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This case was last updated from Los Angeles County Superior Courts on 04/09/2016 at 16:37:55 (UTC).

CITY OF MONROVIA VS PAULINE WHITE, ET AL

Case Summary

On 05/31/2013 CITY OF MONROVIA filed a Property - Other Real Property lawsuit against PAULINE WHITE. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is DONNA FIELDS GOLDSTEIN. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****0809

  • Filing Date:

    05/31/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DONNA FIELDS GOLDSTEIN

 

Party Details

Plaintiff

CITY OF MONROVIA

Defendants

BANK OF AMERICA N.A.

NATIONAL CITY BANK

RMC VANGUARD MORTGAGE CORPORATION

WHITE PAULINE

PNC BANK N.A. SUCCESSOR BY MERGER TO

Cross Defendant

SIZEMORE STEVE

Attorney/Law Firm Details

Plaintiff Attorney

DAPEER ROSENBLIT & LITVAK LLP

Defendant Attorneys

HAIGHT BROWN & BONESTEEL

LAUREL I. HANDLEY

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 11/18/2015
  • Miscellaneous-Other (CLERK'S CERTIFICATION OF RECORD ON APPEAL (SUPPLEMENTAL) ) Filed by Clerk

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  • 10/16/2015
  • Ntc to Prty re fee Clk's Transcpt Filed by Clerk

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  • 09/17/2015
  • Notice (AND REQUEST FOR PREPARATION OF DOCUMENTS OMITTED FROM CLERK'S TRANSCRIPT FOR COURT OF APPEAL, CASE NO.B254080; DECLARATION OF CHARLENE WYNDER ) Filed by Attorney for Plaintiff

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  • 07/16/2015
  • Notice (OF CONTINUANCE OF STATUS CONFERENCE ) Filed by Attorney for Plaintiff

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  • 06/29/2015
  • Statement-Case Management Filed by Attorney for Defendant

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  • 01/15/2015
  • Miscellaneous-Other (CLK'S CERTIFICATION OF RECORD ON APPEAL ) Filed by Clerk

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  • 01/15/2015
  • Miscellaneous-Other (CLERKS'S CERTIFICATION OF RECORD ON APPEAL ) Filed by Clerk

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  • 12/08/2014
  • Notice (CLERK'S CERTIFICATE RE MISSING DOC UMENTS ) Filed by Clerk

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  • 12/08/2014
  • Ntc to Prty re fee Clk's Transcpt Filed by Clerk

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  • 09/03/2014
  • Notice (OF ENTRY OF COURT ORDER RE CASE MANAGEMENT ) Filed by Attorney for Plaintiff

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101 More Docket Entries
  • 07/03/2013
  • Proof of Service (PLAINTIFF'S NOTICE OF MOTION FOR ISSUANCE OF A PRELIMINARY INJUNCTION; ) Filed by Attorney for Plaintiff

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  • 07/03/2013
  • Proof of Service (SUMMONS, COMPLAINT, ALTERNATIVE DISPUTE RESOLUTION (ADR) PACKAGE CIVIL CASE COVER SHEET ) Filed by Attorney for Plaintiff

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  • 07/03/2013
  • Proof of Service (SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET ) Filed by Attorney for Plaintiff

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  • 07/03/2013
  • Proof of Service (OF SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET ) Filed by Attorney for Plaintiff

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  • 07/03/2013
  • Notice (OF CONTINUANCE OF HEARING DATE RE PLAINTIFF'S MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION ) Filed by Attorney for Plaintiff

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  • 06/24/2013
  • Motion (FOR ISSUANCE OF A PRELIMINARY INJUNCTION; ) Filed by Attorney for Plaintiff

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  • 05/31/2013
  • Notice-Case Management Conference

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  • 05/31/2013
  • Complaint

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  • 05/31/2013
  • Summons Filed Filed by Attorney for Plaintiff

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  • 05/31/2013
  • Notice (of OSC re trial court delay reduction ) Filed by Court

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Tentative Rulings

Case Number: EC060809    Hearing Date: December 18, 2020    Dept: D

TENTATIVE RULING

Calendar: 14

Date: 12/18/2020

Case No: EC060809 Trial Date: None Set

Case Name: City of Monrovia v. White, et al.

DEMURRER

MOTION TO STRIKE

[CCP §430.10 et. seq.]

Moving Party: Defendant Ephiphany Limited LLC

Responding Party: Plaintiff City of Monrovia

RELIEF REQUESTED:

Sustain demurrer to Complaint

Strike allegations of Complaint

CAUSES OF ACTION: from Complaint

1) Public Nuisance

2) Municipal Code Violations

3) Declaratory Relief

SUMMARY OF FACTS:

Plaintiff the City of Monrovia alleges that unpermitted grading and construction activity is taking place on property owned by defendant Pauline White, and seeks to enjoin that activity.

On October 28, 2019, the City filed an Amendment to Complaint, substituting the true name of Ephiphany Limited, LLC for the fictitious name of Doe 1.

ANALYSIS:

Procedural

Untimely

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”

Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Here, the complaint was personally served on defendant Ephiphany on August 24, 2020. Thirty days from this date would have been September 23, 2020. The demurrer and motion to strike were served on October 13, 2020, and filed on October 16, 2020, so twenty/twenty-three days late, beyond any permissible maximum extension for response, which, in light of the failure to meet and confer, was likely not obtained by defendant. The court will consider whether the demurrer will be overruled and the motion to strike will be denied as untimely.

 

Meet and Confer

The declaration submitted with the demurrer indicates that defendant did not meet and confer with plaintiff before filing the demurrer and motion to strike. The declarations submitted state, “Meet and confer attempts are wastes of time. Therefore, I was unable to discuss this demurrer prior to filing.” [White Decl., p. 15:7-8]. Defendant evidently sent a letter enclosing the demurrer and motion to strike, and indicating they had already been filed. [Ex. A].

CCP § 430.41 requires that before filing a demurrer, the demurring party must meet and confer:

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.  (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  (2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.  (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:    (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.    (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.  (4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

A similar meet and confer requirement applies to motions to strike under CCP § 435.5.

Defendant failed to comply with these statutes, which include no exception for purported futility, and defendant failed to identify all of the specific causes of action that it believed were subject to demurrer and identify with legal support the basis of the deficiencies. The court would be within its discretion to continue the matter and require the parties to meet and confer, but requires the parties to meet and confer and for defendant to submit the required declaration on or before the hearing date, before the matter will be heard.

 

Substantive

Defendant Ephiphany argues that there is no specific pleading against Ephiphany, but only allegations that defendants were agents, joint venturers, etc., and that Ephiphany was created in 2017, long after this litigation commenced, and that since it was not in existence at any of the times alleged in the complaint, it would be impossible for it to have engaged in any of the alleged activities.

The complaint names Doe parties, and alleges that all parties were the agents, principals, partners, associates, joint venturers, employees or conspirators with the other defendants. [Complaint, paras. 7, 8]. The charging allegations are made as to “Defendants,” and include allegations that defendants failed to abate violations, repeatedly failed and refused to comply with applicable law, and that defendants “shall and will maintain” the conditions and violations “in the future unless the Court enjoins and prohibits such conduct.” [Complaint, paras. 16, 23, 24]. This appears sufficient to allege conduct on the part of the moving defendant.

As argued in the opposition, the claims brought by the City for nuisance are brought under the recognized principle, and one codified in the Monrovia Municipal Code, that a party which maintains an alleged nuisance is a proper party to a claim to abate that nuisance. The City indicates that moving defendant was added to this action because it has become the record owner of the subject property pursuant to a Quitclaim Deed executed by White in February of 2017, and recorded on June 28, 2019. [RFJN, Ex. 1]. Defendant does not deny that it is now has some interest in the subject property.

Monrovia Municipal Code section 8.12.020 defines a “Responsible Person” to include;

“Any person, whether as an owner as defined in this chapter, or otherwise, that allows, causes, creates, maintains, or permits a public nuisance, or any violation of the code or county or state law, or regulation thereof, to exist or continue, by any act or the omission of any act or duty.”

[RFJN, Ex. 5, emphasis added].

Under Monrovia Municipal Code section 8.12.060:

(A) Responsible persons shall not shall allow, cause, create, maintain or permit a public nuisance to exist on their premises. If public nuisances do arise or occur, responsible persons shall promptly abate them by rehabilitation, demolition or repair, removal or termination with all required city approvals, permits and inspections, when applicable.

(B) The city may exercise its administrative, civil/injunctive and criminal remedies, or any one or combination of these remedies, to compel responsible persons to abate a public nuisance when, in its judgment, such persons have not completed nuisance abatement actions in a timely or proper manner, or when responsible persons have failed to prevent an occurrence or recurrence of a public nuisance.”

[RFJN, Ex. 6, emphasis added].

Accordingly, any argument that the moving defendant did not create the alleged nuisance does not defeat the complaint, and the demurrer on this ground is overruled.

First Cause of Action—Nuisance

Defendant argues that the pleading fails to sufficiently plead a nuisance, but that this is a situation where the same wall which is the subject of this action crosses multiple properties, but only defendants’ property is the subject of action by the City. Defendant also argues that the factually erroneous allegations that defendants constructed retaining walls, and that there has been excavation work and unpermitted grading do not support a nuisance claim.

Defendant fails to cite any legal authority in support of this argument.

As pointed out in the opposition, the complaint identifies several violations of the Monrovia Municipal Code as existing at the subject property, including failing to obtain permits. [Complaint, paras. 29, 44].

Moreover, Civil Code § 3479 defines “nuisance” as follows:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

The Complaint alleges that the City observed grading work, excavation and the presence of unpermitted retaining walls which included drains flowing down the hillside at the subject property and discovered the condition as a result of numerous complaints of the hazardous condition impacting other properties. [Complaint, paras. 10, 18-19]. Sufficient allegations are included in the complaint to support a nuisance claim under both the state and municipal law, and the demurrer is overruled.

Second Cause of Action—Municipal Code Violations

Defendant argues that the Monrovia Municipal Code has been preempted by the State law definition of nuisance. The arguments seems to be both that the state nuisance definition, set forth above, conflicts with the municipal code, but also overlaps it. As discussed above, the pleading is sufficient to fall within the Civil Code definition.

As argued in the opposition, the City has long been authorized to declare a particular activity to be a nuisance. In City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, the Second District set forth the doctrine as follows:

“[A] nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. … [T]o rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.” (Beck Development Co. v.  [*1164] . (1996) 44 Cal.App.4th 1160, 1206–1207 [52 Cal. Rptr. 2d 518].) “[W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made … .” (Id. at p. 1207.) “‘Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.’ [Citations.]” (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382 [13 Cal. Rptr. 2d 735], fn. omitted.)”

City of Claremont, at 1163-1164.

Under Government Code § 38771, “By ordinance the city legislative body may declare what constitutes a nuisance.”

The opposition cites case law under which plaintiff’s argument was rejected. See Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 255 (stating, with respect to Civil Code section 3479, “That definition is not at issue. Violations of a planning code constitute a public nuisance.”); Clary v. City of Crescent (2017) 11 Cal.App.5th 274, 289, and cases cited therein.

The demurrer to this cause of action accordingly is overruled.

Defendant then makes a general argument that the City had no standing and by case law cannot bring this action, as a city using private counsel.

This argument has been raised and rejected numerous times in this action. Most recently, on December 4, 2020, this court denied a motion to disqualify counsel for the City, based on a detailed analysis of the issue, and ruled, in pertinent part:

“The Court of Appeal has already determined that there is no impropriety in this matter in the representation of the City by private counsel on a non-contingency basis under People ex rel. Clancy v. Superior Court(1985) 39 Cal.3d 740, and that the trial court has properly awarded fees to the City based on a lodestar analysis. This Court recognizes and follows these determinations as the law of the case. Even if those determinations were not binding on this Court, the Court would determine that there are no grounds established for disqualification of plaintiff’s counsel here, as there is no contingency agreement with the private law firm in this matter, and uncontroverted evidence has been submitted that the City has retained control of this litigation. [Markus Decl. ¶ ¶ 16, 19].”

The court will again find this is the law of the case, and that the argument lacks merit, and the demurrer on this ground is overruled.

 

Motion to Strike

The motion to strike seeks to strike various allegations of the pleading, arguing that certain statements are not facts but conclusions, do not meet the causes of action for nuisance or public nuisance, and seek damages not permitted in an abatement action. It is also vaguely argued that the City cannot pursue abatement with privately retained counsel, an argument which, as discussed above, will again be rejected by this court.

These arguments do not appear to be appropriately made on a motion to strike, other than if the motion had pointed to particular damage allegations not permitted as a matter of law in connection with the subject action, which the motion fails to do. The motion accordingly is denied.

RULING:

The declarations submitted in support of the motions show that defendant failed to meet and confer prior to filing the motions, as required under CCP § 430.41 and 435.5. The parties are ordered to engage in the required meet and confer before the matter will be called for hearing. Defendant is ordered to prepare the required declaration and file it on eCourt before the matter will be called for hearing.

The Court notes that the demurrer and motion to strike are untimely. Defendant Ephiphany Limited, LLC is cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Demurrer to Complaint is OVERRULED.

Motion to Strike Complaint is DENIED.

Ten days to answer.

The court in its discretion has considered the untimely Reply.

Objection to Plaintiff’s Untimely Opposition is OVERRULED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC060809    Hearing Date: December 04, 2020    Dept: D

TENTATIVE RULING

Calendar: 20

Date: 12/4/20

Case No: EC 060809 Trial Date: None Set

Case Name: City of Monrovia v. White, et al.

MOTION TO DISQUALIFY COUNSEL

Moving Party: Defendant Pauline White

Responding Party: Plaintiff the City of Monrovia

RELIEF REQUESTED:

Order disqualifying counsel for the City of Monrovia

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff the City of Monrovia alleges that unpermitted grading and construction activity is taking place on property owned by defendant Pauline White, and seeks to enjoin that activity.

Defendant White has filed a cross-complaint against the City seeking indemnity, and alleging various causes of action, including for abuse of process, trespass, and violation of her Fourth Amendment and privacy rights.

The City prevailed on a special motion to strike White’s cross-complaint under CCP § 425.16, and successfully opposed White’s subsequent anti-SLAPP motion against the City’s complaint. White appealed from the orders granting the City’s anti-SLAPP motion and denying her anti-SLAPP motion, as well as from the order awarding the City its attorneys’ fees in successfully opposing her anti-SLAPP motion.

The court of appeal, in an unpublished decision filed on May 31, 2016, affirmed the order denying White’s anti-SLAPP motion and the order awarding the City its attorney fees in opposing that motion. The court of appeal affirmed in part and reversed in part the order granting the City’s anti-SLAPP motion.

The Disposition of that appeal is as follows:

“The order granting the City’s anti-SLAPP motion is reversed in part as to causes of action 7, 8, 9, and 16 of the cross complaint. That order is also reversed in part as to cause of action 21, to the extent that it is premised on allegations that the City unlawfully entered White’s property and violated her Fourth Amendment Rights and her rights to privacy. In all other respects, the order is affirmed. The order denying White’s anti-SLAPP motion is affirmed as is the order awarding the City its attorney fees in opposing White’s anti-SLAPP motion. The City is awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award.”

The seventh cause of action is for abuse of process, the eighth cause of action is for violation of Fourth Amendment rights, the ninth cause of action is for violation of right of privacy, the sixteenth cause of action is for trespass, and the twenty-first cause of action alleges that as the result of the City’s conduct in the previously alleged causes of action, White has suffered emotional distress and loss of income.

On March 17, 2017, the court, Judge Stewart presiding, heard several motions in this matter, including motions brought by the City for attorney fees on appeal, and a demurrer to the cross-complaint, and motions brought by defendant White for leave to amend the cross-complaint, relief to hear defendant’s motion to strike costs, to dismiss the complaint or for JOP and to expunge lis pendens. The court’s tentative ruling was published to counsel and the parties on the court’s website on February 24, 2017. At the hearing on March 17, 2017, the court’s tentative became the order of the court.

The demurrer to the cross-complaint filed by cross-defendants City, Laurie Lile and Steve Sizemore was sustained without leave to amend on the ground the pleading failed to state facts showing that plaintiff complied with the Government Claims Act, and plaintiff did not show that she could not show that she had complied or could comply with the Act.

Cross-complainant White’s motion for leave to amend was denied.

