Judge: John J. Kralik, Case: EC064909, Date: 2025-04-25 Tentative Ruling
Case Number: EC064909 Hearing Date: April 25, 2025 Dept: NCB
North Central District
Department B
|
lisa hastings, Plaintiff, v. abraham kevorkian, et al., Defendants. |
Case No.: EC064909 Consolidated with: EC066975 Hearing
Date: April 25, 2025 [Tentative] order RE: motion
for attorneys’ fees; and motion for refund of undertaking |
BACKGROUND
A.
Allegations and Relevant Background
These consolidated
actions involve the property located at 721 Colman Street, Altadena, California
91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Ms. Hastings” or
“Plaintiff”), and the property located at 728 Colman Street, Altadena, CA 91001
(“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Mr. Kevorkian”)
and Nancy Odesho Kevorkian (“Mrs. Kevorkian”).
The matter came for trial in December 2019 to January 2020.
The Court issued its Statement of Decision on June 17, 2020.
Thereafter, the Court issued its Judgment After Trial on January 12,
2021.
Mr. Kevorkian appealed. On November 6, 2024, the Court of Appeal issued its
ruling on Mr. Kevorkian’s appeal from the judgment and post-judgment orders (demurrers,
summary adjudication, costs, and attorney’s fees). The Court of Appeal affirmed the judgment and
orders in their entirety. The Court of
Appeal awarded Respondent/Plaintiff Hastings her costs on appeal.
B. Motions on
Calendar
On February 27, 2025, Plaintiff filed a motion for attorney’s fees on appeal
in the amount of $15,260. On April 8,
2025, Mr. Kevorkian filed an opposition brief.
On April 16, 2025, Plaintiff filed a reply brief.
On March 6, 2025, Plaintiff filed a motion for refund of undertaking. On April 8, 2025, Mr. Kevorkian filed an
opposition brief.
DISCUSSION RE MOTION FOR ATTORNEY’S FEES
Plaintiff moves for attorney’s fees pursuant to CCP §
1032(b) as the prevailing party on appeal and CCP § 1033.5.
CCP § 1032(b) states: “Except as otherwise expressly provided by statute, a prevailing party is
entitled as a matter of right to recover costs in any action or proceeding.” California Rules of Court, Rule
8.278(a)(1)-(2) states: “(1) Except as provided in
this rule or by statute, the party prevailing in the Court of Appeal in a civil
case other than a juvenile case is entitled to costs on appeal”; and “(2) The
prevailing party is the respondent if the Court of Appeal affirms the judgment
without modification or dismisses the appeal. The prevailing party is the
appellant if the court reverses the judgment in its entirety.” Rule
8.278(d)(2) states: “Unless the court orders otherwise, an award of costs
neither includes attorney's fees on appeal nor precludes a party from seeking
them under rule 3.1702.” Rule 3.1702(c)
states:
(c) Attorney's fees on appeal
(1) Time for motion
A notice of motion
to claim attorney's fees on appeal--other than the attorney's fees on appeal
claimed under (b)--under a statute or contract requiring the court to determine
entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for
serving and filing the memorandum of costs under rule 8.278(c)(1) in an
unlimited civil case ….
(CRC Rule 3.1702(c).) Rule
8.278(c)(1) states: “Within 40 days after issuance of
the remittitur, a party claiming costs awarded by a reviewing court must serve
and file in the superior court a verified memorandum of costs under rule
3.1700.”
In the June 17,
2020 Statement of Decision, the Court stated it would entertain a request for
an award of some fees pursuant to CCP § 1021.5 or some other legal authority,
as the general public benefited from Plaintiff’s litigation of the case. (6/17/20
Statement of Decision at pp. 52-53.) This Court deemed Plaintiff the prevailing
party for obtaining a net monetary award in her favor and for obtaining
equitable relief. (1/12/21 Judgment
After Trial at p.8.) On July 30,
2021, the Court granted Plaintiff’s motion for attorney’s fees in the amount of
$82,153.75. The judgment, as well as the
order on the motion for attorney’s fees, was appealed by Mr. Kevorkian. The Court of Appeal affirmed the judgment and
the Court’s orders and stated that Plaintiff would be awarded costs on appeal.
