This case was last updated from Los Angeles County Superior Courts on 04/09/2016 at 15:38:20 (UTC).

EMMANUEL B. DAVID VS. MARLENE Z. ROBERTSON

Case Summary

On 01/22/2013 EMMANUEL B DAVID filed a Contract - Other Contract lawsuit against MARLENE Z ROBERTSON. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are C. EDWARD SIMPSON and DONNA FIELDS GOLDSTEIN. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****0829

  • Filing Date:

    01/22/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

C. EDWARD SIMPSON

DONNA FIELDS GOLDSTEIN

 

Party Details

Plaintiff

DAVID EMMANUEL B.

Defendants

1450 NORTH FAIR OAKS LLC

AREVALO JOE AN IND. AKA AREVALO JOSE F.

CLOVERLEAF HEALTHCARE CENTER LLC

EBDMZR II LLC

EBDMZR LLC

GOLDEN CROSS CARE INC.

GOLDEN CROSS CARE INC. II

INTERNATIONAL HEALTHCARE MANAGEMENT &

M.E. MARLENE 5TH FAMILY LIMITED

M.E. MARLENE SEVENTH FAMILY LIMITED

MERCADO JOSEMAR

MZR LLC

MZR MANAGEMENT & SYSTEMS CORPORATION

MZR PROPERTIES III LLC

MZR V LLC

RANCHO TANJAY HEALTHCARE CENTER INC.

ROBERTSON MARLENE Z.

EBDMZR II

RANCHO TANJAY HEALTHCARE CENTER

11 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

SANDERS COLLINS & REHASTE LLP

THOMAS A. COLLINS ESQ.

Defendant Attorney

FOWLER HELSEL VOGT

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 04/04/2016
  • Report of Receiver (FOR FEBRUARY 2016 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES ) Filed by Receiver

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  • 03/11/2016
  • Reply (TO OPPOSITION TO MOTION FOR ENFORCEMENT OF SETTLEMENT AND ORDER FOR JUDGMENT PER CCP SECTION 664.6; DECLARATION OF THOMAS A. COLLINS ) Filed by Attorney for Plaintiff

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  • 03/08/2016
  • Opposition (TO MOTION FOR ENFORCEMENT OF SETTLEMENT AND ORDER FOR JUDGMENT PER CCP SECTION 664.6; DECLARATION OF JOE AREVALO; DECLARATION OF JORAN M. FREEMAN; DECLARATION OF MARLENE Z....) Filed by Atty for Defendant and Cross-Compl

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  • 03/07/2016
  • Opposition (TO MOTION FOR ENFORCEMENT OF SETTLEMENT AND ORDER FOR JUDGMENT PER CCP SECTION 664.6; DECLARATION OF JOE AREVALO; DECLARATION OF JORAN M. FREEMAN; DECLARATION OF MARLENE Z. ROBERTSON) Filed by Atty for Defendant and Cross-Compl

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  • 03/04/2016
  • Notice (OF CHANGE OF TIME FOR ORDER TO SHOW CAUSE ) Filed by Attorney for Plaintiff

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  • 02/26/2016
  • Report of Receiver (FOR JANUARY 2016 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES ) Filed by Receiver

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  • 02/25/2016
  • Notice (OF LODGMENT OF EXHIBITS IN SUPPORT OF MOTION FOR ENFORCEMENT OF SETTLEMENT AND ORDER FOR JUDGMENT PER CCP SECTION 664.6 AND REQUEST FOR SANCTIONS PER CCP SECTION 128.5) Filed by Attorney for Plaintiff

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  • 02/25/2016
  • Motion (FOR ENFORCEMENT OF SETTLEMENT AND ORDER FOR JUDGMENT PER CCP SECTION 664.6; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF THOMAS A. COLLINS; DECLARATION OF DAVID ELDAN; DECLARATION OF CYNTHIA...) Filed by Attorney for Plaintiff

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  • 02/01/2016
  • Report of Receiver (FOR DECEMBER 2015 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES ) Filed by Receiver

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  • 01/06/2016
  • Report-Status (FOR NOVEMBER 2015 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES ) Filed by Receiver

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229 More Docket Entries
  • 04/03/2013
  • Application - Miscellaneous (for an order appointing receiver ) Filed by Attorney for Plaintiff

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  • 03/27/2013
  • Memorandum-Points and Authorities ((2) ) Filed by Attorney for Defendant