Defendant White’s motion to dismiss the complaint was denied.

Defendant White’s motion to expunge lis pendens was denied, including the requests for other remedies in that motion such as vacating a preliminary injunction or returning sanctions paid.

Plaintiff the City’s motion for attorneys’ fees it incurred to prevail in the appeal of the trial court’s anti-SLAPP orders was granted and the court awarded the sum requested, $102,669.00.

Defendant White’s motion for relief from her failure to file a motion to tax costs from plaintiff’s memorandum of costs on appeal was granted. The court ordered “the Court will grant the Defendant’s motion for relief from her failure to seek an extension of time under CRC Rule 3.1700 to file a motion to tax costs.”

As noted above, the matter was heard, and the court’s tentative ruling became the order of the court. Counsel was ordered to give notice on their respective motions. The minute order then states:

“OUT OF THE PRESENCE OF COUNSEL:

Case Management Conference is placed off-calendar.

The Judge disqualifies himself from further proceedings in this case.

A copy of this minute order is mailed to parties.”

White appealed the court’s orders of that date. On September 1, 2017 the court of appeal issued an order dismissing the purported appeals from the orders denying White’s motion to dismiss, denying White’s motion to expunge lien and sustaining the City’s demurrer to the cross-complaint. The order states, “The appeal from the order awarding attorney fees may proceed.”

In January of 2018, White filed with the court of appeal a motion to stay the appeal to permit the trial court to hear a motion to vacate the order for attorney fees that was the subject of the appeal. On January 11, 2018, the court of appeal issued the following order:

“The court has received Appellant Pauline White's motion to stay the appeal and the supplemental memoranda submitted by White and by Respondent City of Monrovia. The stated ground for White's motion to stay is that a motion to vacate the order for attorney fees that is the subject of her appeal is currently pending in the trial court, and the ruling on that motion could moot her appeal. The parties submitted supplemental memoranda in response to the court's request that the parties address the issue of whether the trial court has jurisdiction to rule on that motion in light of the pending appeal. (See Code Civ. Proc., § 916.) The parties agree that, despite the appeal, the trial court continues to have jurisdiction to vacate an order that is void on its face. The parties disagree as to whether the order at issue here is void or simply voidable. There appears to be a split in authority as to whether or not the decision of a judge who is disqualified is void or simply voidable. (See Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940; Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 525; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 779-780.) Ruling on White's motion to stay on the ground asserted would require the court to decide whether the order at issue was void or voidable or neither. Such a ruling would involve resolution of a disputed legal issue and could require interpretation of the record in a manner affecting the merits of the appeal. The court declines to make such a ruling in the context of a motion to stay the appeal. The court therefore denies White's motion, without prejudice to the parties addressing the issue of mootness and the status of proceedings in the trial court in their briefing on the merits.”

On March 2, 2018, the court called for hearing a motion by defendant White to vacate the rulings of March 17, 2017 by Judge Stewart as void/voidable. The court ruled that the motion was stayed, as moving party had appealed the rulings sought to be vacated. The court ordered: “Since the determination sought is one affected by and embraced by the orders appealed from the matter is stayed until the full resolution of the appeal.”

The court on June 29, 2018 heard a motion brought by White to Stay Proceedings Pending Appeal. The court granted the motion in part and denied the motion in part. The court order states:

“The court recognizes that the pending Motion to Vacate Rulings and Motion as Void/Voidable are subject to the automatic stay, so the motion is GRANTED as to those pending motions, and the hearings on those motions are stayed until the full resolution of the appeal.

As to the motion to enforce liability on civil deposit and for a court order directing defendant to pay interest on the amount of bond for delay caused by appeal filed by defendant, and the Motion to tax costs, the motion to stay these two matters is DENIED. Defendant White has failed to establish that these matters are subject to the automatic stay.

As to the motion to Amend the Cross-complaint, the court will hear argument with respect to why defendant White, based on defendant’s arguments in this motion, is not inclined to voluntarily withdraw that motion. The court is inclined to DENY the motion to stay based on the arguments made in the moving papers and is inclined to hear the motion as scheduled.”

On July 6, 2018, the motions were scheduled to be heard, and the court issued its detailed tentative ruling. At the hearing, counsel informed the parties and counsel that it had received an appeal from its ruling made on June 29, 2018. Counsel for plaintiff the City stated that the writ was denied, and showed the court its notification of such. Defendant represented to the court that there were two pages omitted from the filing, so that there were procedural defects, and requested a continuance.

The minute order states, “Defendant’s oral motion for continuance to address the procedural defects in the application for Writ is argued and GRANTED.” The matter was continued to July 20, 2018.

At that hearing, defendant White represented that she had prepared another writ, which would be shortly filed and would seek to stay proceedings in the trial court pending the ruling on appeal of the award of attorneys’ fees. The minute order states, “Court informs counsel that it has received an Order from the Second Appellate District in Case B272713 dated July 19, 2018 imposing a temporary stay in this case, pending the resolution of the writ of supersedeas, filed July 16, 2018.” The matters were accordingly continued pending the resolution of the petition for writ.

On January 30, 2019, the court of appeal issued its unpublished opinion in the appeal, affirming the trial court’s order awarding the City attorney fees on appeal. The City was awarded its costs on appeal.

On April 18, 2019, the Remittitur was filed with Los Angeles Superior Court.

On November 1, 2019, the court was scheduled to hear defendant’s motion to vacate the rulings made by Judge Stewart on March 17, 2017. There was evidently a representation that there could be a possible writ/appeal filed by defendant White. The matter was continued to November 26, 2019 for a status conference regarding Status of Defendant Pauline White’s Writ/Appeal.

On November 26, 2019, the court informed the parties that defendant/cross-complainant White’s Writ had been denied, and jurisdiction had been returned to this court. The matters which had been stayed were then reset for hearing.

Various matters previously filed, and matters filed since that time, had been stayed pending the resolution of defendant’s Section 170.1 filing, or appellate decisions, including a writ defendant indicated she had taken to the California Supreme Court.

Defendant evidently filed a petition for review with the Supreme Court in December 2019. On February 11, 2020, the petition for review was denied in the Supreme Court.

The court set the outstanding motions for hearing, and the hearing date for the motions, including the instant motion to disqualify counsel, was continued several times, with the matters ultimately being heard on July 24, 2020.

The court published its detailed Tentative Ruling on the evening of Thursday, July 23, 2020.

At the hearing, the tentative rulings were argued and became the order of the court.

Defendant then filed a motion to reconsider the rulings made on July 24, 2020, and specifically to set various motions for hearing AFTER the court heard and determined defendant’s motion to disqualify counsel.

The motion to reconsider was heard on October 30, 2020. The court published its tentative ruling on the evening of Thursday, October 29, 2020, which was to deny the motion.

At the hearing, the tentative ruling did not become the order of the court, the court ruling that, “Motion for reconsideration is moot in that the Court to re-hear cases previously set on 7/24/2020.” The court stayed enforcement of the 7/24/2020 orders and set the motion to disqualify for this date. The minute order further states:

“Court has received Plaintiff City of Monrovia's Opposition to Motion to Disqualify Counsel; Declaration of Eric P. Markus filed 1/06/2020. Defendant Paula White's Reply is to be filed by Code with courtesy copies to chambers.

Order to Show Cause re: Setting of Motion from 7/24/2020. There shall be no further briefing, except Defendant Pauline White's Reply.”

Defendant White has now filed a reply to the opposition to the motion for reconsideration, which has been considered by the court.

ANALYSIS:

Defendant White seeks an order disqualifying counsel for plaintiff the City. Defendant relies on CCP § 128 (a)(5), pursuant to which the trial court has the power “(5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”

Defendant argues that the City here has hired private counsel which has filed and maintained this litigation only for attorney’s fees, when this civil action, to abate a public nuisance may be brought by a district attorney or the city attorney. Defendant relies on CCP § 731, which provides:

“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists. Each of those officers shall have concurrent right to bring an action for a public nuisance existing within a town or city. The district attorney, county counsel, or city attorney of any county or city in which the nuisance exists shall bring an action whenever directed by the board of supervisors of the county, or whenever directed by the legislative authority of the town or city.”

Defendant argues that the City here is represented by a private law firm, not the district attorney or city attorney.

As pointed out in the opposition, the court of appeal has evidently already addressed and rejected these arguments. As noted above, the court of appeal in connection with the first appeal in this matter (“Monrovia I”), affirmed an order denying White’s anti-SLAPP motion, as well as the order awarding the City its attorney fees in opposing that motion, and ordered the City awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award. [RFJN, Ex. 1, pp. 10, 11]. In connection with the second appeal in this matter, which affirmed the fees award to the City on the first appeal (“Monrovia II”), White’s contentions included that “the City cannot recover fees paid to private counsel.” [RFJN, Ex. 2, p. 4].

The court of appeal in Monrovia II addressed the issue as follows:

“III. City's use of private counsel

The City was not precluded from retaining private counsel to prosecute its public nuisance action against White. Contrary to White's assertion, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (Clancy) does not prohibit the City from doing so. In that case, the California Supreme Court held that the City of Corona could not retain outside counsel, on a contingency fee basis, to prosecute a public nuisance action against an adult bookstore. (Id. At pp. 747-748.) The high court reasoned that the city's contingent fee arrangement with a private attorney was inappropriate because it gave the attorney a financial interest in the outcome of the case and was "antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public nuisance abatement action." (Id. at p. 750.)

The City's attorneys in this case were not retained on a contingency fee basis, as is evident from the billing statements and declaration in support of the City's motion for attorney fees. Clancy accordingly is inapposite.

[RFJN, Ex. 2, p. 6].

The court of appeal went on to reject defendant’s argument that the lodestar standard is not the appropriate standard to be applied in this matter in connection with attorney’s fees awards:

“The record shows that that the trial court applied the lodestar method in determining that the City was entitled to $ 102,669 in attorney fees, based upon a total of 238.8 hours spent by the City's attorneys in responding to White's prior consolidated appeals, her petition for rehearing, the subsequent petition for review, and in preparing for appearing at the hearing on the City's motion for attorney fees. The trial court specifically found the hourly rates charged by the City's attorneys to be reasonable.

White contends the attorney fee award should have been based solely on the hourly rates actually billed to the City under its contract with its attorneys; however, "[t]here is no requirement that the reasonable market rate mirror the actual rate billed." (Syers Properties 111, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701-702.) " 'The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]' [Citation.f' (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260; accord Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

[RFJN, Ex. 2, p. 7].

It would appear that the issues were addressed by the court of appeal, and the law of the case is now that the use of a private law firm in this matter is not improper, and the potential that private counsel may recover fees in this matter based on a lodestar standard is not improper. As argued in the opposition, under the doctrine of law of the case, “the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, quoting, 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 737, pp. 705-707.

The motion to disqualify counsel, based on these same arguments, accordingly is denied.

Even if the court were to consider the issues raised by the motion anew, it would appear that a reading of the case law relied upon, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, would not warrant granting the motion.

It is held that the issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility, and the trial court’s determination will not be disturbed unless there is an abuse of discretion. Forrest v. Baeza (1997) 58 Cal.App.4th 65.

Here, plaintiff’s argument is that the private law firm representing the City here should not be permitted to do so, but a district attorney or city attorney should be prosecuting the action, which counsel would be limited in the fees which could be claimed, or that there is somehow a conflict of interest created by the fact that the private law firm may pursue lodestar fees which could exceed the contract amount between the firm and the City, resulting in a windfall to the law firm. The California Supreme Court in Clancy recognized that disqualifying an attorney is “extraordinary relief,” but held it was appropriate there because the lawyer was retained as an independent contractor to represent the City in a nuisance abatement action on a contingency basis:

“In the case at bar, Clancy has an interest in the result of the case: his hourly rate will double if the City is successful in the litigation. Obviously, this arrangement gives him an interest extraneous to his official function in the actions he prosecutes on behalf of the City.”

Clancy, at 743, 747-748.

The Court based the holding on the facts of the case and the effect of the contingency arrangement, and noted, “Nothing we say herein should be construed as preventing the government, under appropriate circumstances, from engaging private counsel.” Clancy, at 749.

The Clancy case does not provide grounds to disqualify counsel in this case, where counsel not proceeding on a contingency basis. [See Markus Decl. ¶ 16].

There are no circumstances here giving rise to some lack of neutrality on the part of counsel which would warrant the extraordinary relief of disqualification.

Moreover, to the extent defendant argues that this is a situation where there is no control being asserted by the City over the actions of private counsel, this type of control is now required in connection with the engagement of private counsel under certain contingency agreements, which is not at issue here. See County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35. Again, this is not a case involving a contingency agreement. [Markus Decl. ¶ 16]. Moreover, the City has submitted evidence showing that the City has retained control of this litigation. [Markus Decl. ¶ 19].

Defendant in the reply does not address the ruling of the court of appeal in Monrovia II and the impact on this case going forward, including that the court of appeal has already determined the issue in this case, after consideration of defendant’s arguments again asserted here, and which determination now governs in this action. The reply argues that the this court cannot ignore the statutory language and in equity should not recognize private counsel in this matter. There is no case authority cited under which this court should not follow the holding of the California Supreme Court in Clancy interpreting the statute, or the court of appeal’s interpretation and application of the holding in Clancy as it applies to the specific facts of this case.

The court under these circumstances will not interfere with plaintiff’s choice of counsel, and the motion is denied.

RULING:

Motion to Disqualify Plaintiff’s Counsel is DENIED. The Court of Appeal has already determined that there is no impropriety in this matter in the representation of the City by private counsel on a non-contingency basis under People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, and that the trial court has properly awarded fees to the City based on a lodestar analysis. This Court recognizes and follows these determinations as the law of the case. Even if those determinations were not binding on this Court, the Court would determine that there are no grounds established for disqualification of plaintiff’s counsel here, as there is no contingency agreement with the private law firm in this matter, and uncontroverted evidence has been submitted that the City has retained control of this litigation. [Markus Decl. ¶ ¶ 16, 19].

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC060809    Hearing Date: October 30, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 21

Date: 10/30/2020

Case No. EC 060809 Trial Date: None Set

Case Name: City of Monrovia v. White, et al.

MOTION FOR RECONSIDERATION

[CCP §1008(a)]

Moving Party: Defendant Pauline White

Responding Party: Plaintiff City of Monrovia

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff the City of Monrovia alleges that unpermitted grading and construction activity is taking place on property owned by defendant Pauline White, and seeks to enjoin that activity.

Defendant White has filed a cross-complaint against the City seeking indemnity, and alleging various causes of action, including for abuse of process, trespass, and violation of her Fourth Amendment and privacy rights.

The City prevailed on a special motion to strike White’s cross-complaint under CCP § 425.16, and successfully opposed White’s subsequent anti-SLAPP motion against the City’s complaint. White appealed from the orders granting the City’s anti-SLAPP motion and denying her anti-SLAPP motion, as well as from the order awarding the City its attorneys’ fees in successfully opposing her anti-SLAPP motion.

The court of appeal, in an unpublished decision filed on May 31, 2016, affirmed the order denying White’s anti-SLAPP motion and the order awarding the City its attorney fees in opposing that motion. The court of appeal affirmed in part and reversed in part the order granting the City’s anti-SLAPP motion.

The Disposition of that appeal is as follows:

“The order granting the City’s anti-SLAPP motion is reversed in part as to causes of action 7, 8, 9, and 16 of the cross complaint. That order is also reversed in part as to cause of action 21, to the extent that it is premised on allegations that the City unlawfully entered White’s property and violated her Fourth Amendment Rights and her rights to privacy. In all other respects, the order is affirmed. The order denying White’s anti-SLAPP motion is affirmed as is the order awarding the City its attorney fees in opposing White’s anti-SLAPP motion. The City is awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award.”

On March 17, 2017, the court, Judge Stewart presiding, heard several motions in this matter, including motions brought by the City for attorney fees on appeal, and a demurrer to the cross-complaint, and motions brought by defendant White for leave to amend the cross-complaint, relief to hear defendant’s motion to strike costs, to dismiss the complaint or for JOP and to expunge lis pendens. The court’s tentative ruling was published to counsel and the parties on the court’s website on February 24, 2017. At the hearing on March 17, 2017, the court’s tentative became the order of the court.

The demurrer to the cross-complaint filed by cross-defendants City, Laurie Lile and Steve Sizemore was sustained without leave to amend on the ground the pleading failed to state facts showing that plaintiff complied with the Government Claims Act, and plaintiff did not show that she could not show that she had complied or could comply with the Act.

