MELINDA T. AHDOOT VS GARRI CHERNYAVSKIY

Tentative Rulings

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Case Number: 19STLC09649 Hearing Date: September 28, 2021 Dept: 26

Ahdoot v. Chernyavskiy, et al. 19STLC09649

MOTION TO TAX COSTS

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(CCP § 1033.5; CRC Rule 3.1700(b))

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TENTATIVE RULING:

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Defendant Garri Chernyavskiy’s\r\nMotion to Tax Costs is GRANTED AS FOLLOWS: $568.91 AS TO FILING FEES\r\n(ITEM 1); $532.55 AS TO DEPOSITION COSTS (ITEM 4); $1,167.00 AS TO SERVICE OF\r\nPROCESS COSTS (ITEM 5); AND $44,840.00 AS TO ATTORNEY’S FEES (ITEM 10).

ANALYSIS:

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On October 18,\r\n2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of\r\ncontract and common counts against Defendants Garri Chernyavskiy and Polina\r\nChernyavskiy (“Defendants”). Prior to filing this action, Plaintiff had brought\r\nan unlawful detainer case against Defendants in Ahdoot v. Chernyavskiy, et\r\nal., LASC Case No. 19STCV07772 (“the Unlawful Detainer action”) on March 6,\r\n2019.

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On January 31,\r\n2020, the Chernyavskiys filed an Answer and a Cross-Complaint for malicious\r\nprosecution against Plaintiff’s counsel, Jeff Katofsky, Jeff Katofsky, a\r\nProfessional Law Corporation, and Michael Leff (“Cross-Defendants”). On October\r\n6, 2020, the Court denied Cross-Defendants special motion to strike the\r\nCross-Complaint. Cross-Defendants filed their Answer to the Cross-Complaint on\r\nNovember 3, 2020.

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On March 9,\r\n2021, the Court denied Cross-Defendants’ Motion for Summary Judgment on the\r\nCross-Complaint. On April 1, 2021, Defendants filed a 998 Offer to Compromise,\r\npursuant to which Defendant Polina Chernyavskiy was dismissed from the\r\nComplaint on April 6, 2021. On May 5, 2021, judgment was entered on the\r\nComplaint pursuant to the 998 Offer in the amount of $12,500.00 against\r\nDefendant Garri Chernyavskiy. On May 10, 2021, Defendants filed a preemptory\r\nchallenge and the case was reassigned to Department 26 in the Spring Street\r\nCourthouse.

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On May 11,\r\n2021, Plaintiff filed a Memorandum of Costs. Defendant Garri Chernyavskiy filed\r\nthe instant Motion to Tax Costs on May 26, 2021. Plaintiff filed an opposition\r\non September 15, 2021 and Defendant Garri Chernyavskiy replied on September 21,\r\n2021.

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Discussion

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Defendant Garri Chernyavskiy moves to tax $47,902.46 in costs pursuant to\r\nCode of Civil Procedure section 1033.5 and unreasonable or unnecessary to this\r\naction. Code of Civil Procedure section 1033.5 sets forth the costs recoverable\r\nby the prevailing party. To recover a cost, it must be reasonably necessary to\r\nthe litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4\r\nCal.App.4th 238, 244.) If the items appearing in a cost bill appear to be\r\nproper charges, the burden is on the party seeking to tax costs to show that\r\nthey were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19\r\nCal.App.4th 761, 773-74.) On the other\r\nhand, if the items are properly objected to, they are put in issue and the\r\nburden of proof is on the party claiming them as costs. (Id.)

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Under Cal. Rules of\r\nCourt, Rule 3.1700, subdivision (a)(1), a memorandum of costs must be filed:\r\n(1) 15 days after the clerk’s mailing of notice of entry of judgment or\r\ndismissal; (2) 15 days after any party’s service of such notice; or (3) 180\r\ndays after entry of judgment. (Cal. Rules Court, Rule 3.1700, subd. (a)(1).)\r\nPlaintiff timely filed the Memorandum of Costs on May 11, 2021 following entry\r\nof judgment on May 6, 2021. A motion to strike or tax costs must be filed and\r\nserved 15 days after service of the memorandum of costs. (Cal. Rules of Court,\r\nRule 3.1700, subd. (b)(1).) The instant Motion to Tax Costs was timely filed\r\nand served 15 days after the Memorandum of Costs.

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Filing Fees (Item 1)

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Filing fees are recoverable pursuant\r\nto Code of Civil Procedure section 1033.5, subdivision (a)(1). Defendant Garri Chernyavskiy contends that the filing fee\r\nfor the Complaint should be reduced by half because Plaintiff agreed to bear\r\nher own costs with respect to the claims against Defendant Polina Chernyavskiy.\r\nThe filing fee for the Complaint, however, does not change based on the number\r\nof defendants in the action and Plaintiff incurred that cost to bring the\r\naction against Defendant Garri Chernyavskiy. The filing fee for limited civil complaints\r\nis $370.00. (Superior Court of California, County of Los Angeles, Civil Fee\r\nSchedule, No. 10; Govt. Code, §§ 70613, subd. (a), 70602.5.)

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The filing fee for the Motion to Compel Deposition ($60.00) is\r\nnot taxed. Although the Motion to Compel Deposition was ultimately denied, the\r\nCourt’s ruling addressed arguments by both parties, including Defendant Garri Chernyavskiy’s unsuccessful attempt to stay\r\nthe deposition. (Minute Order, 10/06/20, pp. 4-7.) The filing fee for the Application\r\nfor Publication ($101.90) and Motion to Stay ($60.00) are both taxed. The\r\nApplication for Publication was rejected and no Motion to Stay was ever filed\r\nin this action. The costs associated with the Judgment are not filing fees and\r\nare taxed ($84.95). (Opp., Katofsky Decl., Exh. F.) Those fees are for delivery\r\nof the Judgment to court, a courtesy copy, and photocopying or printing. (Ibid.)\r\nNone of those fees are recoverable.

