This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 03:30:32 (UTC).

ANDREAS KRATKY ET AL VS DOWNTOWN PRIME LLC ET AL

Case Summary

On 11/08/2017 ANDREAS KRATKY filed a Contract - Other Contract lawsuit against DOWNTOWN PRIME LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2898

  • Filing Date:

    11/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Petitioners and Plaintiffs

HWANG JURI

KING JENNA

BRAMZON DANIEL J. ESQ.

AUSTIN BILLIE

LAVALLA BRANT

JIGAU CHRISTIAN

DARAKJY JACQUELINE

KRATKY ANDREAS

LOPEZ JOSE

RYDH DANIEL

MORAN MATA

Defendants and Respondents

DOWNTOWN PRIME LLC

BARADARIAN DAVID

DOES 1-10 INCLUSIVE

YADIDSION PEDRAM

BABAZADEH MOSES

Attorney/Law Firm Details

Plaintiff Attorney

BRAMZON DANIEL J.

Defendant Attorney

LARSON JOHN B.

 

Court Documents

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIFS

2/1/2018: PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIFS

Unknown

2/7/2018: Unknown

Unknown

2/8/2018: Unknown

Unknown

2/13/2018: Unknown

Minute Order

2/21/2018: Minute Order

Unknown

2/22/2018: Unknown

DEFENDANTS, DOWNTOWN PRIME, LIC, MOSES BABAZADEH, DAVID BARADARIAN, AND PEDRAM YADIDSION NOTICE OF POSTING JURY FEES

2/22/2018: DEFENDANTS, DOWNTOWN PRIME, LIC, MOSES BABAZADEH, DAVID BARADARIAN, AND PEDRAM YADIDSION NOTICE OF POSTING JURY FEES

NOTICE OF RULING

2/23/2018: NOTICE OF RULING

DEFENDANTS DOWNTOWN PR1ME, LLC, MOSES BABAZADEH, DAVID BARADARINAND PEDRAM YADIDSION'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PORTIONS OF THE COMPLAINT

5/25/2018: DEFENDANTS DOWNTOWN PR1ME, LLC, MOSES BABAZADEH, DAVID BARADARINAND PEDRAM YADIDSION'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PORTIONS OF THE COMPLAINT

Unknown

5/25/2018: Unknown

CASE MANAGEMENT ORDER

5/31/2018: CASE MANAGEMENT ORDER

Minute Order

5/31/2018: Minute Order

RULING

5/31/2018: RULING

DEFENDANTS DOWNTOWN PRIME, LLC, MOSES BABAZADEH, DAVID BARADARIAN, AND PEDRAM YADIDSION'S ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT; JURY DEMAND

6/1/2018: DEFENDANTS DOWNTOWN PRIME, LLC, MOSES BABAZADEH, DAVID BARADARIAN, AND PEDRAM YADIDSION'S ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT; JURY DEMAND

NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE) SERVED BY PLAINTIFFS; AND REQUEST FOR MONETRY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION O

6/6/2018: NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE) SERVED BY PLAINTIFFS; AND REQUEST FOR MONETRY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION O

PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE

6/19/2018: PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE

OPPOSITION TQ DEFENDANTS' MOTION FOR PROTEC1TVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE); DECLARATION OF ERIC POST RE: MEET AND CONFER REVISED DECLARATIONS; PROOF OF SERVICE

6/21/2018: OPPOSITION TQ DEFENDANTS' MOTION FOR PROTEC1TVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE); DECLARATION OF ERIC POST RE: MEET AND CONFER REVISED DECLARATIONS; PROOF OF SERVICE

REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE) SERVED BY PLAINTIFFS; AND REQUEST FOR MONETRY SANCTIONS; DECLARATION OF GLORIA G. MEDEL, ESQ.

6/27/2018: REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER REGARDING REQUESTS FOR ADMISSION (SET ONE) SERVED BY PLAINTIFFS; AND REQUEST FOR MONETRY SANCTIONS; DECLARATION OF GLORIA G. MEDEL, ESQ.

48 More Documents Available

 

Docket Entries

  • 05/20/2019
  • Docketat 09:30 AM in Department 47, Randolph M. Hammock, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 05/14/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 04/12/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Post-Mediation Status Conference - Not Held - Rescheduled by Court

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  • 04/03/2019
  • DocketOrder (Proposed Order re Ex Parte Application); Filed by Downtown Prime, LLC (Defendant); Moses Babazadeh (Defendant); David Baradarian (Defendant) et al.

