Not Classified By Court
Personal Injury - Other Personal Injury
BENNY C. OSORIO
PREFERRED AUTO BODY SHOP LLC
BRACAMONTES MICHAEL ROBERT
BRACAMONTES & VLASAK P.C.
MCREYNOLDS CHRISTOPHER ROBERT
9/23/2019: Judgment - JUDGMENT JUDGMENT
10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: OSC-FAILURE TO FILE PROOF OF SERV
10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: COMPLAINT FILED-SUMMONS ISSUED
10/24/2017: Civil Case Cover Sheet
10/24/2017: Notice of Case Management Conference
11/22/2017: Proof of Service (not Summons and Complaint)
12/11/2017: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION
12/11/2017: Notice - CIVIL DEPOSIT
1/10/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF HEARING ON DEMURRER
2/26/2018: Proof of Service (not Summons and Complaint)
2/26/2018: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION
2/26/2018: Request for Judicial Notice
3/2/2018: Legacy Document - LEGACY DOCUMENT TYPE: REPLY
3/7/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
3/9/2018: Case Management Statement
3/9/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE
DocketJudgment (- Court Finding - After Court Trial - 09/23/2019 entered for Cross-Complainant Preferred Auto Body Shop, LLC against Cross-Defendant Douglas Davis.); Filed by Clerk[+] Read More [-] Read Less
DocketJudgment (Judgment); Filed by Preferred Auto Body Shop, LLC (Defendant)[+] Read More [-] Read Less
DocketJudgment (- Court Finding - After Court Trial - 09/23/2019 entered for Plaintiff Arreguin, Raelene against Defendant Preferred Auto Body Shop, LLC.); Filed by Clerk[+] Read More [-] Read Less
DocketJudgment; Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
Docketat 10:59 AM in Department B; Court Order[+] Read More [-] Read Less
Docketat 08:06 AM in Department B; Ruling on Submitted Matter[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Court Order) of 08/28/2019); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ( (Court Order)); Filed by Clerk[+] Read More [-] Read Less
Docketat 09:30 AM in Department B; Non-Jury Trial - Held - Taken under Submission[+] Read More [-] Read Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Hearing on Demurrer; Filed by Preferred Auto Body Shop, LLC (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department B; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Advanced and Vacated[+] Read More [-] Read Less
DocketCivil Deposit; Filed by Preferred Auto Body Shop, LLC (Defendant)[+] Read More [-] Read Less
DocketDeclaration; Filed by Preferred Auto Body Shop, LLC (Defendant)[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
DocketOSC-Failure to File Proof of Serv; Filed by Court[+] Read More [-] Read Less
DocketSummons; Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued; Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Raelene Arreguin (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Court[+] Read More [-] Read Less
Case Number: ****7509 Hearing Date: October 02, 2020 Dept: NCB
North Central District
preferred auto body shop, llc,
Case No.: ****7509
Hearing Date: October 2, 2020
[TENTATIVE] order RE:
motion to be relieved as counsel
Defense counsel, C.R. McReynolds, Esq. (“Counsel”), moves to be relieved as counsel for Defendant Preferred Auto Body Shop, LLC (“Defendant”).
Counsel filed this instant motion to be relieved as counsel on July 31, 2020. Counsel has filed the requisite forms pursuant to CRC Rule 3.1362.
According to the declaration of Counsel, Counsel seeks to be relieved as counsel because the representation agreement between Defendant and Counsel provides for representation up until the entry of judgment, and does not include representation on appeal or any collection efforts following the entry of judgment. (MC-052, ;2.) Counsel states that he has informed Defendant of this and has requested Defendant to agree to substitute another attorney, but Defendant has failed to retain new counsel or to execute a new representation agreement with current Counsel. For these reasons, Counsel seeks to withdraw from representing Defendant in this action.
Counsel properly served Defendant at its last known mailing address, which was confirmed by telephone within the past 30 days of filing the motion. Plaintiff’s counsel was also served with the motion by mail and e-mail.
There are no future hearing dates set for this case.
Accordingly, the motion to be relieved as counsel is granted. The order electronically lodged by Counsel will be signed at the hearing. The order will become effective upon the filing of a proof of service of a signed copy of the order on Defendant.
