This case was last updated from Los Angeles County Superior Courts on 10/09/2020 at 07:07:55 (UTC).

DEANNA AIVAZIAN VS. SARKIS TERSAKIAN ET AL

Case Summary

On 03/16/2017 DEANNA AIVAZIAN filed a Contract - Other Contract lawsuit against SARKIS TERSAKIAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DONNA FIELDS GOLDSTEIN and BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6481

  • Filing Date:

    03/16/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DONNA FIELDS GOLDSTEIN

BENNY C. OSORIO

 

Party Details

Plaintiff

AIVAZIAN DEANNA

Defendants and Cross Defendants

TERSAKIAN SARKIS

NAPA INDUSTRIES LLC. A NEVEDA CORP.

FAIN BROOK

TERSAKIAN ALICE

TERSAKIAN GRANT

Cross Plaintiff

NAPA INDUSTRIES LLC A NEVEDA CORP.

Attorney/Law Firm Details

Plaintiff Attorneys

KELLENER RAPEL &

KELLENER JOSEPH WIND

KELLENER JOSEPH

Defendant and Cross Plaintiff Attorneys

STEFFANIE STELNICK

STELNICK STEFFANIE

STELNICK STEFFANIE DANIELLE

 

Court Documents

Notice - NOTICE OF COURT ORDER REGARDING RESETTING THE HEARING DATE

9/18/2020: Notice - NOTICE OF COURT ORDER REGARDING RESETTING THE HEARING DATE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/06/2020

5/6/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/06/2020

Amended Complaint - AMENDED COMPLAINT (3RD)

1/9/2019: Amended Complaint - AMENDED COMPLAINT (3RD)

Declaration - DECLARATION REGARDING NOTICE OF EX PARTE APPLICATION AND HEARING

1/21/2020: Declaration - DECLARATION REGARDING NOTICE OF EX PARTE APPLICATION AND HEARING

Motion to Deem RFA's Admitted

1/21/2020: Motion to Deem RFA's Admitted

Trial Brief

2/6/2020: Trial Brief

Challenge To Judicial Officer - Peremptory (170.6)

6/20/2019: Challenge To Judicial Officer - Peremptory (170.6)

Minute Order - MINUTE ORDER (COURT ORDER)

6/21/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Minute Order - MINUTE ORDER (COURT ORDER)

5/21/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Case Management Statement

5/22/2019: Case Management Statement

Answer

2/8/2019: Answer

Answer

2/8/2019: Answer

Civil Case Cover Sheet -

3/16/2017: Civil Case Cover Sheet -

Request for Entry of Default / Judgment -

5/31/2017: Request for Entry of Default / Judgment -

Legacy Document -

7/24/2017: Legacy Document -

Case Management Statement -

2/26/2018: Case Management Statement -

Legacy Document -

6/4/2018: Legacy Document -

Demurrer - without Motion to Strike -

8/29/2018: Demurrer - without Motion to Strike -

140 More Documents Available

 

Docket Entries

  • 10/21/2020
  • Hearing10/21/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Status Conference

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  • 10/21/2020
  • Hearing10/21/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Order to Show Cause Re: Dismissal

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  • 09/25/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Attorney Fees - Held - Taken under Submission

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  • 09/25/2020
  • Docketat 2:41 PM in Department B; Ruling on Submitted Matter

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  • 09/25/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 09/25/2020); Filed by Clerk

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  • 09/25/2020
  • DocketOrder (Court's Order re: Motion for Attorney's Fees); Filed by Clerk

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  • 09/25/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 09/25/2020
  • DocketMinute Order ( (Hearing on Motion for Attorney Fees)); Filed by Clerk

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  • 09/21/2020
  • DocketReply (to Opposition to Defendant's Notice of Motion and Motion for Attorney's Fees); Filed by Napa Industries, LLC. a Neveda Corp. (Defendant); Brook Fain (Defendant)

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  • 09/18/2020
  • DocketNotice (of Court Order Regarding Resetting the Hearing Date); Filed by Brook Fain (Defendant)

