Judge: Gary I. Micon, Case: 19CHCV00155, Date: 2024-05-06 Tentative Ruling
Case Number: 19CHCV00155 Hearing Date: May 6, 2024 Dept: F43
Dept. F43
Date: 5-6-24
Case # 19CHCV00155, Richard Bundy v. Lashon Bundy-Lawrence, et al.
Trial Date: None
MOTION TO SET ASIDE COURT ORDER DATED FEBRUARY 2, 2024
MOVING PARTY: Plaintiff Lashon Bundy-Lawrence
RESPONDING PARTY: Plaintiff Diane Bundy as Guardian Ad Litem for Richard Bundy
RELIEF REQUESTED
Moving party requests that the Court set aside its court order dated February 2, 2024.
RULING: Motion is denied.
SUMMARY OF ACTION
On February 22, 2019, Plaintiff Richard Bundy (“Plaintiff”) filed this action against Defendants Lashon Bundy-Lawrence (“Defendant”) and Does 1 to 10, asserting causes of action for (1) financial elder abuse, (2) quiet title, (3) ejectment, and (4) cancellation of instrument.
According to the Complaint, this action concerns the real property commonly known as 15156 Kingsbury Street, Mission Hills, CA 91345. (Compl., ¶ 2.) Plaintiff and Defendant on the title of the property as joint tenants. (Compl., ¶ 6.) Plaintiff filed this lawsuit to, among other things, obtain a determination that Defendant acquired the title of the property in name only and for no consideration, and the true and only owner of the property is Plaintiff. (Compl., ¶ 54.)
On June 1, 2022, Plaintiff filed a Notice of Settlement of Entire Case.
On December 21, 2022, Plaintiff filed a motion to enforce settlement agreement pursuant to Code of Civil Procedure section 664.6 and for attorney’s fees of $3,735.
On February 8, 2023, the Court granted Plaintiff’s request to enforce the parties’ settlement agreement, but denied the request for attorney’s fees of $3,735. (See Minute Order dated February 8, 2023, p. 4, the second paragraph [“The court denies the request for attorney fees. The motion itself lacks any statutory basis for the recovery of fees. The court acknowledges the right to seek fees pursuant to section 3M of the agreement, but refuses to address the legally unsupported argument. Plaintiff may file a separate motion for recovery of attorney fees upon the conclusion of the execution of the settlement agreement” (emphasis added)].)
On March 17, 2023, Plaintiff filed a proposed order on his motion to enforce the settlement agreement. The Court approved and signed that order the same day (the “March 17 Order”).
On August 14, 2023, Defendant filed an “Ex Parte to Enforce the Terms of the Settlement Agreement.”
On August 15, 2023, the Court held the hearing on Defendant’s ex parte application to enforce the settlement agreement, but did not hear any argument on the merits. Instead, the Court required the Defendant to file a motion to enforce the agreement and reserved November 1, 2023, as the hearing date for that future motion.
On August 25, 2023, Defendant filed two motions: (1) a motion to enforce settlement agreement (“Defendant’s Motion to Enforce Settlement”) that was set for hearing on November 1, 2023, and (2) a motion to set aside the March 17 Order and quash or stay writ of execution (“Defendant’s Motion to Set Aside”) that was set for hearing on September 28, 2023.
On September 28, 2023, the Court denied the Motion to Set Aside.
On September 29, 2023, Defendant filed a Notice of Appeal of “An Order Granting in Part Defendant’s Motion to Enforce Settlement Agreement.”
On November 1, 2023, the Court placed the Defendant’s Motion to Enforce Settlement off calendar after noting that the Defendant filed a Notice of Appeal.
On October 23, 2023, Plaintiff filed this motion for attorney’s fees as the Court stated Plaintiff could do in the February 8, 2023, order.
On January 31, 2024, the Court held an Order to Show Cause Re: Status of Appeal, heard oral argument, and took the matter under submission.
On February 2, 2024, the Court issued its ruling on the Order to Show Cause Re: Status of Appeal. The Court ordered Defendant to post an undertaking pending appeal.
On March 5, 2024, Defendant filed a motion to set aside the February 2, 2024, order regarding the Order to Show Cause Re: Status of Appeal. This motion is set for hearing on May 6, 2024. Defendant appears to challenge this order on the basis that Plaintiff’s Guardian ad Litem somehow committed fraud.
