On 04/27/2016 ANITRA SIMMONS filed a Labor - Other Labor lawsuit against AMUSEMENT FOODS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ERNEST HIROSHIGE and ANTHONY MOHR. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
SHORELINE FOODS INC
AMUSEMENT FOODS INC
JAMES H. CORDES
KO LEGAL INC
MERTENS GLEN H. ESQ.
2/20/2018: CLASS ACTION NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES TO DEFENDANT AMUSEMENT FOODS, INC.
5/23/2018: DECLARATION OF KIMBERLY LIND IN SIJPI?ORT OF PLAINTIFF'S REPLY TO DEFENDANT OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES TO DEFENDANT AMUSEMENT FOODS
5/23/2018: PROOF OF SERVICE-CIVIL
5/31/2018: NOTICE OF RULING ON PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES FROM AMUSEMENT FOODS, INC. TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET TWO)
6/11/2018: DECLARATION OF JAMES CORDES RE MEET AND CONFER AND FILING OF [PROPOSED] BELAIRE NOTICE AND PROTECTIVE ORDERS
6/12/2018: PLAINTIFF'S SUPPLEMENTAL BRIEF RE: MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES
6/28/2018: PROTECTIVE ORDER
5/29/2019: Proof of Service (not Summons and Complaint)
6/3/2019: Minute Order
7/11/2016: Proof of Service
10/10/2016: NOTICE RE: CONTINUANCE OF HEARING
12/7/2016: Minute Order
2/7/2017: DECLARATION OF GLEN H. MERTENS IN OPPOSITION TO PLAINTIFF?S REQUEST FOR ATTORNEY'S FEES AND COSTS RE: NONAPPEARANCE ON DECEMBER 7, 2016
8/11/2017: NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND COMPLAINT AND CONTINUE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KIMBERLY LIND; [PROPOSED] ORDER ON MOTION FOR LEAVE TO AMEND AND CONTI
8/28/2017: SUPPLEMENTAL DECLARATION IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND CONTINUE TRIAL
8/28/2017: PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT AND CONTINUE TRIAL
9/11/2017: RULING THE MOTION IS GRANTED. PLAINTIFF TO FILE AND SERVE THE FIRST AMENDED COMPLAINT WITHIN TWO DAYS OF RECEIVING NOTICE OF THIS RULING.; ETC.
9/11/2017: NOTICE OF RULING ON MOTION FOR LEAVE TO AMEND COMPLAINT AND FOR FURTHER CASE MANAGEMENT CONFERENCE
Minute Order ( (Hearing on Motion - Other PLAINTIFF?S NOTICE OF MOTION AND MO...)); Filed by ClerkRead MoreRead Less
Objection (to Untimely Opposition and Evidence in Support Thereof); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Objection (to Evidence in Support of Defendants' Opposition to Plaintiff's Motion for Class Certification); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Reply (PLAINTIFF?S REPLY TO OPPOSITION TO MOTION TO CERTIFY CLASS AND SUBCLASSES OF AMUSEMENT FOODS AND SHORELINE FOODS); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Declaration ( OF SANTIAGO MARTINEZ); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Request (for Court Reporting Services by Party with Fee Waiver); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Declaration (DEFENDANTS' APPENDIX OF DECLARATIONS AND EXHIBITS); Filed by Amusement Foods, Inc (Defendant); Shoreline Foods, Inc (Defendant)Read MoreRead Less
at 09:00 AM in Department 96, Anthony Mohr, Presiding; Hearing on Motion - Other (PLAINTIFF?S NOTICE OF MOTION AND MOTION TO CERTIFY CLASS AND SUBCLASSES) - Not Held - Rescheduled by CourtRead MoreRead Less
Memorandum (OF POINTS AND AUTHORITIES OF DEFENDANTS); Filed by Amusement Foods, Inc (Defendant); Shoreline Foods, Inc (Defendant)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Summons; Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
ORDER ON COURT FEE WAIVER (SUPERIOR COURT)Read MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by ClerkRead MoreRead Less
Request to Waive Court Fees; Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
COMPLAINT FOR VIOLATIONS OF THE PRIVATE ATTORNEY'S GENERAL ACT, CALIFORNIA LABOR CODE SECTION 2698 ET SEQ. 1. CALIFONRIA LAABOR CODE SECTION 201; ETCRead MoreRead Less
Complaint; Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Anitra Simmons (Plaintiff)Read MoreRead Less
Case Number: BC618594 Hearing Date: March 8, 2021 Dept: 54
Superior Court of California
County of Los Angeles
Amusement Foods Inc., et al.,
Hearing Date: March 8, 2021
Department 54, Judge Maurice A. Leiter
Motion for Attorney’s Fees
Moving Party: Defendant Shoreline Foods, Inc.
Responding Party: Plaintiff Anitra Simmons
T/R: DEFENDANT SHORELINE FOODS, INC.’S MOTION FOR ATTORNEY’S FEES IS DENIED.
PLAINTIFF TO NOTICE.
The court considers the moving papers, opposition and reply.
Plaintiff Anitra Simmons filed this action on April 27, 2016 against Defendants Amusement Foods, Inc. and Shoreline Foods, Inc. Plaintiff filed a first amended complaint on September 14, 2017.