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182 More Docket Entries
  • 05/31/2017
  • DocketProof of Service of Summons and Complaint; Filed by Deanna Aivazian (Plaintiff)

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  • 05/31/2017
  • DocketRequest for Entry of Default / Judgment; Filed by Deanna Aivazian (Plaintiff)

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  • 05/31/2017
  • DocketDefault Entered; Filed by Deanna Aivazian (Plaintiff)

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  • 03/16/2017
  • DocketSummons; Filed by Deanna Aivazian (Plaintiff)

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  • 03/16/2017
  • DocketNotice of Case Management Conference; Filed by Court

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  • 03/16/2017
  • DocketCivil Case Cover Sheet; Filed by Deanna Aivazian (Plaintiff)

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  • 03/16/2017
  • DocketComplaint filed-Summons Issued; Filed by Deanna Aivazian (Plaintiff)

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  • 03/16/2017
  • DocketRequest to Waive Court Fees; Filed by Deanna Aivazian (Plaintiff)

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  • 03/16/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Plaintiff

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  • 03/16/2017
  • DocketNotice (OSC-Failure to File Proof of Serv); Filed by Court

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Tentative Rulings

Case Number: EC066481    Hearing Date: September 25, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

deanna aivazian,

Plaintiff,

v.

sarkis tersakian, et al.,

Defendants.

Case No.: EC066481

Hearing Date: September 25, 2020

[TENTATIVE] order RE:

motion for attorney’s fees

BACKGROUND

A. Allegations

This case arises from Plaintiff Deanna Aivazian's (“Plaintiff”) claim that Defendant Sarkis Tersakian (“Tersakian”) leased the premises located at 11212 ½ Victory Blvd., North Hollywood, CA 91606. She alleges that Tersakian collected rent from her until the property was sold to Defendant Napa Industries, LLC (“Napa”). Defendant Brooke Fain is alleged to be the agent for Tersakian (former owner/landlord lessor of the property) and Napa (current owner/landlord/lessor).

Plaintiff alleges that she received a notice from Tersakian on March 5, 2016, that he would be turning off utilities, in contravention to their lease agreement, which stated that the lessor would pay for all water/electric supplied to the premises. She alleges that on March 30, 2016 Tersakian provided a 30-day notice to vacate the premises. Thereafter, on April 26, 2016, Napa served a notice to quit on Plaintiff and her utilities were shut off on April 28, 2016. She alleges that she had no choice but to vacate the property as a result of Tersakian and Napa’s concerted efforts to wrongfully oust her.

The third amended complaint (“TAC”), filed January 9, 2019, alleges cause of action for: (1) breach of contract; (2) negligence; (3) breach of implied warranty of habitability and tenantability; (4) breach of implied covenant of quiet use and enjoyment; (5) constructive eviction; (6) violation of statute – Civ. Code, §1942.5; (7) violation of statute – Civil Code §789.3; and (8) NIED.

B. Relevant Background

On February 24, 2020, the matter proceeded to a non-jury trial. On February 27, 2020, after the matter was tried to the Court, the Court found as follows regarding the TAC:

On March 25, 2020, Judgment after Court Trial was entered in favor of Plaintiff and against Napa in the amount of $2,334.80, and in favor of Fain.

On April 2, 2020, Fain filed a memorandum of costs, requesting $1,464.63 in costs for filing and motion fees, fees for electronic filing or service, and other. The memorandum of costs also indicates that Fain is seeking attorney’s fees pursuant to a motion.

C. Motion on Calendar

On March 25, 2020, Fain filed a motion for attorney’s fees.

On September 10, 2020, Plaintiff filed an opposition brief.

On September 21, 2020, Fain filed a reply brief.

LEGAL STANDARD

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) 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. (Id.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id.)

No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.) In Wershba, the trial court awarded attorney’s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court’s order.

DISCUSSION

Fain moves for attorney’s fees against Plaintiff in the amount of $40,195.00 pursuant to Civil Code, §§789.3 and 1717. The 1st and 7th causes of action for breach of contract and violation of Civil Code §789.3 in the TAC were alleged against Fain.

Following the bench trial, the Court found in favor of Fain and against Plaintiff with respect to all causes of action. The Court determined that Fain was entitled to recover costs against Plaintiff.

