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Contra Costa Superior Court Martinez, California Department: 33 Hearing Date: 10/26/17

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Contra Costa Superior Court Martinez, California Department: 33 Hearing Date: 10/26/17 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/26/17 1. TIME: 9:00 CASE#: MSC12-02000 CASE NAME: HOSPODKA VS. J. ROCKCLIFF, INC SPECIAL SET HEARING ON: MTN FOR AWARD OF ATTY FEES SET BY PLTF * TENTATIVE RULING: * Appear at 1:30 PM in Dept. 33. 2. TIME: 9:00 CASE#: MSC15-01588 CASE NAME: PARRISH VS. ADAPTIVE LEARNING HEARING ON MOTION TO/FOR AWARD OF ATTY FEES & COSTS OF $236,415.83 FILED BY JULIE PARRISH * TENTATIVE RULING: * This Motion for Award of Attorneys’ Fees and Costs is brought following Defendant’s acceptance of a CCP 998 offer from Plaintiff. The written offer states that Plaintiff offers to allow judgment to be taken against Defendant in the amount of $25,001. The offer is silent as to the subject of costs and attorneys’ fees. Where a CCP 998 offer is silent on costs and fees, the prevailing party is entitled to costs and, if authorized by statute or contract, attorney fees. Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168 This is a “bright-line rule,” meaning that “a section 998 offer to compromise excludes [attorney] fees only if it says so expressly.” (Id. at p. 169, italics added.) “[W]hen a [Code of Civil Procedure] section 998 offer is silent about attorney's fees and costs, it cannot reasonably be interpreted to exclude their recovery and the prevailing party may seek them.” On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1084; Wohlgemuth v. Caterpillar Inc (2012) 207 Cal.App. 4th 1252, 1259. Defendant claims that it understood that Plaintiff’s 998 offer was inclusive of costs and fees, and that it never would have accepted the 998 offer if it had thought otherwise. While that is clearly the case, mistake as to the effect of accepting a 998 that is silent on costs and fees is not a valid grounds for denying fees and costs to the prevailing Plaintiff in this situation. Although this can mean unfair results, the case law is very clear that the “bright-line rule” applies to require an award of fees. Defendant’s opposition papers were devoted entirely to arguments related to its claim that fees were unavailable. The court desires briefing from Defendant on the reasonableness of the fees being requested. The matter is continued for hearing to November 30, 2017 at 9:00 AM in Dept. 33. Defendant’s supplemental brief on that topic (not on whether plaintiff is entitled to fees as prevailing party) shall be filed and served by November 13, 2017. Plaintiff’s supplemental reply to be filed and served by November 22, 2017. - 1 - CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/26/17 3. TIME: 9:00 CASE#: MSC16-01334 CASE NAME: NATIONSTAR VS GRANADOS HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY NATIONSTAR MORTGAGE, LLC * TENTATIVE RULING: * Continued to 11/30/2017 at 9:00 a.m. per written stipulation. 4. TIME: 9:00 CASE#: MSC16-01334 CASE NAME: NATIONSTAR VS GRANADOS FURTHER CASE MANAGEMENT CONFERENCE * TENTATIVE RULING: * Continued to 11/30/2017 at 9:00 a.m. per written stipulation. 5. TIME: 9:00 CASE#: MSC16-01774 CASE NAME: MARTHA ESPINOZA VS. JESUS ESPI HEARING ON MOTION TO/FOR PRELIMINARY INJUNCTION FILED BY MARTHA ESPINOZA * TENTATIVE RULING: * Appear. 6. TIME: 9:00 CASE#: MSC16-02428 CASE NAME: SENAVSKY VS. BOAMAN HEARING ON MOTION TO/FOR COMPEL FURTHER RESP. TO DISC. REQ. & FOR SANCTIONS, FILED BY JOAN SENAVSKY * TENTATIVE RULING: * Granted consistent with the recommendations of the Discovery Facilitator. Verified responses are to be filed and served by November 22, 2017. The financial information requested is relevant and likely to lead to the discovery of admissible evidence. Defendant’s position that the financial information requested cannot support any potential recovery in this case is misplaced. As currently constituted, Plaintiff is asserting several causes of action, such as Financial Elder Abuse, seeking relief well beyond that potentially available in a simple breach of lease case. - 2 - CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/26/17 The court finds that Defendants’ refusal to produce the requested discovery is without substantial justification. However the $18,000 in sanctions requested by Plaintiff is clearly excessive. Court awards sanctions against Defendants and their counsel in the amount of $5,000 to be paid by November 22, 2017. 7. TIME: 9:00 CASE#: MSC16-02428 CASE NAME: SENAVSKY VS. BOAMAN FURTHER CASE MANAGEMENT CONFERENCE * TENTATIVE RULING: * Appear. 