The Court notes that Defendant is a corporate entity and cannot represent itself in propia persona. (See Rogers v. Municipal Court (1988) 197 Cal.App.3d 1314, 1318.) To the extent that Defendant seeks to pursue this action any further, Defendant must first obtain counsel.
Notice to be provided by Counsel.
Case Number: ****7509 Hearing Date: December 06, 2019 Dept: NCB
North Central District
preferred auto body shop, llc,
Case No.: ****7509
Hearing Date: December 6, 2019
[TENTATIVE] order RE:
motion for attorney’s fees;
motion to strike or tax costs
Allegations of Complaint
In this action, Plaintiff Raelene Arreguin (“Plaintiff”) alleges that Defendant Preferred Auto Body Shop, LLC (“Defendant”) wrongfully possessed her 2013 Ford Fusion sometime in February 2017 and refused to release it to her.
The third amended complaint (“TAC”), filed November 13, 2018, alleges causes of action for: (1) intentional tort–conversion; (2) intentional tort–trespass to chattels; and (3) violation of Consumers Legal Remedies Act (Civil Code, ;1750 et seq.; “CLRA”).
On August 27, 2019, the matter came for a non-jury trial. The Court took the matter under submission.
On August 28, 2019, the Court issued an order, finding that Plaintiff shall recover $7,500 on her complaint against Defendant representing actual damages of $5,000 and punitive damages in the amount of $2,500, and finding that Plaintiff is the prevailing party and shall recover costs against Defendant, including prejudgment interest on the actual damages of $5,000 from May 5, 2017 at 7%, and to post-judgment interest on the entire amount at the legal rate. The Court found that Defendant takes nothing on the cross-complaint against Plaintiff, and that Plaintiff is the prevailing party on the cross-complaint and may recover her costs thereto. The Court found that Defendant shall recover $5,000 on its cross-complaint against Douglas Davis and that Defendant is the prevailing party on its cross-complaint against Mr. Davis and entitled to its costs against him, but not entitled to prejudgment interest. Defendant will be entitled to post-judgment interest at the legal rate from the date it satisfies Plaintiff’s judgment against it.
On September 23, 2019, the Court signed the form judgment in favor of Plaintiff against Defendant on the complaint for $12,475.29 (i.e., $7,500 damages + $787.32 prejudgment interest at 7%, attorney’s fees TBD, $4,175.65 costs, and $12.32 post-judgment interest). The Court also signed the form judgment in Defendant’s favor against cross-defendant Douglas Davis in the amount of $5,119.65 (i.e., $5,000.00 damages and $119.65 costs).
Motions on Calendar
On October 9, 2019, Plaintiff filed a motion for attorney’s fees against Defendant. On November 21, 2019, Defendant filed an opposition to the motion for attorney’s fees.
On October 28, 2019, Defendant filed a motion to strike or tax costs claimed by Plaintiff. On November 21, 2019, Plaintiff filed an opposition to the motion to tax costs.
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
Plaintiff requests judicial notice of: (1) Defendant’s cross-complaint; (2) the Court’s August 28, 2019 order; and (3) the U.S. Department of Justice, Bureau of Justice Statistics, Special Report. The request is granted. (Evid. Code, ;452(c)-(d).)
CCP ;1032 states that costs are available as a matter of right to the prevailing party. An allowable cost includes attorney’s fees when authorized by contract, statute, or law. (CCP ;1033.5(a)(10).)
There is no dispute that Plaintiff is the prevailing party, as the Court’s minute order clearly reflects Plaintiff as the prevailing party on the complaint against Defendant.
Plaintiff seeks attorney’s fees: (a) totaling $37,312.50 against Defendant only or (b) alternatively, $15,299.50 (which includes $1,700.00 for drafting the CCP ;128.7 motion and $13,599.50 for trial) against Defendant and its counsel, C.R. McReynolds, jointly and severally, plus any other fees and costs spent through trial. Plaintiff seeks fees on 4 grounds: (1) pursuant to Civil Code, ;3336; (2) pursuant to CCP ;2033.420 for Defendant’s responses to requests for admissions (“RFA”); (3) under CCP ;1021.5; and/or (4) for attorney’s fees as sanctions on Defendant’s cross-complaint.
Civil Code, ;3336
Civil Code, ;3336 states: “The detriment caused by the wrongful conversion of personal property is presumed to be: [¶] First--The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and [¶] Second--A fair compensation for the time and money properly expended in pursuit of the property.” (Emphasis added.)
