Disposed - Judgment Entered
Contract - Other Contract
LEXINGTON LOFTS LLC
LOS ANGELES THE CITY OF
BAKER DAVID LESTON
COSTELL & CORNELIUS LAW CORPORATION
LIEBER STANLEY P.
WAX NANCY E.
11/30/2017: Minute Order
12/14/2017: PLAINTIFF LEXINGTON LOFTS, LLC'S TRIAL BRIEF
12/14/2017: PLAINTIFF LEXINGTON LOFTS, LLC'S EXHIBIT LIST
12/14/2017: PLAINTIFF LEXINGTON LOFTS, LLC'S JOINT WITNESS LIST
12/19/2017: Minute Order
12/19/2017: NOTICE OF RULING RE PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS AND NOTICE OF STATUS CONFERENCE RE TRIAL DATE
12/21/2017: ORDER RE PLATNTIFF'S MOTION FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, PRECLUDING DEFENDANT BAKER FROM TESTIFYING OR PRESENTING ANY EVIDENCE AT TRIAL
12/22/2017: STIPULATION TO DISMISS DEFENDANT CITY OF. LOS ANGELES
12/27/2017: Minute Order
12/27/2017: REQUEST FOR DISMISSAL
12/28/2017: NOTICE OF ENTRY OF ORDER RE PLAINTIFF'S MOTIN FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, PRECLUDING DEFENDANT BAKER FORM TESITIFYIN OR PRESENTING ANY EVIDENCE AT TRIAL
1/4/2018: Minute Order
1/4/2018: STIPULATED JUDGMENT
1/4/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
1/17/2018: NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE; BREACH OF CONTRACT
1/6/2017: NOTICE OF RELATED CASE
1/6/2017: COMPLAINT FOR: 1. BREACH OF CONTRACT AND MONEY DAMAGES; ETC
DocketNOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE; BREACH OF CONTRACT[+] Read More [-] Read Less
Docketat 10:30 AM in Department 19; Non-Jury Trial (Court Trial - Short Cause; Case Deemed Settled) -[+] Read More [-] Read Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketJudgment; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketMinute Order[+] Read More [-] Read Less
DocketSTIPULATED JUDGMENT[+] Read More [-] Read Less
DocketORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE[+] Read More [-] Read Less
Docketat 08:31 AM in Department 19; Hearing on Motion for Terminating Sanctions[+] Read More [-] Read Less
DocketNotice; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketNOTICE OF ENTRY OF ORDER RE PLAINTIFF'S MOTIN FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, PRECLUDING DEFENDANT BAKER FORM TESITIFYIN OR PRESENTING ANY EVIDENCE AT TRIAL[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketRECORDED NOTICE OF PENDENCY OF ACTION (LIS PENDESN) FOR PROPERTY IDENTIFIED AS 5657 LEXINGTON AVENUE, LOS ANGELES, CA 90038)[+] Read More [-] Read Less
DocketRECORDED NOTICE OF PENDENCY OF ACTION (LIS PENDENS) FOR PROPERTY IDENTIFIED AS 5655 LEXINGTON AVENUE, LOS ANGELES, CA 90038[+] Read More [-] Read Less
DocketNotice of Lis Pendens; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Lis Pendens; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR: 1. BREACH OF CONTRACT AND MONEY DAMAGES; ETC[+] Read More [-] Read Less
DocketNotice of Related Case; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketNOTICE OF RELATED CASE[+] Read More [-] Read Less
DocketComplaint; Filed by Lexington Lofts, LLC (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****6042 Hearing Date: December 04, 2019 Dept: 47
Lexington Lofts, LLC v. David Leston Baker, et al.
MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR ATTORNEYS’ FEES AND SANCTIONS PURSUANT TO CRC 2.30
MOVING PARTY: Defendants Lexington Lofts, LLC and Robert Green
RESPONDING PARTY(S): Non-Party Kerendian & Associates, Inc. David Baker had also filed opposing documents (on 9/24/19) in connection with the previous motion but did not file an opposition to the amended one.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This was a breach of contract action and an action to quiet title. Lexington Lofts alleged that David Baker agreed to sell certain residential income properties to it but that Baker refused to allow Lexington’s survey agent to access the properties as agreed. Lexington also originally sought a declaratory judgment that the property was not subject to liens recorded by the City of Los Angeles. This was the action that was resolved by a stipulated judgment.
