, and Plaintiffs’ Complaint dismissed entirely with prejudice. ARGUMENT AND CITATION TO AUTHORITYI. Standards Governing This Motion. A. Dismissal for Want of Jurisdiction. The Complaint must be dismissed because this Court lacks jurisdiction to hear theComplaint. O.C.G.A. § 9–11–12(b)(1) requires dismissal of claims and complaints where thisSuperior Court lacks subject matter jurisdiction. Sons of Confederate Veterans et al. v. NewtonCnty. Bd. of Commissioners, 368 Ga. App. 511, 512–13 (2023), cert. denied (Feb. 20, 2024). Theburden of establishing subject matter jurisdiction falls on the person seeking judicial review, inthis case Plaintiffs. Id. For the reasons discussed below, Plaintiffs’ Complaint fails to carry thatburden. 2 B. Dismissal for Failure to State a Claim. The Complaint must be dismissed because the Complaint fails to state a claim for whichthis Court may provide relief. Under O.C.G.A. § 9–11–12(b)(6) [a] motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.Mabra v. SF, Inc., 316 Ga. App. 62, 62 (2012). “While a trial court is required to consider a non-moving party’s factual allegations to be true, it is not required to accept the legal conclusions thenon-moving party suggests that those facts dictate.” Bankston v. RES-GA Twelve, LLC, 334 Ga.App. 302, 304 (2015). In this case, Plaintiffs have failed to state a claim which would survive amotion to dismiss. C. Motion for Judgment on the Pleadings. Based on the pleadings, judgment must be granted to Defendant, the moving party.Under O.C.G.A. § 9–11–12(c), the grant of judgment on the pleadings is proper only where thereis a complete failure of plaintiff to state a cause of action. Such is the case here. Whenconsidering this motion, the court considers all of the non-movant’s allegations as true, and alldenials by the movant as false. Schumacher v. City of Roswell, 344 Ga. App. 135, 138 (2017).Significantly, however, the court need not and should not adopt any parties’ legal conclusions –the law is to be decided by the court. Id. Said another way, a court should grant judgment on thepleadings under O.C.G.A. § 9-11-12(c) if the pleadings show that the defendant is entitled tojudgment as a matter of law. Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2014). Different 3from a pure motion to dismiss, the court may consider all exhibits attached to the pleadings –complaint and answer. Schumacher, 344 Ga App. at 138.II. Application of Standards to Plaintiff’s Defective Complaint. A. Plaintiff’s Failure to Assert and Show Any Waiver of Defendant’s Sovereign Immunity Requires Dismissal with Prejudice. Sovereign immunity is a threshold jurisdictional question that a trial court must addressbefore considering the merits of a claim. Specifically, suits brought against the State which are barred by sovereign immunity are subject to OCGA § 9-11-12 (b) (1) dismissal for lacking subject- matter jurisdiction; and like the State, counties are also protected by sovereign immunity. Suffice it to say, sovereign immunity is a threshold determination because—like various other rules of jurisdiction and justiciability—it is ‘concerned with the extent to which a case properly may come before a court at all.’ Importantly, sovereign immunity may only be waived ‘by an act of the General Assembly specifically providing for waiver and delineating the extent of that waiver,’ and implied waivers of sovereign immunity are ‘not favored.’Sons of Confederate Veterans, 368 Ga. App. at 512–13 (internal citations omitted). “Inconsidering a motion for lack of subject matter jurisdiction based on sovereign immunity, a trialcourt is not confined to the allegations of the complaint, as the court would be if considering amotion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6).” James v. Ga.Dep’t of Public Safety, 337 Ga. App. 864, 867 (2016). Because immunity is the rule – and waiverthe exception – courts should strictly construe waivers in favor of sovereign immunity. SawneeElec. Membership Corp. v. Georgia Dep’t of Revenue, 279 Ga. 22, 23 (2005). The Plaintiffcarries the burden to prove that sovereign immunity is waived for each of its claims. GeorgiaDep’t of Lab. v. RTT Assocs., Inc., 299 Ga. 78, 81 (2016) (“The burden of demonstrating a waiverof sovereign immunity rests upon the party asserting it.”) To survive a motion to dismiss or amotion for judgment on the pleadings, Plaintiff must have shown with specificity in their 4Complaint what constitutional provision or statutory provision waives Defendant’s sovereign ormunicipal immunity. Id. In this case, Plaintiff’s Complaint fails to even mention the word “waiver” or the term“sovereign