MERLE'S MANOR II, LLC VS DOMITILO GUDINO

Tentative Rulings

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Case Number: 19STCP05067 Hearing Date: July 13, 2021 Dept: 26

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\r\n HEARING DATE: Tuesday,\r\n July 13, 2021 \r\n	\r\n JUDGE/DEPT: Simpson/26 \r\n
\r\n CASE NAME: Merle’s Manor II, LLC v. Gudino, et al. \r\n	\r\n COMP. FILED: 11/26/19 \r\n
\r\n CASE NUMBER: 19STCP05067 \r\n	\r\n DISPO. DATE: 02/05/20 \r\n \r\n
\r\n NOTICE: OK \r\n	\r\n \r\n

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PROCEEDINGS:\r\n MOTION FOR RELIEF FROM ORDER DENYING\r\nMOTION FOR AWARD OF ATTORNEY’S FEES AND COSTS AS UNTIMELY, AND GRANTING MOTION\r\nTO TAX COSTS

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MOVING\r\nPARTY: Petitioner Merle’s Manor II,\r\nLLC

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RESP.\r\nPARTY: Respondent Domitilo\r\nGudino

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MOTION\r\nFOR RELIEF FROM ORDER DENYING MOTION FOR ATTORNEY’S FEES AND COSTS AND GRANTING\r\nMOTION TO TAX COSTS

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(CCP\r\n§ 473(b))

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TENTATIVE RULING:

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Petitioner Merle’s Manor II, LLC’s Motion For Relief From\r\nOrder Denying Motion For Award Of Attorney’s Fees And Costs As Untimely, And\r\nGranting Motion To Tax Costs is GRANTED.

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Petitioner is awarded $7,621.50 in attorney fees and $839.11 in costs.

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Respondent is awarded fees of $2,500.00 under Code of Civil\r\nProcedure section 473, subdivision (b).

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Attorney Martin Kovalsky is ordered to appear and explain\r\nthe propriety of his in-court appearance on February 1, 2021.

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SERVICE:

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

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[X] Correct\r\nAddress (CCP 1013, 1013a) OK

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[X] 10/15 Day\r\nLapse (CC 798.88) OK

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SUMMARY OF PROCEEDINGS:\r\nPetition for permanent injunction against violation of Mobile Home Park rules.

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REQUEST FOR RELIEF: Relieve\r\nPetitioner from the untimely filing of the Motion for Attorney’s Fees and award\r\nPetitioner attorney’s fees and costs as the prevailing party in this action.

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OPPOSITION: The\r\ninstant Motion for Relief is untimely under Code of Civil Procedure section\r\n473, and violates Code of Civil Procedure section 1008 as an improper motion\r\nfor reconsideration.

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REPLY: None filed as of July 2, 2021.

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ANALYSIS:

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Petitioner Merle’s Manor II, LLC (“Petitioner”)\r\nfiled the instant Petition for Permanent Injunction against Domitilo Gudino (“Respondent”) on\r\nNovember 26, 2019. Petitioner moved pursuant to Civil Code section 786.88 for\r\nan order enjoining Respondent from continuing violation of the rules of\r\nPetitioner’s Mobile Home Park. The order granting the Petition was entered by\r\nthe Court on February 5, 2020 and served by Petitioner on Respondent on the\r\nsame date. (Order Granting Petition, filed 02/05/20; Proof of Personal Service,\r\nfiled 02/06/20.)

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Petitioner filed a Memorandum of\r\nCosts and Motion for Attorney Fees and Costs on July 23, 2020. Respondent filed\r\nan opposition and a Motion to Tax Costs on August 11, 2020. The Court heard\r\nboth motions on February 1, 2021. After oral argument and taking the motions\r\nunder submission, the Court denied the Motion for Attorney’s Fees and Costs and\r\ngranted the Motion to Tax Costs.

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On February 4, 2021, Petitioner\r\nfiled the instant Motion for Relief from Order Denying Motion for Attorney’s\r\nFees and Costs and Granting Motion to Tax Costs. No opposition has been filed\r\nto date.

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Discussion

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Petitioner moves for\r\nrelief from the Court’s February 1, 2021 order pursuant to Code of Civil\r\nProcedure section 473, subdivision (b). Under this statute, an\r\napplication for relief must be made no more than six months after entry of the\r\norder from which relief is sought, and must be accompanied by an affidavit of\r\nfault attesting to the mistake, inadvertence, surprise or neglect of the moving\r\nparty or its attorney. (Code Civ. Proc., § 473, subd. (b).) Petitioner moves on the grounds that its attorney did not\r\nbelieve the order granting the injunction was a judgment and therefore, did not\r\ntrigger the deadline for filing a motion for attorney’s fees and memorandum of\r\ncosts. Petitioner’s attorney also contends that the attorney’s fees motion\r\ncould not have been filed earlier because of COVID-related court-closures.