Plaintiff argues that she is entitled to the entirety of her attorney’s fees and costs of $37,312.50 because the award is authorized by statute pursuant to Civil Code, ;3336. She argues that because she prevailed on her conversion claim and obtained punitive damages against Defendant, she should be awarded the attorney’s fees and costs she incurred in pursuit of her wrongfully converted property.
However, the Court does not find that section 3336 provides a statutory basis for the collection of attorney’s fees. “Section 3336 of the Civil Code, which sets out the measure of damages in conversion actions, does not expressly provide for attorneys' fees for the converting of property. It has long been held that such fees are not within the rule of damages provided for by that section….” (Haines v. Parra (1987) 193 Cal.App.3d 1553, 1559; Russell v. United Pac. Ins. Co. (1963) 214 Cal.App.2d 78, 91 [“The general rule is that attorneys' fees are not a proper item of recovery from the adverse party, either as costs, damages or otherwise, unless there is express statutory authority or contractual liability therefor [citations] Section 3336 of the Civil Code, which sets out the measure of damages in conversion actions, does not expressly provide for attorneys' fees for the converting of property. It has long been held that such fees are not within the rule of damages provided for by that section….”].)
Thus, attorney’s fees will not be awarded to Plaintiff under Civil Code, ;3336.
CCP ;2033.420 states:
(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
(b) The court unless it finds any of the following:
(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.
(2) The admission sought was of no substantial importance.
(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.
(4) There was other good reason for the failure to admit.
During discovery, Defendant responded to RFA, set one, Nos. 1-3, 5, 6, 8, and 9 on May 25, 2018, such that Defendant denied that Plaintiff never provided permission or consent for Defendant to retain her vehicle, make repairs to the vehicle, and endorse checks made out to Plaintiff and/or Defendant without Plaintiff’s consent; denied that it performed repairs without her authorization; and denied that Plaintiff had a right to possess the vehicle at the time Defendant began repairs. (See Mot. at pp.1-2.)
Plaintiff argues that Defendant denied that it had endorsed checks that were made out to Plaintiff, but Defendant’s owner testified on the stand that he signed Plaintiff’s signature on 2 different checks. (Mot. at p.4.) Plaintiff also argues that despite Plaintiff having informed Defendant that Plaintiff and cross-defendant Douglas Davis had been divorced since 2015 (based on a copy of the Judgment of Dissolution of Marriage), Defendant claimed that Mr. Davis (as Plaintiff’s legal spouse) was authorized to enter into a contract binding both members of the community and refused to admit that it did not have Plaintiff’s consent to work on the car.
However, the Court notes that Defendant’s RFA responses were provided on May 25, 2018, which was a year before: (a) Defendant filed a cross-complaint (filed April 19, 2019) and (b) Plaintiff informed Defendant on May 21, 2019 that Plaintiff and Mr. Davis had been divorced since 2015. Thus, to the extent that Defendant denied the RFAs upon the discovery/evidence that it had in 2018, it is plausibly reasonable that Defendant denied the RFAs, even if some of the RFAs ultimately were disproved later in the litigation. In opposition, Defendant also argues that its RFA responses on May 25, 2018 were done with a good faith belief that Mr. Davis’s authorization would be binding on Plaintiff because Mr. Davis represented to Defendant that he was the owner of the vehicle, which was also recognized by the third-party insurance carrier. Moreover, Mr. Davis resided with Plaintiff and held himself as the spouse of Plaintiff. (Opp. at p.3.) Defendant argues that based on these claims, its position was plausible, even if it was ultimately proven wrong at trial.
Also, as pointed out by Defendant, the Court does not find that Plaintiff has met her burden pursuant to CCP ;2033.420(a), showing what reasonable expenses were incurred in proving the truth of the denied RFAs. Thus, attorney’s fees will not be awarded on this basis.
CCP ;1021.5 states:
Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.
Plaintiff argues that her lawsuit resulted in the enforcement of an important right concerning the public interest because Defendant runs an autobody shop where it interacts with the public, has the opportunity to assert mechanic’s liens, and has a business on Lankersheim Boulevard and is heavily trafficked. The Court does not find that this lawsuit resulted in the enforcement of an important right affecting the public interest or that a significant benefit was conferred on the general public or large class of persons. Rather, this is a lawsuit between two specific individuals for a particular transaction that occurred between them.