A. Entitlement to Fees under Civil Code §789.3

Civil Code, §789.3(a) states that a “landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” In any action where a landlord violates the section, the court shall award reasonable attorney’s fees to the prevailing party. (Civil Code, §789.3(d).)

First, Fain seeks attorney’s fees in connection with section 789.3, arguing that he was the prevailing party on the cause of action for violation of section 789.3, which was asserted against him. The TAC alleges that Fain was the agent of Tersakin and Napa and that he was the landlord of the premises. (TAC, ¶¶2, 43.) The 7th cause of action for violation of section 789.3 alleges that Defendants intended to terminate Plaintiff’s occupancy under the lease by willfully causing direct interruption and termination of electricity furnished to Plaintiff. (TAC, ¶¶97-99.) As stated in the Court’s minute order, the Court found in favor of Fain on all causes of action and found that he was entitled to an award of costs.

As such, there is a basis for an award of reasonable attorney’s fees in favor of Fain in connection with the 7th cause of action pursuant to Civil Code §789.3.

B. Entitlement to Fees under Civil Code §1717

Civil Code §1717(a) states that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees. The court, upon notice and motion by a party, shall determine who is the prevailing party on the contract for purposes of section 1717, whether or not the suit proceeds to final judgment. (Civ. Code, §1717(b)(1).)

Fain seeks attorney’s fees pursuant to Civil Code §1717 because a breach of contract cause of action was asserted against him and he was the prevailing party in the action against Plaintiff. In the 1st cause of action for breach of contract, Plaintiff alleged that Fain was landlord and Napa was owner of the property and that they had delivered to Plaintiff a notice to quit for forfeiture of the lease. (TAC, ¶43.)

The Rental Agreement at issue was entered between Plaintiff and Tersakian. (TAC, Ex. A.) Though partially illegible, paragraph 11 of the Rental Agreement is regarding the prevailing party to an action. It states that the prevailing party (who sues for rent or moneys due under the lease, for recovery of possession of the premises, to obtain performance under the agreement, recover damages, etc.) shall be awarded all of the costs in connection therewith, including reasonable attorney’s fees. (Rental Agreement, ¶11.)

Although Fain was not a signatory to the Rental Agreement, he may still be entitled to attorney’s fees as the prevailing party in the litigation under section 1717. (Steve Schmidt & Co. v. Berry (1986) 183 Cal.App.3d 1299, 1317; Reynolds Metals Co. v. Alperson Here, Plaintiff chose to sue Fain for breach of contract though Fain was not a signatory to the agreement. The terms of the Rental Agreement are sufficiently broad enough that the prevailing party on a lawsuit for damages, possession, rent/monies due, etc. would be entitled to an award of costs and reasonable attorney’s fees. Further, Plaintiff cannot have it bought ways by arguing that she may pursue a contract cause of action against Fain and request attorney’s fees against him under section 1717 in the section for damages, but also argue that Fain cannot and should not be entitled to fees in the event he prevailed.

As Fain was the prevailing party on the breach of contract cause of action, section 1717 too is a ground upon which Fain may recover attorney’s fees against Plaintiff.

C. Amount of Reasonable Attorney’s Fees

In support of the request for fees, Fain provides the declaration of his counsel Steffanie Stelnick. Ms. Stelnick states that she and her office performed the following work at certain billing rates:

Paragraphs 5 to 7 of Ms. Stelnick’s declaration include charts on the tasks performed on certain dates and the hours spent on the tasks. She states that she has removed billing for discovery completed for Napa and did not include billing for time associated with representing Napa only. (Id., ¶8.)

