Judge Theresa M. Traber, Case Number: 22STCV30044, Date: 2024-05-23 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV30044, Date: 2024-05-23 Tentative Ruling

Case Number: 22STCV30044 Hearing Date: May 23, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: May 23, 2024 TRIAL DATE: NOT SET

CASE: Gerard Michael Kabala v. Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust et al.

CASE NO.: 22STCV30044

(1) MOTION FOR ATTORNEY’S FEES

(2) MOTION TO TAX COSTS

MOVING PARTY: (1) Defendant Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust; (2) Plaintiff Gerard Kabala

RESPONDING PARTY(S): (1) Plaintiff Gerard Kabala (2) Defendant Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust;

CASE HISTORY:

· 09/13/22: Complaint filed.

· 10/03/22: Case deemed related to 22STCV29679 Hollywood Lanai Apartments v. Krzemuski, et al. and 22STCV29709 Adamian v. Krzemuski, et al. (lead case).

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a title dispute. Plaintiff challenges a deed of trust recorded against a property in which he claims an interest located at 520 Olive Street, Inglewood, CA 90301.

Defendant Paul Krzemuski moves for an award of attorney’s fees. Plaintiff moves to tax Defendant Paul Krzemuski’s memorandum of costs.

TENTATIVE RULING:

Defendant’s Motion for Attorney’s Fees is DENIED.

Plaintiff’s Motion to Tax Costs is GRANTED. Defendant is entitled to recover costs in the amount of $14.52 for his electronic filing or service fees

DISCUSSION:

Motion for Attorney’s Fees

Defendant moves for attorney’s fees following Plaintiff’s voluntary dismissal of the Complaint.

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) the Preliminary Injunction filed October 25, 2022 in the related case Adamian v. Krzemuski, LASC Case No. 22STCV29709; (2) the June 2, 2023 order modifying that injunction; and (3) the Full Reconveyance recorded January 4, 2024 as Instrument No. 20240008356 in the Official Records of the Los Angeles County Recorder’s Office. None of these documents are material to the Court’s ruling. Accordingly, Plaintiff’s requests are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Entitlement to Fees

Defendant contends that he is entitled to reasonable attorney’s fees pursuant to an attorney’s fee provision in the 2001 Deed of Trust that is the underlying basis for this dispute.

Under Code of Civil Procedure section 1021, the apportionment of attorney’s fees is left to the agreement of the parties. (Code Civ. Proc. § 1021.) However, a party who prevails in an action is expressly entitled to recover costs, except where otherwise provided by statute. (Code Civ. Proc. § 1032(b).) Attorney’s fees, as authorized by contract, statute, or other law, are among these recoverable costs. (Code Civ. Proc. § 1033.5(a)(10).) For the purposes of these statutes:

“Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc. § 1032(a)(4).)

Defendant seeks to enforce the attorney fee provision in the Deed of Trust that was at the heart of this dispute. This Deed of Trust provides:

TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:

. . .

(3) To appear in and defend any action or proceeding purporting to affect the security hereof or affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including costs of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.

. . .

(13) That this Deed applies to, insures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledges, of the note secured hereby, whether or not names as Beneficiary herein. In this Deed, whenever the context so required, the masculine gender includes the feminine and/or neuter, and the singular includes the plural.

(Declaration of Mary A. Lazarian ISO Opp. Exh. 1.) The Deed of Trust defines the Trustor as George Adam Adamian, the trustee as Escrow Professionals, Inc., and the beneficiary as Violette Adamian. (Id.)

Defendant contends that he is entitled to enforce the attorney fee provision against Plaintiff because Plaintiff, as the subsequent purchaser of the property that is the subject of the Deed of Trust, is the successor in interest to the Trustor, and therefore subject to the deed with respect to the subject property. (See Complaint ¶ 16.) Defendant argues that since Plaintiff voluntarily dismissed this action on February 9, 2024, Defendant is the prevailing party under section 1032(a)(4) as a matter of law.

