Judge: Shirley K. Watkins, Case: 19VECV01571, Date: 2023-05-03 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 19VECV01571    Hearing Date: May 3, 2023    Dept: T

19VECV01571 JANNA BEYDER, INDIVIDUALLY ... vs ELIZA BEYDER

[TENTATIVE] ORDER:  Defendant/Cross-Complainant Eliza Beyder’s Amended Motion for Attorneys’ Fees on Partition is DENIED WITHOUT PREJUDICE as being premature.

  Introduction

            Defendant/Cross-Complainant Eliza Beyder (Eliza[1]) moved for attorneys’ fees against Plaintiff Stella Beyder and Cross-Defendant Stella Beyder (collectively, Stella.)  At issue is Stella’s second cause of action (COA) for partition in Stella’s Complaint (which was voluntarily dismissed on April 13, 2022) and Eliza’s first COA for partition in Eliza’s Cross-Complaint.  Eliza requested fees under Code of Civil Procedure section 874.010 in the amount of $206,370.00. 

            Discussion 

            Eliza requested her attorneys’ fees on the partition action and asserted to be the prevailing party.  (Code Civ. Proc. secs. 874.010 & 874.040.)  It is undisputed that the partition claims both in the Complaint and Cross-Complaint have been resolved to an extent.  The Court entered an interlocutory judgment ordering the sale of the property and determining the parties’ respective interests (i.e., 50-50.)  The only remaining claim at issue is the sixth COA for elder abuse by Plaintiff Janna Beyder (Janna) and against Eliza in Janna’s Complaint.  The partition claim between Eliza and Stella are not relevant to Janna’s elder abuse COA.  Stella argued that Eliza’s request for attorneys’ fees is premature.  In a partition action, any costs, and fees recoverable by plaintiff should be determined when the final decree of partition is made. The interlocutory decree, which directs the sale of the partitioned property, is not the place for such an award.  (Southern California Title Clearing Co. v. Laws (1969) 2 Cal.App.3d 586, 591 (Laws) (citing, Harrington v. Goldsmith (1902) 136 Cal. 168, 170.))  The Court finds that the Laws is directly on point with the issue presented.  A final decree of partition has not been made in that the sale has not been conducted and all costs have not been incurred.  The remaining claim by Janna is irrelevant to this analysis and the Court only looks to the Eliza’s defense of Stella’s partition claim in the Complaint and Eliza’s Cross-Complaint.  Per the Laws case, the instant motion is premature.

Eliza argued, in general, that the cases cited by Stella are distinguishable but Stella did not specifically argue why the Laws case is inapplicable.  In general, Eliza argued that Stella’s cases only involved a partition decree that involved other parties.  However, the issue of partition in Laws did not involve any other parties.  Eliza further argued that the Stella’s cases, in general, involved a partition order that was appealed.  However, the appeal in the Laws case involved the trial court’s interlocutory decree inclusion of an order as to fees.  The Court of Appeal, as cited above, expressly held that the inclusion of an order as to fees in the interlocutory decree was improper.  Issues as to fees are to be determined at the final decree.  The Court finds that the opinion in Laws to be directly on point here.

Eliza also cited to Code of Civil Procedure section 904.1 to argue that the interlocutory decree being appealable makes it a “final” judgment.  However, Eliza’s contention is an unsupported extrapolation of the statute.  The statute only provided that interlocutory decrees ordering a partition sale to be appealable.  The statute does not, nor can it be interpreted, state that interlocutory decrees are “final” judgments on a partition action.  Eliza’s argument is unpersuasive.

[TENTATIVE] ORDER:  Defendant Eliza Beyder’s Motion for Attorneys’ Fees per Code of Civil Procedure section 128.7 is DENIED.

  Introduction

            Defendant Eliza Beyder (Defendant) moved for sanctions against Plaintiff Janna Beyder and her counsel Michael Ludwig and his law firm (collectively, Plaintiff.)  Defendant requested $18,110.00. 

            Defendant’s reply was due April 26, 2023 and none was filed.