On November 6,
2024, the Court of Appeal filed its opinion.
On January 23, 2025, the remittitur was issued. Within 40 days of the remittitur, Plaintiff
filed this motion for attorney’s fees on appeal on February 27, 2025. As such, the motion was timely filed.
Plaintiff cites to Morcos v. Board of Retirement (1990) 51 Cal.3d 924,
arguing that she is entitled to fees on the same basis that this Court awarded
attorney’s fees. In Morcos, the
California Supreme Court stated:
“[I]t
is established that fees, if recoverable at all—pursuant either to statute or
parties' agreement—are available for services at trial and on appeal.” (Italics
added.) [Citations.] Indeed,
appellate courts have consistently permitted a successful party to recover
attorney fees incurred on appeal when a statute expressly permits such an award
in the trial court or other lower tribunal.
(Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.)
Here, the Court
finds that attorney’s fees on appeal are appropriate. The Court previously awarded fees pursuant to
CCP § 1021.5. CCP § 1021.5 states in relevant part:
Upon motion, a court may award attorneys' fees to a
successful party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public entity against
another public entity, are such as to make the award appropriate,
and (c) such fees should not in the interest of justice be paid out of the
recovery, if any.
(CCP § 1021.5.) The Court
previously found that Plaintiff had established that this action conferred a
significant benefit on the general public because the enforcement of the Fire
Lane was necessary for the benefit of the residents of Colman Street and the
general public as the County had declined to enforce it. The Court of Appeal found no error with this
Court’s ruling on the injunctive relief to prevent Mr. Kevorkian from parking
cars in certain areas, consistent with easement rights and the fire lane’s
validity. (See 11/6/24 Court of Appeal Opinion
at pp.19-20.)
In opposition, Mr.
Kevorkian argues that the appellate court is responsible for considering
motions for attorney’s fees on appeal, not this Court. However, Mr. Kevorkian cites to Ninth Circuit
cases and rules, which do not apply to this case or the instant motion. This Court properly has the jurisdiction to
consider Plaintiff’s motion for attorney’s fees on appeal.
To the extent Mr.
Kevorkian argues that the underlying decisions were incorrect or that Plaintiff
breached the McHaffie Agreement, the Court has previously decided these issues
against Mr. Kevorkian and the Court will not address these issues again.
As such, the Court finds that Plaintiff is entitled to recover attorney’s
fees on appeal.
In the heading for
section B of the memorandum of points and authorities, Plaintiff seeks $15,260 in attorney’s fees,
using the lodestar method. (Mot. at
p.4.) Differently, on page 6 of the
moving papers, Plaintiff argues that the Court should at least award $15,347.50
(= 87.7 hours x $175/hour). Plaintiff
also argues that given the nature of the reduced hourly rate that is far below
the community standard rates, the Court can and should increase the lodestar
figure to at least $350/hour, such that an award of $30,695 should issue (=
$350/hour x 87.7 hours). (Mot. at
p.6.)
In support of the motion, Plaintiff provides the declaration of her
counsel, Janice R. Mazur. Ms. Mazur
states that she been practicing for 34 years and, since 1991, has limited her
practice to almost entirely appellate matters.
(Mazur Decl., ¶¶3-4.) She states
that this appeal was particularly challenging because Mr. Kevorkian proceeded
in pro per, designated a record of over 15,000 pages, his opening brief was
incomprehensible, and he made references to voluminous records. (Id., ¶5.) She states that in appeal, she had to file a
motion to request permission to file an oversized brief; review and oppose Mr.
Kevorkian’s opening brief, reply brief, petition for rehearing, petition for
review, petition for writ of supersedeas, and his multiple (at least seven)
augmentations or omission letters; attend oral argument; review the appellate decision;
consult with her client; and prepare this motion. (Id., ¶6.) Ms. Mazur states that she spent 87.7 hours
total representing Plaintiff in the appellate proceedings, including filing
this motion, at a drastically reduced hourly rate of $175. (Id., ¶¶7-8.) She provides a copy of the invoices as
Exhibit A. (Id., ¶7, Ex. A.)