On December 20, 2019, Plaintiff accepted Defendant Amusement Foods’ CCP § 998 offer to compromise for $10,501.00 plus reasonable attorney’s fees and costs. On December 23, 2019, Plaintiff dismissed Defendant Shoreline Foods without prejudice.
On March 10, 2020, Plaintiff filed a proposed judgment which memorialized the CCP § 998 offer. On March 11, 2020, Defendants filed a proposed judgment which memorialized the CCP § 998 offer and added judgment and attorney’s fees in favor of Defendant Shoreline Foods against Plaintiff. On March 11, 2020, the Court signed Defendants’ proposed judgment. Plaintiff then moved to set aside the judgment, arguing that the Court should have signed Plaintiff’s proposed judgment which memorialized the CCP § 998 offer only. Plaintiff’s motion was procedurally improper, but ultimately correct in its assertion that the Court erroneously signed Defendants’ judgment. The Court set aside the March 11, 2020 judgment on its own motion and signed Plaintiff’s proposed judgment on November 12, 2020. Notice of entry of judgment was filed and served on November 16, 2020.
On October 21, 2020, Plaintiff filed the notice of entry of dismissal of Shoreline. On January 21, 2021, Shoreline filed and served the instant motion for attorney’s fees.
CRC Rule 3.1702(b)(1) provides, “[a] notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court--including attorney's fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.” “[A] notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.” (CRC Rule 8.104(a)(1).)
Shoreline moves for an award of attorney’s fees pursuant to Gov. Code § 12965(b) and CCP §§ 218.5(a), 128.5.
Plaintiff asserts that Shoreline’s motion is untimely under CRC Rule 3.1702(b)(1). Plaintiff relies on Sanabria v. Embrey (2001) 92 Cal.App.4th 422. In Sanabria, the plaintiff voluntarily dismissed certain defendants. The defendants filed their memorandum of costs 170 days after the notice of entry of dismissal and their motion for attorney’s fees 176 days after the notice of entry of dismissal. The plaintiff argued that the motions were untimely, but the trial court disagreed and awarded the defendants their fees and costs. The Court of Appeal reversed, finding that a voluntary dismissal starts the clock of CRC Rule 3.1702(b)(1) (then CRC Rule 870.2), and the memorandum of costs and attorney’s motions were untimely. The Court explained:
A voluntary dismissal is not generally appealable. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2000) ¶ 11:42, p. 11-30.) As such, some cases have speculated, in dicta, that perhaps California Rules of Court, rule 870.2 is inapplicable to motions for attorney fees following voluntary dismissals, and there is therefore no time period within which such motions must be filed. (See Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 706 [75 Cal.Rptr.2d 376].) We are not persuaded by this reasoning. A voluntary dismissal immediately resolves the action as to the dismissed defendant. It entitles the dismissed defendant to costs and sometimes attorney fees as the prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) Although a voluntary dismissal is generally not appealable, it is nevertheless effectively a “judgment” within the meaning of California Rules of Court, rule 2(a). (Cf. Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 98 [80 Cal.Rptr.2d 166] [Cal. Rules of Court, rule 870.2 not applicable to probate court proceedings].) Accordingly, we conclude California Rules of Court, rule 870.2 governs, and the time for filing a motion for attorney fees commences upon service of notice of entry of dismissal.
(Id. at 426-7.)
In reaching this conclusion, the Court analyzed the legislative history of the CRC rule, and found that “[t]wo things are apparent from this history. The first is that California Rules of Court, rule 870.2 was adopted in order to provide time limits within which all motions for attorney fees in civil cases must be made. The second is that any omission in the language of the rule with respect to setting forth time limits for moving for attorney fees after the entry of voluntary dismissal was wholly inadvertent.” (Id. at 428-9.)
In reply, Shoreline argues that a voluntary dismissal does not start the clock for a motion for attorney’s fees. Shoreline contends that Sanabria is inapposite because it does not address CRC Rules 3.1702 and 8.104, and the Court should instead look to Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698. These arguments are unpersuasive. The CRC was renumbered in 2006, but the applicable rules have not substantively changed since Sanabria. Shoreline presents no authority holding the Court’s reasoning in Sanabria does not apply to the renumbered rules.
And as noted in Sanabria, the Court in Exxess merely speculated that a dismissal might not establish a deadline for an attorney’s fees motion because it is not an appealable order. (Exxess, supra 64 Cal.App.4th at 706.) It did not address the issue directly because the motion there was timely filed, within 60 days of the notice of entry of dismissal. (Id.) The Sanabria Court expressly rejected the dicta in Exxess. (Sanabria, supra, 92 Cal.App.4th at 427.)
Shoreline also asserts that the motion is timely with respect to the entry of judgment. Shoreline does not state which judgment it is referring to nor does it show its math. But the motion is untimely under any calculation. It was filed 395 days after the entry of dismissal; 66 days after the notice of entry of judgment between Plaintiff and Defendant Amusement Foods; and 92 days after the notice of entry of dismissal.
The Court finds no good cause to grant an extension of time. (CRC Rule 3.1702(d).) Shoreline has known of its dismissal for more than a year. It filed an improper proposed judgment awarding itself fees and costs, which the Court ultimately had to set aside. Even after that it waited too long to file this motion.
The motion for attorney’s fees is DENIED.
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