This case was last updated from Los Angeles County Superior Courts on 06/17/2019 at 21:50:11 (UTC).

ROBIN RUDISILL ET AL VS CALIFORNIA COASTAL COMMISSION ET AL

Case Summary

On 07/11/2017 ROBIN RUDISILL filed an Other - Writ Of Mandamus lawsuit against CALIFORNIA COASTAL COMMISSION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES C. CHALFANT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0185

  • Filing Date:

    07/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAMES C. CHALFANT

 

Party Details

Plaintiffs and Petitioners

MICHALOWSKI KIM

PONCE LYDIA

RUDISILL ROBIN

Defendants and Respondents

LOS ANGELES CITY OF

CALIFORNIA COASTAL COMMISSION

DOES 1 TO 20

Applicants

WILLIAMS CELIA

KERESEY KEVIN

LORD JASON

KERESEY TERI

Interested Parties

424 GRAND BLVD LLC A CALIF LTD LBTY CO

ROES 1 THROUGHT 20 INCLUSIVE

XINGYUN LLC A CA LTD LBTY CO

426 GRAND BLVD LLC A CA LTD LBTY CO

416 GRAND BLVD LLC A CALIF. LTD LBTY CO

422 GRAND BLVD LLC A CALIF LTD LIA CO

Attorney/Law Firm Details

Plaintiff and Interested Party Attorneys

VENSKUS SABRINA

VENSKUS SABRINA DIANE

PERRY ROSARIO ESQ.

POYER AMY CHRISTINE

HOWARD LISA M. LAW OFFICES OF

FREEDMAN DANIEL F

Defendant Attorneys

ROSENFELD JENNIFER WILCOXEN

BROTHERS AMY DEPUTY CITY ATTORNEY

Respondent Attorney

JENNIFER WILCOXEN ROSENFIELD

Other Attorneys

AMY C. POYER

 

Court Documents

NOTICE OF RULING ON PETITIONERS' MOTIONS FOR SANCTIONS AGAINST REAL PARTIES IN INTEREST AND REAL PARTIES IN INTEREST'S SPECIAL MOTIONS TO STRIKE

2/2/2018: NOTICE OF RULING ON PETITIONERS' MOTIONS FOR SANCTIONS AGAINST REAL PARTIES IN INTEREST AND REAL PARTIES IN INTEREST'S SPECIAL MOTIONS TO STRIKE

PROOF OF SERVICE OF REQUESTS FOR DISMISSAL OF PRO SE PETITIONERS

3/1/2018: PROOF OF SERVICE OF REQUESTS FOR DISMISSAL OF PRO SE PETITIONERS

NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

3/29/2018: NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

REQUEST FOR DISMISSAL

4/3/2018: REQUEST FOR DISMISSAL

UNDERTAKING ON APPEAL

4/19/2018: UNDERTAKING ON APPEAL

Minute Order

5/31/2018: Minute Order

CALIFORNIA COASTAL COMMISSION'S ANSWER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE

9/19/2018: CALIFORNIA COASTAL COMMISSION'S ANSWER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE

Minute Order

9/20/2018: Minute Order

Minute Order

11/13/2018: Minute Order

Request for Judicial Notice

4/25/2019: Request for Judicial Notice

Notice

5/3/2019: Notice

Minute Order

5/23/2019: Minute Order

Stipulation and Order

6/5/2019: Stipulation and Order

422 GRAND BLVD LLC AND 424 GRAN BLVD LLC AND 426 GRAND BLVD LLC AND XINGUYN LLC'S OPPOSITION TO SANCTIONS MOTION; DECLARATION OF ROSARIO PERRY

1/18/2018: 422 GRAND BLVD LLC AND 424 GRAN BLVD LLC AND 426 GRAND BLVD LLC AND XINGUYN LLC'S OPPOSITION TO SANCTIONS MOTION; DECLARATION OF ROSARIO PERRY

PETITIONERS' REPLY TO REAL PARTY IN INTEREST, XINGYUN LLC'S OPPOSITION TO SANCTIONS MOTION; MEMORANDUM OF POINTS AND AUTHORITES AND DECLARATION IN SUPPORT THEREOF

1/23/2018: PETITIONERS' REPLY TO REAL PARTY IN INTEREST, XINGYUN LLC'S OPPOSITION TO SANCTIONS MOTION; MEMORANDUM OF POINTS AND AUTHORITES AND DECLARATION IN SUPPORT THEREOF

Minute Order

1/30/2018: Minute Order

DECLARATION OF DUSTIN MILES IN SUPPORT OF XINGYUN LLC'S SPECIAL MOTION TO STRIKE PETITION

12/22/2017: DECLARATION OF DUSTIN MILES IN SUPPORT OF XINGYUN LLC'S SPECIAL MOTION TO STRIKE PETITION

NOTICE OF TRIAL SETTLNG CONFERENCE & ATTACHED ORDERS THEREON

7/18/2017: NOTICE OF TRIAL SETTLNG CONFERENCE & ATTACHED ORDERS THEREON

104 More Documents Available

 

Docket Entries

  • 06/12/2019
  • Brief (- Supplemental Brief of Real Party in Interest 416 Grand Blvd LLC); Filed by 416 GRAND BLVD LLC, A CALIF. LTD LBTY CO (Real Party in Interest)

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  • 06/12/2019
  • Declaration (of Matthew D. Hinks in Support of Proposed Judgment); Filed by 416 GRAND BLVD LLC, A CALIF. LTD LBTY CO (Real Party in Interest)

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  • 06/10/2019
  • Notice (OF ENTRY OF ORDER SETTING HEARING ON OSC RE: JUDGMENT AND WRIT FOR JULY 23, 2019); Filed by Robin Rudisill (Petitioner)

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  • 06/05/2019
  • at 08:20 AM in Department 85, James C. Chalfant, Presiding; Court Order

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  • 06/05/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 06/05/2019
  • Stipulation and Order (STIPULATION AND [PROPOSED] ORDER SETTING HEARING ON OSC RE: JUDGMENT AND WRIT FOR JULY 23, 2019); Filed by Robin Rudisill (Petitioner)

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  • 06/04/2019
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Not Held - Advanced and Vacated

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  • 05/23/2019
  • at 09:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Held

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  • 05/23/2019
  • Other - (Decision on petition for writ of mandate: denied); Filed by Clerk

