This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:43:12 (UTC).

BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT VS ALL PERSON

Case Summary

On 11/22/2017 BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT filed an Other - Other Judicial Review lawsuit against ALL PERSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are AMY D. HOGUE and BARBARA M. SCHEPER. The case status is Disposed - Other Disposed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4646

  • Filing Date:

    11/22/2017

  • Case Status:

    Disposed - Other Disposed

  • Case Type:

    Other - Other Judicial Review

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

AMY D. HOGUE

BARBARA M. SCHEPER

 

Party Details

Plaintiff and Petitioner

BROAD BEACH GEOLOGIC HAZARD ABATEMENT

Conservator

LABOW FRUMEH

Defendants and Respondents

ALL EPRSONS INTERESTED IN THE MATTER OF

ALL PERSONS INTERESTED IN THE MATTER OF

GAYLE PRITCHETT MACLEOD TRUSTEE OF THE

WWV TRUST

II THEMBA

SITRICK MICHAEL S.

CI PROPERTIES LLC

NANCY SITRICK AS TRUSTTE OF THE MICHAEL

MALIBU WEST SWIMMING CLUB

JLA SEAWALL LLC

BIRD DOG PRODUCTIONS LLC

MALIBU BAY COMPANY

THREE CHIPS REALTY INVESTMENTS LLC

CURTIS LISA

CURTIS WILLIAM

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

EHRLICH KENNETH A. ESQ

COLANTUONO MICHAEL

Defendant Attorneys

KENT K. ANDREW

ALSTON & BIRD LLP

KRAUSE KALFAYAN BENINK & SLAVENS LLP

ADLER MICHAEL S. ESQ.

KANIN MATTHEW DAVID

 

Court Documents

Notice of Change of Address or Other Contact Information

7/3/2019: Notice of Change of Address or Other Contact Information

SUMMONS FOR PUBLICATION

3/8/2018: SUMMONS FOR PUBLICATION

VERIFIED ANSWER TO FIRST AMENDED COMPLAINT FOR VALIDATION AND COUNTER-CLAIM FOR DECLARATORY RELIEF

5/1/2018: VERIFIED ANSWER TO FIRST AMENDED COMPLAINT FOR VALIDATION AND COUNTER-CLAIM FOR DECLARATORY RELIEF

TRIAL SETTING CONFERENCE STATEMENT

5/7/2018: TRIAL SETTING CONFERENCE STATEMENT

DECLARATION OF JOHN PAUL DEJORIA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

6/8/2018: DECLARATION OF JOHN PAUL DEJORIA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

CERTIFICATION OF ADMINISTRATIVE RECORD

6/13/2018: CERTIFICATION OF ADMINISTRATIVE RECORD

OPPOSITION OF WEST END DEFENDANTS TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER; DECLARATION OF MAX FACTOR III

7/3/2018: OPPOSITION OF WEST END DEFENDANTS TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER; DECLARATION OF MAX FACTOR III

OPPOSITION BY DEFENDANTS THEMBA II, LLC AND MICHAEL S. SITRICK AND NANCY SITRICK AS TRUSTEES OF THE MICHAEL AND NANCY SITRICK TRUST TO PLAINTIFF BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S MOTION

7/3/2018: OPPOSITION BY DEFENDANTS THEMBA II, LLC AND MICHAEL S. SITRICK AND NANCY SITRICK AS TRUSTEES OF THE MICHAEL AND NANCY SITRICK TRUST TO PLAINTIFF BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S MOTION

NOTICE OF ENTRY OF ORDER GRANTING MOTION TO PRECLUDE DISCOVERY, RESETTING HEARING ON MOTIONS TO AUGMENT ADMINISTRATIVE RECORD

7/17/2018: NOTICE OF ENTRY OF ORDER GRANTING MOTION TO PRECLUDE DISCOVERY, RESETTING HEARING ON MOTIONS TO AUGMENT ADMINISTRATIVE RECORD

BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

7/31/2018: BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

7/31/2018: BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Legacy Document

8/20/2018: Legacy Document

Legacy Document

8/29/2018: Legacy Document

Request for Judicial Notice

9/14/2018: Request for Judicial Notice

Minute Order

10/10/2018: Minute Order

Reply

4/30/2019: Reply

Request for Judicial Notice

4/30/2019: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

4/30/2019: Proof of Service (not Summons and Complaint)

167 More Documents Available

 