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The evidence in support of the remaining purported filing\r\nfees for notices, proof of service and e-filing fees likewise include improper\r\ncharges such as efiling concierge services, printing, photocopies, exhibit\r\ntabs, PDF costs and courtesy copies. (Id. at Exhs. A-E.) The only proper\r\ncharges on those invoices are for efiling expenses related to Defendant Garri Chernyavskiy in the amount of $16.45.)\r\n

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Therefore, the filing fees are taxed in the amount of $568.91.\r\n

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Deposition Costs (Item\r\n4)

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Costs for “[t]aking, video recording, and transcribing\r\nnecessary depositions” and “travel expenses to attend depositions” are allowed\r\nunder Code of Civil Procedure section 1033.5, subdivision (a)(3)(A). Deposition\r\ncosts of Defendant Polina Chernyavskiy are taxed, but\r\nthose for Defendant Garri Chernyavskiy are allowed. Plaintiff has demonstrated\r\nthat the deposition sought to discover the reasons for non-payment of rent, the\r\nextent of damages to the Apartment and whether there were any viable defenses\r\nto the breach of lease agreement claim. (Opp., Katofsky Decl., ¶8.)

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The deposition costs are taxed in the amount of $532.55.

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Service of Process\r\nFees (Item 5)

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Process server costs are permitted under Code of Civil\r\nProcedure section 1033.5(a)(4); Science\r\nApplication International Corporation v. Superior Court (1995) 39\r\nCal.App.4th 1095, 1102.) Specifically, the amount actually incurred in\r\neffecting service of process by a registered process server is recoverable\r\nunder Code of Civil Procedure section 1033.5(a)(4)(B). (Citizens for Responsible Development v City\r\nof West Hollywood (1995)\r\n39 Cal.App.4th 490, 506.) Plaintiff seeks $450.00 in service of process fees\r\nfor each Defendant.

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The fees for Defendant Polina Chernyavskiy\r\nare taxed based on the 998 offer providing each party would bear their own\r\ncosts. (Defendants’ Offer to Compromise, filed 04/01/21, p. 2:7-8.) Also, the\r\nservice of process fees for Defendant Garri Chernyavskiy\r\nare properly reduced to $40.00. Plaintiff has not attached invoices\r\ndemonstrating she incurred $450.00 in process service fees or $370.00 for skip\r\ntracing. (See Motion, Katofsky Decl., ¶3 and Exhs. A-C.)

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The service of process fees, therefore, are taxed in the\r\ntotal amount of $1,167.00.

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Attorney’s Fees (Item\r\n10)

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Attorney’s fees may only be sought via Memorandum of Costs\r\n“if contractual or statutory fees are fixed without necessity of a court determination;\r\notherwise a noticed motion is required.” (Memo of Costs, Item No. 10.) The\r\nMotion for Attorney’s Fees was already heard on August 26, 2021. The attorney’s\r\nfees are taxed in the amount of $44,840.00.

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Conclusion

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Defendant Garri Chernyavskiy’s\r\nMotion to Tax Costs is GRANTED AS FOLLOWS: $568.91 AS TO FILING FEES\r\n(ITEM 1); $532.55 AS TO DEPOSITION COSTS (ITEM 4); $1,167.00 AS TO SERVICE OF\r\nPROCESS COSTS (ITEM 5); AND $44,840.00 AS TO ATTORNEY’S FEES (ITEM 10).

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Moving party to give notice.

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Case Number: 19STLC09649 Hearing Date: August 26, 2021 Dept: 26

Ahdoot v. Chernyavskiy, et al.19STLC09649MOTION FOR ATTORNEY’S FEES AND COSTS

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(CCP §§ 1021, 1032, 1033.5; Civ. Code §\r\n1717; Cal. Rules of Court 3.1702)\r\n\r\n

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TENTATIVE RULING:

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Plaintiff Melinda Ahdoot’s Motion for Attorney’s Fees is\r\nDENIED.

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ANALYSIS:

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On October 18,\r\n2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of\r\ncontract and common counts against Defendants Garri Chernyavskiy and Polina\r\nChernyavskiy (“Defendants”). Prior to filing this action, Plaintiff had brought\r\nan unlawful detainer case against Defendants in Ahdoot v. Chernyavskiy, et\r\nal., LASC Case No. 19STCV07772 (“the Unlawful Detainer action”) on March 6,\r\n2019.

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On January 31,\r\n2020, the Chernyavskiys filed an Answer and a Cross-Complaint for malicious\r\nprosecution against Plaintiff’s counsel, Jeff Katofsky, Jeff Katofsky, a\r\nProfessional Law Corporation, and Michael Leff (“Cross-Defendants”). On October\r\n6, 2020, the Court denied Cross-Defendants special motion to strike the\r\nCross-Complaint. Cross-Defendants filed their Answer to the Cross-Complaint on\r\nNovember 3, 2020.

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On March 9,\r\n2021, the Court denied Cross-Defendants’ Motion for Summary Judgment on the\r\nCross-Complaint. On April 1, 2021, Defendants filed a 998 Offer to Compromise,\r\npursuant to which Defendant Polina Chernyavskiy was dismissed from the\r\nComplaint on April 6, 2021. On May 5, 2021, judgment was entered on the\r\nComplaint pursuant to the 998 Offer in the amount of $12,500.00 against\r\nDefendant Garri Chernyavskiy. On May 10, 2021, Defendants filed a preemptory\r\nchallenge and the case was reassigned to Department 26 in the Spring Street\r\nCourthouse.

