This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:54:33 (UTC).

LISA HASTINGS VS. ABRAHAM KEVORKIAN, ET AL

Case Summary

On 01/29/2016 LISA HASTINGS filed a Property - Other Real Property lawsuit against ABRAHAM KEVORKIAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4909

  • Filing Date:

    01/29/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

HASTINGS LISA

Defendants

KEVORKIAN ABRAHAM

ODESHO NANCY

FIDELITY NATIONAL TITLE INSURANCE COMPANY

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Plaintiff Attorney

JAMISON LAW FIRM THE

Defendant Attorneys

MARCELLA LUCENTE

LUCENTE MARCELLA

EARLY ERIC P.

 

Court Documents

Request For Copies

7/23/2019: Request For Copies

Legacy Document

1/29/2016: Legacy Document

Notice of Case Assignment - Unlimited Civil Case

1/29/2016: Notice of Case Assignment - Unlimited Civil Case

Civil Case Cover Sheet

1/29/2016: Civil Case Cover Sheet

Notice of Case Management Conference

1/29/2016: Notice of Case Management Conference

Legacy Document

1/29/2016: Legacy Document

Summons

1/29/2016: Summons

Request for Judicial Notice

3/1/2016: Request for Judicial Notice

Motion re:

3/1/2016: Motion re:

Motion re:

3/1/2016: Motion re:

Legacy Document

3/1/2016: Legacy Document

Legacy Document

3/1/2016: Legacy Document

Request for Judicial Notice

3/1/2016: Request for Judicial Notice

Legacy Document

4/27/2016: Legacy Document

Legacy Document

4/27/2016: Legacy Document

Legacy Document

4/27/2016: Legacy Document

Substitution of Attorney

5/10/2016: Substitution of Attorney

Substitution of Attorney

5/10/2016: Substitution of Attorney

177 More Documents Available

 

Docket Entries

  • 12/09/2019
  • Hearingat 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Non-Jury Trial

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  • 12/03/2019
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 07/23/2019
  • DocketRequest For Copies; Filed by Lisa Hastings (Plaintiff)

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  • 06/17/2019
  • Docketat 09:30 AM in Department B; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 06/17/2019
  • Docketat 09:30 AM in Department B; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 06/06/2019
  • Docketat 08:35 AM in Department B; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/28/2019
  • DocketBrief (Plaintiff's Designation of Expert); Filed by Lisa Hastings (Plaintiff)

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  • 05/28/2019
  • DocketMotion in Limine (no.1 and order to exclude the evidence that was not produced and not disclosed in discovery requests; to bar witnesses from testifying at trial who were known to plaintiff but whose identities were not disclosed during discovery and to exclude); Filed by Abraham Kevorkian (Defendant)

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  • 05/28/2019
  • DocketOpposition (to plaintiff's motion in limine no. 3 to exclude any argument, testimony or evidence of plaintiff Lisa Hastings' dealings with Antranik Kevorkian; memorandum of points and authorities in support thereof; declaration of Abraham Kevorkian); Filed by Abraham Kevorkian (Defendant)

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  • 05/28/2019
  • DocketOpposition (to plaintiff's motion in limine no.2 to exclude any argument, testimony or evidence that plaintiff's counsel Guy E. Jamison has stolen the passports out of defendants' mailbox, memorandum of points and authorities in support thereof; declaration of); Filed by Abraham Kevorkian (Defendant)

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219 More Docket Entries
  • 03/01/2016
  • DocketRequest for Judicial Notice; Filed by Nancy Odesho (Defendant)

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  • 03/01/2016
  • DocketNotice of Demurrer and Demurrers; Filed by Nancy Odesho (Defendant)

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  • 03/01/2016
  • DocketMotion re: (Notice of Motion and Motion to Strike Portion of First Amended Complaint); Filed by Abraham Kevorkian (Defendant)

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  • 03/01/2016
  • DocketMotion re: (Notice of Motion and Motion to Strike Portion of First Amended Complaint); Filed by Nancy Odesho (Defendant)

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  • 01/29/2016
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 01/29/2016
  • DocketSummons; Filed by null

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  • 01/29/2016
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 01/29/2016
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 01/29/2016
  • DocketCivil Case Cover Sheet; Filed by Lisa Hastings (Plaintiff)

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  • 01/29/2016
  • DocketNotice of Case Management Conference; Filed by Court

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Tentative Rulings

b"

Case Number: EC064909 Hearing Date: October 15, 2021 Dept: NCB

\r\n\r\n

Superior Court of\r\nCalifornia

\r\n\r\n

County of Los\r\nAngeles

\r\n\r\n

North Central District

\r\n\r\n

Department B

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

\r\n

lisa hastings,

\r\n

Plaintiff,

\r\n

v.

\r\n

\r\n

abraham kevorkian, et al.,

\r\n

Defendants.

\r\n
\r\n

\r\n

Case No.: EC064909

\r\n

Consolidated with: EC066975

\r\n

\r\n

Hearing\r\n Date: October 15, 2021

\r\n

\r\n

[Tentative] order RE:

\r\n

motion\r\n for sTAY proceedings pending appeal

\r\n
\r\n\r\n

\r\n\r\n

BACKGROUND

\r\n\r\n

A. \r\nAllegations

\r\n\r\n

These consolidated\r\nactions involve the property located at 721 Colman Street, Altadena, California\r\n91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Ms. Hastings” or\r\n“Plaintiff”), and the property located at 728 Colman Street, Altadena, CA 91001\r\n(“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Mr. Kevorkian”)\r\nand Nancy Odesho Kevorkian (“Mrs. Kevorkian”).

\r\n\r\n

The matter came for trial in December 2019 to January 2020.

\r\n\r\n

The Court issued its\r\nStatement of Decision on June 17, 2020. In\r\nsubsection H, entitled “COMMENTS REGARDING ATTORNEYS’ FEES”, the Court stated:

\r\n\r\n

Unfortunately,\r\nMs. Hastings’ lawyers have seen it necessary to overstate their case to find a\r\nway to collect attorneys’ fees here. \r\nGiven the overstatement of the case, the Court does not intend to award Ms.\r\nHastings all of her attorneys’ fees. \r\nNevertheless, at the end of the action, the Court will entertain a\r\nrequest for award of some fees, perhaps pursuant to California Code of Civil\r\nProcedure §1021.5 or other legal authority. \r\nMr. Kevorkian’s actions with respect to the Fire Lane necessitated a\r\nsignificant portion of this case and this trial. The enforcement of the Fire Lane was necessary\r\nfor the benefit of the residents of Colman Street and the general public\r\nbecause the County has apparently declined to enforce it.

\r\n\r\n

*\r\n* *

\r\n\r\n

The\r\naward of attorneys’ fees could be significant in view of the Kevorkians limited\r\nwealth. …

\r\n\r\n

(6/17/20 Statement of Decision at pp. 52-53.)