On March 15, 2024, the Court denied the Defendant’s Ex Parte Application to Shorten Time to Hear Motion to Set Aside Court Order Dated February 2, 2024.
ANALYSIS
Request for Judicial Notice: Defendant requests that the Court take judicial notice of documents filed with the Court and a death certificate (items 1, 2, 3, 4, and 5). The Court takes judicial notice of these documents, but only as to their existence.
A court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (CCP § 473.)
Defendant filed this motion to set aside court order pursuant to CCP § 473. However, as noted above, that section allows the Court to set aside an order or judgment when a party has shown that it was taken against her through her mistake, inadvertence, surprise, or excusable neglect. Defendant has not indicated that she took any action through mistake, inadvertence, surprise, or excusable neglect. Instead, she argues that Diane Bundy’s appointment as Guardian ad Litem was falsely obtained. That is not an appropriate circumstance for relief under CCP § 473.
Defendant’s motion also contains no evidence to support her arguments. If she had wished to challenge the Court’s February 2 Order through a motion for reconsideration, the appropriate time to file that would have been within 10 days of service of the order. (CCP § 1008.)
Defendant’s motion to set aside the February 2, 2024, order is improper and is denied.
Moving party to give notice.
Dept.
F43
Date:
5-6-24
Case
# 19CHCV00155, Richard Bundy v. Lashon Bundy-Lawrence, et al.
Trial
Date: None
MOTION FOR ATTORNEYS’ FEES
MOVING
PARTY: Plaintiff Diane Bundy as Guardian Ad Litem for Richard Bundy
RESPONDING
PARTY: Defendant Lashon Bundy-Lawrence
RELIEF
REQUESTED
Moving
party requests the Court to enter an order awarding her attorney’s fees of
$12,415 after prevailing on a motion to enforce the settlement agreement in
this case.
RULING: The motion for
attorney’s fees is GRANTED IN PART and DENIED IN PART as follows.
The request for attorney’s fees and costs of $2,905 that Plaintiff anticipated
to incur in connection with Defendant’s Motion to Enforce Settlement is denied.
The request for attorney’s fees and costs of $5,660 Plaintiff incurred in
connection with Plaintiff’s motion to enforce the settlement agreement and
Defendant’s Motion to Set Aside is granted. The request for attorney’s
fees and costs Plaintiff incurred in connection with the motion for attorney’s
fees is granted, but in the reduced amount of $2,800. Accordingly, the
Court awards Plaintiff only $8,460 in attorney’s fees and costs.
SUMMARY
OF ACTION
On
February 22, 2019, Plaintiff Richard Bundy (“Plaintiff”) filed this action
against Defendants Lashon Bundy-Lawrence (“Defendant”) and Does 1 to 10,
asserting causes of action for (1) financial elder abuse, (2) quiet title, (3)
ejectment, and (4) cancellation of instrument.
According
to the Complaint, this action concerns the real property commonly known as
15156 Kingsbury Street, Mission Hills, CA 91345. (Compl., ¶ 2.) Plaintiff and Defendant on the
title of the property as joint tenants. (Compl., ¶ 6.) Plaintiff filed this lawsuit to, among
other things, obtain a determination that Defendant acquired the title of the
property in name only and for no consideration, and the true and only owner of
the property is Plaintiff. (Compl., ¶ 54.)
On June 1,
2022, Plaintiff filed a Notice of Settlement of Entire Case.
On December
21, 2022, Plaintiff filed a motion to enforce settlement agreement pursuant to
Code of Civil Procedure section 664.6 and for attorney’s fees of
$3,735.
On February 8,
2023, the Court granted Plaintiff’s request to enforce the parties’ settlement
agreement, but denied the request for attorney’s fees of $3,735. (See Minute
Order dated February 8, 2023, p. 4, the second paragraph [“The court denies the
request for attorney fees. The motion itself lacks any statutory basis for the
recovery of fees. The court acknowledges the right to seek fees pursuant to
section 3M of the agreement, but refuses to address the legally unsupported argument.
Plaintiff may file a separate motion for recovery of attorney fees upon the
conclusion of the execution of the settlement agreement” (emphasis
added)].)
On March 17,
2023, Plaintiff filed a proposed order on his motion to enforce the settlement
agreement. The Court approved and signed that order the same day (the “March 17
Order”).