Cross-complainant White’s motion for leave to amend was denied.

Defendant White’s motion to dismiss the complaint was denied.

Defendant White’s motion to expunge lis pendens was denied, including the requests for other remedies in that motion such as vacating a preliminary injunction or returning sanctions paid.

Plaintiff the City’s motion for attorneys’ fees it incurred to prevail in the appeal of the trial court’s anti-SLAPP orders was granted and the court awarded the sum requested, $102,669.00.

Defendant White’s motion for relief from her failure to file a motion to tax costs from plaintiff’s memorandum of costs on appeal was granted. The court ordered “the Court will grant the Defendant’s motion for relief from her failure to seek an extension of time under CRC Rule 3.1700 to file a motion to tax costs.”

As noted above, the matter was heard, and the court’s tentative ruling became the order of the court. Counsel was ordered to give notice on their respective motions. The minute order then states:

“OUT OF THE PRESENCE OF COUNSEL:

Case Management Conference is placed off-calendar.

The Judge disqualifies himself from further proceedings in this case.

A copy of this minute order is mailed to parties.”

White appealed the court’s orders of that date. On September 1, 2017 the court of appeal issued an order dismissing the purported appeals from the orders denying White’s motion to dismiss, denying White’s motion to expunge lien and sustaining the City’s demurrer to the cross-complaint. The order states, “The appeal from the order awarding attorney fees may proceed.”

In January of 2018, White filed with the court of appeal a motion to stay the appeal to permit the trial court to hear a motion to vacate the order for attorney fees that was the subject of the appeal. On January 11, 2018, the court of appeal issued the following order:

“The court has received Appellant Pauline White's motion to stay the appeal and the supplemental memoranda submitted by White and by Respondent City of Monrovia. The stated ground for White's motion to stay is that a motion to vacate the order for attorney fees that is the subject of her appeal is currently pending in the trial court, and the ruling on that motion could moot her appeal. The parties submitted supplemental memoranda in response to the court's request that the parties address the issue of whether the trial court has jurisdiction to rule on that motion in light of the pending appeal. (See Code Civ. Proc., § 916.) The parties agree that, despite the appeal, the trial court continues to have jurisdiction to vacate an order that is void on its face. The parties disagree as to whether the order at issue here is void or simply voidable. There appears to be a split in authority as to whether or not the decision of a judge who is disqualified is void or simply voidable. (See Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940; Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 525; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 779-780.) Ruling on White's motion to stay on the ground asserted would require the court to decide whether the order at issue was void or voidable or neither. Such a ruling would involve resolution of a disputed legal issue and could require interpretation of the record in a manner affecting the merits of the appeal. The court declines to make such a ruling in the context of a motion to stay the appeal. The court therefore denies White's motion, without prejudice to the parties addressing the issue of mootness and the status of proceedings in the trial court in their briefing on the merits.”

On March 2, 2018, the court called for hearing a motion by defendant White to vacate the rulings of March 17, 2017 by Judge Stewart as void/voidable. The court ruled that the motion was stayed, as moving party had appealed the rulings sought to be vacated. The court ordered: “Since the determination sought is one affected by and embraced by the orders appealed from the matter is stayed until the full resolution of the appeal.”

The court on June 29, 2018 heard a motion brought by White to Stay Proceedings Pending Appeal. The court granted the motion in part and denied the motion in part. The court order states:

“The court recognizes that the pending Motion to Vacate Rulings and Motion as Void/Voidable are subject to the automatic stay, so the motion is GRANTED as to those pending motions, and the hearings on those motions are stayed until the full resolution of the appeal.

As to the motion to enforce liability on civil deposit and for a court order directing defendant to pay interest on the amount of bond for delay caused by appeal filed by defendant, and the Motion to tax costs, the motion to stay these two matters is DENIED. Defendant White has failed to establish that these matters are subject to the automatic stay.

As to the motion to Amend the Cross-complaint, the court will hear argument with respect to why defendant White, based on defendant’s arguments in this motion, is not inclined to voluntarily withdraw that motion. The court is inclined to DENY the motion to stay based on the arguments made in the moving papers and is inclined to hear the motion as scheduled.”

On July 6, 2018, the motions were scheduled to be heard, and the court issued its detailed tentative ruling. At the hearing, counsel informed the parties and counsel that it had received an appeal from its ruling made on June 29, 2018. Counsel for plaintiff the City stated that the writ was denied, and showed the court its notification of such. Defendant represented to the court that there were two pages omitted from the filing, so that there were procedural defects, and requested a continuance.

The minute order states, “Defendant’s oral motion for continuance to address the procedural defects in the application for Writ is argued and GRANTED.” The matter was continued to July 20, 2018.

At that hearing, defendant White represented that she had prepared another writ, which would be shortly filed and would seek to stay proceedings in the trial court pending the ruling on appeal of the award of attorneys’ fees. The minute order states, “Court informs counsel that it has received an Order from the Second Appellate District in Case B272713 dated July 19, 2018 imposing a temporary stay in this case, pending the resolution of the writ of supersedeas, filed July 16, 2018.” The matters were accordingly continued pending the resolution of the petition for writ.

On January 30, 2019, the court of appeal issued its unpublished opinion in the appeal, affirming the trial court’s order awarding the City attorney fees on appeal. The City was awarded its costs on appeal.

On April 18, 2019, the Remittitur was filed with Los Angeles Superior Court.

On November 1, 2019, the court was scheduled to hear defendant’s motion to vacate the rulings made by Judge Stewart on March 17, 2017. There was evidently a representation that there could be a possible writ/appeal filed by defendant White. The matter was continued to November 26, 2019 for a status conference regarding Status of Defendant Pauline White’s Writ/Appeal.

On November 26, 2019, the court informed the parties that defendant/cross-complainant White’s Writ had been denied, and jurisdiction had been returned to this court. The matters which had been stayed were then reset for hearing.

Various matters previously filed, and matters filed since that time, have been stayed pending the resolution of defendant’s Section 170.1 filing, or appellate decisions, including a writ defendant indicated she had taken to the California Supreme Court.

It appears from the appellate docket that defendant filed a petition for review with the Supreme Court in December 2019. On February 11, 2020, the petition for review was denied in the Supreme Court.

The court set the outstanding motions for hearing, and the hearing date was continued several times, with the matters ultimately being heard on July 24, 2020.

The court published its detailed Tentative Ruling on the evening of Thursday, July 23, 2020.

At the hearing, the tentative rulings were argued and became the order of the court. The court ordered counsel for City of Monrovia to give notice.

DECLARATION OF MOVING PARTY includes:

Prior application made No

When the application was made July 24, 2020

What judge Yes

Order or decision made No

New or different facts, circumstances or law No

ANALYSIS: (Reconsideration cannot be granted based on a CCP §473 claim, on matter presented at an earlier hearing, or on a later-enacted statute that is not retroactive; Gilberd v. AC Transit, 32 CA4th 1494, 1500; see also Weil & Brown, Civil Procedure Before Trial, §9:328 et seq.).

Procedural

Motion Untimely

The opposition argues that the motion must be denied as untimely.

CCP § 1008(a) provides, in pertinent part:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”

(Emphasis added).

The Notice of Ruling served by the City was served on July 27, 2020, by electronic service and mail. The City argues that accounting for the two court day extension permitted under CCP section 1010.6, the last day upon which defendant could have timely filed her motion was August 10, 2020. See CCP § 1010.6(a)(4).

The motion was filed and served on August 11, 2020.

However, the argument appears to concede that there is no express agreement between the parties to accept service by electronic service.

Under CCP § 1010.6, governing electronic service of documents:

“(ii) For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has expressly consented to receive electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d). Express consent to electronic service may be accomplished either by (I) serving a notice on all the parties and filing the notice with the court, or (II) manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.”

CCP § 1010.6(a)(2)(A)(ii).

The opposition argues that the City served its Notice of Ruling via One Legal, an electronic court filing service provider, which indicates on its website that anyone filing or serving through its service will be asked to agree to a terms of service agreement, “which will include consent to receive electronic service.” [Markus Decl., paras. 5, 6, Exs. 2, 4]. The City indicates that defendant has a One Legal account. [Markus Decl., para. 6, Ex. 3].

As an initial matter, this is not a case which was filed on or after January 1, 2019. In addition, this showing is insufficient to show that defendant has manifested affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrent provision by defendant of her electronic address with that consent, as required under the statute.

This means that the Notice of Ruling was served by mail on July 27, 2020

Under CCP section 1013, service by mail can be made by depositing the paper to be deposited in the mail, and service

“is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California…”

Ten days plus five calendar days would extend the time to bring the motion to August 11, 2020, which is the date it was served and filed. The motion accordingly is not denied as untimely.

Declaration Incomplete

As noted above, the declaration submitted with the moving papers fails to comply with several requirements applicable to a motion for reconsideration.

CCP § 1008(a) specifically requires:

“The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Subdivision (d) provides that a violation of this section may be punishable as contempt and warrant sanctions. Subdivision (e) provides “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

Here, the declaration fails to identify what application was made before, what order or decisions were made which defendant would like to have reconsidered, and what new or different facts, circumstances or law are claimed to be shown.

This makes it difficult for the court to determine which of the numerous decisions and rulings made at the July 24, 2020 are being challenged.

The motion does not refer to any new law, and the only fact or circumstance mentioned in the declaration are that defendant believed the July 24, 2020 hearing date was to be a hearing to schedule the hearings on the matters, and that defendant had not opposed all motions pending. [While Decl., p. 10: 14-19].

When bringing a motion for reconsideration based on new facts, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690.

The motion fails to explain what counsel would have added to what was apparently extensive argument at the hearing, and fails to specify which of multiple motions she did not have the opportunity to oppose, which would be expected to be made clear in the moving papers. In fact, ordinarily where the argument is that there was a failure to file timely opposition in response to a motion, a copy of the opposition proposed to be considered would be submitted to the court with the motion for reconsideration. The motion for reconsideration pursuant to CCP section 1008 can be denied for failure of defendant to submit the information required in the moving declaration.

Substantive

CCP § 1008(a) provides, in pertinent part:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”

This subdivision further provides:

“For a failure to comply with this subdivision any order made on a subsequent application may be revoked or set aside on ex parte motion.”

Under CCP section 1008, subdivision (e):

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

The trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion. See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.

Defendant argues that the court on July 24, 2020 heard and ruled on a multitude of motions without having given notice that oral argument would occur, that defendant had not opposed some of the motions, since no hearing date had been set and might not have been if any motion was made moot by another ruling. Defendant argues that defendant was not prepared to argue any motion on July 24, 2020, and that instead of continuing the motions, the court improperly went forward, issuing orders and telling defendant to make a motion for reconsideration, which denied defendant due process.

To the extent the argument is that defendant had no notice, defendant argues that the court had previously indicated that defendant’s motion to disqualify plaintiff’s counsel would precede the other motions, and relies on a previous minute order, in which the matters were scheduled with the motion to disqualify being heard first. [Ex. A, Minute Order, November 26, 2019]. There is also one minute order in which the motion to disqualify was continued to dates “as a place holder date,” pending a ruling on defendant’s CCP section 170.1 filing, and other minute orders showing matters were continued to be “re-set” pending an appellate decision. [Ex. B, Minute Order, January 17, 2020; Exhibit C, Minute Order, February 7, 2020; Exhibit D, Minute Order, February 19, 2020; Ex. E, Minute Order, February 27, 2020].

The minute order of March 25, 2020, however, further continuing the matters did not include any language concerning re-setting the motions, but made reference to the conditions created by the spread of Covid-19 and the state of emergency declared by the Governor, and the minute order dated April 3, 2020, actually continuing the motions from April 24, 2020 to the July 24, 2020 hearing date also mentioned those conditions, and expressly ordered “counsel and parties to e-file their briefs in accordance with the original briefing schedule…” [Ex. F, G]. This should have put defendant on notice that the hearing would address those briefs, and the motions on their merits.

It appears that the new circumstances relied upon by defendant here, in effect, that defendant was not aware that the matters would be heard on the date they were set for hearing, when there was no longer any stay in place, are not circumstances which defendant could not have avoided with reasonable diligence in connection with this matter, such as reading the April 3, 2020 minute order. In addition, defendant indicates in her declaration that she did not even have a copy of the tentative ruling until the courtroom attendant gave it to her shortly before the noon recess, as the case was ordered back at the 1:30 p.m. calendar. [White Decl., p. 10:20-23] The Tentative Ruling had been posted the evening before the hearing, however, and there is no explanation why defendant could not have reviewed it earlier.

The opposition argues that while the court had previously set placeholder dates, it had always done so in the context of a pending writ or appeal that the court determined affected its jurisdiction, and the plain language of the April 3, 2020 minute order makes it clear that all motions set for July 24, 2020 would be determined on their merits that day. The City also argues that defendant appeared at the hearing, and argued every motion, so was heard and has not been deprived of due process. The City also indicates that defendant’s representation that she neglected to file written opposition to the City’s motion is untrue, as defendant filed a written opposition to the City’s motion for Appellate Attorneys’ Fees on June 17, 2019, along with objections, to which the City replied, and also filed opposition to the City’s Motion to Enforce Liability on Civil Deposit on June 17, 2019, along with a declaration in support of the opposition. [Marks Decl., para. 9, Ex. 7].

It does not appear from the court’s review of the matters that defendant failed to file written opposition, but actually did so, and without a clear designation by defendant in this motion exactly which of the other motions she claims she did not have the opportunity to oppose, the court would not be inclined to reconsider based a vague argument that opposition was not made, when it appears it was. It would appear that the only gap in the briefing would be that defendant evidently did not file a reply in support of her motion to disqualify the City’s counsel. The City in opposition recognizes this, but argues that defendant’s negligence is not a basis for reconsideration.

Overall, the motion does not appear to establish that reconsideration here is warranted under the statute based on new or different facts, circumstances or law.

In addition, the moving papers do not clearly indicate what the court should be reconsidering with respect to the rulings made that date, so that even if the court were to grant the motion and reconsider its ruling, those rulings would not change. To the extent the argument is that defendant should have been permitted the opportunity to file written opposition or reply for consideration by the court, defendant should have made the arguments that would have been made in such pleadings in this motion, but has not.

At best, the motion for reconsideration seems to argue on the merits that (1) the trial court should have considered in connection with the attorney fees motion by the City defendant’s ability to pay the attorneys’ fees it was awarding to the City. Even if the court were to now consider this argument, as the City argues, defendant has cited no legal authority under which in assessing attorneys’ fees to be awarded in connection with a special motion to strike, a court must consider ability to pay as a factor. Moreover, even if this were an appropriate factor for consideration, defendant has made no showing pursuant to which the court could make a determination concerning defendant’s ability or inability to pay; her declaration does not address this issue or demonstrate any inability to pay.

The motion also appears to argue on the merits that (2) the court should reject the argument in connection with the motion to disqualify that the case of People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 does not apply to warrant disqualification because plaintiff’s counsel in this case claims that they are paid an hourly rate. First, this argument was made by defendant in her moving papers in support of the motion to disqualify filed on December 23, 2019, so does not form a basis for reconsideration. Indeed, defendant has repeatedly made this argument both to this court and to the court of appeal. In addition, even if the court were to reconsider its ruling based on defendant’s argument now, its ruling would not change.

Specifically, the court of appeal in connection with the first appeal in this matter (“Monrovia I”), affirmed an order denying White’s anti-SLAPP motion, as well as the order awarding the City its attorney fees in opposing that motion, and ordered the City awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award. [RFJN, Ex. 1, pp. 10, 11]. In connection with the second appeal in this matter, which affirmed the fees award to the City on the first appeal (“Monrovia II”), White’s contentions included that “the City cannot recover fees paid to private counsel.” [RFJN, Ex. 2, p. 4].

The court of appeal in Monrovia II addressed the issue as follows:

“III. City's use of private counsel

The City was not precluded from retaining private counsel to prosecute its public nuisance action against White. Contrary to White's assertion, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (Clancy) does not prohibit the City from doing so. In that case, the California Supreme Court held that the City of Corona could not retain outside counsel, on a contingency fee basis, to prosecute a public nuisance action against an adult bookstore. (Id. At pp. 747-748.) The high court reasoned that the city's contingent fee arrangement with a private attorney was inappropriate because it gave the attorney a financial interest in the outcome of the case and was "antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public nuisance abatement action." (Id. at p. 750.)

