This case was last updated from Los Angeles County Superior Courts on 06/05/2019 at 08:22:41 (UTC).

MARIA DURAN VS 420 FORD CORPORATION ET AL

Case Summary

On 10/10/2017 MARIA DURAN filed a Labor - Wrongful Termination lawsuit against 420 FORD CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9057

  • Filing Date:

    10/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

 

Party Details

Petitioner and Plaintiff

DURAN MARIA

Defendants and Respondents

DOES 1 TO 100

LAFAMA BAKERY

420 FORD CORPORATION

CUEVAS JOSEFA

ROSAS ROBERTO

LA FAMA BAKERY

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

RAND-LEWIS SUZANNE E. ESQ.

RAND-LEWIS SUZANNE ELIZABETH ESQ.

Defendant Attorney

CUETO VICTOR MANUEL ESQ.

 

Court Documents

PROOF OF SERVICE SUMMONS

2/13/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

2/13/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

2/13/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

2/13/2018: PROOF OF SERVICE SUMMONS

Minute Order

2/14/2018: Minute Order

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

2/15/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

ANSWER TO PLAINTIFF'S COMPLAINT

3/21/2018: ANSWER TO PLAINTIFF'S COMPLAINT

ANSWER TO PLAINTIFF'S COMPLAINT

3/21/2018: ANSWER TO PLAINTIFF'S COMPLAINT

Unknown

4/10/2018: Unknown

Unknown

4/10/2018: Unknown

Minute Order

4/12/2018: Minute Order

NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

4/23/2018: NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

DECLARATION OF ROBERTO ROSAS IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

4/23/2018: DECLARATION OF ROBERTO ROSAS IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

EXHIBIT IN SUPPORT OF DECLARATION OF ROBERTO ROSAS IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

4/23/2018: EXHIBIT IN SUPPORT OF DECLARATION OF ROBERTO ROSAS IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

SUBSTITUTION OF ATTORNEY

4/23/2018: SUBSTITUTION OF ATTORNEY

MOTION TO QUASH SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES

4/23/2018: MOTION TO QUASH SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES

NOTICE OF RULING

4/27/2018: NOTICE OF RULING

PROOF OF SERVICE OF SUMMONS

6/11/2018: PROOF OF SERVICE OF SUMMONS

44 More Documents Available

 

Docket Entries

  • 05/09/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Sanctions - Not Held - Rescheduled by Party

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  • 05/01/2019
  • at 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 04/29/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Sanctions - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 04/02/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Sanctions - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 03/18/2019
  • at 9:30 PM in Department 56; Jury Trial - Not Held - Rescheduled by Party

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  • 03/18/2019
  • at 9:30 PM in Department 56; Jury Trial - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 03/05/2019
  • at 08:30 AM in Department 56; Final Status Conference - Held - Continued

    Read MoreRead Less
  • 03/05/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

    Read MoreRead Less
  • 02/28/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Sanctions - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 02/26/2019
  • at 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Not Held - Rescheduled by Party

    Read MoreRead Less
111 More Docket Entries
  • 01/11/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 01/11/2018
  • NOTICE RE: CONTINUANCE OF HEARING

    Read MoreRead Less
  • 01/11/2018
  • NOTICE RE: CONTINUANCE OF HEARING

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  • 10/30/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 10/30/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/30/2017
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 10/30/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 10/10/2017
  • Complaint; Filed by MARIA DURAN (Plaintiff)

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  • 10/10/2017
  • COMPLAINT FOR DAMAGES 1. BREACH OF EXPRESS AND IMPLIED CONTRACT'ETC

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  • 10/10/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC679057    Hearing Date: May 12, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Wednesday, May 12, 2021

Case Name: Maria Duran, et al. v. 420 Ford Corp., et al.

Case No.: BC679057 (lead case) and 19STCV45985

Motion: Tax Costs (BC679057); Demurrer to FAC (19STCV45985)

Moving Party: Defendants 420 Ford and Juan Cuevas (Tax Costs and Demurrer)

Responding Party: Plaintiffs Maria Duran et al.

Notice: OK


Ruling: The Demurrer to the FAC in 19STCV45985 is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs shall file a Second Amended Complaint within twenty days of this Order.

The Motion to Tax Costs in BC679057 is GRANTED. The Court allows reduced costs of $1,029.27.