\r\n\r\n

Thereafter, the Court\r\nissued its Judgment After Trial on January 12, 2021. The Court held:

\r\n\r\n

Plaintiff\r\nLisa Hastings shall be deemed the Prevailing Party both because there is a net monetary\r\naward in her favor and because she has obtained the principal elements of the\r\nessential equitable relief that she sought. Plaintiff may file upon the entry\r\nof this Judgment a Motion for Attorney’s Fees within the statutory time frames\r\nfor filing such a motion.

\r\n\r\n

(1/12/21 Judgment\r\nAfter Trial at p.8.)

\r\n\r\n

On July 30, 2021, the Court granted Plaintiff’s\r\nmotion for attorney’s fees against Mr. Kevorkian and Mrs. Kevorkian in the\r\namount of $82,153.75.

\r\n\r\n

B. Motion on Calendar\r\n

\r\n\r\n

On September 21, 2021, Mr. Kevorkian filed a motion for stay proceedings\r\npending appeal.

\r\n\r\n

On September 28, 2021, Plaintiff filed an opposition brief.

\r\n\r\n

On October 8, 2021, Mr. Kevorkian filed a reply brief.

\r\n\r\n

DISCUSSION

\r\n\r\n

Mr. Kevorkian moves for an order\r\nstaying the action pending the resolution of the appeals. He argues that COVID-19 has impacted him, he has\r\nbeen unable to find a job, and he has been greatly prejudiced in his ability to\r\nmeaningfully defend himself. \r\nSpecifically, Mr. Kevorkian seeks to defer the payment of attorney’s\r\nfees until after the appeal.

\r\n\r\n

Mr. Kevorkian relies on CRC Rule 3.1702(b)(2),\r\narguing that an extension of time is proper and that Plaintiff’s counsel, Guy\r\nJamison, will not agree to stipulate to deferring attorney’s fees. Rule 3.1702(b) states:

\r\n\r\n

(b) Attorney's fees before\r\ntrial court judgment

\r\n\r\n

(1) Time for motion

\r\n\r\n

A notice of motion to\r\nclaim attorney's fees for services up to and including the rendition of\r\njudgment in the trial court--including attorney's fees on an appeal before the\r\nrendition of judgment in the trial court--must be served and filed within the\r\ntime for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited\r\ncivil case or under rules 8.822 and 8.823 in a limited civil case.

\r\n\r\n

(2) Stipulation for extension of time

\r\n\r\n

The parties may, by\r\nstipulation filed before the expiration of the time allowed under (b)(1),\r\nextend the time for filing a motion for attorney's fees:

\r\n\r\n

(A) Until 60 days after\r\nthe expiration of the time for filing a notice of appeal in an unlimited civil\r\ncase or 30 days after the expiration of the time in a limited civil case; or

\r\n\r\n

(B) If a notice of appeal\r\nis filed, until the time within which a memorandum of costs must be served and\r\nfiled under rule 8.278(c) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.

\r\n\r\n

(CRC Rule 3.1702(b).) Rule 3.1702(b) is about the time frame to\r\nbring a motion for attorney’s fees and the extension of time file such a\r\nmotion, which may be extended by stipulation of the parties. This Rule does not provide for the extension\r\nof time to enforce or stay the enforcement of attorney’s fees pending\r\nappeal. Thus, Rule 3.1702(b)(2) does not\r\napply.

\r\n\r\n

Next, Mr. Kevorkian argues that the\r\nCourt has inherent jurisdiction to stay the action to promote the interest of justice\r\nand judicial efficiency. The Court notes\r\nthat an appeal stays the case for the matters embraced by the appeal. (CCP § 916.) \r\nHowever, “the filing of a notice\r\nof appeal does not deprive the trial court of jurisdiction to award attorney\r\nfees as costs post trial. Although a prevailing party at trial may not be the prevailing\r\nparty after an appeal, it has been held that a motion for attorney fees is not\r\npremature despite the filing of a notice of appeal.” (Bankes\r\nv. Lucas (1992) 9 Cal.App.4th 365,\r\n368.) “[A]n\r\naward of attorney fees as costs is a collateral matter which is embraced in the\r\naction but is not affected by the order from which an appeal is taken.” (Id.\r\nat 369 [see Civ. Code, § 916(a)].) “Consequently,\r\nfiling of a notice of appeal does not stay any proceedings to determine the\r\nmatter of costs and does not prevent the trial court from determining a proper\r\naward of attorney fees claimed as costs.” \r\n(Id.) Thus, the Court will not impose a stay\r\nregarding attorney’s fees and costs.

\r\n\r\n

Finally, Mr.\r\nKevorkian argues that he will prevail on his appeal because the judgment lacks\r\nmerit. The Court will not discuss the\r\nmerits of the underlying matter, Statement of Decision, or Judgment in this\r\nmatter as that is in the purview of the Court of Appeal.

\r\n\r\n

In opposition, Plaintiff argues that a stay is inappropriate because\r\nMr. Kevorkian has not provided an undertaking required to stay enforcement of\r\njudgment for money (CCP §§ 918, 917.1), the judgment consists of prohibitory injunctions[1] which are not subject to\r\na stay of enforcement, and the order directing Defendants to execute an instrument\r\nreconveying any additional grant of rights as a result of the “Self Granted\r\nEasement” cannot be stayed unless the instrument is executed and deposited with\r\nthe Court (CCP § 917.3). These are arguments\r\nprovide additional grounds for denying the motion.

\r\n\r\n

CONCLUSION AND ORDER

\r\n\r\n

Defendant Abraham Kevorkian’s motion for stay\r\nis denied.

\r\n\r\n

Defendant shall provide notice of this\r\nruling.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] “An appeal stays a mandatory but not a\r\nprohibitory injunction. This rule is clear, but whether a decree is one or the\r\nother may be difficult to determine in some situations since an order entirely\r\nnegative or prohibitory in form may prove upon analysis to be mandatory and\r\naffirmative in essence and effect.” (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884.) Plaintiff argues the majority of the judgment’s\r\ninjunctive orders against Defendants are prohibitory and not mandatory because\r\nthe Court made numerous orders enjoining and prohibiting Defendants\r\nfrom parking on the south side of Colman Street, painting over the fire lane, etc. Defendants have failed to specify which\r\nelements of a mandatory injunction they seek to stay and to specify how they\r\nwould suffer any harm from following the mandatory elements of the injunction.

\r\n\r\n
\r\n\r\n
"b"

Case Number: EC064909 Hearing Date: July 30, 2021 Dept: NCB

\r\n\r\n

Superior Court of\r\nCalifornia

\r\n\r\n

County of Los\r\nAngeles

\r\n\r\n

North Central District

\r\n\r\n

Department B

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

\r\n

lisa hastings,

\r\n

Plaintiff,

\r\n

v.