immunity,” much less cite and quote any specific constitutional or statutory waiver ofDefendant’s sovereign or municipal immunity. Because waivers are the exception and the burdenis on the one seeking relief despite the immunity, mere allegation of claims for declaratory reliefis insufficient; the party seeking such relief must point the court to the exact statutory languagewhich waives Defendant’s sovereign or municipal immunity. Plaintiff’s Complaint simply hasnot met its burden. Sovereign immunity has historically been an absolute bar to claims for injunctive anddeclaratory relief. Lathrop v. Deal, 301 Ga. 408, 426 (2016); see also Olvera v. Univ. Sys. ofGeorgia’s Bd. of Regents, 298 Ga. 425, 427 (2016); Georgia Dept. of Natural Resources v.Center for a Sustainable Coast, Inc., 294 Ga. 593 (2014). The Supreme Court has extended theconstitutional reservation of sovereign immunity to cities. Lathrop, 301 Ga. at 422 (2016). TheSupreme Court “has repeatedly ruled on the scope of sovereign immunity under the GeorgiaConstitution, finding that it bars claims for injunctive relief and claims for declaratory judgmenteven if based upon constitutional claims.” Georgia Ass'n of Pro. Process Servers v. Jackson, 302Ga. 309, 311 (2017) (internal citations omitted) (superseded by statute on other groundsBrock v. Hardman, 303 Ga. 729, 730 (2018)). Moreover, although not expressly alleged byPlaintiff, and thus still defective, Defendant acknowledges that sovereign immunity is waivedwith respect to claims for inverse condemnation, but only when properly asserted. Because Plaintiff’s complaint fails to show any express waiver of Defendant’s sovereignor municipal immunity for declaratory relief, this Court is without jurisdiction to consider the 5substance of Plaintiff’s’ Complaint; and therefore, this Court must dismiss Plaintiff’s Complaintwith prejudice. B. Plaintiff Failed to Raise and Preserve their Constitutional Takings Claim Below. Georgia Courts have consistently held that a constitutional or statutory attack on theadoption of a zoning ordinance cannot be made for the first time in the superior court. Ashkouti v.City of Suwanee, 271 Ga. 154, 155 (1999) (quoting DeKalb County v. POST Properties, 245 Ga.214, 217 (1980); McCamy v. DeKalb County, 246 Ga. 293 (1980)); see also Cooper v. UnifiedGov’t of Athens Clarke County, 277 Ga. 360, 361 (2003); DeKalb County, Ga. v. Bembry, 252Ga. 510, 510-511 (1984). The Ashkouti court went on to explain: That is to say, a constitutional attack upon a zoning classification has to be raised before the board of county commissioners (zoning authority). This requirement affords the county commissioners an opportunity to amend the zoning ordinance to the classification sought or to an intermediate classification which is constitutional, and puts them on notice of possible litigation if they do not. Moreover, it focuses the commissioners’ consideration on the factors affecting the constitutionality of the existing zoning classification.Id., 271 Ga. at 155 (1999). “‘In order to raise a question as to the constitutionality of a ‘law,‘ atleast three things must be shown: (1) the statute or the particular part or parts of the statute whichthe party would challenge must be stated or pointed out with fair precision; (2) the provision ofthe Constitution, which it is claimed has been violated must be clearly designated; and (3) it mustbe shown wherein the statute, or some designated part of it, violates such constitutionalprovision.’” Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 774, 95 S.E.2d 677, 678(1956). DeKalb Cnty. v. Post Properties, Inc., 245 Ga. 214, 218, 263 S.E.2d 905, 908 (1980).The Supreme Court has extended this presentment rule to not merely constitutional claims butany and all statutory or ordinance-based claims of rights: “[W]e now hold that, just as required ina constitutional attack, a party must raise any plea in bar as a defense in the initial hearing before 6the County Commissioners in order to assert it as a defense on appeal.” Trend Dev. Corp. v.Douglas Cnty., 259 Ga. 425, 426 (1989). In this case, the Plaintiff failed to assert a valid and viable claim before Defendant that ifDefendant’s Mayor and City Council voted to take any action other than a zoning change, itsinaction would constitute a taking and support an inverse condemnation claim. Plaintiff’sComplaint fails entirely to set forth any facts to show if or how Plaintiff preserved itsconstitutional claims below. Indeed, Plaintiff failed to assert any constitutional arguments at a public hearing duringDefendant’s consideration of the Application. Instead, the only place Plaintiff ever