Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 00:24:23 (UTC).

JOHN MERINO VS MANUEL GARCIA ET AL

Case Summary

On 09/28/2016 JOHN MERINO filed a Property - Other Real Property lawsuit against MANUEL GARCIA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5651

  • Filing Date:

    09/28/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ROBERT B. BROADBELT

 

Party Details

Plaintiff and Petitioner

MERINO JOHN

Defendants and Respondents

DOES 1 THROUGH 20

GARCIA MARIA

ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR

GARCIA MANUEL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SCHORR LAW A PROF. CORP.

SCHORR ZACHARY ESQ.

Defendant Attorney

GRAHAM JUSTIN D. ESQ.

 

Court Documents

PLAINTIFF JOHN MERINO'S BRIEF RE: COURT'S ABILITY TO RESOLVE ALL ISSUES INVOLVING TITLE BASED ON LITIGATION GUARANTEE

12/27/2017: PLAINTIFF JOHN MERINO'S BRIEF RE: COURT'S ABILITY TO RESOLVE ALL ISSUES INVOLVING TITLE BASED ON LITIGATION GUARANTEE

DEFENDANTS' REPLY BRIEF RE: LITIGATION GUARANTEE

1/11/2018: DEFENDANTS' REPLY BRIEF RE: LITIGATION GUARANTEE

ORDER RE: PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT

8/1/2018: ORDER RE: PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT

STIPULATION TO CONTINUE DEFAULT PROVE UP HEARING DATE

8/30/2018: STIPULATION TO CONTINUE DEFAULT PROVE UP HEARING DATE

Minute Order

1/8/2019: Minute Order

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

2/8/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Exhibit List

3/4/2019: Exhibit List

Minute Order

3/11/2019: Minute Order

ORDER TO SHOW CAUSE HEARING

10/5/2016: ORDER TO SHOW CAUSE HEARING

PROOF OF SERVICE OF SUMMONS

10/20/2016: PROOF OF SERVICE OF SUMMONS

REQUEST FOR ENTRY OF DEFAULT

11/16/2016: REQUEST FOR ENTRY OF DEFAULT

Unknown

1/5/2017: Unknown

Minute Order

3/6/2017: Minute Order

Minute Order

4/11/2017: Minute Order

Unknown

7/12/2017: Unknown

Minute Order

7/18/2017: Minute Order

PLAINTIFF JOHN MERINO'S BRIEF RE: ATTORNEYS' FEES AWARD AT DEFAULT JUDGMENT HEARING AND COURT'S ABILITY TO RESOLVE ALL ISSUES INVOLVING TITLE

8/4/2017: PLAINTIFF JOHN MERINO'S BRIEF RE: ATTORNEYS' FEES AWARD AT DEFAULT JUDGMENT HEARING AND COURT'S ABILITY TO RESOLVE ALL ISSUES INVOLVING TITLE

Minute Order

11/22/2017: Minute Order

61 More Documents Available

 

Docket Entries

  • 05/28/2019
  • at 09:30 AM in Department 53, Robert B. Broadbelt, Presiding; Order to Show Cause Re: (Entry of Default Judgment) - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 05/28/2019
  • at 09:30 AM in Department 53, Robert B. Broadbelt, Presiding; Default Prove Up Hearing ((3 hours)) - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 03/27/2019
  • Notice (OF CONTINUED DEFAULT PROVE-UP HEARING AND OSC RE DEFAULT JUDGMENT); Filed by John Merino (Plaintiff)

    Read MoreRead Less
  • 03/14/2019
  • at 1:30 PM in Department 53, Robert B. Broadbelt, Presiding; Default Prove Up Hearing ((3 hours)) - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 03/14/2019
  • at 1:30 PM in Department 53, Robert B. Broadbelt, Presiding; Order to Show Cause Re: (Entry of Default Judgment) - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 03/12/2019
  • Notice ( OF CONTINUED DEFAULT PROVE UP HEARING AND HEARING ON ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT JUDGEMENT); Filed by John Merino (Plaintiff)

    Read MoreRead Less
  • 03/11/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion to be Relieved as Counsel - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 03/11/2019
  • at 2:43 PM in Department 53, Robert B. Broadbelt, Presiding; Court Order

    Read MoreRead Less
  • 03/11/2019
  • Certificate of Mailing for (Minute Order (Court Order;) of 03/11/2019); Filed by Clerk

    Read MoreRead Less
  • 03/11/2019
  • Minute Order ( (Court Order;)); Filed by Clerk

    Read MoreRead Less
142 More Docket Entries
  • 10/20/2016
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 10/11/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 10/11/2016
  • Notice of Case Management Conference; Filed by John Merino (Plaintiff)

    Read MoreRead Less
  • 10/05/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 10/05/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 10/05/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/05/2016
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 09/28/2016
  • SUMMONS

    Read MoreRead Less
  • 09/28/2016
  • Complaint; Filed by John Merino (Plaintiff)

    Read MoreRead Less
  • 09/28/2016
  • PLAINTIFF JOHN MERINO'S VERIFIED COMPLAINT FOR: (1) QUIET TITLE; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC635651    Hearing Date: March 23, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

john merino ;

Plaintiff,

vs.

manuel garcia , et al.,

Defendants.