As an initial matter, the
Court finds that the hourly rate sought by Mr. Mazur is reasonable at $175/hour. While the Court recognizes that this may be a
modest rate given the work performed by Ms. Mazur and the result she obtained
on appeal in favor of her client, Ms. Mazur stated that she charged Plaintiff a
drastically reduced rate of $175. (Mazur
Decl., ¶8.) The Court will keep the
hourly rate at $175/hour.
Next, based on the billing
invoices provided by Ms. Mazur, the Court finds that the time spent by Ms.
Mazur on the appeal is reasonable at 87.7 hours. The amount of time spent on tasks is not
inflated and appears to be reasonable in the Court’s view. As such, no reductions shall be made to the
time spent by Ms. Mazur on appeal.
Taking Ms. Mazur’s hourly
rate of $175/hour and the 87.7 hours spent on appeal, this totals
$15,347.50. The motion is granted in the
amount of $15,347.50.
DISCUSSION RE MOTION FOR REFUND OF UNDERTAKING
Plaintiff moves for an order
granting her a refund of the $1,000 undertaking she deposited in connection
with an application for preliminary injunction.
CCP § 529(a) states:
(a) On granting an injunction, the court
or judge must require an undertaking on the part of the applicant to the effect
that the applicant will pay to the party enjoined any damages, not exceeding an
amount to be specified, the party may sustain by reason of the injunction, if
the court finally decides that the applicant was not entitled to the
injunction. Within five days after the service of the injunction, the person
enjoined may object to the undertaking. If the court determines that the
applicant's undertaking is insufficient and a sufficient undertaking is not
filed within the time required by statute, the order granting the injunction
must be dissolved.
(CCP §
529(a).)
The following background is relevant
for the purposes of this motion:
The purpose of the
undertaking was to compensate Mr. Kevorkian for the imposition of the
injunction entered against him in the event that the Court finally
decided that Plaintiff was not entitled to the injunction. Based on the procedural history of the case
outlined above, Plaintiff has not only established that she had grounds for
seeking and obtaining the preliminary injunction, but a permanent injunction
was entered against the Kevorkians and this judgment for a permanent injunction
was affirmed by the Court of Appeal.
In opposition, Mr.
Kevorkian argues that Plaintiff has not shown her entitlement to the $1,000
undertaking, her motion is untimely, the fire lane is invalid, and that the
laws and the Court are corrupt and racist.
Other than making these conclusory arguments, Mr. Kevorkian has not
supported his one-page memorandum of points and authorities with legal
authority. Mr. Kevorkian has not
presented contrary law with respect to CCP § 529, nor has he provided any legal
authority showing that Plaintiff’s motion is untimely. The Court also declines to reiterate its
decision that amply discussed the fire lane.
Finally, Mr. Kevorkian has raised his sentiments regarding the law and
the court processes over multiple briefs and hearings, but such arguments fail
to address why the undertaking should not be refunded to Plaintiff.
For these reasons,
the motion is granted. The undertaking
posted by Plaintiff in the amount of $1,000 shall be released and refunded to
Plaintiff.
CONCLUSION
AND ORDER
Plaintiff Lisa Hastings’s motion for attorney’s fees on
appeal is granted in the amount of $15,347.50.
Plaintiff Lisa Hastings’s motion for refund of the
undertaking in the amount of $1,000 (posted by Plaintiff on November 14, 2016) is
granted. Plaintiff is ordered to prepare
a proposed order for the Court’s signing, which includes the following
information: (1) the name of the person who posted the money; (2) the date the
money was posted; (3) the amount of money posted; (4) the receipt number; and
(5) the name and address of the individual to whom the refund will be
made. Accurate and complete information
is required for the financial department to release the funds.
Plaintiff shall provide notice of this order.
DATED: April 25, 2025 ___________________________
John
J. Kralik
Judge
of the Superior Court