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  • 04/02/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Ex Parte Application (to continue trial (c/f 3-25 in Dept. 49)) - Held

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  • 04/02/2019
  • DocketMinute Order ( (Hearing on Ex Parte Application to continue trial (c/f 3-25 ...)); Filed by Clerk

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  • 03/25/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Ex Parte Application ( to continue trial) - Not Held - Continued - Court's Motion

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  • 03/25/2019
  • Docketat 08:30 AM in Department 49; Ex-Parte Proceedings

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  • 03/25/2019
  • DocketMinute Order ( (Ex-Parte Proceedings to Continue Trial)); Filed by Clerk

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  • 03/22/2019
  • DocketEx Parte Application (to Continue Trial); Filed by Downtown Prime, LLC (Defendant); Moses Babazadeh (Defendant); David Baradarian (Defendant) et al.

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88 More Docket Entries
  • 11/08/2017
  • DocketSUMMONS

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketCOMPLAINT FOR: 1. FRAUD; ETC

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/08/2017
  • DocketComplaint; Filed by Andreas Kratky (Plaintiff); Billie Austin (Plaintiff); Jacqueline Darakjy (Plaintiff) et al.

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Tentative Rulings

Case Number: ****2898 Hearing Date: June 16, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: June 16, 2022 TRIAL DATE: VACATED

CASE: Andreas Kratky, et al. v. Downtown Prime, LLC, et al.

CASE NO.: ****2898

(1) MOTION FOR ATTORNEY’S FEES; (2) MOTION TO TAX COSTS;

(3) MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT

MOVING PARTY: (1), (3) Defendant Downtown Prime, LLC; (2) Plaintiff Jenna King

RESPONDING PARTY(S): (1), (3) Plaintiff Jenna King; (2) Defendant Downtown Prime, LLC

CASE HISTORY:

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of lease action. Plaintiffs sued Defendants for multiple habitability violations. All parties entered into a move-out settlement agreement. Plaintiff Jenna King contested the settlement agreement, and judgment was entered against her on July 20, 2020. Plaintiff appealed that order, and the Court of Appeal affirmed the judgment.

Defendant now moves for attorney’s fees on appeal. Plaintiff moves to tax fees and costs. Defendant also moves for an order to show cause why this Court should not find Plaintiff in contempt for failing to follow a court order.

TENTATIVE RULING:

The Motion for Attorney’s Fees and Costs is GRANTED IN PART in the amount of $41,080.00 in attorney’s fees plus $1,244.68 in costs.

The Motion to Tax Costs is GRANTED IN PART to the extent described above.

Defendant’s Motion for an Order to Show Cause Re: Contempt is DENIED.

Defendant’s request for attorney’s fees and costs in connection with the Motion for an Order to Show Cause is DENIED.

DISCUSSION:

Motion For Attorney’s Fees

Defendant moves for attorney’s fees and costs on appeal in the amount of $78,655.77 in attorney’s fees and $1,244.68 in costs against Plaintiff Jenna King.

Entitlement to Fees and Costs

Civil Code section 1717 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.

(Civil Code 1717(a), bold emphasis added.) A settlement agreement is generally subject to the law of contract except where otherwise modified by statute. (See, e.g., Nicholson v. Barab (1991) 233 Cal.App.3d 1673, 1682.)

Here, the underlying agreement is a short form settlement agreement signed by the parties. (Declaration of Gloria Medel ISO Mot. Exh. 1.) Paragraph 13 of the agreement states:

The court reserves jurisdiction to enforce the terms and conditions of the settlement and any arbitration award pursuant to Code of Civil Procedure 664.6 and 1281 et seq., upon noticed motion of any party, or after Judge Stone has issued the award. Fees and costs are available to the prevailing party.

(Medel Decl. Exh. 1, 13 [emphasis added].)

Thus, if Defendant is the prevailing party, it is entitled to attorney’s fees under Civil Code section 1717. Here, the Court of Appeal affirmed the Court’s July 20, 2020 order entering judgment for defendant and expressly stated that Defendant is the prevailing party on appeal and is entitled to attorney’s fees and costs. (February 23, 2022 Remittitur.) Therefore, Defendant is the prevailing party and is entitled to reasonable attorney’s fees and costs on appeal.