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In opposition,\r\nRespondent argues that the instant Motion for Relief is untimely under Code of\r\nCivil Procedure section 473, and violates Code of Civil Procedure section 1008\r\nas an improper motion for reconsideration. The issue of timing under section\r\n473 when seeking relief from the deadline under Rule 3.1702 is not\r\nstraightforward. The Court of Appeals has ruled that “the better rule to follow\r\nis the one that focuses on the date the trial court enters an order enforcing a\r\nprocedural time limit” but that the trial court is not prohibited from “taking\r\ninto account the fact that a valid untimeliness argument was raised in\r\nopposition papers in determining whether an application under section 473 has\r\nbeen submitted within a reasonable time.” (Lee v. Wells Fargo Bank, N.A.\r\n(2001) 88 Cal.App.4th 1187, 1200.)

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The “better rule”\r\nhere would find that the deadline under 473, subdivision (b) started to run\r\nupon the Court’s February 1, 2021 order denying the fee motion and granting the\r\nmotion to tax costs. Respondent contends that Petitioner’s attorney raised the\r\nissue of fees in a letter dated February 20, 2021 but failed to act until five\r\nmonths later. (Citing Motion, Beam Decl., Exh. 1.) This does not demonstrate\r\nthat Petitioner’s attorney believed the attorney’s fees motion had to be\r\nbrought soon after service of the injunctive order. Rather, the letter simply\r\nshows that Petitioner’s attorney was opening negotiations for payment of\r\nattorney’s fees at that time and warning that failure to resolve the issue\r\nwould result in a fee motion. (Ibid.)

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Nor does the Court\r\nfind that Respondent’s motion to tax costs and opposition to the fee motion,\r\nwhich were filed on August 11, 2020, make the timing of the instant Motion for\r\nRelief unreasonable. Petitioner’s reply to the opposition was to argue that\r\ngood cause existed for the timing of the fee motion under Rule 3.1702, instead\r\nof withdrawing the fee motion and seeking relief under Code of Civil Procedure\r\nsection 473, subdivision (b). The Court finds not fault in this wait-and-see\r\napproach. The Court’s ruling on February 1, 2021 determined that no good cause\r\nexisted for the timing of the fee motion but the case law on whether an order\r\ngranting permanent injunctive relief is a final judgment on the merits is not\r\nextensive. Petitioner’s attorney offered a contrary argument supported by case\r\nlaw, with which the Court ultimately disagreed. Petitioner’s counsel also now\r\nexplains that in his years of prosecuting mobile home violations, he has not\r\nknown a court to enter judgments until after attorney’s fees and costs have\r\nbeen decided. (Motion, Beam Decl., ¶3.) Based on this experience, Petitioner’s\r\nattorney did not think the fee motion had to be filed by March 6, 2020. (Ibid.)\r\n

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The Court finds this\r\nexplanation supports the request for relief from the untimely filing of the fee\r\nmotion and the memorandum of costs based on mistake, inadvertence, surprise or\r\nexcusable neglect.

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Nor is the instant\r\nMotion for Relief an improper motion for reconsideration under Code of Civil\r\nProcedure section 1008. As Respondent acknowledges, Petitioner’s earlier\r\nargument was that good cause supported the timing of the fee motion under Cal.\r\nRules of Court, Rule 3.1702, subdivision (d). This Motion is brought under Code\r\nof Civil Procedure section 473, which is a different basis for relief.

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Entitlement to\r\nAttorney’s Fees and Costs

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A prevailing party is entitled to recover costs, including attorneys’\r\nfees, as a matter of right. (Code Civ.\r\nProc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This right may arise out\r\nof contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Here,\r\nthe statute under which the Petition for Permanent Injunction was brought\r\nallows for the recovery of attorney fees and costs: “In any action arising out\r\nof the provisions of this chapter the prevailing party shall be entitled to\r\nreasonable attorney's fees and costs.” (Civ. Code, § 798.85.)

