Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 02:37:54 (UTC).

ROSS A. MCLEAN, ET AL VS. GIDON ROSMAN, ET AL

Case Summary

On 10/03/2016 ROSS A MCLEAN filed a Contract - Other Contract lawsuit against GIDON ROSMAN. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is MICHAEL J. CONVEY. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4705

  • Filing Date:

    10/03/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL J. CONVEY

 

Party Details

Plaintiff

MCLEAN ROSS A. AND MCLEAN LOUISA B.

Defendants

ROSMAN GIDON

KANITZ EYAL

DOES 1-20

Attorney/Law Firm Details

Plaintiff Attorney

PENSANTI LOUISA BELLE

Defendant Attorney

PARISER WAYNE DAVID

 

Court Documents

Proof of Service of Summons and Complaint

2/27/2017: Proof of Service of Summons and Complaint

Minute Order

3/7/2017: Minute Order

Case Management Statement

4/21/2017: Case Management Statement

Minute Order

4/26/2017: Minute Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

5/17/2017: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Request for Judicial Notice

5/11/2018: Request for Judicial Notice

Unknown

6/6/2018: Unknown

Minute Order

6/12/2018: Minute Order

Answer

7/12/2018: Answer

Minute Order

9/6/2018: Minute Order

Minute Order

9/6/2018: Minute Order

Request for Judicial Notice

10/31/2018: Request for Judicial Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

12/27/2018: Minute Order

Notice of Ruling

1/2/2019: Notice of Ruling

Minute Order

1/18/2019: Minute Order

Notice of Related Case

4/11/2019: Notice of Related Case

Minute Order

4/19/2019: Minute Order

51 More Documents Available

 

Docket Entries

  • 05/17/2019
  • Abstract of Judgment - Civil and Small Claims; Filed by Gidon Rosman (Defendant)

    Read MoreRead Less
  • 04/24/2019
  • Notice (Notice of Entry of Judgment); Filed by Gidon Rosman (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion for Attorney Fees - Held - Motion Granted

    Read MoreRead Less
  • 04/23/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Case Management Conference - Held

    Read MoreRead Less
  • 04/23/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Order to Show Cause Re: (Entry of Judgment) - Held

    Read MoreRead Less
  • 04/23/2019
  • Judgment; Filed by Gidon Rosman (Defendant); Eyal Kanitz (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • Notice of Ruling; Filed by Gidon Rosman (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • Minute Order ( (Order to Show Cause Re: Entry of Judgment; Case Management Co...)); Filed by Clerk

    Read MoreRead Less
  • 04/19/2019
  • at 09:00 AM in Department U, Michael J. Convey, Presiding; Court Order

    Read MoreRead Less
  • 04/19/2019
  • at 09:00 AM in Department U, Michael J. Convey, Presiding; Court Order - Held

    Read MoreRead Less
74 More Docket Entries
  • 02/27/2017
  • Notice of Related Case; Filed by McLean, Ross A. and McLean, Louisa B. (Plaintiff)

    Read MoreRead Less
  • 02/21/2017
  • at 08:30 AM in Department W; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 02/21/2017
  • Minute order entered: 2017-02-21 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 01/18/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    Read MoreRead Less
  • 01/18/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    Read MoreRead Less
  • 01/03/2017
  • at 00:00 AM in Department W; Unknown Event Type

    Read MoreRead Less
  • 10/03/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/03/2016
  • Summons; Filed by McLean, Ross A. and McLean, Louisa B. (Plaintiff)

    Read MoreRead Less
  • 10/03/2016
  • Complaint; Filed by McLean, Ross A. and McLean, Louisa B. (Plaintiff)

    Read MoreRead Less
  • 10/03/2016
  • Civil Case Cover Sheet; Filed by McLean, Ross A. and McLean, Louisa B. (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: LC104705    Hearing Date: October 06, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

ROSS A. MCLEAN and LOUSIA B. MCLEAN, a.k.a. LOUISA B. PENSANTI, individually and as Trustees for the McLean Family Trust, dated October 24, 2002,

Plaintiffs,

vs.

GIDON ROSMAN, EYAL KANITZ; and DOES 1-20, inclusive,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO: LC104705

[TENTATIVE] ORDER RE: PLAINTIFFS’ MOTION FOR RECONSIDERATION

Dept. U

8:30 a.m.

October 6, 2020

I. BACKGROUND

On October 3, 2016, Ross A. McLean and Louisa B. McLean, a.k.a. Louisa B. Pensanti, individually and as Trustees for the McLean Family Trust dated October 24, 2002 (collectively, Plaintiffs), filed a complaint against Gidon Rosman, Eyal Kanitz (Defendants), and Does 1 through 20, alleging claims for: (1) breach of contract; (2) breach of CC&R’s; and (3) declaratory judgment.