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  • 05/23/2019
  • Minute Order ( (Hearing on Petition for Writ of Mandate)); Filed by Clerk

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218 More Docket Entries
  • 07/18/2017
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 07/18/2017
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 07/18/2017
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 07/18/2017
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 07/18/2017
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 07/18/2017
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 07/18/2017
  • NOTICE OF TRIAL SETTLNG CONFERENCE & ATTACHED ORDERS THEREON

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  • 07/11/2017
  • Petition; Filed by null

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  • 07/11/2017
  • VERIFIED PETITION FOR WRIT OF MANDATE

    Read MoreRead Less
  • 07/11/2017
  • SUMMONS

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Tentative Rulings

Case Number: BS170185    Hearing Date: June 23, 2020    Dept: 85

Robin Rudisill, et al. v. California Coastal Commission, et al., BS170185

Tentative decision on decision on motion for attorney’s fees: denied

Real Parties Xingyun LLC (“Xingyun”), 422 Grand Blvd LLC (“422 Grand”), 424 Grand Blvd LLC (“424 Grand”), and 426 Grand Blvd LLC (“426 Grand”) move for an award of attorney’s fees on appeal against Petitioner Robin Rudisill (“Rudisill”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner Rudisill and six other Petitioners commenced this proceeding on July 11, 2017. Only Petitioner Rudisill remains in this action. The Petition also named owners of 422, 426, and Xingyun as Real Parties.

In May 2018, Rudisill’s counsel filed the First Amended Petition (“FAP”), which is the operative pleading. The FAP alleges a single cause of action alleging that the Coastal Commission abused its discretion by acting in excess of its jurisdiction in processing the CDP for 416 Grand. The FAP alleges in pertinent part as follows.

Prior to 2014, 416 Grand and 418-422 Grand were improved with residential structures. There were three residential structures consisting of three duplexes which contained a total of six replacement affordable housing units. On June 27, 2013, the Director of Asset Management with the City’s Housing and Community Investment Department (“HCID”) issued a letter to the City Planner and the Department of City Planning (“Planning”) stating that four affordable units exist at 416-418 and 422-424 Grand.

On January 24, 2014, a Coastal Program Analyst issued a “De Minimis” Waiver of CDP authorizing the demolition of the structures at 416-418-422-424 Grand. The Analyst did so in violation of the Mello Act and the City’s Interim Administrative Procedures (“IAP”).

At a March 2014 meeting, the Commission decided to stop issuing De Minimis Waivers and indicated that a CDP would be required for all but the most minor repairs or home improvements.

Los Angeles Department of Building and Safety (“LADBS”) issued a demolition permit for the structures at 416 Grand and 418-422 Grand. Between April 8 and April 24, 2014, Real Parties demolished the two duplex structures. While the structures were being demolished, Real Parties filed CDP applications with Planning for new construction. On December 26, 2014, a City Associate Zoning Administrator (“ZA”) approved two CDP permits for new construction of residences at 416 Grand and 418-22 Grand, respectively. The CDPs did not require the replacement of any of the existing affordable housing units because of a study purporting to show that replacement of the units would be infeasible. Petitioner appealed the ZA’s decision to the West Los Angeles Area Planning Commission (“Planning Commission”).

On February 9, 2015, Planning issued new Mello Act compliance determinations for 416-418 and 422-424 Grand Blvd. On February 18, 2015, Petitioner appealed the new Mello Act compliance determinations.

The Planning Commission held a hearing and on March 4, 2015, the Planning Commission denied Petitioner’ appeals from issuance of the CDPs and Mello Act compliance determinations.

Petitioner and the Commission’s Executive Director appealed to the Commission from the Planning Commission decision for 416 Grand and 418-422 Grand. The Commission found that a substantial issue existed with respect to Chapter 3 Policies of the Coastal Act.

The Commission held a de novo public hearing and decided to deny the two CDPs. At the hearing, the Deputy Director stated it had been a mistake to approve the waiver for the demolition of 416 Grand and 418-422 Grand and cited the failure to obtain a Mello Act approval for the permits.

The Planning Commission heard an appeal of the Mello Act compliance determination for 424 Grand. The Planning Commission agreed that the six properties must be considered together for purposes of enforcing the City’s IAP.

On April 28, 2016, Grand Ave. Lots 10 and 11 were sold to Xingyun for $1.35 million.

Real Parties filed a Petition for Writ of Mandate related to the Commission’s denial of the CDPs. The court remanded the matter to the Commission so that it could act on a revised CDP application. Real Parties applied to the City for new CDPs for the properties. On February 27, 2017, Real Parties withdrew their CDP application for a home at 416 Grand.

On April 14, 2017, the Planning Commission issued a Mello Act compliance determination for 424 Grand.

On April 21, 2017, the Commission issued new staff reports for the de novo CDPs for 416 Grand and 418-422 Grand.

Real Parties subsequently withdrew the de novo CDP application for 418-422 Grand. On April 26, 2017, Commission staff issued an Addendum to the staff report for 416 Grand. On May 12, 2017, the Commission approved the CDP for 416 Grand.

2. Course of Trial Court Proceedings

On January 30, 2018, the court denied Real Parties’ anti-SLAPP motion and granted Rudisill’s motion for sanctions in the amount of $28,795.70. The court ordered the sanctions to be equally divided as follows: $14,397.85 from Real Parties 416 Grand, 422 Grand, and 426 Grand and $14,397.85 from Xingyun.

On July 26, 2018, the court denied Petitioner’s motion to increase the undertaking and denied Real Parties’ request for sanctions. On November 13, 2018, the court denied Petitioner’s motion for reconsideration.

On May 23, 2019, the court denied the Petition. After receiving supplementary briefing regarding the impact of unpublished cases, the court on July 23, 2019 ruled that neither unpublished case applied to alter the denial.

On March 5, 2020, the court granted Petitioner’s motion to tax Real Parties’ costs.

3. The Court of Appeal Decision

In a published opinion, the Court of Appeal reversed the court’s award of sanctions against Real Parties. Rudisill v. California Coastal Commission, (“Rudisill”) (2019) 35 Cal.App.5th 1062, 1076. The court first noted that this court held Real Parties’ anti-SLAPP motion was frivolous in two respects: (a) Rudisill’s Petition contained no claim against Real Parties, and (b) the Petition challenged government decisions rather than petitioning conduct. Id. at 1070-71. The appellate court held that neither of these grounds supports a conclusion that Real Parties’ anti-SLAPP motion was “totally and completely without merit.” Id. (citing CCP §128.5(b)(2)).