mentioned itsconstitutional claims was buried in a footnote of its February 16, 2024 letter accompanying itsApplication. As to any mention of a taking, Plaintiff only generally alleged that Defendant’sinaction would “deprive [Plaintiff] of its right and ability to use its Property in accordance withits highest and best use” and “result in an unconstitutional taking of property rights.” (SeeDefendant’s Answer, Exhibit A). Not even this footnote adequately states a claim for inversecondemnation which could have been considered by the Mayor and Council in making itsdecision. As an initial matter, Plaintiff failed to specify whether it had a potential claim for inversecondemnation under the Constitution of the United States of America or the Constitution of theState of Georgia. Accordingly, this Motion shall address claims under both constitutions. TheUnited States Supreme Court has plainly held that an inverse condemnation claim under theUnited State Constitution can only be sustained “where regulation denies all economicallybeneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003,1015 (1992). Even taking Plaintiff’s allegations in their letter as true, Plaintiffs only asserted that 7a decision to not rezone the Property deprives them of the Property’s “highest and best use.”Plaintiff failed to ever allege or put Defendant on notice that it was taking the position that afailure to rezone would deny Plaintiff all economically beneficial or productive use of land,which would have been required for a valid claim under the United State Constitution.Accordingly, Plaintiff failed to adequately notify Defendant of any viable claim for inversecondemnation under the United States Constitution. Under the Georgia State Constitution, “[a] plaintiff seeking to challenge a governmentregulation as an uncompensated exercise of the government’s eminent domain power must showthat the regulation is so onerous that its effect is tantamount to a direct appropriation or ouster.”Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 607 (2017). In Diversified Holdings,the Supreme Court of Georgia went further, finding that “for an alleged regulatory taking,inverse condemnation will apply when the owner was completely deprived of the use of theproperty.” Id. at 608 (emphasis added). However, the Court noted that it had “identified nozoning case where the party claiming inverse condemnation received a ‘takings’ remedy, that is,financial damages to compensate for the loss of their property.” Id. at 611. Indeed, the Courtcautioned that “zoning is unlikely to be a fertile ground for inverse condemnation claims.” Id;see also D. Rose, Inc. v. City of Atlanta, 359 Ga. App. 533, 536 (2021). Again, Plaintiff never putDefendant on notice that it was taking the position that a failure to rezone could completelydeprive Plaintiff of the use of its Property. Under either standard, the Plaintiff failed to put the Defendant on notice that it had aviable inverse condemnation claim. Put simply, a deprivation of the “highest and best use” of aproperty is not the same as and fails to meet the high threshold of establishing that the Plaintiffwas “completely deprived” or denied “all economically beneficial or productive use of land”, as 8required to state a viable claim. Accordingly, there was no inverse condemnation claim forDefendant to be able to consider ahead of making its decision. Accordingly, the Court should grant Defendant a judgment on the pleadings underO.C.G.A. § 9-11-12(c), or in the alternative, dismiss Plaintiff’s claim for inverse condemnationbecause it did not preserve a viable claim for inverse condemnation below. CONCLUSION For the reasons discussed above, this Court must grant Defendant’s motion to dismiss andmotion for judgment on the pleadings and dismiss with prejudice Plaintiff’s Complaint in itsentirety. Respectfully submitted this 28th day of June, 2024. /s/ Andrew J. “Andy” Welch, III_________ ANDREW J. “ANDY” WELCH, III State Bar of Georgia No. 746801 BRANDON F. PALMER State Bar of Georgia No. 799143 Attorneys for DefendantSMITH, WELCH, WEBB & WHITE2200 Keys Ferry CourtMcDonough, Georgia 30253Telephone: 770-957-3937Facsimile: 678-583-4888awelch@smithwelchlaw.combpalmer@smithwelchlaw.com 9 CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the within and foregoingDEFENDANT’S MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THEPLEADINGS AND BRIEF IN SUPPORT upon all parties via statutory electronic service asfollows: Simon H. Bloom Andrea J. Pearson Virginia L. Eith BLOOM PARHAM, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306-4265 Tel: (404)577-7710 Fax: (404) 577-7715 sbloom@bloom-law.com apearson@bloom-law.com veith@bloom-law.comThis 28th day of June, 2024. /s/ Andrew J. “Andy” Welch, III_________ ANDREW J. “ANDY” WELCH, III State Bar of Georgia No. 746801 BRANDON F. PALMER State Bar of Georgia No. 799143 Attorneys for DefendantSMITH, WELCH, WEBB & WHITE2200 Keys Ferry CourtMcDonough, Georgia 30253Telephone: 770-957-3937Facsimile: 678-583-4888awelch@smithwelchlaw.combpalmer@smithwelchlaw.com 10
