SCOTT DUNCOMBE VS BARFRESH FOOD GROUP INC

Tentative Rulings

Case Number: BC626749    Hearing Date: July 10, 2020    Dept: 74

BC626749 SCOTT DUNCOMBE vs BARFRESH FOOD GROUP INC

Department 74 will be dark on Friday, July 10, 2020. If you do not submit on the tentative and would like oral argument, please notify the clerk by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. The hearing will be continued to July 17, 2020 at 10:30 a.m.

Defendant’s Motion to Vacate the Judgment

Defendant moves for an order to vacate judgment or in the alternative enter a new judgment on the grounds that the judgment fails to specify Australian currency and that the Court entered a judgment that included extrinsic fraud and/or a mistake. In addition, defendant argues the court lacks subject matter jurisdiction in order to render a judgment in this action.

Code of Civil Procedure §473, subdivision (d) states: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

“A person may assert a claim in a specified foreign money. If a foreign-money claim is not asserted, the claimant makes the claim in United States dollars. An opposing party may allege and prove that a claim, in whole or in part, is in a different money than that asserted by the claimant.” Code of Civil Procedure § 676.4 states money must be paid in the currency agreed upon. “A person may assert a claim in a specified foreign money. If a foreign-money claim is not asserted, the claimant makes the claim in United States dollars. An opposing party may allege and prove that a claim, in whole or in part, is in a different money than that asserted by the claimant.” Code of Civil Procedure § 676.6.

Defendant’s request pursuant to CCP §473 is not barred by the time limitation set forth in CCP §473(b) because that limitation applies only to defaults, default judgments and dismisals. At issue here is a judgment on a jury verdict.

As the complaint alleges damages in Australian dollars and most of the testimony at trial concerned damages was in Australian dollars, the motion to amend the judgment to clarify damages are owed in Australian dollars is GRANTED. Moving party to give notice.

Defendant’s motion to vacate the judgment as void is DENIED. Moving party to give notice.

First, a motion to strike or tax costs is the appropriate vehicle to contemplate the validity of costs. Defendant waived its right to enforce the November 13, 2017, order by not seeking enforcement of the order until after the trial occurred and the court entered judgment. Moreover, defendant did not meet the requirements to establish extrinsic fraud, as defendant has not been fraudulently prevented from presenting its claim.

Second, the court ruled it had subject matter jurisdiction on October 1, 2018.

Plaintiff’s Motion for Attorney Fees and Costs

Generally, each party is responsible for their attorney fees unless a statute or contract provides otherwise for the prevailing party. (Eden Township Healthcare Dist. V. Eden Medical Center (2013) 220 Cal.App.4th 418, 425.) In determining which party is the prevailing party, trial courts may consider all factors reasonably indicating success in the litigation, but may not abuse their discretion and deny fees arbitrarily. (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1149, 1155, 1158.) A court abuses its discretion by denying fees where the party obtained a “‘simple, unqualified win,’” and the results were not mixed. (Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268-1271.)

Plaintiff is the prevailing party. The jury awarded plaintiff $43,962.56 in damages and plaintiff was also awarded $27,530.30 in costs. As such, plaintiff is entitled to attorney’s fees pursuant to CCP § 2033.420.

Section 2033.420 authorizes partial recovery of fees related to a RFA request, not full recovery of attorney’s fees for the entire suit. “[A]n award of costs of proof for a denial of a request for admission involves the weighing of a number of factors, such as whether the matter denied was of ‘substantial importance;’ whether there was a ‘reasonable basis’ for the denial; whether the party making the denial knew or should have known at the time that the requested matter was of ‘substantial importance’ and was true; whether there were ‘other good reasons for the denial’; and whether and to what extent the responding party made a good faith effort otherwise to resolve the matter.” City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 354.

Plaintiff argues defendant denied and/or objected to his RFAs (set one) Nos. 3, 4, 12 and 13, which required Defendant to admit the following in respective order: “(1) Admit that during the 2014 meeting between Mr. Delle Defendant agreed that Plaintiff would provide business development, marketing, and consulting service to Defendant in exchange for payments based on Plaintiff’s invoices on monthly basis; (2) Admit that during the October 2014 meeting between Mr. Delle Costs and Plaintiff, Defendant negotiated with Plaintiff via telephonic communications and emailed the terms under which Plaintiff would provide business development, marketing, and consulting services to Defendant in exchange for payments based on Plaintiff’s invoices on monthly basis; (3) Admit that Plaintiff invoiced YOU for Plaintiff’s business development, marketing, and consulting services in October 2015; and (4) Admit that You failed to pay Plaintiff for his business marketing, and consulting services in October 2015.” (Motion for Attorneys Fees p.5: 26-27; p.6: 1-14.) Despite Defendant’s choice not to supplement its response to RFAs (set one) Nos. 3, 4, 12 and 13 (hereafter the “RFAs”), at trial Plaintiff proved that an agreement existed between him and Defendant and proved that Defendant breached that agreement and owed Plaintiff damages because of such breach. (Motion for Attorneys Fees p.6: 24-27.)

Plaintiff did not waive the right to obtain fees because he moved for further responses (the motion was never heard). The admissions sought were of substantial importance because they related to each element of its breach of contract claim and would have established a material breach.

The court finds that while defendant’s denial and/or objection to RFAs (set one) No. 13 was reasonable, its denials and/or objections to RFAs (set one) Nos. 3, 4 and 12 were not. Defendant knew that it agreed to compensate Plaintiff based on invoices even if it also used performance standards to compensate Plaintiff. Defendant also knew that it exchanged email communications with plaintiff to establish that plaintiff would submit invoices in order to warrant compensation and that it received plaintiff’s invoice.

Plaintiff is entitled to recover reasonable attorney's fees regarding RFAs (set one) Nos. 3, 4 and 12.

“[T]he primary method for establishing the amount of ‘reasonable’ attorney fees is the lodestar method. The lodestar (or touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal. App.4th 819, 833.) Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) While “a fee request ordinarily should be documented in great detail,” the absence of time records and billing statements did not deprive the court of “substantial evidence” to support an award when the attorney provided a declaration under the penalty of perjury which described the work and permitted the trial court to make its own evaluation of the reasonableness of the work done in light of the nature of the case and on the credibility of counsel’s declaration. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.)

Plaintiff’s motion for attorney’s fees is GRANTED IN PART. Based on a review of the record in this case, the court awards plaintiff attorney’s fees in the amount of $38,920.14 (5 hours related to the motion to compel Defendant’s deposition, 10 hours related to Defendant’s deposition preparation and attendance, 4 hours related to the review of Defendant’s deposition and 60 hours related to trial preparation, trial and hearings surrounding the breach of contract claim— at a rate of $492.66). Moving party to give notice.

Case Number: BC626749    Hearing Date: February 25, 2020    Dept: 74

BC626749 SCOTT DUNCOMBE VS BARFRESH FOOD GROUP INC

Defendant’s Motion to Vacate Judgment and Enter New Judgment or in the Alternative to Correct Judgment

TENTATIVE RULING: The hearing is continued to March 18, 2020. Plaintiff may file an opposition on the merits and defendant may file a reply per code.