Plaintiff argues that Defendant is not entitled to attorney’s fees because they are expressly disallowed in this context pursuant to Civil Code section 1717. This section entitles any party that prevails in an action “on a contract” to an award of reasonable attorney’s fees incurred to enforce the contract, in addition to other costs, if the contract specifically provides for an award of attorney’s fees and costs incurred in its enforcement to at least one of the parties. (Civ. Code § 1717(a).) However, subdivision (b)(2) of this section states that “[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Civ. Code § 1717(b)(2).) Plaintiff contends that each of the six causes of action asserted in the instant Complaint are based in contract, not tort, and, indeed, even a cursory reading of the Complaint bears this claim out. Plaintiff asserted claims for (1) equitable accounting; (2) marshalling of liens; (3) injunctive relief; (4) breach of the implied covenant of warranty of title; (5) indemnity, and (6) contribution) all premised on the same allegations: that Defendant’s purported copy of the Promissory Note secured by the 2001 Deed of Trust was not genuine, and that the 2022 Notice of Default premised on that Note did not accurately set forth the terms of the Note or the balance owed on that Note. (Complaint ¶¶ 24-25.) As stated in Andrade v. Western Riverside Council of Governments (2024) 99 Cal.App.5th 1020 – a case relied on by Defendant – “[w]henever a party seeks to invalidate a supposed contract on grounds that an enforceable agreement never existed, and the party opposing such a claim implicitly contends there is a valid contract, the essential premise for section 1717 is satisfied.” (Id., at p. 1026.) This is precisely the situation here. Although Defendant anticipated this argument in his moving papers, Defendant offers no basis for his contrary assertion that these claims do not sound in contract, which is belied by the allegations in the Complaint. The Court therefore finds that Plaintiff’s claims are claims “on a contract” and therefore that Defendant is not entitled to recover attorney’s fees from Plaintiff’s voluntary dismissal pursuant to Civil Code section 1717(b)(2).

Conclusion

Accordingly, Defendant’s Motion for Attorney’s Fees is DENIED.

Motion to Tax Costs

Plaintiff moves to tax costs sought by Defendant’s Memorandum of Costs.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc. §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. §1032(a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendant served the amended memorandum of costs by electronic service on February 26, 2024. (Amended Memorandum of Costs POS.) This motion was filed and served on March 11, 2024. The motion is therefore timely.

Challenged Costs

Plaintiff challenges three items in the memorandum of costs: (1) Attorney’s Fees in the amount of $7,275 under Item 10; (2) Court Reporter Fees in the sum of $250 under Item 11, and (3) unspecified other costs in the amount of $150 under Item 16.

1. Item 10: Attorney’s Fees

Plaintiff challenges Defendant’s request for attorney’s fees. For the reasons stated above in connection with Defendant’s Motion for Attorney’s Fees, the Court finds that this item should be taxed in its entirety.

2. Item 11: Court Reporter Fees

Plaintiff contests Defendant’s request for $250 in Court reporter fees from iDepo Reporters, invoiced for July 13, 2023. (Memo. of Costs Item 11.) Court reporter fees are expressly recoverable as established by statute. (Code Civ. Proc. § 1033.5(a)(11).) Plaintiff argues that the only hearing occurring near that date in this matter was a July 17, 2023 Case Management Conference for which a court reporter was not necessary and therefore should be disallowed under section 1033.5(c(2). In response, Defendant asserts that these costs are reasonably necessary to the litigation. The Court does not agree. It is not “reasonably necessary to the litigation” to hire a court reporter for a case management conference. This cost item should be taxed.

3. Item 16: Other Costs

Plaintiff seeks to tax Defendant’s request for $150 in other unspecified costs. (Amended Memo of Costs Item 16.) As Plaintiff states, the Memorandum does not disclose what this expense was or why it is recoverable. (Id.) In response, Defendant argues that this cost was for photographs of the property, without explaining what purpose those photographs served or why they were reasonably necessary to the litigation. Defendant has not satisfied his burden to justify this cost item. Item 16 must therefore be taxed.

Conclusion

Accordingly, Plaintiff’s Motion to Tax Costs is GRANTED.

CONCLUSION:

Accordingly, Defendant’s Motion for Attorney’s Fees is DENIED.

Plaintiff’s Motion to Tax Costs is GRANTED. Defendant is entitled to recover costs in the amount of $14.52 for his electronic filing or service fees.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: May 23, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.