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

 

On October 10, 2017, Plaintiff Maria Duran filed a Complaint against Defendants 420 Ford Corporation, La Fama Bakery, Josefa Cuevas, Robert Rosas, and Does 1-100, stating causes of action for breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, intentional infliction of emotional distress, fraud, unfair competition, violations of the Labor Code, negligent misrepresentation, and negligent management arising out of Duran’s employment with the Defendants (LASC case no. BC679057).

On January 10, 2019, the Court in BC679057 imposed monetary discovery sanctions of $4,210.00 jointly and severally against Defendants 420 Ford and Josefa Cuevas.

On August 7, 2019, after mediation between Duran and Defendants, represented by their former counsel Victor Cueto, the parties reached a settlement and Cueto signed the Stipulation for Entry of Judgment.  

On October 25, 2019, the Court in BC679057 denied Duran’s ex parte application to enter judgment on the Stipulation, finding the Stipulation for Entry of Judgment not enforceable as it was signed by Cueto without Defendants’ consent.

On December 20, 2019, Plaintiffs Maria Duran and the Gary Rand & Suzanne E. Rand-Lewis PLCs (“Plaintiffs”) filed a Complaint against Defendants 420 Ford Corp., Josefa Cuevas, and La Fama Bakery, stating causes of action for breach of express contract, constructive trust, unjust enrichment, violation of Bus. & Prof. Code sec. 17200, and interference with prospective economic advantage (LASC case no. 19STCV45985).

On January 8, 2020, Plaintiffs filed a Notice of Related Case, seeking to deem case no. 19STCV45985 related with case no. BC679057.

On February 13, 2020, the Court deemed the cases related and the First Case was designated the lead case.

On July 21, 2020, Defendant Josefa Cuevas passed away.

On December 15, 2020, Plaintiffs filed a First Amended Complaint (“FAC”) in 19STCV45985 against Defendants 420 Ford, La Fama Bakery, Josefa Cuevas, and Does 1-100, stating causes of action for breach of contract, constructive trust, and unjust enrichment.

On December 16, 2020, Defendants filed a Motion to Tax Costs in BC679057.

On January 19, 2021, Defendants filed a Demurrer to the FAC.

On April 29, 2021, Plaintiffs filed Oppositions to the Demurrer and Motion to Tax Costs.

On May 5, 2021, Defendants filed Replies in support of the Demurrer and Motion to Tax.

DISCUSSION

As a threshold matter, the Court addresses Plaintiffs’ argument that Defendants are not entitled to demur or move to tax costs because Juan Cuevas’s letters of special administration have expired in Estate of Josefa Cuevas, LASC case no. 20STPB06197. This argument is rejected. On January 8, 2021, the probate court issued letters of special administration to Juan Cuevas “with the special powers specified” in the concurrently-filed Order for Probate. The Order for Probate indicated Juan Cuevas was given special powers of administration "to substitute into . . . 19STCV45985 and BC679057 in place of decedent and act on behalf of the Estate.” Subsequently, on April 15, 2021, the probate court issued an order extending the letters of special administration “until Thursday, October 14, 2021.” The letters would have otherwise expired on that date but were instead extended.

Plaintiffs argue the temporary letters indeed expired on that date notwithstanding the probate court’s order extending the letters “until Thursday, October 14, 2021.”[1] Plaintiffs argue a “minute order permitting them to be extended, does not create operative letters of special administration” because “[l]etters of special administration can only be issued upon a formal filing and that filing must recite the representative’s powers and be affirmed by oath by the representative” under Probate Code sec. 8403. Plaintiffs argue this statute “required [Cuevas] to file new letters of special administration, containing his signed affirmation under oath . . ., to have the new letters issued, and for them to be signed by the Court.” (Opposition, p. 3.)

Simply put, nothing cited by Plaintiffs indicates Cuevas is required to re-execute his oath as special administrator to obtain an extension of existing temporary letters. Section 8403 provides that “[b]efore letters are issued, the personal representative shall take and subscribe an oath to perform, according to law, the duties of the office. The oath may be taken and dated on or after the time the petition for appointment as personal representative is signed, and may be filed with the clerk at any time after the petition is granted.” Cuevas provided this oath in connection with the temporary letters issued January 8, 2021, which were set to expire on April 15, 2021. Contrary to Plaintiffs’ contention, the letters never expired as they were timely extended by the probate court. Cuevas therefore has already complied with Section 8403 and need not reexecute the oath—the letters may be simply extended. The letters were indeed extended and so the Court perceives no issue with Cuevas proceeding in this case.

