Judge Gail Killefer, Case 20STCV26377 2022-10-25 Tentative Ruling

Judge: Gail Killefer, Case: 20STCV26377, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV26377 Hearing Date: October 25, 2022 Dept: 37

HEARING DATE: October 25, 2022

CASE NUMBER: 20STCV26377

CASE NAME: Ilana Zelener v. Daniel M. Parzivand, et al.

MOVING PARTY: Plaintiff/Cross-Defendant, Ilana Zelener

RESPONDING PARTY: Defendant/Cross-Complainant, Daniel M. Parzivand

TRIAL DATE: None. Judgment by Court April 25, 2022

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion for Attorney’s Fees

OPPOSITION: October 11, 2022

REPLY: October 18, 2022

TENTATIVE: Plaintiff’s motion is granted. Plaintiff is to give notice.

Background

This action arises in connection with real property located at 6031 Lindley Avenue, Unit 26, Tarzana, California (the “Property”). Ilana Zelener (“Plaintiff”) alleges that she owns a fifty (50) percent share of the Property and Daniel M. Parzivand (“Defendant”) owns the other 50 percent. Plaintiff requests partition of the Property through the Complaint. Additionally, the Complaint alleges that Defendant owed a fiduciary duty to Plaintiff based on the parties’ agreement that Defendant would manage the Property. According to the Complaint, Defendant failed to do so by “engaging in acts and omissions to Plaintiff’s detriment.”

Plaintiff’s Complaint, filed on July 14, 2020, alleges three causes of action as follows: (1) partition, (2) accounting, (3) breach of fiduciary duty.

Defendant’s Cross-Complaint, filed on August 31, 2020, alleges four causes of action as follows: (1) partition, (2) accounting, (3) breach of fiduciary duty, and (4) equitable lien.

On April 4, 2022, the court granted Plaintiff’s motion for summary adjudication as to the partition cause of action (“Partition Order”). On May 2, 2022, the court signed the Interlocutory Judgment which effectuated the sale of the Property (“Interlocutory Order”).

Plaintiff now moves for attorney fees in the amount of $5,495.00 in attorney fees and $513.75 in costs, as well as an additional $2,100.00 for the filing of this motion, pursuant to CCP §§ 874.010 and 874.020, for the Partition Order and Interlocutory Order. Defendant opposes the motion.

Request for Judicial Notice

Plaintiff requests judicial notice of the following in support of the instant motion:

1. Defendant and Cross-Complainant Daniel M. Parzivand’s Cross-Complaint in this action which contained a cause of action for partition of the real property at issue in this action which was filed with the Court on August 31, 2020, (Exhibit A);

2. Defendant and Cross-Complainant Daniel M. Parzivand’s opposition to the Motion for Summary Adjudication requesting that Plaintiff’s Motion be denied, (Exhibit B);

3. The May 3, 2022 Interlocutory Judgment in this matter, (Exhibit C);

Defendant also requests judicial notice of the following in support of the opposition:

4. Complaint filed in this matter, (Exhibit 1);

5. Cross-Complaint filed by Defendant in this case (Exhibit 2);

6. The Deed of Trust recorded on November 30, 2017 as Instrument Number 20171376442 in the Official Records of the Recorder’s Office, Los Angeles County, California (Exhibit 3);

7. The Memorandum of Points And Authorities in support of Intervenor’s Motion For Leave To Intervene In Action filed on or about February 10, 2021 in the present action [erroneously labeled as Plaintiff] (Exhibit 4);

8. Intervenor’s Supplemental Declaration filed in this action on March 19, 2021 (Exhibit 5);

9. Memorandum of Points and Authorities in support of Plaintiff’s Motion for Summary Adjudication, filed in this matter on October 13, 2021 (Exhibit 6);

10. Opposition to Plaintiff’s Motion for Summary Adjudication, filed in this matter on March 21, 2022 (Exhibit 7);

11. Notice of Ruling Re: Plaintiff’s Motion for Summary Adjudication in this matter on April 4, 2022 (Exhibit 8);

12. Defendant’s Notice of Alternate Notice of Ruling Re Plaintiff’s Motion For Summary Adjudication filed on or about April 15, 2022 in the present action (Exhibit 9);