Docket Entries

  • 07/03/2019
  • Docketat 09:30 AM in Department 86; Hearing on Petition for Writ of Mandate - Held - Taken under Submission

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  • 07/03/2019
  • DocketMinute Order ( (Hearing on Petition for Writ of Mandate)); Filed by Clerk

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  • 07/03/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by KRAUSE, KALFAYAN, BENINK & SLAVENS, LLP (Attorney)

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  • 05/15/2019
  • Docketat 09:30 AM in Department 86; Hearing on Petition for Writ of Mandate - Held - Continued

    Read MoreRead Less
  • 05/15/2019
  • DocketMinute Order ( (Hearing on Petition for Writ of Mandate)); Filed by Clerk

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  • 05/02/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by BROAD BEACH GEOLOGIC HAZARD ABATEMENT (Plaintiff)

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  • 04/30/2019
  • DocketRequest for Judicial Notice; Filed by BROAD BEACH GEOLOGIC HAZARD ABATEMENT (Plaintiff)

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  • 04/30/2019
  • DocketReply ( Trial Brief); Filed by BROAD BEACH GEOLOGIC HAZARD ABATEMENT (Plaintiff)

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  • 04/30/2019
  • DocketProof of Service (not Summons and Complaint); Filed by MALIBU WEST SWIMMING CLUB (Defendant)

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  • 04/30/2019
  • DocketReply (Defendant and Counter-Claimant Malibu West Swimming Club's Reply Brief ISO Opening Trial Brief)

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288 More Docket Entries
  • 12/14/2017
  • DocketEx-Parte Application; Filed by Plaintiff/Petitioner

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  • 12/13/2017
  • DocketRESPONSE TO NOTICE OF RELATED CASE FILED BY PLAINTIFFS IN SC128058

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  • 12/13/2017
  • DocketResponse; Filed by Plaintiff/Petitioner

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  • 12/08/2017
  • DocketANSWER AND COUNTER-CLAIM FOR DECLATORY RELIEF

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  • 12/08/2017
  • DocketAnswer; Filed by Plaintiff/Petitioner

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  • 12/06/2017
  • DocketNotice of Related Case; Filed by BROAD BEACH GEOLOGIC HAZARD ABATEMENT (Plaintiff)

    Read MoreRead Less
  • 12/06/2017
  • DocketNotice of Related Cases

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  • 11/22/2017
  • DocketComplaint; Filed by BROAD BEACH GEOLOGIC HAZARD ABATEMENT (Plaintiff)

    Read MoreRead Less
  • 11/22/2017
  • DocketSUMMONS

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  • 11/22/2017
  • DocketCOMPLAINT FOR VALIDATION

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Tentative Rulings

Case Number: BC684646    Hearing Date: September 04, 2020    Dept: 86

BROAD BEACH GEOLOGIC HAZARD ABATEMENT DISTRICT v. ALL PERSONS INTERESTED IN THE MATTER OF THE VALIDITY OF RESOLUTION

Case Number: BC684646

Hearing Date: September 4, 2020

[Tentative] ORDER DENYING THE SIX MOTIONS FOR ATTORNEY FEES


Six separate motions for attorney’s fees have been filed in this action. Today, the court addresses entitlement to fees only pursuant to Code of Civil Procedure section 1021.5.[1]

Defendants (1) Mark Magidson, Trustee of the Magidson Revocable Trust of 1987 (2006

Restatement) (2) Malibu-Broad Beach S-1, LLC; (3) Alexander Haagen III, as Managing Member of 30956 BB, LLC and BB Malibu Place LLC, (4) Michael L. Schwab and Cheryl L. Schwab, Trustees of the Schwab Community Property Trust, (5) Andrew M. Leigh and Barbara R. Leigh, Trustees of the Barbara and Andrew Leigh Family Trust, filed a motion for attorneys’ fees.

Defendants, Michael S. Sitrick and Nancy Sitrick as Trustees of the Michael and Nancy Sitrick Trust, filed a motion for attorney fees.

Defendant, Frumeh Labow, as Conservator of Felicia Farr Lemmon and Successor Trustee of the

Lemmon Family Trust, filed a motion for attorney fees.

Defendant Gayle Pritchett Macleod, Trustee of the Pritchett Family Trust, filed a motion for attorney fees.

Defendants (1) Third Point Land Company, LLC; (2) Bird Dog Productions, LLC; (3) CI Properties, LLC; and (4) Three Chips Realty Investments, LLC filed a motion for attorney fees.