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Plaintiff\r\nfiled the instant Motion for Attorney’s Fees on May 11, 2021 and concurrently\r\nfiled a Memorandum of Costs. Defendant Garri Chernyavskiy filed an opposition\r\non August 13, 2021 and Plaintiff replied on August 16, 2021.

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There is a\r\npending Motion to Tax Costs set for hearing on September 28, 2021.

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Discussion

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Plaintiff moves for\r\nattorney’s fees of $44,840.00 pursuant\r\nto Code of Civil Procedure sections 1021, 1032 and 1033.5, Civil Code section\r\n1717, and Cal. Rules of Court, Rules 3.1702 and 8.104.

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A prevailing party is entitled to recover costs, which can include\r\nattorney’s fees, as a matter of right. \r\n(Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This\r\nright may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5,\r\nsubd. (a)(10).) Additionally, a party prevailing on an action on a contract is\r\nentitled to attorney fees if the contract contains an attorney’s fees\r\nprovision. (Civ. Code, § 1717, subd. (a).) The parties’ lease agreement\r\ncontains an attorney’s fees provision, as follows: “If any legal action or\r\nproceeding be brought by either party to this agreement, the prevailing party\r\nshall be reimbursed for all reasonable attorney’s fees and costs in addition to\r\nother damages awarded.” (Compl., Exh. A, ¶23.)

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While it is undisputed that the prevailing party’s right to\r\nattorney’s fees arises from the lease agreement, a question remains as to\r\nwhether Plaintiff is the prevailing party in this action. Starting with the\r\nstatutory definition, a prevailing party includes “includes the party with a\r\nnet monetary recovery.” (Code Civ. Proc., § 1032, subd. (4).) Civil Code\r\nsection 1717 further explains “the party prevailing on the contract shall be the\r\nparty who recovered a greater relief in the action on the contract. The court\r\nmay also determine that there is no party prevailing on the contract for\r\npurposes of this section.” (Civ. Code, § 1717, subd. (b).)

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Plaintiff argues that as the party in whose favor judgment\r\nin the amount of $12,500.00 was entered on the Complaint, she is the prevailing\r\nparty based on the net monetary recovery. In opposition, Defendants cite to Harris\r\nv. Rojas (2021) 66 Cal.App.5th 817, in which the Court of Appeal considered\r\nthe total recovery of two cases that should have been related by the parties.

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Harris involved two actions that arose out of a\r\ncommercial lease agreement between Harris (tenant) and Rojas (landlord). (Harris\r\nv. Rojas (2021) 66 Cal.App.5th 817, 820. Harris initially sued Rojas for\r\nbreach of the lease agreement in August 2017 and Rojas cross-complained in\r\nSeptember of the same year for ejectment, breach of contract and nuisance. (Id.\r\nat 820-821.) In June 2018, Rojas filed an unlawful detainer action against Harris.\r\n(Id. at 821.) The Court of Appeals noted that neither party filed the\r\nrequisite notice of related case, as mandated by Cal. Rules of Court 3.300. (Id.\r\nat 819-820.) In determining that the trial court correctly denied Harris’\r\nmotion for attorney’s fees because there was no prevailing party, the Court of\r\nAppeals pointed out that Harris was awarded $6,450.00 in an action seeking\r\n$200,000.00. (Id. at 819, 822.) It also found that when considering the\r\ntwo cases together, Harris was clearly not the prevailing party.

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Plaintiff objects that this Court should not consider the\r\nunlawful detainer and the instant action related, like the Court of Appeals did\r\nin Harris, but it is unclear why. The procedural posture of this action\r\nand the unlawful detainer is very akin to the cases in Harris. Both\r\ninvolve a dispute over a lease agreement for unpaid rent and unlawful detainer.\r\nIn both cases, the parties inexplicably failed to file a notice of related\r\ncase. As the Court of Appeals pointed out, that failure does not deprive the trial\r\ncourt of the ability to consider the larger picture of the litigation. (Id.\r\nat 824.) As in Harris, the parties’ dispute in both the contract case\r\nand the unlawful detainer were concerned the same property. (See ibid.)\r\nTherefore, the Court will consider both the Unlawful Detainer action, of which\r\njudicial notice is appropriate, and the instant action to resolve the\r\nprevailing party question.

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The Court of Appeals explained that in determining whether a\r\nparty is a prevailing party, “[t]he case law directs courts to determine the\r\nparty's litigation objectives and to see if it achieved them.” (Id. at\r\n822 [citing Hsu v. Abbara (1995) 9 Cal.4th 863, 876-877].) Plaintiff’s\r\nobjective in the unlawful detainer action was to regain possession of the\r\nsubject property and be awarded damages of $96.33 per day from February 28,\r\n2019. (UD Action Compl., filed 03/06/19, ¶17.) Plaintiff sought to evict\r\nDefendants, not for non-payment of rent, but due to other purported breaches of\r\nthe lease agreement including “changing the locks without providing keys to the\r\nLandlord, adding an additional pet and not complying with insurance\r\nrequirements.” (Id. at Exh. 2.)