On August 14,
2023, Defendant filed an “Ex Parte to Enforce the Terms of the Settlement
Agreement.”
On August 15,
2023, the Court held the hearing on Defendant’s ex parte application to enforce
the settlement agreement, but did not hear any argument on the merits. Instead,
the Court required the Defendant to file a motion to enforce the agreement and
reserved November 1, 2023, as the hearing date for that future motion.
On August 25,
2023, Defendant filed two motions: (1) a motion to enforce settlement agreement
(“Defendant’s Motion to Enforce Settlement”) that was set for hearing on
November 1, 2023, and (2) a motion to set aside the March 17 Order and quash or
stay writ of execution (“Defendant’s Motion to Set Aside”) that was set for
hearing on September 28, 2023.
On September
28, 2023, the Court denied the Motion to Set Aside.
On September
29, 2023, Defendant filed a Notice of Appeal of “An Order Granting in Part
Defendant’s Motion to Enforce Settlement Agreement.”
On November 1,
2023, the Court placed the Defendant’s Motion to Enforce Settlement off
calendar after noting that the Defendant filed a Notice of Appeal.
On October 23,
2023, Plaintiff filed this motion for attorney’s fees as the Court stated Plaintiff
could do in the February 8, 2023, order.
On January 31,
2024, the Court held an Order to Show Cause Re: Status of Appeal, heard oral
argument, and took the matter under submission.
On February 2,
2024, the Court issued its ruling on the Order to Show Cause Re: Status of
Appeal. The Court ordered Defendant to post an undertaking pending appeal.
On March 5,
2024, Defendant filed a motion to set aside the February 2, 2024, order
regarding the Order to Show Cause Re: Status of Appeal. The hearing for that
motion is set for May 6, 2024.
On March 15,
2024, the Court denied the Defendant’s Ex Parte Application to Shorten Time to
Hear Motion to Set Aside Court Order Dated February 2, 2024.
This motion
for attorney fees was originally set to be heard on March 19, 2024. Defendant
did not file his opposition to that motion until March 18, 2024. In the Court’s
minute order from the hearing on March 19, the Court continued the hearing on
this motion to the current date of May 6, 2024, and stated that it would
consider Defendant’s opposition to this motion.
Defendant’s
opposition argues that it was Plaintiff’s own negligence in not signing
documents that led to the breach of the settlement agreement. This argument
likely should have been in opposition to enforcement of the settlement
agreement, not in opposition to the attorney fees motion. Regardless, as
discussed below, the Court is denying Plaintiff’s request for anticipated
attorney fees in connection with the motion to enforce the settlement
agreement.
ANALYSIS
Plaintiff
moves for attorney’s fees and costs of $12,415 pursuant to the parties’
settlement agreement, arguing that he was the prevailing party on several
motions. Though Plaintiff’s notice of motion states he is seeking attorney’s
fees and costs of $20,000, the conclusion section of the motion and supporting attorney
declaration state that he is only requesting $12,415. (Motion at pp. 1:24-27;
7:5-9.)]
A
prevailing party is entitled to recover its attorneys’ fees when authorized by
contract, statute, or law. (See Code Civ. Proc., § 1033.5, subd. (a)(10); Civ.
Code § 1717, subd. (a).)
“A
successful party means a prevailing party, and [a party] may be considered
prevailing parties for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.” (Bowman v. City of Berkeley (2005) 131
Cal.App.4th 173, 178.)
Civil
Code “section 1717 is the applicable statute when determining whether and how
attorney’s fees should be awarded under a contract.” (Sears v. Baccaglio
(1998) 60 Cal.App.4th 1136, 1157.)
A
party seeking contractual attorney fees under Civ. Code § 1717 does not have to
file a memorandum of costs regarding the fees. (See Kaufman v. Diskeeper
Corp. (2014) 229 Cal.App.4th 1, 6 [“[O]ur research has disclosed no
published decision examining whether a party seeking contractual attorney fees
subject to Civil Code section 1717 must file a memorandum of costs regarding
the fees. …[W]e conclude that the applicable statutes and court rules imposed
no such requirement …”].)
In
this case, Plaintiff moves for an order awarding him attorney’s fees and costs
of $12,415 pursuant to the attorney fee provision in the parties’ settlement
agreement. (Motion at pp. 1:24-27; 7:5-9.)
