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Filing # 188296246 E-Filed 12/19/2023 08:13:57 AM IN THE COUNTY COURT IN AND FOR SEMINOLE COUNTY, FLORIDA CIVIL DIVISION ACCELERATED INVENTORY MANAGEMENT, LLC Plaintiff Case No.: 2023CC006493 INNDY CAJUSMA, Defendant(s) COMPLAINT ALLEGATIONS AS TO ALL COUNTS Plaintiff, ACCELERATED INVENTORY MANAGEMENT, LLC (“Plaintiff”), hereby sues INNDY CAJUSMA (“Defendant(s)”) and alleges: THE PARTIES, JURISDICTION AND VENUE This is an action for damages that is within this Court's Jurisdictional limit, exclusive of interest and costs. Upon information and belief, Defendant is an individual who resides and /or maintains an address and/or domicile sufficient to allow this Court to maintain jurisdiction and venue of Plaintiffs claims against Defendant. Through its undersigned attorney, Plaintiff has demanded payment from Defendant, but Defendant has not satisfied such demand. Plaintiff has performed all conditions precedent to the filing of this action, or all such conditions precedent have occurred. BREACH OF CONTRACT Defendant entered into an agreement with Plaintiff's predecessor-in-interest, LendingClub Corporation assignee of LendingClub Bank, for a consumer loan under account *****9342. True copies of the loan documentation are attached hereto and incorporated herein by reference as if fully set forth verbatim. The Defendant, by execution of the loan documentation and/or by use of the funds provided by LendingClub Corporation assignee of LendingClub Bank has accepted the terms and conditions of 00035108the loan. On or about 30 days from the date of last payment, which was November 25, 2022, Defendant defaulted on the obligation to make payments due under the agreement. Plaintiff is the successor-in-interest of said agreement, having been assigned the account *****9342 in good faith and in the ordinary course of business. See chain of title attached hereto and incorporated herein by reference as if fully set forth verbatim. Defendant is presently indebted to Plaintiff in the amount of $24,186.85. WHEREFORE, Plaintiff demands judgment as to the Account against the Defendant for$24,186.85, all costs of court, and all such other and further relief to which Plaintiff may be justlyentitled. Respectfully submitted, Diaheret bs,2 Ce (009280, Bor: Jonathan R Singer, Esq. (FBN 583529) Richard Weissman, Esq. (FBN 817821) Attorney at Law - Debt Collector O&L Law Group, P.L. 5701 E Hillsborough Ave, #1231 Tampa, Florida 33610 EMAIL: JSINGER@OLLAWGROUP.COM Telephone: 866/503-8998, Fax: 813/315-6439This firm is a debt collector. We are attempting to collect a debt and any information obtained will beused for that purpose. 00035108STATEMENT OF ACCOUNTName: INNDY CAJUSMA Original Creditor: LendingClub Corporation assignee of LendingClub Bank Original Account Number: #HHHHOZAD Account Open Date: April 26, 2022 Last Payment Date: November 25, 2022 Principal Balance: $24,186.85 Total balance exclusive of costs: $24,186.8500035108LoanID: [89342 This is a copy of an authoritative documentDate Signed: 4/21/2022 Borrower Agreement Last updated November, 2021. Please read this Borrower Agreement carefully and print or save a copy for future reference. This Borrower Agreement is between you ("you and "your" mean you and each and every other borrower, including any joint applicantico- borrower, who is obtaining a loan from us) and LendingClub Bank, National Association (we. us, our." and "LendingClub’). If you request a loan from us, and if that request results in a loan that is approved and funded, then your loan will be governed by the terms of this Borrower Agreement and the Loan Agreement and Promissory Note, which is attached to this Borrower Agreement as Exhibit A (the "Loan Agreement’), as may be revised from time to time. The version of the Loan Agreement in effect when you make a loan request will apply to any toan made in response to that request, and any separate loan would be governed by the version of the Loan Agreement then in effect. By consenting to this Borrower Agreement, you are also agreeing to the Loan Agreement and authorizing us to complete the Loan Agreement as necessary to. facilitate your loan request. This Borrower Agreement will terminate if your loan request is cancelled, withdrawn, or declined, — BY ELECTRONICALLY onsen Wai mon rr ii FS lorvear from enforcing repayment of a debt are not enforceable ana ‘Wasi law. } PNW — WISCONSIN RESIDENTS onty Rbesmatti Lond dnire idents, Borrower’ cana et 4 hat this loan obligation is being incurred in the interest of Borrower's marriage or family. No provision of any marital property agreement (pre marital agreement), unilateral statement under § 766.59 of the Wisconsin statutes or court decree under § 766.70 adversely affecis Lender's interest unless, prior to the time that the loan is approved, Lender is furnished with a copy of the marital property agreement, statement, or decree or have actual knowledge of the adverse provision. If this loan for which Borrower is applying is granted, Borrower will notify Lender if Borrower has a spouse who needs to receive Notification that credit has been extended to Borrower. MEMBER ID OF BORROWER & CO-BORROWER (if any) BY. LENDINGCLUB BANK, NATIONAL ASSOCIATION ‘ INV JN ATTORNEY- Hi INFACT R ff and BOFow ) yy \A\\\ {TTS fi SIGHED EELECTRONI LLY) jfif \\ } } ((Ly \\\\ \\ Wey \y | \ 7 SY (~ \w Ny Af \\ {/ \\\\ ff \Ws — \/ The authoritative document is maintained by LendingClub Corporation and this copy was created Apr 21 2022 22:59:35This is a copy of an authoritative document LOAN SUMMARYLoan id: S42Primary Borrower Contact InformationFull Real Name: Inndy CajusmaScreen Name: 64267Email: cajusmainndAddress: 548 Orange Drive Altamonte Springs, FL 32701Home Phone:Cell or Work Phone: az — ueLoan information — So }Loan Issue Dale: a/2612% ‘A / INA (™,Original Loan Amount: $25.01 $22,908.04 ( — WwPrinciple Balance:Principle Balance Date: 5/2/23 S <=Payoff Balance: $24,260.85Payoff Date: 5/2123Loan Documents Document Name Dateftime Document Version Si eeerr Tests aT: SE: Derytecerectsnss et ett a On ae ao “io eS 08 a eae a ti 33335 ee | \ NM SY 7 (— \w — Ny \\ {/ \\ \/ \Ws — \/ The authoritative document is maintained by LendingClub Corporation and this copy was created May 02 2023 08:08:31LoanID: [9342 This is a copy of an authoritative documentDate Signed: 4/21/2022 Terms of Use Last Updated February 47, 2022 Jn these Terms of Use, the words "you! ‘your and "User" mean each and every person who accesses or uses any Service (as defined below). The words “we. ‘our, and “LendingClub" mean LendingClub Bank, National Association. Please review these Terms of Use before using or accessing any products or services offered by LendingClub (each, a "Service’), which include but are not limited to LendingClub websites and the subdomains thereof (collectively, the "Site") and the group of financial service technologies thal LendingClub of any of is affiliates have developed to enable the services we facilitate or provide (collectively, the "LC Platform”). if you do not agree to these terms without limitation or exclusion, you should exit this site. These Terms of Use are effective immediately for new users, and from February 1, 2021 for existing users. All Services are provided by LendingClub or is affiliates. By accessing or using any Service, including the Site or the LC Platform, you signify that you have read, understand and agree to be bound by these terms of use ("Terms of Use"), regardless of whether you have registered with LendingClub as a member. In addition to these Terms of Use, you may enter into other agreements with us or others that will govern your use of Services or related services offered by others. if there is any contradiction between these Terms of Use and another agreement you enter into oe applicable to specific aspects of a 1e stfier agifeenlent