Demurrer

Procedural Arguments

At the outset, Plaintiffs argue Defendants improperly ask the Court to “go beyond the four corners of the [FAC]” based on “an improper and defective request for judicial notice,” arguing there is “no authority which would permit the Court to take judicial notice of any matter.” (Opposition, p. 5.) In ruling on demurrers, courts “consider matters which may be judicially noticed.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants have requested judicial notice of the Complaint and FAC in 19STCV45985, the October 25, 2019 Order from BC679057, and the August 26, 2020 Order from 19STCV45985. It is well-established that pleadings and rulings are subject to judicial notice as court records and acts, and therefore are properly considered on demurrer. (Evid. Code sec. 452(d).) The Court therefore takes judicial notice of those records and properly considers the October 2019 Order finding the Stipulation unenforceable and the August 2020 Order requiring Plaintiffs to address that Order.

Plaintiffs argue the Demurrer is untimely as it needed to be filed by January 18, 2021—the FAC was served electronically on December 15, 2020 such that any response needed to be filed by January 14, 2021, plus an extension for electronic service by two court days to January 18, 2021 (January 16 and 17 were weekend days). (CCP sec. 1010.6(a)(4)(B).) As Defendants point out, January 18, 2021 was a court holiday, extending the deadline another day to January 19, 2021. The Court finds the Demurrer was timely filed on January 19, 2021. Plaintiffs also argue that Defendants failed to meet and confer—the Court was sufficiently persuaded that a reasonable attempt to meet and confer was made, albeit met with no response. (Supp. Zamora Decl., Exh. 2.) Moreover, the issues raised in this Demurrer had been previously raised without informal resolution—it does not appear likely an informal meet and confer discussion would have remedied the disputes between the parties regarding the enforceability of the Stipulation. The Court therefore turns to the merits.

Substantive Arguments

Defendants demur to the breach of contract and unjust enrichment/constructive trust claims in the FAC. Plaintiffs allege “this case was settled between Plaintiff [Duran] and Defendants, [420 Ford, La Fama Bakery, and Decedent Josefa Cuevas] and their former counsel Victor Cueto on August 6, 2019.” (FAC, para. 10.) Plaintiffs allege “the parties entered into a Stipulation for Entry of Judgment which was signed on August 7, 2019.” (FAC, para. 10.) On October 25, 2019, Judge Fujie in BC679057 declined to enforce the Stipulation, finding Cueto “cannot bind the client” where Defendants “assert[ed] that counsel's signing of the stipulation . . . was not authorized.” Judge Fujie held that “the stipulation is not valid.” On August 26, 2020, Judge Cowan indicated Plaintiffs needed to “explain how their claims are not barred by Judge Fujie’s order finding the stipulation unenforceable” in order to state claims based on the Stipulation for Entry of Judgment.

Defendants argue that the FAC constitutes a collateral attack on Judge Fujie’s October 25, 2019 Order in BC679057 finding the stipulation at issue unenforceable and “not valid.” Plaintiffs argue the FAC is not a collateral attack because the FAC is “based upon the agreement to settle the underlying case, not just the Stipulation for Entry of Judgment.” Plaintiffs also argue the recent amendment to CCP sec. 664.6 requires entry of judgment here where the Stipulation was signed by Defendants’ former counsel, Cueto. (Opposition, p. 5 (referencing amendment to section 664.6 in Stats. 2020, Ch. 290, Sec. 1. (AB 2723))

The former argument is unpersuasive—it is not consistent with Plaintiffs’ later arguments that the breach of contract claim is based only on the written Stipulation for Entry of Judgment. (Opposition, p. 7. (accusing Defendants of “willful ignorance” as to “whether the contract is written or oral,” emphasizing that the FAC “clearly states that ‘the parties entered into a Stipulation for Entry of Judgment which was signed on August 7, 2019.’’”) Defendants argued it was unclear whether the underlying settlement is written or oral—in response, Plaintiffs argued the breach of contract claim was clearly based on the written Stipulation. Significantly, Plaintiffs did not offer any further details regarding the settlement on August 6, 2019—e.g., whether there was an oral or written settlement before the Stipulation which might sustain a breach claim. (Opposition, p. 7; FAC, para. 10.) No facts were provided evincing an agreement to settle besides the Stipulation—which was already deemed invalid and unenforceable in October 2019. Therefore, as the Court previously concluded, Plaintiffs needed to explain how their breach claim could stand based upon an invalid agreement.

