Judge: Lee W. Tsao, Case: 22NWCV00027, Date: 2023-09-28 Tentative Ruling
Case Number: 22NWCV00027 Hearing Date: October 31, 2023 Dept: C
Francisco L. Quintero, et al.
vs Victor M. Jimenez, et al.
CASE
NO.: 22NWCV00027
HEARING: 10/31/23
#6 TENTATIVE
ORDER
Cross-Defendant’s/Plaintiff’s
motion to dismiss the Cross-Complaint is GRANTED.
The
Court GRANTS sanctions in the reduced total amount of $6,776.65.
Moving
parties are ordered to give notice.
Background
This action for partition was
filed by Plaintiffs/Cross-Defendants Francisco L. Quintero and Hilda M.
Quintero (collectively “Cross-Defendants”) on January 13, 2022.
On March 1, 2022,
Defendants/Cross-Complainants Victor M. Jimenez and Julieta M. Romero (collectively
“Cross-Complainants”) filed a Cross-Complaint seeking quiet title, declaratory
relief, intentional misrepresentation, unjust enrichment, promissory estoppel,
and accounting.
On March 15, 2023, Cross-Defendants,
deposed Julieta Romero and Victor Jimenez. The testimony of Victor Jimenez
brought discrepancies in comparison to allegations made under penalty of
perjury in the verified cross-complaint. When deposing Romero, Plaintiffs also discovered
numerous discrepancies that do not coincide with the cross complaint.
On August 30, 2023, counsel for
Cross-Defendants met and conferred with Cross-Complainants’ counsel to discuss
dismissing the causes of action in the cross-complaint. (Rokita Decl., ¶ 4.)
Parties did not agree.
On September 26, 2023,
Cross-Defendants brought the instant motion to dismiss under CCP § 128.7.
On September 29, 2023,
Cross-Defendants brought an ex parte application to continue trial, which was
granted on October 2, 2023.
Trial is currently set for
November 13, 2023.
Legal Standards
An attorney filing a pleading
must make “an inquiry reasonable under the circumstances” to ensure that its
“claims, defenses, and other legal contentions therein are warranted” and that
“allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.” (CCP §
128.7(b)(2)-(3).) Moreover, “to satisfy [the] obligation under [section 128.7]
to conduct a reasonable inquiry to determine if his [or her] client’s claim was
well-grounded in fact, the attorney must take into account [the adverse
party’s] evidence.” (Bucur v. Ahmad, (2016) 244 Cal. App. 4th 175, 190.)
The Supreme Court of
California has articulated that California Code of Civil Procedure Section
128.7 “provides a remedy for improperly speculative pleading.” Bockrath
v. Aldrich Chem. Co., 21 Cal.4th 71, 82 (1999) (“Bockrath”). That
provision “enables courts to deter or punish frivolous filings which disrupt
matters, waste time, and burden courts’ and parties’ resources.” (In re Mark
B., (2007) 149 Cal. App. 4th 61, 76.) Section 128.7 also permits a California
Court to “impose sanctions for filing a pleading if the court concludes the
pleading . . . was indisputably without merit, either legally or factually” or,
in other words, “legally and factually frivolous.” (Peake v. Underwood,
227 Cal. App. 4th 428, 439.) The Fourth District Court of Appeal has further
elucidated the concept of frivolity as follows:
A
claim is factually frivolous if it is not well grounded in fact and it is
legally frivolous if it is not warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law. In
either case, to obtain sanctions, the moving party must show the party’s
conduct in asserting the claim was objectively unreasonable. A claim is
objectively unreasonable if any reasonable attorney would agree that [it] is
totally and completely without merit.
(Id. (internal citations and quotation marks
omitted); McCluskey v. Henry, (2020) 56 Cal. App. 5th 1197, 1206.) “When
establishing a claim is factually or legally without merit under Code of Civil
Procedure section 128.7, it is not necessary to show the party acted with an
improper motive or subjective bad faith.” (Peake, 227 Cal. App. 4th at
449.)
Under CCP § 128.7(c)(1), “a motion for
sanctions “shall be made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision.”
Discussion
i.
Cross-Defendants’ Arguments
In their motion, Cross-Defendants
request that this Court impose the sanctions of dismissal and attorneys’ fees,
because counsel for Cross-Complainants acted “objectively unreasonabl[y]” by
not conducting an inquiry reasonable under the circumstances that would have “easily
and incontestably” demonstrated that Victor Jimenez was unaware that a
Cross-Complaint was filed on his behalf.