\r\n

\r\n

abraham kevorkian, et al.,

\r\n

Defendants.

\r\n
\r\n

\r\n

Case No.: EC064909

\r\n

Consolidated with: EC066975

\r\n

\r\n

Hearing\r\n Date: July 30, 2021

\r\n

\r\n

[Tentative] order RE:

\r\n

motion\r\n for attorneys’ fees

\r\n
\r\n\r\n

\r\n\r\n

BACKGROUND

\r\n\r\n

A. \r\nAllegations

\r\n\r\n

These consolidated\r\nactions involve the property located at 721 Colman Street, Altadena, California\r\n91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Ms. Hastings” or\r\n“Plaintiff”), and the property located at 728 Colman Street, Altadena, CA 91001\r\n(“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Mr. Kevorkian”)\r\nand Nancy Odesho Kevorkian (“Mrs. Kevorkian”).

\r\n\r\n

The matter came for trial in December 2019 to January 2020.

\r\n\r\n

The Court issued its\r\nStatement of Decision on June 17, 2020. In\r\nsubsection H, entitled “COMMENTS REGARDING ATTORNEYS’ FEES”, the Court stated:

\r\n\r\n

Unfortunately,\r\nMs. Hastings’ lawyers have seen it necessary to overstate their case to find a\r\nway to collect attorneys’ fees here. \r\nGiven the overstatement of the case, the Court does not intend to award Ms.\r\nHastings all of her attorneys’ fees. \r\nNevertheless, at the end of the action, the Court will entertain a\r\nrequest for award of some fees, perhaps pursuant to California Code of Civil\r\nProcedure §1021.5 or other legal authority. \r\nMr. Kevorkian’s actions with respect to the Fire Lane necessitated a\r\nsignificant portion of this case and this trial. The enforcement of the Fire Lane was\r\nnecessary for the benefit of the residents of Colman Street and the general\r\npublic because the County has apparently declined to enforce it.

\r\n\r\n

*\r\n* *

\r\n\r\n

The\r\naward of attorneys’ fees could be significant in view of the Kevorkians limited\r\nwealth. …

\r\n\r\n

(6/17/20 Statement of Decision at pp. 52-53.)

\r\n\r\n

Thereafter, the Court\r\nissued its Judgment After Trial on January 12, 2021. The Court held:

\r\n\r\n

Plaintiff\r\nLisa Hastings shall be deemed the Prevailing Party both because there is a net monetary\r\naward in her favor and because she has obtained the principal elements of the\r\nessential equitable relief that she sought. Plaintiff may file upon the entry\r\nof this Judgment a Motion for Attorney’s Fees within the statutory time frames\r\nfor filing such a motion.

\r\n\r\n

(1/12/21 Judgment\r\nAfter Trial at p.8.)

\r\n\r\n

B. Motion on Calendar\r\n

\r\n\r\n

On March 5, 2021, Plaintiff filed a motion for attorney’s fees against Mr.\r\nKevorkian and Mrs. Kevorkian in the amount of $232,902.50. Plaintiff moves for attorney’s fees pursuant\r\nto CCP § 1021.5.

\r\n\r\n

On July 19, 2021, Mr. Kevorkian filed an opposition.

\r\n\r\n

On July 26, 2021, Plaintiff filed a reply brief.

\r\n\r\n

EVIDENTIARY\r\nOBJECTIONS

\r\n\r\n

With the opposition papers,\r\nMr. Kevorkian submitted evidentiary objections to the declarations of Guy Jamison\r\nand Clark Rivera. The objections are\r\noverruled. Mr. Jamison states in his\r\ndeclaration that prior to Mr. Rivera passing away in August 2020, he\r\nanticipated that a motion for attorney’s fees would be bought and prepared and\r\nexecuted his declaration on August 14, 2020. \r\n(Jamison Decl., ¶3.) He died six\r\ndays later.

\r\n\r\n

DISCUSSION

\r\n\r\n
    \r\n
  1. Entitlement to Fees
  2. \r\n
\r\n\r\n

Plaintiff moves for attorney’s fees pursuant to CCP §\r\n1021.5.

\r\n\r\n

CCP § 1021.5 states in relevant part:

\r\n\r\n

Upon motion, a court may award attorneys' fees to a\r\nsuccessful party against one or more opposing parties in any action which has\r\nresulted in the enforcement of an important right affecting the public interest\r\nif: (a) a significant benefit, whether pecuniary or nonpecuniary, has been\r\nconferred on the general public or a large class of persons, (b) the necessity\r\nand financial burden of private enforcement, or of enforcement by one public entity against\r\nanother public entity, are such as to make the award appropriate,\r\nand (c) such fees should not in the interest of justice be paid out of the\r\nrecovery, if any.

\r\n\r\n

(CCP § 1021.5.)

\r\n\r\n

Plaintiff argues that as\r\na result of this action, the Court has permanently enjoined Defendants from\r\nparking on the fire lane, the easement, and Plaintiff’s Property, as well as prohibited\r\nDefendants from vandalizing the Fire Lane. \r\n

\r\n\r\n

In its Statement of Decision, the Court stated it would entertain an\r\nattorney’s fees motion brought by Plaintiff pursuant to CCP § 1021.5 or other\r\nlegal authority because Mr. Kevorkian’s actions with respect to the Fire Lane\r\nnecessitated a significant portion of the case and trial. Plaintiff has established that this action\r\nhas conferred a significant benefit that has been conferred on the general\r\npublic, which the Court recognized because the enforcement of the Fire Lane was\r\nnecessary for the benefit of the residents of Colman Street and the general\r\npublic because the County had apparently declined to enforce it. Next, Plaintiff has established the necessity\r\nand financial burden of private enforcement as the Court too recognized that\r\nthe County had apparently declined to enforce the Fire Lane on Colman\r\nStreet. Finally, the attorney’s fees\r\nsought should not in the interest of justice be paid out of the recovery, if\r\nany. As stated in the Judgment,\r\nPlaintiff recovered a judgment in the amount of $1,385.34 against Defendants with\r\nregard to the 2nd cause of action for trespass in the initial complaint\r\nin Case No. EC064909. (1/12/21 Judgment After Trial at p.4.) This is a modest sum and\r\nis insufficient to cover Plaintiff’s attorney’s fees.

\r\n\r\n

As such, the Court finds that Plaintiff is entitled to recover attorney’s\r\nfees pursuant to section 1021.5.

\r\n\r\n
    \r\n
  1. Reasonableness\r\n of Attorney’s Fees
  2. \r\n
\r\n\r\n

Plaintiff seeks $232,902.50 in attorney’s fees\r\nagainst Defendants.

