Judge: Richard S. Whitney, Case: 37-2022-00002185-CU-WM-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 11, 2023

10/13/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Writ of Mandate Motion Hearing (Civil) 37-2022-00002185-CU-WM-CTL DIESTRO INC VS THE ADMINISTRATIVE HEARING OFFICE OF THE CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PETITIONER DIESTRO, INC. D/B/A R.K. HOSTEL AND RITA KOSZTOLNIK'S MOTION FOR HEARING FOR ATTORNEY'S FEES is DENIED.

Petitioner DIESTRO, INC. D/B/A R.K. HOSTEL and RITA KOSZTOLNIK ('Petitioner') seeks attorney's fees from the Administrative Hearing Office of the City of San Diego and the TOT and TMD Assessment Appeals Boards ('Respondents') based on its successful petition challenging Respondents' decision as to Transient Occupancy Taxes ('TOT') Petitioner paid. Petitioner seeks attorney's fees based on Government Code section 800.

Government Code section 800 provides that 'if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant' who is 'prevails in the civil action may collect from the public entity reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.' (Gov. Code, § 800(a.) The Court concludes the proceeding was not the result of arbitrary or capricious action or conduct. 'The phrase 'arbitrary or capricious' encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute.' (Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1312 [Citation omitted].) The Court found this case to be a close call. The lack of evidence as to the percentage of credit card charges may have been a mistake, but it did not amount to an arbitrary or capricious action. Petitioner fails to provide any proof that a 10% credit card charge is anything but atypical.

Petitioner also seeks attorney's fees under CCP section 1021.5.

The award of attorney fees is proper under section 1021.5 if '(1) plaintiffs' action 'has resulted in the enforcement of an important right affecting the public interest,' (2) 'a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons' and (3) 'the necessity and financial burden of private enforcement are such as to make the award appropriate.'' (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317–318 [Citation omitted].) CCP section 1021.5 provides the 'court may award attorneys' fees to a successful party' in an 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 Calendar No.: Event ID:  TENTATIVE RULINGS

2999238 CASE NUMBER: CASE TITLE:  DIESTRO INC VS THE ADMINISTRATIVE HEARING OFFICE  37-2022-00002185-CU-WM-CTL 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.

(Code Civ. Proc., § 1021.5 [Emphasis added].) '[T]he Legislature obviously intended that there be some selectivity, on a qualitative basis, in the award of attorney fees under the statute, for section 1021.5 specifically alludes to litigation which vindicates 'important' rights and does not encompass the enforcement of 'any' or 'all' statutory rights.' (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935 [Citation omitted].) The Court agrees this is not a case that involved a sufficiently important right that affected the public. The dispute was largely about whether there was evidence in the record as to credit card charges. Further, Petitioner does not identify a statutory right that was vindicated. While the interpretation of the San Diego Municipal Code could affect others in the public, the Court does not view it as involving an important public right, especially in light of the decision centering around credit card charges that Petitioner does not demonstrate to be typical for other hotels.

Further, the Court cannot conclude that this action conferred a benefit on the general public or a large class of persons given that in September 2021, the City Treasurer issued a promulgation of rules clarifying that 'no deduction can be made from the calculation of Rent... including deductions for... credit card fees.' (Respondents' Exhibit 1.) Petitioner has not demonstrated that this action resulted in some change that conferred a benefit on a large group of persons.

The motion is denied.

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