In related case BC572214, the State of California sued David Baker to abate a public nuisance at one of the same properties. The State alleged that Baker was “enabling the presence of criminal offenders” on the property, particularly in connection with narcotics activity involving crystal meth. The case was resolved with a stipulated judgment, under which the Court declared that a public nuisance existed at the property and issued an order of abatement lasting 10 years. The State was also ordered to record the judgment.
In related case 19STCV16663, David Baker alleges fraud, negligent misrepresentation, fraudulent inducement, unfair business practices, elder abuse, and other claims, and he seeks to quiet title to the properties at issue in ****6042. Lexington Lofts was originally a defendant but was dismissed from the case on August 26, 2019. It appears that all other named defendants have also been dismissed as of September 11, 2019. There is a case management conference scheduled in that case on the same day as the hearing of this motion (per 9/10/19 minute order).
Defendants (in 19STCV16663) Lexington Lofts, LLC and Robert Green move to enforce their settlement agreement with David Baker and for attorneys’ fees and sanctions.
Defendants Lexington Lofts, LLC and Robert Green’s motion to enforce the settlement agreement is DENIED.
Defendants’ request for attorneys’ fees of $65,961.50 incurred in enforcing the settlement, to be paid by Defendant David Liston Baker, is DENIED.
Defendants’ request for sanctions of $75,000 against Attorneys Shab B. Kerendian and Edrin Shamtob of Kerendian & Associates, Inc. is DENIED.
Defendants’ request for attorneys’ fees of $10,000 against Attorneys Shab B. Kerendian and Edrin Shamtob of Kerendian & Associates, Inc. is DENIED.
Motion To Enforce Settlement Agreement
Requests for Judicial Notice
Defendants request judicial notice of (1) the stipulated judgment entered by the Court on January 4, 2018, (2) the Court’s November 22, 2017 ruling on Lexington’s motion for summary adjudication, (3) the verified complaint filed by David Baker in Case No. 19STCV16663, (4) the stipulation to dismiss Defendant City of Los Angeles, (5) the Notice of Sheriff’s Sale dated November 27, 2017 for the sale of the real property located at 5655-5655½, (6) the Court’s order on December 21, 2017 precluding David Baker from testifying, and (7) the document filed by David Baker on September 24, 2019.
Request Nos. 1 to 4, 6, and 7 are GRANTED per Evidence Code ; 452(d) (court records). Request No. 5 is DENIED. Defendants have offered no explanation of where they obtained this printout or any other basis on which the Court can determine whether it is judicially noticeable. Moreover, the Court need not take judicial notice of any document that is irrelevant to its decision, and the Notice of Sheriff’s Sale is irrelevant. (Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1488 n.3 [refusing to take judicial notice of “irrelevant” documents].)
Kerendian & Associates request judicial notice of (1) the amended motion filed in Case No. 19STCV16663, (2) the request for dismissal filed on August 23, 2019, (3) the motion for sanctions filed in Case No. 19STCV16663, (4) the verified complaint in Case No. 19STCV16663, and (5) the case summary from the Court website for Case No. 19STCV16663.
These requests are GRANTED per Evidence Code ; 452(d) (court records).
Overlength Brief (Singular)
Contrary to the assertion of Lexington Lofts, the “supplemental” opposition brief filed by Kerendian & Associates is not overlength. The 15-page limit in CRC 3.1113 “does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (CRC 3.1113(d) (bold emphasis added.) In other words, it does not include the first 5 pages or the last 2 pages of the 22-page brief, which Kerendian & Associates properly numbered consecutively from the first page as required by CRC 3.1113(h), as amended in 2017 to assist the Court in finding pages easily in eFiled documents.
Even if Kerendian & Associates had exceeded the allowable length, two wrongs don’t make a right. (And there is only one wrong here.) Lexington had no authority to grant itself its own application to file a longer memorandum: CRC 3.1113(e) lays out the procedure to request leave to file a longer memorandum if “the argument cannot be made within the stated limit.” Lexington also violated CRC 3.1113(h), having failed to number every page consecutively as required.