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It is undisputed that Petitioner is the\r\nprevailing party in this action, as the party for whom relief was granted\r\npursuant to the Petition. (Code Civ. Proc., § 1032, subd. (a)(4).) Therefore,\r\nPetitioner is entitled to recover the attorney fees and costs incurred\r\ndefending this action.

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Amount of Attorney Fees and Costs

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Regarding the merits, the Motion seeks $7,621.50\r\nin attorney fees and $839.11 in costs. (Notice of Motion, p. 2:3-4.)

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The\r\nfee setting inquiry in California ordinarily begins with the “lodestar” method,\r\ni.e., the number of hours reasonably expended multiplied by the reasonable\r\nhourly rate. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) A computation\r\nof time spent on a case and the reasonable value of that time is fundamental to\r\na determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted,\r\nbased on consideration of factors specific to the case, in order to fix the fee\r\nat the fair market value for the legal services provided. (Ibid.) Such\r\nan approach anchors the trial court’s analysis to an objective determination of\r\nthe value of the attorney’s services, ensuring that the amount awarded is not\r\narbitrary. (Id., at p. 48, fn.\r\n23.)

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Petitioner’s counsel charged $300.00 hourly\r\nrate is reasonable for an attorney in Southern California who practices in\r\nbusiness litigation and has been practicing for 30 years. (Motion, Beam Decl.,\r\n¶5.) Petitioner’s counsel’s contract attorney charged $275.00 and Petitioner’s\r\ncounsel’s paralegal charged $140.00. (Ibid.) Again, these are reasonable\r\nrates. Regarding the hours billed, it reasonable for Plaintiff’s counsel to\r\nspent 14 hours on this action based on the following work: issuing two\r\n7-Day Notices on Respondent, preparing and filing the Petition, communicating\r\nwith witnesses, preparing and filing the declarations in support of the\r\nPetition and attending the hearing and obtaining the issuance of the Injunction\r\nOrder. (Ibid.) Additionally, Petitioner’s counsel billed $150.00 for\r\ndrafting the instant Motion and will bill an additional $1,500.00 to file a\r\nreply and appear at the hearing. (Id. at ¶6.)

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Finally,\r\nPetitioner’s requests costs of $839.11 for its filing, service and photocopying\r\nfees in this action. (Memorandum of Costs, filed 7/23/20.) To recover a\r\ncost, it must be reasonably necessary to the litigation and reasonable in\r\namount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 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\r\nAssoc. (1993) 19 Cal.App.4th 761, 773-74.) The fees appear reasonable, and the only argument raised in Respondent’s\r\nmotion to tax costs is the untimeliness of the memorandum of costs. (Motion to\r\nTax Costs, pp. 1-4.) The Court has already determined that Petitioner is\r\nentitled to relief from the late filing.

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Therefore, the Court\r\nawards Petitioner $7,621.50 in attorney fees and $839.11 in costs.

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Request for Award\r\nof Fees under Code of Civil Procedure section 473(b)

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Respondent requests\r\nan award of attorney’s fees from Petitioner’s attorney under Code of Civil\r\nProcedure section 473, which provides that “[t[he court shall, whenever relief\r\nis granted based on an attorney's affidavit of fault, direct the attorney to\r\npay reasonable compensatory legal fees and costs to opposing counsel or parties.”\r\n(Code Civ. Proc., § 473, subd. (b).)

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Respondent seeks fees of $6,500.00 for opposing the instant\r\nMotion for Relief based on an hourly rate of $500.00. (Opp., ¶9.) Pursuant to a\r\nlodestar calculation, the Court awards Respondent $2,500.00.

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Finally, the Court notes its concern that Respondent’s\r\nattorney, Martin S. Kovalsky, appeared at and argued on Respondent’s behalf on\r\nFebruary 1, 2021. (Id. at ¶3.) This was almost five months prior to the\r\neffective date of Kovalsky’s substitution of attorney, filed on June 29, 2021.\r\n(See Code Civ. Proc., §§ 284 and 285.) Attorney Kovalsky is ordered to appear\r\nat the hearing on July 13, 2021 and explain the propriety of his appearance on\r\nFebruary 1, 2021. Following said appearance, the Court will determine whether\r\nto set an Order to Show Cause Re Sanctions.

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Conclusion

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Based on the foregoing, Petitioner Merle’s Manor II, LLC’s\r\nMotion for Relief from the Order Denying Attorney Fees and Costs is DENIED.

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Court clerk to give notice.

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Case Number: 19STCP05067    Hearing Date: February 01, 2021    Dept: 26

Merle’s Manor II, LLC v. Gudino, et al.