In ruling that a reasonable attorney could have concluded that the Petition asserted a claim against Real Parties, the appellate court noted that the Petition necessarily identified Real Parties as having a direct interest in the proceeding and included a claim for attorneys’ fees which could have been awarded against Real Parties if they opposed the lawsuit. Id. at 1072. From these facts, a reasonable attorney could conclude that the Petition asserted claims against Real Parties. Id. at 1073.

The appellate court found it was a “close question” whether a reasonable attorney could believe that the Petition asserted claims against Real Parties arising from their protected conduct. Id. at 1074. The court noted that Real Parties’ petitioning activity was not an element of Rudisill’s mandamus claim against the Coastal Commission. Id. at 1075. The court held that the trial court “was on solid ground” in concluding that the mandamus relief sought by Rudisill against the agencies did not arise from Real Parties’ petitioning conduct. Ibid.

However, any request by Rudisill for attorneys’ fees against Real Parties necessarily would involve a challenge to Real Parties’ petitioning conduct. An attorney’s fee motion would be based on Real Parties’ participation in the litigation and furtherance of an interest that was at least partly responsible for the agency policy or practice that gave rise to the litigation. Ibid. Rudisill alleged that Real Parties furthered such an interest with their separate filing of permits for demolition and new construction. Ibid. Real Parties could reasonably have concluded that the Petition asserted a claim against them protected by the SLAPP statute. Ibid.

Thus, the Rudisill court held that this court abused its discretion in awarding sanctions against Real Parties for filing a frivolous anti-SLAPP motion. In so doing, the court concluded only that there was a reasonable basis for filing the motion; not that the motion had legal merit. Id. at 1072, n.4.

B. Applicable Law

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (“Flannery”) (1998) 61 Cal.App.4th 629, 634.

The courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. A party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–633.

The “significant benefit” necessary for a section 1021.5 fee award need not represent a concrete gain; in some cases a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939; Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.

The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although case law refers to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The financial burden question is whether advancement of the public interest was merely coincidental to attainment of the party’s personal goals. Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees must show that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

C. Statement of Facts

1. Real Parties’ Evidence

In the last four years, the Petitioner Rudisill, has filed at least 17 petitions for writ of administrative mandate. Perry Decl. ¶2. These lawsuits are filed against any persons in Petitioner's neighborhood whom Petitioner believes to be requesting permits to build on their property. Perry Decl. ¶2, Ex. A.

Rudisill’s modus operandi is to sue as real parties-in-interest any person or entity even remotely connected to a given project, regardless of whether that person or entity has an interest in the project, and regardless of whether that person or entity has even filed any of the permit applications which Rudisill is seeking to have overturned. Perry Decl. ¶2.

Rudisill serves the lawsuits on these people and entities with a summons and includes a request for attorney’s fees in the prayer for relief. Perry Decl. ¶2a. The request for attorney's fees is not limited to the respondent government agencies, but also the putative real parties. Perry Decl. ¶2a.

Rudisill has sued as an alleged real party interest a Los Angeles area architect, Robert Thibodeau, the proprietor of DU Architects in Venice, California, for the act of requesting permits on behalf of his homebuilder clients. Perry Decl. ¶3, Ex. B; Coard Decl. ¶3. Rudisill’s legal tactics have the effect of instilling fear in Los Angeles residents who exercise their constitutional right to petition their local government with permit applications. Perry Decl. ¶3.

Rudisill forces legally unsophisticated parties into court to extricate themselves from his lawsuits. Perry Decl. ¶3. Furthering this scheme is Rudisill’s counsel, Sabrina Venskus, Esq. (“Venskus”), of Venskus & Associates. Perry Decl. ¶3. Rudisill files many of these lawsuits “in pro per” so that her inclusion of improper parties as real parties can appear excusable. In reality, Rudisill works closely with counsel in all of her litigations. Perry Decl. ¶3. After the lawsuit is filed and served, Venskus will substitute in as attorney and claim in court that her client was merely ignorant of the law and should not be held to the standard of an attorney. Perry Decl. ¶3.

In the instant case, four of the parties sued as real parties in interest brought an anti-SLAPP motion against Rudisill's Petition. Perry Decl. ¶4. The trial court denied the anti-SLAPP motion and granted Rudisill’s simultaneously heard motion for sanctions against the Real Parties. Perry Decl. ¶4. The real parties posted a bond and took an appeal of the trial court's sanctions order. Perry Decl. ¶4.

The Court of Appeal reversed the trial court's order awarding sanctions and published the case, vindicating an important right on behalf of property owners seeking permits to build on their property: It is not frivolous for improperly named parties sued as real parties in interest to bring anti-SLAPP motions in the administrative mandamus context. Perry Decl. ¶4. Rudisill resisted the appeal at every stage and even filed a motion to dismiss their appeal. Perry Decl. ¶4.

A property search for Rudisill shows that she owns beachfront property on Ocean Front Walk in Venice, California. Perry Decl. ¶5.

Counsel for Real Parties, Steven, Esq. Coard (“Coard”) has a rate of $285 per hour and spent more than 12 hours researching and preparing the opposition to Rudisill’s motion to dismiss Real Parties’ appeal. Perry Decl. ¶6; Coard Decl. ¶2. Coard spent more than 61 hours researching and preparing the opening brief for the appeal, and more than 12 hours researching and preparing the reply brief for the appeal. Perry Decl. ¶6; Coard Decl. ¶2. Coard then spent more than four hours researching and preparing answer to the Rudisill’s petition for review to the California Supreme Court. Perry Decl. ¶6; Coard Decl. ¶2. Coard worked a total of 89 hours, totaling $25,365. Perry Decl. ¶6; Coard Decl. ¶2.

2. Petitioner’s Evidence

Real Parties appealed the sanctions award to protect their own interests in avoiding payment of the award, not to confer a significant benefit on the public. Sanders Decl. ¶2. Real Parties admit this fact in their Answer to Petitioner’s Petition for Review. Sanders Decl. ¶2, Ex. A.

As of February 17, 2020, Rudisill has filed, or has had filed on her behalf, 13 cases since 2010. Rudisill Decl. ¶2.