shal aid pregéilence insGlationtg the aspecis of the Service to which iia it applies. As used herein, "Users eans an drje who eles amir 3 sere For any teri applicable to all Users, all l applicants, whether individually or jaintly, atljn stor m r$, oF Business, id other e1 y Usery gpgeffically, or where the context othenaise requires, "Users" shall be deemed fe ar sieSs ther entity on halfof wh ee ny Servi is accessed by any other User, and 'yau'" shall be deemed to include any such business or other entity and any person acting on behalf of any such business of other entity in connection with the use of any Service. For purposes of these Terms of Use, a sole proprietor participating in our Small Business lending program is deemed to be acting on behalfof a business. Changes to these Terms of Use We may make changes to these Terms of Use from time to time. if we do this, we will post the changed Terms of Use on the Site and will indicate at the top of this page the date the Terms of Use were last revised. You understand and agree that your continued use of any Service ee z ik ie: after wehave cle arn constit s youre A {TTS TERMSi LI CABLE) ALL a ELIGI wiry uci ons//\, \ Hf Eligibilility (Gene) AllSerices.are\intandet sole! ull s who, mnypnede Kats pe igh | GQ ayears id Mead iting hy. lise of of accessto @ Service by any natural person under 18 is unauthorized, unlicensed and in violation of these Terms of Use. By using any Service, you represent and warrant that, if you are a natural person, you are 18 or older and that yau agree to and will abide by all of the terms and conditions of these Terms of Use. If you violate any of these Terms of Use, or otherwise violate an agreement between youl and us, we may terminate your membership, delete your profile and any content or information that you have posted and/or prohibit you from using or accessing any Service (or any portion, aspect or feature thereof), at any time in its sole discretion, with or without notice, including without limitation if it believes thal you are under 18. ates sina Proprietary Rig files, and their selection toes All content within all Seryices, Wnttudi and a: er but rent on id to PWesigns, tex ice Content), are} the= bei a jc ures, video, infc rdpertyof Le ation] softwal music, sound and other ir slub with allrights reserved. No Service Content may be'madified, ¢ 2ibe. trainee eoproniced ens jownloade splayed, post transmitted, or sold in any form or by any means, in whole orifi part, oi a gerne Prior weitter | perini: Sion, xcept as pravided in fhe following sentence and except that the foregoing does not apply to your own User Content (as defined below) that you legally post within a Service. Provided that you are eligible for use of a Service, you are granted a limited license to access and use the Service and to download or print a copy of any partion of the Service Content solely for your use in connection with your use of the Service, provided that you keep all copyright of other proprietary notices intact. Except for your own User Content (as defined below), you may not republish Service Content on any Intemet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Service Content is strictly prohibited Any use of any Service or any Service Content other than as specifically authorized herein, without the prior written permission of LendingClub is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by us at any time without notice and with or without cause. ‘You may review personal information (including credit data) posted by or relating to other Users on the Site, but you are not authorized to disclose of otherwise use such information for any purpose other than assessing the creditworthiness of other Users. You may not reproduce any personal information (including credit data). Further, you represent and warrant that: ()) you do riot have the ability to match any personal information (including credit data) posted by or relating to other Users to the Identity of any individuat; (B) you will not make any attempt to obtain data permitting you to match any personal information (including credit data) posted by or relating to other Users Lo the identity of any individual (iil) you will not aecept any information from any third party that permits such a match; and (iv) you will make no such match. The authoritative document is maintained by LendingClub Corporation and this copy was created Apr 21 2022 22:56:16LoanID: [9342 This is a copy of an authoritative documentDate Signed: 4/21/2022 Restrictions on Data Collection/Termination Without our prior consent, you may not use any automated means to access this Site or collect any information from the Site {including, without limitation, robots, spiders, scripts or ather automatic devices or programs): frame the Site, utilize framing techniques to enclose any Content or other proprietary information, place pop-up windows over this Site's pages, or othenwise affect the display of this Site's pages: engage in the practices of "screen scraping," "database s¢raping" or any other activity with the purpose of obtaining content or other information, upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mall,” "spam," “chain letters," “pyramid schemes," or any other form of commercial or non-commercial solicitation of bulk communications of any kind to any LendingClub member or third party Use data provided by LendingClub, provided in any manner whatsoever, for any competing uses or purposes. You further agree that you have never used data, TE NP in th 6 pas e.cqmgeRetnie proctor services of LendingClub; or / , I\WGY L__ — —3 use this Site in any manner thatviolaiés cab she that could danqage, disable overt 7 impair this Site oF interfere with any other party's use and enjoymentor is Site. We may terminate, disable or throttle your access to, or use of, this Site and any other Service at any time without notice for any reason, with or without cause at LendingClub‘s sole discretion. The following provisions of these Terms of Use shall survive termination of your use or access to any Service: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Applicable Law and Dispute Resolution, and General Provisions, and any other provision that by its terms survives termination of your use or access to any Service. Se = Noe /7 = User Repres You fobeesSent rant hd agtep that! (j any 7 is reed he rwis¢ posted Nea ty u-thronigh h your! al any Serviceet lel intringy wo he right prégrietary HightS-ercofitain fi US, tors ), frail fey ae in enw ful mi on 1g vial Vou fun ubticit otter P Tora or Eopyright| tradghare not te arvedtér calle addresses or other contact information of Users by electronic of other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from any Service or for any other purpose. You further agree that you may not use any Service in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Service. In addition, you agree not to use any Service to: ° upload, post, transmit, share, store or otherwise make available any coritent that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive. inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethaleally or othenwise esiortenatla, fo it hh Ss except where authoji*zed by inflingclul fer for move than e eo It. feplstertor Se agcount or; behalf of an individual other than yoursel!, per ral account in their ovirrnamé or regisie F ACK ia ¢pehallBt arlforthe per a Useraecbunt Girbehdlt ofany $rou iNot/ah erson who is nat eli IF entity father sc te to register for or operate a User ian ap} wed ‘opened on behalf of legal entities, joint consumer loan accounts or accounts opened for purposes of participating in our Small Business estment accounts lending program), impersonate any person or entity, of falsely state or otherwise misrepresent yourself, your age or yout affiliation with or authority to act on behalf of any person