8. TIME: 9:00 CASE#: MSC17-00394 CASE NAME: HAUS VS RICE HEARING ON APPLICATION FOR RIGHT TO ATTACH ORDER ( FILED 08-11-17 BY MICHAEL DAVID HAUS) * TENTATIVE RULING: * The parties shall appear. Code of Civil Procedure (“CCP”) § 484.040 requires the Court to conduct a hearing on this matter. The Court provides the tentative ruling set forth below to guide the parties in preparing for the hearing. Plaintiff Michael Haus’s (“Haus”) application for a writ of attachment (the “Application”) is denied. CCP § 484.090(a)(2) permits the Court to grant the Application and issue a right to attach order only if, among other things, it finds that Haus “has established the probable validity of the claim upon which the attachment is based.” CCP § 481.190 says that a “claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” It appears to be undisputed that the parties entered into an agreement whereby Haus would loan defendants Robert Rice and Rice Aircraft Service, Inc. (collectively, “Rice”) $1,870,000 for use in purchasing helicopters. It similarly appears undisputed that Rice has not paid back the $1,870,000. Exhibit B to the Haus Declaration supporting the Application is entitled “Conversation and Agreement between Michael Haus and Robert Rice September 28, 2011.” Haus says, in paragraph 5 of his declaration, that Exhibit B captures the “concrete terms of the loan - 3 - CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/26/17 transaction.” He refers to Exhibit B as “[m]y agreement with Mr. Rice.” The fourth item in Exhibit B says “[a]mount of time for repayment was not discussed but our general understanding is the first $1.87 million of profit is to be paid to Michael Haus.” In opposition, Rice argues at length that neither he nor Rice Aircraft Service, Inc. has made any profit on the subject transaction. As such, he contends, there is no repayment due to Haus at this time. The Haus Declaration does not indicate that Rice made any profit on the subject transaction. Haus concedes, in paragraph 7 of his declaration, that “[t]he Loan Agreement did not specify a time of repayment for the $1,870,000.” However, Exhibit B suggests that the $1,870,000 would be repaid out of the profits of the subject transaction. The only evidence the Court has before it on that point is the testimony offered in opposition that no profit has yet been made. Haus offers evidence that his wife demanded repayment at some point before the lawsuit was filed. On reply, Haus argues that Mr. Rice admitted, in a telephone call with his wife, that the obligation was due. However, even assuming all of the evidence submitted with the reply papers is admissible, it would not tip the balance to a finding of probable validity within the meaning of CCP §§ 484.090(a)(2) and 481.190. By Haus’s own testimony, the terms of the agreement were that Rice owed Haus the first $1.87 million in profit. The reply evidence, at best, creates a scenario where it is just as likely that the money was owed prior to the lawsuit being filed. Thus, even if the Court assumes it is true that Rice said that he had a present obligation to repay the money in a telephone call with Haus’s wife, it does not establish “probable validity” of Haus’s claim within the meaning of CCP §§ 481.190 and 484.090(a)(2), which requires a finding of something more than 50%. On the current record, and solely for purposes of ruling on the Application, the Court cannot conclude that Rice’s obligation to repay Haus has ripened. See CCP § 484.050(b) (Court’s ruling on probable validity does not affect later proceedings to determine actual validity). Under CCP §§ 481.190 and 484.090(a)(2), it was Haus’s burden to show that he was more likely than not to obtain a judgment against Rice on the claim upon which the attachment is based. The language of Exhibit B, combined with both the lack of evidence presented by Haus concerning Rice’s profit on the subject transaction as well as the sworn declaration testimony offered by Rice indicating that no profit has yet been made, precludes the Court from making the required finding of probable validity. On that basis, the Court denies the Application. Evidentiary Matters The objection to paragraph 11 of the Haus Declaration is overruled in part and sustained in part. Haus indicates in paragraph 11 of his declaration that he listened to a recording of the conversation at issue, which establishes his foundation and personal knowledge. The portion of paragraph 11 that recounts statements made by Robert Rice is admissible under Evidence Code § 1220. The portion of paragraph 11 that describes things Suzanne Haus said is hearsay not within any exception, and the objection to that portion of paragraph 11 is sustained. - 4 - CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/26/17 9.
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