Plaintiffs address this issue in the latter argument, arguing the Stipulation is enforceable because it was signed by Defendants’ former counsel—Victor Cueto. Plaintiffs rely on amendments to CCP sec. 664.6 providing that a stipulation is considered “signed by a party” if signed by that party’s attorney, with the condition that an attorney signing without permission is subject to professional discipline. However, Plaintiffs allege the Settlement and Stipulation were entered into in August 2019 (FAC, para. 10) before the amendments to Section 664.6 came into effect on January 1, 2021. Plaintiffs make no argument that the amendments were intended by the Legislature to have retroactive effect; the Stipulation was not “signed by the parties” as that term was defined before the amendments. The subsequent statutory amendments do not indicate Judge Fujie’s October 2019 Order was in error at the time and do not render the Stipulation enforceable absent some evidence of intent that the amendments retroactively apply. The bare assertion that the amendment “is applicable to the stipulation herein” is inadequate.

Therefore, Plaintiffs’ breach of contract claim appears to be based on an invalid written Stipulation. To the extent it is based on a separate settlement entered into before the Stipulation, the FAC contains no facts regarding that settlement. A pleading is subject to demurrer when, “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (CCP sec. 430.10(g); Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98 (“When an action is ‘founded upon a contract,’ the complaint is subject to demurrer if ‘it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.’”); Holcomb v. Wells Fargo Bank N.A. (2007) 155 Cal.App.4th 490, 500-501 (no error in sustaining demurrer with leave to amend where complaint failed to allege facts sufficient to ascertain nature of contract.)) It is wholly unclear from the FAC whether the alleged August 6, 2019 settlement is written or oral—as Defendants point out. Thus, the breach claim fails in either event, as it cannot be based on an invalid contract (the Stipulation) or an inadequately alleged contract (the preceding Settlement). The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the breach of contract claim—Plaintiffs must allege an enforceable agreement.

By extension, the unjust enrichment and constructive trust claim fails as well.[2] “The imposition of a constructive trust requires: (1) the existence of res . . .; (2) the right of the complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1069.) The “res” at issue is the $75,000 settlement payment and Plaintiffs’ claimed “right . . .  to that res” arises out of the Stipulation and Settlement discussed above. (Opposition, p. 7 (“Plaintiffs allege their interest in the agreed upon $75,000.00 settlement funds, their right to those settlement funds, and Defendants’ wrongful detention of the funds.”)) For the reasons discussed above, the Stipulation appears invalid based on judicially noticed matters and the Settlement is inadequately alleged; therefore, the FAC has not alleged facts establishing a “right” to the settlement payments claimed. The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to this claim.

For the foregoing reasons, the Demurrer is SUSTAINED WITH LEAVE TO AMEND as to both claims.

Motion to Tax Costs

Defendants argue Plaintiffs are not entitled to recover costs under CCP sec. 685.070(b) because they accepted full satisfaction of the Judgment before filing a memorandum of costs. (Motion, p. 9-10.) Defendants argue Plaintiffs were required to file an Acknowledgement of Satisfaction of Judgment but failed to do so. (CCP sec. 724.030.) In response, Plaintiffs argue the Judgment was not fully satisfied by the payment of $4,210 as the total amount also included accrued interest of $793.50—which has not yet been paid. Thus, Plaintiffs argue (1) they were not required to file an Acknowledgement of Satisfaction of Judgment and (2) the memorandum of costs was timely filed “[b]efore the judgment is fully satisfied” for purposes of CCP sec. 685.070(b). In their Reply, Defendants “acknowledge that the amount required to satisfy the judgment is ‘the total amount of the judgment as entered,’ plus interest ‘as it accrues pursuant to Sections 685.010 to 685.030 inclusive.’” (Reply, p. 6.)

Satisfaction of Judgment and Accrual of Interest

The issue is therefore whether the judgment based on the January 10, 2019 sanctions order was “fully satisfied” by the payment of $4,210 on November 30, 2020. “If a money judgment is satisfied in full other than pursuant to a writ . . . interest ceases to accrue on the date the judgment is satisfied in full.” (CCP sec. 685.030(b).) A money judgment is satisfied in full on the earliest of the following dates: (1) when satisfaction is actually received by the creditor, (2)  when satisfaction is tendered to, or deposited in court for, the creditor, or (3) upon “any other performance that has the effect of satisfaction.” (CCP sec. 685.030(d).) Under CCP sec. 695.210, the “amount required to satisfy a money judgment is the total amount of the judgment as entered or renewed” with the additions of “costs added to the judgment pursuant to Section 685.090” and “interest added to the judgment as it accrues pursuant to Sections 685.010 to 685.030,” minus partial satisfactions and unenforceable portions of the judgment.