The City's attorneys in this case were not retained on a contingency fee basis, as is evident from the billing statements and declaration in support of the City's motion for attorney fees. Clancy accordingly is inapposite.

The court of appeal went on to reject defendant’s argument that the lodestar standard is not the appropriate standard to be applied in this matter in connection with attorney’s fees

awards:

“The record shows that that the trial court applied the lodestar method in determining that the City was entitled to $ 102,669 in attorney fees, based upon a total of 238.8 hours spent by the City's attorneys in responding to White's prior consolidated appeals, her petition for rehearing, the subsequent petition for review, and in preparing for appearing at the hearing on the City's motion for attorney fees. The trial court specifically found the hourly rates charged by the City's attorneys to be reasonable.

White contends the attorney fee award should have been based solely on the hourly rates actually billed to the City under its contract with its attorneys; however, "[t]here is no requirement that the reasonable market rate mirror the actual rate billed." (Syers Properties 111, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701-702.) " 'The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]' [Citation.f' (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260; accord Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

It would appear that the issues were addressed by the court of appeal, and the law of the case is now that the use of a private law firm in this matter is not improper. Under the doctrine of law of the case, “the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, quoting, 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 737, pp. 705-707.

The motion to disqualify counsel based on the argument defendant claims is new, would accordingly still be denied.

Even if the court were to independently consider and review the case defendant claims should be followed, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, such a review would not warrant granting the motion to disqualify counsel.

It is held that the issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility, and the trial court’s determination will not be disturbed unless there is an abuse of discretion. Forrest v. Baeza (1997) 58 Cal.App.4th 65.

Here, plaintiff’s argument is that the private law firm representing the City here should not be permitted to do so, but a district attorney or city attorney should be prosecuting the action, which counsel would be limited in the fees which could be claimed, or that there is somehow a conflict of interest created by the fact that the private law firm may pursue lodestar fees which could exceed the contract amount between the firm and the City, resulting in a windfall to the law firm. The California Supreme Court in Clancy recognized that disqualifying an attorney is “extraordinary relief,” but held it was appropriate there because the lawyer retained as an independent contractor to represent the City in a nuisance abatement action on a contingency basis:

“In the case at bar, Clancy has an interest in the result of the case: his hourly rate will double if the City is successful in the litigation. Obviously, his arrangement gives him an interest extraneous to his official function in the actions he prosecutes on behalf of the City.”

Clancy, at 743, 747-748.

The Court based the holding on the facts of the case and the effect of the contingency arrangement, and noted, “Nothing we say herein should be construed as preventing the government, under appropriate circumstances, from engaging private counsel.” Clancy, at 749.

The Clancy case does not provide grounds to disqualify counsel in this case, where counsel is not proceeding on a contingency basis.

There are no circumstances here giving rise to some lack of neutrality on the part of counsel which would warrant the extraordinary relief of disqualification, and the court’s ruling on the motion to disqualify would not change.

Defendant has not established grounds for this court to reconsider its previous rulings, and even if the court were to reconsider those rulings based on the moving papers, the rulings would not change. The motion accordingly is denied.

RULING:

Motion to Reconsider Rulings Made 7-24-20 and Set Motions for Hearing AFTER Motion to Disqualify Plaintiff’s Counsel, if Needed is DENIED.

Procedurally, the declaration in support of the motion fails to indicate what application was made before, what order or decisions were made which defendant would like to have reconsidered, and the declaration and motion fail to show any new or different facts or circumstances which were not known to the moving party or could not have been or were not argued at the previous hearing on which the motion is based, as required under CCP § 1008. The arguments asserted were in fact addressed to the court at the hearing, at which defendant was fully heard.

It also does not appear that defendant was deprived of any opportunity to file written opposition, and, in any case, has not indicated in the moving papers what new matter any further pleadings would include to warrant reconsideration.

Even if the court were to reconsider its previous rulings in light of the arguments made in the moving papers, the rulings would not change. Defendant has failed to establish that the court in connection with any fees award was required to consider defendant’s ability to pay, and has not, in any case, submitted evidence concerning defendant’s ability to pay upon which such a determination could be made. The court would again reject defendant’s legal argument in connection with defendant’s motion to disqualify based on People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC060809    Hearing Date: July 24, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 20

Date: 7/24/20

Case No: EC 060809 Trial Date: None Set

Case Name: City of Monrovia v. White, et al.

APPLICATIONS AND MOTIONS

SUMMARY OF FACTS:

Plaintiff the City of Monrovia alleges that unpermitted grading and construction activity is taking place on property owned by defendant Pauline White, and seeks to enjoin that activity.

Defendant White has filed a cross-complaint against the City seeking indemnity, and alleging various causes of action, including for abuse of process, trespass, and violation of her Fourth Amendment and privacy rights.

The City prevailed on a special motion to strike White’s cross-complaint under CCP § 425.16, and successfully opposed White’s subsequent anti-SLAPP motion against the City’s complaint. White appealed from the orders granting the City’s anti-SLAPP motion and denying her anti-SLAPP motion, as well as from the order awarding the City its attorneys’ fees in successfully opposing her anti-SLAPP motion.

The court of appeal, in an unpublished decision filed on May 31, 2016, affirmed the order denying White’s anti-SLAPP motion and the order awarding the City its attorney fees in opposing that motion. The court of appeal affirmed in part and reversed in part the order granting the City’s anti-SLAPP motion.

The Disposition of that appeal is as follows:

“The order granting the City’s anti-SLAPP motion is reversed in part as to causes of action 7, 8, 9, and 16 of the cross complaint. That order is also reversed in part as to cause of action 21, to the extent that it is premised on allegations that the City unlawfully entered White’s property and violated her Fourth Amendment Rights and her rights to privacy. In all other respects, the order is affirmed. The order denying White’s anti-SLAPP motion is affirmed as is the order awarding the City its attorney fees in opposing White’s anti-SLAPP motion. The City is awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award.”

The seventh cause of action is for abuse of process, the eighth cause of action is for violation of Fourth Amendment rights, the ninth cause of action is for violation of right of privacy, the sixteenth cause of action is for trespass, and the twenty-first cause of action alleges that as the result of the City’s conduct in the previously alleged causes of action, White has suffered emotional distress and loss of income.

On March 17, 2017, the court, Judge Stewart presiding, heard several motions in this matter, including motions brought by the City for attorney fees on appeal, and a demurrer to the cross-complaint, and motions brought by defendant White for leave to amend the cross-complaint, relief to hear defendant’s motion to strike costs, to dismiss the complaint or for JOP and to expunge lis pendens. The court’s tentative ruling was published to counsel and the parties on the court’s website on February 24, 2017. At the hearing on March 17, 2017, the court’s tentative became the order of the court.

The demurrer to the cross-complaint filed by cross-defendants City, Laurie Lile and Steve Sizemore was sustained without leave to amend on the ground the pleading failed to state facts showing that plaintiff complied with the Government Claims Act, and plaintiff did not show that she could not show that she had complied or could comply with the Act.

Cross-complainant White’s motion for leave to amend was denied.

Defendant White’s motion to dismiss the complaint was denied.

Defendant White’s motion to expunge lis pendens was denied, including the requests for other remedies in that motion such as vacating a preliminary injunction or returning sanctions paid.

Plaintiff the City’s motion for attorneys’ fees it incurred to prevail in the appeal of the trial court’s anti-SLAPP orders was granted and the court awarded the sum requested, $102,669.00.

Defendant White’s motion for relief from her failure to file a motion to tax costs from plaintiff’s memorandum of costs on appeal was granted. The court ordered “the Court will grant the Defendant’s motion for relief from her failure to seek an extension of time under CRC Rule 3.1700 to file a motion to tax costs.”

As noted above, the matter was heard, and the court’s tentative ruling became the order of the court. Counsel was ordered to give notice on their respective motions. The minute order then states:

“OUT OF THE PRESENCE OF COUNSEL:

Case Management Conference is placed off-calendar.

The Judge disqualifies himself from further proceedings in this case.

A copy of this minute order is mailed to parties.”

White appealed the court’s orders of that date. On September 1, 2017 the court of appeal issued an order dismissing the purported appeals from the orders denying White’s motion to dismiss, denying White’s motion to expunge lien and sustaining the City’s demurrer to the cross-complaint. The order states, “The appeal from the order awarding attorney fees may proceed.”

In January of 2018, White filed with the court of appeal a motion to stay the appeal to permit the trial court to hear a motion to vacate the order for attorney fees that was the subject of the appeal. On January 11, 2018, the court of appeal issued the following order:

“The court has received Appellant Pauline White's motion to stay the appeal and the supplemental memoranda submitted by White and by Respondent City of Monrovia. The stated ground for White's motion to stay is that a motion to vacate the order for attorney fees that is the subject of her appeal is currently pending in the trial court, and the ruling on that motion could moot her appeal. The parties submitted supplemental memoranda in response to the court's request that the parties address the issue of whether the trial court has jurisdiction to rule on that motion in light of the pending appeal. (See Code Civ. Proc., § 916.) The parties agree that, despite the appeal, the trial court continues to have jurisdiction to vacate an order that is void on its face. The parties disagree as to whether the order at issue here is void or simply voidable. There appears to be a split in authority as to whether or not the decision of a judge who is disqualified is void or simply voidable. (See Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940; Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 525; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 779-780.) Ruling on White's motion to stay on the ground asserted would require the court to decide whether the order at issue was void or voidable or neither. Such a ruling would involve resolution of a disputed legal issue and could require interpretation of the record in a manner affecting the merits of the appeal. The court declines to make such a ruling in the context of a motion to stay the appeal. The court therefore denies White's motion, without prejudice to the parties addressing the issue of mootness and the status of proceedings in the trial court in their briefing on the merits.”

On March 2, 2018, the court called for hearing a motion by defendant White to vacate the rulings of March 17, 2017 by Judge Stewart as void/voidable. The court ruled that the motion was stayed, as moving party had appealed the rulings sought to be vacated. The court ordered: “Since the determination sought is one affected by and embraced by the orders appealed from the matter is stayed until the full resolution of the appeal.”

The court on June 29, 2018 heard a motion brought by White to Stay Proceedings Pending Appeal. The court granted the motion in part and denied the motion in part. The court order states:

“The court recognizes that the pending Motion to Vacate Rulings and Motion as Void/Voidable are subject to the automatic stay, so the motion is GRANTED as to those pending motions, and the hearings on those motions are stayed until the full resolution of the appeal.

As to the motion to enforce liability on civil deposit and for a court order directing defendant to pay interest on the amount of bond for delay caused by appeal filed by defendant, and the Motion to tax costs, the motion to stay these two matters is DENIED. Defendant White has failed to establish that these matters are subject to the automatic stay.

As to the motion to Amend the Cross-complaint, the court will hear argument with respect to why defendant White, based on defendant’s arguments in this motion, is not inclined to voluntarily withdraw that motion. The court is inclined to DENY the motion to stay based on the arguments made in the moving papers and is inclined to hear the motion as scheduled.”

On July 6, 2018, the motions were scheduled to be heard, and the court issued its detailed tentative ruling. At the hearing, counsel informed the parties and counsel that it had received an appeal from its ruling made on June 29, 2018. Counsel for plaintiff the City stated that the writ was denied, and showed the court its notification of such. Defendant represented to the court that there were two pages omitted from the filing, so that there were procedural defects, and requested a continuance.

The minute order states, “Defendant’s oral motion for continuance to address the procedural defects in the application for Writ is argued and GRANTED.” The matter was continued to July 20, 2018.

At that hearing, defendant White represented that she had prepared another writ, which would be shortly filed and would seek to stay proceedings in the trial court pending the ruling on appeal of the award of attorneys’ fees. The minute order states, “Court informs counsel that it has received an Order from the Second Appellate District in Case B272713 dated July 19, 2018 imposing a temporary stay in this case, pending the resolution of the writ of supersedeas, filed July 16, 2018.” The matters were accordingly continued pending the resolution of the petition for writ.

On January 30, 2019, the court of appeal issued its unpublished opinion in the appeal, affirming the trial court’s order awarding the City attorney fees on appeal. The City was awarded its costs on appeal.

On April 18, 2019, the Remittitur was filed with Los Angeles Superior Court.

On November 1, 2019, the court was scheduled to hear defendant’s motion to vacate the rulings made by Judge Stewart on March 17, 2017. There was evidently a representation that there could be a possible writ/appeal filed by defendant White. The matter was continued to November 26, 2019 for a status conference regarding Status of Defendant Pauline White’s Writ/Appeal.

On November 26, 2019, the court informed the parties that defendant/cross-complainant White’s Writ had been denied, and jurisdiction had been returned to this court. The matters which had been stayed were then reset for hearing.

Various matters previously filed, and matters filed since that time, have been stayed pending the resolution of defendant’s Section 170.1 filing, or appellate decisions, including a writ defendant indicated she had taken to the California Supreme Court.

There have been no filings in this matter since January, 2020.

It appears from the appellate docket that defendant filed a petition for review with the Supreme Court in December 2019. On February 11, 2020, the petition for review was denied in the Supreme Court.

The court will accordingly determine or set for hearing the applications and motions set for hearing this date.

RULING:

Ex Parte Application for Order(s)

1) Vacating Court’s 7/5/19 Order Staying “Collection”

Application is DENIED WITHOUT PREJUDICE.

2) That Defendant Pay Sanctions

Application is DENIED.

3) OSC as to Why Defendant Should not be Sanctioned

Application is DENIED.

4) That the Court Report Defendant to the State Bar

Application is DENIED.

5) Setting City’s Motion for Attorneys’ Fees for Hearing

Application is MOOT.

6) Release of Deposits Filed by Plaintiff

Application is DENIED WITHOUT PREJUDICE

Ex Parte Application to Vacate All Recordings or Liens filed on behalf of Defendant Pauline White is DENIED WITHOUT PREJUDICE.

Motion for Appellate Attorneys’ Fees filed on Behalf of City of Monrovia (filed 5/24/19):

The matter is fully briefed, and the Court now issues the following tentative ruling: (The Court has not considered the papers filed on 12/23/19, but assumes the papers are the same as the original moving papers, to which opposition and reply have been filed).

Plaintiff the City seeks to recover the attorney’s fees it incurred in connection with defending against the appeal taken by defendant White with respect to the Court’s March 17, 2017 orders.

With respect to attorneys’ fees as costs, CRC Rule 8.278(d)(2) states: “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”

Under CCP § 1032, a prevailing party in an action is entitled to allowable costs. Under CCP § 1033.5(c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Subdivision (3) requires: “Allowable costs shall be reasonable in amount.”

Under CPC section 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1033.5 (a) provides that an allowable cost under §1032 includes:

“(10) Attorney’s fees, when authorized by any of the following:

(A) Contract

(B) Statute

(C) Law.”

Here, the fees are sought under statute, CCP § 425.16 which provides mandatory sanctions to a prevailing defendant:

“(c) 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.

Where a defendant brings a successful motion to strike under section 425.16, these fees are considered mandatory. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131. Where a defendant on a special motion to strike prevails on appeal, reasonable attorneys’ fees are to be awarded under the statute, which does not specifically preclude recovery on appeal. Dowling v. Zimmerman (2001) 85 CalApp.4th 1400, 1426.

Here, the court of appeal affirmed award of attorney’s fees under the anti-SLAPP statute, and expressly stated, “The City is awarded its costs on appeal.” [Markus Decl., Ex. A, p. 17]. The Remittitur also states, “The City is awarded its costs on appeal.” [Markus Decl., Ex. L].

The City argues that it is entitled to its fees for prevailing on the appeal in connection with the attorney’s fees awarded on the anti-SLAPP motions. The City relies on Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461, in which the Second District observed:

“The trial court's authority to award fees and costs under section 425.16, subdivision (c), includes authority to award fees incurred in responding to an appeal of an order granting or denying a special motion to strike, or of an order awarding attorney fees in connection with such motion.”

Jack in the Box, at 461, citation omitted.

The City argues that the under the circumstances here, where the court of appeal dismissed appeals from the various orders, and affirmed the trial court award of appellate attorney’s fees, the City is the prevailing party on appeal, entitled to the reasonable fees incurred to defend against defendant’s challenge to the award of the anti-SLAPP fees.