or entity; upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mai ‘spam, ‘chain letters, wyramid schemes,” or any other form of solicitation upload, post, transmit, share, store or otherwise make publicly available any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; solicit personal information from any natural person under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes from any User. upload, post, transmit, share or otherwise make available any material that contains sofware viruses or any other maliciaus or tracking computer code, files or programs designed to track, interrupt, destroy or limi the functionality of any computer software or hardware or telecommunications equipment, intimidate or harass another User; The authoritative document is maintained by LendingClub Corporation and this copy was created Apr 21 2022 22:56:16LoanID: [9342 This is a copy of an authoritative documentDate Signed: 4/21/2022 + upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or intemational law; use of attempt to use another's account, service or system without authorization from that person and LendingClub, or create a false identity on any Service: or upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of LendingClub, is objectionable or which restricts of inhibits any other person from using oF enjoying any Service, or which may expose LendingClub or its Users to any harm or liability of any type. User Content Posted within any Service You are solely respansible for the personal or business information, photos, profiles, messages, notes, text, information, music, video, contact information for you or others, advertisem*nts or other content that you upload, publish, provide or display (hereinafter, post”) within or through any Service, of transmit to or share with other Users (collectively the "User Content’). it is against the Terms of Use to contact members directly 0" to attempt to enter into any lending transactions with members outside of any Service, You understand and agree that LendingCiub may, but is not obligated to, review and delete orramov eo= (uit it not Stee in its sol retior 1g without limitation, User Content that in the sole judgmentsi of Uireaten the safely of, Users of te endmackibyvialat hers. ( 8 } these Tey Lov} ise/pight be (een } il al , oF might violate the rights of, harm, By gosting User Content within an) Sasibd yo) susie tically grant, and y voprosent Stunde Ss a ‘you have the right to grant, to LendingClub an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the rightto sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with any Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from any Service at any time. If you choose to remove your User Content, the license granted above will not expire. You may review personal or business information (including credit data) es » other Users within a Service, but you are not authorized to x disclose-er othe: iseus pul osa.other eat Pupp e-olherthan =) jon for ones in cophion with yourligan inv meit jactiviti f° invégtor fa iN \\ jfif ) \\ war INyESTOR MBERS: /SECURITIE: ‘S nghauytising to th tra frin thoad inlno oeSk Hl an Isehe jeomed!yo be awaiver and we will not assert there has been a waiver, that would not be permissible under Section 14 of the Securities Act of 1933, Section 29(a) of the Securities Exchange Act of 1934, or any other applicable provision of federal and state securities laws. TERMS APPLICABLE TO INDIVIDUAL USERS Registration Data; Account Security In consideration of your use of any Service, you agree lo (@) provide accurate, current and complete information about you as may be prompled by any registration forms in the Service or othenwise requested by us ("Registration Data"): (b) maintain the security of your password and Heah + identification: (¢) maintainand oromatsunitste the Reeglsvation Data, and arty other Information vo yu rovide to us, to keep it accurate, current and compiete; (d) pronpily jplly fot use‘egal ‘ai, ctlanges jation/ Ir cirbymMstances thatc 0 ld feet our cligibility to continue to use any Service or the ter ich yo tal fice;an 6 yes sits fon al Sebf your accolint and for any actions that take piace using yor accayit.\ }) \V/ —) TERMS APPLICABLE TO BUSINESS iio omen ENTITY USERS Eligibility: Business and Other Entity Users Access to any Service for Users that are businesses, other entities or persons acting on behalf of such businesses or entities, including for all Users participating in our Small Business lending program, is intended solely for authorized representatives of businesses or ather entities that are in good standing in each jurisdiction in which they are registered to conduct business and persons otherwise authorized by such businesses or entities to act in furtherance of the business or entity's use of a Service, By using any Service on behalf of a business or other entity, including as a sole proprietor participating in our Small Business lending program. you represent and warrant that you are duly authorized in accordance with the foregoing by the business or other entity on behalf of which you are acting, that you have the power and authority to enter into binding agreements on behalf of the business or entity or in the capacity In which you are acting, and that the business or entity is in good standing in each jurisdiction in which itis registered to conduct business to the best of your knowledge. Furthermore, you confirm that you agree to all of the terms and conditions of these Terms of Use individually and on behalf of such business or other entity, and represent and warrant that you and such business or other entity will abide by all of the terms and conditions of these Terms of Use. If you, the business or entity, any other person acting on behalfof the business or entity or any guarantor (if applicable) violate any of these Terms of Use, of otherwise violate an agreement between the business or entity (or, if applicable, any guarantor) and LendingClub or any of iis affiliates, LendingClub or such affiliate may terminate the business or entity's membership, delete any associated profile and any content or information in connection with the business or entity's membership and/or prohibit you, such business or entity and any other person acting an the business or entity's behalf fram using or accessing any Service (or any portion, aspect or feature of any Service), at any time in its sole discretion, with or without natice. The authoritative document is maintained by LendingClub Corporation and this copy was created Apr 21 2022 22:56:16LoanID: [9342 This is a copy of an authoritative documentDate Signed: 4/21/2022 Additional Representations: Business and Other Entity Users In addition to the User Representations set forth above under "User Representations," which you hereby confirm on behalf of the business or entity member, you further agree, both individually and on behalf of the business or entity, not o use any Service to: . register for multiple User accounts on behalf of the same business or entity, operate of otherwise utllize an account opened in the name of a business or entity for the benefit of any persons other than that business or entity, operate of otherwise utilize an account opened in the name of a business or entity for any purpose prohibited by law or regulation, any activity which that business or entity is not duly authorized to conduct, or for any purpose prohibited by any other agreement between the business, guarantor or entily and LendingCluly operate a User account an behalf of any business or entity with regard to which you are not an authorized person with the powerto enter into binding agreements on behalf of the business or entity: ee ~ it communicate with any otherU: Fredaddingthe Boheds|oren ‘i bdginess operation Pathe ‘than anonymously and publicly via the se Site, of upload, post. transmi