Motion to Set Aside Orders
3 Shurtleff v. Defendants Werner Co. and Home Depot, U.S.A., Inc.’s motion to Home Depot admit counsel Don Swaim pro hac vice is GRANTED. U.S.A., Inc. Counsel has submitted a verified application that substantially complies with the requirements of California Rules of Court, rule 9.40.
Counsel for Defendants is ordered to give notice of this ruling.
4 Kadosh vs. Plaintiff Briana L. Kadosh’s (“Plaintiff”) Motion for Attorney Fees and General Costs (“Motion”) is GRANTED. Motors, LLC Plaintiff is the prevailing party in this action after settling defendant General Motors, LLC (Defendant). Pursuant to Civil Code section 1794, subdivisions (d) and (e), as the prevailing party on a lemon law matter, Plaintiff is entitled to recover reasonable attorney fees. (Serrano v. Priest (1977) 20 Cal. 3d 25, 49; Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 998.) Plaintiff’s counsel requests $24,517.50 in attorney fees.
The court, having reviewed the billing entries provided by Plaintiff’s counsel, finds the $525/hr. is reasonable. The hours billed are slightly excessive. Given how uncomplicated this matter was and how little was filed with the court, the court finds a reasonable number of hours to be 42.4. (PCLM Group, Inc. vs. Drexler (2000) 22 Cal.4th 1084, 1094-96.) The total attorney fee award is: $525/hr. x 42.4 hrs. = $22,260.
The request for costs totaling $3,911.44 is granted. As Plaintiff produced signed memorandum of costs, it falls on Defendant to show the costs were not reasonable. (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131.) Defendant only objected to electronic filing fees and deposition transcription costs, both which are recoverable, without producing any evidence those costs were not properly incurred. As such, Defendant did not meet its burden and the court awards Plaintiff the full $3,911.44.
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The total sum of attorney fees and costs awarded to Plaintiff against Defendant is: $22,260 + $3,911.44 = $26,171.
Plaintiff to give notice.
5 Alternative The Motion to Set Aside Orders, etc. filed on 5/4/26 by Judgment Payments Debtors Brian Horowitz and Heather Smulson (“Debtors”) is International, DENIED. LLC v. Creative A registered process server's declaration of service establishes a Outdoor presumption that the facts stated in the return are true. (Ev. Code Distributors §647.) Judgment Creditor Alternative Payments International, LLC USA, Inc. (“Creditor”) has submitted proofs of service from a registered process server, asserting that personal service was effectuated on both Debtors on 10/24/25, for the Application and Order for Appearance and Examination for each, and again on 4/8/26, for the Notice of Ruling. (ROAs 161, 163, 170, 172, 176, 178, 229, 231, and 235.)
Debtors assert here that they were not in fact personally served on either occasion. (See ROAs 181, 183, 205 and 207.) But they have failed to meaningfully respond to the declarations from the server, as reflected in ROAs 229 and 231, providing a physical description of each Debtor and stating the circumstances of the 4/8/26 service. The Motion thus fails to show that the requested relief is warranted here.
Counsel for Creditor is to give notice of this ruling.
6 Auto Buyline Defendant GB Auctions, Inc.’s (“Defendant”) Motion for Stay is Systems, Inc. DENIED. vs. GB Auctions, Inc. The court first notes Defendant failed to provide any statute or code which permits the requested relief and the Motion may be denied solely on that basis.
The issue before the court is whether this action, which is based upon a guaranty (“Guaranty”) between Defendant and plaintiffs Auto Buyline Systems, Inc. and Thomas J. Harmon (“Plaintiffs” together) should proceed before liability has been determined on the underlying Asset Purchase Agreement (“APA”), which Defendant guaranteed by way of the Guaranty. Under the specific terms of the Guaranty, Plaintiffs may seek to recover any damages under the APA at any time regardless of whether liability has been determined on the APA.
“A surety who has assumed liability for payment or performance is liable to the creditor immediately upon the default of the principal, and without demand or notice.” (Ralston-Purina Co. v. Carter (1962) 210 Cal. App. 2d 372, 380; Civ. Code §§ 2787, 2806, 2807.)
“In a guaranty of payment the liability was fixed by the failure of the principal debtor to pay at maturity or at the time when payment was guaranteed. It was immaterial whether the debtor could or could not pay the debt.” (Ingalls v. Bell (1941) 43 Cal. App. 2d 356, 367.)
“[R]emedies against the principal debtor must, of course, have been exhausted where the parties so provided in their contract. [Citations.] Under section 2807 of the Civil Code then in effect, a guarantor of payment or of performance was liable to the guarantee immediately upon the default of the principal and without demand or notice. So there was no duty resting on the creditor to exhaust the remedies against the debtor, and mere delay or failure on the part of the creditor to proceed against the principal debtor did not exonerate the guarantor unless the contract of guaranty provided that such action must be taken” [Emphasis added.] (Ibid.)
“A guarantor had no right to compel the creditor to avail himself of the remedies against the debtor unless he paid the obligation, in which case he could have compelled the creditor to act by a proceeding in equity.” (Id., at 368.)
“An action against a guarantor must be brought specially upon the contract of guaranty itself. [Citations.] The action so brought is not for the collection of the principal debt, as such, and is in fact independent of any action upon the principal obligation.” (Ibid.)