This case was last updated from Los Angeles County Superior Courts on 03/10/2020 at 03:00:54 (UTC).

BRECKENRIDGE PROPERTY FUND 2016, LLC VS JOAQUIN HERNANDEZ

Case Summary

On 11/14/2019 BRECKENRIDGE PROPERTY FUND 2016, LLC filed a Property - Foreclosure Eviction lawsuit against JOAQUIN HERNANDEZ. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is DOUGLAS W. STERN. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2706

  • Filing Date:

    11/14/2019

  • Case Status:

    Other

  • Case Type:

    Property - Foreclosure Eviction

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

DOUGLAS W. STERN

 

Party Details

Plaintiff

BRECKENRIDGE PROPERTY FUND 2016 LLC

Defendants

HERNANDEZ JOAQUIN

JOSE RAMON

Attorney/Law Firm Details

Plaintiff Attorney

CHANDRA SAM

Defendant Attorney

CHIROUX MATTHIS

 

Court Documents

Summons - Summons on Complaint

11/14/2019: Summons - Summons on Complaint

Property Owner/Landlord Only Hearing Notice - Property Owner/Landlord Only Hearing Notice

11/14/2019: Property Owner/Landlord Only Hearing Notice - Property Owner/Landlord Only Hearing Notice

Civil Case Cover Sheet - Civil Case Cover Sheet

11/14/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Unlawful Detainer (Eviction) - Notice of Unlawful Detainer (Eviction) (ALL OCCUPANTS)

11/15/2019: Notice of Unlawful Detainer (Eviction) - Notice of Unlawful Detainer (Eviction) (ALL OCCUPANTS)

Notice of Unlawful Detainer (Eviction) - Notice of Unlawful Detainer (Eviction) (Joaquin Hernandez)

11/15/2019: Notice of Unlawful Detainer (Eviction) - Notice of Unlawful Detainer (Eviction) (Joaquin Hernandez)

Prejudgment Claim of Right to Possession - Prejudgment Claim of Right to Possession

11/21/2019: Prejudgment Claim of Right to Possession - Prejudgment Claim of Right to Possession

Answer - Answer

11/21/2019: Answer - Answer

Proof of Service by Mail - Proof of Service by Mail

11/21/2019: Proof of Service by Mail - Proof of Service by Mail

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

12/13/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Substituted Service - Proof of Service by Substituted Service

12/13/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

12/13/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Substitution of Attorney - Substitution of Attorney

12/13/2019: Substitution of Attorney - Substitution of Attorney

Demand for Jury Trial - Demand for Jury Trial

12/13/2019: Demand for Jury Trial - Demand for Jury Trial

Request for Dismissal - Request for Dismissal

12/20/2019: Request for Dismissal - Request for Dismissal

Request for Dismissal - Request for Dismissal

12/20/2019: Request for Dismissal - Request for Dismissal

Motion for Attorney Fees - Motion for Attorney Fees

2/24/2020: Motion for Attorney Fees - Motion for Attorney Fees

Order (name extension) - Order FOR ATTORNEY FEES

3/4/2020: Order (name extension) - Order FOR ATTORNEY FEES

Opposition (name extension) - Opposition To Motion For Attorney's Fees: Memorandum Of Points And Authorities In Support

3/6/2020: Opposition (name extension) - Opposition To Motion For Attorney's Fees: Memorandum Of Points And Authorities In Support

9 More Documents Available

 

Docket Entries

  • 03/06/2020
  • DocketOpposition To Motion For Attorney's Fees: Memorandum Of Points And Authorities In Support; Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff)

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  • 03/04/2020
  • DocketOrder FOR ATTORNEY FEES; Signed and Filed by: Ramon Jose (Defendant); As to: Breckenridge Property Fund 2016, LLC (Plaintiff)