The Court will award attorney’s fees to Fain for the time spent by Ms. Stelnick and Mr. Wilmers in this action. Ms. Stelnick states that she has incurred 73.9 hours and Mr. Wilmers has incurred 4.9 hours, and that these hours do not include billing for the time and tasks performed with representing Napa solely. (Stelnick Decl., ¶8.) While the hours appear to be reasonable, the Court will reduce the hours by two-thirds to adequately apportion the time counsel spent between defending Napa and Fain. Though counsel stated that she removed billing for “solely” representing Napa, there are inevitably times counsel billed that included work performed for both Fain and Napa. Moreover, the representation of Mr. Fain was secondary to the representation of Napa as the primary defendant was NAPA. As such, the hours recoverable by Ms. Stelnick shall be 24.6 hours and the hours recoverable by Mr. Wilmers shall be 1.6 hours. (See EnPalm, LLC v. Teitler .)

The Court also finds that the hourly rates requested are somewhat steep. Ms. Stelnick has not stated in her declaration the reasonableness of the fees she charges in light of her 7 years of being an attorney. For the purposes of this motion brought by Fain, the Court will reduce the rate of Ms. Stelnick to $300/hour and of Mr. Wilmers to $250/hour.

As such, the amount awarded for Ms. Stelnick’s time incurred in this action shall be $7,380 ($300/hour x 24.6 hours); and the amount awarded for Mr. Wilmer’s time incurred in this action is $400 ($250/hour x 1.6 hours). Thus, the total awarded for the times incurred by Ms. Stelnick and Mr. Wilmers is $7,780.00.

With regard to the tasks performed by paralegals and staff/legal assistants, such tasks are predominantly secretarial and administrative. (See Stelnick Decl., ¶7.) The billing rates of Ms. Stelnick and Mr. Jackman are sufficiently high to include secretarial and administrative time of support personnel (even with the proposed reduction of hourly rates by the Court). For these reasons, the Court declines to award hours for such personnel. The Court has also reviewed the time spent by Mr. Jackman, which include mostly drafting discovery requests and discovery motions, part of which was reviewed by Ms. Stelnick such that the times are somewhat duplicative. As such, the amount of $4,920 for Mr. Jackman’s time and $550 for the work performed by paralegals/staff will not be awarded to Fain.

CONCLUSION AND ORDER

Fain’s motion for attorney’s fees against Plaintiff is granted such that Fain shall be entitled to attorney’s fees in the amount of $7,780.00.

Fain shall provide notice of this order.

Case Number: EC066481    Hearing Date: August 28, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

deanna aivazian,

Plaintiff,

v.

sarkis tersakian, et al.,

Defendants.

Case No.: EC066481

Hearing Date: August 28, 2020

[TENTATIVE] order RE:

motion for an order for attorney’s fees

BACKGROUND

A. Allegations

Plaintiff Deanna Aivazian (“Plaintiff”) leased the premises located at 11212 ½ Victory Blvd., North Hollywood, CA 91606 from Defendant Sarkis Tersakian (“Tersakian”). She alleges that Tersakian collected rent from her until the property was sold to Defendant Napa Industries, LLC (“Napa”). Defendant Brooke Fain is alleged to be the agent for Tersakian (former owner/landlord lessor of the property) and Napa (current owner/landlord/lessor).

Plaintiff alleges that she received a notice from Tersakian on March 5, 2016, that he would be turning off utilities, in contravention to their lease agreement, which stated that the lessor would pay for all water/electric supplied to the premises. She alleges that on March 30, 2016, Tersakian provided a 30-day notice to vacate the premises. Thereafter, on April 26, 2016, Napa served a notice to quit on Plaintiff and her utilities were shut off on April 28, 2016. She alleges that she had no choice but to vacate the property as a result of Tersakian and Napa’s concerted efforts to wrongfully oust her.

The third amended complaint (“TAC”), filed January 9, 2019, alleges cause of action for: (1) breach of contract; (2) negligence; (3) breach of implied warranty of habitability and tenantability; (4) breach of implied covenant of quiet use and enjoyment; (5) constructive eviction; (6) violation of statute – Civ. Code, §1942.5; (7) violation of statute – Civil Code §789.3; and (8) NIED.

B. Relevant Background

On February 24, 2020, the matter proceeded to a non-jury trial. On February 27, 2020, after the matter was tried to the Court, the Court found as follows regarding the TAC:

(Emphasis added.)

On March 25, 2020, Judgment after Court Trial was entered in favor of Plaintiff and against Napa in the amount of $2,334.80, and in favor of Fain.

