Judge: Virginia Keeny, Case: 22VECV01458, Date: 2025-02-21 Tentative Ruling
Case Number: 22VECV01458 Hearing Date: February 21, 2025 Dept: 45
KIMBERLY DAVIS, ET AL. v. PAIGE
HEMMIS, ET AL.
MOTION FOR
ATTORNEY FEES
Date of Hearing: February
21, 2025 Trial
Date: Not set
Department: 45 Case
No.: 22VECV01458
Complaint Filed: September 30,
2022
Third-Amended
Complaint Filed: February 6, 2024
Moving Party: Plaintiffs
Kimberly Davis and Jonathan Davis
Responding Party: Defendants Hallmark Cards, Inc., Crown
Media Holdings, Inc., and Hallmark Media United States, LLC
Notice: Proper
BACKGROUND
This action involves mortgage foreclosure. On
February 6, 2024, Plaintiffs Kimberly Davis and Jonathan Davis (“Plaintiffs”)
filed a third amended complaint against Defendants Paige Hemmis, Jason Short,
Ameka Benton, Scott Fields, Hallmark Cards, Inc., Crown Media Holdings, Inc., Hallmark
Media United States, LLC (“the Hallmark Defendants”), Paige
Hemmis, Inc., Aria Music Group, The Oaks of Calabasas Homeowners Association,
Melissa Improta, Jason Improta, and Compass California, Inc. for 1) Intentional
Interference with Contract; 2) Negligence; 3) Trespass; 4) Violations of Civil
Code § 1798.93; 5) Breach of Fiduciary Duty; 6) Professional Negligence; 7)
Unfair Business Practices; 8) Fraudulent Concealment; 9) Negligent
Misrepresentation; 10) Fraud; 11) Slander of Title; 12) Constructive Fraud; 13)
Wrongful Eviction; 14) Quiet Title; and 15) Conversion.
Six (6) of these causes of action are directed
at the Hallmark Defendants: 1) Intentional Interference with Contract; 2)
Negligence; 3) Trespass; 7) Unfair Business Practices; 11) Slander of Title;
and 12) Constructive Fraud.
Plaintiffs allege when they were absent from
the subject property, Defendants Hemmis and Short unlawfully entered the
property and remained in possession of the property from September 2019 until
early July 2022. While Defendants Hemmis and Short were in possession of the
property, plaintiffs were engaged in a dispute with their mortgage lender, US
Bank, related to a settlement agreement that was entered into to address the
pay off of a mortgage loan. Plaintiffs further allege at some point prior to
September 12, 2019, Defendants Hemmis, Short, Improta and Compass engaged in a
conspiracy to attempt to steal title to the Plaintiffs’ home. On this point,
Plaintiffs claim Hemmis and Short fraudulently forged a lease that purported to
have Kimberly Davis’s signature on it. As a result of Defendants’ actions,
Plaintiffs alleged they have been damaged. Plaintiff dismissed Defendants Ameka
Benton and Scott Fields.
Plaintiffs allege that the Hallmark Defendants
paid Ms. Hemmis to create home improvement videos during the early months of
the Covid Pandemic for the Hallmark Defendants to post on YouTube. Plaintiffs
contend that the Hallmark Defendants continued to air these broadcasts even
since learning that plaintiffs allege Ms. Hemmis was trespassing at the time
she made the videoclips.
On March 24, 2023, this action was related to Kimberly
Davis v. Nationstar, et al. (23VECV01125). On August 18, 2023, Paige Hemmis
and Jason Short filed a cross-complaint against Kimberly Ann Davis, Compass
California, Inc. dba Compass, Melissa Improta, and Jason Improta for breach of
contract, money had and received, implied indemnification, express
indemnification, and comparative contribution. Cross-Complainants dismissed
their cause of action for express indemnification.
On August 21, 2024, the Court granted in part Hallmark
Media’s Anti-SLAPP motion as to the causes of action for Slander of Title and
Intentional Interference with Contract. The Anti-SLAPP motion was denied for
Hallmark Cards and Crown Media.