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  • 03/04/2020
  • DocketUpdated -- Order FOR ATTORNEY FEES: As To Parties changed from Breckenridge Property Fund 2016, LLC (Plaintiff) to Breckenridge Property Fund 2016, LLC (Plaintiff)

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  • 02/27/2020
  • DocketHearing on Motion for Attorney Fees scheduled for 03/18/2020 at 08:30 AM in Governor George Deukmejian Courthouse at Department S13

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  • 02/24/2020
  • DocketMotion for Attorney Fees; Filed by: Ramon Jose (Defendant)

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  • 12/27/2019
  • DocketUpdated -- Request for Dismissal: As To Parties changed from Maria Pienda (Defendant), Rolando Ocson (Defendant), Ramon Jose (Defendant), Joaquin Hernandez (Defendant) to Joaquin Hernandez (Defendant), Ramon Jose (Defendant)

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  • 12/27/2019
  • DocketUpdated -- Request for Dismissal: As To Parties changed from Joaquin Hernandez (Defendant), Ramon Jose (Defendant), Rolando Ocson (Defendant), Maria Pienda (Defendant) to Ramon Jose (Defendant), Joaquin Hernandez (Defendant)

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  • 12/20/2019
  • DocketOn the Complaint filed by Breckenridge Property Fund 2016, LLC on 11/14/2019, entered Request for Dismissal without prejudice filed by Breckenridge Property Fund 2016, LLC as to the entire action

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  • 12/20/2019
  • DocketRequest for Dismissal; Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff); As to: Joaquin Hernandez (Defendant); Ramon Jose (Defendant); Maria Pienda (Defendant) et al.

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  • 12/20/2019
  • DocketRequest for Dismissal; Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff); As to: Joaquin Hernandez (Defendant); Ramon Jose (Defendant); Maria Pienda (Defendant) et al.

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16 More Docket Entries
  • 11/21/2019
  • DocketProof of Service by Mail; Filed by: Ramon Jose (Defendant); As to: Breckenridge Property Fund 2016, LLC (Plaintiff); After Substituted Service of Summons & Complaint ?: No

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  • 11/15/2019
  • DocketSummons on Complaint; Issued and Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff); As to: Joaquin Hernandez (Defendant)

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  • 11/15/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/27/2020 at 08:30 AM in Governor George Deukmejian Courthouse at Civil Clerk's Office

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  • 11/15/2019
  • DocketNotice of Unlawful Detainer mailed 11/18/2019

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  • 11/15/2019
  • DocketCase assigned to Hon. Douglas W. Stern in Department S13 Governor George Deukmejian Courthouse

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  • 11/14/2019
  • DocketUpdated -- Summons on Complaint: Status Date changed from 11/15/2019 to 11/14/2019

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  • 11/14/2019
  • DocketCivil Case Cover Sheet; Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff); As to: Joaquin Hernandez (Defendant)

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  • 11/14/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/14/2019
  • DocketProperty Owner/Landlord Only Hearing Notice; Filed by: Clerk

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  • 11/14/2019
  • DocketComplaint; Filed by: Breckenridge Property Fund 2016, LLC (Plaintiff); As to: Joaquin Hernandez (Defendant)

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Tentative Rulings

Case Number: 19LBUD02706    Hearing Date: July 06, 2020    Dept: S13

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, SOUTH DISTRICT

Breckenridge Property Fund 2016, LLC,

Plaintiff,

v.

Joaquin Hernandez, and Does 1 to 10,

Defendants.

Case No.: 9LBUD02706

ORDER ON DEFENDANT’S MOTION FOR ATTORNEY FEES

Hearing date: July 6, 2020

Defendant Ramon Jose has filed his Motion for Attorneys Fees seeking attorney’s fees pursuant to Civil Code § 1717 and Rule of Court 3.1702. He seeks $500 pursuant to contract. This case was voluntarily dismissed without prejudice by Plaintiff before there was a trial date set. Defendant claims that he is the “prevailing party” under the contract. He claims that the circumstances of the voluntary dismissal mandate that the Court should rule that the voluntary dismissal was a “mere formality” entitling him to attorney fees. See Franklin Capital Corporation v. Wilson (2007) 148 Cal.App.4th 187.