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  • 03/27/2013
  • Demurrer Filed by Attorney for Defendant

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  • 03/27/2013
  • Request for Judicial Notice ((2) ) Filed by Attorney for Defendant

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  • 03/01/2013
  • Proof-Service/Summons Filed by Attorney for Plaintiff

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  • 02/27/2013
  • Ntc and Acknowledgement of Receipt Filed by Attorney for Plaintiff

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  • 02/21/2013
  • Proof-Service/Summons Filed by Attorney for Plaintiff

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  • 01/30/2013
  • Notice-Pending Action Filed by Attorney for Plaintiff

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  • 01/23/2013
  • Notice-Pending Action Filed by Attorney for Plaintiff

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  • 01/22/2013
  • Complaint Filed

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Tentative Rulings

Case Number: GC050829    Hearing Date: October 25, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

emmanuel b. david, et al.,

Plaintiffs,

v.

marlene z. robertson, et al.,

Defendants.

Case No.: GC050829

Hearing Date: October 25, 2019

[TENTATIVE] order RE:

(1) motion for attorney’s fees; and

(2) motion to strike or tax costs

BACKGROUND

  1. Factual Allegations and Background

    This action was initiated on January 22, 2013. Underlying this action is Plaintiff Emmanuel David’s (“David”) claim that Defendants breached a number of settlement agreements regarding skilled nursing facilities in Hemet, Fresno, and Pasadena. Plaintiff alleges that Defendants breached each of the settlement agreements by failing to pay all amounts due. Plaintiff sought remedies that include damages, judicial foreclosure on the property of the Defendants, declaratory relief, and specific performance of the agreements.

    Defendant 1450 North Fair Oaks, LLC (“1450 LLC”) then filed a motion to enforce the Final Settlement Agreement and for Judgment per CCP §664.6 (“664.6 Motion”). 1450 LLC sought a court order determining that the purchase price of the property located at 1450 North Fair Oaks Avenue, Pasadena, California under the Final Settlement Agreement, effective September 30, 2015 (“Final Agreement”) be $5.3 million, and that judgment be entered in 1450 LLC’s favor against Mount (seller) and David in the amount of $520,000.

    The Court considered the briefs of 1450 LLC and Plaintiff Mount of Olives, LLC (“Mount”) and heard oral argument on the matter. On July 29, 2019, the Court ruled on the matter, denying 1450 LLC’s motion to enforce the settlement agreement.

    On August 5, 2019, Mount filed a Notice of Entry of Judgment or Order regarding the July 29, 2019 order.

  2. Motions on Calendar

    On August 20, 2019, Mount filed a memorandum of costs against 1450 LLC, seeking a total of $6,083.76, which includes the following:

On August 29, 2019, Mount filed a motion for attorney’s fees against 1450 LLC in the amount of $94,616.94. 1450 LLC opposes.

On September 9, 2019, 1450 LLC filed a motion to strike and/or tax costs submitted by Mount. Mount opposes.

DISCUSSION: 1450 LLC’S MOTION TO STRIKE/TAX COSTS

  1. Request for Judicial Notice

    Mount requests judicial notice of various documents filed with the Court.

    1450 LLC requests judicial notice of the FAC filed in Cased No. BC722848.

    The requests are granted. (Evid. Code, §452(d).)

  2. Merits of 1450 LLC’s Motion to Strike/Tax Costs

    1450 LLC moves to strike and/or tax costs in their entirety, arguing that Mount is not the prevailing party pursuant to CCP §1032 and thus is not entitled to costs on the 664.6 Motion. 1450 LLC argues that Mount is not a “prevailing party” on the action based solely on the result of the 664.6 Motion because a denial of the 664.6 Motion is not appealable and judgment has not yet been entered.

    CCP §1032(a)(4) defines “prevailing party” as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” A prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP §1032(b).)

    Here, the 664.6 Motion did not determine in the affirmative which party was entitled to a net monetary recovery. Rather, the Court denied 1450 LLC’s request for the Court to deem the property’s purchase price at $5.3 million and to order a reimbursement of $520,000 (yearly increased purchase price amount) from Mount/David (seller) to 1450 LLC (buyer). There was no affirmative order for 1450 LLC to pay Mount $520,000 or for Mount to reimburse 1450 LLC such amount; rather, 1450 LLC had already paid that amount (total $5.82 million) to Mount to purchase the property on October 12, 2016. Thus, Mount is not the prevailing party under that definition.