The
requested attorney’s fees and costs of $12,415 consists of the following, as
laid out in the declaration of Plaintiff’s counsel:
(a)
$3,210
in attorney’s fees and costs incurred in connection with Plaintiff’s motion to
enforce the settlement agreement (i.e., 9 hours of counsel’s time at a billing
rate of $350 per hour, plus a $60 filing fee).
(b)
$2,450
incurred in connection with drafting the opposition to and attending the
hearing on Defendant’s Motion to Set Aside (i.e., 7 hours of attorney time at a
billing rate of $350 per hour).
(c)
$2,905
Plaintiff anticipated to incur in connection with Defendant’s Motion to Enforce
Settlement (i.e., 5.8 hours counsel spent on drafting the opposition to the
motion and 2.5 hours he anticipated spending attending and preparing for the
hearing, a total of 8.3 hours of counsel’s time at a billing rate of $350 per
hour).
(d)
$3,850
incurred in connection with the motion for attorney’s fees (i.e., 7 hours
counsel spent drafting the moving papers, 4 hours he anticipated spending
replying to any opposition and attending the hearing on November 1, 2023, a
total of 11 hours at his billing rate of $350 per hour).
(Motion,
Martinez Decl.”), ¶¶ 4-10.)
Plaintiff
argues he is entitled to those attorney’s fees and costs because he was the
prevailing party in the following matters: (1) the February 8, 2023, ruling
granting Plaintiff’s motion to enforce the settlement agreement; (2) September
28, 2023, order denying Defendant’s motion to set aside the March 17 Order granting Plaintiff’s motion to
enforce the settlement agreement; (3) Defendant’s Motion to Enforce Settlement, which the Court
on November 1, 2023, placed
off calendar pending appeal; and (4) the current motion for attorney’s
fees.
To
determine whether Plaintiff is the “prevailing party” within the meaning of the
settlement agreement, the Court applies “the ordinary rules of contract
interpretation.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 608 (“Santisas”).)
“‘Under
statutory rules of contract interpretation, the mutual intention of the parties
at the time the contract is formed governs interpretation. (Civ. Code, §
1636.)’”
“Such
intent is to be inferred, if possible, solely from the written provisions of
the contract.’” (Santisas, supra, 17 Cal.4th at p. 608.)
“‘The
“clear and explicit” meaning of these provisions, interpreted in their
“ordinary and popular sense,” unless “used by the parties in a technical sense
or a special meaning is given to them by usage” [citation], controls judicial
interpretation. [Citation.]’” (Santisas, supra, 17 Cal.4th at p.
608.) “‘Thus, if the meaning a layperson would ascribe to contract language is
not ambiguous, we apply that meaning.’ [Citations.]” (Ibid.)
Here,
the attorney fee provision in the parties’ settlement agreement states the
following.
Enforcement of
Agreement:
If any action is brought to enforce this Agreement … the prevailing Party or
Parties shall be entitled to recover damages, attorneys’ fees and other costs
incurred in such litigation which they may prove are the direct and proximate
result of any breach hereof in addition to any other relief which that Party or
Parties may be entitled to by law.
(Martinez
Decl., ¶ 3; Ex. 1 – the Settlement Agreement and Release of all Claims, Section
3(M) [underlining in the original].)
Therefore,
under the ordinary and popular meaning of the attorney fee provision in the
settlement agreement, to be entitled to the requested attorney’s fees and
costs, Plaintiff must prove that (1) the matters underlying the request for
attorney’s fees and costs were brought to “enforce” the settlement agreement,
(2) Plaintiff was the “prevailing party” in those matters, and (3) the
requested attorney’s fees and costs were the direct and proximate result of any
breach of the agreement.
In
light of the plain meaning of the word “enforce” and in the absence of the
extrinsic evidence indicating that the parties gave that word a special
meaning, the Court finds the following matters were actions brought to “enforce”
the agreement within the meaning of the attorney fee provision: (1) the
February 8, 2023, ruling granting Plaintiff’s motion to enforce the settlement
agreement; (2) September 28, 2023, order denying Defendant’s motion to set
aside the March 17 Order (which
entered as an order the ruling granting Plaintiff’s motion to enforce the
settlement agreement); (3) Defendant’s
Motion to Enforce Settlement; and (4) the motion for attorney’s
fees.
Therefore,
the remaining issues are whether (1) Plaintiff was the prevailing party in each
of those matters and (2) the requested attorney’s fees and costs were the
direct and proximate result of any breach of the agreement.