Reasonableness of Fees

Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc 1033.5(a)(10), (c)(5)(B).) In actions that are based 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… shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code 1717(a) [emphasis added].) A recovery of attorney’s fees is authorized even in noncontractual or tort actions if the contractual provision for fee recovery is worded broadly enough. (See Code Civ. Proc 10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993 [agreement to award fees based on outcome of “any dispute” encompasses all claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160.)

The prevailing party must file a noticed motion to claim contractual attorney fees as costs. (Civil Code 1717(b)(1); see Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1728.) Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Civil Code 1717(a); Code Civ. Proc. 1033.5(c)(5)(B).) Reasonable attorney fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Defendant filed a memorandum of fees and costs in the amount of $14,664.00 on March 28, 2022. (Medel Decl. Exh. 9.) Defendant filed an amended memorandum of costs on March 31, 2022. (Medel Decl. Exh. 10.) Defendant states that the original memorandum was erroneous due to an inadvertent error in defense counsel’s search of their billing records. (Medel Decl. 12.) The amended memorandum of costs states that Defendant incurred $313.69 in costs for preparation of the clerk’s transcript or appendix, $2.94 in the printing and copying of briefs, $928.05 in transmitting, filing, and serving of record, briefs, and other papers, and $78,655.77 in attorney’s fees. (Medel Decl. Exh. 10.) Defendant states in a sworn declaration from its counsel that the fees incurred were necessary and reasonable. (Medel Decl. 11.) Defendant has also provided a breakdown of the hours billed to this matter on appeal, totaling a cumulative 86.2 hours, accounting for 50.3 hours preparing appellate briefing, 8.9 hours preparing for and arguing the matter orally, 7.0 hours briefing the response to Plaintiff’s petition for Supreme Court review, and 20.0 hours preparing the instant motion, including estimates to review opposition, draft reply papers, and attend the hearing. (Declaration of John B. Larson ISO Mot. 5.)

In support of the requested fees, Defendant offers three bases for calculating the fees incurred. Defendant presents, for comparison, the Laffey matrix, a standard source for determining comparable hourly rates. (Syers Props. III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702.) Under the Laffey matrix, the total attorney’s fees incurred amounts to $78,655.77 in fees, plus costs, at an hourly rate of $912.48 for 86.2 hours of work. (Larson Decl. 9.) Defendant also presents the US Attorney’s Office Matrix, under which Defendant claims a total of $51,720.00 in fees, plus costs, for 84.8 hours of attorney time at $621/hour and 1.4 hours at $665/hour. (Id. 11.) Finally, Defendant contends that at defense counsel’s market rate, which is the actual rate billed, Defendant incurred $49,705.00 in fees, plus costs, for 84.8 hours of work at $575/hour, and 1.4 hours of work at $675/hour. (Id. 11-14.)

Plaintiff opposes the requested attorney’s fees, incorporating by reference her Motion to Tax Costs scheduled to be heard simultaneously. Plaintiff cites no law entitling her to do so. However, as Defendant has not objected to the opposition on this basis in its reply papers, the Court will consider the merits of the opposition. In Plaintiff’s opposition and Motion to Tax Costs, Plaintiff contends that the fee requests are unreasonably inflated and beyond the scope of costs taken from appeal. Plaintiff cites no specific deficiencies in Defendant’s request in support of her contentions. In reply, Defendant contends that it only seeks to recover the attorney’s fees and costs actually incurred.

The Court finds that the requested hours appear reasonable with the exception of the stated hours in connection with this motion. Defendant has not adequately justified why a motion for attorney’s fees could be reasonably expected to take 20 hours of attorney time. An attorney with 23 years of experience such as Ms. Medel should be able to prepare this motion and any reply papers in a fraction of that time. The Court therefore reduces the hours billed in connection with this motion to 5 hours of attorney time at Ms. Medel’s hourly rate. Further, the Court finds that, under the circumstances, it is appropriate to reduce the amount of attorney’s fees requested to the amount actually incurred by Defendant. Adopting the Laffey Matrix calculation in this instance would award Defendant an additional 50% of the fees actually incurred, a substantial and unreasonable windfall by any measure.

Accordingly, the Motion for Attorney’s Fees and Costs is GRANTED IN PART in the amount of $41,080.00 in attorney’s fees plus $1,244.68 in costs.

Motion to Tax Costs

Plaintiff moves to tax fees and costs requested by Defendant on the grounds that the fees requested are unreasonable.