The Court granted Defendants’ motion for summary judgment on March 3, 2019. The Court granted Defendants’ motion for attorneys’ fees and costs on April 23, 2019 and awarded Defendants $37,105.91 in attorneys’ fees and $1,983.40 in court costs. Plaintiffs filed an appeal on June 13, 2019 of the Court’s decision granting Defendants’ motion for summary judgment. Plaintiffs defaulted and the appellate court dismissed their appeal on October 23, 2019.

On July 23, 2020, the Court awarded Defendants an additional $7,395 in attorneys’ fees and $644.40 in costs for legal services rendered on appeal. On August 4, 2020, Plaintiffs filed this motion for reconsideration of the Court’s July 23, 2020 order.

//

II. LEGAL STANDARDS & DISCUSSION

A. Timeliness

A motion for reconsideration must be filed within 10 days of service of the notice of the entry of the order. (Code Civ. Proc., §1008(a).) When service is done by mail, five extra days are added under Code of Civil Procedure section 1013. Therefore, a party has a total of 15 days from the date the notice of entry of the order was served to seek a motion for reconsideration. 

Here, the Notice of Ruling was mailed to Plaintiffs’ attorney on July 23, 2020. (July 23, 2020 Notice of Ruling, Proof of Service.) Fifteen days later was August 7, 2020. This motion was filed August 4, 2020 and is, therefore, timely.

B. Law & Analysis

Under Code of Civil Procedure section 1008(a), the application must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order. The party making the application must state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. Code of Civil Procedure section 1008(e) states that the section defines the Court's jurisdiction with regard to applications for reconsideration and that no application to reconsider any order may be considered unless made according to section 1008.  The language of Code of Civil Procedure section 1008(e) makes it absolutely clear that a Court's power to hear successive motions is restricted to motions that comply with Code of Civil Procedure section 1008(a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197, 211.) 

The Court notes at the outset that Plaintiffs have not included the following facts in an affidavit as required under Code of Civil Procedure section 1008(a). Rather, Plaintiffs’ arguments and facts are supported only by the motion itself.

Here, Plaintiffs move this Court to reconsider its July 23, 2020 order granting Defendants’ motion for attorneys’ fees and costs. Plaintiffs maintain that Defendants cannot collect attorneys’ fees and costs under a settlement agreement to which they were found a non-party. Plaintiffs rely on The Swahn Group, Inc. v. Segal (2010) 183 App.4th 831, 841 for the proposition that a party cannot plead inconsistent legal theories depending on the benefit derived at a given point in the case. These are the identical argument and case cited by Plaintiffs in their opposition to Defendants’ motion for additional attorneys’ fees and costs. This motion is plainly not grounded on new law under Code of Civil Procedure section 1008.

Plaintiffs also argue that Defendants cannot recover attorneys’ fees and costs under the settlement agreement because they were not parties to it. Again, Plaintiffs submit the same arguments and case law cited in their previous opposition.

Most of Plaintiffs’ motion for reconsideration is simply copied and pasted from its prior opposition to Defendants’ motion for additional attorneys’ fees and costs. Plaintiffs’ attempt at passing this motion off as a new issue to be addressed by the Court was made in bad faith and is not well-taken.

The Court finds that Defendants are entitled to additional attorneys’ fees for the same reasons the initial fee award was granted, as well as because Plaintiff have violated the terms of Code of Civil Procedure section 1008 and, thus, are entitled to fees under subdivision (d) and section 128.7. The Court finds that Plaintiffs reasonably expended an additional four hours of attorney time in opposing this motion and award a total of $1,700 in additional fees and/or sanctions.

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for reconsideration is DENIED. Defendants are awarded $1,700 in reasonable attorneys’ fees and/or sanctions under the terms of the contract and Civil Code section 1717 and under Code of Civil Procedure sections 1008(d) and 125.7. These additional fees are to be paid within 30 days to Defendants’ counsel.

Defendants are ordered to give notice of the Court’s ruling.

DATED: October 6, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: LC104705    Hearing Date: July 22, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

ROSS A. MCLEAN and LOUSIA B. MCLEAN, a.k.a. LOUISA B. PENSANTI, individually and as Trustees for the McLean Family Trust, dated October 24, 2002,

Plaintiffs,

vs.

GIDON ROSMAN, EYAL KANITZ; and DOES 1-20, inclusive,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO: LC104705

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

Dept. U

8:30 a.m.

