On 12/20/2016 COREY GRAY filed a Personal Injury - Other Personal Injury lawsuit against GEORGE GELSEBACH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
SANAI CYRUS M
SCHWIMER MICHAEL EVAN
ROSENTHAL LISA F ESQ.
FELDMAN KENNETH C
1/30/2018: MOTTON FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF CYRUS SANAI IN SUPPORT THEREOF
2/5/2018: REQUEST FOR JUDICIAL NOTICE
2/5/2018: PROOF OF SERVICE FOR OPPOSITION AND RESPONSE DOCUMENTS BY COREY GRAY
2/7/2018: NOTICE OF CONTINUANCE OF HEARING ON DEFENDANT GEORGE GELSEBACH'S ANTI-SLAPP MOTION
2/9/2018: NOTICE OF ERRATA TO MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, ETC
2/20/2018: PROOF OF SERVICE FOR MOTION FOR LEAVE TO AMEND AND REPLY IN SUPPORT THEREOF
2/21/2018: DEFENDANT GEORGE GELSEBACH'S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT; ETC
2/27/2018: Minute Order
3/6/2018: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)
3/8/2018: DEFENDANT GEORGE GELSEBACH'S EX PARTE APPLICATION FOR ENFORCEMENT OF STAY OF PROCEEDINGS; DECLARATION OF BARRY ZOLLER
3/14/2018: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL
3/28/2018: SUBSTITUTION OF ATTORNEY
7/23/2018: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)
12/20/2016: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
9/27/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
11/6/2017: NOTICE OF ASSOCIATION OF COUNSEL
11/8/2017: DEFENDANT GEORGE GELSEBACH?S EX PARTE APPLICATION FOR EXTENSION OF TIME TO FILE ANTISLAPP MOTION PER C.C.P. ? 425.16(F)
11/8/2017: ORDER GRANTING DEFENDANT GEORGE GELSEBACH?S EX PARTE APPLICATION FOR AN EXTENSION OF TIME TO FILE ANTI-SLAPP MOTION PER C.C.P. ? 425.16(1)
Notice (of Status Conference); Filed by George Gelsebach (Defendant)Read MoreRead Less
at 08:30 AM in Department 24; Order to Show Cause Re: Dismissal - HeldRead MoreRead Less
Minute Order ((Order to Show Cause Re: Dismissal)); Filed by ClerkRead MoreRead Less
Response (to order to show cause); Filed by Corey Gray (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 24; Status Conference - HeldRead MoreRead Less
Minute Order ((Status Conference)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Status Conference) of 12/03/2018); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 24; Status Conference (Status Conference; Matter continued) -Read MoreRead Less
Minute OrderRead MoreRead Less
Minute order entered: 2018-10-01 00:00:00; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
at 1:30 PM in Department 44; Unknown Event Type - Held - Motion GrantedRead MoreRead Less
Order on Court Fee Waiver After Hearing (Superior Court); Filed by CourtRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Order; Filed by ClerkRead MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by ClerkRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Complaint; Filed by Corey Gray (Plaintiff)Read MoreRead Less
Request to Waive Court Fees; Filed by Corey Gray (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Case Number: BC644227 Hearing Date: October 27, 2020 Dept: 24
Defendants Michael Klosk’s motion is GRANTED.
On December 20, 2016, Plaintiff Corey Grey filed the instant malicious prosecution suit against Defendants George Gelsebach, William Vallejos, and Michael Klosk. This case arises out of a series of underlying unlawful detainer dispute between the parties. Plaintiff prevailed on the third unlawful detainer action and followed with this suit.
Gelsebach filed an anti-SLAPP motion. On February 27, 2018, the trial court denied the motion and an appeal followed. On April 16, 2020, the Court received a remittitur on appeal. The appellate court reversed the denial of the motion, holding that Gelsebach had probable cause to bring the third unlawful detainer action. On October 7, 2020, the Court entered judgment against Plaintiff on that basis.
On August 27, 2020, Klosk filed the instant unopposed motion for judgment on the pleadings.
A defendant’s motion for judgment on the pleadings may be made after the time to demur has expired and an answer has been filed. (CCP § 438(f).) A motion by a defendant may be made on the grounds that (1) the court “lacks jurisdiction of the subject of one or more of the causes of action alleged” or (2) the complaint or cross-complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (CCP § 438(c).)