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Plaintiff Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust (Plaintiff) were the landlord and Defendant Extensions Plus (Extensions Plus) was the tenant and Defendant Helene Stahl (Stahl) was the guarantor (collectively, Defendants). Possession of the premises was not at issue as the tenant no longer occupied the premises. Plaintiffs contended that the commercial tenant made unpermitted alterations causing substantial damages to the property and then abandoned the premises with past due rent owing to set up their business in a new location. On 3/30/21, Plaintiffs filed this action for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing and (3) Common Count. On 10/22/21, Defendants filed answers to the complaint. After a court trial, on 1/30/24, the Court entered judgment in favor of Plaintiff and against Defendants on Plaintiffs complaint. (See 1/30/24 Judgment). Plaintiff was awarded damages in the amount of $203,387.50, prejudgment interest in the amount of $50,036.50 for a total award of $253,424.00. Id. On 3/13/24, Plaintiff filed and served the instant motion seeking an order awarding Plaintiff attorneys fees and costs in the total amount of $73,118.75 comprised of $63,643.75 in attorney fees, $7,575.00 in expert fees and $1,900 in fees for the instant motion. Defendants have opposed the motion and Plaintiff has filed a reply to the opposition. ANALYSIS Attorneys fees are recoverable as an item of costs when authorized by contract, statute or law. See CCP 1033.5(a)(10). Civil Code 1717 provides, in relevant part: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. The lease agreement/contract which provided the basis for this action contained the following attorney fee provision: Attorney's Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule but shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to reasonable attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). (See Complaint, Ex.A; Cordero-Sacks Decl., Ex.1). Similarly, the Guaranty provides: In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorneys fee. The attorneys fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all attorneys fees reasonably incurred. Id. Based on the 1/30/24 Judgment, Plaintiff is the prevailing party in this action. As such, Plaintiff is entitled to recover its reasonable attorneys fees, not unlimited legal fees as claimed in the motion. (See Motion, p.2:4). The amount of attorneys fees to be awarded is left to the sound discretion of the trial court. PLCM Group (2000) 22 C4th 1084, 1095-1096, internal citations omitted. Further, it has been held that experienced trial judges are the best judge of the value of professional services rendered in their courts and their judgment will only be disturbed on appeal if it is clearly wrong and an abuse of discretion. Id. A trial court may make its own determination of the value of the services without expert testimony. Id. In calculating a reasonably attorney fee award, the trial court begins with the lodestar (the number of hours reasonably spent multiplied by the reasonable hourly rate). Id. The reasonable hourly rate is the rate prevailing in the community for similar work. Id. Here, the Court finds that the hourly rates ranging from $375/hour for associate work and $375-$475/hour for principal work to be reasonable. However, the Court finds that the amount of time claimed to have been spent is excessive. The billing entries are extremely vague. (See Cordero-Sacks Decl., Ex.2). For example, many of the entries are merely titled Draft without any indication of what was being drafted. Id. Other examples of vague billing entries are those titled Reduced Hourly without any indication of what task was performed at the reduced rate. Id. As such, the Court finds that a 25% reduction of the attorneys fees requested is warranted. The Court finds that Plaintiff has failed to support its request for an award of expert fees. In the motion, Plaintiff merely argues that Plaintiff is entitled to recover reasonable attorneys fees and costs as provided for in the Commercial Lease and Guaranty, which includes expert witness fees. (emphasis in original) (See Motion, p.5:28-p.6:3). An