A verified memorandum of costs is considered correct. However, a party may contest the costs that a prevailing party seeks. (CCP 1034(a).) The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co., 199 Cal. App. 4th 1475, 1486 (2011); 612 South LLC v. Laconic Limited Partnership, 184 Cal. App. 4th 1270, 1285 (2010).) If the costs are properly objected to, “they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774.) To be recoverable, the costs must be reasonably necessary to the conduct of litigation. “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Id.)

As stated above, Plaintiff cites no specific deficiencies in Defendant’s request in support of her contentions. However, for the foregoing reasons identified above, the Motion to Tax Costs is GRANTED IN PART to the extent stated above in connection with the Motion for Attorney’s Fees.

Motion for OSC Re: Contempt

Code of Civil Procedure section 1209(a) states that the Court may hold a party in contempt for, among other reasons, “[d]isobedience of any lawful judgment, order or process of the court” and “[a]buse of the process or proceedings of the court.” (Code Civ. Proc. 1209(a)(4)-(5).) “When the contempt is not committed in the immediate view and presence of the court … an affidavit shall be presented to the court or judge of the facts constituting the contempt ….” (Code Civ. Proc. 1211(a).) Failure to comply with a written order of the Court by a party with the ability to do so is grounds for indirect civil contempt. (See, e.g., In re Gould (1961) 195 Cal.App.2d 172, 175.) To justify a finding of indirect civil contempt, the elements which must be established are (1) the making of a valid court order, (2) knowledge of the order by the respondent, (3) the ability of the respondent to render compliance, and (4) willful disobedience of the order. (Conn v. Superior Court (1984) 196 Cal.App.3d 774, 784.)

Code of Civil Procedure section 1218(a) sets out the penalties for civil contempt:

Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney's fees and costs incurred by this party in connection with the contempt proceeding.

Defendant contends that the Court should issue an OSC Re: Contempt because Plaintiff has not complied with a July 20, 2020 Judgment entered by this Court. On that date, this Court entered a Judgment against Plaintiff, finding that she was required to move out of the premises located at 421 E. 6th Street, Los Angeles, CA 90014, on or before 120 days from the date of entry of the judgment. (Declaration of Gloria Medel ISO OSC Exh. 1.) Defendant contends that Plaintiff received a copy of the Court’s ruling, but offers no evidence that actually supports this assertion, instead citing to an unsigned copy of a February 19, 2020 tentative ruling. (Medel Decl. Exh. 3.) Defendant asserts that Plaintiff has the ability to comply with the order but does not explain its reasoning. It appears from the moving papers that Defendant’s contention is that, as Plaintiff’s share of the proceeds from the settlement in this matter are being held in a trust account, Plaintiff has the financial means to move out. (See Medel Decl. Exh. 4.) Defendant contends that Plaintiff, by remaining in the property since the entry of Judgment, has willfully disobeyed a Court order.

In opposition, Plaintiff disputes that she agreed to the Short Form Settlement Agreement, which contains the provision that she move out within 120 days of the date of entry of judgment. This argument is not persuasive. Plaintiff has extensively litigated this proposition on appeal and has lost at every turn. On February 23, 2022, the Court of Appeal affirmed the Court’s entry of judgment, finding that Plaintiff did, in fact, agree to the Short Form Settlement Agreement. (February 23, 2022 Remittitur.) However, Plaintiff argues much more persuasively that this motion is an attempt to circumvent the unlawful detainer process.

In reply, Defendant contends that the settlement agreement does not require an unlawful detainer proceeding for Defendant to regain possession of the property and reasserts the argument that Plaintiff is willfully refusing to comply with a court order.

The Court agrees with Plaintiff’s characterization that this motion is an attempt to circumvent the unlawful detainer process. On February 11, 2021, this Court denied a Motion to Enforce the Judgment filed by Defendant without prejudice, finding that Defendant should proceed to the unlawful detainer process to enforce the existing judgment. The Court expects that Defendant should be aware of this ruling, as Defendant was required to give notice and filed their notice of ruling with the Court. Now, in Defendant’s ostensible Motion for Order to Show Cause Why an Order of Contempt Should Not be Issued, Defendant is seeking a Court order requiring Plaintiff to vacate her unit and directing the Sheriff’s Department to remove Plaintiff from her unit, requiring Plaintiff to pay attorney’s fees and costs, and an order to show cause for contempt for Plaintiff’s failure to comply with the judgment. Put plainly, Defendant is asking the Court for effectively the same relief as in the Motion to Enforce the Judgment; relief which the Court has already stated must be sought in an action for unlawful detainer. The Court sees no reason to change its position.