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On August 8, 2019, the Unlawful Detainer court granted\r\nDefendants’ Motion for Summary Judgment and a judgment dismissing the entire\r\naction with prejudice was entered on August 30, 2019. (UD Action, Minute Order,\r\n08/09/19; Judgment, 08/30/19.) Defendants vacated the subject property on\r\nAugust 15, 2019 and contend that it was Plaintiff’s decision not to collect\r\nrent during the pendency of the Unlawful Detainer action. (Opp., Chernyavskiy\r\nDecl., ¶3.) Accordingly, none of Plaintiff’s litigation objectives were\r\nachieved and as defendants in whose favor a dismissal was entered, Defendants were\r\nthe prevailing party in the Unlawful Detainer action. (See Code Civ. Proc., §\r\n1032, subd. (a)(4).) Additionally, as the prevailing parties, Defendants were\r\nsubsequently awarded $29,490.00 in attorney’s fees at the trial level, which\r\nwas affirmed on appeal, and $18,544.50 in appellate attorney’s fees. (UD\r\nAction, Minute Order, 12/2/19; Remittitur, 01/05/21; Minute Order, 02/23/21.)

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Regarding whether Plaintiff achieved her litigation\r\nobjectives in this action, the Complaint sought damages of $25,000.00. (Compl.,\r\n¶10.) Just accounting for rent from February 2019 to August 2019, Plaintiff was\r\nallegedly owed $20,230.00. (Id. at ¶¶ BC-4 and CC-1(b).) Plaintiff\r\nobtained a judgment in this action of $12,500.00 against Defendant Garri\r\nChernyavskiy. (Judgment, 05/05/21.) The judgment, therefore, was only half of\r\nwhat Plaintiff sought. Under Civil Code section 1717’s definition of the party\r\nprevailing on the contract, Plaintiff is not the prevailing party. Plaintiff\r\ndid not achieve a greater relief on the contract claims than Defendant Garri\r\nChernyavskiy, which she alleged were worth $25,000.00. “As one Court of Appeal\r\nhas explained, ‘[t]ypically, a determination of no prevailing party results\r\nwhen both parties seek relief, but neither prevails, or when the ostensibly\r\nprevailing party receives only a part of the relief sought.’” (Hsu,\r\nsupra, 9 Cal.4th at 875 [citing Deane Gardenhome Assn. v. Denktas (1993)\r\n13 Cal.App.4th 1394, 1398].)

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If the Court were to only consider Plaintiff’s 50 percent recovery\r\nin this action, and without accounting for Defendants’ prevailing status in the\r\nUnlawful Detainer action, the Court finds that there is no prevailing party\r\nhere. When looking at the entirety of the litigation between Plaintiff and\r\nDefendants, the Court finds that Plaintiff achieved only a limited part of her\r\nlitigation objectives such that she is not deemed the prevailing party for\r\nrecovery of attorney’s fees.

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Conclusion

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Plaintiff Melinda Ahdoot’s Motion for Attorney’s Fees is\r\nDENIED.

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\r\n\r\nDefendants to give notice. "

Case Number: 19STLC09649    Hearing Date: March 9, 2021    Dept: 25

HEARING DATE: Tue., March 9, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Adhoot v. Chernyavskiy, et al.

CASE NUMBER: 19STLC09649 COMPL. FILED: 10-18-19

NOTICE: OK DISC. C/O: 03-17-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Cross-Defendants Jeff Katofsky, Jeff Katofsky APLC, and Michael Leff

RESP. PARTY: Defendants/Cross-Complainants Garri and Polina Chernyavskiy

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Cross-Defendants Jeff Katofsky, Jeff Katofsky APLC, and Michael Leff’s Motion for Summary Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on February 23, 2021 [ ] Late [ ] None

REPLY: Filed on March 3, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On October 18, 2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of contract and common counts against Defendants Garri Chernyavskiy and Polina Chernyavskiy (collectively, “the Chernyavskiys”). On January 31, 2020, the Chernyavskiys filed an Answer and a Cross-Complaint for malicious prosecution against Jeff Katofsky, Jeff Katofsky, a Professional Law Corporation, and Michael Leff (collectively, “Cross-Defendants”).

On April 9, 2020, Cross-Defendants filed a special motion to strike the Cross-Complaint. The motion to strike was denied on October 6, 2020. Cross-Defendants filed their Answer to the Cross-Complaint on November 3, 2020.

On December 22, 2020, Cross-Defendants filed the instant Motion for Summary Judgment (the “Motion”). The Chernyavskiys filed an Opposition on February 23, and Cross-Defendants filed a Reply on March 3.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

1. Request for Judicial Notice

A. The Chernyavskiys’ Request

The Chernyavskiys request judicial notice of California State Assembly Bill No. 2819. (MSJ, RJN, Exh. A.)

The request is denied. The Chernyavskiys have not explained the relevance of this document. Only relevant matters are judicially noticeable. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 (citing Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds).)

1. Evidentiary Objections

A. The Chernyavskiys’ Objections

The Chernyavskiys’ objections to the Declaration of Jeff Katofsky are OVERRULED as to Nos. 1, and 3-6 and SUSTAINED as to No. 2

B. Cross-Defendants’ Objections

Cross-Defendants’ objections to the Declaration of Frances M. Campbell are OVERRULED as to Nos. 2, 4, 8, and 17 and SUSTAINED as to Nos. 1, 3, 5-7, 9-16, and 18-19.