Defendant in opposition argues that the original court of appeal decision did not award the City attorney fees or costs on its anti-SLAPP, and that the court’s ruling awarding fees was in violation of the first court of appeal’s decision. This is an argument with respect to fees awarded on the original appeal, and is irrelevant to the current analysis.

Defendant then argues that the court of appeal has rendered inconsistent rulings, contradictory to each other, with neither supported by the record. This attack on the merits of the decision made by the court of appeal is improper in connection with this motion, as this trial court is bound by the opinion and rulings made by the court of appeal. There also appears to be a brief argument that there is no statutory basis for any claim of fees against White, based on statutes governing abatement. Defendant does not address the anti-SLAPP statute, the statute under which fees are sought. The motion accordingly appears to have a statutory basis.

Defendant also argues briefly that the City was not a prevailing party here, but here is no question that the second decision was in favor of the City. As argued in the reply, under CRC Rule 8.278(a), governing an award of cost on appeal: “ (2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” Here, the appeal was dismissed early on as to all but the attorney’s fees order, which was affirmed. There is no question that plaintiff was the prevailing party on appeal.

There are also brief arguments that the City is not permitted to bring this action, and cannot appropriately retain private counsel.

The argument concerning the City’s authority to bring this action has been rejected by the California Supreme Court. See e.g., People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 750, fn. 5 (rejecting the argument that the State must bring the civil action and finding that cities have long maintained public nuisance actions). Further, in Clancy, the Supreme Court found that in Government Code section 731, which authorizes civil actions for public nuisance, the Legislature meant to allow cities, as well as the state, to bring such actions. Id.

The Court in Clancy also questioned the retention of outside counsel under specified circumstances on a contingency basis, which is not the factual situation presented here, as discussed more fully in the Motion to Disqualify, below.

Plaintiff has sufficiently established its entitlement to reasonable attorney’s fees to defend against the challenge to the award of attorney’s fees under the anti-SLAPP statute, and reasonable fees on appeal will be awarded.

The party seeking fees bears the burden of establishing entitlement to an award and of documenting the appropriate hours spent and hourly rates, and the court may require that party to produce records sufficient to provide a proper basis for that determination. Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.

The trial court’s determination of the amount of a fee award will be upheld on appeal if supported by substantial evidence. Macia v. Hartwell (1997) 55 Cal.App.4th 669, 676.

The court of appeal in Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448, summarized the trial court’s role in determining fees:

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, [49 Cal. Rptr. 2d 620].) The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”

Wilkerson, at 448.

The fees sought are $151,472.00, consisting of 337.5 hours spent on the appeal at rates ranging from $115 to $605 per hour, in addition to 25.8 hours at $400 per hour drafting and pursuing this motion for fees ($10,320.00). The billings are attached to the Markus Declaration as Exhibit N.

A review of the billings shows that the hours spent appear to have been devoted to this particular appeal, and do not appear unreasonable given the various issues which were raised, and the Markus declaration sufficiently explains the multiple issues and tasks required to defend against this appeal, with which this court has experience, given that many of the same arguments were being pursued before this court as well. [See Markus Decl. para. 16]. The Declaration also sufficiently explains the division of labor and efficiencies sought to be realized through proper staffing and case management. [Markus Decl., paras. 17-20].

The Court has identified two irregularities. First, it appears that the appeal was from all of the Court’s March 17, 2017 orders, not just the anti-SLAPP attorney’s fees order, and that at the outset of the appeal, there was attorney time spent seeking to dismiss the appeal as to the other orders, arguing that those rulings were not yet subject to appeal. This involved research and the preparation of a motion to dismiss appeal, as well as response to a letter brief issued by the court of appeal on the issue, and time billed concerning entry of judgment once the appeal was partially dismissed. The Court finds that this time, billed by Eric Markus at the rate of $400 per hour, was not reasonably required to defend against the challenge to the anti-SLAPP fee award, and will not be awarded. The hours the Court finds were expended in those efforts total 16.8. The sum of $6,736.80 (16.8 hours at $400 per hour) will accordingly be reduced from the fees sought.

The Court also notes that while the billings show that the attorney time was actually billed at the rates of $175 per hour for each attorney, which were then raised in June 2017 to $225 per hour, the motion seeks to recover fees at the usual rates billed by attorneys, ranging from $605 per hour to $225 per hour. [Markus Decl., paras. 21-28]. The Court finds that the City has sufficiently established the reasonableness of the rates upon which the award is sought. The opposition has failed to submit evidence showing that such rates were not reasonable. The Court will accordingly award the fees as requested at the stated billing rates.

The Court accordingly awards reasonable fees in the sum of $144,725.20 ($151,462.00 sought, less $6,736.80 (16.8 hours at $400 per hour reduction)), which the Court finds is the reasonable sum incurred to have defeated the motion with respect to the anti-SLAPP attorney’s fees.

RULING:

Plaintiff City of Monrovia’s Motion for Appellate Attorneys’ Fees is GRANTED. The Court finds that plaintiff City of Monrovia was the prevailing party on the appeal of an order granting attorney’s fees in connection with a special motion to strike under CCP section 425.16, entitled to recover statutory attorney’s fees. The court awards fees of $144,725.20 [$151,462.00 sought, less $6,736.80 (16.8 hours at $400 per hour reduction)], [$151,462.00 requested], reflecting time the Court finds was reasonably expended at reasonable billing rates to prevail on the appeal, and to obtain the fee award.

Motion to Stay Collection Matter appears to have been calendared in error. Matter previously resolved at hearings on July 5, 2019, and September 6, 2019. The Court will consider resetting the subsequently filed Motion for an Order Vacating the Court’s July 5, 2019 Order Staying “Collection” in its Entirety (filed 12/31/19), if necessary, as further discussed below.

Motion to Enforce Liability on Civil Deposit and for a Court Order Directing Defendant to Pay Interest on Amount of Bond for Delay Caused by Appeal.

The Court previously considered this motion (filed 1/17/17) for a hearing date of July 6, 2018. The matter was stayed before the Court issued its ruling. The minute order reflects that the Court had previously published its tentative ruling on the evening of July 5, 2018, after having read and considered the moving and opposition papers. The Court now intends that tentative ruling to become the order of the Court, as follows:

Plaintiff the City seeks to collect against the sums deposited with the court by defendant White, the attorneys’ fees awarded by the trial court in connection with the City's anti—SLAPP motion in the sum of $12,600 and in connection with defendant's unsuccessful anti—SLAPP motion in the sum of $11,200.

It appears from the Court of Appeal opinion that with respect to the anti-SLAPP motions, the trial court awarded the City attorney fees in the amounts of $12,600 on the City's anti—SLAPP motion and $11,522 for successfully opposing White's anti—SLAPP motion. [Opinion, p. 5]. The opinion notes that White on appeal "does not challenge the order awarding the City its attorney fees as the prevailing party on its anti—SLAPP motion." [Opinion, p. 19, note 4]. It accordingly appears that this attorney fee award is final. As to the $11,522 awarded for successfully opposing White's anti—SLAPP motion, the court of appeal ordered, "The order denying White's anti—SLAPP motion is affirmed, as is the order awarding the City its attorney fees in opposing White's anti—SLAPP motion” [Opinion, p.20]. This order accordingly also appears to be one which is now final.

The remittitur was issued on September 26, 2016, and received by this court on October 6, 2016. [RFJN, Ex. 8, Markus Decl., Ex. 1].

Plaintiff the City seeks relief under CCP § 995.730, 996.440 and 995.750

Under CCP § 995.730:

"A deposit given instead of a bond has the same force and effect, and is treated the same, and is subject to the same conditions, liability, and statutory provisions, including provisions for increase and decrease of amount, as the bond."

Here, defendant entered deposit by certified check/money order into a deposit in trust instead of a bond on appeal. [See RFJN, Exs. E, F].

This appears to be authorized under CCP § 995.710:

"(a) Except as provided in subdivision (e) or to the extent the statute providing for a bond precludes a deposit in lieu of bond or limits the form of deposit, the principal may, without prior court approval, instead of giving a bond, deposit with the officer any of the following: (1) Lawful money of the United States or a cashier's check, made payable to the officer, issued by a bank, savings association, or credit union authorized to do business in this state. The money shall be held in trust by the officer in interest-bearing deposit or share accounts.”

CCP section 996.440 provides:

"(a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action."

Under CCP § 995.750 (b)

"If the deposit was given to stay enforcement of a judgment on appeal, the principal shall pay the amount of the liability on the deposit, including damages and costs awarded against the principal on appeal, within 30 days after the filing of the remittitur from the appellate court in the court from which the appeal is taken."

Under CCP § 995.760 (a):

"If the principal does not pay the amount of the liability on the deposit within the time prescribed in Section 995.750, the deposit shall be collected, sold or otherwise applied to the liability upon order of the court that entered the judgment of liability, made upon five days‘ notice to the parties."

The City argues that defendant deposited the amounts of the attorneys’ fees awards with the clerk of the court, the awards were affirmed in full, and that it has been more than thirty days since the remittitur was received on October 6, 2016. The City is accordingly entitled to an order that the deposit be paid to the City to satisfy the liability on the attorneys’ fees.

The opposition primarily argues that this matter should be stayed, which arguments are moot.

The opposition also argues that the attorneys’ fees incurred by the City on its own anti—SLAPP motion were not awarded by the Court of Appeal. However, as noted above, the Court of Appeal noted in a footnote that defendant had not on appeal challenged that award, so it was encompassed in the disposition that the "[i]n all other respects, the order is affirmed.” [RFJN, Ex. G, Opinion, p.19, n. 4; p. 20].

In addition, the City submits with the reply a motion for further ruling filed with the Court of Appeal, in which White argues that she did challenge the award of fees, and that the award of fees to the City of $12,600 should be reversed. [Ex. 3, p. 6]. The Court of Appeal deemed the untimely motion a petition for rehearing, granted permission for late filing and denied it. [Ex. 4]. On August 17, 2016, the Supreme Court denied defendant's petition for review. [Exs. 5, 6]. These attorneys‘ fees awards are accordingly final, and the deposit is ordered paid to plaintiff.

The City also seeks interest on the sum, arguing that plaintiff should have paid twice the award sum as an appeal bond, and that the City is entitled to interest at the annual rate of 10% for each award, and the court should order defendant to pay the City the accrued interest. However, as pointed out in the opposition, it appears that the sufficiency of the bond should have been challenged when the deposit was made, and that since the deposit was made into an interest bearing account, the proper remedy would be to release all funds now in that account, including the interest. The Court does not grant an order for interest at 10% per annum, or for any amount other than this amount awarded by virtue of the plaintiff depositing the funds into an interest bearing account.

RULING:

Plaintiff City of Monrovia's Motion to Enforce Liability on Civil Deposit is GRANTED in part. The court finds that court of appeal has affirmed the trial court award in favor of the City in the amounts of $12,600 on the City's anti-SLAPP motion and $11,522 for successfully opposing White's anti—SLAPP motion. [Opinion, p. 19, note 4; Opinion, p. 20]. This award is final. Remittitur was received on October 6, 2016. [RFJN, Ex. 8, Markus Decl., Ex. 1]. Here, defendant entered deposit bond by certified check/money order into a deposit in trust instead of a bond on appeal. [See RFJN, Exs. E, F]. CCP section 996.440 (a) permits the liability on the deposit to be enforced on a motion such as that brought by the City. The court finds that the deposit was given to stay enforcement of judgment on appeal, and that under CCP § 995.760, defendant has not paid the amount of the liability on the deposit within the time prescribed by CCP § 995,750(b), that is, within thirty days after the filing of the remittitur from the appellate court in the court from which the appeal is taken. Pursuant to CCP § 995.760, the court orders the deposit funds from the interest-bearing trusts to be delivered to plaintiff. Request for interest as calculated by plaintiff is denied.

Motion to Expunge Vacate/Return Sanctions filed on behalf of defendant Pauline White (filed December 22, 2016) is MOOT in light of the ruling on the Motion to Enforce Liability on Civil Deposit, as set forth above. Defendant is not entitled to return of the deposit funds, which have been ordered to be delivered to plaintiff. The motion is otherwise DENIED.

Motion to Tax Costs/Strike Cost Bill filed by Defendant Pauline White:

The Court previously considered this motion for a hearing date of July 6, 2018. The matter was stayed before the Court issued its ruling. The minute order reflects that the Court had previously published its tentative ruling on the evening of July 5, 2018, after having read and considered the moving and opposition papers. The Court now intends that tentative ruling to become the order of the Court, as follows:

CRC Rule 8.278, pertaining to an award of costs on appeal, provides in pertinent part:

“(l) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.

(2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.

(3) If the Court of Appeal reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the opinion must specify the award or denial of costs."

Here, the court of appeal opinion in the disposition specified, "The City is awarded its costs on appeal in connection with White's anti—SLAPP motion and her challenge to the attorney fee award.” [Opinion, p. 20]. The remittitur also states, "The City is awarded its costs on appeal in connection with White's anti—SLAPP motion and her challenge to the attorney fee award."

Accordingly, the City is entitled to its costs in appeal in connection with White's anti-SLAPP motion and challenge to the attorney fee award.

The motion seeks to strike or tax each item claimed on the ground that the cost memorandum ' included no bills, proof of payment, or declaration concerning payment. Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy V. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761. Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. Id. The trial court's determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.

The cost memorandum seeks $1,974 in costs with sums stated incurred for various tasks. The memorandum was filed with no supporting documentation, and it is difficult to tell from the figures if they were proper and necessary, and, more importantly, whether they were costs incurred in - connection with White's anti—SLAPP motion and challenge to the fee award, as opposed to the entire appeal.

The City in opposition submits a declaration of counsel, which provides bills and invoices.

Item 2- Preparation of the original and copies of the clerk's transcript or appendix

CRC Rule 8.278(d) lists the recoverable costs on appeal, which include

"(B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.l47(b)(2) is not recoverable unless the Court of Appeal ordered the copying;”

Rule 8.l47(b)(2) pertains to proceedings where a party seeks to incorporate by reference "all or parts of a record in a prior appeal in the same case...”

This does not appear to be a case, as argued in the motion, where the costs are not recoverable unless the court of appeal ordered the copying, as the matter does not concern a prior appeal or record.

The costs sought are $1,130.38. The opposition indicates that these reflect costs of $600.05 and $530.33 charged by the LASC, and paid. [Markus Decl., para. 8, Ex. G]. These appear to be costs actually incurred, but, as argued in the reply, they appear to reflect the entire cost of preparing the record, not the portion of that cost limited to the White anti—SLAPP and attorneys‘ fees.

This is not ideal, as the City was specified to recover only certain costs on appeal, but has evidently sought all costs. What will probably happen here is that recoverable costs claimed are cut in half by the court, as it appears that the appeal involved four issues, each anti—SLAPP and each attorneys‘ fee award, and the City was awarded costs on only two, or half of the issues. The costs accordingly are reduced by half to $565.19.

Item 3—Preparation of Reporter's Transcript

The cost sought is $121.10, and would be covered as an amount paid for a portion of the record. The opposition submits an expense entry to a court reporter, which was paid. [Markus Decl., para. 6, Ex. E].

The reply seems to argue that this was not a necessary expense as the City did not designate any court reporter transcript as a record on appeal, but paid a court reporter White hired for a law and motion hearing. It is not clearly shown that the court reporter hearing transcript was not part of the record, or necessary, and it does not appear to involve a prior appeal.

However, again, it is not clear what proceeding this hearing transcript was from, the White anti—SLAPP motion or the City's. This issue will be discussed at the hearing, as this allocation could probably be ascertained. If it was a transcript related to the White anti—SLAPP motion, the costs would be recoverable in full. If it was a transcript related to the City's motion, the costs should be stricken.

Item 4—Printing and copying of briefs

The City seeks $72.80, and presents an expense entry for copying of 364 pages in connection with work on the appeals, at $.20 per page.

Under CRC Rule 8.278 (d) (l)(E), recoverable costs include "The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply..."

While this cost appears a bit high for the copying of one respondent's brief, there were likely other briefs and papers, and the need to make multiple copies, and the charges do not appear excessive.

However, as discussed above, the cost should be cut in half to account for the costs only being awarded on a portion of the appeal. The costs accordingly are taxed by $36.40 to $36.40.

Item 6—Transmitting, filing, and serving of record, briefs, and other papers

Under CRC Rule 8.278 (d) (l)(D), recoverable costs include

"(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers..."