award of contractual attorneys fees may not include expenses expressly denominated by statute as nonrecoverable cost items, such as expert fees not ordered by the court, postage, telephone and copying charges. See Carwash of America-PO LLC (2002) 97 CA4th 540, 544; Hsu (2005) 126 CA4th 1330, 1340-1342 (disapproving Bussey (1990) 225 CA3d 1162, 1166); Jones (2005) 127 CA4th 542, 550-551. It has been held by some courts that a contract provision which allows the prevailing party to recover all necessary expenses, or similar broad language, may permit an award of expert fees not ordered by the court. Here, it cannot be argued that the attorneys fee provisions in the lease and/or guaranty are so broad as to cover expert fees. (See Complaint, Ex.A; Cordero-Sacks Decl., Ex.1). The only reference to recovering costs and expenses in the attorneys fee provision contained in the lease relates to costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). CONCLUSION Based on the foregoing, Plaintiff is awarded $49,157.81 in attorneys fees (($63,643.75 + $1,900.00) = $65,543.75 25% ($16,385.94) = $49,157.81). Plaintiffs request for expert fees is denied.
Ruling
U.S. Bank Trust, N.A. vs. Sells
Jul 14, 2024 |22CV-0200669
U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669Tentative Ruling on Order to Show Cause Re Dismissal: An Order to Show Cause ReDismissal (hereinafter “OSC”) issued May 31, 2024, to Plaintiff’s Counsel for failure to submit aproposed judgment as ordered on September 25, 2023. Counsel has submitted a response to theOSC Re: Dismissal, and a Request to Vacate an Order of Sanctions that was made by JudgeBoeckman on May 28, 2024.The Court declines to vacate its May 31, 2024 Order imposing sanctions. That issue is not properlybefore the Court. That order was issued by another judge and Counsel failed to appear at thehearing on that matter.A proposed judgment was lodged with the Court on June 24, 2024. However, the Court notes thatthe proposed judgment identifies two street addresses for the subject property, each of which aredifferent from the street address identified in the Request for Court Judgment by Default. TheCourt needs further clarification as to the correct address. The ‘correctness’ of the judgment isnot at issue in the instant OSC. Only the failure to timely provide the Court with a proposedjudgment is at issue in this hearing. Having reviewed counsel’s declaration, the Court finds goodcause to vacate the instant OSCThe Court confirms today’s review hearing set for 9:00 a.m.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
Jul 10, 2024 |RIC1905065
GA&TV INC VS LEVRIC1905065 MOTION FOR ATTORNEY'S FEESINVESTMENTS LLCTentative Ruling: Deny Defendants’ Motion for Attorney’s Fees.In their motion, Defendants seek to recover attorney fees based on the attorney feeprovision in the Loan Restructuring Agreement (“Agreement”) between Lev and non-party LakeElsinore Diamond Road. (See Lindemann Decl. ¶ 4, Ex. B [“One of the defendants, had a loandocument that provided for attorney’s fees pursuant to ¶ 4(k), p. 2.”] [emphasis added].)Paragraph 4(k) of the Agreement, however, provides that “[e]ach of the parties shall bear theirown attorney’s fees and costs incurred in connection with the subject matter of this Agreement.”(Id.)The Agreement also included an Unconditional Guaranty of Payment and Performance(“Guaranty”), which provides in relevant part: “In addition to the amounts guaranteed under thisGuaranty, [RV] agree[s] to pay (i) all of [Lev’s] attorney’s fees and other costs and expenses whichmay be incurred by [Lev] in the enforcement of this Guaranty . . . .” (Id. [emphasis added].)Defendants do not rely on this provision for their motion for attorney fees. In any event, to theextent Defendants attempt to rely on this provision to recover attorney fees from RV, that attemptmust fail.First, the Agreement proffered by Defendants as the basis for their attorney fees claim isunrelated to any of RV’s claims against Defendants in this action. (See FAC ¶¶ 1–22, 37–47, 54–66.) All of RV’s claims against Defendants pertain to a foreclosure on property it owned inCoachella. More importantly, pursuant to the Guaranty, RV agreed to pay all of Lev’s attorney’sfees and other costs “which may be incurred by [Lev] in the enforcement of this Guaranty . . ..” Lindemann Decl. ¶ 4, Ex. B [emphasis added[.) As RV argues, there is no “enforcement” of theGuaranty in this action. (See Civ. Code § 1717 [section 1717 allows recovery of attorney fees“which are incurred to enforce th[e] contract” that has the attorney fee provision].) Thus,Defendants are not entitled to attorney fees under the