In her opposition, Plaintiff also raises the issue of sanctions under Code of Civil Procedure section 128.5 for a frivolous motion. As Plaintiff has not served and filed a properly noticed motion on this issue, the Court declines to consider this request at this time.

Defendant’s Motion for an Order to Show Cause Re: Contempt is DENIED.

Defendant’s request for attorney’s fees and costs in connection with the Motion for an Order to Show Cause is DENIED.

CONCLUSION:

For the reasons explained above, the Motion for Attorney’s Fees and Costs is GRANTED IN PART in the amount of $41,080.00 in attorney’s fees plus $1,244.68 in costs.

The Motion to Tax Costs is GRANTED IN PART to the extent described above.

Defendant’s Motion for an Order to Show Cause Re: Contempt is DENIED.

Defendant’s request for attorney’s fees and costs in connection with the Motion for an Order to Show Cause is DENIED.

Moving Parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 16, 2022

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.



Case Number: ****2898    Hearing Date: February 19, 2020    Dept: 47

Andreas Kratky, et al. v. Downtown Prime LLC, et al.

 

MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AND ENTER JUDGMENT UPON THE SETTLEMENT AGREEMENT PURSUANT TO CCP ; 664.6

MOVING PARTY: Defendants Downtown Prime, LLC; Moses Babazadeh; David Baradarian; and Pedram Yadidsion

RESPONDING PARTY(S): Plaintiff Jenna King

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiffs alleged that Defendants illegally converted an industrial unit to apartment units rented out to Plaintiffs.

Defendants move to enforce the parties’ settlement agreement and for judgment to be entered on the settlement agreement.

TENTATIVE RULING:

Defendants Downtown Prime, LLC, Moses Babazadeh, David Baradarian, and Pedram Yadidsion’s motion to enforce the settlement agreement and enter judgment upon the settlement agreement pursuant to CCP ; 664.6 is GRANTED. The case is ordered dismissed with prejudice.

DISCUSSION:

Motion To Enforce Settlement Agreement and Enter Judgment on Settlement Agreement

Defendants move for an order enforcing the terms of their settlement agreement with Plaintiff Jenna King and/or for the Court to enter judgment pursuant to the terms of the settlement and for attorney’s fees and costs of $2,122.50 incurred in enforcing this agreement. Defendants bring this motion under CCP ; 664.6, which provides:

If the parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

(CCP ; 664.6 (bold emphasis and underlining added).)

A recent published opinion emphasizes that a settlement agreement in which the parties agree that the Court will retain jurisdiction to enforce the settlement must be signed by the parties (not just their counsel) and filed with the Court before the action is dismissed. (MesaRHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917-918.)

Here, the settlement agreement is signed by the parties[1] and states that the “court reserves jurisdiction to enforce the terms and conditions of the settlement and any arbitration award pursuant to Code of Civil Procedure 664.6 and 1281 et seq., upon noticed motion of any party, or after Judge Stone has issued the award.” (Declaration of Gloria G. Medel, Exh. 1 (“Settlement Agreement”) ¶ 13.) This agreement has been filed with the Court before dismissal; accordingly, the Court retains jurisdiction to enforce the settlement. (MesaRHF Partners, supra, 33 Cal.App.5th at 918 [“In this case, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order . . . signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6.”].)

Defendant has proffered evidence of a written Settlement Agreement under which all of the Plaintiffs agreed, among other things, to (1) execute a long-form settlement agreement, (2) sign a stipulated judgment for possession of Defendant’s property, (3) move out of the property within 120 days of execution of the long-form agreement, and (4) participate in binding arbitration before Judge Stone. (Medel Decl., Exh. 1.) Nine of the named Plaintiffs have attempted to comply with the terms of the settlement according to Defendant, but Plaintiff Jenna King has not. (Id. ¶ 8.)

Plaintiff argues that the agreement is unenforceable because she did not sign the settlement agreement or did not know that she was signing it and her prior lawyers did not explain the document to her. (Oppo., at p.2.) However, Plaintiff has not come forward with any evidence that her signature on the document was forged. Plaintiff’s primary argument as to her signature appears to be that she thought she was signing something else – a MediCal medical release form. (Declaration of Jenna King ¶ 5.) However, it is undisputed that Plaintiff King attended the mediation before Judge Stone in June 2019, at a time when she and the other Plaintiffs were represented by BASTA, Inc. (Medel Decl. ¶ 2 & Exh. 4.) Plaintiff’s disagreement with her then-counsel’s handling of the settlement does not negate her agreement to it, absent evidence to the contrary. Plaintiff and her son contend that she did not sign the agreement but do not present credible evidence establishing that the signature on the agreement is not hers.