Cross-Defendant argues that when deposed Defendant/Cross-Complainant
Victor Jimenez brought significant discrepancies in comparison to allegations
made under penalty of perjury in the verified cross complaint. During his
deposition, Cross-Complainant Jimenez stated that he did not have a currently
pending cross-complaint against the Plaintiffs, no one had the authority to
sign documents on his behalf, that he did not recognize the signature
attributed to him on the Cross-Complaint, his daughter would not have signed it
on his behalf, and the reason Cross-Defendants are listed on the deed is due to
him asking them to sign it. (Jimenez Depo 80:15-24; 112:2-24; 112:13-24; 111:25
– 112:1-11).
The Cross-Complaint shows that
it was verified via Jimenez’s signature, signed under Penalty of Perjury. An
attorney has an obligation under CCP § 128.7(b) to conduct a reasonable inquiry
to determine if his client’s claim was well-grounded in fact. However,
according to the testimony of Jimenez, he was unaware as to why he was deposed
(Jimenez Depo 14:1-3), unaware that a Cross-Complaint was filed (Jimenez Depo
112:2-24), denied that a mortgage was ever taken out on the property (Jimenez
Depo 103:4-5), and denied that he ever asked the Cross-Defendant’s to co-sign
(Jimenez Depo 103:10-11). At Jimenez’s deposition, he stated that he was
unaware as to why he was required to attend the deposition (Jimenez Depo
14:1-4).
Under CCP § 128.7(b)(3), an
attorney is required to ensure that the allegations and other factual
contentions have evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery. Upon initial review of the cross-complaint, it
appears that the document was filed with the permission of cross-complainant
since a verification was included. However, when asked if he recognized the
verification at his deposition, Jimenez denied signing the document and was
unaware of a lawsuit filed on his behalf.
As to Cross-Compliant Romero,
in her deposition she stated that the only reason she was suing the Cross-Defendant’s
is because they sued her first. When asked again, she claimed that she was only
doing it to support her father. (Romero
Depo 49:7-23). However, her father was unaware that a cross-complaint was ever
filed. Romero also alleged that she does not have an issue with the Cross-Defendants
being named on the title. (Romero Depo 49:25 – 50:1-7). Cross-Defendants argue
that Romero’s allegations clearly state that the suit was filed for an improper
purpose, which was merely because the Cross-Defendants filed first.
ii. Cross-Complainants’
Opposition
In Opposition,
Cross-Complainants argue that under CCP § 128.7 motion “shall be made
separately from other motions or requests … .” (California Code of Civil
Procedure §128.7(c)(1).) They argue that in the instant case, Counsel for
Cross-Defendants is seeking sanctions in the amount of $34,600.20 and dismissal
of the Cross-Complaint, which they contend is not allowable under 128.7.
Cross-Complainants also argue
that the motion is untimely, as it was filed only thirty-five days prior to the
now continued trial date and was thus unnecessary given that the issues could
have been resolved at trial.
Cross-Complainants also argue
that of the $34,600.20 Cross-Defendants are seeking to have Cross-Complainants
pay, $32,124.43 is the amount Cross-Defendants, as Plaintiffs, incurred on
matters having nothing to do with the Cross-Complaint. (Declaration of Robert
P. Sievers ¶¶ 6-7.)
Cross-Complainants also argue
that that when the Cross-Compliant was filed, it was done so in good faith and
that Plaintiff Jimenez’s cognitive decline makes his deposition unjust. (Opp.
at p. 3.) Cross-Complainants attached a
doctor’s report outlining the cognitive decline. (Declaration of Robert P.
Sievers, Ex. 8, Report of Dr. Thomas Parisi p. 8.)
Iii. Cross-Defendants’ Reply
In Reply, Cross-Defendants
offer that Section 128.7 “provides a remedy for improperly speculative
pleading.” (Bockrath v. Aldrich Chem. Co., (1999) 21 Cal.4th 71, 82.)
Section 128.7 provision “enables courts to deter or punish frivolous filings
which disrupt matters, waste time, and burden courts’ and parties’ resources.” (In
re Mark B., (2007) 149 Cal. App. 4th 61, 76.)
In regard to Jimenez’s
cognitive decline, Cross-Defendants’ point to Romero’s testimony, who has now
been named Jimenez’s Guardian ad Litem, that also suggests the motion was filed
for frivolous reasons as her breach date would be barred by a statute of
limitations and was only done to help support her father. (Reply, p. 4.)