The Procedural History of This Case

This unlawful detainer action was initiated by Plaintiff Breckenridge Property Fund 2016, LLC on November 14, 2019 against Defendant Joaquin Hernandez. Plaintiff alleges that it became the owner of the real property identified as 1967 Atlantic Ave., Unit #A, Long Beach, CA 90806 by purchasing it at a foreclosure sale on October 24, 2019. (Complaint ¶ 4; 8.) It alleges that no landlord tenant relationship exists between it and the defendants. (Complaint ¶ 9.). Plaintiff claims that on November 7, 2019 Plaintiff served the defendants a written notice in compliance with Code of Civil Procedure § 1161a et seq. (Complaint ¶ 12.). Three days have elapsed since that notice was served, but the defendants failed to deliver possession to Plaintiff. (Complaint ¶ 13.)

There is no allegation in the Complaint of the existence of any contract between Plaintiff and any defendant. Nor is there any allegation of the existence of a right to recover attorney’s fees. The Prayer does not seek an award of attorneys fees.

Ramon Jose was not named as a defendant. Representing himself, he filed a Prejudgment Claim of Right to Possession on November 21, 2019 alleging that he had a written rental agreement with a person other than the landlord. On that same date he filed his Answer-Unlawful Detainer generally denying the allegations of the Complaint and asserting various affirmative defenses. One defense asserted was that the notice served failed to provide a 90-day notice. Claimant Ramon Jose did not allege the existence of any contract with the Plaintiff. Nor does he pray for an award of attorneys fees.

On December 13, 2019 Claimant/Defendant Ramon Jose substituted Matthis Chiroux of BASTA, Inc. as his counsel.

On December 20, 2019 Plaintiff filed its Request for Dismissal dismissing this suit without prejudice as to the entire action. The court’s file reveals no other relevant actions were taken. No law and motion practice was undertaken. No trial was set. No deadlines were passed.

In its Opposition to this Motion for Attorney fees, Plaintiff notes that in discovery it learned of an agreement between Claimant/Defendant Ramon Jose and named Defendant Joaquin Hernandez to rent the property to Ramon Jose. Plaintiff then elected to dismiss this action.

The Motion for Attorney Fees

On February 24, 2020, Claimant/Defendant Ramon Jose filed his Motion for Attorney Fees. He seeks to recover attorneys fees pursuant to Civil Code § 1717 and Rule of Court 3.1702. He alleges that there is an attorney’s fees provision in paragraph 24 of his agreement with the person other than the landlord. He claims that he is the “prevailing party” within the meaning of Civil Code § 1717. Paragraph 24 of the agreement between Ramon Jose and Joaquin Hernandez, identified as Exhibit 101 to the Motion states:

“24. ATTORNEY’S FEES: If any legal action or proceeding be brought by either party to this agreement, the prevailing party shall be reimbursed for all reasonable attorneys fees up to but not more than $500 in addition to other damages awarded.”

First, there is no contractual right to attorneys fees, as there is no contract between these parties. Neither party even alleged the existence of a contract that is applicable to this “relationship.” On the contrary, Ramon Jose acknowledged that the contract he claims is between himself and a third-party. On its face, the alleged written agreement is between Ramon Jose and Joaquin Hernandez. The attorneys fees provision purports to entitle the parties to the contract to reasonable attorneys fees “if any legal action or proceeding be brought by either party to this agreement.” This unlawful detainer action is not a legal action brought by “either party to the agreement.” Defendant has provided no authority (or argument) to support the position that the agreement gives him the right to attorney fees against a non-party to the claimed agreement. In short, that agreement is not applicable to this action.

The motion must be denied on this basis.