hare or oth erwise ko avaitabie any\/Hetmation of informatipttal 1 | identifying the business or entity or its business operations mv het aigvation D hatalprovided to LendingClub or int fnatidn requested by LendingClub or othenwise necessary for your us Service}rand upload, post, transmit, share, store or otherwise make publicly available within any Service any private information regarding the business or entity, including, without limitation, addresses, phone numbers, email addresses, tax identification numbers and eredil, or any personal information regarding persons associated with the business or entity (other than Registration Data provided to LendingClub). Furthermore, you represent and warrant and agree, both individually and on behalf of the business or entity, that: er + all email addresses provided on behalf af the business or enty are and will be used by the mete or oy aM ges Frases: and ~ . flu no} represer|t or portray ‘lel busin ‘bel fy alti De wlth bes ot y capadilyCone: nh ein [sus br ofa l (eet wept ou rir writen onsen, < \ AY \W/ Aliditionat Représent On Small Busifiess Borr ‘Ss in addition to the User Representations set forth above under "User Representations” and "Additional Representations: Business and Other Entity Users," which you hereby confirm on behaif of the small business borrower, you further agree and confirm, both individually and on behalf of the business and/or entity, that use of any Service is contingent on acceptance of and compliance with these Terms of Use by all persons acting on the business or entity's behalf or in furtherance of the business or entity's loan request, including persons acting as a prospective guarantor of any requested loan; Th, Ee Nt all information relatingt2- ay Wee e guarantor a requ n that requested-by regis n the Site will be provided via the Sit dire TeGet eeeaee guaran lor \\ // neither you nor the busine: i Zotuhneri ay i any sbhy fee Hin any loan edna business or entity other than anonynietisly-aftd Aw the Site; neither you nor the business or entity will use any Service to attempt to generate business or investment interest in the business or entity from any other person, including other Users, other than for purposes of obtaining a loan or through the use of the proceeds of any loan the business or entity may receive; and you will not represent or portray the business or entity as anything other than a borrower in connection with its loan request without our prior written consent Registration Data; Account Security In consideration of your use of any Service an behalf of a business or other entity member, you, \dividually and on behalf of such business or entity, agree to (a) provide accurate, current and complete information about the business or entity, yourself and any other principals andlor authorized representatives of the business or entity member as may be prompted by any registration forms on the Site or otherwise requested by LendingClub ("Registration Data’), including the business or entity's full legal name; (b) provide such materials as LendingClub may request to establish and/or verity your or any other person's identity or autharity to enter into binding agreements on behaif of the business or entity, or to establish and/or verify the business or entity's legal existence, good standing in any jurisdiction and eligibility to use any Service, or to establish and/or verify your eligibility to act as guarantor with regard to any loan requested by the business or entity; (c) maintain the security of any password and identification issued for use by or on behalf of the business or entity; (d) maintain and promptly update the Registration Data, and any other information provided to LendingClub by you or anyone else acting on behalf of the business or enlity, to keep it accurate, current and complete: (e) promptly notify LendingClub regarding any material changes to information or circ*mstances impacting the business or The authoritative document is maintained by LendingClub Corporation and this copy was created Apr 21 2022 22:56:16LoanID: [89342 This is a copy of an aut
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The contract was for Plaintiff, who was a general contractor, to provide abatement, mitigation and construction services on Defendants home that had been damaged by water intrusion following heavy winds that damaged the roof of the home. On October 15, 2021, Defendants answered Plaintiffs Complaint, asserting a general denial and various affirmative defenses, and also filed a cross-complaint (Cross-Complaint) against Plaintiff and its owner Ivan Flores, which alleged eleven separate causes of action. A bench trial was conducted on January 12 and 22, 2024. Following trial and submission of closing argument post-trial briefs, the Court issued its Final Statement of Decision on June 3, 2024. On July 10, 2024, judgment was entered in favor of Defendants and against Plaintiff on the Complaint, and on certain causes of action in the Cross-Complaint. Defendants now file this motion requesting an award of attorneys fees in the amount of $67,155 and costs in the amount of $4,840.74 (the Motion). DISCUSSION Standard Pursuant to Code of Civil Procedure section 1033.5(a)(10), a prevailing party may recover attorneys fees when authorized by contract, statute, or law. Civil Code section 1717(a) provides [i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time. (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) Analysis In the Court's Final Statement of Decision, the Court found that Defendants are the prevailing party on both the Complaint and the Cross-Complaint, and that Defendants were entitled to recover reasonable attorneys' fees pursuant to a Motion for Attorneys' Fees to be filed by Defendants. (Final Statement of Decision, ¶¶ 15-16.) The fee request is supported by attorney Lawrence Szabo's declaration, which attaches a Schedule of Time and Charges (Exhibit 3) and a Memorandum of Costs (Exhibit 4). (Declaration of Lawrence Szabo (Szabo Decl.), ¶¶ 4,7; Exhs. 3, 4.) The reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The experienced trial judge is the best judge of the value of professional services rendered in [her] court. (Ibid.) Szabo billed Defendants at $400.00 per hour, which the Court finds to be a reasonable hourly rate in the Los Angeles area for similar work. In accordance with the Schedule of Time and Charges, the total attorneys fees requested by Defendants is $63,560. (Szabo Decl., ¶ 22; Exh. 3) In addition, Defendants have incurred charges in the amount of $2,995 for the preparation of this Motion, and declares an anticipated amount of $600 in connection with the review of any opposition, drafting of reply and appearance at the hearing for the Motion. (Id., ¶ 23; Exh. 3.) Pursuant to the Memorandum of Costs, Defendants are also requesting an award of costs incurred in the amount of $4,840.74. (Id., ¶ 24; Exh. 4.) The court has reviewed the Schedule of Time and Charges submitted by Defendants and finds the hours claimed reasonable considering the work performed and the needs of the case. Since there was no opposition, however, the court strikes the request for $600 representing anticipated charges in responding to an opposition. RULING Accordingly, Defendants Motion is GRANTED. The Court awards in favor of Defendant attorneys fees of $66,555 and costs of $4,840.74, for a total amount of $71,395.74. Moving Party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 8th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court
Ruling
CIPRIANA MEJIA VS KIA MOTORS AMERICA, INC., A CALIFORNIA CORPORATION
Aug 08, 2024 |19STCV07470