Analysis
i.
The Capacity of Mr. Jimenez
The Court must first address
the cognitive ability of Cross-Complainant Jimenez. In their Opposition, the Cross-Complainants
explain that a psychiatrist has determined that,
“Mr. Jimenez does not have the
capacity to engage in a rational and meaningful discussion about a real estate
legal matter in which he is involved. He is unable to consistently recall that
he is facing a lawsuit, is unable to grasp and manipulate the information
relative to the lawsuit, and is unable to appreciate the potential outcomes and
thereby the possible consequences of the lawsuit.”
(Sievers Decl., Exhibit B,
Report of Dr. Thomas Parisi, p. 8.)
In Reply, the Cross-Defendants
do not debate the cognitive decline of Cross-Complainant Jimenez, however,
Cross-Defendants argue that Cross-Complainants counsel was responsible for
notifying them at the earlier of the cognitive decline. Cross-Defendants evidence that in a
declaration filed on September 29, 2023, for the ex parte motion to continue
trial, Counsel noted that he had witnessed the cognitive decline of his client. However, prior to the declaration, from March
2023-September 2023, Counsel had submitted responses to Form Interrogatories,
Requests for Production, Special Interrogatories, and Requests for Admissions.
Counsel also allowed his client to be deposed, and then again provided request
for admissions (set two). It was not
until October 2, 2023, that Counsel notified Cross-Defendants of the dementia
diagnosis. After notifying Cross-Defendants of the diagnosis, Counsel still
noticed that he would be providing further responses to discovery. Counsel
further did not provide a medical report outlining the diagnosis until October
6, 2023.
The Court
notes that deposition of Cross-Complainant Jimenez occurred in March 2023,
statements made at the deposition that Jimenez did not remember signing the pleadings
should have put Counsel on notice of the cognitive decline of his client. However, Counsel provided responses to the
requests for admissions (Set Two) on September 4, 2023. He did not notify opposing counsel of the
dementia diagnosis until October 4, 2023.
A person over the age of 18 is
presumed to have capacity. (Cal. Probate Code § 810(a).) The October doctor’s
report does not provide evidence that Jimenez lacked capacity to answer
questions during the March deposition. Since, there is no evidence that Jimenez
lacked capacity and counsel for the Cross-Defendants were not made aware of a
dementia diagnosis until nearly seven months after the deposition, the Court
finds that Jimenez had capacity at the March 2023 deposition and thus will
consider the statements made therein.
ii.
Whether the filings were “frivolous” under
CCP § 128.7
“The purpose of section 128.7
is to deter frivolous filings.” (In re Marriage of Falcone & Fyke,
(2008) 164 Cal. App. 4th 814, 826.) “[E]ven though an action may not be
frivolous when it is filed, it may become so if later acquired evidence refutes
the findings of a prefiling investigation and the attorney continues to file
papers supporting the client’s claims. Thus, a plaintiff’s attorney cannot
‘just cling tenaciously to the investigation he had done at the outset of the
litigation and bury his head in the sand.’” (Bucur, 244 Cal. App. 4th at
190, quoting Childs v. State Farm Mut. Auto. Ins. Co., (1994) 29 F.3d
1018, 1025.)
As to Cross-Complainant
Romero, in her deposition she stated that the only reason she was suing the
Cross-Defendants is because they sued her first and to support her father
(Romero Depo 49:7-23). Romero also commented that she did not have an issue
with the Cross-Defendants being named on the title. (Romero Depo 49:25 –
50:1-7).
By the admissions of the
Cross-Complainant’s Jimenez and Romero, they either did not know of the
existence of the cross-complaint or did so because they were sued first.
While counsel for the
Cross-Complainants argue that when the cross-complaint was filed it was done so
in good faith, this argument falls flat as after the March 2023 depositions of
Jimenez and Romero as Council continued to file papers supporting the client’s
claims and did not drop suit after the revelations.
Also, the Court notes, Counsel
did not make an effort to discuss the cognitive decline of Jimenez at this
time. Therefore, he seemingly maintained a cross-complaint his client claimed
to have no idea about. Further, Romero
discussed only filing the crossclaim to help her father and because they had
been sued prior. These statements made during the depositions should have given
notice to Cross-Complainants’ counsel that the claims, as currently constituted,
lack merit.
iii.