1. Discussion

A. Summary of the Action

The instant cross-action arises from an unlawful detainer action filed in unlimited jurisdiction, Case No. 19STCV07772 (the “Unlawful Detainer Action”) by Cross-Defendants on behalf Plaintiff on March 6, 2019. (Cross-Compl., ¶ 12.) In their Cross-Complaint, the Chernyavskiys allege the following facts regarding the Unlawful Detainer Action: (1) that the Chernyavskiys were tenants of 4829 Lindley Ave., Tarzana, CA (the “Property”); (2) that Garri Chernyavskiy moved into the property in 2010 and that his wife Polina Chernyavski moved in at some time afterward; (3) that in December 2018, the Chernyavskiys entered into a new month-to-month, written rental agreement with Plaintiff regarding the Property which was to commence February 1, 2019; (4) that on January 28, 2019, Plaintiff, through her attorneys, Cross-Defendants, sent the Chernyavskiys a letter purporting to terminate the tenancy at Plaintiff’s Property; and (5) that on March 6, 2019, Plaintiff through her attorneys Cross-Defendants, filed the Unlawful Detainer Action. (Cross-Compl., ¶¶ 7-12.) The Chernyavskiys further allege that no reasonable attorney would have believed that there were reasonable grounds to bring the Unlawful Detainer Action against the Chernyavskiys and that the Unlawful Detainer Action was initiated and prosecuted for an improper purpose. (Id. at ¶¶ 18-20.)

B. Malicious Prosecution

The Chernyavskiys assert a single cause of action for malicious prosecution.

“A claim for malicious prosecution requires that the plaintiff demonstrate (1) the defendant brought (or continued to pursue) a claim in the underlying action without objective probable cause, (2) the claim was pursued by the defendant with subjective malice, and (3) the underlying action was ultimately resolved in the plaintiff’s favor. [Citation.] A plaintiff must establish all three elements. [Citation.]” (Lane v. Bell (2018) 20 Cal.App.5th 61, 67.) In addition, “in order to be granted monetary relief, a malicious prosecution plaintiff must also prove damages.” (Sycamore Ridge Apartments, LLC v. Naumann 2007) 157 Cal.App.4th 1385, 1411.)

1. Favorable Termination on the Merits

“A lawsuit’s termination is favorable to the plaintiff, for purposes of a malicious prosecution action where it ‘ “ ‘ “reflect[s] the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.”’”’ [Citation.]” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 874.)

It is undisputed that the Chernyavskiys prevailed on the merits in the Unlawful Detainer Action as summary judgment was granted in their favor on August 8, 2019. (UMF No. 16.)

Thus, this element is not at issue.

2. Probable Cause

“ ‘Probable cause exists when a lawsuit is based on facts reasonably believed to be true, and all asserted theories are legally tenable under the known facts.’ [Citation.] The court must ‘determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.’ [Citation.] We evaluate this question under an objective standard, asking whether any reasonable attorney would have thought the claim tenable. [Citation.] More specifically, ‘ “ ‘ “probable cause to bring an action does not depend on it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.]” ’ [Citation.] Probable cause exists if the claim is legally sufficient and can be substantiated by competent evidence. [Citation].” ’ [Citation.] ‘In analyzing the issue of probable cause in a malicious prosecution context, the trial court must consider both the factual circumstances established by the evidence and the legal theory upon which relief is sought. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe are true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ [Citation.]” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1540-41.) (Italics added.)

“Although the objective question of tenability is always a ‘question of law’ for the court to decide [citations], the question of what facts were known at the time of filing is a ‘question of fact’ which, if disputed, is for the jury to decide and critically, to decide before the court makes its objective determination of tenability. [Citations.]” (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538.)

The Chernyavskiys argue in their Cross-Complaint that Plaintiff’s and Cross-Defendants’ efforts to terminate the Chernyavskiys’ tenancy was legally insufficient because they failed to provide the required 60 days’ notice pursuant to Civil Code section 1946.1. (Cross-Compl., ¶¶ 13.) Cross-Defendants argue they had probable cause to believe a 60-day notice was not required under the doctrine of waiver and pursuant to Civil Code section 1953, subdivision (b). (MSJ, p. 12:6-13:6.)

It is undisputed that the Chernyavskiys and Plaintiff entered into a residential rental agreement (the “Agreement”) for the Property on or about December 3, 2018. (UMF No. 1.) The effective date on the Agreement is indiscernible by the Court. (MSJ, Exh. 3.) It is also undisputed that the Agreement contained the following provision: “on a month-to-month tenancy until either party shall terminate this agreement by giving written notice of intention to terminate at least 30 days prior to the date of termination.” (UMF. No. 2.) It is further undisputed that on January 28, 2019, a Notice of Termination was sent to the Chernyavskiys providing a 30-day notice. (UMO. No. 3.)

The Chernyavskiys’ Cross-Complaint alleges that, under Civil Code section 1946.1, they were entitled to a 60-day notice of termination. (Cross-Compl., ¶ 13.) Civil Code section 1946.1, subdivision (b) provides: “An owner of a residential dwelling giving notice pursuant to this section shall give notice at least 60 days prior to the proposed date of termination.” (Italics added.)

Relying on Benane v. International Harvester Co. (1956) 142 Cal.App.2d Supp. 874, 878, Cross-Defendants argue that “[t]he doctrine of waiver is generally applicable to all rights or privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights or privileges rest in the individual, and are intended for his sole benefit.” (MSJ, p. 12:6-11.) Cross-Defendants also argue that pursuant to Civil Code section 1953, subdivision (b), they believed a 30-day notice was sufficient. (Id. at pp. 12:2-13:6.)

Civil Code section 1953, subdivision (b), provides:

“Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agreements where the same provision was also contained in the lease or rental agreement which is being renewed.” (Emphasis added.)