The costs sought here are $649.86. The motion argues that these fees appear to be filing and attorneys‘ service fees to which the City is not entitled. The opposition indicates that the expense entries are for invoices from a process server used by counsel's office, and cancelled checks show these were paid. The argument is that these are process, transmitting and filing fees, which are recoverable. [Markus Decl., para. 8, Ex. G].

There is authority under which ordinary costs, not those on appeal, may not include the costs of the services of attorneys‘ services, primarily because they effectively substitute for postage, which is expressly not recoverable in the general statutes. see CCP section 1033.5(b)(3).

In Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, the court of appeal affirmed the trial court's denial of a motion to tax costs for these types of messenger charges, holding that since the party claiming costs had provided a declaration explaining the need for these services, the trial court had not abused its discretion in permitting them:

"the declaration of Hunsader stated that these charges were related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom. The declaration provides substantial evidence that these charges were reasonably necessary. The trial court therefore had an adequate basis for allowing these costs under section 1033.5, subdivision (c)(4), and its denial of the motion in this respect was not an abuse of discretion."

Ladas, at 774.

While the declaration here does not provide such detail, it does show that these were charges for filing briefs in various courts, and given the deadlines and pressures of appellate practice, and the express recognition of the recovery of costs to serve, mail and file, the court finds they were reasonably necessary here, and awards them as amended below.

In any case, again, it would appear that the costs should be reduced by half to account for the fact that the costs awarded were limited. The costs are taxed by $361.33, and are reduced to $361.33.

RULING:

Motion to Tax Costs/Strike Cost Bill is GRANTED in part as follows:

The court finds that plaintiff the City of Monrovia is the party entitled to costs on appeal according to the specification in the opinion on appeal that "The City is awarded its costs on appeal in connection with White's anti-SLAPP motion and her challenge to the attorney fee award." [Opinion, p. 20].

Item 2- Preparation of the original and copies of the clerk's transcript or appendix

Motion is GRANTED in part.

The costs claimed are $1,130.38, which appear to be the costs incurred for the entire appeal, and not just the portion limited to the White anti—SLAPP motion and attorneys’ fees, as specified by the court of appeal. The court accordingly awards only half of these costs.

Costs sought of $1,130.38 are reduced by $565.19 to $565.19

Item 3-Preparation of Reporter's Transcript Motion is GRANTED.

The cost sought is $121.10. The court will hear argument concerning whether this was a transcript of a hearing concerning the White anti—SLAPP motion. The court is inclined to find that since that information is available to the party claiming costs, and it has failed to meet its burden of establishing the propriety of the costs, the transcript was not for a hearing for which costs are allowed, and tax the sum in its entirety by $121.10 to -0- , unless at the hearing it is established the transcript was of the White anti—SLAPP hearing.

Cost sought of $121.10 are reduced by $121.10 to -0-

Item 4—Printing and copying of briefs

The costs claimed are $72.80, which appear to be the costs incurred for the entire appeal, and not just the portion limited to the White anti—SLAPP motion and attorneys‘ fees, as specified by the Court of Appeal. The court accordingly awards only half of these costs.

Cost sought of $72.80 are reduced by $36.40 to $36.40.

Item 6-Transmitting, filing, and serving of record, briefs, and other papers

The costs claimed are $649.86, which appear to be the costs incurred for the entire appeal, and not just the portion limited to the White anti-SLAPP motion and attorneys‘ fees, as specified by the court of appeal. The Court accordingly awards only half of these costs.

Costs sought $649. 86 are reduced by $361.33 to $361.33.

Total Costs Awarded= (Cost claimed of $1,974.14, less $565.19, less $121.10, less $36.40, less $361.33) $890.12.

Motion to Tax Costs/Strike Cost Bill

Motion to Tax Costs/Strike Cost Bill (filed 6/18/19) is DENIED.

Under CRC Rule 8.278(a), governing an award of cost on appeal:

(a) Award of costs   (1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.  (2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal….”

Under CCP § 425.16:

“(c) 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.

Here, the court of appeal affirmed award of attorney’s fees under the anti-SLAPP statute, and expressly stated, “The City is awarded its costs on appeal.” The Remittitur also states, “The City is awarded its costs on appeal.” [Markus Decl., Ex. A].

Accordingly, the City is entitled to its costs in appeal in connection with White's anti-SLAPP motion and challenge to the attorney fee award.

The motion seeks to strike or tax each item claimed on the ground that the cost memorandum ' included no bills, proof of payment, or declaration concerning payment. Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas V. California State Auto. Assn. (1993) 19 Cal.App.4th 761. Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. Id. The trial court's determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.

The cost memorandum seeks $1,268.52 in costs with sums stated incurred for various tasks. The memorandum was filed with no supporting documentation, and it is difficult to tell from the figures if they were proper and necessary.

The City in opposition submits a declaration of counsel, which provides bills and invoices.

Item 2- Preparation of the original and copies of the clerk's transcript or appendix

CRC Rule 8.278(d) lists the recoverable costs on appeal, which include

"(B) The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.l47(b)(2) is not recoverable unless the Court of Appeal ordered the copying;”

Rule 8.l47(b)(2) pertains to proceedings where a party seeks to incorporate by reference "all or parts of a record in a prior appeal in the same case...”

This does not appear to be a case where the costs are not recoverable unless the court of appeal ordered the copying.

The costs sought are $499.57. The opposition includes an invoice in this sum for litigation scanning, indexing and tabbing. [Markus Decl., para. 8, Ex. C, Invoice Dated 6/7/ 2018]. These appear to be costs actually incurred, and do not appear unreasonable. The motion as to this cost will accordingly be denied, and the costs will be awarded as requested.

Item 4—Printing and copying of briefs

The City seeks $356.20, and presents two expense entries for copying of 1,045 and 736 pages in connection with the appeal at $.20 per page. [Markus Decl., Ex. C, Expense Entries 7-31-2018]

Under CRC Rule 8.278 (d) (l)(E), recoverable costs include "The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply..."

This cost does not appear excessive. The motion argues that photocopies are not permitted, but does not address the statutes permitting the reproduction copies of briefs. The City indicates that the copying charges at issue were incurred on July 31, 2018, the same day the City filed its Respondent’s Brief. [Markus Decl., para. 7, Ex. C]. This appears sufficient to establish the costs were for the reproduction of a brief. The motion is accordingly denied and the costs will be awarded as requested.

Item 6—Transmitting, filing, and serving of record, briefs, and other papers

Under CRC Rule 8.278 (d) (l)(D), recoverable costs include

"(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers..."

The costs sought here are $380.00. The motion argues that these fees appear to be overnight delivery fees and mailing, which are not allowed. The opposition indicates that the expense entries are for invoices from a process server used by counsel's office to serve chamber copies of the documents filed throughout the appeal, and cancelled checks show these were paid. The argument is that these are process, transmitting and filing fees, which are recoverable. [Markus Decl., para. 8, Ex. C].

There is authority under which ordinary costs, not those on appeal, may not include the costs of the services of attorneys’ services, primarily because they effectively substitute for postage, which is expressly not recoverable in the general statutes. See CCP section 1033.5(b)(3).

In Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, the court of appeal affirmed the trial court's denial of a motion to tax costs for these types of messenger charges, holding that since the party claiming costs had provided a declaration explaining the need for these services, the trial court had not abused its discretion in permitting them:

"the declaration of Hunsader stated that these charges were related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom. The declaration provides substantial evidence that these charges were reasonably necessary. The trial court therefore had an adequate basis for allowing these costs under section 1033.5, subdivision (c)(4), and its denial of the motion in this respect was not an abuse of discretion."

Ladas, at 774.

While the declaration here does not provide such detail, it does show that these were charges for filing briefs in various courts, and given the deadlines and pressures of appellate practice, and the express recognition of the recovery of costs to serve, mail and file, the Court finds they were reasonably necessary here, and awards them as requested.

Item No. 9—Other (Expenses of Service)

The cost memorandum seeks $32.75, designated in the expense records as “Postage,” evidently for the mailing of the Respondent’s Brief. [Markus Decl., para. 9, Ex. C., entry for 7-18-2018].

Again, although postage is generally excluded from costs in direct actions, under the statute governing costs on appeal, CRC Rule 8.278 (d) (l)(D), recoverable costs include

"(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers..."

This appears to be a cost to “mail” the brief in this matter, does not appear unreasonable, and the cost are awarded as requested.

RULING:

Motion to Tax Costs/Strike Cost Bill is DENIED.

The Court finds that the costs were reasonably incurred and each expressly allowable under CRC Rule 8.278.

Costs claimed in the Memorandum of Costs on Appeal dated May 24, 2019, are AWARDED IN FULL in the sum of $1,268.52.

Motion to Vacate Ruling on /after 3/17/17 by Judge William Stewart as Void-Voidable

The Court previously considered this motion (filed 5/16/17) for a hearing date of November 1, 2019. The matter is fully briefed, including supplemental briefing, which has been fully considered, and the Court now issues the following tentative ruling:

Defendant White argues the rulings issued by the court in this matter on March 17, 2017 should be vacated because Judge Stewart was disqualified before those rulings became final, and that rulings issued by a disqualified judge are void or voidable.

However, as pointed out in the supplemental brief in opposition to the motion, the Court of Appeal has already held that Judge Stewart was not disqualified at any point during the March 17, 2017 hearing during which he made the rulings that are the subject of this motion.

Specifically, in reaching the issue of whether the City’s motion for attorneys’ fees the City incurred to prevail in the appeal of the trial court’s anti-SLAPP orders had been appropriately granted, the court of appeal stated:

We reject White's contention that Judge Stewart was disqualified from ruling on the City's motion for attorney fees because he was biased and prejudiced against her. The evidence of Judge Stewart's alleged bias -- statements he made at the conclusion of the hearing that he might disqualify himself and that he intended to report White to the State Bar, and statements made during the hearing that purportedly conveyed disdain for White's position -- reflect Judge Stewart's increasing exasperation with White's insistence on advancing erroneous legal arguments and her unwillingness to accept the trial court's rulings.”

[Supp. Brief, Ex. A, Court of Appeal Opinion, p. 9].

The court of appeal relied on the statutory language of CCP § 170.4 (d), the opinion stating:

“Judge Stewart's subsequent written order, issued after the conclusion of the hearing and out of the presence of counsel, disqualifying himself from further proceedings in this case, did not preclude him from ruling on the City's attorney fees motion at the conclusion of the March 17, 2017 hearing. Section 170.4, subdivision (d) provides that "a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined." (Italics added.) In this case, Judge Stewart made his rulings before disqualifying himself from further proceedings in the case.”

[Supp. Brief, Ex. A, Court of Appeal Opinion, p. 11, italics added in original].

The court of appeal also conducted a detailed discussion supporting its conclusion that the remarks relied upon by White to show bias on the part of Judge Stewart, when viewed in context, “do not support White’s bias claim,” and that:

“A reasonable observer could conclude that White advanced arguments that lacked merit, that she failed to heed Judge Stewart’s admonishments or to accept his rulings, and that Judge Stewart lost patience with her, as evidenced by his testy remarks. Those remarks, while unfortunate, did not disqualify him from ruling on the attorney fees motion.”

[Supp. Brief, Ex. A, Court of Appeal Opinion, pp. 8-12] .

This holding is now the law of this case, in effect, that Judge Stewart was not disqualified until his subsequent written order was issued, after he had acted on the subject motions. As the Second District set forth in Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495:

“Under [the law of the case] doctrine, “‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, 253 Cal.Rptr. 97, 763 P.2d 948.) The doctrine applies to decisions of intermediate appellate courts as well as courts of last resort. The doctrine promotes finality by preventing relitigation of issues previously decided. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 310, 126 Cal.Rptr.2d 516.) Although the doctrine does not apply to points of law that might have been determined, but were not decided in the prior appeal, the doctrine does extend to questions that were implicitly determined because they were essential to the prior decision. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 302, 253 Cal.Rptr. 97, 763 P.2d 948; Estate of Horman (1971) 5 Cal.3d 62, 73, 95 Cal.Rptr. 433, 485 P.2d 785.) “The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances.” (People v. Yokely (2010) 183 Cal.App.4th 1264, 1273, 108 Cal.Rptr.3d 318.)”

Sargon, at 1505.

The doctrine is stated by Witkin as follows:

“The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”

Witkin, Cal. Procedure (5th Ed.) 9 Appeal 459.

The court of appeal stated a rule necessary to its decision in connection with the attorney fees motion, which rule with respect to the timing or existence of disqualification here would also apply to the motions ruled on with the attorney fees motion, and in the same manner. This Court may not revisit the validly made rulings of March 17, 2017 in this matter, and plaintiff’s motion to vacate them is accordingly denied.

RULING:

Motion to Vacate Rulings On/After March 17, 2017 by Judge William Stewart is DENIED. The court of appeal has determined that Judge Stewart’s rulings were not made while Judge Stewart was disqualified, as he was not disqualified until his subsequent written order was issued, after the Court had acted on the subject motions. This determination is now the law of the case.

The rulings stand. For convenience only, the text of the March 17, 2017 rulings are set forth as follows:

“The Court's tentative ruling was previously published to counsel and parties on the Court's website on the internet on February 24, 2017.

Matters are called for hearing and argued.

The Court's tentative ruling becomes the order of the Court.”

The Tentative Rulings are set forth as follows:

DEMURRER TO CROSS-COMPLAINT & MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

Calendar: 7

Case No: ECO60809

Date: 2/24/17

RELIEF REQUESTED:

1 . Cross-Complainant, Pauline White

Leave to le First Amended Cross-Complaint

2. Cross-Defendants, City of Monrovia, Laurie Lile, and Steve Sizemore

Demurrer to original Cross-Complaint.

ALLEGATIONS IN CROSS-COMPLAINT:

The Cross-Complainant is not liable for the allegations by the City of Monrovia in the Complaint. If the Cross-Complainant is found liable, then she is entitled to indemnity and contribution from the City of Monrovia.

In addition, the Cross-Defendant, City of Monrovia, improperly alleges in its complaint that municipal codes were violated and is improperly attempting to obtain compliance with its policies through its Complaint. The City of Monrovia has rushed its claims and deprived the Cross-Complainant of the opportunity to use discovery to contest the allegations. Further, the City of Monrovia is selectively enforcing its codes against the Cross-Complainant in the Complaint while ignoring similar situated adjacent properties. The City of Monrovia brought its Complaint to chill the Cross-Complainant’s right of public participation and public speech. The City of Monrovia seeks to improperly levy taxes through its Complaint.

The Cross-Complainant seeks damages, indemnification, and the denial and dismissal of the Complaint.

CAUSES OF ACTION IN CROSS—COMPLAINT:

1) Partial Indemnity

2) Contribution

3) Apportionment

4) Declaratory Relief

5) Separation of Powers Violation

6) Abuse of Police Power

7) Abuse of Process

8) Violation of Fourth Amendment Rights

9) Violation of Right of Privacy

10) Violation of Due Process and Equal Protection.

l1) Selective Enforcement

l2) Void for Vagueness/Overbroad

13) Chill Public Participation and Free Speech

14) Slander of Title

15) Taking

16) Trespass

17) Contracts Clause

18) Estoppel, Laches, Unclean Hands

19) Improper Tax, Violation of Prop. 26

20) Accord and Satisfaction

21) Emotional Distress and Loss of Income

RELIEF REQUESTED:

Demurrer to each cause of action

Strike Cross-Complaint under CCP section 425.16.

DISCUSSION:

This case arises from the claim of the Plaintiff, City of Monrovia, that the Defendant, Pauline White, has improperly commenced construction of two retaining walls in her rear yard which abuts a ravine. The Defendant, Pauline White, filed a Cross—Complaint against the City of Monrovia and its employees to seek damages on claims that she alleges arise from the Complaint, including indemnity, abuse of process, trespass, and violation of her Fourth Amendment and privacy rights.

The City of Monrovia filed an anti-SLAPP motion to strike the cross-complaint and the Court granted the motion on November 20, 2013. Pauline White then filed an anti-SLAPP motion to strike the Complaint and the Court denied her motion on March 21, 2014. The Court imposed monetary sanctions on Pauline White because it found that her motion was frivolous. In a subsequent hearing, the Court awarded $12,600 to the City of Monrovia for succeeding on its anti-SLAPP motion and $11,522.50 for successfully opposing Pauline White's anti-SLAPP motion.