Case No.:

BC635651

Hearing Date:

March 23, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

Motion for attorney’s fees

MOVING PARTY: Plaintiff John Merino

RESPONDING PARTIES: Defendants Manuel Garcia and Maria Garcia

Motion for Attorney’s Fees

The court considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff John Merino (“Plaintiff”) filed this quiet title action on September 28, 2016, against defendants Manuel Garcia and Maria Garcia (“Defendants”).

On November 16, 2016, the court entered the default of defendant Maria Garcia. On November 29, 2016, the court entered the default of defendant Manuel Garcia.

On October 9, 2018, the court held an evidentiary hearing on Plaintiff’s claim to quiet title pursuant to Code of Civil Procedure section 764.010. (Minute order, filed October 9, 2018.) The defaulted Defendants did not appear for the evidentiary hearing on Plaintiff’s claim to quiet title, and Plaintiff presented evidence of Plaintiff’s title. (Minute order, filed October 9, 2018.) Plaintiff also requested an award of attorney’s fees in the amount of $49,469.50, and supported his request by filing a brief for attorney’s fees. (Plaintiff’s “Supplemental Brief re: Attorney’s Fees, filed July 23, 2018.) The court granted and entered judgment in favor of Plaintiff and against Defendants. (Minute order, filed October 9, 2018.) The judgment included an award of attorney’s fees in the amount of $60,627.

On January 8, 2019, the court issued an order granting Defendants’ motion to set aside and vacate the judgment entered on October 9, 2018. (Minute order, filed January 8, 2019.) On July 10, 2019, the court held a second evidentiary hearing on Plaintiff’s claim to quiet title, and both Plaintiff’s and Defendants’ counsel appeared and participated in the hearing. (Minute order, filed July 10, 2019.) At the hearing, Plaintiff testified and introduced exhibits. (Minute order, filed July 10, 2019, pp. 1-2.) Defendants called no witnesses to testify and did not present any evidence in their case in chief. (Minute order, filed July 10, 2019, p. 2.) At the hearing, Plaintiff requested that the court grant the relief set forth in Plaintiff’s proposed default judgment. (Default Judgment Against Defendants Manuel Garcia and Maria Garcia, filed July 10, 2019.) After the case was argued and submitted by the parties, the court granted and entered judgment in favor of Plaintiff and against Defendants. (Minute order, filed July 10, 2019; Default Judgment Against Defendants Manuel Garcia and Maria Garcia, filed July 10, 2019.) Plaintiff’s proposed default judgment included an award of attorney’s fees in the amount of $75,547.50 for Plaintiff. (Default Judgment Against Defendants Manuel Garcia and Maria Garcia, filed July 10, 2019, p. 4:8-11.) However, the parties stipulated that the court strike the proposed award of attorney’s fees from Plaintiff’s proposed judgment, and that the court order that any request for attorney’s fees may be made by post-judgment motion. (Defendants’ Opposition, filed January 13, 2020, p. 3:10-12; minute order, filed July 10, 2019, p. 2.) Pursuant to that stipulation, the court struck the proposed award of attorney’s fees from Plaintiff’s proposed judgment, and the court ordered that any request for attorney’s fees may be made by post-judgment motion. (Default Judgment Against Defendants Manuel Garcia and Maria Garcia, filed July 10, 2019, p. 4:8-11; minute order, filed July 10, 2019, p. 2.)

Plaintiff now moves for an award of attorney’s fees in the total amount of $90,407.50 pursuant to Civil Code section 1717. Defendants oppose the motion.

DISCUSSION

  1. Defendants’ Opposition to the Motion

On January 13, 2020, Defendants filed an opposition to the motion. On August 18, 2020, and September 28, 2020, Defendants also filed supplements to their opposition. In his moving and reply papers, Plaintiff contends that Defendants do not have standing to oppose the motion because Defendants’ defaults have been entered in this action. The court agrees.

“‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation.] And, even where a default judgment is ‘vacated, it would be the duty of the court immediately to render another of like effect, and the defaulting defendants would not be heard for the purpose of interposing any denial or affirmative defense.’ [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 (emphasis in original).) Entry of default deprives the court of jurisdiction to consider any motion by the defendant other than a motion for relief from default. (W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.)

However, Code of Civil Procedure section 764.010 sets forth an exception to the general rule that the entry of a defendant’s default cuts off the defendant’s right to appear in the action. In quiet title actions to determine plaintiff’s title to property, the court “shall not enter judgment by default but shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants.” (Code Civ. Proc., § 764.010.) In Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011) 201 Cal.App.4th 1496, 1501, the Court of Appeal held that section 764.010 requires that, in all quiet title cases, a defendant in default is entitled to participate to present evidence of his or her title at an evidentiary hearing in open court. But the Court of Appeal explained that allowing a defendant to participate in a quiet title judgment hearing does not nullify the legal effect of the entry of default:

Moreover, it is not true, as the dissent maintains, that allowing a defendant to participate in a quiet title judgment hearing nullifies the legal effect of a default. We agree section 764.010 does not prohibit a quiet title plaintiff from taking a defendant’s default. Once that happens, the defendant is severely disadvantaged. The plaintiff is no longer required to serve documents on it or give notice of any future court dates. [Citation.] This cuts the defendant off from the most readily available source of information about the case. The defendant also cannot participate in any other hearings or conferences with the court. In fact, the most likely outcome is that the defaulting defendant will not learn of the hearing to adjudicate title until it is too late to attend.

(Id. at pp. 1504-1505.)

As discussed above, Defendants’ defaults were entered in November 2016. By filing their opposition to Plaintiff’s motion for attorney’s fees, and their supplement to their opposition, Defendants seek to participate in this litigation to oppose Plaintiff’s request for attorney’s fees. Under Code of Civil Procedure section 764.010, Defendants are entitled to participate in the quiet title judgment hearing and to offer evidence concerning Plaintiff’s and Defendants’ claims to title. But, as explained in Harbour Vista, LLC, supra, 201 Cal.App.4th at pp. 1504-1505, allowing a defendant to participate in a quiet title judgment hearing does not nullify the legal effect of a default, and “[t]he defendant . . . cannot participate in any other hearings or conferences with the court.”

Because Defendants’ defaults have been entered in this action, and Defendants’ defaults have not been set aside, Defendants’ have no right to participate in the proceedings in this action (other than a quiet title judgment hearing), including the hearing on Plaintiff’s motion for attorney’s fees. The court notes that Defendants had no right to dispute Plaintiff’s request for attorney’s fees at the July 10, 2019 quiet title judgment hearing. The court therefore disregards, to the extent Defendants address the merits of Plaintiff’s motion for attorney’s fees, Defendants’ (1) “Opposition to Motion for Attorney’s Fees,” filed January 13, 2020, (2) “Notice of Errata,” filed January 13, 2020, (3) “Opposition Supplement to Opposition to Motion for Attorney’s Fees,” filed August 18, 2020, and (4) “Supplemental Declaration Supplement to Defendants’ Opposition to Plaintiff’s Motion for Attorney’s Fees,” filed September 28, 2020.

  1. Motion for Attorney’s Fees

Plaintiff moves for an award of attorney’s fees in the total amount of $90,407.50 pursuant to Civil Code section 1717.

Civil Code section 1717, subdivision (a) provides, in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” Subdivision (b)(1) states: “The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered the greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

Quiet title actions may be actions “on the contract” under section 1717. (See Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 346-347 [“In determining whether an action is ‘on the contract’ under section 1717, the proper focus is not the nature of the remedy, but on the basis of the cause of action. [Citation.] Here, although the remedy sought in the relevant causes of action [for declaratory and injunctive relief and quiet title] was equitable, the claims were still actions ‘on the contract,’ i.e., the note and deed of trust.”].)

Here, Plaintiff contends that the instant action is an action on a contract. Plaintiff points to the purchase agreement, promissory note, and deed of trust alleged in Plaintiff’s complaint. (Compl., ¶¶ 11-20, Exs. A-D.) On March 5, 1996, Plaintiff’s father, Eugene Merino[1], and Defendants entered into a purchase agreement for the subject property (the “Purchase Agreement”). (Merino Decl., filed September 5, 2019, ¶ 4, Ex. A.) In connection with the Purchase Agreement, Eugene Merino and Defendants executed a written promissory note wherein Defendants agreed to pay Eugene Merino $150,000 for the purchase of the subject property (the “Promissory Note”). (Merino Decl., ¶ 5, Ex. B.) The Promissory Note was secured by a deed of trust (the “Deed of Trust”). (Merino Decl., ¶ 6, Ex. C.)