Cross-Defendants’ argument is not persuasive. First, the effective date on the December 2018 Agreement is indiscernible, so the Court is not able to confirm the terms of that Agreement applied on January 28, 2019 when the Notice of Termination was served. More importantly, Section 1953, subdivision (b) expressly only applies if the provision is question is not void under subdivision (a). Civil Code section 1953, subdivision (a), explicitly states that any modification to provisions of a lease or rental agreement of a dwelling that affect the tenant’s right to a notice or hearing are void as contrary to public policy. (Civ. Code, § 1953, subd. (a)(3).) The Agreement between Plaintiff and the Chernyavskiys purported to modify the Chernyavskiys’ right to notice. The fact that the parties engaged in settlement negotiations in the Unlawful Detainer Action does not change that the provision modifying the Chernyavskiys’ right to a 60-day notice was void. Based on the statutory language, and using an objective standard, the Court cannot find the Unlawful Detainer Action was tenable.

Thus, Cross-Defendants have not carried their initial burden.

3. Malice

“The malice element looks to the ‘subjective intent or purpose with which the defendant acted in initiating the prior action’ [citation], and is therefore a “question of fact’ [citation]. A party acts with ‘malice’ when it files suit due to ‘ “ill will or some improper ulterior motive” ’. [Citations.] Malice requires more than proof that the party acted without probable cause. [Citation.]” (Gruber v. Gruber, supra, 48 Cal.App.5th 529, 538.)

“ ‘Merely because the prior action lacked legal tenability, as measured objectively… without more, would not logically or reasonably permit the inference that such lack of probable cause was accomplished by the actor’s subjective malicious state of mind. In other words, the presence of malice must be established by other, additional evidence.’ [Citation.] Such other evidence ‘is not limited to hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’ [Citation.] ‘Suits with the hallmark of an improper purpose’ include ‘those in which: “ ‘…(1) the person initiating them does not believe that his claim may be valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.’ ” [Citation.]’ [Citation.]” (Jay v. Mahaffey, supra, 218 Cal.App.4th 1522, 1543.) “Because direct evidence of malice is rarely available, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ [Citation.]” (Id.)

Cross-Defendant Katofsky argues he reasonably believed, both at the time the Unlawful Detainer Action was filed and throughout the litigation, that the action was meritorious and did not initiate the action for an improper purpose or with malice. (MSJ, p. 14:16-20; Katofsky Decl., ¶¶ 18-20, 22.) The only evidence provided in support of this contention is Cross-Defendant Katofsky’s self-serving declaration.

Code of Civil Procedure section 437c, subdivision (e), provides that summary judgment may be denied where “a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established by the individual’s sole affirmation thereof.”

Thus, Court finds Cross-Defendant Katofsky’s declaration insufficient to demonstrate that no that no triable issue of material fact exists as to the element of malice.

4. Damages

Cross-Defendants argue the Chernyavskiys’ action fails because they were already awarded attorney’s fees of $29,490.00 in the Unlawful Detainer Action and suffered have no cognizable damages. (MSJ pp. 15:14-16; UMF No. 17.)

As noted above, “in order to be granted monetary relief, a malicious prosecution plaintiff must also prove damages.” (Sycamore Ridge Apartments, LLC v. Nauman, supra, 157 Cal.App.4th at p. 1411.) Attorney’s fees incurred in defending the original lawsuit are a proper element of damages in a malicious prosecution action. (Contra Costa County Title Co. v. Wolff (1960) 184 Cal.App.2d 59, 68.)

“The equitable concept of offset recognizes that it is unfair to require a defendant to compensate a plaintiff twice for the same injury. ‘To prevent a double recovery, equity demands credit be given for payments received on a judgment.” [Citation.] ‘The plaintiff is entitled only to a single recovery of full compensatory damages for a single injury.’ [Citation.]. ‘The right of offset rests upon the inherent power of the Court to do justice to parties appearing before it…’” (Global Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127, 150.)

Here, Cross-Defendants have not demonstrated that the Chernyavskiys’ injury, i.e., the attorney’s fees and costs incurred, have already been paid for in full. Nor have they argued or demonstrated that the offset rule cannot be applied here to require both Plaintiff and Cross-Defendants to compensate the Chernyavskiys for the same injury, i.e., the attorney’s fees incurred as a result of the Unlawful Detainer Action decided in their favor.

As Cross-Defendants have not demonstrated there is no triable issue of material fact as to the element of damages, they have not carried their burden.

Accordingly, the Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons, Cross-Defendants Jeff Katofsky, Jeff Katofsky APLC, and Michael Leff’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC09649    Hearing Date: September 24, 2020    Dept: 25

HEARING DATE: Thu., September 24, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Adhoot v. Chernyavskiy, et al. COMPL. FILED: 10-18-19

CASE NUMBER: 19STLC09649 DISC. C/O: 03-17-21

PROCEEDINGS: (1) CROSS-DEFENDANTS’ MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

MOVING PARTY: Cross-Defendants Jeff Katofsky, Jeff Katofsky, a Professional Law Corp., and Michael Leff

RESP. PARTY: Defendants/Cross-Complainants Garri Chernyavskiy and Polina Chernyavskiy

SPECIAL MOTION TO STRIKE

(CCP § 425.16)

PROCEEDINGS: (2) MOTION TO COMPEL DEPOSITION OF DEFENDANTS, GARRI AND POLINA CHERNYAVSKIY AND REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Melinda Adhoot

RESP. PARTY: Defendants/Cross-Complaints Garri Chernyavskiy and Polina Chernyavskiy

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

(1) Cross-Defendants’ Motion to Strike is DENIED. Defendants/Cross-Complainants’ request for attorney’s fees is also DENIED.