Pauline White filed an appeal of these orders. The Court of Appeal issued an opinion in which it affirmed the following orders of the trial court:

1) the order granting the anti-SLAPP motion with regards to the first, second, third, fourth, fifth, sixth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action in Pauline White's Cross-Complaint;

2) the order denying Pauline White’s anti—SLAPP motion directed at the Complaint and finding that it was frivolous; and

3) the order awarding attorney's fees to the City of Monrovia for prevailing on its anti~SLAPP motion and for successfully opposing Pauline White’s frivolous anti—SLAPP motion.

The Court of Appeal reversed with regards to the portion of the order granting the City of Monrovia’s anti-SLAPP motion that was directed at the seventh, eighth, ninth, and sixteenth causes of action. Further, the Court of Appeal found that Pauline White could continue to bring her twenty-first cause of action only to the extent that it is premised on the alleged unlawful entry onto her property and alleged invasion of her privacy rights.

The order granting the City's anti-SLAPP motion is reversed in part as to causes of action 7, 8, 9, and 16 of the cross-complaint. That order is also reversed in part as to cause of action 21, to the extent that it is premised on allegations that the City unlawfully entered White's property and violated her Fourth Amendment rights and her right to privacy. In all other respects, the order is affirmed. The order denying White's anti-SLAPP motion is affirmed, as is the order awarding the City its attorney fees in opposing White's anti-SLAPP motion. The City is awarded its costs on appeal in connection with White's anti-SLAPP motion and her challenge to the attorney fee award. In addition, the Court of Appeal awarded the costs on appeal to the City of Monrovia.

The following analysis concerns the following motions:

1) the demurrer to the Cross-Complaint led by the Cross-Defendant, City of Monrovia, Laurie Lile and Steve Sizemore;

2) the motion for leave to amend the Cross-Complaint filed by the Cross-Complainant, Pauline White.

The analysis of the other motions set for this hearing are in separate documents to make it easier to find and review them.

1. Cross-Complainant’s Motion for Leave to Amend

The Cross-Complainant requests leave to file a First Amended Cross-Complaint to address defects identified by the Court of Appeal. However, a review of the proposed First Amended Cross—Complaint reveals that the Cross-Complainant has ignored the orders issued by the trial court on the anti-SLAPP motion and the findings in the opinion of the Court of Appeal because she has pleaded the same twenty-one causes of action.

The Court of Appeal found that only the seventh, eighth, ninth, and sixteenth causes of action plus twenty-first cause of action only to the extent that it is premised on the alleged unlawful entry onto her property and alleged invasion of her privacy rights remained in the Cross-Complaint. The rest of the causes of action were struck under the anti-SLAPP statute.

When the Court grants an anti-SLAPP motion, the opposing party does not have the right to file an amended pleading. Simmons v. Allstate (2001) 92 Cal .App.4th, 1068,1074. Since the Cross-Complainant, Pauline White, does not have a right to amend the first, second, third, fourth, fifth, sixth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action, her proposed First Amended Cross—Complaint was not drafted in conformity with the holding in the opinion of the Court of Appeal.

Pauline White's motion offers no explanation for her failure to comply with the Court of Appeal’s decision.

Further, Pauline White does not identify the effect of any amendments or the need to make any amendments. CCP section 473(a) permits the Court to grant leave to a party to amend a pleading. The Court's discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. Nestle v. Santa Monica (1972) 6 Cal .3d 920, 939. CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

A review of the memorandum and the declaration of Pauline White reveals that she does not identify the effect of her proposed amendments, why the amendments are necessary and proper. or when she discovered facts giving rise to the amended allegations. It is unknown whether she is making a timely attempt to amend her pleading to add a newly discovered claim.

Therefore. the Court will deny Pauline White's motion for leave to amend because her proposed First Amended Complaint was not drafted in conformity with the opinion of the Court of Appeal and because her motion does not comply with the requirements for seeking leave to amend.

2. Cross-Defendants’ Demurrer to Cross-Complaint

The Cross—Defendants argues that the allegations in the Complaint do not plead facts showing that the Plaintiff complied with the Government Claims Act. In actions for damages against local public entities, the claims statutes require timely filing of a proper claim as condition precedent to the maintenance of the action. City of San Jose v. Superior Court (1974) 12 Cal .3d 447, 454. Compliance with the claims statutes is mandatory and failure to file a claim is fatal to the cause of action. Id. As a result, the failure to allege compliance constituted a failure to state a cause of action and subjects a complaint to demurrer. State of California v. Superior Court (2004) 32 Cal .4th 1234, 1242-1243.

Further, the claimant bears the burden of ensuring that the claim is presented to the appropriate public entity. DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991. The failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. Id. at 990.1

In the Cross—Comp1aint, the Cross-Complainant, Pauline White, did not plead any specific facts showing that she complied with the Government Claims Act before filing her claims against the Cross-Defendants. As a result, the Cross-Complaint fails to state a cause of action against the Cross—Defendants.

In her opposition, the Cross—Complainant, Pauline White, does not address this defect. Further, Ms. White does not offer any basis to find that she can correct this defect by amendment, i.e., by offering evidence that she has complied with the Government Claims Act.

Instead, Ms. White argues that there was no meet and confer and that the demurrer is untimely. First, CCP section 430.41 requires a party seeking to file a demurrer to meet and confer in person or by telephone with the party who led the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. Further, it requires the demurrer to be accompanied by a declaration stating facts showing that an attempt to meet and confer was made. Section 430.41 also states that a determination that a meet and confer was insufficient is not grounds to overrule a demurrer.

In the pending case, the Cross-Defendants initially filed a timely demurrer to the Cross-Complaint on September 10, 2013, which was before CCP section 430.41 became effective on January 1, 2016. This demurrer was taken off calendar as moot because the Court granted the Cross-Defendants’ anti-SLAPP motion that was directed at the Cross-Complaint. After the decision on the appeal of the anti—SLAPP motion, the Cross-Defendants filed the demurrer again. Since the Cross-Defendants are filing a demurrer they previously made before the meet and confer requirement was enacted, the Court will advise the Cross-Defendants that they must comply with the requirements of CCP section 430.41 in all future demurrers.

Therefore, the Court will sustain the demurrer to the entire Cross-Complaint because the Cross-Complaint does not include any allegations showing that the Cross-Complainant complied with the Government Claims Act. Since the Cross-Complainant has not shown that she has complied or can comply with the Government Claims Act, the Court will not grant leave to amend.

RULING:

I. Deny Cross-Complainants motion for leave to amend Cross-Complaint.

2. Sustain Cross—Defendants’ demurrer to Cross-Complaint without leave to amend.

MOTION TO DISMISS COMPLAINT & MOTION TO EXPUNGE LIS PENDENS

Calendar: 7

Case No: EC060809

Date: 2/24/17

MP: Defendant, Pauline White

RP: Plaintiffs, City of Monrovia, Laurie Lile, and Steve Sizemore

RELIEF REQUESTED:

Dismiss Plaintiffs’ Complaint

Expunge lis pendens recorded on Defendant’s property.

DISCUSSION:

The following analysis concerns the following motions:

I) the motion of the Defendant, Pauline White, to dismiss the Complaint;

2) the motion of the Defendant, Pauline White, to expunge the lis pendens recorded on the property.

1.Motion to Dismiss Complaint

Defendant argues that the Plaintiff has no standing and that the Plaintiff is barred from using private counsel. The Defendant’s arguments are inapposite because the Plaintiff brought this Complaint to enforce its own ordinances. Further, the Defendant's notion about the use of private counsel offers no grounds to dismiss the Complaint.

The Defendant’s motion identifies no basis for dismissing the Complaint. Instead, the Defendant is seeking relief under CCP section 438, which authorizes a party to file a motion for a judgment on the pleadings. Section 438(d) requires that the grounds for the motion appear on the face of the pleadings or on facts of which the Court may take judicial notice. A motion for a judgment on the pleadings has the purpose and effect of a general demurrer and is led after the time to file a demurrer has expired. Smiley v. Citibank (S.D.), N.A. (1995) 11 Cal. 4th 138, 145-146. Accordingly, just as on a demurrer, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action and accepts as true all material facts alleged therein. Id.

The basis for the Defendant's motion is the evidentiary showing she offers in her declaration, which is in exhibit A to her motion. In her declaration, Pauline White offers her opinions on the claims in the Complaint and facts regarding the conditions on her property. These are facts extrinsic to the pleadings. As a result, they offer no basis to find that the pleadings are insufficient.

Further, the Defendant’s motion is not based on any meaningful attempt to research the law on the issue of public entities bringing civil actions to enforce their ordinances. The Defendant claims that the City of Monrovia lacks standing to bring claims regarding the alleged public nuisance created by her failure to comply with laws and ordinances because the State of California must bring the claims. This argument has been rejected by the California Supreme Court. See e.g., People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 750, fn. 5 (rejecting the argument that the State must bring the civil action and finding that cities have long maintained public nuisance actions). Further, in Clancy, the Supreme Court found that in Government Code section 731, which authorizes civil actions for public nuisance, the Legislature meant to allow cities, as well as the state, to bring such actions. Id.

In addition, Government Code section 36900 expressly authorizes city authorities, i.e., the City of Monrovia, to redress the violation of a city ordinance by civil action. Health and Safety Code section 17980 provides that an enforcement agency may bring an action or proceeding to prevent, restrain, correct, or abate a violation or nuisance. As a result, the Plaintiff has standing to bring the pending action to seek the correction of the alleged public nuisance on the Defendant’s property.

Finally, the Defendant identifies no legal authority holding that a city cannot use a private attorney to redress a violation of a city ordinance in a civil action. The Defendant cites to People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, in which the Supreme Court held that in a criminal action, a contingent fee retainer agreement should be prohibited as unethical and potentially unconstitutional. The Court reasoned that a contingent fee agreement would encourage the private attorney to bring about a conviction without concern for a prosecutor's primary duty to see that justice was done. The Court also found that a contingent fee agreement is also barred in a public nuisance enforcement action because the enforcement of the city ordinances should be done by a neutral prosecuting attorney.

This legal authority concerns a public entity's use of contingent fee agreements to obtain private counsel. It does not bar a public entity from retaining private counsel under an hourly rate. Further, there is nothing in the pleadings regarding the manner by which the Plaintiff is paying its attorneys.

Further, in the opposition papers, the Plaintiff states that it pays its attorneys a flat hourly rate. As a result, this is not an issue.

The Defendant also argues that the Plaintiff has not pleaded sufficient facts in each cause of action because the Plaintiff “simply assumes" that the Defendant built her walls without: permits and that the existence of the walls is a nuisance. However, for the purposes of ruling on a motion directed at the pleadings, the Plaintiff's allegations are assumed true and the Plaintiff's ability to prove the allegation is of no concern. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal .3d 197, 213-214. Since the Plaintiff alleges that the Defendant has built walls on her property without permits and in violation of ordinances, these allegations are assumed true and they are sufficient to constitute a claim for public nuisance. Therefore, the Defendant's motion will be denied because the Defendant has identified no grounds to find that the pleadings should be dismissed as insufficient.

  1. Defendant’s Motion to Expunge

The Defendant argues that the Court should expunge the lis pendens because the Plaintiff has no standing, the Complaint should be dismissed, and there is no real property claim.

First, the Defendants arguments about standing are not correct. As discussed above in the analysis of the Defendant’s motion to dismiss, cities have standing to bring civil actions to enforce ordinances. As a result there are no grounds to find that the Plaintiff lacks standing or that the Complaint should be dismissed for lack of standing.

Second, there are no grounds to find that the Plaintiff does not have a real property claim. A lis pendens may be expunged either under CCP section 405.31 if the pleadings do not contain a real property claim or under CCP section 405.32 if the Court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. Under CCP section 405.30, the party claiming the lis pendens has the burden of proof of showing either that the pleadings contain a real property claim or that the probable validity of the real property claim can be established by a preponderance of the evidence.

In the Complaint, the Plaintiff seeks to enjoin the Defendant’s use or maintenance of conditions on her property that violate its municipal code. When it applied for a preliminary injunction, the Plaintiff provided facts in the declarations of Raymond Tao, a Public Works Engineering Consultant, and Evan Nuckles, a Senior Building Inspector, to show that the Defendant has been engaged in construction and grading work on her property without a permit. Mr. Nuckles inspected the property and stated that the Defendant has constructed or is constructing retaining walls to retain a portion of the hillside on her property. Further, Mr. Nuckles stated that the Defendant refused to halt the construction and refused to comply with Stop Work Orders. Mr. Nuckles also provided facts indicating that the Plaintiff has been investigating and attempting to resolve this dispute since 2010. Mr. Tao provided facts that corroborated the facts in Mr. Nuckles’ declaration, e.g., the Defendant has built or is building retaining walls without permits. As a result, the Court granted the Plaintiff’s requested preliminary injunction on August 28, 2013.

Health and Safety Code section 17980 provides that an enforcement agency may bring an action or proceeding to prevent, restrain, correct, or abate a violation or nuisance. In addition, section 17985 requires the enforcement agency to record a notice of lis pendens on the property.

In the pending case, the Complaint includes a real property claim that is grounds for a lis pendens because the Plaintiff brought the action to correct a violation of its municipal code and, as a result, it is required by Health and Safety Code section 17985 to record a notice of lis pendens on the property. Further, the Plaintiff has provided evidence that the probable validity of its real property claim can be established by a preponderance of the evidence with the facts showing that the Defendant has engaged in construction work on her property without a permit, and has refused to halt the work or comply with the requirement to obtain a permit.

Therefore, the Plaintiff has met its burden of proof under CCP section 405.30 because it has shown that its Complaint contains a real property claim and that the probable validity of the real property claim can be established by a preponderance of the evidence.

The Defendant also argues that the lis pendens was not properly served. CCP section 405 .22 requires a claimant of a lis pendens to cause a copy of the notice to be mailed. In the opposition papers, the Plaintiff provides a copy of a letter that included the notice of lis pendens as an enclosure in exhibit A. A review of the notice of lis pendens reveals that it includes a proof of service showing that the notice was sent to the Defendant through certied mail on June 28, 2013. The Plaintiff’s attorney, Eric Markus, states that his office received on July 9, 2013 the certified mail envelope and a note stating that it had been “refused". Since this evidence shows that the Plaintiff mailed the copy of the notice to the Defendant on June 28, 2013, there are no grounds to find that the notice of lis pendens was not mailed to the Defendant.

Finally, the Defendant requests other remedies, including an order vacating a preliminary injunction and ordering the return of all sanctions she has paid. The Defendant identifies no basis to vacate the preliminary injunction or to order the return of all monetary sanctions she has paid. The Defendant’s argument that the Court incorrectly awarded monetary sanctions to the Plaintiff lacks any merit because the Court of Appeal has already considered and rejected her appeal of the orders. Further, the Defendant's argument that the Plaintiff cannot retain private attorneys in this case is incorrect, as discussed in the analysis above.

Therefore, the Court will deny the Defendant's motion in its entirety.

RULING:

1. Deny Defendant’s motion to dismiss in its entirety.

2. Deny Defendant’s motion to expunge in its entirety.

PLAINTlFF’S MOTION FOR ATTORNEY’S FEES AND

DEFENDANT’S MOTION FOR RELIEF

Calendar: 7

Case No: EC060809

Date: 2/24/17

RELIEF REQUESTED:

1. Plaintiffs, City of Monrovia, Laurie Lile, and Steve Sizemore

Order awarding attorney’s fees of $102,669.

2. Defendant, Pauline White

Order granting relief from failure to file motion to tax costs on appeal

DISCUSSION:

The following analysis concerns the following motions:

1) the Plaintiff’s motion for attorney’s fees incurred on appeal; and

2) the Defendant’s motion to tax costs from the memorandum of costs on appeal.

1. Plaintiff’s Motion for Attorney's Fees

The Plaintiff seeks to obtain the attorney’s fees it incurred to prevail in the appeal of the trial court’s orders that granted its anti-SLAPP motion and that denied the Defendant's anti-SLAPP motion. A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1499-1500. Since CCP section 425.16 does not preclude recovery of appellate attorney fees, they are recoverable. ld. Further, the trial court's authority to award fees and costs under CCP section 425.16 includes the authority to award fees incurred in responding to an appeal of an order granting or denying a special motion to strike, or of an order awarding attorney’s fees in connection with such motion. Carpenter v. Jack in the Box Corp. (2007) 151 Cal .App.4th 454, 461.