A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citations.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice.” (See Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.)
Like a general demurrer, “ordinarily, a [motion for judgment on the pleadings] does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations—assumed to be true and liberally construed—are sufficient to constitute a cause of action. (Stone Street Capital, LLC v. Cal. State Lottery Com’n (2008) 165 Cal.App.4th 109, 116.)
Meet and Confer Requirement
Before filing a statutory motion for judgment on the pleadings, a moving party's counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading subject to the judgment on the pleadings motion “for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (CCP § 439(a).) The Court finds the meet and confer effort sufficient. (See Rosenthal Decl., Ex. A.)
The Court agrees that the Law of the Case Doctrine applies here. (See San Francisco Baykeeper v. State Lands Comm. (2018) 29 Cal.App.5th 562.) The appellate court’s decision regarding probable cause would preclude liability against Klosk.
Accordingly, Klosk’s motion is GRANTED without leave.
Moving party is ordered to give notice.
Case Number: BC644227 Hearing Date: September 16, 2020 Dept: 24
Defendant George Gelsebach’s motion to enter judgment post-appeal is GRANTED. Defendant’s motion for attorneys’ fees is GRANTED in the reduced amount of $190,939.00.
On December 20, 2016, Plaintiff Corey Gray commenced this malicious prosecution action against Defendants Goerge Gelsebach, William Vallejos, and Michael Klosk. The complaints allege that Gelsebach and his counsel Vallejos and Klosk filed and prosecuted a series of unlawful detainer actions against Gray without probable cause.
On December 12, 2017, Gelsebach filed an anti-SLAPP motion against the FAC. After briefing and hearing on the matter on February 26, 2018, this Court denied the anti-SLAPP. Gelsebach appealed on March 5, 2018. On December 11, 2019, the Court of Appeal reversed the order denying the anti-SLAPP and instructed that the claims fail as a matter of law. The Court of Appeal also denied Gray’s subsequent motions to for re-hearing and new evidence on appeal. Certiorari was denied on March 25, 2020. Remittitur was issued on April 16, 2020.
On June 11, 2020, Gelsebach filed the instant motion to enter judgment in his favor and award attorneys’ fees pursuant to CCP section 425.16(c). Gelsebach requests $201,034.00 for fees incurred for the anti-SLAPP motion, for the appeal, and filing this motion. No opposition was submitted.
“Under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The fee-shifting provision also encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)
“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citation.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623 624.) The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.)
In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.) General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Ibid.)
As an initial matter, the Court finds that Gelsebach is the prevailing party for the purposes of the anti-SLAPP motion. Plaintiff cannot reasonably dispute that Gelsebach prevailed on appeal. Gelsebach is thus entitled to reasonable fees.
Here, Gelsebach requests $95,232 for the attorney fees incurred for the anti-SLAPP motion, $84,167 for the appeal, and $21,635 for this fee motion, for a total of $201,034.00 in fees. Counsel supports these fees with sworn declarations of Kenneth C. Feldman, Barry Zoller and Michael E. Schwimer, and two volumes of Exhibits. Counsel provides a full summary of time spent on the various tasks that were necessary for the anti-SLAPP motion, the appeal and the fee motion. Counsel also disclose their reasonable billing rates. The Court agrees that defense counsel’s hourly rates of $490 and $475 per hour are reasonable considering their experience and prevailing rates. This provides a strong evidentiary basis to determine fees using the lodestar method.
Plaintiff failed to object to any portion of the fees. Thus, Gelsebach meets his burden of proof to demonstrate that he has incurred the above amounts. However, the Court notes that a portion of the fees were based on a predicted opposition and reply. As there was no opposition, and thus no need to reply, these anticipated fees should be removed. The Court will accordingly reduce the total fees reward by $10,095.00.
Per the December 11, 2019 Court of Appeal opinion reversing the prior order denying Gelsebach’s anti-SLAPP motion, Gelsebach’s motion is GRANTED. Accordingly, fees are awarded in the reduced total amount of $190,939.00.
Moving party is ordered to give notice.