(2) Plaintiff’s Motion to Compel Deposition of Defendants/Cross-Complainants is DENIED. Plaintiff’s request for sanctions is also DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Special Motion to Strike

OPPOSITION: Filed on July 28, 2020 [ ] Late [ ] None

REPLY: Filed on August 12, 2020 [X] Late [ ] None

Motions to Compel

OPPOSITION: Filed on September 10, 2020 [ ] Late [ ] None

REPLY: Filed on September 15, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On October 18, 2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of contract and common counts against Defendants Garri Chernyavskiy and Polina Chernyavskiy (collectively, “Defendants” or “Cross-Complainants.”) On January 31, 2020, Defendants filed an Answer and a Cross-Complaint for malicious prosecution against Jeff Katofsky, Jeff Katofsky, a Professional Law Corporation, and Michael Leff (collectively, “Cross-Defendants”).

On April 9, 2020, Cross-Defendants filed the instant Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section 425.16 (the “Motion to Strike”). Cross-Complainants filed an Opposition on July 28, 2020.

On April 27, 2020, Plaintiff filed the instant Motion to Compel Depositions of Defendants Garri Chernyavskiy and Polina Chernyavskiy (the “Motion to Compel”). Defendants filed an Opposition on September 10, 2020 and Plaintiff filed a Reply brief on September 15, 2020.

A hearing on the Motion to Strike took place on August 12, 2020. The Court continued the hearing to allow Cross-Defendants’ counsel to appear, respond to, and address the Motion to Strike because he was unable to connect to LACourtConnect. (8/12/20 Minute Order.) Later that day, Cross-Defendants filed a Reply brief. Defendants/Cross-Complainants filed a Request for Judicial Notice in Support of their Opposition on September 1, 2020.

1. Request for Judicial Notice

Defendants/Cross-Complainants request that the Court take judicial notice of Changsha Metro Group Co., Ltd. v. Xufeng, et al., (2020) 49 Cal.App.5th 173. (9/1/20 Request for Judicial Notice.) This request was served on Plaintiff and Cross-Defendants on September 1, 2020 via electronic service. (Id., Proof of Service.)

Defendants/Cross-Complainant’s request is GRANTED. (Evid. Code, § 452, subd. (a).)

1. Special Motion to Strike

A. Defendant Jeff Katofsky, APC

In their Opposition, Cross-Complainants present evidence that Defendant Jeff Katofsky, A Professional Corporation is listed as “FTB SUSPENDED” on the California Secretary of State website as of July 28, 2020. (Oppo., Campbell Decl., ¶ 2, Exh. A.) “A corporation that has had its powers suspended ‘lacks legal capacity or prosecute or defend a civil action during its suspension.’ [Citations.]” (Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 861-62.)

As Defendant Jeff Katofsky, A Professional Corporation, is suspended, it cannot participate in this action until its status has been restored.

B. Anti-SLAPP Motions

In limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) In regard to special motions to strike, the Court of Appeal held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

For this reason, Cross-Defendants’ Motion is DENIED.

C. Attorney’s Fees

Defendants/Cross-Complainants argue they are entitled to attorney’s fees as the Motion is completely devoid of merit. (Oppo., p. 5:8-11.)

Code of Civil Procedure section 425.16, subdivision (c) provides:

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to section 128.5.”

Under this section, “an award of attorney fees to a defendant prevailing on a special motion to strike is mandatory; a prevailing plaintiff is entitled to fees only upon proof that the defendant’s motion was frivolous or solely intended to cause unnecessary delay.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1340-41.) (Italics added.) Code of Civil Procedure section 128.5 defines “frivolous” as “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).

Here, the Motion is denied because it is not permitted in limited jurisdiction court, not because the Court finds it to be frivolous. Indeed, “malicious prosecution causes of action fall within the purview of the Anti-SLAPP statute.” (Alston v. Dowe (2020) 52 Cal.App.5th 706, 721.) Furthermore, there is no evidence Cross-Defendants filed this Motion to Strike for the sole purpose of harassing Defendants/Cross-Complainants or causing unnecessary delay.

Accordingly, Cross-Complainants’ request for attorney’s fees is DENIED.

1. Motions to Compel Depositions

A. Legal Standard

Code of Civil Procedure section 2025.450, section (a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

Plaintiff moves the Court to compel Defendants/Cross-Complainants’ depositions. Plaintiff submits evidence she served Defendants/Cross-Complainants with a Notice of Taking Deposition on February 12, 2020. (Mot. to Compel, Leff Decl., ¶ 4, Exh. A.) The depositions were scheduled for March 16, 2020 and March 18, 2020 at Plaintiff’s counsel’s office. (Id.) Following Governor Newsom’s stay at home orders due to the COVID-19 pandemic, Defendants/Cross-Complainants’ depositions were noticed for April 23 and April 24, 2020 at Plaintiff’s counsel’s office. (Id. at ¶ 5, Exh. B.) Plaintiff served Defendants/Cross-Complainants with the amended notice of deposition on March 18, 2020. (Id.) On April 14, 2020, Defendants/Cross-Complainants served an objection to the depositions on the ground that their pending anti-SLAPP Motion stayed all discovery in the entire action. (Id. at ¶ 6, Exh. C.) Following receipt of the objection, Plaintiff’s counsel sent a meet and confer letter to Defendants/Cross-Complainants’ counsel on April 21, 2020. (Id. at ¶ 7, Exh. D.) Defendants/Cross-Complainants’ counsel responded to Plaintiff’s meet and confer letter on April 22, 2020 and reiterated her position that the pending anti-SLAPP motion stayed discovery in the entire action, not just in the malicious prosecution cross-action. (Id. at ¶ 8, Exh. E.) She further stated that Defendants/Cross-Complainants were unwilling to personally appear for deposition at Plaintiff’s counsel’s office during a pandemic and that emergency rule 12 did not require them to do so. (Id.)

Plaintiff’s evidence demonstrates she has satisfied the meet and confer requirements of Section 2025.450, subdivision (b)(2).