The first case, filed on February 5, 2019, involved claims of mass tort and relates to Rudisill’s home burning down in the Woolsey fire on November 9, 2018. Rudisill Decl. ¶3. This case was filed together with approximately 100 other cases which seek damages from the Boeing Company and Southern California Edison. Rudisill Decl. ¶3.

The second case, filed on October 10, 2017, was a public interest case against the Coastal Commission filed with two other Venice residents regarding 2318 Clement Ave., Venice, CA 90291. The petitioners dismissed that case. Rudisill Decl. ¶4.

The third case, filed on September 11, 2017, was a public interest case against the Coastal Commission filed with three other Venice residents regarding 605-607 Westminster Ave., Venice, CA 90291. The case was settled and dismissed. Rudisill Decl. ¶5.

The fourth case, filed on August 7, 2017, is a public interest case against the Coastal Commission originally filed with four other Venice residents regarding 2325 Wilson Ave., Venice, CA 90291. Petitioners received a judgment in their favor in the Superior Court. Rudisill Decl. ¶6.

The fifth case, filed on August 7, 2017, was a public interest case against the Coastal Commission filed with four other Venice residents regarding 628 San Juan Ave., Venice CA 90291. Petitioners dismissed the case. Rudisill Decl. ¶7.

The sixth case, filed on July 17, 2017, was a public interest case against the Coastal Commission filed with eight other Venice residents regarding 2100-2106 Narcissus Ct., Venice, CA 90291. Petitioners settled and dismissed the case. Rudisill Decl. ¶8.

The seventh case, filed on July 17, 2017, was a public interest case against the Coastal Commission filed with eight other Venice residents regarding 519-521 Boccaccio Ave., Venice, CA 90291. The case was related by the court to the case concerning 2100-2106 Narcissus Ct. Petitioners settled and dismissed the case. Rudisill Decl. ¶9.

The eighth case, filed on July 11, 2017, was a public interest case against the Coastal Commission originally filed together with six other Venice residents regarding 416 Grand Blvd. Petitioners did not prevail. Rudisill Decl. ¶10.

The ninth case, filed on February 6, 2017. is a public interest case against the Coastal Commission filed with one other Venice resident regarding 742-744-746-748 Brooks Ave., Venice, CA 90291. Petitioners received a judgement in their favor in the Superior Court. Rudisill Decl. ¶11.

The tenth case, filed on September 21, 2015, was a public interest case against the City of Los Angeles filed with five other Venice residents regarding Simmzy's restaurant located at 37 Vashington Blvd., Marina Del Rey, C A 90292. The case was settled and dismissed. Rudisill Decl. ¶12.

The eleventh case, filed on August 28, 2015, was a public interest case against the City of Los Angeles filed with one other Venice resident regarding 217-219-221 Venice Way., Venice, CA 90291. The case was settled and dismissed. Rudisill Decl. ¶13.

The twelfth and thirteenth cases were private restraining order cases in which Rudisill prevailed. Rudisill Decl. ¶14.

D. Analysis

Real Parties seek an award of $19,665[1] in attorney’s fees on appeal pursuant to CCP section 1021.5. Perry Decl. ¶8; Coard Decl. ¶2. Rudisill opposes.

1. Successful Party

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. supra, 34 Cal.4th at 565. The party seeking attorney’s fees need not prevail on all alleged claims to qualify for an award. Harbor v. Deukmejian, supra, 43 Cal.3d at 1103. A party is successful under section 1021.5 if the party succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P., supra, 43 Cal.3d at 1292. Prevailing on an argument does not make a party successful within the meaning of CCP section 1021.5, even if it results in a published opinion that enforces a public right, if the party does not achieve their strategic objective. See Ebbetts Pass Forest Watch v. Dep't of Forestry & Fire Prot., (2010) 187 Cal.App.4th 376.

Real Parties do not directly address this factor, but they imply that they are a successful party because the Court of Appeal reversed the award of sanctions against Real Parties. Mot. at 5.

Rudisill asserts that Real Parties cannot be considered the successful party because they did not achieve their litigation objective. Rudisill relies upon Leiserson v. City of San Diego, (“Leiserson”) (1988) 202 Cal.App.3d 725, 738. Opp. at 5-6.

In Leiserson, a news photographer sued a city for violating his civil rights after he was arrested for filming an airline crash site. Ibid. The court found that Leiserson’s primary goal in the litigation was to advance his own economic interest by obtaining a damage award. Ibid. He did not prevail, but the case resulted in a published decision defining the rights of the media in such situations. Id. at 738. The court denied Leiserson’s request for attorney fees under CCP section 1021.5, concluding that, despite the published opinion clarifying a public right, he was not a successful party because he had not achieved his primary litigation goal of a damage award. Id. at 738.

Real Parties’ situation is dissimilar. First, Real Parties did prevail in this lawsuit, albeit not at the anti-SLAPP stage. Second and more important, a sanctions award is a collateral matter. For this reason, Real Parties seek attorneys’ fees from the appeal, not the entire lawsuit. Although Real Parties did not prevail on their anti-SLAPP motion, they succeeded in obtaining reversal of the sanctions against them. Real Parties achieved their objective in doing so.

Real Parties are a successful party within the meaning of CCP section 1021.5.

2. Important Right Affecting the Public Interest

Generally, “a right need not be constitutional in nature to justify the application of the private attorney general doctrine.” Woodland Hills, supra, 23 Cal.3d at 935. Nor must the important right be confined to a particular area of law. Ibid. At the same time, the public always has a significant interest in seeing that laws are enforced and always derives some benefit when illegal private or public conduct is rectified. Flannery, supra, 61 Cal.App.4th at 635. The Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. Ibid. The court should realistically assess the significance of the right in relationship to the achievement of fundamental legislative goals. Woodland Hills, supra, 23 Cal.3d at 936; see also Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

Real Parties assert that they enforced an important right affecting the public interest because they vindicated the constitutionally protected right to petition the government. Mot. at 6. Real Parties argue that the Court of Appeal held that the act of requesting permits from the local government is an instance of petitioning activity protected by the United States and California Constitutions. Mot. at 6. The Court of Appeal also held that a real party-in-interest in an administrative mandamus case may reasonably avail themselves of the state's anti-SLAPP procedures where the petition for writ of mandate is based on a real party's alleged act of filing permit requests, and where that petitioner has requested attorneys’ fees against all parties. Real Parties assert that, prior to their appeal, there was no reported decision stating if, and under what circumstances, a real party an interest could bring an anti-SLAPP motion in an administrative mandamus lawsuit. Mot. at 6-7.

