Judge Stephen P. Pfahler, Case Number: BC709434, Date: 2023-09-26 Tentative Ruling

Judge: Stephen P. Pfahler, Case: BC709434, Date: 2023-09-26 Tentative Ruling

Case Number: BC709434 Hearing Date: September 26, 2023 Dept: F49

Dept. F-49

Date: 9-26-23

Case: BC709434

Trial Date: N/A

STRIKE LIEN/TAX COSTS

MOVING PARTY: Plaintiffs, Natasha Robinson and David Maxim, Pro Per

RESPONDING PARTY: Defendants, Farouk Riad, et al.

RELIEF REQUESTED

Motion to Adjudicate Lien

Motion to Tax Costs

SUMMARY OF ACTION

Plaintiffs Natasha Robinson and David Maxim are “residents” at Paseo Dorena Townhomes. The property is governed by Defendant Paseo Dorena Owners Association. Defendants Dina Marie Gordon, Louie Bryan Gonzalez and Monique Gordon are also residents at the property. Defendants Warren Davidoff, Melissa Lopez and Mike Dukoff are member of the Owners Association board

Plaintiffs allege that defendants Gordon and Gonzalez acted in a verbally and physically abusive manner to Plaintiffs. Plaintiffs allege that owner association rules impose a duty of care for “protection and quiet enjoyment of [residents’] property.” Plaintiff allege seeking assistance from the Owners Association board members, but said members took no protective action.

Plaintiffs also contend that Defendants made and repeated false accusations against Plaintiff Maxim regarding his conduct toward Defendant Gordon.

On June 8, 2018, Plaintiffs filed their complaint for Negligence (twice), Defamation (twice), Defamation Per Se, Breach of Covenant for Quiet Enjoyment, Intentional Infliction of Emotional Distress (twice), Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Assault & Battery (twice), Nuisance, Discrimination, Abuse of Process and Slander. The action was reassigned to Department 49 on October 24, 2018.

On February 11, 2019, the court sustained the demurrer to the complaint as to one of the negligence causes of action, the intentional infliction of emotional distress cause of action, one of the negligent infliction of emotional distress causes of action, and the discrimination cause of action. The demurrer is sustained without leave to amend as to the 6^th cause of action with 20 days leave to amend. The court sustained the demurrer to the breach of the covenant of quiet enjoyment cause of action without leave to amend. The court overruled the demurrer to the defamation, defamation per se, and slander causes of action.

The court granted the motion to strike the punitive damage allegations in all causes of action not rendered moot by the demurrer.

On March 8, 2019, Plaintiffs filed their first amended complaint for Negligence (twice), Defamation (twice), Defamation Per Se, Intentional Infliction of Emotional Distress (twice), Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Assault & Battery (twice), Nuisance, Discrimination, Abuse of Process and Slander. On May 6, 2019, the court sustained the demurrer to the first cause of action for negligence, the sixth cause of action for intentional infliction of emotional distress, eighth cause of action for negligent infliction of emotional distress, and Discrimination cause of action without leave to amend. The court overruled the demurrer to the nuisance cause of action. Defendants answered the first amended complaint on May 15, 2019.

On November 23, 2022, the court granted the motion of Plaintiffs’ counsel to be relieved as attorney of record. On January 10, 2023, the court granted the motion for judgment on the pleadings brought by Farouk and Mary Riad. The Riads were subsequently dismissed from the action. On February 28, 2023, the court entered judgment in favor of the Riads.

On May 10, 2023, the court entered judgment in favor of Plaintiffs for $11,500 and $72,240.71, as to David Maxim and Natasha Robinson, against defendants Paseo Dorena HOA, Warren Davidoff, Melissa Lopez, and Mike Dukoff.

RULING: Denied as to Attorney Lien/Granted as to Expert Fees

Plaintiffs, Natasha Robinson and David Maxim, in pro per, move to “adjudicate” the attorney lien filed by prior counsel for plaintiffs I. Donald Weissman, and to strike the request for expert fees presented in the memorandum of costs from dismissed defendants Farouk and Mary Riad. While the motion notices both defendants, the motion is only signed by Natasha Robinson. The motion also improperly combines two separate and disparate requests for relief into a single motion. The motion is improperly formatted in single space, notwithstanding the use of pleading paper. The court, in its discretion, considers both items as to Robinson only.

Robinson challenges any lien recovery by former counsel I. Donald Weissman essentially on grounds of no entitlement to any recovery of fees from the judgment due to client “abandonment” and “incompetence” in the handling of the action. On the costs item, Robinson seeks to strike the $15,500 cost item for expert witness fees. Robinson contends the withdrawal by former counsel led to the dismissal of the Riads thereby leading to the entry of fees. Robinson challenges any attempted recovery of said fees on grounds that the court never awarded said expert fees. The court electronic filing system shows no opposition on the expert fee portion of the motion, or a reply to either item, at the time of the tentative ruling publication cutoff.

Attorney Lien

Robinson challenges the propriety of any attorney lien. Attorney Weissman in opposition defends in the incurred lien based on four years of prior representation and the contingency fee agreement. Weissman defends the withdrawal from representation, and also maintains the motion is untimely.

Notwithstanding the extensive argument on the conduct leading to the lien, the court remains barred from any proactive consideration of the attorney lien. Attorney Weissman must seek collection on the lien for any court to consider the right to collect.

“Appellate courts have consistently held that the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorney's lien on the judgment. (Citations.) The trial court does have fundamental jurisdiction over the subject matter and over the parties. Nevertheless, because the attorney is not a party to the underlying action and has no right to intervene, the trial court acts in excess of its jurisdiction when it purports to determine whether the attorney is entitled to foreclose a lien on the judgment. (Citations.) Nor can the court entertain a motion to terminate the lien. (Citation.) After the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it. (Citations.) An order within the underlying action purporting to affect an attorney's lien is void. (Citation.)” (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1173.)

The motion to strike the attorney lien is denied.

Strike Expert Fees

Expert witness fees are not recoverable unless ordered by the court. (Code Civ. Proc., § 1033.5, subd. (a)(8). Nothing in the order dismissing the Riads or the judgment in the action awarded the recovery of expert witness fees. Expert witness fees “must be specially pleaded and proven at trial rather than included in a memorandum of costs.” Inclusion and sought after recovery in a memorandum of costs without prior court approval constitutes an error in any fee award. (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627.)

The court grants the unopposed motion to strike the $15,500 in expert witness fees.

Robinson to give notice to all parties.