Sanctions under CCP § 128.7
In California, a Court finding
a violation of Section 128.7(b) may award sanctions, including dismissal and
attorneys’ fees, from counsel. (CCP § 128.7(c)-(d); Peake v. Underwood,
(2014) 227 Cal. App. 4th 428, 432-33, 448-50 (affirming lower Court’s sanctions
of dismissal and attorneys’ fees pursuant to Section 128.7); Averill v.
Superior Court, (1996) 42 Cal. App. 4th 1170, 1176 n.2 (“We note that under
these circumstances section 128.7 might provide an alternative basis for
dismissing this suit.”).)
In Opposition,
Cross-Complainants argue that under CCP § 128.7 motion “shall be made
separately from other motions or requests … .” (California Code of Civil
Procedure §128.7(c)(1).) Counsel argues that the request for dismissal of the
cross-complaint and request for monetary sanctions should be separated.
However, the sanctions requests include the dismissal and the attorneys’ fees,
which is allowable under California law.
iv.
Timeliness of the Motion
Cross-Complainants believe
that there is no purpose the filing of the instance 128.7 motion, other than
the reallocation of attorneys’ fees and costs from Cross-Defendants to Cross
Complainants, because trial was set for only thirty-five days after the initial
filing of this motion.
Motions must be served on the
parties and filed with the court sixteen days prior to the hearing. (CCP §
1005.) This requirement was met. Further, Cross-Defendants filed an ex parte
application for a trial continuance to allow for a trial continuance to hear
plaintiff’s motion to dismiss, which was granted on October 2, 2023. (See
10-02-2023 Minute Order.)
Cross-Complainants further
allege that due to litigation of the cross-complaint it cannot be held that the
filing was frivolous. However, Section
128.7 does not only address the filing of frivolous claims, but also from
maintaining lawsuits deem frivolous, improper, or filed for an improper
purpose. Counsel met and conferred on
August 30, 2023, during this meet and confer Counsel for Cross-Defendants
discussed issues facing the cross-complaint.
(Rokita, ¶ 4.) The parties could
not agree on whether the Cross-Compliant causes of action should be dismissed,
therefore the Cross-Defendants brought the matter before the Court, as is their
right.
The Court therefore holds that
the motion was timely.
v.
Third Cause
of Action for Intentional Misrepresentation
CA Civ Code § 1710 defines
intentional misrepresentation as: 1. The suggestion, as a fact, of that which
is not true, by one who does not believe it to be true; 2. The assertion, as a
fact, of that which is not true, by one who has no reasonable ground for
believing it to be true; 3. The suppression of a fact, by one who is bound to
disclose it, or who gives information of other facts which are likely to
mislead for want of communication of that fact; or, 4. A promise, made without
any intention of performing it.
The Cross-Complaint alleges that:
(1) Cross-Defendants initially co-signed on the
mortgage of the Subject Property to enable Cross-Complainants to purchase the
Property since they were unable qualify on their own (Cross Complaint ¶ 15); (2)
Cross-Defendants agreed to remain on title temporarily and orally represented
that they would transfer title to Cross-Complainants after the mortgage was
paid off or refinanced (Cross Complaint ¶ 54); (3) Cross-Defendants made the
representations in or around October 1985 and knew that those representations
were false (Cross Complaint ¶ 55); and (4) In or around January 2022, Francisco
and Hilda breached the parties’ agreement by refusing to transfer title to the
Property to Cross-Complainants and by attempting to partition the Property by
sale for which they barely contributed any money as they only paid a fraction
of the mortgage during the 6 years they resided at the Property. (Cross
Complaint ¶ 77).
During his deposition,
Cross-Complainant Jimenez stated that he did not have a currently pending
cross-complaint against the Plaintiffs, no one had the authority to sign
documents on his behalf, that he did not recognize the signature attributed to
him on the Cross-Complaint, his daughter would not have signed it on his
behalf, and the reason Cross-Defendants are listed on the deed is due to him
asking them to sign it. (Jimenez Depo 80:15-24; 112:2-24; 112:13-24; 111:25 –
112:1-11).
During the Jimenez deposition,
he testified that he never took a mortgage out on the property in his life and never
asked the Cross-Defendants to co-sign on the property so that he could qualify
for a mortgage (Jimenz Depo 103:4-7 and 103:8-11). According to Jimenez, the Cross-Defendants
never co-signed on the property or agreed to temporarily remain on title, the
“false representations” alleged in Paragraph 55 of the Cross-Complaint never
occurred nor could Jimenez have relied on these material representations if the
conversation never happened. (Cross Complaint ¶ 57). It follows therefore, that
Jimenez did not rely on the representations to his detriment. (Cross Complaint
¶ 58.)