\r\n\r\n

In support of the motion, Plaintiff provides the declarations of her counsel,\r\nGuy Jamison and Clark Rivera.

\r\n\r\n

Mr. Jamison states that he was admitted to the California State Bar in\r\nNovember 1996 and has practiced law for 25 years. (Jamison Decl., ¶4.) He states this hourly rate for the past 5\r\nyears has ranged from $300 to $400 an hour; however, in this case, he agreed to\r\ncharge Plaintiff (an individual homeowner and not a business) a reduced rate of\r\n$250/hour for his time and $275/hour for Mr. Rivera’s time. (Id., ¶5.) Mr. Jamison states that this case is one of\r\nthe more difficult cases he has handled in the past 25 years due to the\r\nbehavior of Mr. Kevorkian, the numerous defense attorneys that cycled in and\r\nout of the case, the extensive bad faith motions filed by Mr. Kevorkian, Mr.\r\nKevorkian’s evasion of court orders and injunctions (and granting himself a new\r\neasement thereafter, which caused further prolonged litigation), the falsified\r\nrecords and evidence submitted by Mr. Kevorkian, and Mr. Kevorkian’s\r\naccusations against Mr. Jamison as a liar and racist. (Id., ¶¶6-14.)

\r\n\r\n

Mr. Jamison provides a copy of the invoices generated in this litigation and\r\na spreadsheet of hours and time billed, which show a total billing of 906.15\r\nhours. (Id., ¶20, Exs. 4-5.) Mr. Jamison states that he billed 540.15\r\nhours between January 2016 to the present and Mr. Rivera billed 349.50 hours\r\nfrom October 2017 to August 2020. (Id.) In paragraphs 21 to 52 of his declaration,\r\nMr. Jamison summarizes the tasks billed in each month from January 2016 to\r\nJanuary 2020.

\r\n\r\n

In his declaration, Mr. Rivera stated that he was\r\nadmitted to the California State Bar in December 1981. (Rivera Decl., ¶2.) He stated that he billed at $275/hour in this\r\naction, which is substantially below his ordinary billing rates; however, he recognized\r\nthat Plaintiff was a self-funded individual and not a major corporation and he\r\nrepresents individuals at a lower rate. \r\n(Id., ¶¶3, 5.) Mr. Rivera\r\nsubmitted his monthly time submissions and task descriptions in Exhibit 2. (Id., ¶6, Ex. 2.) Mr. Rivera described the work he performed in\r\nthis case from October 2017 to March 2020, as well as post-trial work. (Id., ¶¶7-49.) Mr. Rivera then provided his beliefs that\r\nthis case did not constitute “legal overkill” and over-litigation by Plaintiff’s\r\ncounsel. (Id., ¶¶50-78.) Mr. Rivera stated that the total hours he\r\nexpended on this case was 429.8 hours—of which 285.5 hours were billed at\r\n$257/hour (totaling $78,512.50) and 144.3 hours were billed at $250/hour\r\n(totaling $36,075)—such that the total billed for Mr. Rivera’s work was $114,587.50. (Id., ¶79.)

\r\n\r\n

In his declaration, Mr.\r\nRivera stated that he billed a total amount of $114,587.50, whereas Mr. Jamison\r\nstates that Mr. Rivera billed a total of $96,112.50. In the moving papers, Plaintiff clarifies\r\nthat there is a discrepancy in the hours billed by Mr. Rivera because not all hours\r\nlogged by Mr. Rivera were billed with the discounts provided to Plaintiff. (Mot. at p.6, fn.1.) As such, the Court will consider the hours and\r\nrate billed by Mr. Rivera as stated in Mr. Jamison’s declaration.

\r\n\r\n

In opposition, Mr.\r\nKevorkian argues that this Court has allowed Plaintiff to walk away with her\r\nillegal and criminal acts, he was denied the right to testify at trial, he experienced\r\ndiscrimination on his street and by the judges of this Department, his children\r\nand family have been affected by this case, and he disagrees with the Court’s\r\nultimate ruling in this matter. However,\r\nthese arguments have no bearing on the motion for attorney’s fees and the Court\r\nwill not undertake relitigating the underlying claims in this matter. Next, Mr. Kevorkian argues that Plaintiff and\r\nher counsel have failed to establish the actual fees incurred or the\r\nreasonableness of fees. However, the\r\nCourt finds that the declarations of Mr. Jamison and Mr. Rivera sufficiently meet\r\nthis burden and they have each provided billing records/invoices to support their\r\ndeclarations. As to the reasonableness of\r\nfees, Mr. Kevorkian has not specifically indicated to the Court where he\r\nbelieves the fees sought are unreasonable. \r\nHowever, the Court will undertake its own review of the fees to ascertain\r\ntheir reasonableness.

\r\n\r\n

As an initial matter, the\r\nCourt finds that the hourly rates sought by Mr. Jamison and Mr. Rivera are\r\nreasonable at $250/hour and $275/hour, respectively.

\r\n\r\n

Next, based on the\r\nspreadsheet provided by Plaintiff in Exhibit 5, Plaintiff seeks to recover $232,902.50\r\nin attorney’s fees against Defendants, which accounts for: (1) $135,367.50\r\nsought by Mr. Jamison pursuant to CCP § 1021.5; (2) $4,125 sought by Mr.\r\nJamison pursuant to CCP § 425.16(c)(1); and (3) $93,410 sought by Mr. Rivera\r\npursuant to CCP § 1021.5.

\r\n\r\n

The Court declines to\r\naward attorney’s fees pursuant to Defendants’ “failed” anti-SLAPP motion\r\npursuant to CCP § 425.16(c)(1). (See\r\n7/8/16 Minute Order.) Mr. Jamison seeks\r\nfees in the amount of $4,125 for expending 16.5 hours on the motion. However, Plaintiff did not move for fees\r\npursuant to CCP § 425.16. Further, pursuant\r\nto section 425.16(c)(1), “If the court finds that a special motion to strike is\r\nfrivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees\r\nto a plaintiff prevailing on the motion, pursuant to Section\r\n128.5.” This showing has not been\r\nmade. Thus, the attorney’s fees sought shall\r\nbe reduced by $4,125.

\r\n\r\n

Next, with regard\r\nto the attorney’s fees sought pursuant to CCP § 1021.5, the Court will allow\r\nthe recovery of counsel’s time spent on the action, but will make the following\r\nadjustments:

\r\n\r\n\r\n\r\n

Total,\r\nthe amount of fees that the Court has reduced above is $68,595. This brings Plaintiff’s requested fees of\r\n$232,902.50 down to $164,307.50.