    In opposition, Mount argues that it is the prevailing party because it was essentially a “defendant” by opposing the 664.6 Motion. Mount argues that 1450 LLC’s 664.6 Motion sought affirmative relief and was essentially equivalent to 1450 LLC filing a separate complaint against Mount. However, as used in section 1032, a “defendant” includes “a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention” and a “plaintiff” includes “cross-complainant or a party who files a complaint in intervention.” (CCP §1032(a)(2)-(3).) Mount does not fit within the definition of a “defendant” for the purposes of section 1032 because the procedural posture of this case shows that Mount was not a defendant against whom a complaint was filed. Also, 1450 LLC chose not to file a separate action to enforce the Final Settlement Agreement—nor was 1450 LLC required to. Instead, CCP §664.6 provides a procedure for the parties to enforce a settlement agreement specifically without filing a new lawsuit. Thus, Mount is not entitled to costs on this basis.

    Next, Mount argues that the Court should use its discretion under section 1032(a)(4) to deem it the prevailing party. The Court declines to do so and does not find the circumstances warrant awarding Mount costs in connection with the 664.6 Motion.

    1450 LLC’s motion to strike and/or tax the costs sought by Mount is granted as requested.

    DISCUSSION: MOUNT’S MOTION FOR ATTORNEY’S FEES

    Mount moves for attorney’s fees in the amount of $94,616.94 against 1450 LLC, on the grounds that: (1) pursuant to Civil Code, §1717, Mount is the prevailing party on the 664.6 Motion against 1450 LLC; and (2) there is an attorney’s fees clause in the Purchase and Sale Agreement (“PSA”) that was at issue in the 664.6 Motion.

    Mount cites to section 26 of the PSA, which states:

    26. ATTORNEYS’ FEES. In the event of litigation or other proceedings involving the parties to this Agreement to enforce any provision of this Agreement, to enforce any remedy available upon default under this Agreement, or seeking a declaration of the rights of either party under this Agreement, the prevailing party shall be entitled to recover from the other any and all attorneys’ fees and costs as may be actually incurred, including its costs and fees on appeal.

    (Eldan Decl., Ex. 2 [PSA, ¶26].)

    Civil Code §1717 states that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees. The court, upon notice and motion by a party, shall determine who is the prevailing party on the contract for purposes of section 1717, whether or not the suit proceeds to final judgment. (Civ. Code, §1717(b)(1).)

    Mount argues that the PSA’s attorney’s fees provision applies to the 664.6 Motion because 1450 LLC essentially sought a declaration that it paid an excess amount to purchase the property. Mount argues that it prevailed on this contract dispute when the Court denied the 664.6 Motion.

    However, “fees under section 1717 are awarded to the party who prevailed on the contract overall, not to a party who prevailed only at an interim procedural step.” (City of West Hollywood v. Kihagi “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.)

    Here, Mount did not “prevail” on its contract claim in the PSA. Rather, the Court denied 1450 LLC’s motion to enforce the Final Settlement Agreement as interpreted by 1450 LLC. This is not an “action on a contract” as stated in Civil Code §1717.

    Further, to the extent Mount argues that it is the prevailing party under CCP §1032(a)(4) because it was essentially a defendant when opposing 1450 LLC’s 664.6 Motion, this argument is rejected for the same reasons discussed above.

    The Court also notes that CCP §1032 would not provide an independent basis for the recovery of attorney’s fees under CCP §1033.5(a)(10). (See McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147–1148 [“Section 1032's definition of ‘prevailing party’ does not control, however, when another statute provides for different means of allocating costs. … The definition of ‘prevailing party’ in section 1032 is particular to that statute and does not necessarily apply to attorney fee statutes or other statutes that use the prevailing party concept.”]; see e.g., CCP §1021.5 [stating that upon motion, a court may award attorney’s fees to a successful party in any action which has resulted in the enforcement of an important right affecting the public interest].)

    Accordingly, Mount’s motion for attorney’s fees is denied.

    CONCLUSION AND ORDER

    The Court grants 1450 LLC’s motion to strike and/or tax Mount’s costs sought in the memorandum of costs in connection with the 664.6 Motion.

    Mount’s motion for attorney’s fees is denied.

    1450 LLC shall provide notice of this order.