Code of Civil Procedure section 425.16, subdivision (g) provides that “[a]ll discovery proceedings in the action shall be stayed upon filing a notice of motion made pursuant to this section. The stay of proceedings shall remain in effect until notice of entry of the order ruling on the Motion.” (Italics added.) As explained in Section III of this analysis, the anti-SLAPP Motion was filed against Defendants/Cross-Complainants’ Cross-Complaint. The parties disagree over whether the stay applies to just the cross-action or whether it applies to the action in its entirety, requiring a stay on discovery proceedings for Plaintiff’s breach of contract and common count causes of action even though those claims are not the subject of the anti-SLAPP Motion.

Neither party cites any case law on point. Nor is the Court aware of any case law dealing with this precise issue. As Plaintiff notes, the language of Section 425.15, subdivision (g) “has been uniformly interpreted to provide a general stay on discovery in accordance with the statute’s overall purposes. [Citation.]” (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125.) (Italics added.) In enacting Section 425.16, the legislature sought “early resolution to minimize the potential costs of protracted litigation [and] it also sought to protect defendants from the burden of traditional discovery pending resolution of the motion.” (Mattel, Inc. v. Luce, Forward, Hamilton, & Scripps (2002) 99 Cal.App.4th 1179, 1190.) Plaintiff also notes that Code of Civil Procedure section 22 defines an “action” as an “ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

Based on the above, the Court is persuaded by Plaintiff’s argument that the discovery stay applies only to the cross-action for malicious prosecution and not to the entirety of proceedings under this case number, 19STLC09649.

However, the Court notes that both deposition notices stated the deposition would take place in Plaintiff’s counsel’s office. (Mot. to Compel, Leff Decl., ¶¶ 4, 5, Exhs. A, B.) Defendants/Cross-Complainants’ attorney raised the issue that Defendants/Cross-Complainants were unwilling to personally attend the deposition in Plaintiff’s counsel’s office due to the pandemic in her meet and confer correspondence. (Mot. to Compel, Leff Decl., ¶ 8, Exh. E.) Emergency Rule 11 of the California Rules of Court provides that “[n]otwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of deposition.”

Because Defendants/Cross-Complainants raised concerns regarding personally appearing for deposition due to the COVID-19 pandemic and because Plaintiff did not offer a remote deposition alternative, the Motion to Compel and request for sanctions is DENIED.

1. Conclusion & Order

For the foregoing reasons:

(1) Cross-Defendants’ Motion to Strike is DENIED. Defendants/Cross-Complainants’ request for attorney’s fees is also DENIED.

(2) Plaintiff’s Motion to Compel Deposition of Defendants/Cross-Complainants is DENIED. Plaintiff’s request for sanctions is also DENIED.

Moving parties are ordered to give notice.

Case Number: 19STLC09649    Hearing Date: August 12, 2020    Dept: 25

HEARING DATE:   Wed., August 12, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Adhoot v. Chernyavskiy COMPL. FILED: 10-18-19

CASE NUMBER: 19STLC09649 DISC. C/O: 03-17-21

PROCEEDINGS:     MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

MOVING PARTY:   Cross-Defendants Jeff Katofsky, Jeff Katofsky, a Professional Law Corp., and Michael Leff

RESP. PARTY: Cross-Complainants Garri Chernyavskiy and Polina Chernyavskiy  

SPECIAL MOTION TO STRIKE

(CCP § 425.16)

TENTATIVE RULING:

Cross-Defendants Jeff Katofsky, Jeff Katofsky, APLC, and Michael Leff’s Motion to Strike is DENIED. Cross-Complainants’ request for attorney’s fees is also DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 28, 2020 [   ] Late [   ] None

REPLY: None filed as of August 10, 2020 [   ] Late [X] None

ANALYSIS:

1. Background

On October 18, 2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of contract and common counts against Defendants Garri Chernyavskiy and Polina Chernyavskiy (collectively, “Defendants” or “Cross-Complainants.”) On January 31, 2020, Defendants filed an Answer and a Cross-Complaint for malicious prosecution against Jeff Katofsky, Jeff Katofsky, a Professional Law Corporation, and Michael Leff (collectively, “Cross-Defendants”).

On April 9, 2020, Cross-Defendants filed the instant Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section 425.16 (the “Motion”). Cross-Complainants filed an Opposition on July 28, 2020. To date, no reply brief has been filed.

1. Legal Standard & Discussion

In limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) The Court of Appeal held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

For this reason, Cross-Defendants’ Motion is DENIED.

Cross-Complainants argue they are entitled to attorney’s fees as the Motion is completely devoid of merit. (Oppo., p. 5:8-11.)

Code of Civil Procedure section 425.16, subdivision (c) provides:

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to section 128.5.”

Under this section, “an award of attorney fees to a defendant prevailing on a special motion to strike is mandatory; a prevailing plaintiff is entitled to fees only upon proof that the defendant’s motion was frivolous or solely intended to cause unnecessary delay.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1340-41.)

Here, the Motion was denied because it is not permitted in limited jurisdiction court, not because the Court finds it to be frivolous or intended to cause unnecessary delay. Furthermore, Cross-Complainants’ request for attorney’s fees is procedurally improper as it must be made by a separate motion. (Code Civ. Proc., §§ 425.16, subd. (c); 128.5, subd. (f)(1)(A).) Thus, Cross-Complainants’ request for attorney’s fees is DENIED.  

1. Conclusion & Order

For the foregoing reasons, Cross-Defendants Jeff Katofsky, Jeff Katofsky, APLC, and Michael Leff’s Motion to Strike is DENIED. Cross-Complainants’ request for attorney’s fees is also DENIED.

Moving parties are ordered to give notice.