July 23, 2020

I. BACKGROUND

On October 3, 2016, Ross A. McLean and Louisa B. McLean, a.k.a. Louisa B. Pensanti, individually and as Trustees for the McLean Family Trust dated October 24, 2002 (collectively, Plaintiffs), filed a complaint against Gidon Rosman, Eyal Kanitz (Defendants), and Does 1 through 20, alleging claims for: (1) breach of contract; (2) breach of CC&R’s; and (3) declaratory judgment.

The Court granted Defendants’ motion for summary judgment on March 3, 2019. The Court granted Defendants’ motion for attorneys’ fees and costs on April 23, 2019 and awarded Defendants $37,105.91 in attorneys’ fees and $1,983.40 in court costs. Plaintiffs filed an appeal on June 13, 2019 of the Court’s decision granting Defendants’ motion for summary judgment. Plaintiffs defaulted and the appellate court dismissed their appeal on October 23, 2019.

Defendants make this motion for additional attorneys’ fees and costs incurred during the pendency of the appeal. Defendants request $10,228.95 in attorneys’ fees and $644.60 in court costs.

//

II. LEGAL STANDARD

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.” (Code Civ. Proc., § 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Ibid.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . is a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”).)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Ibid.)

III. DISCUSSION

Defendants request attorneys’ fees incurred on appeal totaling $10,228.95. The subject settlement agreement contains a contractual attorneys’ fees clause entitling the prevailing party to the recovery of attorneys’ fees. Paragraph 16 of this settlement agreement provides:

Should any party institute an action or proceeding to enforce any provision of this Agreement, or for damages by reason of alleged breach of this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including attorneys’ fees, incurred in connection with such action, including those incurred on appeal and in enforcing a judgment.

Defendants are the prevailing party on appeal because the appellate court dismissed Plaintiffs’ appeal of the trial court’s order granting Defendants’ motion for summary judgment. Although Defendants are not parties to the settlement agreement, they are entitled to recover attorneys’ fees and expenses under paragraph 16 pursuant to the principle of reciprocity codified in Civil Code section 1717. As the California Supreme Court held in Hsu v. Abbara (1995) 9 Cal. 4th 863, 870, a litigant who is not a party to the underlying contract providing for attorney’s fees to the prevailing party make seek fees under that provision if the litigant prevails on the grounds that the contract is inapplicable, invalid, unenforceable for nonexistent. The Court observed that the mutuality of remedies intended by section 1717 would be impaired if a litigant is unable to seek fees under the contract after defeating contract claims by proving they were not parties to the underlying agreement. (Id. at pp. 870-871.)

Because Plaintiffs would have been entitled to recover fees under the settlement agreement had they prevailed on their contract claims, Defendants are allowed to recover as well. Therefore, as the prevailing party on before this Court and on appeal, the settlement agreement is a proper source for recovering attorneys’ fees and costs.

Here, Defendants are represented by Wayne Pariser (Pariser). Defendants claim an hourly rate of $425. Defendants claim this rate is reasonable because a comparable attorney would likely charge an hourly rate of $450. Pariser has been practicing law for 32 years and is experienced in litigation, including real estate and homeowner association matters. (Praiser declaration, ¶ 6.) Praiser has had articles published by the Community Associations Institute, the American Bar Association, and the West Los Angeles Chamber of Commerce. (Ibid.) This matter endured for approximately two and one-half years. Praiser successfully in disposed of this matter with a judgment in Defendants’ favor on a motion for summary judgment. Defendants were successful again on appeal when Plaintiffs defaulted and the appeal was dismissed. Based on the experience of Praiser and the duration and outcome of this case, the Court finds an hourly rate of $425 reasonable.

Praiser’s timesheet reveals he spent a total of 13.10 hours representing Defendants on appeal. This included preparing the judgment abstract, legal research, preparing an opposition to Plaintiffs’ application for relief from default, responding to Plaintiffs’ motion for reconsideration, and communicating with his clients. Praiser states he spent about 3.3 hours preparing this motion and anticipates spending an additional eight hours responding to Plaintiffs’ opposition and attending the hearing.

Plaintiffs have filed no opposition to this motion and Praiser has not had to review such papers and draft a reply. Thus, the Court reduces the anticipated eight additional hours to one hour to account for Praiser’s time spent preparing for and attending the hearing. The Court finds 17.4 hours a reasonable amount of time spent in defending this matter on appeal and bringing this fee motion.

Therefore, Defendants have met their burden in showing that they are entitled to $7,395 in attorneys’ fees (17.4 hours x $425 per hour). Defendants also presents unopposed requests for $409.20 in costs on appeal and $235.40 for costs after judgment, for a total of $644.40 in costs, which the Court grants.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for attorneys’ fees and costs and requests for costs are GRANTED. Defendants are awarded $7,395 in attorneys’ fees and $644.40 in costs.

Defendants are ordered to give notice of the Court’s ruling.

DATED: July 23, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court