In her opposition, the Defendant asserts that the Plaintiff has no standing to bring the Complaint to enforce its own municipal codes. This argument is analyzed in her motions to dismiss the Complaint and has no merit.

Further, the Defendant argues that there is no statute authorizing the recovery of attorney’s fees. As discussed above, CCP section 425.16 is authority for awarding attorney’s fees to the Plaintiff because it prevailing on its anti-SLAPP motion and on the Defendant’s frivolous anti—SLAPP motion.

The Defendant then argues that the Plaintiff is not the prevailing party. However, as noted above, the Court of Appeal awarded costs to the Plaintiff on appeal. As a result, the Plaintiff may recover the costs, including its attorney’s fees, that it incurred on appeal.

The Defendant also argues that the Court of Appeal was mistaken and that her anti—SLAPP motion was not frivolous. This Court does not review the opinions of the Court of Appeal; instead, under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455-456. Decisions of every division of the District Courts of Appeal are binding upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Id. Accordingly, the decision of the Court of Appeal and its finding that the Defendant’s anti-SLAPP motion was frivolous are binding on this Court.

In addition to the Defendant’s opposition, the first position lien holder for the property, Bank of New York Mellon, has filed opposition papers to argue that the Plaintiffs are not entitled to obtain a lien on the property.

However, this hearing does not concern the imposition of any lien on the property. lnstead, this hearing concerns the amount of attorney’s fees to award the Plaintiff as the prevailing party on the appeal of the anti-SLAPP orders. Accordingly, the arguments of the first position lien holder offer no grounds to find that the Court should not award attorney’s fees to the Plaintiff.

Therefore, the Court will award the Plaintiff the attorney’s fees that it incurred when it prevailed on the appeal of its anti-SLAPP motion and on the appeal of the Defendant's frivolous anti-SLAPP motion.

The Plaintiff requested an award of $102,669 based on the accounting provided by the Plaintiff’s counsel, William Litvak, in his declaration. Mr. Litvak states that $99,744 is based on the 238.8 hours billed by the Plaintiff’s attorneys, Anita Zuckerman. who billed 151.8 hours at $450 per hour, Gilbert Mikalian, who billed 30.3 at $300 per hour, Charlene Wyder, who billed 33 hours at $350 per hour, Caroline Castillo, who billed 13.5 hours at $350 per hour, and Adessa Anderson, who billed 10.2 hours at $225 per hour. Mr. Litvakprovides copies of the invoices in exhibit F and a chart identifying the hours billed by each attorney in exhibit E. Mr. Litvak provides facts in paragraph 19 to show that the hourly rates are reasonable for the appeal. In paragraph 2] , Mr. Litvak states that Adessa Anderson expects to bill 13 hours at $225 per hour on the pending motion. which totals $2,925. These facts support the $102,669 requested.

Further, a review of the motion and the billing records reveals that the amount sought is a reasonable amount of attorney’s fees to incur to prevail on the appeal of the orders.

The Defendant, Pauline White, and the first position lien holder, Bank of New York, argue that the Plaintiff did not prevail on its motion because the Court of Appeal reversed the order on five of the twenty—one causes of action. A party prevails when, in essence, the party obtains most or all of what the party wanted by filing the action. Elster v. Friedman (1989) 21 1 Cal .App.3d 1439, I443-I444. The opposition papers strain the definition of prevailing by claiming that the Plaintiff could prevail only if the Plaintiff obtained an order that struck the entire Cross-Complaint. This is not persuasive, since Plaintiff obtained most, but not all of what it wanted.

This success is sufficient.

Here, the Plaintiff obtained most of what the Plaintiff sought when it filed its anti-SLAPP motion, which was an order that struck sixteen of the twenty-one causes of action, i.e., the removal of approximately 76% of the causes of action in the Cross-Complaint, on the ground that these sixteen causes of action arose from acts in furtherance of the Plaintiff’s right of petition or free speech under the United States or California Constitution, and the Defendant could not establish a probability of prevailing on these claims. As a result, the Plaintiff prevailed by protecting its right to free speech and petition when it obtained an order striking the causes of action that arose from its acts in furtherance of free speech and petition. Further, the Plaintiff obtained all of what the Plaintiff sought when the Court of Appeal affirmed the order denying the Defendant’s frivolous anti-SLAPP motion and when the Court of Appeal affirmed the order granting attorney’s fees to the Plaintiff.

Accordingly, there are no grounds to find that the Plaintiff did not prevail on the appeal because it protected its constitutional rights, it obtained an order denying the Defendant’s anti-SLAPP motion, and it obtained an order awarding attorney’s fees to the Plaintiff for prevailing on the anti-SLAPP motions.

The Defendant and the first position lien holder then argue that the fees are unreasonable and that the Plaintiff is obtaining windfall profits. As noted above, a review of the billing records and the services provided on the appeal reveals that the number of hours and the hourly rates are reasonable on this matter. The number of hours billed is the result of the Defendant’s method of litigation, which is to make numerous arguments without much legal merit, e.g., her arguments that the Court should disregard the “incorrect” decisions of the Court of Appeal. As a result, Plaintiff’s attorneys were required to consume a substantial amount of time to address the grounds raised by the Defendant in her appeal of the order granting the Plaintiff's anti-SLAPP motion, the order denying the Defendant's anti-SLAPP motion, and the order granting attorney's fees to the Plaintiff for prevailing on its own anti-SLAPP motion and on the Defendant’s frivolous anti-SLAPP motion.

In light of the circumstances of this litigation, the amount of attorney’s fees sought by the Plaintiff is quite reasonable.

Therefore, the Court will award the requested amount of attorney's fees to the Plaintiff.

2. Defendant’s Motion for Relief

Defendant seeks relief from her failure to file a motion to tax costs from the Plaintiff’s memorandum of costs on appeal. The Defendant sought relief under the mandatory and discretionary provisions of CCP section '473(b), which authorizes the Court to grant relief to a party a judgment, dismissal, order, or other proceeding taken against the party through the party's mistake, inadvertence, surprise, or excusable neglect.

Section 473(b) authorizes mandatory relief from a dismissal or default caused by an attorney’s mistake, inadvertence, surprise, or neglect. This mandatory relief provision only applies in the case of an “attorney” representing a “client." Esther B. v. City of Los Angeles (2008) 158 Cal _App.4th 1093, 1099-1100. The discretionary provision applies to a party, including a party appearing in propria persona or an attorney representing a party. Id. The mandatory provision only applies to an attorney representing a party. As a result, the mandatory provision does not apply to a party appearing in pro per. Id.

Here, the Defendant is appearing as a self-represented litigant. Since the Defendant is not appearing through an attorney representing her, she cannot obtain relief under the mandatory provisions of section 473(b). As a result, she can only obtain relief from her failure to file a timely motion to tax costs under the discretionary provision.

The Plaintiff filed and served by mail its memorandum of costs on appeal on November 4, 2016. Under CRC rule 3.l700(b), the Defendant had twenty days after service by mail to file a motion to tax costs. Rule3.l700(b)(3) authorizes the Court to extend the times for serving and filing a motion to tax costs for a period not to exceed third days. Accordingly, the Defendant had until November 24, 2016 to file a timely motion to tax costs and the Court could extend this time period to December 24, 2016.

The Defendant did not file a timely motion to tax costs. Instead, the Defendant filed on December 13, 2016 a motion for relief under CCP section 473(b). The motion is accompanied by a proposed motion to tax costs. As a result, the Defendant filed a motion to tax costs within the thirty-day extended period, i.e., before December 24, 2016. However, she did not obtain the Court order needed to extend the time period through December 24, 2016.

Under CCP section 473(b), the Court may grant relief from a party's mistake, surprise, inadvertence, or excusable neglect. This does not authorize relief for an attorney who is aware of legal papers and fails to address them because the attorney forgot them or was too busy, i.e., the press of business excuse. Elston v. City of Turlock (1985) 38 Cal .3d 227, 234-235. However, it does authorize relief for an attorney who is unaware of legal papers because the office is understaffed and the papers are misplaced. Id.

Here, the Defendant, Pauline White, offers facts in her declaration to state that when she received the Plaintiff’s memorandum of costs that had been served on November 4, 2016, the two—page document was among a large pile of other documents she received from the Plaintiff. Ms. White states that on November 22, 2016 she had surgery on her eyes and that the stitches did not come out until November 28, 2016. Ms. White states that she first noticed the memorandum of costs when she was preparing her motion to dismiss on December 8, 2016.

Ms. White states that she had previously determined that she needed to continue the Plaintiff‘s motion for attorney’s fees because it was set on a date on which she had a trial. Ms. White states she appeared with an ex parte application on December 8, 2016 to request a continuance of the Plaintiff’s motion for attorney’s fees.

Ms. White states that, if she had seen the memorandum of costs before she appeared for this ex parte, she would have requested additional time to bring her motion to tax, costs in the same ex parte application.

These facts show that the Defendant’s failure to seek the 30-day extension under CRC rule 3.1700 was caused by her failing to notice the two-page memorandum of costs among numerous other papers the Defendant had received from the Plaintiff. The facts in the declaration of Ms. White show that she was unaware of the memorandum of costs and that this caused her to fail to seek an order extending the time to file a motion to tax costs, which should could have obtained when she appeared with an ex parte application on another matter on December 8, 2016. This identifies grounds to grant the Defendant relief from her inadvertence and excusable neglect by granting her the thirty-day extension under CRC rule 3.1700 to file a motion to tax costs through December 24, 2016 and by accepting the motion to tax costs she filed on December 13,2016.

Therefore, the Court will grant the Defendant’s motion for relief from her failure to seek an extension of time under CRC rule 3.1700 to file a motion to tax costs. In addition, the Court will set the motion to tax costs for a hearing.

RULING:

1. Grant Plaintiff’s motion for attorney's fees in the sum of $102,669.00.

2. Grant Defendant’s motion for relief and set a hearing on her motion to tax costs.

Motion for an Order Vacating the Court’s July 5, 2019 Order Staying “Collection” in its Entirety (filed 12/31/19):

The Court will hear argument with respect to whether this as yet unopposed motion will be set for hearing, as it appears that with the resolution of the appeal, and the above discussed motions, this motion is moot, and collection is no longer stayed.

Motion to Disqualify Counsel

The Court previously considered the motion (filed 12/23/20) for a hearing date of January 17, 2020. The matter is briefed, and the Court now issues the following tentative ruling:

Defendant White seeks an order disqualifying counsel for plaintiff the City. Defendant relies on CCP § 128 (a)(5), pursuant to which the trial court has the power “(5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”

Defendant argues that the City here has hired private counsel which has filed and maintained this litigation only for attorney’s fees, when this civil action, to abate a public nuisance may be brought by a district attorney or the city attorney. Defendant relies on CCP § 731, which provides:

“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists. Each of those officers shall have concurrent right to bring an action for a public nuisance existing within a town or city. The district attorney, county counsel, or city attorney of any county or city in which the nuisance exists shall bring an action whenever directed by the board of supervisors of the county, or whenever directed by the legislative authority of the town or city.”

Defendant argues that the City here is represented by a private law firm, not the district attorney or city attorney.

As pointed out in the opposition, the court of appeal has evidently already addressed and rejected these arguments. As noted above, the court of appeal in connection with the first appeal in this matter (“Monrovia I”), affirmed an order denying White’s anti-SLAPP motion, as well as the order awarding the City its attorney fees in opposing that motion, and ordered the City awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award. [RFJN, Ex. 1, pp. 10, 11]. In connection with the second appeal in this matter, which affirmed the fees award to the City on the first appeal (“Monrovia II”), White’s contentions included that “the City cannot recover fees paid to private counsel.” [RFJN, Ex. 2, p. 4].

The court of appeal in Monrovia II addressed the issue as follows:

“III. City's use of private counsel

The City was not precluded from retaining private counsel to prosecute its public nuisance action against White. Contrary to White's assertion, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (Clancy) does not prohibit the City from doing so. In that case, the California Supreme Court held that the City of Corona could not retain outside counsel, on a contingency fee basis, to prosecute a public nuisance action against an adult bookstore. (Id. At pp. 747-748.) The high court reasoned that the city's contingent fee arrangement with a private attorney was inappropriate because it gave the attorney a financial interest in the outcome of the case and was "antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public nuisance abatement action." (Id. at p. 750.)

The City's attorneys in this case were not retained on a contingency fee basis, as is evident from the billing statements and declaration in support of the City's motion for attorney fees. Clancy accordingly is inapposite.

[RFJN, Ex. 2, p. 6].

The court of appeal went on to reject defendant’s argument that the lodestar standard is not the appropriate standard to be applied in this matter in connection with attorney’s fees awards:

“The record shows that that the trial court applied the lodestar method in determining that the City was entitled to $ 102,669 in attorney fees, based upon a total of 238.8 hours spent by the City's attorneys in responding to White's prior consolidated appeals, her petition for rehearing, the subsequent petition for review, and in preparing for appearing at the hearing on the City's motion for attorney fees. The trial court specifically found the hourly rates charged by the City's attorneys to be reasonable.

White contends the attorney fee award should have been based solely on the hourly rates actually billed to the City under its contract with its attorneys; however, "[t]here is no requirement that the reasonable market rate mirror the actual rate billed." (Syers Properties 111, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701-702.) " 'The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]' [Citation.f' (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260; accord Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

[RFJN, Ex. 2, p. 7].

It would appear that the issues were addressed by the court of appeal, and the law of the case is now that the use of a private law firm in this matter is not improper, and the potential that private counsel may recover fees in this matter based on a lodestar standard is not improper. As argued in the opposition, under the doctrine of law of the case, “the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, quoting, 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 737, pp. 705-707.

The motion to disqualify counsel, based on these same arguments, accordingly is denied.

Even if the court were to consider the issues raised by the motion anew, it would appear that a reading of the case law relied upon, People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, would not warrant granting the motion.

It is held that the issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility, and the trial court’s determination will not be disturbed unless there is an abuse of discretion. Forrest v. Baeza (1997) 58 Cal.App.4th 65.

Here, plaintiff’s argument is that the private law firm representing the City here should not be permitted to do so, but a district attorney or city attorney should be prosecuting the action, which counsel would be limited in the fees which could be claimed, or that there is somehow a conflict of interest created by the fact that the private law firm may pursue lodestar fees which could exceed the contract amount between the firm and the City, resulting in a windfall to the law firm. The California Supreme Court in Clancy recognized that disqualifying an attorney is “extraordinary relief,” but held it was appropriate there because the lawyer retained as an independent contractor to represent the City in a nuisance abatement action on a contingency basis:

“In the case at bar, Clancy has an interest in the result of the case: his hourly rate will double if the City is successful in the litigation. Obviously, this arrangement gives him an interest extraneous to his official function in the actions he prosecutes on behalf of the City.”

Clancy, at 743, 747-748.

The Court based the holding on the facts of the case and the effect of the contingency arrangement, and noted, “Nothing we say herein should be construed as preventing the government, under appropriate circumstances, from engaging private counsel.” Clancy, at 749.

The Clancy case does not provide grounds to disqualify counsel in this case, where counsel not proceeding on a contingency basis. [See Markus Decl. ¶ 16].

There are no circumstances here giving rise to some lack of neutrality on the part of counsel which would warrant the extraordinary relief of disqualification.

Moreover, to the extent defendant argues that this is a situation where there is no control being asserted by the City over the actions of private counsel, this type of control is now required in connection with the engagement of private counsel under certain contingency agreements, which is not at issue here. See County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35. Again, this is not a case involving a contingency agreement. [Markus Decl. ¶ 16]. Moreover, the City has submitted evidence showing that the City has retained control of this litigation. [Markus Decl. ¶ 19].

The court under these circumstances will not interfere with plaintiff’s choice of counsel, and the motion is denied.

RULING:

Motion to Disqualify Plaintiff’s Counsel is DENIED. The court of appeal has already determined that there is no impropriety here in the representation of the City by private counsel on a non-contingency basis under People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, and that the trial court has properly awarded fees to the City based on a lodestar analysis. This Court recognizes and follows these determinations as the law of the case. Even if those determinations were not binding on this court, the Court would determine that there are no grounds established for disqualification of plaintiff’s counsel here, as there is no contingency agreement with the private law firm in this matter. [Markus Decl. ¶ 16].

GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.

Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.

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