ATTORNEY FEES

(Civil Code §§ 798.85, 1717)

TENTATIVE RULING:

Petitioner Merle’s Manor II, LLC’s Motion for Attorney Fees and Costs is DENIED.

ANALYSIS:

Petitioner Merle’s Manor II, LLC (“Petitioner”) filed the instant Petition for Permanent Injunction against Domitilo Gudino (“Respondent”) on November 26, 2019. Petitioner moved pursuant to Civil Code section 786.88 for an order enjoining Respondent from continuing violation of the rules of Petitioner’s Mobile Home Park. On February 5, 2020, the Court granted the Petition.

Petitioner filed the instant Motion for Attorney Fees and Costs on July 23, 2020. Respondent filed an opposition on August 11, 2020 and Petitioner replied on January 19, 2021.

Discussion

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This right may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Here, the statute under which the Petition for Permanent Injunction was brought allows for the recovery of attorney fees and costs: “In any action arising out of the provisions of this chapter the prevailing party shall be entitled to reasonable attorney's fees and costs.” (Civ. Code, § 798.85.)

It is undisputed that Petitioner is the prevailing party in this action, as the party for whom relief was granted pursuant to the Petition. (Code Civ. Proc., § 1032, subd. (a)(4).) Therefore, Petitioner is entitled to recover the attorney fees and costs incurred defending this action.

“A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, Rule 3.1702, subd. (b)(1).) In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, Rule 8.822, subd. (a)(1).) The Court can extend the time for bringing a motion upon a showing of good cause. (Cal. Rules of Court, Rule 3.1702, subd. (d).) Alternatively, the Court can grant relief from a missed deadline under Code of Civil Procedure section 473, subdivision (b). (Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1192-1195.)

A copy of the Order Granting the Petition for Permanent Injunction (“the Order”) was personally served on Respondent on February 5, 2020. However, the Order it is not entitled “Notice of Entry,” so it did not trigger the 30-day deadline under Rule 8.822, subdivisions (a) and (b). The question is whether the February 5, 2020 Order amounts to “entry of judgment” under Rule 8.822, subdivision (c).) Code of Civil Procedure section 577 defines a judgment as “the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) Here, the order granting the Petition did make a final determination on the parties’ rights in this action. Furthermore, case law has held that a permanent injunction is a final judgment on the merits. (People ex rel. Becerra v. Huber (2019) 32 Cal.App.5th 524, 532 [citing Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1041].) The case on which Petitioner relies to claim that a permanent injunction is not a final order did not involve an order granting an injunction but denying a request to modify an injunction. (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 270.) Finally, Code of Civil Procedure section 664.5, subdivision (a) sets forth the procedure for entry of judgment: “In any contested action or special proceeding … the party submitting an order or judgment for entry shall prepare and serve, a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service.” (Code Civ. Proc., § 664.5, subd. (a).) Petitioner submitted an order for entry on the Petition, a copy of which it then served on Respondent and filed with the Court, along with proof service of the same.

The Court finds the order granting the Petition for Permanent Injunction is a final judgment that triggered the 90-day deadline to file a motion for attorney fees. Otherwise, a prevailing party could indefinitely extend the time to file a motion for attorney fees by waiting to file a document entitled “Entry of Judgment.” Based on the February 5, 2020 entry date, the Motion for Attorney Fees and Costs should have been filed by May 5, 2020. Instead, the Motion was not filed and served until more than two months later, on July 23, 2020.

Petitioner does not show good cause to extend the time to bring the Motion under Code of Civil Procedure section 1033.5. Petitioner incorrectly contends that it was not possible to file the Motion earlier than July 23, 2020 because of COVID-related court closures. Filing of motion papers, regardless of the hearing date, however, was not suspended for months as Petitioner asserts. Only March 17-19, 2020 were designated court holidays for purposes of computing time. (LASC General Order 004, dated 3/17/20.) Petitioner makes no showing that it attempted to file the Motion by May 5, 2020 and was unable to do so, which would support a finding of good cause to extend the deadline. No explanation is provided for why Petitioner waited until July 23, 2020. Petitioner may move for relief from the failure to meet the time limitation under section 473. (Save Our Forest & Ranchlands v. County of San Diego (1996) 50 Cal.App.4th 1757, 1761.)

Conclusion

Based on the foregoing, Petitioner Merle’s Manor II, LLC’s Motion for Attorney Fees and Costs is DENIED.

Court clerk to give notice.