It is not contended here that there were any partial satisfactions before the $4,210 payment on November 30, 2020; it is not contended that the sanctions order is unenforceable. Therefore, the amount due is “the total amount of the judgment as entered” plus “costs” accumulated and “interest  . . . as it accrues” under CCP sec. 685.010 et seq. The Memorandum of Costs filed on November 30, 2020—after receipt of the $4,210 payment—indicated the payment had been credited to $3,416.50 of the principal and $793.50 of the accrued interest, such that there remained a principal balance of $793.50. This was not shown to be in error—the sanctions order was entered on January 10, 2019 and provided that sanctions shall be paid within 30 days. Interest clearly accrued thereon from that date under CCP sec. 685.010(a). “[M]onetary sanction orders are enforceable through the execution of judgment laws” and “have the force and effect of a money judgment.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) As a result, interest began accruing before payment of the principal. Defendants’ payment of the principal alone twenty-two months later therefore did not fully satisfy the judgment under CCP  sec. 695.210, which includes “interest added to the judgment as it accrues.”

A money judgment is satisfied in full on the earliest of the following dates: (1) when satisfaction is actually received by the creditor, (2)  when satisfaction is tendered to, or deposited in court for, the creditor, or (3) upon “any other performance that has the effect of satisfaction.” (CCP sec. 685.030(d).) Under CCP sec. 695.210, the “amount required to satisfy a money judgment is the total amount of the judgment as entered or renewed” with the additions of “costs added to the judgment pursuant to Section 685.090” and “interest added to the judgment as it accrues pursuant to Sections 685.010 to 685.030,” minus partial satisfactions and unenforceable portions of the judgment.

There is no authority for Defendants’ argument that the judgment does not accumulate interest unless and until it is modified to reflect accrued interest, such that an un-updated judgment could be fully satisfied by payment only on the principal. (Motion, p. 8.) Nothing in Sections 685.010 through 685.030—cited by Defendants—support that argument. (CCP sec. 685.010(a) (“Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied”); CCP sec. 685.020(a) (“interest commences to accrue on a money judgment on the date of entry of the judgment”); Newland, supra, 40 Cal.App.4th at 611 (“A monetary sanction is immediately enforceable as a judgment”); CCP sec. 685.030(b) (indicating interest ceases accruing upon satisfaction other than by writ); (CCP  sec. 695.210 (full amount of judgment for satisfaction includes “interest added to the judgment as it accrues.”)) Plaintiffs were entitled to accept the payment on the judgment and credit it to accrued interest first; Mandatory Form MC-012 requires it, providing that “payments received are applied first to the amount of accrued interest, and then to the judgment principal.” Plaintiffs did not provide themselves “credit for an imaginary order it never received from the court,” as Defendants put it. (Motion, p. 10.) It would have been erroneous for Plaintiffs to indicate the judgment was fully satisfied.[3]

Next, Defendants argue it is unfair or unreasonable for Plaintiffs to now claim fees and costs were incurred and interest accrued where they did not mention that in previous discussions, specifically, in the “October 14, 2020 email from Plaintiffs’ counsel; November 10, 2020 Abstract of Judgment; November 11, 2020 Notice of Lien in BD641531; [and] November 12, 2020 Application and Order for Debtor's Examination.” (Motion, p. 9.) Defendants also claim Plaintiffs’ counsel indicated on October 14, 2020 that they would proceed with the judgment debtor examination of Juan Cuevas if payment was not made by close of business. (Zamora Decl., Exh. 1.) Payment was not made by close of business, and on November 19, 2020, Plaintiffs’ counsel “emailed Defense counsel an application and order for a judgment debtors examination” set for December 3, 2020 indicating Defendants owe $4,210. (Motion, p. 11; Zamora Decl., Exh. 4.) Defendants argue it was improper for Plaintiffs to “backtrack[] and insist[] on the exam going forward” after receiving payment of $4,210 on November 30, 2020.