On April 23, 2020, Plaintiff filed a memorandum of costs, requesting $274.80 in costs for service of process and models/enlargements/photocopies of exhibit fees. The memorandum of costs also indicates that Plaintiff is seeking attorney’s fees pursuant to a motion.

C. Motion on Calendar

On April 24, 2020, Plaintiff filed a motion for attorney’s fees, seeking $43,425 against Napa.

On August 17, 2020, Napa filed an opposition brief.

On August 21, 2020, Plaintiff filed a reply brief.

LEGAL STANDARD

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) 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. (Id.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id.)

No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.) In Wershba, the trial court awarded attorney’s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court’s order.

DISCUSSION

Plaintiff moves for attorney’s fees against Napa in the amount of $43,425.00 pursuant to CCP §§1032 and 1033.5.

A. Entitlement to Fees

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

1) the party with a net monetary recovery;

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

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

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

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

CCP §1032(b) states that “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” CCP §1033.5(a)(10) states that attorney’s fees are an allowable cost when authorized by contract, statute, or law.

Here, Plaintiff was the party with the net monetary recovery against Napa. Moreover, following the bench trial, the Court found in favor of Plaintiff on the 3rd, 4th, 5th, and 7th causes of action for breach of implied warranty of habitability and tenantability, breach of implied covenant of quiet use and enjoyment, constructive eviction, and violation of statute – Civil Code §789.3. The Court determined that Plaintiff was the prevailing party with respect to Napa and stated that she shall recover her costs pursuant to a costs memorandum and her attorney’s fees by motion. Thus, Plaintiff has shown her entitlement to recover costs against Napa.

Reliance on sections 1032(a) and 1033.5(a)(10) alone are not sufficient to provide a contractual, statutory, or legal basis for attorney’s fees. Rather, attorney’s fees are an allowable cost when authorized by contract, statute, or law. (CCP §1033.5(a)(10).) In the memorandum of points and authorities, Plaintiff specifically argues that she is entitled to fees under Civil Code, §1942.4(b)(1)-(2) for her breach of implied warranty of habitability claim; the attorney’s fees clause in her lease at paragraph 11 pursuant to Civil Code, §1717 for her breach of the implied covenant of quiet use and enjoyment and constructive eviction causes of action; and Civil Code, §789.3(d) for her violation of statute claim.

1. Civil Code, §1942.4

Civil Code, §1942.4(a) states that a landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a 3-day notice to pay or quit pursuant to CCP §1161(2) if all the following conditions exist prior to the landlord’s demand or notice: (1) the dwelling substantially lacks any of the affirmative standard characteristics listed in section 1941.1 or violates Health & Safety Code, §17920.10, or is deemed and declared substandard as set forth in Health & Safety Code, §17920.3 because conditions exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling; (2) a  officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord/agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions; (3) the conditions have existed and have not been abated 35 days beyond the date of service of the subsection (2) notice and the delay is without good cause; and (4) the conditions were not caused by an act or omission of the tenant or lessee in violation of section 1929 or 1941.2.

Subsection (b) states that a landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than $100 and not more than $5,000. (Civil Code, §1942.4(b)(1).) “The prevailing party shall be entitled to recovery of reasonable attorney's fees and costs of the suit in an amount fixed by the court.” (Civil Code, §1942.4(b)(2).)

Plaintiff seeks attorney’s fees pursuant to section 1942.4 in connection with her 3rd cause of action for breach of the warranty of habitability and tenantability. The Court found in favor of Plaintiff on the 3rd cause of action and against Napa.

However, based on the moving papers, the Court does not find that Plaintiff has shown her entitlement to fees under section 1942.4. While Plaintiff alleges that she contacted the Los Angeles Building and Safety Department, who notified her that the structure she was living in was built illegally and did not have a certificate of occupancy (TAC, ¶22), she has not provided evidence showing that Napa was given written notice to abate the nuisance or repair the substandard condition and when such notice was provided. At most, Exhibit 7 of the TAC only shows that LADBS issued notices to gain entry to the property.