Plaintiff also argues that the agreement is unenforceable as to her because she granted a durable power of attorney to her son in February 2019, before the settlement agreement was signed. (Oppo., at p. 7; Durable Power of Attorney filed 10/11/19.) The durable power of attorney does not negate Plaintiff’s ability to execute an agreement on her own behalf, however. By its terms, it states that her son Brandon King “may act separately” on her behalf. (Durable Power of Attorney filed 10/11/19.) It does not indicate that Plaintiff is without capacity to act on her own.

The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its explicit provisions are contrary to his intentions or understanding.

(Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501.)

Finally, Plaintiff argues that the agreement is unenforceable because it does not set forth the allocation of the settlement amount among the Plaintiffs. Plaintiff relies on Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110 to support this argument. That case is distinguishable, however. In Gauss, having already found the agreement unenforceable for another reason, the Court also determined that it was unenforceable because it did not specify “the amount GAF was obligated to pay.” (Id. at 1123.) The Court had to “reach beyond the settlement letters and rely on subsequent letters” to determine how much GAF was obligated to pay. (Ibid.) In this case, in contrast, there is no ambiguity regarding the amount Defendants are required to pay to the Plaintiffs. Defendants are to pay Plaintiffs “the total of sum of $1,000,000.” (Medel Decl., Exh. 1, ¶ 2.) The agreement also states that Plaintiffs’ counsel “may release $20,000.00 per plaintiff” once the funds are received to assist with relocation expenses, but that “Plaintiffs’ counsel must not release the balance of the funds to any plaintiff prior to that plaintiff vacating the unit/premises and returning the keys to plaintiffs’ counsel.” (Id. ¶ 3.) That the agreement does not specify the allocation of the funds among the Plaintiffs does not render it unenforceable.

Since the last hearing of 12/31/19 on this motion, the Court has received and has carefully reviewed and considered the Declaration of Eric Post. Any and all concerns this Court may have had in connection to Ms. King’s signature on the settlement document have been effectively alleviated by this declaration. This Court finds that Ms. King knowingly and voluntarily signed the document at issue, with full knowledge of its consequences. Additionally, despite her somewhat erratic behavior before this Court at prior hearings, this Court finds that she was of sound mind and she was legally competent when she signed the settlement agreement. It appears that she now has a simple case of “buyer’s remorse.”

As such, the motion to enforce the settlement agreement is GRANTED. The case is ordered dismissed with prejudice.

Defendant’s request for attorney’s fees incurred in enforcing the settlement agreement is DENIED. Defendant does not cite any provision in the Settlement Agreement whereby the parties seeking to enforce the settlement agreement may recover attorney’s fees incurred in enforcing the settlement agreement. Defendant points to Paragraph 13 of the Settlement Agreement, but that paragraph states only that fees and costs will be available to the “prevailing party.” (Id. ¶ 13.) That does not authorize fees incurred in enforcing the agreement, and the agreement states elsewhere that “[e]ach party shall bear his/her/their own costs and attorney’s fees, except as provided herein.” (Id. ¶ 7.)

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 19, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1] Plaintiff’s contention that she did not sign the agreement or did not know what she was signing is discussed below.



Case Number: ****2898    Hearing Date: December 31, 2019    Dept: 47

Andreas Kratky, et al. v. Downtown Prime LLC, et al.

 

MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AND ENTER JUDGMENT UPON THE SETTLEMENT AGREEMENT PURSUANT TO CCP ; 664.6

MOVING PARTY: Defendants Downtown Prime, LLC; Moses Babazadeh; David Baradarian; and Pedram Yadidsion

RESPONDING PARTY(S): Plaintiff Jenna King

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiffs alleged that Defendants illegally converted an industrial unit to apartment units rented out to Plaintiffs.

Defendants move to enforce the parties’ settlement agreement and for judgment to be entered on the settlement agreement.