The import of these arguments is unclear, as the accumulation of interest is automatic and the Court is not aware of any authority that accumulated interest is waived by failing to remind the debtor. To the extent Defendants argue Plaintiffs “backtracked” by failing to take the debtor examination off-calendar, this is unsupported by the evidence. Plaintiffs’ counsel informed Defendants’ counsel on October 14, 2020 that “your client owes Plaintiff sanctions in the amount of $4,210.00” and that “[i]f we do not receive payment in this office by Friday close of business[, counsel] will proceed with a debtor's examination of Mr. Cuevas.” (Zamora Decl., Exh. 1.) There is no dispute that payment was not made “by Friday close of business” in October 2020. The subsequent November 19, 2020 communication merely confirmed that Plaintiffs were proceeding with the examination, as they promised they would if payment was not received timely—which it was not. Plaintiffs’ conduct was consistent with their communications.

The Court therefore finds the judgment was not fully satisfied by the belated payment of the principal alone. Plaintiffs therefore were not required to file an Acknowledgment of Satisfaction of Judgment. (CCP sec. 724.030.) The Memorandum of Costs (and request for fees therein) was thus not untimely filed under CCP sec. 685.070(b), as it was filed before satisfaction.

The Court turns to the costs claimed in the Memorandum—$4,500 in attorney’s fees and $129.27 in costs for preparing and issuing the Abstract of Judgment. Under CCP sec. 685.090(a), “[c]osts are added to and become a part of the judgment” either “[u]pon the filing of an order allowing the costs” or upon the filing of an unchallenged memorandum of costs once the time to move to tax costs expires. “The costs added to the judgment pursuant to this section are included in the principal amount of the judgment remaining unsatisfied. (CCP sec. 685.090(b).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.”  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Generally, an item “appear[s] to be proper” if it is expressly authorized by statute. If the items are not expressly authorized by statute and are properly objected to, “they are put in issue and the burden of proof is on the party claiming them as costs.”  (Id.; Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)

Defendants do not challenge the claimed costs of $129.27, but argue Plaintiffs’ claimed attorney’s fees of $4,500 for preparing the Abstract of Judgment are excessive and unreasonable. (Motion, p. 11-12.) Surprisingly, Plaintiffs do not address this argument in their Opposition. It is unclear to the Court how counsel could have reasonably incurred such expenses preparing and issuing the Abstract of Judgment. The Abstract is only two pages, using Mandatory Form EJ-001, and the second page was left entirely blank. As a result, counsel checked a half-dozen boxes (two indicating facts were unknown), inserted the names of Josefa Cuevas and Juan Cuevas, and attached a copy of the January 2019 sanctions order. There is no reason this should reasonably have taken more than one hour and there is no evidence or argument regarding any further time spent issuing or serving the Abstract or any other tasks claimed relating to enforcement of the judgment. Indeed, Plaintiffs’ counsel failed to indicate their claimed hourly rate—a fundamental fact for any claimed attorney’s fees. As a result, the Court concurs that the claimed fees are unreasonable and excessive on their face. The Court taxes $3,600 in claimed attorney’s fees, allowing reduced total costs of $1,029.27 ($900 in attorney’s fees and $129.27 in costs).

CONCLUSION

 

The Demurrer to the FAC in 19STCV45985 is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs shall file a Second Amended Complaint within twenty days of this Order.

The Motion to Tax Costs in BC679057 is GRANTED. The Court allows costs of $1,029.27.

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


[1] Plaintiffs also argue Cuevas “acknowledged that . . . [the letters] expired on April 15, 2021, in his probate status conference report filed April 12, 2021.” The Court takes judicial notice of that relevant court record on its own motion, given Plaintiffs’ reference to its contents. Cuevas indicated “new Letters of Special Administration were issued and set to expire on April 15, 2021”—not that they did in fact expire.

[2] Defendants argue there is no cause of action under California law for unjust enrichment and constructive trust. The latter is a remedy, and the circumstances supporting its imposition are well-established and discussed herein. The nature of unjust enrichment is more complicated—in O’Grady v. Merchant Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, the Court of Appeal noted a split of authorities as to the existence of an independent cause of action for unjust enrichment. The court found the issue “is largely academic because this District has long taken the position that, even if unjust enrichment does not describe an actual cause of action, the term is ‘synonymous with restitution,’ which can be a theory of recovery.” (Id. at 791) “‘[T]here is no particular form of pleading necessary to invoke the doctrine’ of restitution,” and one appellate court “construe[d] [a] purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right of restitution” so that the claim would survive a demurrer. (Id. (latter quote from McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.)) Therefore, while unjust enrichment is not a cause of action per se, this is not dispositive on demurrer if restitution is otherwise available. The FAC does not establish entitlement to restitution—the claimed right to restitution for unjust enrichment arises from the invalid Stipulation and inadequately pleaded Settlement. (FAC, para. 10.)