The court agrees that an appellate holding that a real party-in-interest developer can challenge an administrative mandamus petition through an anti-SLAPP motion would be an important right affecting the public interest.

However, Real Parties state too broadly the appellate court’s holding in Rudisill. The appellate court merely held that Real Parties’ anti-SLAPP motion was not frivolous within the meaning of CCP section 128.5. The court noted that it was a “close question” whether a reasonable attorney could believe that the Petition asserted claims against Real Parties arising from their protected conduct, and that the trial court “was on solid ground” in concluding that the mandamus relief sought by Rudisill against the agencies did not arise from Real Parties’ petitioning conduct, Rudisill’s request for attorneys’ fees against Real Parties necessarily would involve a challenge to Real Parties’ petitioning conduct. That petitioning conduct would consist of Real Parties’ participation in the litigation where they also were at least partly responsible for the agency’s policy or practice by seeing development permits.

Contrary to Real Parties’ argument, the Rudisill decision did not vindicate a real party’s right to use anti-SLAPP motions based on its filing of a permit request or a real party’s right to bring an anti-SLAPP motion in an administrative mandamus lawsuit. The appellate court concluded only that there was a reasonable basis for filing the anti-SLAPP motion – meaning that it was not frivolous -- not that the motion had any legal merit. Id. at 1072, n.4.

No real party could rely on Rudisill as authority for filing an anti-SLAPP motion in an administrative mandamus lawsuit; a real party could only rely on the case for assurance that such a motion may not be frivolous. What important right affecting the public interest was involved in this decision? The only right involved is Real Parties’ right to file a non-frivolous -- but not necessarily meritorious -- anti-SLAPP motion without suffering an award of sanctions. This right is important to Real Parties, but it does not involve the public interest beyond the public’s general desire to see that sanctions are only awarded in justified circumstances.

In reply, Real Parties argue that they had no stake in this litigation and wanted to extricate themselves from a lawsuit in which they were improperly named. Reply at 2. Real Parties misunderstand what it means to be named as a real party-in-interest. They had no obligation to appear and defend the City’s actions. If they did not do so, there is no possibility that attorney’s fees could have been awarded against them. As the Rudisill decision explained, Real Parties could be held responsible for attorneys’ fees only if (a) Real Parties’ participated in the litigation and (b) they were at least partly responsible for the agency’s policy or practice by seeing development permits. Real Parties did not need to file any motion to “extricate themselves” from the lawsuit.

Real Parties have not demonstrated that they enforced an important right affecting the public interest.

3. Significant Benefit Conferred on the Public or a Large Class of Persons

The significant benefit necessary for a section 1021.5 fee award need not represent a concrete gain. In some cases, a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills, supra, 23 Cal.3d at 939. Moreover, the extent of the public benefit need not be great to justify an attorney’s fee award. See, e.g., Protect Our Water v. County of Merced, supra, 130 Cal.App.4th at 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.

The section 1021.5 factors are interrelated; the more fundamental and important the right vindicated, the lower the showing required for the element that a large class of persons benefit. See Press v. Lucky Stores, Inc., (“Press”) (1983) 34 Cal.3d 311, 319. The converse is also true. The less fundamental and important the right vindicated, the higher the showing required for a significant benefit to a large class of persons.

Real Parties assert they have conferred a significant benefit on the public because their successful appeal means that all persons requesting permits in California and all improperly named real parties-in-interest to file anti-SLAPP motions against vexatious litigants. Mot. at 7. Real Parties argue that their appeal will deter future frivolous petitions for writ of mandate. Mot. at 7-8.

For the same reasons that there was no enforcement of an important right affecting the public interest, Real Parties’ argument is not well-taken. No real party could rely on Rudisill as authority that an anti-SLAPP motion in an administrative mandamus lawsuit is warranted, only that it is not frivolous. Rudisill correctly notes that Real Parties’ essentially admitted that only they benefitted from the appellate decision. In their Answer to Rudisill’s Petition for Review in the California Supreme Court, Real Parties admitted that the only issue on appeal was whether their anti-SLAPP motion was frivolous, and contended that the issue raised in the appeal did not present an important question of law. Sanders Decl. ¶2, Ex. A.

While Real Parties claim that the appellate decision will benefit future developers seeking permits who are faced with frivolous litigation, they fail to show how Rudisill does so or that the instant lawsuit was frivolous. To the extent that Real Parties argue that Rudisill is a vexatious litigant who will be deterred from filing further frivolous actions, this assertion is controverted by Rudisill’s evidence demonstrating that the majority of her claims were successful and meritorious. See Rudisill Decl.

Real Parties’ success in overturning their sanctions did not confer a significant benefit on the public or a large class of persons.

4. Necessity and Financial Burden of Private Enforcement

“The necessity of private enforcement looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.” In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1214-15 (internal quotations omitted) (quoting Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1348). In determining the financial burden on the petitioner, courts have focused not only on the costs of the litigation but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.” Whitley, supra, 50 Cal.4th at 1215. This prong evaluates “incentives rather than outcomes.” See id. at 1220. The party seeking attorneys’ fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941.

This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348. The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations. Id.; see Woodland Hills, supra, 23 Cal.3d at 941. The financial burden of private enforcement is met when the cost of the claimant’s legal victory transcends his personal interest. Woodland Hills, supra, 23 Cal.3d at 941.

Neither party directly addresses this factor. It is undisputed that private enforcement was necessary. Real Parties claim that they have met the second prong because they gained nothing monetarily from the litigation and have been drained of financial resources as a result. Mot. at 8.

This argument is spurious. Real Parties obtained a clear financial benefit from overturning the $28,795 in sanctions against them. As Rudisill notes, the fact that Real Parties are requesting $25,365 in attorney fees related to the litigation demonstrates that they saved $3,400 by pursuing the appeal. Opp. at 3. Real Parties have not offered any evidence supporting their claim that the appeal drained their financial resources and fail to demonstrate that the necessity for pursuing the appeal placed a burden on them out of proportion to their stakes in the matter.

Real Parties have shown the necessity, but not the financial burden, of private enforcement.

E. Conclusion

Real Parties’ motion for section 1021.5 attorneys’ fees is denied.