TENTATIVE RULING:

Defendants Downtown Prime, LLC, Moses Babazadeh, David Baradarian, and Pedram Yadidsion’s motion to enforce the settlement agreement and enter judgment upon the settlement agreement pursuant to CCP ; 664.6 is GRANTED. The case is ordered dismissed with prejudice.

DISCUSSION:

Motion To Enforce Settlement Agreement and Enter Judgment on Settlement Agreement

Defendants move for an order enforcing the terms of their settlement agreement with Plaintiff Jenna King and/or for the Court to enter judgment pursuant to the terms of the settlement and for attorney’s fees and costs of $2,122.50 incurred in enforcing this agreement. Defendants bring this motion under CCP ; 664.6, which provides:

If the parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

(CCP ; 664.6 (bold emphasis and underlining added).)

A recent published opinion emphasizes that a settlement agreement in which the parties agree that the Court will retain jurisdiction to enforce the settlement must be signed by the parties (not just their counsel) and filed with the Court before the action is dismissed. (MesaRHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917-918.)

Here, the settlement agreement is signed by the parties[1] and states that the “court reserves jurisdiction to enforce the terms and conditions of the settlement and any arbitration award pursuant to Code of Civil Procedure 664.6 and 1281 et seq., upon noticed motion of any party, or after Judge Stone has issued the award.” (Declaration of Gloria G. Medel, Exh. 1 (“Settlement Agreement”) ¶ 13.) This agreement has been filed with the Court before dismissal; accordingly, the Court retains jurisdiction to enforce the settlement. (MesaRHF Partners, supra, 33 Cal.App.5th at 918 [“In this case, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order . . . signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6.”].)

Defendant has proffered evidence of a written Settlement Agreement under which all of the Plaintiffs agreed, among other things, to (1) execute a long-form settlement agreement, (2) sign a stipulated judgment for possession of Defendant’s property, (3) move out of the property within 120 days of execution of the long-form agreement, and (4) participate in binding arbitration before Judge Stone. (Medel Decl., Exh. 1.) Nine of the named Plaintiffs have attempted to comply with the terms of the settlement according to Defendant, but Plaintiff Jenna King has not. (Id. ¶ 8.)

Plaintiff argues that the agreement is unenforceable because she did not sign the settlement agreement or did not know that she was signing it and her prior lawyers did not explain the document to her. (Oppo., at p.2.) However, Plaintiff has not come forward with any competent and persuasive evidence that her signature on the document was either forged and/or signed without her consent. Plaintiff’s primary argument as to her signature appears to be that she “thought she was signing something else” – a MediCal medical release form. (Declaration of Jenna King ¶ 5.) However, it is undisputed that Plaintiff King attended the mediation before Judge Stone in June 2019, at a time when she and the other Plaintiffs were represented by BASTA, Inc. (Medel Decl. ¶ 2 & Exh. 4.) Plaintiff’s disagreement with her then-counsel’s handling of the settlement does not negate her agreement to it, absent evidence to the contrary. Plaintiff and her son contend that she did not sign the agreement but do not present credible evidence establishing that the signature on the agreement is not hers.

Plaintiff also argues that the agreement is unenforceable as to her because she granted a durable power of attorney to her son in February 2019, before the settlement agreement was signed. (Oppo., at p. 7; Durable Power of Attorney filed 10/11/19.) The durable power of attorney does not negate Plaintiff’s ability to execute an agreement on her own behalf, however. By its terms, it states that her son Brandon King “may act separately” on her behalf. (Durable Power of Attorney filed 10/11/19.) It does not indicate that Plaintiff is without capacity to act on her own.

The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its explicit provisions are contrary to his intentions or understanding.

(Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501.)

Finally, Plaintiff argues that the agreement is unenforceable because it does not set forth the allocation of the settlement amount among the Plaintiffs. Plaintiff relies on Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110 to support this argument. That case is distinguishable, however. In Gauss, having already found the agreement unenforceable for another reason, the Court also determined that it was unenforceable because it did not specify “the amount GAF was obligated to pay.” (Id. at 1123.) The Court had to “reach beyond the settlement letters and rely on subsequent letters” to determine how much GAF was obligated to pay. (Ibid.) In this case, in contrast, there is no ambiguity regarding the amount Defendants are required to pay to the Plaintiffs. Defendants are to pay Plaintiffs “the total of sum of $1,000,000.” (Medel Decl., Exh. 1, ¶ 2.) The agreement also states that Plaintiffs’ counsel “may release $20,000.00 per plaintiff” once the funds are received to assist with relocation expenses, but that “Plaintiffs’ counsel must not release the balance of the funds to any plaintiff prior to that plaintiff vacating the unit/premises and returning the keys to plaintiffs’ counsel.” (Id. ¶ 3.) That the agreement does not specify the allocation of the funds among the Plaintiffs does not render it unenforceable.