Civil Code § 1717 and Voluntary Dismissal

The motion also fails as Civil Code § 1717(b)(2) precludes any recovery, even if there was a contract with an attorneys fees provision. This action was voluntarily dismissed by Plaintiff. No actions took place that would lead the conclusion that the dismissal was inevitable and a “mere formality.”

Defendant recognizes that he must avoid the impact of Civil Code § 1717(b)(2), as that subpart denies a party “prevailing party” status for purposes of an award of attorney fees when there had been a voluntary dismissal prior to trial.

“(2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Bold added.)

Code of Civil Procedure § 581 sets forth some of the bases upon which a case may be dismissed. It provides, in part:

“(a) As used in this section:

* * *

(6) “Trial.” A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.

(b) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.” (Bold added.)

This action was voluntarily dismissed by Plaintiff before the actual commencement of trial. Defendant does not contend that any of the events that constitute “trial” as defined in C.C.P. § 581(a)(6) took place. In fact, no trial date had even been set.

The “Mere Formality” Test - Franklin Capital Corporation v. Wilson

Defendant Jose contends that the voluntary dismissal filed by Plaintiff prior to anything happening in this case (other than the filing of pleadings) nonetheless must be treated as an involuntary dismissal not entitled to the benefit of Civil Code § 1717(b)(2). The argument put forward by Jose is that the action was initiated based on a Code of Civil Procedure § 1161a(b)(3) Notice to Quit and that the action was filed only 9 days after the Notice was served. Jose claims that he is a tenant of the foreclosed former owner entitled to a 90-day notice. (Motion pg. 3:1-4.)[1] Based upon this version of the facts, the dismissal was filed by Plaintiff. Defendant relies upon the line of cases discussed extensively by the court in Franklin Capital Corporation v. Wilson (2007) 148 Cal.App.4th 187 to support his claim for entitlement to attorneys fees. Defendant contends that the dismissal was a “mere formality” within the meaning of the test formulated by the court in Franklin Capital.

The beginning of the analysis in this area of the law is Code of Civil Procedure § 581 allowing a party to voluntarily dismiss its suit. The Court in Franklin Capital noted:

“Despite the non-exclusivity of [C.C.P. § 581] subdivision (a)(6), the basic right to voluntarily dismiss remains statutory, with the operative benchmark being the phrase “commencement of trial” in subdivision (b)(1). So we will begin at the beginning, with the first major Supreme Court case limiting the statutory right to dismiss, Goldtree v. Spreckels (1902) 135 Cal. 666, 67 P. 1091.” Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 195 [55 Cal.Rptr.3d 424, 429]

The Court articulated its “mere formality” test which it distilled from prior cases.

“4. Can the Appellate Decisions Be Harmonized? Yes.

(Well, Mostly Yes.)

a. The “Mere Formality” Test As a Way to Ascertain the “Commencement of Trial”[2]

The cases we have reviewed so far suggest this test as the accepted judicial gloss on the voluntary dismissal statute:

When the dismissal could be said to have been taken

—(a) in the light of a public and formal indication by the trial court of the legal merits of the case, or

—(b) in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable, then the voluntary dismissal is ineffective.

This two-part test readily harmonizes the results in the Court of Appeal’s decisions in Mary Morgan, Cravens, Groth Bros., Mossanen, Zapanta and Tire Distributors.Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200 [55 Cal.Rptr.3d 424, 433]. (Bold added.)

There was no “public and formal indication by the trial court of the legal merits” as nothing was ever addressed by the Court. Nor was there any procedural event that moved this case toward “inevitable dismissal.” No court rulings have been made or event hinted at that would be adverse to Plaintiff. No demurrer, or summary judgment had been filed, let alone ruled upon or been the subject of a tentative ruling. No statutory deadline had been passed. There was no “procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable.”