[1] The notice of motion states the amount requested as $19,665. Mot. at 2. The supporting declarations state the amount as $25,365. Real Parties are limited to the amount requested in the noticed motion; the opposing party is not required to ferret through the motion for the amount sought.

Case Number: BS170185    Hearing Date: March 05, 2020    Dept: 85

Robin Rudisill, et al. v. California Coastal Commission, et al., BS170185

Tentative decision on motion to strike/tax costs on appeal: granted in part

Petitioner Robin Rudisill (“Rudisill”) moves to tax the memoranda of costs submitted by Real Parties-in-Interest 422 Grand Blvd. LLC (“422 Grand”), 424 Grand Blvd. LLC (“424 Grand”), 426 Grand Blvd. LLC (“426 Grand”) (collectively, the “Grand Blvd. LLCs”), and Xingyun LLC (“Xingyun”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner Rudisill and six other Petitioners commenced this proceeding on July 11, 2017. Only Petitioner Rudisill remains in this action. The Petition also named owners of 422, 426, and Xingyun as Real Parties.

In May 2018, Rudisill’s counsel filed the First Amended Petition (“FAP”), which is the operative pleading. The FAP alleges a single cause of action alleging that the Coastal Commission abused its discretion by acting in excess of its jurisdiction in processing the CDP for 416 Grand. The FAP alleges in pertinent part as follows.

Prior to 2014, 416 Grand and 418-422 Grand were improved with residential structures. There were three residential structures consisting of three duplexes which contained a total of six replacement affordable housing units. On June 27, 2013, the Director of Asset Management with the City’s Housing and Community Investment Department (“HCID”) issued a letter to the City Planner and the Department of City Planning (“Planning”) stating that four affordable units exist at 416-418 and 422-424 Grand.

On January 24, 2014, a Coastal Program Analyst issued a “De Minimis” Waiver of CDP authorizing the demolition of the structures at 416-418-422-424 Grand. The Analyst did so in violation of the Mello Act and the City’s Interim Administrative Procedures (“IAP”).

At a March 2014 meeting, the Commission decided to stop issuing De Minimis Waivers and indicated that a CDP would be required for all but the most minor repairs or home improvements.

On March 28, 2014, Los Angeles Department of Building and Safety (“LADBS”) issued a demolition permit for the structures at 416 Grand and 418-422 Grand. Between April 8 and April 24, 2014, Real Parties demolished the two duplex structures.

While the structures were being demolished, Real Parties filed CDP applications with Planning for new construction. On December 26, 2014, a City Associate Zoning Administrator (“ZA”) approved two CDP permits for new construction of residences at 416 Grand and 418-22 Grand, respectively. The CDPs did not require the replacement of any of the existing affordable housing units because of a study purporting to show that replacement of the units would be infeasible. Petitioner appealed the ZA’s decision to the West Los Angeles Area Planning Commission (“Planning Commission”).

On February 9, 2015, Planning issued new Mello Act compliance determinations for 416-418 and 422-424 Grand Blvd. On February 18, 2015, Petitioner appealed the new Mello Act compliance determinations.

The Planning Commission held a hearing and on March 4, 2015, the Planning Commission denied Petitioner’ appeals from issuance of the CDPs and Mello Act compliance determinations.

Petitioner and the Commission’s Executive Director appealed to the Commission from the Planning Commission decision for 416 Grand and 418-422 Grand. The Commission found that a substantial issue existed with respect to Chapter 3 Policies of the Coastal Act.

On August 12, 2015, the Commission held a de novo public hearing and decided to deny the two CDPs. At the hearing, the Deputy Director stated it had been a mistake to approve the waiver for the demolition of 416 Grand and 418-422 Grand and cited the failure to obtain a Mello Act approval for the permits.

On November 18, 2015, the Planning Commission heard an appeal of the Mello Act compliance determination for 424 Grand. The Planning Commission agreed that the six properties must be considered together for purposes of enforcing the City’s IAP.

On April 28, 2016, Grand Ave. Lots 10 and 11 were sold to Xingyun for $1.35 million.

Real Parties filed a Petition for Writ of Mandate related to the Commission’s denial of the CDPs. The court remanded the matter to the Commission so that it could act on a revised CDP application. Real Parties applied to the City for new CDPs for the properties. On February 27, 2017, Real Parties withdrew their CDP application for a home at 416 Grand.

On April 14, 2017, the Planning Commission issued a Mello Act compliance determination for 424 Grand.

On April 21, 2017, the Commission issued new staff reports for the de novo CDPs for 416 Grand and 418-422 Grand.

Real Parties subsequently withdrew the de novo CDP application for 418-422 Grand. On April 26, 2017, Commission staff issued an Addendum to the staff report for 416 Grand. On May 12, 2017, the Commission approved the CDP for 416 Grand.

2. Course of Proceedings

On January 30, 2018, the court denied Real Parties’ special motion to strike and granted Rudisill’s motion for sanctions in the amount of $28,795.70. The court ordered the sanctions to be equally divided as follows: $14,397.85 from Real Parties 416 Grand, 422 Grand, and 426 Grand and $14,397.85 from Xingyun.

On July 26, 2018, the court denied Petitioner’s motion to increase the undertaking and denied Real Parties’ request for sanctions. On November 13, 2018, the court denied Petitioner’s motion for reconsideration.

On May 23, 2019, the court denied the petition for writ of mandate. After receiving supplementary briefing regarding the impact of unpublished cases, the court on July 23, 2019 ruled that neither unpublished case applied to alter the denial.

B. Applicable Law

Although the purpose of much civil litigation is to make the injured party “whole,” the traditional common law rule is that the parties must bear their own costs. Davis v. KGO-TV, Inc., (1998) 17 Cal.4th 436, 446. It is, therefore, axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party. Crib Retaining Walls, Inc. v. NBS/Lowry, Inc., (1996) 47 Cal.App.4th 886, 889; Garcia v. Hyster Co., (1994) 28 Cal.App.4th 724, 732; Perko's Enterprises, Inc. v. RRNS Enterprises, (1992) 4 Cal.App.4th 238, 241.