Defendants (1) 31506 Victoria Point LLC; (2) E. Jane Arnault; (3) the Hopkins Family Trust; (4) WWV Trust; and (5) JLA Seawall, LLC filed a motion for attorney fees.

The moving parties (Challengers)[2] together seek to recover approximately $2,426,262.30 in attorney fees.

Plaintiff, Broad Beach Geologic Hazard Abatement District (the GHAD), opposes Challengers’ motions for attorney fees.

The motion for attorney’s fees is denied.

APPLICABLE LAW

Code of Civil Procedure section 1021.5, authorizing the award of attorney’s fees in “public interest” litigation, provides as follows in relevant part:

“Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” 

The basic objective of the “private attorney general” doctrine “is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1289; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) The statute awards successful public interest litigants with attorney’s fees where the three statutory requirements are established. (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251.) The burden is on the fee claimant to establish each statutory requirement, including that its litigation costs transcend its personal interest in the litigation. (Save Open Space Santa Monica Mountains v. Superior Court of Los Angeles County (County of Los Angeles) (2000) 84 Cal.App.4th 235, 246.)

The issue of whether to award fees is committed to the trial court’s discretion. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634.)

ANALYSIS

Challengers argue they were the successful parties in the complaint in validation and, therefore, are entitled to attorney fees pursuant to Code of Civil Procedure section 1021.5 (Section 1021.5). The GHAD, in opposition, only argues the Challengers are not entitled to fees based on their financial stake in the litigation. The financial stake, according to the GHAD, makes a Section 1021.5 award inappropriate. The court agrees with the GHAD.

“[T]he necessity and financial burden requirement ‘ “really examines two issues: whether private enforcement was necessary [first prong] and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys [second prong].” ’ [Citations.] The ‘necessity’ of private enforcement “ ‘ “looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.” ’ [Citations.]” ’ ” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214-1215.)

“The second prong of the inquiry addresses the ‘financial burden of private enforcement.’ In determining the financial burden on litigants, courts have quite logically focused not only on the costs of the litigation but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.” (Id. at 1215.) “ ‘The final step is to place the estimated value of the case beside the actual cost and make the value judgment whether it is desirable to offer the bounty of a court-awarded fee in order to encourage litigation of the sort involved in this case . . . . [A] bounty will be appropriate except where the expected value of the litigant's own monetary award exceeds by a substantial margin the actual litigation costs.’ ” (Id. at 1216.)

Section 1021.5 is intended “to provide an incentive for private plaintiffs to bring public

interest suits when their personal stake in the outcome is insufficient to warrant incurring the

costs of litigation.” (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) It is not intended to “as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest . . . .” (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114.)

On the fee motion, demonstrating entitlement to fees under Section 1021.5 is Challengers’ burden. (See Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 769. [“The burden is on the party requesting section 1021.5 fees to demonstrate all elements of the statute, including that the litigation costs transcend his or her personal interest.”])

Here, Challengers will obtain a significant monetary benefit from this litigation. Putting the case in context, the litigation arises out of assessments on private beachfront property in Malibu, California. Had the GHAD’s assessment been validated in the validation action, Challengers—the owners of this beachfront property—would have been required to collectively pay over $1 million annually in assessments; in prevailing in the validation action, GHAD’s assessment has been invalidated. Thus, the Challengers are relieved of the obligation to pay the 2017 assessment as imposed.

According to the administrative record,[3] Challengers—which does not include the Malibu West Beach Club—would be responsible for the following assessments, annually, if the action had been validated:

Magidson

$379,500.00

West End Parties

$110,343.75

East End Parties

$424,875.00

Labow

$53,625.00

Sitrick

$55,000.00

Pritchett

$16,156.25

Total

$1,039,500.00

(GHAD RJN, APP 52, 54-55 [AR 3169, 3256-3257].) Challengers do not dispute these are the amounts that would have been owed under the 2017 Assessment.

In reply, the Magidson Parties argue the GHAD is still collecting under the Third Assessment and has already instituted proceedings for a Fourth Assessment. (Flynn Reply Decl., ¶ 2.) Thus, they argue even though they prevailed on the Third Assessment, if a Fourth Assessment is imposed on the homeowners and withstands any legal challenges, Challengers will enjoy no pecuniary benefit.