\r\n\r\n

From\r\nthe $164,307.50 amount, the Court will exercise its discretion to cut the fees\r\nby half, or $81,600. “The trial court has broad discretion to determine the\r\namount of a reasonable fee, and the award of such fees is governed by equitable\r\nprinciples.” (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770,\r\n774 [re contractual attorney’s fees].) “In short, after determining the lodestar amount,\r\nthe court shall then “ ‘consider whether the total award so calculated under all\r\nof the circumstances of the case is more than a reasonable amount and, if so,\r\nshall reduce the … award so that it is a reasonable figure.’ ” (Id.) The factors to\r\nbe considered include the nature and difficulty of the litigation, the amount\r\nof money involved, the skill required and employed to handle the case, the attention\r\ngiven, the success or failure, and other circumstances in the case.\r\n[Citation.] The “necessity for and the nature of the litigation” are\r\nalso factors to consider.” (Id.)[1]

\r\n\r\n

Here, the Court finds that a reduction of half the fees is appropriate. The fees sought by Plaintiff’s counsel included\r\nnot only litigation over the Fire Lane, but various other claims as well, some\r\nof which were unmeritorious. Thus, to\r\nallocate and apportion a fair amount of fees to the litigation concentrated on\r\nthe Fire Lane on Colman Street, the Court will grant Plaintiff’s motion for attorney’s\r\nfees in the total amount of $82,153.75. \r\nThe Court finds that appropriately accounts for a fair and reasonable\r\namount of fees to compensate Plaintiff’s counsel for the time they spent on the\r\nenforcing an important right affecting the public interest over Colman Street\r\nand the Fire Lane pursuant to CCP § 1021.5. \r\n

\r\n\r\n

While there have been several judges assigned to the matter,\r\nthe undersigned experienced enough of it to recognize that Mr. Kevorkian’s\r\napproach to the litigation, and his failure to accept the Court’s rulings until\r\nthey were repeated several times, indicated a disrespect for the orders of the\r\nCourt. His litigation conduct can accurately be classified as vexatious. He certainly\r\nbears substantial responsibility for the fact that this litigation went on far\r\nlonger than it should have and cost far more than it should have. The Court has\r\nfound that he intentionally falsified material physical and documentary evidence,\r\na wrong that complicated the search for the truth and that would constitute a\r\ncrime if proven beyond a reasonable doubt. The equitable apportionment decided\r\nupon here, however, is not designed to punish him, only to compensate Plaintiff\r\nfor the substantial public good she accomplished by clearing the fire lane despite\r\nMr. Kevorkian’s resistance legally and physically to that result. Thus, the fee\r\naward here may be greater than it would otherwise be because of Mr. Kevorkian’s\r\nconduct, but it is not made for the purpose of directly addressing or punishing\r\nit.

\r\n\r\n

Finally, it was certainly difficult to read Attorney Clark\r\nRivera’s declaration without coming away with the impression that the Court’s decisions\r\nin this matter, as well as Mr. Rivera’s perceptions of the reasoning for those\r\ndecisions, may have caused or contributed to Mr. Rivera’s death just a few days\r\nafter his declaration was signed. While the Court truly regrets this, it was\r\nnevertheless the duty of the Court to reach a decision it thought correct based\r\nupon the facts and the law. Among many incorrect perceptions of Mr. Rivera’s declaration\r\nwas the notion that the Court felt he was guilty of “abusive conduct,” or that\r\nhe was part of a “disinformation machine.” The Court did not single out Mr.\r\nRivera in its statement of decision or admonish him in court. The Court felt\r\nthat Mr. Rivera conducted himself at trial and in all the dealings of which the\r\nCourt was aware as a gentleman and with concern that the facts and the law were\r\ncorrectly represented to the Court. It\r\nis a sad fact that attorneys who are highly motivated to accomplishment and achievement\r\nbelieve that the only reason they lose to any extent is that the Court dislikes\r\nor disapproves of them or that they personally did something wrong. That was\r\nnot the case here, and the Court wishes to make that clear. This and other\r\ncourts would do well to be more conscious of the cost to represented parties of\r\nthe indulgences often shown to parties proceeding in propria persona. These sad comments bear noting but did not figure\r\nin the decision to make an award of attorneys’ fees here or the amount of those\r\nfees.

\r\n\r\n

CONCLUSION AND ORDER

\r\n\r\n

Plaintiff Lisa Hastings’s\r\nmotion for attorney’s fees against Defendants Abraham Kevorkian and Nancy Odesho\r\nKevorkian is granted in the amount of $82,153.75.\r\n

\r\n\r\n

Plaintiff\r\nshall provide notice of this ruling.

\r\n\r\n

\r\n\r\n\r\n\r\n

\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] For example, in EnPalm,\r\nthe Court of Appeal stated:

\r\n\r\n

After determining the lodestar figure of $50,000,\r\nthe trial court was entitled to consider whether that sum should be reduced to\r\na reasonable figure under the applicable equitable principles. [Citation.] It did just that, finding that: (1) Teitler\r\nengaged in conduct that made much of the litigation unnecessary and; (2) as a\r\nresult, most of the lodestar figure represented attorney fees that were unreasonable.

\r\n\r\n

(EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774–775.)

\r\n\r\n
\r\n\r\n
"

Case Number: EC064909    Hearing Date: April 23, 2021    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

lisa hastings,

Plaintiff,

v.

abraham kevorkian, et al.,

Defendants.

Case No.: EC064909

Consolidated with: EC066975

Hearing Date: April 23, 2021

[Tentative] order RE:

motion to tax costs

BACKGROUND

A. Allegations

These consolidated actions involve the property located at 721 Colman Street, Altadena, California 91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Ms. Hastings” or “Plaintiff”), and the property located at 728 Colman Street, Altadena, CA 91001 (“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Mr. Kevorkian”) and Nancy Odesho Kevorkian (“Mrs. Kevorkian”).

The matter came for trial in December 2019 to January 2020. The Court issued its Judgment After Trial on January 12, 2021.

B. Motion to Strike/Tax Costs

On January 11, 2021, Plaintiff filed ger Memorandum of Costs, wherein she seeks:

· Item 1. Filing and Motion Fees - $4,393

· Item 4. Deposition Costs - $6,689

· Item 5. Service of Process - $1,901

· Item 8. Witness Fees - $320

· Item 9. Court Ordered Transcripts - $300

· Item 11. Models, Enlargements, and Photocopies of Exhibits - $289

· Item 12. Court Reporter Fees as Established by Statute - $16,947

· Item 13. Other (Expert Fees) - $31,016

· TOTAL: $61,855

On January 25, 2021, Mr. Kevorkian filed a motion to tax costs sought by Plaintiff.

On March 29, 2021, Plaintiff filed an opposition brief.

On April 16, 2021, Mr. Kevorkian filed a reply brief.