            Procedure

            Plaintiff argued that the September 23, 2022 correspondence served by Defendant to comply with the 21-day safe harbor provision of Code of Civil Procedure section 128.7 is vague because it did not identify the pleading to be withdrawn and expressly requested the dismissal of only the sixth COA.  However, the statute required that the actual motion be served 21 days prior to the motion being filed.  The proof of service attached to the motion showed that the motion was served on September 23, 2022.  Further, the “Enclosure:” line at the bottom of Defendant’s correspondence expressly stated that the motion was included with the letter.  (Janner Decl., Exh. E.)  The alleged defects with the contents of Defendant’s correspondence is of no consequence when reviewing compliance with the 21-day safe harbor rule.  The motion sufficiently asserted that the Complaint was being placed into issue, and specifically the fifth cause of action (COA) for fraud and sixth COA for elder abuse.  Plaintiff’s argument disputing compliance based upon the contents of the correspondence is not persuasive.  Defendant sufficiently complied with the 21-day safe harbor provision by serving the actual motion.

            Plaintiff argued that the statute is inapplicable to portions of a pleading or brief.  Plaintiff failed to present any legal authority to support the contention.  By presenting a pleading to the court, an attorney certifies that the “claims, defenses, and other legal contentions” are warranted by existing law or by nonfrivolous argument or that the “allegations and other factual contentions” have evidentiary support or likely to have evidentiary support.  (Code Civ. Proc. sec. 128.7(b)(2),(3).)  The statute authorizes sanctions for violating these certifications.  Because the statute authorizes the review of claims, defenses, legal contentions, allegations, and other factual contentions, the statute is read to allow the Court to review the two COAs in the Complaint.  Plaintiff’s argument that parts of a pleading are not reviewable under the statute is not persuasive.

“In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.”  (Code Civ. Proc. sec. 128.7(c).)  The Complaint was filed on October 31, 2019.  The motion was served on September 23, 2022 and filed on October 24, 2022.  Merely reviewing the chronology of the filings, there is a lack of diligence in filing the motion against the Complaint due to the almost three-year gap between the filing of the Complaint and the motion.  To the extent the motion is grounded on the alleged improper filing of the Complaint, Defendant’s motion lacks due diligence.  However, the motion was also grounded on the continued prosecution of these two COAs.  Because 128.7 sanctions are authorized for “later advocating” a pleading, the motion is not untimely when reviewing whether the later advocacy of the two claims continued to have a proper purpose, legal merit, or evidentiary support.

             Discussion 

            Defendant argued that Plaintiff’s filing of the fifth COA for fraud and the sixth COA for elder abuse in the Complaint had “no possibility of success.”  (Motion, pg. 4:18-19.)  The motion is unclear as to which certification is being placed into issue: (1) improper purpose (i.e., harassment, unnecessary delay, needless increase in litigation cost.)  (Code Civ. Proc. sec. 128.7(b)(1)); (2) lack of legal merit (Code Civ. Proc. sec. 128.7(b)(2)); or (3) lack of evidentiary support (Code Civ. Proc. sec. 128.7(b)(3).)  Sanctions based upon the violation of the certification of legal merit requires the claim to be unwarranted under existing law.  Sanctions based upon the violation of the certification of evidentiary support requires the formation of a claim without reasonable inquiry/investigation.  Sanctions based upon the violation of the certification of proper purpose requires the claim to be alleged presented primarily to harass, cause unnecessary delay, or needless increase in litigation costs. 

Defendant argued that the allegations under the fraud COA overlapped with the allegations of the equity claims (i.e., the first four COAs.)  Defendant’s argument appears to be that the overlap in factual allegations shows that the fraud claim lacked legal merit or evidentiary support or was for an improper purpose.  However, the overlap in factual allegations is insufficient to support such contentions.  The facts and the claims alleged in a pleading are derived from a singular set of transactions or facts.  Overlap in facts is almost a necessity in pleading.  The contention of overlap does not show how the fraud COA was unwarranted under existing law: Defendant did not make a reasonable inquiry/investigation; or the primary purpose of the fraud COA was to harass, cause unnecessary delay, or increase litigation costs.  Defendant’s argument is not persuasive.  

Defendant then argued that the elder abuse COA was without merit because Plaintiff had no evidence as to damages for the alleged stolen property.  Defendant’s contention relied upon the fact that Plaintiff’s exchange of experts lacked an expert witness to show valuation of the personal property that was allegedly stolen.  However, the contention is grounded on a standard not supported by any legal authority.  Defendant failed to present any legal authority to show that valuation of personal property is solely provable via expert witness testimony.  Value of personal property does not necessarily rely solely upon expert opinion, if at all.  As submitted by Plaintiff,

Defendant’s E-Bay records would have been evidence of valuation or consideration of the alleged stolen items taken and sold.  Defendant’s argument is not persuasive in that it is grounded on an unsupported standard of proof.

            Defendant’s motion for attorneys’ fees per Code of Civil Procedure section 128.7 is DENIED.