Motion for Attorney Fees
Defendant specifically agreed, “that in the event of a default by Buyer under the APA, beyond all applicable notice and cure periods, Seller may proceed against the Guarantor before, after or simultaneously with proceeding against Buyer. [¶]” [Emphasis added.] (Mitzev Decl., Ex. A ¶ 1.) “This Guaranty shall not terminated, affected, or impaired in any manner by reason of (1) the assertion by Seller against Buyer of any of the rights or remedies reserve to Seller pursuant to the provisions of the APA; 2) the commencement of summary or any other proceedings against Buyer; 3) the failure of Seller to enforce any of its rights against Buyer; . . . or 5) an assignment of the APA by Seller of Buyer.” (Mitzev Decl., Ex. A ¶ 2.)
As the terms of the Guaranty specifically permit Plaintiffs to proceed in an action against Defendant at any time based on lack of full and timely payment under the APA, a determination of liability on the part of EBlock is not necessary before this matter can proceed. The two actions in question are separate and distinct as this one is based on a breach of the Guaranty and the other action is based upon a breach of the APA.
The motion is denied.
Plaintiffs to give notice. 7 Third Laguna The unopposed motion by plaintiff Third Laguna Hills Mutual (Third Hills Mutual v. Mutual) for an award of attorney’s fees against defendant Michael Glover Glover is GRANTED.
In the instant motion, plaintiff seeks attorney’s fees pursuant to Civil Code section 5975, subdivision (c), and Article XXI of the CC&Rs. The Court finds Third Mutual to be the prevailing party as it achieved the objectives of the litigation. (See, Complaint, generally; Kramer Decl. ¶¶6-9; Hsu v. Abbara (1995) 9 Cal.4th 863, 876; Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260–61.)
“Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263
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Here, Third Mutual seeks $30,727.90 in fees. “The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Third Mutual has submitted invoices supporting the motion as well as declarations of counsel and has met its burden. The Court finds the fees reflected on the invoices reasonable. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096 – discussing discretion of the court.) Finally, there is no opposition to the motion.
Accordingly, the motion is GRANTED and the Court awards $30,727.90 in attorney’s fees in favor of Third Mutual and against Michael Glover.
Third Mutual to submit a proposed judgment.
Third Mutual to give notice of this ruling. 8 Dodson v. O/C LaCilento 9 Ruffin v. OC Defendant OC Dental Corporation, Inc.’s Motion for Summary Dental Judgment/Adjudication is DENIED. Corporation, Inc. OC Dental’s Motion is based entirely on the assertion that plaintiff Ruffin did not exhaust her administrative remedies required under FEHA. This assertion is supported (1) by Plaintiff’s response to Form Interrogatory No. 208.1, where Plaintiff indicated she did not file a complaint with any government agency regarding the alleged harassment, and (2) by Plaintiff’s failure to produce a right to sue letter during discovery.
This is sufficient to meet OC Dental’s burden on summary judgment under CCP §473(p)(2).
In response, Ruffin has shown a triable issue of material fact, that her administrative remedies were exhausted by receipt of a right-to- sue Notice/Letter. See, Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment/Adjudication, Fact 6]; Declaration of Corey A. Hall. Although Plaintiff has apparently failed to file her referenced Compendium of Evidence with the Court, her attorney’s declaration attests that a complaint was filed with the DFEH which then issued a right to sue letter.
In its Reply, OC Dental asks the Court not to consider Opposition evidence. In its discretion, the Court declines OC Dental’s request. Any error by Plaintiff’s counsel in responding to discovery should not result in Plaintiff’s loss of her claims, particularly where there is evidence that the right to sue letter was provided to Jarrod Y. Nakano, Defendant’s former counsel, in January of 2023. Whether the right to sue letter is authentic is a matter for trial, not a motion for summary judgment.
The Court disregards the two Declarations filed with OC Dental’s Reply because Reply Declarations are not authorized by statute, rule, or case law. [Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252]
Plaintiff to give notice. 10 Lin v. Zhang Before the Court is a motion by Defendants Ark Electronics USA, Inc. (“Ark), Wen Xia Zhang, and E.J. Constantine (collectively, “Defendants”) in which they seek to tax the memorandum of costs filed by Plaintiff Gary Lin at ROA 465. The motion is GRANTED in part, as set forth herein.