DISCUSSION

  1. Prevailing Party

Under CCP § 1032, costs are available as a matter of right when the prevailing party is within one of the four categories designated by the statute. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1197-1198.) Section 1032 statute defines the prevailing party to include four categories of parties:

1) the party with a net monetary recovery;

2) the defendant in whose favor a dismissal was entered;

3) the defendant where neither plaintiff nor defendant recovers any relief; and

4) the defendant against whom plaintiff has not recovered any relief.

In other situations or when a party recovers other than monetary relief, the prevailing party is determined by the court, and the award of costs is within the court's discretion. (Id.)

On page 8 of the January 12, 2021 Judgment After Trial, the Court deemed Plaintiff the prevailing party “both because there is a net monetary award in her favor and because she has obtained the principal elements of the essential equitable relief that she sought.”

Thus, Plaintiff is entitled to costs pursuant to CCP § 1032.

  1. Motion to Tax Costs

1. Item 1: Filing and Motion Fees

CCP § 1033.5(a)(1) classifies filing, motion, and jury fees as allowable costs under section 1032.

Plaintiff seeks to recover $4,393 for Item 1. Mr. Kevorkian seeks to tax the entirety of the cost.

Mr. Kevorkian argues that the entirety of the costs should be disallowed because Plaintiff is seeking costs in 3 different actions, Plaintiff’s motion for summary adjudication was denied on the 5th cause of action for cancellation of written instrument in May 2019, and Plaintiff voluntarily dismissed the IIED cause of action.

However, filing and motion fees are an allowable cost pursuant to CCP § 1033.5(a)(1). Although Plaintiff’s MSA on a cause of action may have been denied, this in itself is not a ground to tax the cost. Further, the voluntarily dismissal of a cause of action does not negate the entirety of Plaintiff’s claimed costs. Finally, this matter involves a consolidated action, wherein the Court held a trial on the initial Complaint filed on January 29, 2016 in Case No. EC064909, the Second Amended Complaint filed on May 14, 2018 in Case No. EC066975, and the Supplemental Complaint filed March 26, 2019 in Case No. EC066975. Thus, these are not 3 separate actions that Mr. Kevorkian argues Plaintiff is improperly seeking costs for. The parties were well aware from the inception of trial that the matter had been consolidated and that each of the complaints were at issue.

Thus, the motion to tax Plaintiff’s Item 1 costs is denied. The total amount that shall be awarded to Plaintiff in Item 1 is $4,393.

2. Item 4: Deposition Costs

CCP § 1033.5(a)(3) states that: (A) taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed; (B) fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language; and (C) travel expenses to attend depositions are allowable costs under section 1032.

Plaintiff seeks to recover $6,689 for Item 4 for: (1) Mr. Kevorkian’s video deposition for $665; (2) Mr. Kevorkian’s deposition, reporter’s transcript for $1,925; (3) deposition of Mrs. Odesho (reporter’s transcript) for $543; (4) deposition of Mr. Kevorkian’s video deposition for $945; (5) 5/16/19 deposition of Mr. Kevorkian for $996.50; (6) 5/16/19 deposition of Timothy Reardon for $1,024.75; and (7) 11/7/19 deposition of Sally Lucero for $591.25.

Mr. Kevorkian seeks to tax the entirety of the cost. He argues that this cost should be disallowed because the Court ruled on pure questions of law and depositions were not reasonably necessary to the conduct of the litigation and trial. He also argues that there was no deposition of Sally Lucero because Plaintiff’s counsel, Guy Jamison, intimidated and threatened her.

The Court will allow the costs for Mr. Kevorkian and Mr. Reardon’s deposition.

However, the Court will strike the cost of $591.25 sought for the deposition of Ms. Lucero. Plaintiff has not provided the Court with a record to determine the appropriateness of Ms. Lucero’s deposition. The burden is on Plaintiff to substantiate this cost. As stated in CCP § 1033.5(a)(3)(A), an allowable cost is the taking, video recording, and transcribing of “necessary depositions.” Thus, the Court will strike the cost for Ms. Lucero’s deposition.

Thus, the Court grants Mr. Kevorkian’s motion to tax Plaintiff’s Item 4 costs by $591.25. The total amount that shall be awarded to Plaintiff on Item 4 is $6,097.75 (=$6,689 - $591.25).

3. Item 5: Service of Process

“Service of process by a public officer, registered process server, or other means” is an allowable cost under CCP § 1033.5(a)(4).

Plaintiff seeks to recover $1,901 for Item 5.

Mr. Kevorkian seeks to tax the entirety of the cost. He argues that in the first case (EC064909), Plaintiff was awarded $1,385.34 and nothing more, she voluntarily dismissed her IIED claim and Fidelity Title Insurance Company from the action, and Plaintiff’s MSA was denied.

Mr. Kevorkian has not stated actual grounds upon which the motion to tax these Item 5 costs should be granted. As discussed above, the order on the MSA and the voluntarily dismissals are not grounds in and of themselves to strike these costs. Further, even if Plaintiff was awarded a certain sum for damages on a cause of action, this does not preclude a separate recovery for costs and attorney’s fees apart from damages.

Thus, the motion to tax Plaintiff’s Item 5 costs is denied. The total amount that shall be awarded to Plaintiff in Item 5 is $1,901.

4. Items 8: Witness Fees

CCP § 1033.5(a)(7) provides that an allowable cost includes ordinary witness fees pursuant to Government Code, § 68093. Government Code, § 68093 states: “Except as otherwise provided by law, witness' fees for each day's actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.”

Plaintiff seeks to recover $320 for Item 8 for witness fees for: (1) Timothy Reardon/Old Republic Title (1 day at $45); and (2) Los Angeles County Fire Department (1 day at $275). Mr. Kevorkian addresses Item 8 costs with Item 13 (expert witness fees), arguing that the cost memorandum is unclear. (See Mot. at pp.12-13.)

Here, the $45 cost of witness fees is reasonable in amount as to Mr. Reardon and will an allowable cost.

With regard to the Los Angeles County Fire Department, the cost memorandum has a notation with the statement “GOVT fee”, but it unclear what this means. Thus, the Court will allow a total cost award of $35 for this witness. In opposition, Plaintiff argues that section 1033.5(a)(7) costs are allowable, but Plaintiff fails to substantiate the cost with evidence or any other arguments.

The Court grants Mr. Kevorkian’s motion to tax Plaintiff’s Item 8 costs by $240. The total amount that shall be awarded to Plaintiff in Item 8 is $80.

5. Item 9: Court Ordered Transcripts

CCP §1003.5(a)(9) state that an allowable cost includes transcripts of court proceedings ordered by the court.

Plaintiff seeks to recover $300 for Item 9. Plaintiff seeks the $300 she paid as her portion of the court reporter cost for the site visit.

Mr. Kevorkian seeks to tax the entirety of the cost, arguing that the Court ordered the parties to split the cost of the court reporter for the site visit. He provides Exhibit C to his declaration, which includes a receipt showing that he paid his portion of the court reporter fees in the amount of $300. (Kevorkian Decl., Ex. C.)