The Court also does not find that the interest of justice would require the imposition of attorney’s fees based on CCP ;1021.5 against Defendant.
Thus, the Court does not find that CCP ;1021.5 applies to provide a statutory basis for attorney’s fees in favor of Plaintiff.
Plaintiff’s Sanctions Motion and Defendant’s Cross-Complaint
Finally, Plaintiff argues that she is entitled to attorney’s fees because Plaintiff served on Defendant a CCP ; 128.7 sanctions motions on the cross-complaint on June 17, 2019. (Bracamontes Decl., ¶4, Ex. 1 [Proof of Service].) However, the Court’s records do not reflect that the sanctions motion was ever filed with the Court or that it was even heard.
To the extent Plaintiff sought monetary reimbursement from Defendant on any frivolous claim that Mr. Davis and Plaintiff were married (which was the basis of the sanctions motion), Plaintiff should have gone forth with the sanctions motion and recovered monetary sanctions against Defendant upon a Court determination that Defendant’s cross-complaint was frivolous. However, as stated above, it does not appear that the sanctions motion was ever filed or heard by the Court, such that no determination was made.
Finally, it is also unclear how Plaintiff’s service of a sanctions motion could act as a basis for attorney’s fees under law, contract, or statute pursuant to CCP ;1033.5(a)(10).
For the reasons stated above, the Court does not find that Plaintiff has shown her entitlement to recover attorney’s fees as the prevailing party, whether under contract, law, or statute. Thus, the motion for attorney’s fees is denied.
DEFENDANT’S MOTION TO STRIKE OR TAX COSTS
Plaintiff’s Memorandum of Costs
The signed judgment reflects that Plaintiff is entitled to costs in the amount of $4,175.65.
On October 9, 2019, Plaintiff filed a memorandum of costs requesting the following costs:
Item 1 Filing and Motion Fees: $495.00
Item 2 Jury Fees: $150.00
Item 5 Service of Process $125.00
Item 14 Fees for Electronic Filing or Service: $15.50
Item 16 Other: $5,530.97
Request for Judicial Notice
Plaintiff requests judicial notice of her SAC and the signed judgment. The request is granted. (Evid. Code, ;452(d).)
Merits of Motion to Strike/Tax Costs
As an initial matter, Defendant argues that because the ultimate judgment awarded to Plaintiff in this case was $7,500 (i.e., lower than the jurisdictional limit for a small claims case pursuant to CCP ;116.221), the Court has discretion to deny costs outright pursuant to CCP ;1033.
The Court declines to rely on CCP ;1033 to deny Plaintiff’s requested costs outright, thus denies the motion to strike the entirety of costs. Rather, the Court will proceed with the merits of the motion and whether the costs requested were reasonable and necessary to the conduct of the litigation.
Filing and Motion Fees
CCP ;1033.5(a)(1) classifies filing, motion, and jury fees as allowable costs under section 1032.
Defendant argues that the filing and motion fees of $495 should be denied outright because the Court has discretion to deny such costs when such fees would only have been $75 in a small claims court. As discussed above, the Court declines to rely on CCP ;1033. Rather, as shown by Plaintiff, the fees are recoverable and are supported by evidence. (Bracamontes Decl., Ex. A.)
Thus, the motion to tax Item 1 costs is denied.
CCP ;1033.5(a)(1) classifies jury fees as allowable costs under section 1032.
Plaintiff paid $150 in jury fees in March 2018. (Bracamontes Decl., ¶7, Exs. B, E.)
Plaintiff argues that she initially paid jury fees with the intention of pursuing her case with a jury and thus incurred this cost in preparation for trial. Defendant argues that this cost should not be recoverable because both parties ultimately waived a jury and the matter proceeded as a bench trial.
Nevertheless, jury fees are an allowable cost. Even if the matter did not ultimately result in a jury trial, the Court will allow the recovery of jury fees. The motion to tax costs as to Item 2 is denied.
Service of Process Fees and Fees for Electronic Filing or Service
“Service of process by a public officer, registered process server, or other means” is an allowable cost under CCP ;1033.5(a)(4). CCP ;1033.5(a)(14) states that an allowable cost includes “[f]ees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”
Defendant requests that the Court exercise its discretion to tax these costs for the same reasons stated above. As discussed above, the Court declines to do so.