13. Defendant’s Statement Regarding Proposed Order And Interlocutory Judgment filed on or about April 20, 2022 in the present action (Exhibit 10);

14. Plaintiff’s Proposed Interlocutory Judgment Of Partition filed on or about October 13, 2021 in this action (Exhibit 11);

15. Defendant’s Interlocutory Judgment Of Partition filed on or about May 3, 2022 in the present action (Exhibit 12).

Plaintiff requests further judicial notice of the following in support of the reply:

16. Plaintiff’s Reply to Motion for Summary Adjudication which was filed on March 30, 2022 in this action (Exhibit D);

17. Ruling regarding Plaintiff’s Motion for Summary Adjudication on April 4, 2022 (Exhibit E);

18. The Stipulation for Non-participation of “Roe 1” Cross-Defendant, Mortgage Electronic Registration Systems, Inc. (Exhibit F);

19. Plaintiff’s [Proposed] Interlocutory Judgment of Partition filed in this action (Exhibit G);

20. The Zone Information and Map Access System (ZIMAS) for the County of Los Angeles printout with respect to the real property located at 6031 Lindley Avenue, Unit 26, Tarzana, California 91356. (Exhibit H)

Plaintiff’s and Defendant’s requests are granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(d), (h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Discussion

I. Legal Authority

California follows the “American rule,” under which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (See CCP § 1021.)

CCP § 685.040 provides:

The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.

Under section 1033.5(a)(10)(B), attorney’s fees are included as an element of costs when authorized by contract. (CCP § 1033.5(a)(10)(B); see also Civ. Code § 1717.)

Section 685.040 authorizes an award of “[a]ttorney’s fees incurred in enforcing a judgment.” (Globalist Internet Techs., Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1274.) “The plain meaning of the word [‘enforcing’] necessarily suggests enforcing a judgment would include defending the validity of the judgment against challenge in a separately filed attack.” (Ibid., internal quotation marks omitted.)

“[A] partially prevailing party is not necessarily entitled to all incurred fees even where the work on the successful and unsuccessful claims was overlapping.” (Harman v. City and County of San Francisco (2007) 150 Cal.App.4th 407, 425.) “[T]he court makes further reductions when plaintiffs’ success on any remaining interrelated unsuccessful and successful claims was limited.” (Ibid.) In conducting this analysis, the court “should focus on the significance of the overall relief obtained … in relation to the hours reasonably expended on the litigation.” (Hensley v. Eckerhart (1983) 461 U.S. 424.) California Courts have recognized that all time reasonably spent should be compensated and that it is in the discretion of the trial court to determine whether time spent on an unsuccessful legal theory was reasonably incurred. (Sundance v. Mun. Ct. (1987) 192 Cal.App.3d 268, 274.)

“The costs of partition include reasonable expenses, including attorney's fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.” (CCP § 874.020.) These costs are defined to include “[r]easonable attorney’s fees incurred or paid by a party for the common benefit.” (CCP § 874.010(a).) Generally speaking, the “common benefit” in a partition action is the “proper distribution of the ‘respective shares and interests in said property by the ultimate judgment of the court.’” (Ibid.) This is true even if the defendant resists partition, because “even fees incurred resolving contested issues can be for the common benefit.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967.) “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” (CCP § 874.040 (emphasis added).)

II. Analysis

Plaintiff argues CCP § 874.010(a) provides for the awarding of attorney fees incurred or paid for the common benefit. (Motion, 4.) As explained above, Plaintiff correctly asserts that fees incurred may be for the common benefit even when defendant resists partition. (Id.; Orien, supra, at 967.) Plaintiff correctly points out both Plaintiff and Defendant, as Cross-Complainant, filed causes of actions for partition, “yet only [Plaintiff] took steps to ensure that the Property would be sold in a timely manner and it is she that wanted to take advantage of the hot and lucrative market.” (Motion, 5.) Plaintiff also submits the declaration of her counsel, Paul Tokar (“Tokar”), to show the parties intended to come to an agreement to sell the property but could not. (Id.; Tokar Decl. ¶¶ 6-7.)