[3] Defendants argue it would be unreasonable to include "post judgment costs," such as "unawarded attorney fees," in determining the full amount of a judgment for purposes of satisfaction. (Motion, p. 10.) However, this argument is nonresponsive to the accumulation of interest. The judgment was not fully satisfied by the principal payment because interest had accrued in the intervening twenty-two months. (CCP sec. 695.210.) It is not contended that Defendants needed to pay attorney’s fees and costs in order to fully satisfy the judgment.

Case Number: BC679057    Hearing Date: October 08, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Thursday, October 8, 2020

Case Name: Maria Duran, et al. v. 420 Ford Corp., et al.

Case No.: BC679057 (lead case) and 19STCV45985

Motion: Motion to Continue Case Against Personal Representative

Moving Party: Plaintiffs Maria Duran et al.

Responding Party: N/A

Notice: No service on counsel for Personal Representative. 


Ruling: The Motion to Continue Case Against Personal Representative is CONTINUED to November 9, 2020 at 8:30 a.m. for Plaintiffs to effect service of the Motion on David Xavier, counsel for Personal Representative Juan A. Cuevas.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

 

On December 20, 2019, Plaintiffs Maria Duran and the Gary Rand & Suzanne E. Rand-Lewis PLCs (“Plaintiffs”) filed a Complaint against Defendants 420 Ford Corp., Josefa Cuevas, (“Defendants”), and La Fama Bakery, stating causes of action for breach of express contract, constructive trust, unjust enrichment, violation of Bus. & Prof. Code sec. 17200, and interference with prospective economic advantage.

On January 8, 2020, Plaintiffs filed a Notice of Related Case, seeking to deem case no. 19STCV45985 related with an earlier-filed case between the same parties, case no. BC679057 (the “First Case”).

On February 11, 2020, Defendants filed a Demurrer.

On February 13, 2020, the Court deemed the cases related and the First Case was designated the lead case.

On July 21, 2020, Defendant Josefa Cuevas passed away.

On August 24, 2020, Plaintiffs filed an Incorrect Name Amendment substituting Defendant Josefa Cuevas for the Josefa Cuevas Living Trust and Defendants filed a Substitution of Attorney substituting The Zamora Law Firm for Mr. Chad Biggins. Plaintiffs concurrently served creditor’s claims on Juan A. Cuevas, the Personal Representative/Special Administrator of Decedent Josefa Cuevas’s estate.

On August 26, 2020, the Court continued Defendants’ demurrer to September 15, 2020 for Plaintiffs to complete mandatory creditor claim procedures.

On September 2, 2020, the Personal Representative served a notice of rejection of both of the August 24 creditor’s claims. The notices of rejection were executed by David A. Xavier, the attorney representing the Personal Representative.

On September 10, 2020, Plaintiffs filed Motions to Continue Case Against Personal Representative here and in the First Case.

On September 29, 2020, Plaintiffs filed a Notice of Non-Opposition stating that no Oppositions had been filed to the Motions to Continue Case.

DISCUSSION

 

Plaintiffs’ proof of service does not reflect service on David A. Xavier, counsel for the Personal Representative. Plaintiffs only served the Zamora Law Firm, which represents Josefa Cuevas (“via” the Personal Representative) and 420 Ford. However, Mr. Xavier was the attorney that reviewed the creditor’s claims and served the notices of rejection as Plaintiffs completed mandatory creditor claim procedures. Therefore, Mr. Xavier should have been served in addition to the Zamora Law Firm—the outcome of the Motion to Continue depends on completion of the creditor claim process, in which Mr. Xavier represented the Personal Representative.

CONCLUSION

 

In view of the foregoing, the Motion to Continue Case Against Personal Representative is CONTINUED to November 9, 2020 at 8:30 a.m. for Plaintiffs to effect service of the Motion on David A. Xavier, counsel for Personal Representative Juan A. Cuevas.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

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