As such, the Court cannot ascertain whether section 1942.4 applies to the facts of this case or the 3rd cause of action as a basis for attorney’s fees. Thus, this section shall not be a basis for the recovery of attorney’s fees.

2. Civil Code, §1717

Civil Code §1717(a) states that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees. The court, upon notice and motion by a party, shall determine who is the prevailing party on the contract for purposes of section 1717, whether or not the suit proceeds to final judgment. (Civ. Code, §1717(b)(1).)

Plaintiff seeks attorney’s fees pursuant to Civil Code §1717 in connection with her 3rd cause of action for breach of the implied warranty of habitability, 4th cause of action for breach of the implied covenant of quiet use and enjoyment and 5th cause of action for constructive eviction. In opposition, Napa argues that Fain and Napa are not parties to the contract entered between Plaintiff and Tersakian and thus the contract cannot be basis for fees on the 3rd, 4th, and 5th causes of action.

Following the bench trial, the Court found in favor of Napa and against Plaintiff on the 1st cause of action for breach of contract, and in favor of Plaintiff and against Napa on the 3rd, 4th, and 5th causes of action. In the 1st cause of action for breach of contract, Plaintiff alleged that Fain was landlord and Napa was owner of the property and that they had delivered to Plaintiff a notice to quit for forfeiture of the lease. (TAC, ¶43.) In the 3rd cause of action, Plaintiff alleged that defective conditions existed on the property and that Defendants failed to correct the defective conditions despite having notice. (Id., ¶¶61-65.) In the 4th cause of action for breach of the implied warranty of quiet enjoyment, Plaintiff alleges that the rental agreement had an implied covenant that Defendants would not interfere with her quiet enjoyment, but that they breached the implied covenant by turning off the power illegally, sending her a notice to terminate illegally, failing to restore power, etc. (Id., ¶70.) In the 5th cause of action for constructive eviction, she alleges that Defendants failed to repair/restore electricity, keep the premises in a suitable condition, etc. and that as a result of Defendants’ conduct, she was forced to vacate the premises. (Id., ¶¶75-78.) In connection with the 3rd, 4th, and 5th causes of action, Plaintiff alleges her entitlement to attorney’s fees pursuant to the lease agreement. (Id., ¶¶67, 73, 82.)

The Rental Agreement at issue was entered between Plaintiff and Tersakian. (TAC, Ex. A.) Though partially illegible, paragraph 11 of the Rental Agreement is regarding the prevailing party to an action. It states that the prevailing party (who sues for rent or moneys due under the lease, for recovery of possession of the premises, to obtain performance under the agreement, recover damages, etc.) shall be awarded all of the costs in connection therewith, including reasonable attorney’s fees. (Rental Agreement, ¶11.)

Although Napa was not a signatory to the Rental Agreement, the Court finds that Plaintiff may still be entitled to attorney’s fees against Napa as the prevailing party under section 1717. (Steve Schmidt & Co. v. Berry (1986) 183 Cal.App.3d 1299, 1317; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128 [“Its purposes require section 1717 be interpreted to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney's fees should he prevail in enforcing the contractual obligation against the defendant.”].) Based on the reciprocal nature of section 1717, attorney’s fees would be allowed to the prevailing party on a contract claim.

Though Plaintiff did not prevail on the breach of contract claim, she prevailed on her breach of implied warranty of habitability, breach of implied covenant of quiet use and enjoyment and constructive eviction causes of action. A breach of warranty of habitability or of the covenant of quiet enjoyment and a claim for constructive eviction are claims that sound in contract as they arise from the lease. (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1169; see also Beeman v. Burling (1990) 216 Cal.App.3d 1538, 1608 [awarding plaintiff fees under section 1717 because his wrongful eviction action was fundamentally based on the lease].)

As Plaintiff was the prevailing party on the 3rd, 4th, and 5th causes of action, section 1717 is a ground upon which Plaintiff may recover attorney’s fees against Napa.

3. Civil Code, §789.3

Civil Code, §789.3(a) states that a “landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” In any action where a landlord violates the section, the court shall award reasonable attorney’s fees to the prevailing party. (Civil Code, §789.3(d).)

