Judge Mitchell L. Beckloff, Case 19STCP05134 2022-07-29 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 19STCP05134, Date: 2022-07-29 Tentative Ruling

This action arises from allegations by Plaintiff/Petitioner, Dina Fangary, that Defendants/Respondents, the City of Hermosa Beach, Mary Campbell, Stacey Armato, Justin Massey, and City Attorney Michael Jenkins, violated the Brown Act. The parties have engaged in extensive motion practice with a series of demurrers and motions to strike. A single cause of action remains to be tried; trial is set in March 2023.

Defendants’ request for judicial notice is granted. The court has also reviewed its own files in considering the motion.

On October 6, 2021, the court heard Defendants’ demurrer to three of four causes of action and a motion to strike Petitioner’s third amended petition and complaint. The court sustained the demurrer and denied Defendants’ motion to strike as moot. The court granted 30 days leave to amend. The parties waived notice of the court’s ruling.

On November 10, 2021, 35 days after the court sustained Defendants’ demurrer, Defendants filed a notice Plaintiff had failed to file an amended petition and complaint. The notice detailed Defendants’ counsel’s communication with Plaintiff’s counsel. Defendants’ counsel advised Plaintiff’s counsel she would consider moving ex parte to dismiss the causes of action for which the court had sustained the demurrer if Plaintiff’s counsel failed to file the amended pleading by November 9, 2021.

One week later, after Plaintiff’s counsel failed to file the amended pleading, Defendants moved ex parte to dismiss the causes of action Plaintiff had chosen not to amend. Defendants’ counsel advised the court Plaintiff’s counsel “had emailed Defendants’ counsel late the previous afternoon to both object to the sufficiency of the notice of the Application and to state that Plaintiff’s counsel was unavailable to appear.” (Notice of Ruling filed Nov. 17, 2021.) Plaintiff did not appear at the hearing and failed to file any opposition to Defendants’ ex parte application.

The court granted Defendants’ ex parte application pursuant to Code of Civil Procedure section 581, subdivision (f)(2) and California Rules of Court, Rule 3.1320, subdivision (h).

On November 29, 2021, Plaintiff filed her motion for reconsideration of the court’s order dismissing three causes of action from the petition and complaint. Petitioner’s counsel relied, in part, on the attorney-fault mandatory set aside provision of Code of Civil Procedure section 473, subdivision (b). Defendants opposed the motion.

On April 13, 2022, the court granted Plaintiff’s motion for reconsideration of the court’s November 17, 2021 order dismissing three causes of action based on Petitioner’s counsel’s affidavit of fault and Code of Civil Procedure section 473, subdivision (b). The court therefore permitted Plaintiff to file a fourth amended petition and complaint.[1] In the court’s April 13, 2022 order, the court held the City was entitled to “reasonable compensatory legal fees and costs” fees pursuant to pursuant to Code of Civil Procedure section 473, subdivision (b) and reserved jurisdiction over the issue “pending further hearing.” (Order, April 13, 2022 p. 5.)

Defendants now move for an order fixing $8,982.16 as the amount of reasonable attorneys' fees and costs incurred for “opposing Petitioner’s Reconsideration Motion . . . .” (Motion 4:9.) Defendants explain their attorneys’ efforts at opposing the motion: “reviewing and analyzing the basis of Petitioner’s motion and its exhibits and ultimately investigating the prejudice that would result to Respondents if relief were granted.” (Motion 4:10-12.)

Plaintiff opposes the request. Plaintiff argues the request is insufficiently documented with evidence, Defendants failed to meet their burden of proof and the fees claimed are unreasonable.

As noted on April 13, 2022 and today, as the court set aside its November 17, 2021 order dismissing three causes of action in the petition and complaint, Defendants are entitled to “reasonable compensatory legal fees and costs . . . .” (Code Civ. Proc. § 473, subd. (b) [emphasis added].)

Contrary to their motion, Defendants are not entitled to an award of fees for their unsuccessful opposition to Plaintiff’s motion to set aside the dismissal of the causes of action.[2] The statute requires an award of "compensatory legal fees and costs” to reimburse a party for the unnecessary expense incurred in obtaining the dismissal order which the court sets aside because of attorney fault. (See Matera v. McLeod (2006) 145 Cal.App.4th 44, 68 [recovery of fees “necessitated by [attorney’s] neglect”].)

The court reviewed the Declaration of Megan K. Garibaldi and its attachments. The only evidence the court can tie to Defendants’ efforts at obtaining a dismissal—the expense incurred unnecessarily and based on Plaintiff’s counsel’s neglect—is on the billing for December 3, 2021. It appears Defendants incurred $377.59 in costs related to the ex parte application.[3] The court cannot discern from the other invoices provided the amount of fees incurred for Defendants’ counsel’s efforts (1) to determine whether Plaintiff had filed or intended to file a fourth amended petition and complaint, (2) Defendants’ counsel’s notice of Plaintiff’s counsel’s failure to file an amended pleading and (3) the ex parte application. While the Declaration of Megan K. Garibaldi indicates her time entries are shown for November 2021 in the attachments, it is not possible the $8,630.80 indicated for services provided in November 2021 is limited to the services listed above.[4]

Based on the lack of evidence provided as to “compensatory legal fees and costs,” the court cannot make any award.

The motion is denied. As Code of Civil Procedure section 473, subdivision (b) entitles Defendants to “reasonable compensatory legal fees and costs,” the motion is denied without prejudice.

The court suggests Defendants determine (prior the hearing in this matter) the amount of fees related to those services listed in footnote 4. There is no question Defendants are entitled to their compensatory fees and costs by statute. The court will therefore invite a stipulation in an effort to avoid further motion practice and expense for the parties.

[1] Plaintiff failed to file an amended petition and complaint within the time allotted by the court. Subsequently, the court again granted Defendants’ ex parte application for dismissal. One cause of action remains for trial.

[2] Where an affidavit of attorney fault is submitted in connection with relief from a dismissal order, “the court shall” vacate any dismissal entered . . . .” (Code Civ. Proc. § 473, subd. (b).)

[3] Nonetheless, Defendants seek only $143.56 in costs.

[4] Defendants’ notice of Plaintiff’s failure to file a fourth amended complaint consists of one full page. Counsel’s declaration filed with the notice is one and a third pages long. The declaration attaches four brief email communications between counsel. The ex parte application consists of the notice and three pages of argument. A declaration supporting the application is three pages long. Defendants submitted a brief proposed order with their application, appeared at a brief remote video hearing and gave notice of the court’s ruling. Given Ms. Garibaldi’s imminently reasonable hourly rate of $254, it is inconceivable Defendants incurred over $8,000 in attorneys’ fees related to obtaining the dismissal order.