Under CRC 3.1113(g), a memorandum that exceeds the page limit, as Lexington’s does, “must be . . . considered in the same manner as a late-filed paper.” Therefore, the Court could refuse to consider the entire reply brief. (CRC 3.1300(d).) Instead, the Court will refuse to consider the last two pages (numbered 11 and 12) of the reply brief, as it would have done if the opposition had, in fact, been overlength. Lexington’s counsel would do well to familiarize themselves with the rules as amended and avoid accusing other parties of violating rules that those parties have not violated but Lexington’s counsel has.
The Court’s Jurisdiction To Enforce the Settlement
In the case in which this motion was originally filed, ****6042, this Court already entered judgment upon the parties’ stipulation on January 4, 2018. Thus, this is not a case in which the moving parties seek to have the Court enter judgment pursuant to the terms of the settlement. Rather, they are attempting to invoke the Court’s continued jurisdiction to enforce the settlement 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 stipulated judgment is signed by the parties and states that they “expressly agree that the Los Angeles Superior Court shall retain jurisdiction over the parties and this Stipulated Judgment pursuant to California Code of Civil Procedure ; 664.6.” (Stipulated Judgment, 1/4/18, at p. 9.) This stipulated judgment was presented to the Court on January 4, 2018 and signed by the Court that day. Thus, the case was not dismissed before the settlement agreement was presented to the Court, and the Court retains jurisdiction to hear this motion. (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.”].)
Request for Attorneys’ Fees Expended to Enforce Judgment ($65,961.50)
On the merits of the motion to enforce the settlement agreement, Defendants argue that Plaintiff and his attorneys violated the agreement by filing the action with Case No. 19STCV16663, because all of the claims raised by Baker in that action were already waived and released in the stipulated judgment.
Kerendian argues that this motion is moot because Lexington was already dismissed from Case No. 19STCV16663, and therefore Lexington cannot seek to enforce the release in the stipulated judgment by having that action dismissed. Lexington is not seeking dismissal of Case No. 19STCV16663, however: it is seeking its “attorneys’ fees and costs incurred in enforcement of [the] Stipulated Judgment pursuant to CCP ;; 685.040 and 685.070,” as provided in the Stipulated Judgment. (Stipulated Judgment, at p. 7.) Lexington seeks $65,961.50 in attorneys’ fees against David Baker based on this provision.
The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.
(CCP ; 685.040.) A judgment creditor may claim attorney’s fees under CCP ; 685.070(a)(6) if authorized by CCP ; 685.040.
CCP ; 1033(a)(10)(A) authorizes attorney’s fees as costs when they are authorized by contract. Here, as noted above, the contract states that Lexington is entitled to attorney’s fees incurred in enforcing the judgment. Thus, if Lexington incurred awardable fees in connection with enforcing the stipulated judgment, it is entitled to those fees, if reasonable.
Lexington claims entitlement to its fees incurred from the time it became aware of Case No. 19STCV16663 to the time that case was dismissed. Lexington was served by substituted service on May 29, 2019, and it was dismissed as to Lexington on September 11, 2019. Baker had filed a request for dismissal of Lexington and Green on August 23, 2019, which was entered on August 26, 2019. In those three months, Lexington filed a demurrer and filed an earlier version of this motion, asking the Court to enforce the stipulated judgment by ordering Baker to dismiss Case No. 19STCV16663, and filed a separate motion for sanctions.
The determination of reasonable amount of attorney’s fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[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.) \
Even assuming that the moving parties may properly recover some amount of fees, it strikes the Court as a bit disingenuous for the moving parties to seek attorney’s fees from Baker for enforcing the stipulated judgment while also requesting judicial notice of his filing in which he states (though not under penalty of perjury) that his attorneys filed Case No. 19STCV16663 without his blessing and maintained it without his knowledge. If the moving parties want to claim that the Kerendian attorneys improperly filed that case without the participation of their client, attempting to hold the client responsible for it strikes the Court as unreasonable, and that is not the only unreasonable aspect of the motion.
As a preliminary matter, the Court finds that counsel’s hourly rates of $295 and $545 and a law clerk rate of $150 are reasonable, with the understanding that attorneys who charge these rates for their level of experience are expected to perform their work efficiently. (Declaration of Alexandre Ian Cornelius ¶ 11.)
