Judge Christian R. Gullon, Case Number: 19PSCP00242, Date: 2023-07-11 Tentative Ruling

Judge: Christian R. Gullon, Case: 19PSCP00242, Date: 2023-07-11 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

CITY OF CLAREMONT’S MOTION FOR ATTORNEYS’ FEES AND COSTS is GRANTED, but in the reduced amount of $9,688.40.

This is a petition for an order appointing a receiver to remedy substandard conditions.

On May 31, 2019, the City of Claremont (“City” or “Plaintiff”) filed the instant action against George Hernandez (“Defendant” or “Respondent”) based upon the City's December 19, 2018 inspection, which showed over fifteen health and safety code and ten building code violations. (See Petition ¶¶29, 30.)[1]

On February 15, 2023, the court continued the hearing on the motion for untimely service.

On June 7, 2023, the City filed a Supplemental Declaration in support of its motion.

On June 23, 2023, Defendant filed a Motion to Tax Costs (hearing set for November 2, 2023).

On July 5, 2023, Defendant filed ‘Evidentiary Objections To The Declaration Of Brad Johnson Filed In Support Of The City’s Reply.’[2]

The City brings forth the instant motion on the grounds under Health & Safety Code section 17980.7(c)(11).[3] (Motion p. 12.)

If the owner fails to comply within a reasonable time with the terms of the order or notice issued pursuant to Section 17980.6, the following provisions shall apply: (c) The enforcement agency, tenant, or tenant association or organization may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision. In its petition to the court, the enforcement agency, tenant, or tenant association or organization shall include proof that notice of the petition was posted in a prominent place on the substandard building and mailed first-class mail to all persons with a recorded interest in the real property upon which the substandard building exists not less than three days prior to filing the petition. The petition shall be served on the owner pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. (1) In appointing a receiver, the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation. …..

(11) The prevailing party in an action pursuant to this section shall be entitled to reasonable attorney's fees and court costs as may be fixed by the court.

In opposition, Defendant avers argues that the statute does not apply because (i) the court did not appoint a receiver, nor (ii) has there been a finding that any alleged violations at the property are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered. (Opp. p. 11.)

Here, for one, Defendant has not advanced authority (nor statutory analysis) that section 17980.7(c) applies only when a receiver is appointed. “When construing statutes, our goal is ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’” [Citation]. (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.) “The obvious and stated purpose of section 17980.6 [and section 17980.7] is to protect the health and safety of residents who might be substantially endangered by unsafe building conditions.” (City and County of San Francisco v. Jen (2005) 135 Cal.App.4th 305, 311.) Effectively, the statutory scheme is concerned with the remediation of substandard residential property which is done through the process of petitioning for a receiver, not necessarily concerned with the receivership process itself (i.e., after court appoints receiver). Furthermore, statutory interpretation aside, if the court were to adhere to Defendant’s position, that would produce an unfair and impractical result. The City, in good faith, agreed to a stipulation (entered on July 18, 2019) whereby the parties agreed that all the violations could be corrected within ninety (90) days and the parties agreed to continue the receivership appointment hearing by 105 days to allow Defendant to remedy the violations. To hold that the lack of an appointment of a receiver precludes attorney fees would provide no incentive for cities (including Plaintiff) to remediate properties without a receiver.

Therefore, as noted by Defendant itself, a statute must authorize attorney fees (Opp. p. 9:13-21), and here, section 17980.7(c)(11) allows for the recovery of fees.

To the extent that Defendant argues there has not been a finding of substandard building conditions, Defendant’s complete remediation speaks for itself. After all, if there were no substandard building conditions, there would have been no need for the “extensive remodeling, additions, and upgrades.” (Opp. p. 4.)

To the extent that Defendant argues the City is not the prevailing party because the case is still pending, no dismissal has been entered, nor that judgment has been entered (Opp. pp. 9-10), Defendant’s citations are inapposite. Defendant’s citations to Bank of Idaho v. Pine Avenue Associates (1982) 137 Cal.App.3d 5, 15 and Hsu v. Abbara (1995) 9 Cal.4th 863 construe Civ. Code, § 1717, which is attorney fees in contract cases. As for the citation to Kaura v Stabilis Fund II, LLC (2018) 24 Cal.App.5th 420, 436, that case is not instructive because it did not address the particular issue of whether a city is a prevailing party if defendant remediates the property (without a receiver) such that no final judgment is necessary. (Id. at p. 436-37 [“In this appeal, however, Stabilis has not argued that the City was not a prevailing party at all because there was no final judgment. Rather, it argues only narrowly—and only in connection with Indio Municipal Code section 10.20(C)—that the City was not the prevailing party on the causes of action to abate a public nuisance. The parties have not had an opportunity to brief this issue. For this reason, we do not definitively decide it; we merely call it to attention of the parties and the trial court in the event of further litigation.”], italics original.)

Therefore, as there is a “causal connection” between the plaintiff's lawsuit (receivership petition/action) and the relief obtained (remediation completed) such that it can be said that the City’s lawsuit was a catalyst motivating Defendant to provide the primary relief sought (remediation), then the City “will be considered a ‘successful party’ where an important right is vindicated ‘by activating defendants to modify their behavior.’” (Reply pp. 8-9, citing to Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901–902).

Lastly, to the extent that Defendant argues the City unreasonably delayed the matter, that is inconsequential to adjudication of the instant motion.[4]

Notwithstanding the foregoing, the court agrees with Defendant that the fees of $35,688.55 in attorneys’ fees and $1,688.40 in costs are unreasonable.

For one, the City has not provided its hourly rate nor hours expended upon the matter. Reviewing the billing entries, much of the entries are “reviewing” the case, claims, and emails and “following-up” on the same. To the extent that there is legal research, most of it is dedicated to the attorney fees, not necessarily complex legal matters.

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $9,688.40 (i.e., $200/hour for 40 hours [$8,000] plus costs).

Based on the foregoing, the motion is granted, but attorney fees are awarded in the reduced amount of $9,688.40.

[1] As more thoroughly explained in opposition to the instant motion, the project involved two historical buildings that that Defendant and others desired to save from demolition due to construction of athletic facilities for Claremont McKenna College. The project was approved by the CITY for historical preservation under the Mills Act.

[2] Johnson’s declaration was inconsequential to adjudication of this motion. Therefore, the court does not rule on the objections.

[3] Hereinafter referred to as ‘section’ unless denoted otherwise.

[4] To the extent Defendant advanced this argument to argue fees are unreasonable (i.e., if City did not purportedly delay the project, then less involvement by the attorney(s)), the court has addressed that concern by reducing the attorney fees.