Judge: Nick A. Dourbetas, Case: 2019-01073663, Date: 2022-12-09 Tentative Ruling

1. Motion – Other – Judgment of Dismissal

2. Motion for Attorney Fees re: Ascentium Capital LLC

Motion 1:

Cross-Defendant Ascentium Capital LLC’s Motion For Entry of Separate Judgment is GRANTED. (see Calif. Code Civ. Proc. §§ 578 and 579.)

A judgment may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, thereby leaving the action to proceed with the remaining parties. (Calif. Code of Civil Proc.  §§ 578, 579; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 577-578.)

The court determines that the entry of a separate judgment is proper and in the interests of justice. (See Calif. Code of Civil Proc.  §§ 578, 579.)

Criteria considered by the court in granting this motion includes, but is not limited to:

(i)       Based upon the partial reversal of the court’s initial judgment, cross-complainant Yellow Dog and cross-complainants Pientok and Sonichsen are in completely different positions in this litigation;

(ii)      The court of appeal determined that cross-complainants Pientok and Sonichsen lacked standing to pursue the cross-complaint (Opinion pg. 10 (ROA 408);

(iii)     As between cross-defendant and cross-complainants Pientok and Sonichsen, the action is final, based upon the issuance of the remittitur by the court of appeal. (ROA 408)

“The trial court, in its discretion, may enter judgment in favor of one or more defendants when all issues between those defendants and the plaintiff have been adjudicated, even if the action remains pending against those defendants who have not obtained adjudication of all issues.”  

(See Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 764 [citing Oakland Raiders, supra.])

The holding in Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 in distinguishable from the position urged by cross-complainants Pientok and Sonichsen because the judgment against them was not vacated, as was the case in Allen.

Pursuant to the holding in Allen v. Smith, the court vacates its 02/25/21 order to the extent that it awarded attorney’s fees and costs against cross-complainant Yellow Dog Holdings, LLC, and the balance of the order awarding attorney’s fees against cross-complainants Pientok and Sonichsen shall remain unchanged.

Cross-defendant’s request for judicial notice is granted. Judicial notice is limited to the existence of, filing of, and legal effect of the judicial records, but not as to the truth any disputed factual matter therein.

Motion 2:

Cross-Defendant Ascentium Capital, LLC’s Motion for Attorney’s Fees on Appeal is GRANTED. (See Civ. Code § 1717.)

An award of appellate attorney fees is not dependent on an award of appellate costs. (See Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 925-928.) As the court of appeal’s opinion only awarded costs to cross-complainant Yellow Dog Holdings, LLC, the opinion did not preclude cross-defendant from seeking appellate attorney’s fees against cross-complainants Douglas Pientok and William Sonichsen.

Cross-complainant’s arguments against an award of appellate attorney’s fees are without merit. In particular, cross-complainants Douglas Pientok’ and William Sonichsen’s personal guarantees waived the right to assert limited or no liability if Yellow Dog is found to lack liability in the trial of the cross-complaint.

The court finds that as between cross-defendant and Douglas Pientok and William Sonichsen, that cross-defendant was the prevailing party on the appeal, and that the lodestar amount of appellate attorney’s fees is $28,028.80.

Cross-defendant Ascentium Capital, LLC is ordered to prepare a separate judgment and to give notice of all the above.