Plaintiff seeks attorney’s fees in connection with section 789.3, arguing that she was the prevailing party on the cause of action for violation of section 789.3, which was asserted against Napa. The 7th cause of action for violation of section 789.3 alleges that Defendants intended to terminate Plaintiff’s occupancy under the lease by willfully causing direct interruption and termination of electricity furnished to Plaintiff. (TAC, ¶¶97-99.) As stated in the Court’s minute order, the Court found in favor of Plaintiff on this cause of action against Napa and found that she was entitled to an award of costs and fees pursuant to motion.

As such, there is a basis for an award of reasonable attorney’s fees in favor of Plaintiff and against Napa in connection with the 7th cause of action pursuant to Civil Code §789.3.

B. Amount of Reasonable Attorney’s Fees

In support of the request for fees, Plaintiff provides the declaration of her counsel Joseph Kellener. Mr. Kellener states that he and his office performed the following work at certain billing rates:

Exhibit A to Mr. Kellener’s declaration includes time records for court hearings, pleadings/review, and discovery. Exhibit B includes billing statements for the paralegal dated July 22, 2017 to December 4, 2018.

The Court will award attorney’s fees to Plaintiff for the time spent by Mr. Kellener in this action. However, Napa argues that the following time should be deducted: (1) 1 hour for the February 21, 2020 hearing regarding motions to compel where Mr. Kellener billed 1 hour, but the minute order reflects that no appearances by counsel were made and the parties submitted on the published tentative ruling; (2) 2 hours for the June 15, 2018 hearing on a demurrer and motion to strike where no appearances by counsel were made and the parties submitted online; (3) 1 hour to attend the October 3, 2017 CMC where Napa’s counsel appeared but Mr. Kellener did not; and (4) a portion of the 8 hours for trial on February 24, 2020 since Mr. Kellener was 3 hours late to the trial and to account for the hour and half lunch break. (Opp. at p.4; Exs. 1-3 [Minute Orders].) Thus, the Court will reduce the hours incurred by Mr. Kellener by 4 hours for the hearings and 3 hours for the trial date, for a total reduction of 7 hours. Thus, the time billed by Mr. Kellener amounts to 89 hours (96 hours – 7 hours).

Though Plaintiff’s counsel may have spent 89 hours on this matter, the Court will reduce the fees further. Plaintiff’s action was overbroad and largely an unmeritorious case. Though the Court found in Plaintiff’s favor on the 3rd, 4th, 5th, and 7th causes of action against Napa, these were not the causes of action that represented the gravamen of Plaintiff’s case and the relief awarded to Plaintiff was small in comparison to the amounts sought in the claims and causes of action that were rejected. Moreover, as Plaintiff’s counsel has billed for some time that he plainly did not spend working on the case, the credibility of all of the hours is placed in doubt. Clearly the time was reconstructed, and while that is not forbidden, it is likely to be inaccurate. Further, as noted in the Court’s judgment, the Court found in favor of Fain against Plaintiff on all causes of action and in favor of Napa against Plaintiff on the 1st, 6th, and 8th causes of action. Thus, in order to apportion and allocate the time spent by counsel in this action between the Defendants—in particular, taking into account the time counsel spent in litigating the action against Fain—the Court finds a reduction of counsel’s hours to be reasonable. For all these reasons, the Court reduces the hours as to which it will award fees to Plaintiff’s counsel to 50 hours, which is reasonable to compensate counsel to litigate this action against Napa.

Further, the hourly rate of Plaintiff’s counsel is somewhat steep. Mr. Kellener has not stated in his declaration the reasonableness of the fees he charges in light of his 6 years of practice. For the purposes of this motion brought by Plaintiff, the Court will reduce the rate of Mr. Kellener from $450/hour to $300 hour. As such, the amount awarded for Mr. Kellener’s time incurred in this action shall be $15,000.00 ($300/hour x 50 hours).