Case Number: 19STCP05067    Hearing Date: February 05, 2020    Dept: 26

Merle’s Manor II, LLC v. Gudino, et al.

PERMANENT INJUNCTION

(Civil Code § 798.88)

TENTATIVE RULING:

Petitioner Merle’s Manor II, LLC’s Petition for Permanent Injunction Against Respondent Domitilo Gudino is GRANTED.

ANALYSIS:

Petitioner Merle’s Manor II, LLC (“Petitioner”) filed the instant Petition for Permanent Injunction against Domitilo Gudino (“Respondent”) on November 26, 2019. Petitioner moves pursuant to Civil Code section 786.88 for an order enjoining Respondent from continuing violation of the rules of Petitioner’s Mobile Home Park. Specifically, that Respondent be immediately (1) ordered to remove all items from outside the Mobile Home and storage shed except outdoor patio furniture and barbecues from the Premises, and prohibited from storing any items except outdoor patio furniture and barbecues outside of the Mobile Home and on the Premises; (2) prohibited from tying his dog up outside and allowing his dog to roam the Park without a leash; (3) ordered to trim the overgrown trees and bushes on the Premises; and (4) prohibited from playing loud music and from swearing at his neighbors. (Notice of Hearing, filed 1/28/20.)

The Petition and Notice of Hearing were personally served on Respondent on January 26, 2020. To date, no opposition has been filed.

Legal Standard

The Mobilehome Residency Law (“MRL”) gives management an injunctive relief remedy for violations of “reasonable” park rules and regulations. (Civ. Code, § 798.88.) Specifically, management may obtain a restraining order against a continuing or recurring violation of any “reasonable rule or regulation.” (Civ. Code, § 786.88, subd. (b); Rancho Santa Paula Mobilehome Park, Ltd. v. Evans (1994) 26 Cal.App.4th 1139, 1142.) The Petition and Notice of Hearing must be personally served on the respondent. (Civ. Code, § 786.88, subd. (c).) At the time of the hearing, the court shall issue the injunction if it finds by clear and convincing evidence the existence of a continuing or recurring violation of a “reasonable rule or regulation.” (Civ. Code, § 786.88, subd. (d).) The duration of the injunction may not exceed three years. (Civ. Code, § 786.88, subd. (d).)

Discussion

Petitioner has complied with the service requirements set forth at Civil Code section 798.88, subdivision (c) by personally serving Respondent with the Petition and Notice of Hearing. The Petition is supported by the declarations of the Mobile Home Park’s manager, Mario Flores (“Flores”) and regional manager, Trish Simpson (“Simpson”). Simpson states in her declaration that the subject Mobile Home Park (“the Park”) is located at 1000 N. Figueroa Street, Wilmington, California and is owned by Petitioner. (Pet., Simpson Decl., ¶1.) Both Flores and Simpson work for St. Claire Management, which was hired by Petitioner to oversee operations of the Park. (Pet., Flores Decl., ¶1.) On July 3, 2003, Respondent entered into a written agreement with Petitioner to lease Space 71 of the Park (“the Premises”). (Id. at ¶2 and Exh. A.) Respondent owns the Mobile Home that is located on the Premises. (Id. at ¶2.) Pursuant to the lease agreement, Respondent agreed to the Park Rules, which were incorporated therein. (Id. at ¶3.)

Since June 2019, Flores has observed Respondent violating several Park Rules as follows:

• Having an unregistered dog, tying the dog up outside, and allowing the dog to roam the Park without a leash in violation of Rules 24A-K;

• Having unapproved structures as part of the landscaping of the Premises in violation of Rules 8A-B;

• Storing multiple items on the Premises and outside the Mobile Home and failing to keep the landscaping in good condition in violation of Rules 10B, 10C, 10P, 10Q; and

• Playing loud music at night and swearing at his neighbors in violation of Rules 13A, 13C and 13E.

(Id. at ¶4(a)-(d).) Following these violations, Petitioner’s counsel issued seven-day Notices to Comply with Rules and Regulations in July and October, 2019. (Id. at ¶4(e) and Exh. C; Beam Decl., ¶¶2-3; Exhs. 3-5.) Despite these Notices to Comply, Respondent continues to be in violation of Rules. (Id. at ¶4(d).) Based on the foregoing evidence, which is unopposed, the Court finds that Petitioner has shown a continuing violation of its reasonable rules and regulations by clear and convincing evidence.

The Petition for Permanent Injunction Against Respondent Domitilo Gudino is GRANTED.

Moving party to give notice.