Therefore, the third cause of
action for intentional misrepresentation is dismissed.
vi.
Fourth
Cause of Action for Unjust Enrichment
“One person should not be
permitted to unjustly enrich himself at the expense of another, but should be
required to make restitution of or for property or benefits received, retained,
or appropriated, where it is just and equitable that such restitution is made”.
(Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779,793.)
Under California law, for unjust enrichment matters, the Legislature has
provided a two-year statute of limitations period covering contracts not
founded upon an instrument of writing. (Code of Civil Procedure § 339(1).)
Where the ground for rescission is fraud or mistake, the time does not begin to
run until the discovery by the aggrieved party of the facts constituting the
fraud or mistake. (Code of Civil Procedure § 339(3).)
Here, in her deposition,
Romero states that she requested the transfer of the property in 2016. (Romero
Depo 59:2-8.) In 2015, the Cross-Complaint alleges that Cross-Complainants
became 100% owners of the property. (Cross-Complaint ¶¶ 25-27.) The
Cross-Complaint alleges that the transfer of the property was to happen after
the property was paid in full. (Cross-Complaint ¶¶ 29, 66.) It follows that the
statute of limitations began to run then as she was made aware of the alleged
benefit provided to Cross-Defendants. From the face of the Complaint, it seems
that Cross-Complainants were aware of the alleged deal and knew they paid off
the home in 2015. Further, Romero states
she requested the transfer in 2016. Given
these facts, the two-year statute of limitations began to run in 2016, at the
latest. This action was filed in 2022, six
years after the statute of limitations began to run. Therefore, this claim is barred by the
statute of limitations.
Cross-Complainants’ fourth
cause of action for unjust enrichment is dismissed.
vii.
The fifth cause of action for promissory
estoppel
The elements of a promissory
estoppel claim are “(1) a promise clear and unambiguous in its terms; (2)
reliance by the party to whom the promise is made; (3) [the] reliance must be
both reasonable and foreseeable; and (4) the party asserting the estoppel must
be injured by his reliance.” (US Ecology, Inc. v. State of California (2005)
129 Cal.App.4th 887, 901.) Generally, the limitations period is four years for
written contracts (Cal. Civ. Proc. Code, §337, subd. (a)), and two years for
oral agreements. (Cal. Civ. Proc. Code, §339, subd. (1)). A contract cause of
action does not accrue until the contract has been breached. (Spear v. Cal.
State Automobile Assn. (1992) 2 Cal.4th 1035, 1042.)
The mortgage was paid off in
2015 and the Cross-Complainants were aware that they had paid off the mortgage.
There is no indication that a delay in discovering the breach was caused by the
Cross-Defendants after the 2016 request, such as a promise to transfer by a
certain date. For the reasons noted above, this cause of action fails due to
the statute of limitations running. In this instance, four years have lapsed.
Therefore, this claim is barred by the statute of limitations.
Cross-Complainants’ fifth
cause of action for promissory estoppel is dismissed.
viii.
The sixth cause of action for accounting
For an accounting claim to be
available, a litigant must prove two elements: (1) a relationship that requires
accounting exists between the plaintiff and the defendant, and (2) that some
balance is owed to the plaintiff, which can only be ascertained with an
accounting. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)
Therefore, when a plaintiff is alleging a right to recover a sum of damages
that is certain or can be made certain by calculation, an action for accounting
is not available. (Id.) There is no specific limitations period for an
action for an accounting. Consequently, the four-year limitations period in the
catch-all provision of Code of Civil Procedure section 343 applies.
Taking the dates most
favorable to Cross-Complainants, for the reasons noted above, the accounting
cause of action still fails, since the statute of limitations would have
expired before the cross-complaint was filed.
Cross-Complainants’ sixth
cause of action for accounting is dismissed.
ix.
The first cause of action for Quiet Title
Now having the facts before
us, the Court will consider the first cause of action for Quiet Title. In Salazar
v. Thomas, (2015) 236 Cal.App.4th467, 477, ruled that the likely statute of
limitations applicable to various underlying causes of actions were as follows:
3 years for claims based on fraud or mistake; 4 years for claims based on the
cancellation of an instrument; and 5 years for claims based on adverse
possession.