According to the Court’s March 30, 2019 minute order in Case No. EC066975, the Court set a hearing for the site visit of Colman Street and ordered the parties to secure a court reporter and share the costs. Thus, the Court will strike the cost sought by Plaintiff as the Court expressly ordered that the parties share the burden of this cost.

The Court grants Mr. Kevorkian’s motion to tax Plaintiff’s Item 9 costs by $300. The total amount that shall be awarded to Plaintiff on Item 9 is $0.

6. Item 11: Models, enlargements, and photocopies of exhibits

An allowable cost under CCP § 1033.5(a)(13) includes: “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”

Plaintiff seeks to recover $289 for Item 11. Mr. Kevorkian seeks to tax the entirety of the cost, arguing that Plaintiff has not shown that the exhibit(s) aided the Court and were reasonably necessary.

However, the evidence in this case, including the exhibits regarding the properties on Colman Street and their relationships thereto, were instructive and reasonably necessary for the conduct of the litigation.

Thus, the motion to tax Plaintiff’s Item 11 costs is denied. The total amount that shall be awarded to Plaintiff in Item 11 is $289.

7. Item 12: Court Reporter Fees as Established by Statute

CCP §1033.5(a)(11) classifies court reporter fees as established by statute as allowable costs under section 1032.

Plaintiff seeks to recover $16,947 for Item 12. Mr. Kevorkian seeks to tax the entirety of the cost, arguing that Plaintiff seeks costs for court reporter fees that the Court did not order.

Mr. Kevorkian also argues that at the end of trial when the Court asked whether the parties would provide the Court with a transcript, both parties stated no. However, transcript fees are different from court reporter fees. (See CCP § 1033.5(a)(9) [transcripts by court order] and (11) [court reporter fees as established by statute].) Transcript fees are not at issue in this item.

Thus, the Court will award court reporter fees.

The non-jury trial commenced on December 9, 2019 and the Court certified Ingrid Saracione (certified shorthand reporter) was appointed as an official court reporter pro tempore. Thereafter, the Court signed an Order Appointing Court Approved Reporter as Official Reporter Pro Tempore on January 6, 2020 regarding Mary R. Rickery.[1]

Government Code, § 68086 provides for the costs of court reporting services by an “official court reporter” pursuant to CCP § 269. Subsection (c) of section 68086 provides that the “costs for the service of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.” (See also Gov’t Code, § 68086(d)(2) [“(2) That if an official court reporter is not available, a party may arrange for, at the party's expense, the presence of a certified shorthand reporter to serve as

Here, Plaintiff hired California Deposition Reporters, Inc. The receipts state that the court reporter was retained for “Services: LA Superiour [sic] Court Official; Reporter” for the amounts of: $1,571.10 (12/10/19), $1,571.10 (12/9/19), $798.43 (12/11/19), $798.43 (12/12/19), $1,571.10 (12/17/19), $1,571.10 (12/18/19), $1,571.10 (12/19/19), $1,571.10 (12/30/19), $1,571.10 (12/31/19), $798.43 ($798.43), $1,777.14 (1/6/20), and $1,777.14 (1/7/20). (Memo. of Costs at pp. 17-28 of 28 [Invoice #3947-3951, 3971-3974, 4177-4178, 4192-4193].) Thus, the costs have been substantiated with receipts.

The motion to tax Plaintiff’s Item 12 costs is denied. The total amount that shall be awarded to Plaintiff in Item 12 is $16,947.

8. Item 13: Other (Expert Witness Fees)

CCP § 1033.5(a)(8) provides that an allowable cost includes “[f]ees of expert witnesses ordered by the court.” “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (CCP §1033.5(c)(4).)

Plaintiff seeks to recover $31,016 for Item 13 (Other) for expert witness fees. Mr. Kevorkian seeks to tax these costs in their entirety.

Mr. Kevorkian argues that he never served a section 998 offer and thus Plaintiff is not entitled to recover expert witness fees.

However, subsection (8) states that expert witness fees are an allowable cost where ordered by the Court. In opposition, Mr. Jamison states in his declaration that Plaintiff claims costs associated with expert fees because the Court ordered the use of an expert witness. (Jamison Decl., ¶7.) He states that Mr. Rivera (now deceased) handled this specific aspect of the case, but that he is aware that the Court wanted the parties to retain an expert in May 2019 for the purpose of assisting the Court in its analysis of the title and easement issues. (Id.) Plaintiff argues that the Court ordered the use of an expert witness, where parties would have proceeded without an expert. (Opp. at p.4.)

The Court did not order that the parties retain expert witnesses. The Court did contemplate having the parties share the fees of a Court appointed expert, but later thought better of this idea given the expense this would involuntarily impose on the parties. Mr. Rivera, quite appropriately intuited that the Court might need expert testimony, and the expert was indeed helpful, even though the Court did not agree with some of his conclusions. Nevertheless, this is not grounds to allow expert witness costs. The Court grants Mr. Kevorkian’s motion to tax Plaintiff’s Item13 costs by $31,016. The total amount that shall be awarded to Plaintiff in Item 13 is $0.

CONCLUSION AND ORDER

Defendant Abraham Kevorkian’s motion to tax costs sought by Plaintiff is granted in part and denied in part such that Plaintiff’s requested costs shall be awarded as follows:

Plaintiff’s Cost Memorandum Request $61,855

· Item 1. Filing and Motion Fees - $4,393 (no reduction)

· Item 4. Deposition Costs - $6,097.75 ($591.25 reduction)

· Item 5. Service of Process - $1,901 (no reduction)

· Item 8. Witness Fees - $80 ($240 reduction)

· Item 9. Court Ordered Transcripts - $0 ($300 reduction)

· Item 11. Models, Enlargements, and Photocopies of Exhibits - $289 (no reduction)

· Item 12. Court Reporter Fees as Established by Statute - $16,947 ($0 reduction)

· Item 13. Other (Expert Fees) - $0 ($31,016 reduction)

TOTAL COSTS AWARDED $29,707.75 (reduction of $32,147.25)

Accordingly, the total costs Plaintiff may recover from Mr. Kevorkian is $29,707.75.

Plaintiff shall provide notice of this ruling. 


[1] Government Code, § 69941 states: “A superior court may appoint  competent phonographic reporters, to be known as official reporters of such court, and such official reporters pro tempore, as are deemed necessary for the performance of the duties and the exercise of the powers conferred by law upon the court and its members.”