The Purchase Agreement provides that, “[i]n any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing party between Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in in Paragraph 33.” (Compl., Ex. A. ¶ 37; Goldstein Decl., filed September 5, 2019, ¶ 33.) The Promissory Note and Deed of Trust also provide for attorney’s fees in actions to enforce their terms. (Goldstein Decl., ¶¶ 34-35; Merino Decl., filed September 5, 2019, Exs. B-C.)

The court finds that Civil Code section 1717 applies to Plaintiff’s quiet title claim because the claim is an action “on the contract,” i.e., the Purchase Agreement, Promissory Note, and Deed of Trust. The court also finds that Plaintiff is “the party prevailing on the contract” in this action under Civil Code section 1717 because judgment was entered in Plaintiff’s favor and against Defendant on July 10, 2019. The court therefore finds that that Plaintiff is entitled to recover reasonable attorney’s fees from Defendants pursuant to the Purchase Agreement, Promissory Note, and Deed of Trust.

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . . The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted).)

Plaintiff requests attorney’s fees in the total amount of $90,407.50. Plaintiff has been represented by Schorr Law. The attorney billing rates for Plaintiff’s attorneys range from $200 to $450 per hour. (Schorr Decl., filed September 5, 2019, ¶ 7.) Plaintiff has submitted a copy of his attorneys’ billing records, which show that Plaintiff’s attorneys billed a total of 287.3 hours for a total of $87,407.50. (Schorr Decl., ¶ 27.) Plaintiff also requests an additional $3,000 for anticipated attorney’s fees incurred in connection with Plaintiff’s reply brief on this motion. (Schorr Decl., ¶ 27.) Plaintiff’s lead trial attorney, Zachary D. Schorr, has submitted a declaration attesting to the billing rates, qualifications, skills, and experience of himself and his associates. (Schorr Decl., ¶¶ 28-31.)

Based on its review of the evidence presented (including the work and time entries on the attorneys’ billing records), the court finds that the billing entries in Plaintiff’s attorneys’ bills do not evidence unreasonable billing, and that the hourly rates charged by each of Plaintiff’s attorneys are reasonable based on their respective qualifications, skill, and experience, and the prevailing rates in the community for similar work. Therefore, the court finds that the lodestar attorney’s fees requested by Plaintiff were reasonably incurred by Plaintiff.

However, in Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1478-1479, the California Court of Appeal held that, when a plaintiff requests entry of judgment by default, a request for attorney’s fees must be made at the same time or the fees are forfeited. In Garcia, the plaintiff obtained a default judgment that did not award attorney fees and subsequently filed a motion for attorney’s fees. (Id. at p. 1477.) The Court held that the post-judgment motion was improper because “[a] plaintiff electing to proceed by way of a default judgment may recover statutory attorney fees only if a request for those fees is included in the request for default judgment.” (Id. at pp. 1476-1477.)

Here, although the court finds that the lodestar attorney’s fees requested by Plaintiff were reasonably incurred by Plaintiff, Plaintiff may only recover the attorney’s fees included in Plaintiff’s request for default judgment. As discussed above, on July 10, 2019, the court held the evidentiary hearing on Plaintiff’s claim to quiet title, and Plaintiff’s proposed default judgment against Defendants included an award of attorney’s fees in the amount of $75,547.50. Although at the hearing Plaintiff requested that the court grant the relief set forth in Plaintiff’s proposed judgment, the parties stipulated that the court strike the proposed award of attorney’s fees from Plaintiff’s proposed judgment, and that the court order that any request for attorney’s fees may be made by post-judgment motion. (Defendants’ Opposition, filed January 13, 2020, p. 3:10-12; Minute Order, filed July 10, 2019, p. 2.) The court therefore reduces Plaintiff’s award of attorney’s fees from $90,407.50 to $75,547.50. (Garcia, supra, 192 Cal.App.4th at pp. 1476-1477.)

ORDER

For the reasons set forth above, the court grants plaintiff John Merino’s motion for attorney’s fees.

The court orders that plaintiff John Merino shall recover attorney’s fees in the amount of $75,547.50 from defendants Manuel Garcia and Maria Garcia in this action.

The court orders plaintiff John Merino to give notice of this order.

IT IS SO ORDERED.

DATED: March 23, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] In the Complaint, Plaintiff alleges that, pursuant to a written assignment, Eugene Merino’s heirs assigned any and all of their rights in the purchase agreement, promissory note, and deed of trust, to Plaintiff. (Compl., ¶¶ 11-20; Merino Decl., ¶ 11.)