The Court notes, Romero
alleges that she had no issue with the Cross-Defendants being on title. (Romero
Depo 49:24-25 – 50:1-3). Jimenez alleged in his deposition that he never
discussed having the Cross-Defendants on title, in conflict with paragraph 36
of the cross-complaint. (Jimenez Depo 103:6-11).
Further, the statute of
limitations has lapsed. The cross-complaint does not contain a claim for
cancellation of a written instrument or adverse possession. The most
appropriate claim made by Cross-Complainants would fall into the three-year
statute of limitations based on fraud or mistake since Cross-Complainants
alleged that they were defrauded by the Cross-Defendants. Thus, the three-year statute of limitations
has run and this claim is barred,
Cross-Complainants’ first
cause of action for quiet title is dismissed.
x.
The second cause of action for declaratory
relief
Declaratory relief is
traditionally used for statutory and contract interpretation. (Von Durjais
v. Bd. of Trustees, (1978) 83 Cal. App. 3d 687.) Declaratory relief is also
“an appropriate method for obtaining a declaration that a statute or regulation
is facially unconstitutional.” (Tejon Real Estate, LLC v. City of Los
Angeles, (2014) 223 Cal. App. 4th 149, 154.) Declaratory relief has two
elements a party must satisfy: “(1) a proper subject of declaratory relief, and
(2) an actual controversy involving justiciable questions relating to [the
party’s] rights or obligations.” (Jolley v. Chase Home Finance, LLC,
(2013) 213 Cal. App. 4th 872, 909.)
Declaratory relief is not
proper under the circumstances here under CCP § 1061 because all of the causes
of action brought herein are barred by the statute of limitations.
Cross-Complainants’ second
cause of action for declaratory relief is dismissed.
xi.
Monetary Sanctions
Having
addressed the sanctions, the Court now turns to the amount in damages.
Cross-Defendants
request $34,600.20 in damages. Counsel
represents that the damages are calculated as 61.6 Hours spent working on the
matter, 4 hours opposing the motion, and appearing at the hearing at a rate of
$395 per hour, calculated at $25,912.00.
34.7 hours of the paralegal’s work on this matter, 1.6 hours
finalizing/serving the opposition at a rate of $85.00 per hour for a total of
$3,085.50. Further, Counsel requests
costs totaling $5,539.58, $13.12 in filing fees, and $50 in courtesy copies on expense
for a total amount of $5,602.70.
Cross-Complainant’s
Counsel states that of the $34,600.20 Cross-Defendants are seeking
to have Cross-Complainants pay, $32,124.43 is the amount incurred on matters
having nothing to do with the Cross-Complaint.
California Code of Civil
Procedure §128.7 is designed to be remedial not punitive. (Ly v. Majestic
Industry Hills LLC (2009) 177 Cal.App.4th 585, 591.) Here, Cross-Defendants
note that when the Cross-Complaint was filed it may not have been frivolous and
that later-acquired evident refuting the finding of a pre-filing investigation
may have determined that the action should not have been continued. Therefore, time spent litigating the action
prior to that determination will not be included in the award of sanctions.
In addition, appellate courts in
California have held that an award of attorney fees that did not compensate for
paralegal service time would not fully compensate the attorney. (Guinn v. Dotson (1994) 23 Cal.App.4th 262.) They
further examined the legislative intent of attorney fee statutes and found
considerable case history to support the concept that the generic term Attorney
fees was intended to encompass paralegal fees, where the prevailing practice is
to separately bill a client for paralegal service time. (Id.)
Utilizing a lodestar
approach, the Court finds that sanctions should be reduced to only work
connected with the instant motion after the determination that the claims were
meritless. The Court awards sanctions for
the reasonable amount of $6,715.00 (calculated as 17 hours including the time
spent opposing the instant motion and appearing at the hearing at a rate of
$395 per hour and 2.6 hours at a rate of $85.) Plus, reimbursement of the
filing fee of $61.65, for a reduced total amount of $6,776.65.
Conclusion
Cross-Complainants’ first
cause of action for quiet title, second cause of action for declaratory relief.
third cause of action for intentional misrepresentation, fourth cause of action
for unjust enrichment, fifth cause of action for promissory estoppel, and sixth
cause of action for accounting are dismissed.
The Court GRANTS sanctions in the reduced
total amount of $6,776.65.
Moving
parties are ordered to give notice.