That is where the reasonableness ends, however. The moving parties are seeking fees representing over 170 hours of work for a demurrer, this motion, and its predecessors. And that is not all: the moving parties then add on $10,000 as the amount anticipated to draft a reply and attend a hearing. (Ibid.)
It is well established that a trial court has the discretion to deny a request for attorney’s fees altogether, even though it may be required by law (as perhaps in this case), whenever the request for attorney’s fees is grossly excessive and/or shocks the conscience of the court.
“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [186 Cal. Rptr. 754, 652 P.2d 985]; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137 [104 Cal. Rptr. 2d 377, 17 P.3d 735].)
Chavez v. City of Los Angeles
Although this Court has rarely utilized its discretion in such a manner to date, if there were ever a case in which it should be utilized, this is the one.
The reasons for this determination should be self-evident. To claim over 170 hours of attorney’s time in the relatively short time period in the defense of this case simply defies common sense. Indeed, this Court wouldn’t be surprised that considerably less time has been spent in death penalty cases. This Court has carefully reviewed the entire court files, as well as the declaration of all counsel, and simply concludes that it is virtually impossible to have reasonably spent this claimed amount of time, given the issues involved. Indeed, to find that the claim of 170+ hours (and counting) was grossly excessive and/or shocks the conscience of this court would be a vast understatement.
Accordingly, the request for fees against David Liston Baker is DENIED.
Sanctions against Kerendian & Associates ($75,000)
Lexington seeks sanctions against Kerendian & Associates in the amount of $75,000 pursuant to CRC 2.30, which provides that, “[i]n addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” (CRC 2.30(b).) An order “imposing sanctions must be in writing and must recite in detail the conduct or circumstances justifying the order.”
Kerendian argues that sanctions cannot be imposed because Lexington did not give proper notice. The request for sanctions is mentioned in the caption of the amended motion and in the amended notice, however, and both the caption and the notice state that sanctions are sought against Shab D. Kerendian and Edrin Shamtob of Kerendian & Associates. Thus, Lexington provided sufficient notice under CRC 2.30(c).
Kerendian is correct, however, that sanctions are inappropriate here. The moving parties seek sanctions based on the Kerendian attorneys’ filing of Case No. 19STCV16663 against them despite the release of all claims in the stipulated judgment. However, the Kerendian attorneys filed a request for dismissal as to the moving parties on August 23, 2019 – a mere matter of days after Lexington and Green had filed their demurrer, and before this motion was filed.
By analogy, the “safe harbor” provision of CCP ; 128.7 allows a party 21 days after the service of a motion for sanctions based on that party’s filing of an improper pleading or document to withdraw that document. (CCP ; 128.7(c)(1).) Here, the Kerendian attorneys dismissed the case as to the moving parties promptly after its lack of merit was drawn to their attention.
The moving parties contend that denying sanctions would condone the filing of complaints without knowing that they have a valid basis. Those are not the circumstances here. Despite Baker’s allegations (not under oath) that the Kerendian attorneys filed the lawsuit against his wishes, the complaint itself is verified by Baker under penalty of perjury, and the attorneys have described the process by which they analyzed Baker’s case and by which Baker reviewed the complaint. (Declaration of Edrin Shamtob ¶¶ 7-11.)
Under the circumstances, sanctions against the Kerendian attorneys would not be appropriate nor warranted. Accordingly, the request for sanctions in the amount of $75,000 is DENIED.
Attorneys’ Fees in Connection with this Motion ($10,000)
For the reasons discussed in connection with the request for sanctions, Lexington’s request for attorneys’ fees in connection with this motion pursuant to CRC 2.30(d) is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: December 4, 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
 This party is referred to in some documents as David Leston Baker and in others as David Lestor Baker. He is referred to as David Baker in this tentative ruling.
 Lexington Lofts, LLC and Robert Green are defendants in Case No. 19STCV16663, where the amended motion and reply were filed. The opposition was filed in Case No. ****6042, where the original motion was filed.
 Robert Green is not a party to the agreement – he signed it on behalf of Lexington Lofts – but Defendants argue that he can enforce the release as a third-party beneficiary. (Motion, at pp. 13-14.)