As such, the motion to enforce the settlement agreement is GRANTED. The case is ordered dismissed with prejudice.

Defendant’s request for attorney’s fees incurred in enforcing the settlement agreement is DENIED. Defendant does not cite any provision in the Settlement Agreement whereby the parties seeking to enforce the settlement agreement may recover attorney’s fees incurred in enforcing the settlement agreement. Defendant points to Paragraph 13 of the Settlement Agreement, but that paragraph states only that fees and costs will be available to the “prevailing party.” (Id. ¶ 13.) That does not authorize fees incurred in enforcing the agreement, and the agreement states elsewhere that “[e]ach party shall bear his/her/their own costs and attorney’s fees, except as provided herein.” (Id. ¶ 7.)

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 31, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1] Plaintiff’s contention that she did not sign the agreement or did not know what she was signing is discussed below.



Case Number: ****2898    Hearing Date: November 12, 2019    Dept: 47

Andreas Kratky, et al. v. Downtown Prime LLC, et al.

 

MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: BASTA, Inc. (including Daniel J. Bramzon and Eric Post), counsel for Plaintiff Jenna King

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiffs alleged that Defendants illegally converted an industrial unit to apartment units rented out to Plaintiffs.

BASTA, Inc. (and its attorneys) are moving to be relieved as attorneys of record for Plaintiff Jenna King only.

TENTATIVE RULING:

BASTA, Inc. (including Daniel J. Bramzon and Eric Post)’s motion to be relieved as counsel is GRANTED. The order will be effective upon filing a Proof of Service with the Court demonstrating that the client was served with a copy of this ruling and a copy of the Order Granting Attorney's Motion to Be Relieved as Counsel – Civil (Form MC-053), completely filled out. Moving counsel is also to specify which of the three addresses listed in Paragraph 6 of MC-053 is the client’s current address, unless all of them are.

DISCUSSION:

Motion To Be Relieved As Counsel

Attorneys BASTA, Inc. (including Daniel J. Bramzon and Eric Post) move to be relieved as counsel for Plaintiff Jenna King.

The Court may issue an order allowing an attorney to withdraw from representation, after notice to the client. (CCP ; 284(2).) California Rules of Court, Rule 3.1362 requires that the following Mandatory Judicial Council forms be filed for a motion to be relieved as counsel: Notice of Motion and Motion to Be Relieved as Counsel--Civil (form MC-051); Motion to Be Relieved as Counsel--Civil (form MC-052); and Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053). (See CRC Rule 3.1362(a), (c), (e).) These three forms must be served on the client and all other parties who have appeared in the case. (Rule 3.1362(d).)

Here, moving counsel filed all three required forms, and moving counsel’s proof of service indicates that all three forms were served on the parties.

In their declaration, moving counsel state that there has been a breakdown in the attorney-client relationship as a result of irreconcilable differences. (MC-052 ¶ 2.) In general, an attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client’s interest – i.e., counsel cannot withdraw at a critical point in the litigation, because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.) The court has discretion to deny an attorney’s request to withdraw where the withdrawal would work an injustice or cause undue delay in the proceeding, but the court’s discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)

Here, an OSC Re: Dismissal as a result of settlement of the case is scheduled for the day after this motion is to be heard. Because this order will not be effective until after moving counsel has filed certain documents as discussed below, and because the declaration listed the OSC hearing date but the proposed order did not, they will continue to represent Plaintiff in the hearing on November 13. After that, there are no additional hearings scheduled at this time, and therefore it does not appear that Plaintiff – who could choose to represent herself in pro per – would be prejudiced by allowing her attorney to withdraw after November 13.

Accordingly, the motion to be relieved as counsel is GRANTED. This order will be effective only upon filing a Proof of Service with the court demonstrating that the client was served with a copy of this ruling and a copy of the Order Granting Attorney's Motion to Be Relieved as Counsel – Civil (Form MC-053), completely filled out, including any additional hearings that may be scheduled. Moving counsel is also to specify which of the three addresses listed in Paragraph 6 of MC-053 is the client’s current address, unless all of them are.

Moving counsel to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 12, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court



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