Prejudgment costs allowable under statute shall be claimed and contested in accordance with rules adopted by the Judicial Council. CCP §1034(a). Thus, any notice of motion to strike or to tax costs shall be served and filed 15 days after service of the cost memorandum; if the cost memorandum was served by mail, the period is extended as provided in CCP §1013. CRC 3.1700(b)(1). These time limitations, however, are not jurisdictional, and a trial court has broad discretion in allowing relief from a late filing where there is absence of a showing of prejudice by the opposing party. Hoover Community Hotel Development Corp. V. Thomson, (1995) 168 Cal.App.3d 485. Also, CRC 3.1700(b)(3) allows the parties to agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs.

Unless objection is made to the entire cost memorandum, the motion to strike or tax costs shall refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and shall state why each item is objectionable. CRC 3.1700(b)(2). After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk shall enter the costs on the judgment forthwith. CRC 3.1700(b)(4).

Regarding allowable prejudgment costs, the statutory scheme clearly establishes two mutually exclusive sets of trial preparation expenses – one set which is allowable as a matter of right to the prevailing party [CCP §§1032(b) and 1033.5(a)], and one which is not [CCP §§1033.5(b), 1032(b)] – expenses which do not fit into either of these two categories fall into a special statutory safety net: they may be recovered only at the discretion of the court [§1033.5(c)]. Science Applications Internat. Corp. v. Superior Court, (1995) 39 Cal.App.4th 1095, 1103. CCP §1033.5(a) contains a long list of expenses which are allowable as costs, and includes filing fees, deposition transcripts, models, blowups, exhibits and copies of exhibits if reasonably helpful to the trier of fact. Michell v. Olick, (1996) 49 Cal.App.4th 1194, 1200; Science Applications Internat. Corp., supra, 39 Cal.App.4th at 1102 & fn.7.

Nonetheless, even where a party receiving a favorable judgment is entitled to costs “as of course,” the trial court has broad discretion to disallow unnecessary costs upon a motion to tax. Perko’s Enterprises, Inc., supra, 4 Cal.App.4th 238. It is generally held under CCP §1033.5 and CRC 3.1700 that costs awarded should be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Thon, supra, 29 Cal.App.4th 1546. When items claimed as costs do not appear on their face as proper and necessary and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. Whitney v. Whitney, (1958) 164 Cal.App. 2d 577.

With respect to the concept of “prevailing party,” CCP §1032 defines the term as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, or a defendant who avoids all liability. Great Western Bank v. Converse Consultants, Inc., (1997) 58 Cal.App.4th 609, 612; Childers v. Edwards, (1996) 48 Cal.App.4th 1544, 1548; Coltrain v. Shewalter, (1998) 66 Cal.App.4th 94, 101-102. Nonetheless, CCP §1032(a)(4) provides that when any party recovers other than monetary relief, the “prevailing party” shall be as determined by the court, and under those circumstances, the court in its discretion may allow costs or not. Building Maintenance Services Co. v. AIL Systems, Inc., (1997) 55 Cal.App.4th 1014, 1025.

C. Statement of Facts

1. Petitioner’s Evidence

On October 29, 2019, the office of Rudisill’s counsel, Sabrina Venskus, Esq. (“Venskus”), received paper service copies in the mail of three “memorandum of costs on appeal” -- one for 422 Grand, one for 424 Grand, and one for 426 Grand. Venskus Decl. ¶3. Venskus’s office was never electronically served with any memorandum of costs on appeal, and the proofs of service for those documents do not list an email address for office. Venskus Decl. ¶¶ 3-5, Exs. 1-3.

There is no such entity as 424 Grand and a business search of the California Secretary of State webpage produces no results for that entity. Venskus Decl. ¶¶ 6-7, Exs. 4, 5.

Neither Venskus nor her office ever received a copy of the memorandum of costs on appeal for Xingyun, either by mail, electronically, or otherwise. Venskus Decl. ¶8.

Real Parties’ counsel, Rosario Perry, Esq. (“Perry”), has previously failed to properly serve Venskus’s office with the Notice of Appeal and related documents, despite multiple requests from Venskus to do so. Venskus Decl. ¶9, Exs. 6-7. Venskus has received electronic service of other documents from Perry’s office. Venskus Decl. ¶10, Ex. 8.

Amy Poyer, Esq. (“Poyer”), co-counsel for Rudisill, never received either a mail service copy nor an electronic service copy of any of the memoranda of costs on appeal from Perry's office. Poyer Decl. ¶2.

2. Real Parties’ Evidence

Rudisill filed the Petition on July 11, 2017 when the e-filing procedure did not yet exist. Coard Decl. ¶2. On March 29, 2018, nine months before the e-filing system was implemented, Real Parties took an interlocutory appeal of the trial court's sanction order. Coard Decl. ¶2. The appeal was successful. Coard Decl. ¶2.

On September 17, 2019, remittitur issued more than two years after the Rudisill’s action had originally been filed. Coard Decl. ¶2. An associate at Perry’s office, Steven Coard, Esq. (“Coard”) does not recall Venskus ever sending any correspondence stating that she wanted to be e-served Real Parties' cost bill, and Coard is not aware of any correspondence from Venskus indicating an email address to which e-served documents could be sent. Coard Decl. ¶2.

When Coard emailed documents to Rudisill's counsel in the past, she claimed not to have received them. Coard Decl. ¶2. Venskus was sent a copy of the notice of appeal in the instant case three times and she still claimed not to have received it. Coard Decl. ¶3, Ex. A. Coard provided an electronic copy of the notice of appeal on each occasion that Venskus claimed she had not been served. Coard Decl. ¶3, Ex. A. He eventually provided it to others in Venskus’ office and to her co-counsel for forwarding to Venskus. Coard Decl. ¶3, Ex. A.

Real Parties concede that the court can strike $1,550 in costs from the total, as two appeal fees were included in error by the paralegal who prepared the cost bills. Coard Decl. ¶4. The Register of Actions shows that two $775 fees were paid to the Court of Appeal in Case No. B289179. Coard Decl. ¶4.

3. Reply Evidence

On Wednesday, April 18, 2018 at 1:37 p.m. Racheal Kimball, Esq. (“Kimball”), an associate at Venskus’s firm, received an email from Coard. Kimball Decl. ¶3. At the time, Kimball was a paralegal for Venskus. Kimball Decl. ¶3.

On February 27, 2020, Kimball printed the email directly from her firm Gmail account. Kimball Decl. ¶3, Ex. A. The third page of Exhibit A attached to Coard’s declaration purports to show an email that Kimball was copied on at 1:22 p.m. on April 18, 2018. Kimball Decl. ¶5. Kimball performed an email search for the text of that email and the only result is in the email attached as Exhibit A. Kimball Decl. ¶5. Kimball never received a direct copy of that email and received only the copy that forwarded with Coard's April 18, 2018 email of 1:37 p.m, which does not show to whom it was originally addressed. Kimball Decl. ¶5.