CRC Rule 2.956(e)(2) defines “official reporter” and “official reporting services” to “include an official court reporter or official reporter as those phrases are used in statutes, including Code of Civil Procedure sections 269 and 274c and Government Code section 69941; and include an official reporter pro tempore as the phrase is used in Government Code section 69945 and other statutes, whose fee for attending and reporting proceedings is paid for by the court or the county, and who attends court sessions as directed by the court, and who was not employed to report specific causes at the request of a party or parties.”

Case Number: EC064909    Hearing Date: November 27, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

lisa hastings,

Plaintiff,

vs.

abraham kevorkian, et al.,

Defendants.

Case No.: EC066975

Previously consolidated with: EC064909

Hearing Date: November 27, 2019

[TENTATIVE] order RE:

motions to compel further responses

Background

  1. Allegations

This action involves the property located at 721 Colman Street, Altadena, California 91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Plaintiff”), and property located at 728 Colman Street, Altadena, CA 91101 (“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Kevorkian”) and Nancy Odesho (“Odesho”). Plaintiff alleges that the Kevorkian Property has always benefited, as the dominate tenement, over the Hastings Property with a 30-foot wide recorded easement.

Plaintiff also alleges that the Hastings Property receives a benefit of a 34-foot Road and Utility Easement for the northern side of the Kevorkian Property. However, Plaintiff alleges that Kevorkian and Odesho persuaded Fidelity National Title Insurance Company (“Fidelity”) to improperly record a grant deed, unilaterally granting themselves the benefits of the Road and Utility Easement.

Plaintiff filed this lawsuit against Defendants to enjoin them from using the easement for anything other than ingress and egress, in view of Defendants’ history of parking vehicles in the easement area. The second amended complaint (“SAC”), filed May 14, 2018, alleges causes of action for: (1) quiet title against Kevorkian and Odesho; (2) slander of title against Kevorkian, Odesho, and Fidelity National Title Insurance Company; (3) permanent injunction to compel removal of encroachment against Kevorkian and Odesho; (4) ejectment against Kevorkian and Odesho; and (5) cancellation of written instrument against Kevorkian and Odesho.

On March 26, 2019, Plaintiff filed a Supplemental Complaint for: (1) reformation of written instrument; (2) partial cancellation of written instrument; (3) cancellation of written instrument; (4) declaratory relief; (5) slander of title; and (6) permanent injunction. Plaintiff’s Supplemental Complaint involves additional events that occurred after the filing of the SAC, including Defendants taking out a loan on the Kevorkian Property secured by a deed of trust in favor of the lender New Penn Financial, LLC, which includes an allegedly false description based upon the self-granted easement (“New Penn Deed”) and a survey Defendants commissioned from Caliland Engineering, Inc. and Yoon Lai (“Caliland Survey”) which purportedly confirms that the Kevorkian Property is benefited by a 34-foot Road and Utility Easement.

  1. Motions on Calendar

On October 18, 2019, Abraham Kevorkian filed two motions to compel further responses to special interrogatories, set two (“SROG”) and requests for admissions, set two (“RFA”) in Case No. EC066975. On October 21, 2019, he filed a motion to compel further responses to requests for production of documents, set two (“RPD”). Plaintiff filed opposition briefs on November 15, 2019.

On October 28, 2019, Abraham Kevorkian filed a motion for order deeming the truth of facts and genuineness of documents in Case No. EC064909. On November 18, 2019, Plaintiff filed an opposition brief to this motion but filed it in Case No. EC066975.

DISCUSSIOn

  1. Discovery Cut Off Period

CCP §2024.020(a) states: “Except as otherwise provided in this chapter, any party shall be entitled as a y, and to

A non-jury trial is set for December 9, 2019.

Abraham Kevorkian’s discovery motions are currently set for November 27, 2019.

On October 31, 2019, Judge C. Edward Simpson denied Abraham Kevorkian’s ex parte application to continue the trial date and trial-related deadlines. On the Court’s own motion, Judge Simpson advanced the hearing dates of the 3 motions to compel further filed in Case No. EC066975 and the 1 motion to deem RFA admitted in Case No. EC064909, originally set for January 3, 2020 and December 6, 2019 respectively, to November 27, 2019.

Despite advancing the hearing dates on the 4 discovery motions, the motions are still untimely as they violate the discovery cut-off period. As stated in CCP §2024.020(a), discovery motions must be heard on or before the 15th day prior to trial. At least 15 days before the December 9, 2019 trial date would be November 22, 2019 (which accounts for the weekend). Thus, to be timely, Abraham Kevorkian should have reserved earlier hearing dates by or before November 22, 2019, or moved ex parte to advance the hearing dates on the motions so that they complied with the procedural deadline requirements of CCP §2024.020.

Thus, the motions may be denied on this basis.

  1. Timeliness of Motions to Compel Further Responses in Case No. EC066975

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP §§2030.300(c), 2031.310(c), 2033.290(c).) An additional 5 days is added where the interrogatory responses are served by mail. (CCP §1013.) The 45-day limitation to move to compel further responses as to interrogatories and document requests is jurisdictional, and courts are without authority to rule on untimely motions to compel except just to deny them. (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.) The deadline cannot be circumvented by propounding the same discovery again. (Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.)

Plaintiff served her SROG, RPD, and RFA responses/objections on Abraham Kevorkian on August 26, 2019 by mail. (Kevorkian Decl. re SROG, Ex. B; Kevorkian Decl. re RPD, Ex. B; Kevorkian Decl. re RFA, Ex. B.)

These motions were filed on October 18, 2019.

To be within the jurisdictional time period, the motions to compel further should have latest been filed by October 15, 2019. There is also no indication that the parties agreed in writing to extend the time period to file the motions.[1]

As such, the motions to compel further responses were not timely filed. This failure to comply with the jurisdictional time limit is sufficient to deny the 3 motions.

  1. Motion for Order Deeming Truth of Facts and Genuineness in Case No. EC064909

As pointed out by Plaintiff in the opposition brief, the motion is moot because Plaintiff served her responses regarding the RFA on October 14, 2019 and verifications were served on October 29, 2019. Nevertheless, in view of the rapidly approaching trial, the Court reviewed the responses, and finds that they do not directly address the requests. These are simple requests regarding the genuineness of documents or other disputed issues and can be responded to with straightforward admissions or denials. The Court orders Plaintiff to respond within five days with straightforward admissions or denials.

Conclusion and Order

With regard to the 3 motions to compel further responses filed in Case No. EC066975, the motions are denied on the basis of untimeliness pursuant to CCP §§2030.300(c), 2031.310(c), and 2033.290(c). The motion regarding the RFAs in Case No. EC064909 is granted.

Plaintiff is ordered to provide notice of this ruling.


[1] Abraham Kevorkian argues that the responses were unverified. However, as pointed out by Plaintiff, only responses to discovery need be verified whereas objections need not be verified. (CCP §§2030.250(a), 2031.250(a), 2033.240(a).) Plaintiff essentially served objections in response to the discovery requests.

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