Agreement nor the Guaranty.RV further argues that the Agreement provided by Defendants was a proposed deal thatnever closed. (Burgee Decl. ¶ 4.) It argues that after RV transmitted its signed Guaranty toDefendants in advance of closing, the parties changed the deal and the loan restructuringcontemplated by the Agreement was abandoned. (Id.) “Before section 1717 comes into play, it isnecessary to determine whether the parties entered an agreement for the payment of attorneyfees and, if so, the scope of the attorney fee agreement.” (Mountain Air Enterprises, LLC,supra, 3 Cal.5th at 752 [emphasis added].) Because the Agreement relied on by Defendantsnever happened, it cannot be the basis for their claim for attorney fees against RV.Based on the above, Defendants have failed to show any contract that supports their claimfor attorney fees in this action.Even if they are entitled to attorney fees under the Agreement/Guaranty, Defendants failto provide support for the attorney fees sought. It is well settled that the party seeking fees hasthe burden of proving sufficient evidence for the trial court to determine that the fees sought werereasonably incurred. (Gorman Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) Thisincludes demonstrating both the reasonableness of the time spent by counsel and thereasonableness of the hourly compensation sought for that time. (See Ketchum v. Moses (2001)24 Cal.4thc 1122, 1131–32 [attorney fees must be “based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney . . . involved in the presentation ofthe case’”].) Although the submission of time records is not necessarily required (Syers PropertiesIII, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698–99), a fee request ““‘ordinarily should bedocumented in great detail.’”” (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th1309, 1324.) “‘The evidence should allow the court to consider whether the case was overstaffed,how much time the attorneys spent on particular claims, and whether the hours were reasonablyexpended.’” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486–87.)Here, Defendants submitted their counsel’s declaration, in which counsel stated that thefirm incurred 542.2 hours of time at $550.00 in preparation for trial, appearances, filings, andresearch, for a total amount of $298,210.00. (Lindemann Decl. ¶ 8.) This evidence, however, isnot sufficient to support an award of reasonable fees. Counsel provides no information abouthimself or other attorneys involved, making it impossible for the Court to determine whether therate of $550.00 is in line with prevailing rates for similar attorneys in the area. Similarly, counselprovides no information about the nature of the work performed in connection with this case, otherthan stating that they were spent on trial preparation, appearances, filings, and research. TheCourt thus is without sufficient evidence on which to base a determination that the time spent(542.2 hours) was reasonable.Defendants also seek following fees incurred by other law firms in defending “related”cases and other proceedings:• $35,733.29 incurred by Greenberg & Bass, LLP• $41,772.50 incurred by Levene, Neale, Bender, Yoo & Golubchik LLP(Id. at ¶¶ 6–7, Exs. C & D.) But as RV points out, fees sought by Greenberg & Bass, LLP in theamount $35,733.29 were incurred in another case (i.e., “v. Ruvin Feygenberg et al.). (Id. at ¶ 6,Ex. C.) Moreover, fees sought by Levene, Neale, Bender, Yoo & Golubchik LLP in the amount of$41,772.50 were incurred in a bankruptcy proceeding. Defendants have failed to show that thesefees were reasonably necessary to the instant action. (See Levy v. Toyota Motor Sales, U.S.A.,Inc. (1992) 4 Cal.App.4th 807, 816 [party seeking attorney fees has the “burden of showing thatthe fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’and were ‘reasonable in amount’”].) Thus, Defendants are not entitled to fees incurred in otherproceedings.Defendants finally seek costs in the amount of $6,658.13. (Lindemann Decl. ¶ 8.)Defendants, however, have not filed a memorandum of costs, which is required by CRC Rule3.1700. (See Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551,556 [“The established procedure for recovering the costs . . . is to file a cost of memorandum,supported by a verified statement of counsel.”] [emphasis added].) Thus, Defendants are notentitled to costs.Finally, Defendants seek attorney fees incurred during this litigation without allocationbetween GA&TV and RV. Thus, the evidence presented is insufficient to enable the Court todetermine the amount of reasonable fees Defendants incurred in defending RV’s claims againstthem.