Case Number: 19STCV07470 Hearing Date: August 8, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 8, 2024 Case Name: Mejia v. Kia Motors America, Inc. Case No.: 19STCV07470 Motion: (1) Motion for Attorney Fees, Costs, and Expenses (2) Motion to Tax Costs Moving Party: Plaintiff Cipriana Mejia Responding Party: Defendant Kia America, Inc. (erroneously sued as Kia Motors America, Inc.) Tentative Ruling: The Court grants Plaintiff Cipriana Mejias Motion for Attorneys Fees in part and awards fees and costs in the amount of $118,329.29. I. Background This is a Song-Beverly Act case. Plaintiff Cipriana Mejia (Plaintiff) purchased a 2015 Kia Sedona manufactured and/or distributed by Defendant Kia America, Inc. (Defendant). Plaintiff alleged that the vehicle contained or developed serious defects and nonconformities during the warranty period. (Compl., ¶9.) Plaintiff further alleged that Defendant failed to conform the vehicle to standard within a reasonable number of attempts after presenting it for repair. (Id. at ¶23.) On May 14, 2024, Plaintiff filed the instant motion for attorneys fees, costs, and expenses. Plaintiff also filed a Memorandum of Costs. On May 31, 2024, Defendant filed the instant motion to tax costs. Both motions have been fully briefed by the parties. II. Legal Standard Attorneys Fees A prevailing buyer in an action under Song-Beverly shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.¿¿(Civ. Code, § 1794,¿subd. (d).) The prevailing party has the burden of showing that the requested attorney fees were reasonably necessary to the conduct of the litigation, and were reasonable in amount. (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him]. (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the time expended or the monetary charge being made for the time expended are not reasonable under all the circ*mstances, then the court must take this into account and award attorney fees in a lesser amount. (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿ ¿¿ A court may reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.¿¿(Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be reasonably specific and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyers damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.) Costs A prevailing party is entitled as a matter of right to recover costs in any action or proceeding unless a statute expressly provides otherwise.¿(Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)¿ Section 1033.5 sets forth the types of expenses that are and are not allowable as costs under section 1032. Specifically, subdivision (a) of section 1033.5 describes items that are allowable as costs, subdivision (b) describes items not allowable as costs, except when expressly authorized by law, and section 1033.5(c)(4) provides that [i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.¿(Ibid.)¿ To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perkos Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) 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, 773-74.)¿ 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. (Id.)¿¿¿ III. Discussion Motion for Attorneys Fees, Costs, and Expenses Plaintiff moves for attorneys fees, costs, and expenses as the prevailing party under Civil Code Section 1794(d) and the parties settlement agreement. Plaintiff obtained a settlement of $70,500.00 from Defendant after five years of litigation wherein Defendant agreed that Plaintiff would be prevailing party for purposes of a fee motion. (Kirnos Decl., ¶30, Ex. D.) Plaintiff seeks a fee award in the amount of $183,428.62 based on (1) $110,096.50 in attorneys fees including time to be spent on preparing a reply and attending the hearing on this instant motion; (2) a 0.5 multiplier enhancement in the amount of $54,548.25; and (3) $19,783.87 in costs and expenses. Plaintiffs attorneys fees are based on 287.2 hours of attorney time. (Kirnos Decl., ¶2, Ex. A.) Plaintiffs counsel identifies twenty-two attorneys and one paralegal who worked on this case. The hourly rates of these attorneys and paralegal ranged from $200.00 to $645.00. (Id. at ¶¶36-58.) Defendant does not dispute that Plaintiff is entitled to attorneys fees as prevailing party under Civil Code Section 1794(d). However, Defendant argues the requested fees are excessive, duplicative, and unreasonable. Thus, Defendant contends Plaintiffs attorneys fees should be reduced to $59,450.00 or less. Furthermore, Defendant asserts the hourly rates of Plaintiffs attorneys and the number of attorneys assigned to the case are artificially inflated, arbitrary, excessive and unreasonable given the non-complex nature of this case. As such, Defendant argues the hourly rate should be set at no more than $350/hr for all attorneys. Defendants Opposition includes a table addressing each of the time entries submitted by Plaintiff, which Defendant objects to as being unreasonable and excessive. Excessive and duplicative time entries Plaintiff counsel expended 287.2 hours on this litigation, which was pending for approximately five years and was litigated up until a week before trial was to commence. Plaintiffs proposed lodestar total is $110,096.50. · Unreasonably excessive time entries. Plaintiffs attorneys spent (1) 7.6 hours on reviewing the trial calendar and case file @ $349.30/hr for a total of $2,654.50. There is nothing indicating that reviewing the trial calendar and case file would require 7.6 hours. The amount billed is reduced from 7.6 hours to 3.8 hours @ $349.30.00/hr for a total of $1,327.34, a reduction of $1,327.16. · Duplicative time entries. (1) Counsel RH spent 1.6 hours on October 5, 2023 preparing for hearing on motion to compel deposition of Gavin Labeet, Counsel RH spent an additional 2.4 hours on October 6, 2023 preparing for and attending hearing on the motion @ $550.00/hr for a total of $2,200.00; (2) Counsel EK spent 0.4 hours on January 19, 2023 drafting notice of deposition of Gavin Labeet, Counsel EK spent an additional 0.4 hours on January 20, 2023 drafting notice of deposition of Gavin Labeet @ $295.00/hr for a total of $236.00; (3) Counsel CWR spent 2.0 hours on November 7, 2023 drafting trial brief @ $350.00/hr and 0.9 hours on February 28, 2024 to draft and revise the trial brief @ $375.00/hr for a total of $1,037.50, Counsel DF spent 1.4 hours on February 29, 2024 finalizing the trial brief @ $250.00/hr for a total of $350.00, and Counsel SW spent 13.2 hours preparing the trial brief @ $645.00/hr for a total of $8,514.00; and (4) Counsel SS spent 2.3 hours on August 5, 2022 drafting mandatory settlement conference (MSC) brief, 1.6 hours on August 11, 2022 preparing for MSC, Counsel SS spent an additional 2.2 hours on September 12, 2022 drafting a MSC brief @ $325.00/hr for a total of $1,982.50, Counsel THS spent 3.1 hours on September 27, 2022 preparing for MSC @ $500.00/hr for a total of $1,550.00, Counsel EEK spent 3.4 hours on January 22, 2024 drafting MSC brief @ $295.00/hr for a total of $1,003.00, and Counsel JKM spent 2.6 hours on March 4, 2024 preparing for MSC @ $495.00/hr for a total of $1,287.00. · The amount billed for preparing and attending the hearing on the motion to compel deposition of Gavin Labeet is reduced from 4.0 hours @ $550.00/hr to 2.0 hours @ $550.00/hr for a total of $1,100.00, a reduction of $1,100.00. · The amount billed for drafting the notice of deposition of Gavin Labeet is reduced from 0.8 hours @ $295.00/hr to 0.4 hours @ $295.00/hr for a total of $118.00, a reduction of $118.00. · The amount billed for drafting, revising, and finalizing the trial brief is reduced from 17.5 hours @ $540.00/hr to 10.0 hours @ $540.00/hr for a total of $5,400.00, a reduction of $4,501.50. · The amount billed for drafting the MSC brief and preparing for MSC is reduced from 15.2 hours @ $404.32/hr to 6.5 hours @ $404.00/hr for a total of $2,628.08, a reduction of $3,194.42. In total, the requested fees are reduced by $10,241.08 due to excessive hours and duplicative time entries. This leaves a balance of $99,855.42 ($110,096.50 $10,241.08.) Hourly rates The hourly rates to be used