Here,
like the contract in Santisas, the settlement agreement does not “define
the term ‘prevailing party,’ nor is there any extrinsic evidence indicating
that the parties ascribed to it a particular or special meaning.” (Santisas,
supra, 17 Cal.4th at p. 609.)
Therefore, the Court “will assume, in the
absence of evidence to the contrary, that the parties understood the term in
its ordinary or popular sense.” (Santisas, supra, 17 Cal.4th at
p. 609.)
In Santisas, the California Supreme
Court held that the seller defendants were the prevailing parties under the
contract for the following reasons: “Plaintiffs’ objective in bringing this
litigation was to obtain the relief requested in the complaint. The objective
of the seller defendants in this litigation was to prevent plaintiffs from
obtaining that relief. Because the litigation terminated in voluntary dismissal
with prejudice, plaintiffs did not obtain by judgment any of the relief they
requested, nor does it appear that plaintiffs obtained this relief by another
means, such as a settlement. Therefore, plaintiffs failed in their litigation
objective and the seller defendants succeeded in theirs. Giving the term
‘prevailing party’ its ordinary or popular meaning, the seller defendants are
the “prevailing part[ies]’ under their agreement with plaintiffs, and, if we
consider only the rules of contract law, they are entitled to recover the
amounts they incurred as attorney fees in defending all claims asserted in this
action.” (Santisas, supra, 17 Cal.4th at p. 609.)
Here, the Court finds that Plaintiff was not
the “prevailing party” in connection with Defendant’s Motion to Enforce
Settlement because the Court placed that matter off calendar on November 1,
2023, pending
appeal.
Accordingly,
the request for attorney’s fees and costs of $2,905 that Plaintiff anticipated
to incur in connection with Defendant’s Motion to Enforce Settlement is denied.
The
Court finds that Plaintiff was the “prevailing party” in the (1) February 8,
2023, order granting Plaintiff’s motion to enforce the settlement agreement, and
the (2) September 28, 2023, order denying Defendant’s Motion to Set Aside
(which sought to set aside the order granting Plaintiff’s motion to enforce the
settlement agreement). The Court
finds that Plaintiff achieved his objectives in those matters.
The Court also finds that Plaintiff is the
“prevailing party” in the motion for attorney’s fees because of its ruling
below granting some of the fees and the fact that the motion is unopposed.
Therefore,
the remaining issues are whether Plaintiff’s requested attorney’s fees and
costs in connection with the February 8, 2023, order, September 28, 2023,
order, and motion for attorney’s fees were the direct and proximate result of
any breach of the agreement.
The
Court finds that the $3,210 in attorney’s fees and costs incurred in connection
with Plaintiff’s motion to enforce the settlement agreement and $2,450 incurred
in connection with Defendant’s Motion to Set Aside were the proximate (even if
not the direct) result of a breach of the settlement agreement.
Accordingly,
the Court grants Plaintiff’s request for those attorney’s fees: $5,660.
However,
the Court finds the requested attorney’s fees of $3,850 for the motion for
attorney’s fees excessive. Counsel testifies that amount consists of 7 hours
counsel spent drafting the moving papers, 4 hours he anticipated spending
replying to any opposition, and attending the hearing on November 1, 2023, a
total of 11 hours at his billing rate of $350 per hour. (Martinez Decl., ¶ 9.)
However, no reply was filed.
Accordingly,
the Court will deduct $1,050 (i.e., 3 hours of counsel’s time on the motion for
attorney’s fees at his billing rate of $350 per hour) from the requested
attorney’s fees of $3,850, and award Plaintiff only $2,800 attorney’s fees for
this motion.
Conclusion
The motion for attorney’s fees is granted in part and
denied in part as follows.
The
request for attorney’s fees and costs of $2,905 that Plaintiff anticipated to
incur in connection with Defendant’s Motion to Enforce Settlement is denied.
The
request for attorney’s fees and costs of $5,660 Plaintiff incurred in
connection with Plaintiff’s motion to enforce the settlement agreement and Defendant’s
Motion to Set Aside is granted.
The
request for attorney’s fees and costs incurred in connection with this motion
for attorney’s fees is granted, but in the reduced amount of $2,800.
Accordingly,
the Court awards Plaintiff only $8,460 in attorney’s fees and costs.
Moving
party to give notice.