Plaintiff has shown that the service of process costs were reasonable and has attached an invoice thereto. (Bracamontes Decl., Ex. C.) The motion is denied as to Item 5.
Plaintiff seeks $15.50 for Item 14 for e-filing an answer to Defendant’s cross-complaint and her trial brief for $7.75 each. (See Costs Memo.) The charges appear reasonable necessary to the conduct of the litigation and are reasonable in amount.
The motion to tax costs as to Items 5 and 14 is denied.
Plaintiff seeks costs in Item 16 (“Other”) for: (1) background investigation and file setup at $125.00; (2) copies at $196.80; (3) postage at $116.96; (4) messenger/process server at $2,631.67; (5) travel at $666.54; (6) CourtCall at $344.00; and (7) court reporter for trial at $1,450.00.
It is unclear what the background investigation and file setup costs include and why they were incurred. The Court notes that Plaintiff’s opposition papers do not address this $125.00 cost. Thus, the motion is granted as to this $125.00 cost.
The Court notes that Plaintiff does not discuss the copies and postage charges in the opposition brief. Further, postage and photocopying charges are not allowable costs unless authorized by law. (CCP ;1033.5(b)(3).) Thus, the motion is granted as to the $196.80 copies cost and $116.96 postage costs.
CCP ;1033.5 does not expressly provide for messenger fees ($2,631.67), but items not mentioned in the section may be allowed upon the court’s discretion. (CCP ;1033.5(c)(4).) In her opposition brief, Plaintiff argues that the costs were reasonably necessary for trial preparation because Defendant’s tactics in filing demurrers forced Plaintiff to incur more fees and costs. Also, Plaintiff’s counsel provides invoices of the costs incurred. (See Bracamontes Decl., ¶6, Ex. D.) The motion is denied as to the $2,631.67 costs.
Next, Plaintiff seeks travel costs in the amount of $666.54 for flights from Oakland to Burbank, and back for Mr. Bracamontes (Plaintiff’s counsel). This is not a delineated cost under CCP ;1033.5. However, Plaintiff explains this is the cost incurred by Plaintiff’s counsel to attend the bench trial. (See Bracamontes Decl., Ex. D.) The Court finds that the cost was reasonably necessary for the conduct of the litigation and reasonable in amount. Thus, the motion to tax this cost is denied.
Plaintiff seeks CourtCall costs ($344.00), which is also not a delineated cost under CCP ;1033.5. Nevertheless, the Court finds that this cost was reasonably necessary for Plaintiff’s counsel to participate at hearings without having to incur the extra costs associated with travel from the Bay Area. Thus, the motion to tax this cost is denied.
Finally, Plaintiff seeks court reporter fees for trial ($1,450.00). CCP ;1033.5(a)(11) classifies court reporter fees as established by statute as allowable costs. Although Plaintiff has not stated upon which statute she is relying for the recovery of court reporter fees, the Court will exercise its discretion to allow the recovery of such fees. (See CCP ;1033.5(c)(4).) Thus, the motion to tax this cost is denied.
The Court grants in part and denies in part Defendant’s motion to tax costs such that the following amounts will be awarded to Plaintiff as costs:
Item 1 Filing and Motion Fees: $495.00
Item 2 Jury Fees: $150
Item 5 Service of Process $125.00
Item 14 Fees for Electronic Filing or Service: $15.50
Item 16 Other: $5.092.21 ($5,530.97 requested cost reduced by $125 investigation/setup costs, $196.80 copy costs, and $116.96 postage costs)
Despite the calculated amount above, the Court will limit the costs requested by Plaintiff to $4,175.65, which was the amount requested by Plaintiff in the signed judgment. This was the represented amount of costs that Plaintiff states she incurred, which the Court signed into judgment. Further, the Court will not amend the judgment as already entered to increase the amount of costs. Thus, the motion to tax costs is granted in part and denied in part, such that the total costs that Plaintiff shall be entitled to is $4,175.65 total.
CONCLUSION AND ORDER
Plaintiff’s motion for attorney’s fees is denied.
Defendant’s motion to strike/tax Plaintiff’s requested costs is granted in part and denied in part such that Plaintiff is entitled to recover $4,175.65 in total costs.
Defendant is ordered to provide notice of this ruling.
Get Deeper Insights on Court Cases