in computing the lodestar must be within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work. (Children's Hospital & Medical Center v. Bonta ́ (2002) 97 Cal.App.4th 740, 783; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (The reasonable hourly rate is that prevailing in the community for similar work). Particularly where it is difficult to obtain evidence of market based rates for the same type of work, the courts look at fees charged for cases requiring similar skills. (The Utility Reform Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, 536537; Prison Legal News v. Schwarzenegger (9th Cir.2010) 608 F.3d 446, 454455 (all attorneys in the community engaged in equally complex Federal litigation, no matter the subject matter). In determining the reasonable rate and reasonable hours, the Court looks to that prevailing in the community for similar work. (PLCM Group, Inc., supra, 22 Cal.4th at 1095; Ketchum, supra, 24 Cal.4th at 1132 (the lodestar is the basic fee for comparable legal services in the community). A reasonable trial court might determine that the similar work or comparable legal services related to insurance defense litigation, rather than to civil litigation in general. Were the court to so conclude, it could view the relevant market to be that of insurance defense litigation and litigators, rather than general civil litigation. The market rate for such services might be limited accordingly. Again, we emphasize that such determinations lie within the broad discretion of the trial court. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702703.) The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar work. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) The trial court is not required to adopt counsels opinion as to the market rate for services of the type performed. (Syers Properties III, supra, 226 Cal.App.4th at 702.) The trial court may accept the actual rate charged as the reasonable rate. (Id.) Plaintiffs counsel consisted of twenty-two attorneys and one paralegal who performed work at hourly rates of $200.00, $250.00, $270.00, $275.00, $295.00, $325.00, $345.00, $350.00, $375.00, $390.00, $395.00, $400.00, $415.00, $425.00, $450.00, $495.00, $500.00, $550.00, $595.00, and $645.00. (Kirnos Decl., ¶¶35-58.) Counsel Kirnos attests to his experience and knowledge regarding Song-Beverly litigation. (Id. at ¶35.) Counsel further attests to the background and experience of the other attorneys and paralegal who assisted him in this case. (Id. at ¶¶36-58.) However, in reviewing the attorneys backgrounds and the market rate charged for similar services according to the Courts own experience, the hourly rates charged above $575.00 by Counsel SW are excessive. Those hours billed at $595 and $645.00 are recalculated at the hourly rate of $575.00 as follows: · Scott Wilson (SW). 17.4 hours @ $595.00 for a total of $10,353.00 reduced to $10,005.00, for total reduction of $348.00. · SW. 13.8 hours @ $645.00 for a total of $8,901.00 reduced to $7,935, for total reduction of $966.00. In total, the requested fee award is reduced by $1,314.00 for excessive hourly rates. Applying this further reduction to the balance of $99,855.42, yields the total attorneys fees total: $98,541.42. Multiplier Relevant factors to determine whether an enhancement is appropriate include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 351.) Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation. (Id.) The court may not consider the contingent nature of the representation in both setting the lodestar and applying a modifier. (Id.) Another factor considered by a court in applying a multiplier is the result obtained. The results obtained factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.) Plaintiff fails to present any facts that would require a multiplier to compensate counsel for their services at fair market value. First, the case was not particularly complex case as it did not involve any novel legal issues. Next, the lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. Therefore, no justification to apply a multiplier exists. Costs Plaintiff includes a request for an award of costs in the amount of $19,783.87. Defendant filed a separate motion to tax these claimed costs. The motion to tax costs is addressed more thoroughly below. Motion to Tax Costs Defendant argues that $14,118.55 of Plaintiffs claimed costs must be stricken or in the alternative, taxed on the grounds that (1) the deposition costs are not allowable under Code of Civil Procedure Section 1033.5(b); (2) the service of process costs were not reasonably necessary to the conduct of litigation; (3) the expert witness costs are not reasonable in amount; (4) the court reporter fees were no reasonably incurred by Plaintiff; and (5) the travel expenses and court appearance are not properly claimed as a cost in this action. Here, Plaintiff seeks $7,806.65 in deposition costs for the notice of subpoenas and taking of deposition of several party and non-party witnesses. Despite Defendants assertion that deposition costs are not allowable, Code of Civil Procedure Section 1033.5(a)(3) expressly states: Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed are allowable costs. Furthermore, Plaintiff contends the deposition subpoenas for the dealership personnel, i.e., service advisors and technician were necessary for Plaintiff to obtain testimony regarding the communications she had with various employees about the defects with the Vehicle and repair orders. Moreover, Plaintiff presents evidence that depositions costs are for transcripts of depositions that actually took place and the corresponding invoices. Similarly, service of process fees are allowable costs under Code of Civil Procedure Section 1033.5(a)(4). Plaintiff seeks $1,038.70 for service of process fees for the service of the summons and deposition subpoenas. As discussed above, Plaintiff explains the deposition subpoenas for the dealership personnel were reasonably necessary to ensure they would provide testimony concerning Plaintiffs Vehicle repair history. Likewise, Plaintiff seeks $4,487.50 for court reporter fees, which are allowable costs under Code of Civil Procedure Section 1033.5(a)(11) as established by statute. Defendant argues these claimed costs were not reasonably necessary to the conduct of litigation, unreasonable in amount, and not properly claimed. However, Plaintiff asserts the court reporter was used for motions deemed important in efforts to preserve the record in case of appeal and Defendant stipulated to the use of these reporters. Additionally, Plaintiff has presented invoices to support these costs were actually incurred. Plaintiff also seeks $3,736.00 for expert witness fees, which are allowable under Civil Code Section 1794(d). (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) Plaintiff further contends that her expert witness Thomas Lepper was hired as a counter to Defendants own expert, was deposed, and provided critical testimony regarding how the defect substantially impaired the use of the Vehicle, and the value or safety of the Vehicle. Moreover, Plaintiff submitted the invoices from Mr. Lepper demonstrating the claimed costs were actually incurred. Lastly, Plaintiff seeks $459.80 for travel expenses and court appearances, which are neither expressly allowed or prohibited costs. Plaintiff argues that these costs were necessary because this Court requires in-person appearance for Mandatory Settlement Conferences and using her own attorneys for the court appearances would have been more expensive. Also, Plaintiff has provided evidence that these costs were actually incurred. The Court denies Kias motion to tax costs. IV. Conclusion Plaintiff is awarded attorneys fees and costs in the amount of $118,329.29. Defendant Kia is ordered to pay this sum to Plaintiffs counsel on or before September 13, 2024.
