Judge: Mark A. Young, Case: 20SMCV01023, Date: 2023-02-02 Tentative Ruling


Case Number: 20SMCV01023    Hearing Date: February 2, 2023    Dept: M

CASE NAME:           Klenk v. Behringer Harvard Redwood Property LLC, et al.

CASE NO.:                20SMCV01023

MOTION:                  Motion for Sanctions

HEARING DATE:   2/2/2023

 

Legal Standard

 

Code of Civil Procedure section 177.5 provides the following: 

 

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.  This power shall not apply to advocacy of counsel before the court.  For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both. 

 

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard.  An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order. 

 

“The imposition of monetary sanctions under section 177.5 ‘is within the discretion of the trial court.’” (People v. Ward (2009) 173 Cal.App.4th 1518, 1527.) “‘That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.’” (Id.)

 

 

EVIDENTIARY ISSUES

 

Defendants’ evidentiary objections are OVERRULED.

 

 

Analysis

 

The Court previously fashioned a series of orders concerning Plaintiff’s temporary housing. The Court will address each order and the parties’ respective contentions.

 

Regarding Alternative Housing

 

Plaintiff cites multiple orders regarding alternative temporary housing, such as Defendants’ obligation to provide alternative comparable units at specific locations.

 

For example, on April 14, 2021, the court ordered that “defendant SHALL provide plaintiff with the option to temporarily move into a different unit (one that is not adjacent to the current unit either side by side, above or below) on or before April 19, 2021; plaintiff shall not be charged any additional rent for the temporary unit.”

 

On September 8, 2021, the court issued an ordering requiring a representative of defendants to appear on September 17, 2021, and “…be prepared to provide the court with a list of all available units at the Neptune, as well as those available at any other property owned by Greystar within 10 miles of plaintiff’s current unit, UNLESS the parties have reached an agreement to a new unit for plaintiff to reside.”

 

On June 30, 2021, at a Further Status Conference, this court ordered defendants to submit a list of units provided on July 2, 2021.

 

On October 27, 2021, the court granted plaintiff’s request for a Preliminary Injunction. The court ordered, among other things, that defendants “provide alternative housing to plaintiff until the habitability issues at plaintiff’s residence are remediated, i.e. mold and formaldehyde, etc.” The court also granted Plaintiff’s request that she be allowed to stay at The Ritz Carlton in Marina Del Rey, as it did not have a 28- or 30-day occupancy time limit.

 

Plaintiff contends that Defendants have not offered a suitable unit as required by these orders. For instance, Defendants have not provided a list of available units. (Klenk Decl., ¶15.) However, Defendants have not violated these orders regarding alternate housing. The Court and the parties came to several agreements regarding her living situation, including a finding that the hotel accommodations are adequate alternative housing. Thus, the Court is disinclined from granting sanctions stemming from Defendants’ failure to comply with this aspect of the orders.

 

Moreover, the October 27, 2021, order did not require Defendants to find a permanent solution by the end of 2021 or any date. At best, the Court “expected” that this was to be done but did not order such. As will also be discussed further below, the record does not show that there was any strict remediation schedule, beyond a vague expectation that the remediation would be done quickly. Further, the Court does not see a need to impose additional sanctions to compel defendants to remediate the apartment. The per diem expenses already imposed will adequately reimburse Plaintiff for any delays in remediation.

 

Regarding Remediation Plans

 

Plaintiff contends that Defendants have failed to honor the remediation and storage plan. Plaintiff notes that there has been no source testing or remediation activities, such as removal and replacement of formaldehyde-containing products.

 

Defendants’ remediation plan was adopted by minute order on May 2, 2022. (See 2/25/22 Shuhaimi Declaration.) Defendants proposed specific vendors for specific remediation work. (Shuhaimi Decl., ¶ 3.) First, Plaintiff’s items were to be removed from the apartment during the remediation process, at Defendant’s expense. (¶¶ 4-5.) Following removal of the belongings, Defendants’ vendors were to perform the remediation work as detailed. (¶¶ 6-13.) Defendants were “informed by their vendors that the remediation process could take one month to one and a half months to complete depending on the vendors’ findings, testing results turnaround time, and any other applicable factors.” (¶ 13.)

 

On May 18, 2022, the Court clarified that “Defendant shall control the remediation of Plaintiff’s Unit. Plaintiff shall have the right to test the unit once remediation is complete, but at Plaintiff’s expense.”  On July 8, 2022, the Court issued its order finding and ordering as follows: “Defendant’s counsel represents that the Marriott is available to move in immediately through August 6, 2022, the Court so orders. The per diem as previously ordered by the Court shall remain in full forth (sp.) and effect.”