Tokar further attests that his rate was $350 per hour and requests attorney fees for a total of 15.7 billable hours, as well as an additional anticipated six hours for this motion. (Tokar Decl. ¶¶ 2-9.) Further, Tokar attests that Plaintiff’s requested attorney’s fees compromises of time spent on negotiating the sale of the Property, drafting and editing a stipulation for the sale of the Subject Property, drafting a successful summary adjudication motion, and meeting and conferring with opposing counsel regarding the Interlocutory Order. (Tokar Decl. ¶ 4.) The total amount requested is $7,595.00, plus $513.75 in costs. (Tokar Decl. ¶¶3,9.) Tokar also submits a copy of his firm’s billing records in this matter until April 25, 2022 as Exhibit A.

In opposition, Defendant first contends Plaintiff’s partition action was defective as it did not include Plaintiff’s purchase money lender, or the Intervenor. (Opp., 5-6.) Defendant then also contends Plaintiff’s summary adjudication motion was similarly defective for failing to include these parties. (Opp., 6.) Defendant also contends that his actions in disputing Intervenor’s attempts to declare an interest in the Subject Property have been for the common benefit. (Opp., 7.) Further, Defendant contends that his denial of settlement offers is not grounds for a fee award and that any fee award should allocate “the claimed fees by Plaintiff and by [Defendant] as between Plaintiff, [Defendant], and [Intervenor] in line with the degrees to which each has worked for or against the common benefit...” (Opp., 8-10.) Defendant also submits the declaration of his counsel, Terry J. Kent (“Kent”), and Kent attests Defendant has incurred $27,880.00. (Kent Decl. ¶12.)

In reply, Plaintiff correctly contends Defendant’s request for attorney fees is improper “as Defendant has not filed a noticed motion seeking to have his own fees and costs determined by this court...” (Reply, 2.) The court agrees and disregards Defendant’s attorney fee request accordingly.

Plaintiff also correctly explains Intervenor was a timely added party and should not act as a basis for the denial of the fee award. (Reply, 3.) Further, Plaintiff correctly explains Defendant’s reliance on caselaw is not helpful as the circumstances are inapposite here. (Reply, 3-4.) Also, Plaintiff contends her summary adjudication motion correctly identified Intervenor’s lack of claim to the Subject Property, and further, that this court did not find Plaintiff’s summary adjudication motion to be defective. (Reply, 4-5.) Plaintiff correctly explains Defendant opposed the summary adjudication motion, and sought to prevent the sale of the Subject Property, and as such, his actions cannot be seen as for the common benefit. (Id.) Also, Plaintiff contends that any challenges to Intervenor’s claims arose out of Defendant’s “independent agreement” with Intervenor and cannot be seen as for the common benefit. (Reply, 5.) The court agrees.

Thus, based on the Interlocutory Order, the court finds that Plaintiff is entitled to reasonable attorney’s fees incurred. In opposition, Defendant seeks to rehash the merits of the Partition Order, instructing this court to reconsider an earlier ruling without filing a duly noticed motion. Further, Defendant seeks to request attorney fees and costs in connection with this matter again without filing duly noticed motion. Defendant also fails to explain how his requests for reimbursement prior to the sale of the Subject Property, his refusal to negotiate with Plaintiff, his opposition to Plaintiff’s summary adjudication motion, and his challenges to Intervenor’s claims against him based on a separate agreement are all for the common benefit. Defendant points to authorities and makes conclusory statements which are not persuasive before this court. Additionally, the court has reviewed Exhibit A to the Tokar Declaration and finds that Exhibit A represents fees reasonably incurred in connection with Plaintiff’s enforcement of judgment and partition pursuant to CCP §§ 685.040 and 874.010.

For these reasons, the court finds that $8,108.75 represents the reasonable and necessary amount of attorney’s fees and costs incurred by Plaintiff against Defendant prior to the Interlocutory Order and the sale of the Subject Property, and in bringing this motion. The court grants Plaintiff’s motion as to this request and awards $8,108.75 in attorney’s fees.

Conclusion

Plaintiff’s motion is granted. Plaintiff is to give notice.