Ruling
LAW OFFICES OF RAMIN R. YOUNESSI, A PROFESSIONAL LAW CORPORATION, VS KURSHID KHAN MUHAMMAD
Aug 08, 2024 |22STCV15251
Case Number: 22STCV15251 Hearing Date: August 8, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 LAW OFFICES OF RAMIN R. YOUNESSI, Plaintiff, v. KURSHID KHAN MUHAMMAD, et al, Defendant(s). Case No.: 22STCV15251 [TENTATIVE AND PROPOSED] STATEMENT OF DECISION BY THE COURT AFTER TRIAL [TENTATIVE AND PROPOSED] STATEMENT OF DECISION BY THE COURT AFTER TRIAL This matter came on for trial on April 17-23, 2024, in Department 50 of the above-entitled Court before the Hon. Teresa A. Beaudet, sitting without a jury. The Court, having considered the evidence and read the arguments of counsel, issues this tentative and proposed Statement of Decision. This tentative and proposed Statement of Decision will become the Statement of Decision unless, within 15 days hereafter, a party serves and files objections to the proposed Statement of Decision. THE MATERIAL ISSUES TO BE DETERMINED The following are the material issues to be determined by the Court: A. Did Defendant Kurshid Khan Muhammad (Defendant) breach the contingency retainer agreement (the Agreement) he entered into with Plaintiff Law Offices of Ramin R. Younessi (Plaintiff) by failing to pay Plaintiff $101,250.00 in attorney fees and $8,054.16 in costs due under the Agreement? B. Did Plaintiff forfeit the right to enforce the Agreement by voluntarily withdrawing from the representation of Defendant in the case Defendant brought against his former employer, AltaMed Health Services Corporation (the AltaMed Case)? C. If Plaintiff cannot enforce the Agreement, is Plaintiff entitled to recover fees and costs based on promissory estoppel, quantum meruit or unjust enrichment? A. Did Defendant Breach the Agreement? To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. ((Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186). Contract formation results from the acceptance of proposals which are sufficiently definite such that upon acceptance the performance promised is reasonably certain. ((Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811). Construction of a written fee agreement is essentially a judicial function exercised in accordance with the legal principles of contract interpretation. ((Sayble v. Feinman (1978) 76 Cal.App.3d 509, 512); MGuinness v. Johnson (2015) 243 Cal.App.4th 602, 617-618; Go Tek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1249. [attorney fees provision must be analyzed on its own terms and in context pursuant to rules of contract interpretation for determining actual intent of parties.] Defendant never disputed he entered into a valid agreement for legal services with Plaintiff on July 8, 2019. From July 8, 2019, to May 26, 2021, Defendant did not claim that the terms of the Agreement were vague or unenforceable. From July 8, 2019 through May 26, 2021 Plaintiff fully performed under the Agreement with Defendants knowledge that Plaintiff was performing legal services on behalf of and for the benefit of Defendant. Plaintiff obtained a Right to Sue Letter from the California Department of Fair Employment and Housing on June 18, 2020 and served the Right to Sue Letter on AltaMed. Plaintiff thereafter filed a lawsuit on Defendants behalf against AltaMed for discrimination and related causes of action on August 18, 2020. Back and forth communications transpired between Plaintiff and AltaMeds legal counsel in connection with Defendants lawsuit as part of the litigation process. During this time, Plaintiff was in communication with Defendant himself regarding the case and how it was proceeding. In an effort to avoid protracted litigation and reach an early agreeable resolution of Defendants case against AltaMed, the parties agreed to participate in mediation. With Defendants consent, the all-day mediation took place on May 26, 2021. Defendant was an active participant in the proceedings. The mediation resulted in a gross settlement amount being agreed upon between Defendant and his former employer AltaMed. Defendant was presented with settlement documents which included a long-form agreement and an MOU. Both documents were explained to him. Defendant signed the MOU which memorialized the parties settlement. At the conclusion of the mediation on May 26, 2021, when the MOU was executed, the services to be rendered by Plaintiff to Defendant were concluded. The Court finds that Defendant breached the Agreement by failing to pay Plaintiff the $101,250.00 in attorney fees and $8,054.16 in costs due under the Agreement. In accordance with the Agreement, Plaintiff had represented Defendant in the AltaMed case through the settlement at the mediation. After agreeing to the terms of the settlement and signing a binding MOU, Defendant refused to perform his part under the MOU. Thereafter, Defendant also refused to pay Plaintiff the attorney fees and costs in breach of the Agreement.[1] B. Did Plaintiff Forfeit the Right to Enforce the Agreement by Withdrawing from the Representation of Defendant? The Court finds that Plaintiff did not forfeit the right to enforce the Agreement by withdrawing from the representation of Defendant. When Defendant insisted upon asserting a position in the AltaMed Case that lacked probable cause, under the State Bar Rules of Professional Conduct, Plaintiff was required to withdraw from representation of Defendant. C. Is Plaintiff Entitled to Recover Fees and Costs Based Upon Promissory Estoppel, Quantum Meruit or Unjust Enrichment? Even if Plaintiff could not recover under a breach of contract theory, Plaintiff would be entitled to recover its fees and costs pursuant to Quantum Meruit. As an alternative to an action on the express contract, an attorney may sue on the basis of quantum meruit to recover for the reasonable value of the attorneys services. See, Hardy v. San Fernando Valley Chamber of Commerce (1950) 99 Cal.App.2d 572, 576-577. Even if a fee contract is void as against public policy, an attorney may still recover in quantum meruit for the reasonable value of the services that were rendered under the contract. (Rosenberg v. Lawrence (1938) 10 Cal.2d 590, 593-594); (Calvert v. Stoner (1948) 33 Cal.2d 97, 104-105); see also, Denton v. Smith (1951) 101 Cal.App.2d 841, 844-845. A quantum meruit fee is based on the reasonable value of services rendered rather than the amount due under a contract or the resulting benefit of services performed. (Earhart v. William Low Co. (1979) 25 Cal.3d 503, 505). To recover on a quantum meruit theory, an attorney must establish that: (1) the plaintiff attorney was acting pursuant to either an express or implied request for such services from the defendant; and (2) the services rendered were intended to and did benefit the defendant. Day v. Alta Bates Med. Ctr. (2002) 98 Cal.App.4th 243, 248-249; Huskinson & Brown, LLP v. Wolf (2004) 32 Cal.App.4th 453, 458 [attorney must show services were rendered under some understanding or expectation of both parties that compensation would be paid.] The starting point for determining a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyers services. Mardirossian & Assocs., Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 272; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [lodestar is the basic fee for comparable legal services in the community.] In the case of attorney discharge, when such discharge occurs on the courthouse steps where the client executes a settlement obtained after work by the attorney, the factors involved in determination of a reasonable fee would certainly justify a finding that the entire fee was the reasonable value of the attorneys services. (Fracasse v. Brent (1972) 6 Cal.3d 784, 791). Recovery under quantum meruit is not limited to hours spent. The pro rata contract price measure allows a party to recover the benefit of the bargain to the extent the contract has been performed. (Cazares v. Saenz (1989) 208 Cal.App.3d 279, 290). Plaintiff seeks the benefit of Plaintiffs written agreement with Defendant. Plaintiff seeks the full contingency fee of 45% of the gross settlement of $225,000.00, or $101,250.00. Plaintiff performed valuable legal services on Defendants behalf in reliance on the parties agreement. Plaintiff assumed the risk if there was no recovery on Defendants behalf, then Plaintiff would receive no fee as that was the risk Plaintiff bore. Defendant received a financial monetary recovery benefit through Plaintiffs work and efforts, which monetary recovery Defendant agreed to accept when he signed the MOU. That settlement was upheld by the underlying trial court and the court ordered AltaMed to pay the agreed gross settlement proceeds to Defendant. He received the full amount of his share of the undisputed settlement proceeds to which he was entitled under the Agreement. Consequently, the Court finds that Plaintiff is entitled to recover the value of the services rendered under the quantum meruit theory. CONCLUSION The Court finds in favor of Plaintiff and awards damages in the amount of $101,250.00 in attorney fees and $8,054.16 in costs. The Court also finds that Plaintiff has a valid and enforceable lien against the settlement proceeds from the AltaMed Case. Within ten days after this Statement of Decision becomes final, Plaintiff is ordered to file and serve a proposed judgment in accordance with these findings (with a courtesy copy delivered to Dept. 50). The Court hereby dismisses the Doe defendants. Plaintiff is ordered to give notice of this tentative and proposed Statement of Decision. DATED: August 8, 2024 ___________________________ Honorable Teresa A. Beaudet Judge, Los Angeles Superior Court [1] The Court notes that Defendant understood that Plaintiff had a lien for services rendered and costs advanced (Plaintiffs Second Cause of Action) given that Defendant initialed Section 8 of the Agreement.