 

Based on this statement, Plaintiff’s counsel expected that the Apartment would be remediated and available for occupancy on approximately August 6, 2022. (Brody Decl., ¶ 15.) Counsel represents that the first stages of the remediation work did not begin until August 11, 2022. (Id.)  Notably absent from this discussion is any order from a court that required Defendants to maintain any particular timeline. Therefore, the Court cannot sanction Defendants failing to obey non-existent orders.

 

Regarding Expenses

 

On the other hand, the Court has ordered per diem expenses on certain terms. On August 18, 2021, the Court ordered that, during the agreed upon 30-day period were the Apartment was to be vacated, defendant was to “pay for plaintiff’s temporary accommodation and a per diem for food and reasonable incidentals.” The Court reiterated at several points that defendants were to reimburse plaintiff for her incidental expenses starting in July 2021. (Minute Orders for 9/8/21;  9/17/21; 10/4/21; 10/13/21; and 10/27/21.)

 

On October 13, 2021, the Court ordered that “defendant shall pay the verified cost for plaintiff’s parking from July 7, 2021, to the present, and shall continue until any/all remediation and final testing is completed as to plaintiff’s unit; said payment shall be made within 7 days of the presentation of documentation in support thereof by plaintiff to defendant. Thereafter, any such parking payments shall be made directly to the hotel henceforth.”

 

On October 4, 2021, the Court issued its order, requiring in part that: “defendant shall file proof with the court (via declaration) within five (5) days that plaintiff has been paid her incidental expense amount from July 1 through September 30, 2021. Thereafter, defendant shall make such payment every two weeks until plaintiff has returned full-time to her unit at Forty55 Lofts.”

 

Plaintiff contends that Defendants violated the expense orders because Defendants did not pay the full per diem amounts for food as and incidentals. Plaintiff proffers the following evidence:

 

A. Per Diem Food: $71.00 per day, 461 days from July 1, 2021, to October 4, 2022—$32,731.00;

 

B. Per Diem Incidentals: $111.00 per day, 461 days from July 1, 2021, to October 4, 2022—$51,171.00;

 

C. Parking Charges from July 2021—$1,350.00;

 

D. Out of Pocket Hotel: Plaintiff incurred a total of $1,737.45 for out-of-pocket expenses to pay for hotel rooms because defendants did not timely provide plaintiff with hotel accommodations. Plaintiff paid $483.65 for hotel accommodations for June 7, 2022, $337.60 for hotel accommodations for the evenings of July 6 and 7, 2022, $305.40 for August 4, 2022, $305.40 for September 1, 2022, and $305.40 for October 1, 2022; and

 

E. Less Amount Paid: Payments made by Defendants from August 18, 2021, through July 14, 2022, total $26,202.00.


(Klenk Decl. ¶¶ 18-19.) Defendants have failed to pay the full per diem amount due to Plaintiff and failed to pay every two weeks. (¶¶18, 23.) Defendants have not provided the accounting documents, or paid plaintiff on the 1st and 15th of each month. (Brody Decl., ¶¶16, 17; Klenk Decl., ¶27.)

 

Defendants, in response, proffer the assertion that the agreed upon “per diem was $990/month, which includes meals and incidentals. The agreement included payment for parking. All per diem and parking payments have been paid. Plaintiff has continued to argue that $182/day per diem was agreed to and/or ordered by the court.” (Ward Decl., ¶ 14.) Defendants cite no agreement, order or any written evidence that the agreed upon “per diem” was $990 per month. Defendants proffer no substantive evidence that “all” per diem payments have been paid. Defendants do not account for any amounts incurred or already paid. Notably, Defendants were obliged to keep an accounting ledger for expenses past and future payments. (10/27/21 MO [“Defendant shall provide Plaintiff will an accounting ledger for all past per diem payments and one with all current and future payments, so that each payment can be properly reconciled.”].) Defendants also forward no arguments regarding the reasonableness of the per diem expenses claimed. In contrast, Plaintiff provides a substantive accounting of expenses under oath, including an averment that Defendants have only paid $26,202.00 of the amount claimed. Thus, the Court is inclined to follow Plaintiff’s accounting, in light of Defendants failure to provide any substantive evidence on the issue.

 

Conclusion

 

As discussed, Defendants are already obligated by court order to provide adequate alternative housing during the remediation efforts, until such time the apartment is safe and habitable. Critically, Defendants are obligated to pay reasonable expenses. Plaintiff demonstrates that Defendants have failed to pay all reasonable expenses as contemplated by the above orders, including $68,240.00 for hotel, parking, and incidental expenses.

 

Accordingly, Plaintiff’s motion for sanctions is GRANTED. Defendants shall be sanctioned in the amount of $750.00 for this violation. (CCP § 177.5.) The Court will set an OSC Re: Compliance with the Court’s expense orders. If Defendants do not comply with the previous court orders by that date, additional sanctions shall be imposed daily.

 

Finally, Plaintiff requested a court reporter for today’s hearing, but failed to request the reporter ten days before the date set for the hearing.  Therefore, it is denied.