The Court has reviewed the work performed by Mr. Daughtery (paralegal), which includes drafting motion/opposition papers. (See Kellener Decl., Ex. B.) However, the billing rate of Mr. Kellener is already sufficiently high to include such tasks of the paralegal (even with the proposed reduction of Mr. Kellener’s hourly rate by the Court), plus the hours and work are somewhat duplicative to what Mr. Kellener has already billed. Thus, the hours billed by the paralegal will not be awarded to Plaintiff.

CONCLUSION AND ORDER

Plaintiff’s motion for attorney’s fees is granted such that Plaintiff shall be entitled to attorney’s fees in the amount of $15,000.00 against Napa.

Plaintiff shall provide notice of this order.

Case Number: EC066481    Hearing Date: February 21, 2020    Dept: NCB

deanna aivazian,

Plaintiff,

v.

sarkis tersakian, et al.,

Defendants.

Case No.: EC066481

Hearing Date: February 21, 2020

[TENTATIVE] order RE:

motion to compel;

motion to deem the truth of the matters specified in request for admissions admitted

BACKGROUND

A. Allegations

This case arises from Plaintiff Deanna Aivazian's (“Plaintiff”) claim that Defendant Sarkis Tersakian (“Tersakian”) leased the premises located at 11212 ½ Victory Blvd., North Hollywood, CA 91606. She alleges that Tersakian collected rent from her until the property was sold to Defendant Napa Industries, LLC (“Napa”). Plaintiff alleges that she received a notice from Tersakian on March 5, 2016, that he would be turning off utilities, in contravention to their lease agreement, which stated that the lessor would pay for all water/electric supplied to the premises. She alleges that on March 30, 2016 Tersakian provided a 30-day notice to vacate the premises. Thereafter, on April 26, 2016, Napa served a notice to quit on Plaintiff and her utilities were shut off on April 28, 2016. She alleges that she had no choice but to vacate the property as a result of Tersakian and Napa’s concerted efforts to wrongfully oust her.

The third amended complaint (“TAC”), filed January 9, 2019, alleges cause of action for: (1) breach of contract; (2) negligence; (3) breach of implied warranty of habitability and tenantability; (4) breach of implied covenant of quiet use and enjoyment; (5) constructive eviction; (6) violation of statute – Civ. Code, §1942.5; (7) violation of statute – CCP §789.3; and (8) NIED.

B. Discovery Motions on Calendar and Relevant Background

On January 21, 2020, Defendants Brook Fain and Napa filed two discovery motions against Plaintiff: (1) a motion to compel initial responses to form interrogatories, set one (“FROG”), special interrogatories, set one (“SROG”), and requests for production of documents, set one (“RPD”); and (2) motion to deem the truth of matters specified in requests for admission, set one (“RFA”) admitted and conclusively established.

On January 23, 2020, the Court denied Defendants’ “Ex Parte Application for an Order Shortening Time and/or Advancing the Hearing on Motion to Deed the Truth of Matters Admitted and Motion to Compel Response to Interrogatories and Request for Production”. The Court stated in its minute order that Plaintiff’s counsel represented that he provided responses to Defendants’ discovery requests. The Court’s minute order also reflected that Plaintiff’s counsel handed the discovery responses to defense counsel in open court. The Court encouraged defense counsel to take the discovery motions set for February 21, 2020 off calendar.

The Court is not in receipt of an opposition brief to the discovery motions from Plaintiff.

DISCUSSION

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

The trial is set for February 24, 2020. The motions are set for hearing this date of February 21, 2020. Thus, the motion hearing dates are beyond the motion cut-off period, as they were not set at least 15 days before the trial date. As such, the motions shall be denied as untimely.

The Court also notes that while Defendants attempted to apply ex parte to advance the hearing date on the motions or shorten the time to hear the motions, the Court denied those requests. Further, the Court’s January 23, 2020 minute order reflects that Plaintiff’s counsel handed in open court the discovery responses at issue to defense counsel. Thus, the motions appear to be moot and any appropriate follow-up to receiving the responses would be a motion to compel further responses. (But as noted above, the time to bring discovery motions has passed.)

Defendants’ motion is denied. No sanctions shall be awarded.

CONCLUSION AND ORDER

Defendants’ discovery motions are denied. No sanctions shall be awarded.

Plaintiff shall provide notice of this order.