The court is unpersuaded. The Magidson Parties suggest the court should ignore the benefit gained in this litigation because a Fourth Assessment—which will be separately subject to judicial review—may reverse the pecuniary benefit gained here. Sitrick similarly argues that in evaluating the pecuniary interest, the court should limit the interest to a year’s assessment arguing that any future assessment liability is speculative. This argument echos Magidson’s argument that a Fourth Assessment is imminent.

Rather, it is the Fourth Assessment that is speculative. Any Fourth Assessment would have to overcome several obstacles before it has any practical effect on Challengers, including approval from the GHAD’s Board, approval by a vote of property owners, and the almost certainty of litigation to follow such an assessment.

While the court is not suggesting these circumstances (a possible Fourth Assessment) are completely irrelevant, the court finds the direct and immediate benefit from this action clearly outweighs the speculative assessments that may be imposed in the future.

Further, Magidson and the West End Parties suggest the court should limit the evaluation of their financial stake to a 10-year term of the Coastal Development Permit.

In considering this argument, the court first notes it is not inclined to evaluate the pecuniary interest to Challengers into perpetuity (as the GHAD argues)—as this ignores the reality of the GHAD’s actions since the invalidation. However, in weighing the speculative nature of a future Fourth Assessment and without any ability to evaluate this arguably hypothetical Fourth Assessment, the court must provide greater weight to the direct impact of Challengers’ victory which overturned an assessment that would have existed into perpetuity. (Opposition 22:21-23 [“[H]ad BBGHAD prevailed, its Assessment (which has no sunset date) would be forever immune from challenge and [Challengers] would be liable for it as long as [they] owned the property or until BBGHAD rescinded it.”].)

Thus, under the circumstances the court need not choose an arbitrary date by which to consider the Challenges’ financial stake when the immediate and certain impacts are so substantial. Even as the court considers only the incremental change between the amount Challengers owed on the 2015 Assessment and the amount that would have been owed on the invalidated 2017 Assessment, the court agrees with the GHAD’s argument that Challengers had substantial financial incentive to sue.

Challengers concede the direct financial stake each had in prevailing in the action.

Magidson Parties explained: “If the third assessment is permitted to go forward, the cost to me annually for paying the assessment will have increased from $50,400 in 2012 to $173,250 in 2017, with future increases highly likely.” (GHAD RJN, APP 107 at ¶ 4; see also APP 130:26-28 [“In five years, the annual assessment for the project, for Petitioner Mark Magidson alone, has increased from $54,180 in 2012 to $173,250 in 2017, if the 2017 Third Assessment is validated.”])

The West End Parties previously admitted that “[T]he GHAD has assessed just these five West End Homeowners alone nearly $500,000 so far (and expects to assess nearly $2.5 million total on these five homes)[.]” (GHAD RJN, APP 165:14–15.) Similarly, Sitrick argued: “In the five years from 2012 to 2017, the annual assessment for the Sitrick Trustees alone has increased from $16,000 in 2012 to $55,000 in 2017 (if the Third Assessment is validated).” (GHAD RJN, APP 158:5–7.)

Challengers had a significant and unmistakable pecuniary motive in the litigation; this interest outweighs the costs of litigation—even without some reduction to the attorney fees costs.

“[T]he purpose of section 1021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” (Conservatorship of Whitley, supra, 50 Cal.4th at 1211.) “If the plaintiff had a ‘personal financial stake’ in the litigation ‘sufficient to warrant [the] decision to incur significant attorney fees and costs in the vigorous prosecution’ of the lawsuit, an award under section 1021.5 is inappropriate.” (Millview County Water Dist. v. State Water Resources Control Bd.

Here, Challengers have failed to provide substantial evidence to support a finding that

“ ‘ “pursuing the lawsuit placed a burden on [them] ‘out of proportion to [their] individual stake in the matter.’ ” ’ ” (Conservatorship of Whitley, supra, 50 Cal.4th at 1215.)

For the foregoing reasons, the motions are denied. The court finds the Challengers are not entitled to an award of fees under Section 1021.5.

IT IS SO ORDERED.

September 4, 2020 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court


[1] Given the number of parties and the complexity of issues, the court ordered the motions for attorney’s fees to be combined and heard in two parts. Today’s hearing addresses whether the moving parties are entitled to attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

[2] The court will collectively refer to moving Defendants as the “Challengers.”

[3] The GHAD provides portions of the administrative record in a Request for Judicial Notice and an appendix of portions of judicially noticeable documents cited as APP.

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