Ruling
GERSHMAN PROPERTIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS CH GLENDORA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Jul 09, 2024 |24PSCV00472
Case Number: 24PSCV00472 Hearing Date: July 9, 2024 Dept: G Plaintiff Gershman Properties, LLCs Application for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff Gershman Properties, LLCs Application for Default Judgment is GRANTED in the reduced amount of $43,403.67. BACKGROUND This is an unlawful detainer action. In February 2023, Plaintiff Gershman Properties, LLC (Gershman) entered into a written lease agreement with Defendant CH Glendora, LLC (CH Glendora) in which Gershman agreed to lease commercial property in Glendora to CH Glendora. Subsequently, Gershman alleges CH Glendora breached the lease agreement by failing to pay rent. On January 24, 2024, Gershman served a three day notice to pay rent or quit on CH Glendora. CH Glendora subsequently failed to pay rent or vacate the Glendora property. On February 7, 2024, Gershman filed a complaint against CH Glendora and Does 1-30, alleging a cause of action for unlawful detainer. On March 1, 2024, Gershmans process server served CH Glendora by posting notice at the Glendora property. On March 19, 2024, the Court entered default against CH Glendora after CH Glendora failed to file a timely answer. On March 25, 2024, the Court granted a default judgment for Gershman on the issue of possession only. On May 17, 2024, Gershman submitted the present application for default judgment. A case management conference is set for July 9, 2024. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursem*nts; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS Gershman seeks default judgment against CH Glendora in the total amount of $43,403.68, including $40,476.72 in damages, $1,604.31 in attorney fees, and $1,322.65 in costs. Because the Court finds Gershman has submitted sufficient evidence, the Court GRANTS Gershmans application for default judgment with the following modification. While Gershman requests $1,604.31 in attorney fees, the correct calculation of attorney fees pursuant to Local Rule 3.214 is $1,604.30. Accordingly, the total requested damages will be reduced to $43,403.67. CONCLUSION Based on the foregoing, Gershmans application for default judgment is GRANTED in the reduced amount of $43,403.67.
Ruling
COTTONWOOD CANYON HILLS COMMUNITY ASSOCIATION vs ARMENTA
Jul 13, 2024 |TEC1204451
MOTION TO VACATE NOTICE OFCOTTONWOOD CANYONSETTLEMENT OF ENTIRE CASEHILLS COMMUNITYTEC1204451 FILED ON JUNE 2, 2020, BYASSOCIATION VSCOTTONWOOD CANYON HILLSARMENTACOMMUNITY ASSOCIATIONTentative Ruling: No tentative will be given, appearances are required. Counsel should beprepared to address why this matter should not be dismissed pursuant to the CCP 664.6 provisionin the settlement agreement.
Ruling
Eckelman, et al. vs. OLCO, Inc
Jul 14, 2024 |23CV-0202690
ECKELMAN, ET AL. VS. OLCO, INCCase Number: 23CV-0202690This matter is on calendar for review regarding status of the case and trial setting. The Court designates thismatter as a Plan II case and intends to set the matter for trial no later than January 22, 2025. The parties areordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessaryon today’s calendar.
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