On November 13, 2024, Plaintiffs filed the
instant motion for attorney’s fees and costs.
On December 4, 2024, the Court granted a stay,
save for the attorney fee motions, pending resolution of the current appeals,
including all discovery.
On January 31, 2025, Defendants filed their
opposition to the instant motion.
On February 13, 2025, Plaintiffs filed their
reply.
[Tentative] Ruling
Plaintiffs’ Motion for Attorneys’
Fees is DENIED.
LEGAL STANDARD
Code of Civil Procedure section 425.16(c)(1) provides that “[i]f the
court finds that a special motion to strike is frivolous or is solely intended
to cause unnecessary delay, the court shall award costs and reasonable
attorney's fees to a plaintiff prevailing on the motion.” (C.C.P. § 425.16,
subd. (c)(1).).) “’Frivolous’ means totally and completely without merit or for
the sole purpose of harassing an opposing party.” (C.C.P. § 128.5 subd.
(f)(B).)
A party may only file an anti-SLAPP motion within 60 days of the
original complaint, or within 60 days of an amended complaint that either
contains new causes of action or includes new allegations as to an existing
cause of action that makes that cause of action subject to an anti-SLAPP motion
when it would not have previously been subject to an anti-SLAPP motion. (Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th
637.)
“[T]he fact that a special motion to
strike was filed untimely, standing alone, cannot support a finding that the motion
is frivolous or solely intended to cause unnecessary delay. Instead, whether a
special motion to strike is totally and completely without merit in this
context necessarily depends on the merits of the motion. Similarly, whether the
sole purpose of the motion is to harass an opposing party or whether the motion
is solely intended to cause unnecessary delay also depends on either the
objective merits of the motion or some other indication of the moving
defendant's subjective motivation and cannot be inferred from the fact that the
motion was untimely.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199
Cal.App.4th 676, 684.)
ANALYSIS
Request for Judicial Notice
Plaintiffs request judicial notice be taken of thirteen (13)
court records previously filed in the instant case and one (1) court record
previously filed in the related case Kimberly Davis v. Nationstar, et al.
(23VECV01125).
Plaintiffs’ Requests for Judicial Notice Nos. 1-14 are GRANTED.
Timeliness of the Instant Motion
“If the alleged action or tactic is the making or opposing of a
written motion or the filing and service of a complaint, cross-complaint,
answer, or other responsive pleading that can be withdrawn or appropriately
corrected, a notice of motion shall be served as provided in Section 1010, but
shall not be filed with or presented to the court, unless 21 days after service
of the motion or any other period as the court may prescribe, the challenged
action or tactic is not withdrawn or appropriately corrected.” (C.C.P. § 128.5 subd.
(f)(B).)
Courts do not apply the safe harbor to a plaintiff’s request for
attorney’s fees under Code of Civil Procedure 425.16(c) when complying with it
would not be practical in light of the expedited hearing schedule that
generally applies to SLAPP motions. (Changsha Metro Grp. Co., Ltd. v. Peng
Xufeng, 57 Cal.App.5th 1, 19–23 (2020).)
The SLAPP Motion was filed on April 9, 2024, with the original hearing
set for May 9, 2024. On April 17, 2024, the Court granted Plaintiffs’ ex parte
application to continue the anti-SLAPP hearing and for bifurcation. The Court
set a hearing on the timeliness issue for May 16, 2024 and hearing on the
merits for August 14, 2024. The timeliness hearing was continued to May 24,
2024. Plaintiffs served Defendants with notice of motion and filed the instant
motion on November 13, 2024.