Defendant’s motion fails to explain how merely being presented with a different claimed state of facts with no determination of the validity of that claim can lead to “inevitable dismissal.” Plaintiff had the right to test the claim of tenancy. It could conduct further investigation and discovery, and perhaps show the claim of tenancy to be invalid. Such an effort would involve expense and risk of failure. But it is certainly a course that might result in victory for Plaintiff. The ultimate outcome is not preordained. Plaintiff might instead simply choose to dismiss and possibly initiate a new suit after giving a 90 day notice to the tenant, thereby avoiding the cost and risk associated with litigating the tenancy claim.

“In this case, Gogri filed his request for voluntary dismissal … after JIB filed its motion for summary judgment and after Gogri filed his papers opposing that motion, his dismissal was filed before the trial court issued its tentative ruling on JIB's motion on March 1. Therefore, at the time Gogri filed his section 581 voluntary dismissal, there had yet to be any “public and formal indication” by the court regarding the merits of his case, and he had not committed any “procedural dereliction” (e.g., failure to timely oppose JIB's motion for summary judgment) that would have rendered a judgment against him inevitable or a mere formality. (Franklin, supra, 148 Cal.App.4th at p. 200, 55 Cal.Rptr.3d 424; cf. Cravens, supra, 52 Cal.App.4th at pp. 255–257, 60 Cal.Rptr.2d 436.)

Alternatively stated, at the time Gogri filed his section 581 voluntary dismissal, the trial court had not yet made any decision or taken any other action that effectively disposed of the entire case (i.e., any action that was tantamount to, or would inevitably lead to, judgment for JIB). (Zapanta, supra, 107 Cal.App.4th at pp. 1173–1174, 132 Cal.Rptr.2d 842; Cal–Vada, supra, 179 Cal.App.3d at pp. 443, 447, 224 Cal.Rptr. 809; cf. Kyle, supra, 71 Cal.App.4th at pp. 908–917, 84 Cal.Rptr.2d 303 [plaintiff's section 581 voluntary dismissal was timely when filed before the trial court ruled on the defendant's anti-SLAPP motion, which potentially would dispose of the entire case].)” Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 267-268, 82 Cal.Rptr.3d 629, 638.

If a plaintiff faced with an unresolved summary judgment motion may dismiss the case before there is an adverse ruling, how can it be that a plaintiff merely presented with a contrary version of the facts in discovery can be deprived of the statutory right to dismiss without becoming liable for attorney fees. The answer is obvious. The Plaintiff does not suffer that consequence.

The Motion for Attorney Fees is DENIED on both the basis that there is no applicable attorney fees contractual provision and on the second basis that the voluntary dismissal was validly made pursuant to Code of Civil Procedure § 581(b)(1). Civil Code § 1717(b)(2) expressly provides that there shall be no “prevailing party” when there had been a voluntary dismissal without prejudice.

ORDER

1. The Motion to Attorney Fees is DENIED on both the basis that there is no contractual provision that creates a right to attorney fees and pursuant to Code of Civil Procedure § 1717(b)(2).

3. The Clerk of the Court shall give notice of the Order to all parties.

IT IS SO ORDERED.

Dated: July 6, 2020 _______________________________

Douglas W. Stern

Judge of the Superior Court


[1] / Defendant’s Motion notes that Plaintiff propounded discovery and that Defendant’s responses revealed the tenancy status of Defendant. (Motion pg. 3:5-8.). Discovery apparently disclosed a different version of the facts than that originally understood by Plaintiff. Nothing brought to the attention of the Court suggests that Plaintiff suffers the loss of the Code of Civil Procedure § 1717(b)(2) right to dismiss simply because the Plaintiff learns additional facts through discovery that causes the Plaintiff to re-evaluate its case. That is particularly true where the factual assertion may be contested at trial should the Plaintiff chose to make that effort.

[2] / The court in Franklin Capital articulates its issues as anchored to the concept of “… a Way to Ascertain the “Commencement of Trial”. At core, in order to fall within the “mere formality” test there must be something that constitutes the “commencement of trial.”