Motion for attorney fees
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fn. 10.) “Depending on proof of the nature and extent of the insurer’s claims handling practices, the trial court [will] determine whether injunctive relief [is] appropriate” once the litigation reaches that point, and the failure formulate a specific injunction in the complaint does not render the claim susceptible to demurrer. (See id. at p. 381, fn. 10.) “ ‘[A] demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer[.]’ ” (Ibid.)
Seventh cause of action, negligence. The complaint fails to state facts sufficient to constitute a cause of action for negligence. (See Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 [negligence elements]; see also Benavides v. State Farm General Ins. Co. (2006) 136 Cal.App.4th 1241, 1249-1253 (Benavides).) The alleged conduct at issue under this claim—i.e., “failing to conduct a reasonable investigation and ... unreasonably denying defense and coverage” within a month of receiving the claim, thereby causing plaintiff financial/economic harm (Compl. ¶¶ 15-17, 30-31, 61-64)—only gives rise to a tort claim for bad faith breach, not negligence. (See Benavides, at pp. 1249-1253.)
Defendants shall give notice of this ruling.
51. Mendoza v. Plaintiff Juan Mendoza’s motion for leave to file first amended Garden complaint is GRANTED. (See Code Civ. Proc., § 473, subd. Grove (a)(1); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, Unified 761.) School District Plaintiff is ORDERED to separately file and serve the proposed first amended complaint (Johnson Decl. at Ex. 1) within five 2023- court days. The first amended complaint must be filed as a 01312531 separate document to ensure it is properly indexed in the record.
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52. Bales v. Defendants John and Susan Belenardo’s motion for attorney Belenardo fees pursuant to Civil Code section 5975 is GRANTED in part.
2021- Civil Code section 5975, part of the Davis-Stirling Common 01201005 Interest Development Act, provides that in an action to enforce the governing documents, the prevailing party shall be
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awarded reasonable attorney's fees and costs. Ca. Civ. Code section 5975.
For an award of attorney fees, the threshold requirement is that the underlying action must qualify as one to enforce the governing documents of a common interest development. Civil Code section 5975 awards attorney’s fees and costs to the prevailing party in an action to enforce the CC&Rs of a common interest development. Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761. The prevailing party determination is made on a practical level, looking at which party achieved its litigation objectives. Id. at 773. If there is a prevailing party, the court shall award reasonable fees and costs. Rancho Mirage Country Club Homeowners Assn v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.
The court finds the Belendaros are the prevailing party in Phase I of the trial for purposes of section 5975 fees. The Bales achieved none of their objectives in Phase I. The Belenardos successfully maintained their easement, and the improvements located therein—succeeding on a practical level in this neighbor dispute. The court makes this finding while considering both the complaint, cross-complaint, and the relief each side sought. Champir LLC v. Fairbanks Ranch Assn, (2021) 66 Cal.App.5th 583, 592.
Having reviewed the motion, including the hourly rate, hours billed, and description of the tasks performed, the court finds $600 per hour is reasonable. The court reduces the number of hours claimed as follows:
--$18,960.00 for “sanction work.” Section 5975 authorizes fees for the prevailing party in an action to enforce governing documents, not fees incurred in collateral sanctions proceedings.
--$8,940.00 for duplicative entries totaling 14.9 hours.
--$20,700 for non-Phase I work totaling 34.5 hours.
The court does not find the number of hours billed on the remaining hours to be excessive. The case was actively litigated. By the time of the Phase I trial, there were over 800 docket entries. And plaintiffs’ operative complaint at the time of the Phase I trial – the Third Amended Complaint-- consisted of 522 paragraphs over 87 pages with over 200 pages of attachments. While not all paragraphs or causes of actions related to Phase I, the breadth of the Third Amended Complaint demonstrates that plaintiffs were thoroughly
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pursuing their claims. The Belenardos reasonably could respond in kind.
The court has considered plaintiffs’ request to further apportion fees and to apply a discount for “block billing.” The court denies that request.
The court awards fees of $279,420.00.
The Belenardos’ evidentiary objections to the declarations are OVERRULED.
The Bales’ evidentiary objections are SUSTAINED as they relate to statements concerning the disciplinary proceedings and exhibits concerning Kamath, and otherwise OVERRULED.
The Belenardos shall give notice of this ruling.
53.
54. Elavon, Inc. The motion of defendants Creative Arcades LLC and Brian v. Creative Horowitz for an order compelling arbitration of the claims Arcades LLC brought by plaintiff Elavon, Inc., and staying the court proceedings pending the resolution of the arbitration is 2026- GRANTED. 01564124 On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the Court must order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless it determines that: (1) the right to compel arbitration has been waived by the petitioner; (2) grounds exist for the revocation of the agreement; or (3) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.
Here, plaintiff does not deny the existence of the provision for arbitration or contend that it is not enforceable. Rather, it contends that it chose to file the action in court instead of seek arbitration because of the simple nature of the claim.
The parties are ORDERED to arbitrate their claims in accordance with their agreement. Plaintiff shall commence the arbitration within 30 days of this order.