Defendants argue that Plaintiffs’ Motion should be rejected as
procedurally deficient and untimely. Defendants argue that because an award of
attorneys’ fees to a plaintiff in these circumstances functions as a sanction,
Plaintiffs were required to follow the rules set forth in California Code of
Civil Procedure section 128.5 and serve their Fee Motion no later than May 3,
2024—21 days prior to the hearing on the timeliness of the SLAPP Motion on May
24, 2024. Had Plaintiffs truly believed the SLAPP Motion was frivolous as to
the Hallmark Parent Companies, the correct course of conduct was for Plaintiffs
to serve their Fee Motion then, provide the Hallmark Defendants with the 21-day
safe harbor, and then file this Fee Motion after the Hallmark Defendants
declined to withdraw it. Because they did not do that, the Fee Motion fails on
procedural grounds and must be denied.
Plaintiffs argue that the safe harbor should not apply because
complying with it was impractical in light of the expedited anti-SLAPP hearing
schedule. Plaintiffs contend that the anti-SLAPP hearing was originally
scheduled for May 9, 2024, a date for which Plaintiffs’ counsel was not
available. Due to Hallmark’s refusal to stipulate to move the hearing,
Plaintiff was forced to make an ex parte application, and it was moved to May
16, 2024. Thus, after the hearing on the ex parte application, even if Plaintiff
served its motion within a matter of days, the 21-day safe harbor would not
have expired by the time of Plaintiff’s opposition, which was ordered to be
filed on May 3, 2024.
Here, Plaintiffs failed to comply with the procedural requirements of section
128.5 by failing to serve Defendants with the instant motion by May 3, 2024, which
would have provided Defendants with 21 days to withdraw the anti-SLAPP motion
before the May 24, 2024 hearing. Although Plaintiffs’ counsel was unavailable
for the original hearing date on May 9, 2024 and moved ex parte to continue it,
this does not explain why Plaintiffs did not serve Defendants with notice of
the instant motion by May 3, 2024. Plaintiffs’ argument that the service
requirement was impractical as their opposition to the SLAPP motion was due on
the same day as the deadline for service of the instant motion is unavailing as
Plaintiffs had nearly one month, from April 9, 2024 to May 3, 2024, to draft
and serve the instant motion. Plaintiffs waited until November 13, 2024 to file
the instant motion, which is nearly seven months after the anti-SLAPP motion
was filed.
Accordingly, Plaintiffs’ motion is procedurally deficient. However,
the Court exercises its discretion to rule on the merits regardless.
Frivolous Motion
Plaintiffs argue that Defendants’ anti-SLAPP
motion was frivolous as it was filed to delay the case. Plaintiffs contend that
no reasonable attorney would conclude that the motion was timely, as it was
filed over 11 months late.
Defendants argue that Plaintiffs cannot meet their burden of proving
that the decision to include Hallmark Cards and Crown Media Holdings in the
SLAPP Motion was “frivolous,” arguing that the fact that a special motion to
strike was filed untimely, standing alone, cannot support a finding that the
motion is frivolous or solely intended to cause unnecessary delay per Chitsazzadeh.
Here, Plaintiffs have not shown that the SLAPP motion was totally and
completely without merit, nor that Defendants’ decision to include Hallmark
Cards and Crown Media Holdings in the SLAPP motion was made with any subjective
intent to harass Plaintiffs or to cause unnecessary delay. In ruling on
timeliness, this Court found the SLAPP motion timely in part as to Hallmark
Media and untimely as to Hallmark Cards and Crown Media Holdings. In ruling on
the substance of the motion, out of the six (6) causes of action directed at
the Hallmark Defendants, the Court granted in part Hallmark Media’s Anti-SLAPP
motion as to (2) causes of action for Slander of Title and Intentional
Interference with Contract and denied in part as to Hallmark Cards and Crown
Media Holdings. Since the moving
defendant's subjective motivation can be inferred from the absence of any
arguable merit per Chitsazzadeh, and the SLAPP motion clearly had some
merit as it was found timely in part, the Court cannot infer that Defendants
had nefarious motives. Plaintiffs’ argument that the motion was untimely alone as
to Hallmark Cards and Crown Media Holdings does not constitute evidence of
frivolity or harassment per Chitsazzadeh.
CONCLUSION
Plaintiffs’ Motion for Attorneys’
Fees is DENIED.
Moving party to give notice.