D. Analysis

Real Parties filed four memoranda of costs seeking $775 for each of the Grand Blvd. LLCs and $3,076.57 for Xingyun. Real Parties seek to recover the following costs: (1) a $775 filing fee for each Real Party, (2) $1,336.50 for preparation of clerk’s transcript or appendix for Xingyun, and (3) $965.07 for transmitting, filing, and service for Xingyun.

Rudisill objects to Xingyun’s memorandum of costs on the ground that she was never served with it. She also asserts that two of the three $775 filing fees for the Grand Blvd. LLCs must be stricken because the Notice of Appeal indicates that only one filing fee was paid for all three entities.

1. Memoranda for 422 Grand, 424 Grand, and 426 Grand

Rudisill asserts that the $775 filing fees for two of the three memoranda of costs for Real Parties 422 Grand, 424 Grand, and 426 Grand must be stricken because there is no documentation substantiating the costs and the Notice of Appeal indicates that Real Parties paid only one filing fee for all three entities. Mot. at 3.

Real Parties admit that the memoranda of costs on appeal incorrectly seek reimbursement for four appeal fees when the Court of Appeal only directed that two be paid, one for Xingyun and one for all three of the Grand Blvd LLCs. Opp. at 5-6; Coard Decl. ¶4. Real Parties note that the inclusion of two additional appeal fees was an error and agree that the court should strike $1,550 in costs from the total. Opp. at 6; Coard Decl. ¶4.

Rudisill also argues that 424 Grand Blvd LLC is a non-existent entity and cannot properly claim its costs. Mot at 5-6. This issue is mooted by the fact that each Grand Blvd. LLC’s cost memoranda seeks only appeal filing fees, and they concede that only one filing fee should be permitted for all three Grand Blvd LLCs.

Rudisill also argues that the memoranda of costs for all three Grand Blvd. LLCs must be stricken due to Real Parties’ failure to electronically serve Rudisill’s counsel as required by CRC 2.251 and Local Rule 3.4. Mot. at 4.

Pursuant to the operative General Order re Mandatory Electronic Filing for Civil, represented parties in civil actions must file documents electronically, unless the court exempts parties from doing so. The electronic filing of documents must be effected using an approved electronic service provider. Local Rule 3.4.

Real Parties acknowledge that they only served the cost memoranda by mail, but they contend that this fact does not justify striking the memoranda. Real Parties note that the e-filing procedure did not exist at the time the action commenced, and while it existed when the cost memoranda were served, they previously had problems with Venskus claiming that she had not received the notice of appeal by email. Opp. at 2.

Real Parties’ argument does not excuse the failure to comply with e-service requirements. Nonetheless, Rudisill does not show any prejudice as a result of not being electronically served. Her counsel received the mail service on October 29, 2019. Venskus Decl. ¶3. Rudisill cites no authority stating that a failure to provide electronic service requires the striking of costs.

Two of the memoranda for the Grand Blvd. LLCs are stricken for a total of $1,550.

2. Xingyun

Rudisill asserts that Xingyun’s memorandum of costs must be stricken in its entirety because Real Parties failed to serve either of Rudisill’s counsel at all. Mot. at 6.

While a proof of service creates a presumption that service was made and that service was complete at the time of the deposit in the post office (or electronically), that presumption is rebutted by evidence showing that the proof of service is false or fraudulent. Caldwell v. Geldreich, (1955) 137 Cal.App.2d 78, 79-82; Miller v. Cortese, (1955) 136 Cal.App.2d 47, 48; McKeon v. Sambrano, (1927) 200 Cal. 739, 741.

Rudisill asserts that she has provided sufficient evidence to overcome the presumption of service. Mot. at 5; Reply at 2. Her counsel, Venskus and Poyer, both provide declarations stating that they never received Xingyun’s memorandum at their separate office mailing addresses or by email. Venskus Decl. ¶8; Poyer Decl. ¶2. Rudisill also asserts that Perry’s office previously failed to serve the notice of appeal and made false statements of electronic service on the proofs of service, which demonstrates that the proof of service for Xingyun’s memorandum is also likely false. Mot. at 5; Reply at 2-3.

Rudisill’s example of Perry’s failure to serve the notice of appeal is controverted by Real Parties’ evidence, which demonstrates that on each of the three occasions in which Venskus emailed Perry’s office claiming that she had not been served, Coard attached the document in his response to her emails. Coard Decl. Ex. A. Coard ultimately sent the email to Poyer and Venskus’ paralegal. While Venskus disputes that she received one of the emails (see Kimball Decl. ¶5), the evidence does not support Rudisill’s claim that Real Parties have a history of failing to effect service and making false statements on their proofs of service.[2]

As discussed ante, the court will not strike a memorandum because it was not served in the manner required. However, the court will strike a memorandum that was not served at all. The proof of service for the Xingyun memorandum of costs states that it was served on both Venskus and Poyer by both mail and electronic service. Yet, both Venskus and Poyer contend that they never received the Xingyun cost memorandum by mail or email. Venskus Decl. ¶8; Poyer Decl. ¶2. Rudisill’s counsel discovered the Xingyun memorandum only inadvertently. Venskus Decl. ¶8.

Real Parties’ evidence does not explain how both attorneys could fail to receive both forms of purported service. Even though Coard signed the proof of service, his declaration does not reassert that he served both Rudisill attorneys by mail or provide any email history to show that he served them by email.

The motion to strike Xingyun’s memorandum of costs is granted.

D. Conclusion

The motion to tax costs is granted in the amount of $1,550 for two of the erroneously filed memoranda for the Grand Blvd. LLCs. The motion to strike Xingyun’s memorandum of costs is granted.


[1] Both parties failed to lodge a courtesy copy of their briefs in violation of the Presiding Judge’s General Order Re: Mandatory Electronic Filing. Both counsel are admonished to provide courtesy copies for all future filings.

[2] Coard’s declaration refers to a single notice of appeal, but there were two notices of appeal: one by the Grand Blvd. LLCs and one by Xingyun. See Venskus Decl. Ex. 7. This does suggest a lack of precision and/or attention to detail.