Ruling
PNC BANK vs MODESTO CARGO LLC a)
Aug 07, 2024 |CV-24-003762
CV-24-003762 – PNC BANK vs MODESTO CARGO LLC – a) Plaintiff’s Application for Writ of Possession and Hearing as to Defendant, Modesto Cargo LLC – WITHDRAWN; b) Plaintiff’s Application for Writ of Possession and Hearing as to Defendant, Sukhdev Singh – WITHDRAWN.
Ruling
AARON CELIOUS VS NUSTATS LLC, ET AL.
Aug 06, 2024 |23SMCV03547
Case Number: 23SMCV03547 Hearing Date: August 6, 2024 Dept: O
Ruling
Maples vs. Withey
Aug 08, 2024 |23CV-0203231
MAPLES VS. WITHEYCase Number: 23CV-0203231Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued toDefendant Taylor Deanne Withey for failing to appear at the Mandatory Settlement Conference on June 17, 2024.Defendant received notice of this court date when served with the Notice of All Purpose Assignment as noted inthe Proof of Service filed on October 10, 2023. Despite being timely noticed of the Order to Show Cause Re:Sanctions, Defendant did not file a written response. An appearance by Defendant is necessary at today’shearing. Failing to appear may result in the imposition of monetary sanctions in the amount of $250 andissuance of an Order to Show Cause Re: Striking of Defendant’s Answer.
Ruling
MARCH MELLOUL, ET AL. VS ARIEL AFAR, ET AL.
Aug 05, 2024 |6/18/2022 |23BBCV02030
Case Number: 23BBCV02030 Hearing Date: August 5, 2024 Dept: I This is an application to advance the hearing date for defendants special motion to strike. The motion was filed on July 24, 2024. It was originally set for October 29, 2024, but because the court will be dark that date, it was continued to November 19, 2024. Defendant is concerned that the court will find that the motion is out of time because it is set more than 30 days after filing. The court will discuss the matter with the parties, but the court will inquire whether October 29, 2024, was truly the first available date. That seems later than the court would have assumed, but if it was the first date, then it was. If there was an earlier date, then the court will inquire why it was not taken. If defendant sought and took the earliest available date, the court will not strike the motion as being over-noticed.
Ruling
JEANIE BRYANT, AN INDIVIDUAL VS JON ALLEN, AN INDIVIDUAL, ET AL.
Aug 08, 2024 |24STCV09175
Case Number: 24STCV09175 Hearing Date: August 8, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 8, 2024 Case Name: Bryant v. Allen, et al. Case No.: 24STCV09175 Motion: Demurrer Moving Party: Defendant Jon Allen Responding Party: Unopposed Tentative Ruling: The Court therefore sustains Defendant Jon Allens Demurrer with leave to amend. I. Background This is an action in which Plaintiff Jeanie Bryant alleges she was defrauded out of money paid to Defendants Jon Allen dba Jon Allen Construction, Michael Zatorski dba Ubuild Construction, David OBrien, and Efrain Olalde, in exchange for promises to build two tiny homes for her by September 13, 2022. On April 11, 2024, Plaintiff filed a Complaint for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) fraudintentional misrepresentation, (4) negligent misrepresentation, (5) deceit Civil Code §§ 1709-10, (6) conspiracy to commit fraud or other tort, (7) conversion, (8) monies had and received, (9) breach of oral contract, (10) promissory estoppel, and (11) Business & Professions Code § 17200. On July 5, 2024, Defendant Allen filed the instant demurrer. The demurrer is unopposed. II. Discussion Legal Standard The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿ A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿¿ ¿ A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)¿¿¿ ¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿ Meet and Confer Per Code of Civil Procedure Section 430.41(a), parties are supposed to meet and confer in person or by telephone before filing a demurrer. (Code Civ. Proc., § 430.41(a).) Defendant Allen attempted to meet and confer with Plaintiff and her former counsel but was unsuccessful. (Mackay Decl. ¶¶1-6, Exs. 1-5.) First and Ninth Causes of Action for Breach of Contract First, Defendant Allen argues the allegations in the complaint as currently pled fails to distinguish whether the contract purportedly breached is oral or written. Establishing that claim requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (DArrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458459.)¿ The Complaint alleges that on or about March 17, 2022, Plaintiff and Defendants entered into a written agreement for the construction and purchase of two tiny homes. (Compl., ¶¶6-7.) The Complaint further alleges that Plaintiff paid Defendants $120,000.00 in cash to substantially remit the total cost of the construction and purchase in the amount of $191,000.00. (Id. at ¶8.) The Complaint further alleges that Defendant failed to perform under the agreement. (Id. at ¶¶17.) Although the allegations in the first cause of action appear to allege the parties entered into a written contract, the ninth cause of action is labeled breach of oral contract and re-alleges the facts set forth in the first cause of action. (Compl., ¶¶72-73.) Moreover, the ninth cause of action alleges that to the extent any of the oral promise made required a writing, the writing is excused by estoppel and part performance. (Id. at ¶77.) As such, the Complaint fails to indicate on its face whether Plaintiff is pleading breach of oral or written contract. Therefore, the demurrer is sustained with leave to amend as to the first and ninth causes of action. Second Cause of Action for Breach of Covenant of Good Faith and Fair Dealing Next, Defendant Allen argues that the second cause of action fails to state sufficient facts to constitute a cause of action because it is based on the same operative breach of contract allegations. The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. The covenant is read into contracts and functions as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) As such, [i]f the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) The Complaint alleges that Defendants violated the duty to act fairly and in good faith as described in the paragraphs set forth in the first cause of action and common allegations. (Compl., ¶21.) The Complaint alleges that Defendants violated the duty good faith and fair dealing by making false promises and otherwise inducing Plaintiff to pay $120,000.00. (Id.) As currently pled, these allegations merely re-allege the acts set forth in the breach of contract claims. (Id. at ¶¶9-11.) Duplicative causes of action are subject to being stricken. Therefore, the demurrer is sustained with leave to amend as to the second cause of action. Third, Fourth, and Fifth Causes of Action for Fraud Defendant Allen further argues that third, fourth, and fifth causes of action fail because Plaintiff does not plead them with specificity. The elements of intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245 (emphasis added).) By contrast, [t]he elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 (emphasis added).) Finally, pursuant to Civil Code Section 1709, One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. (Civ. Code, § 1709, see also Civ. Code, § 1710 (defining deceit).) The facts constituting the alleged fraud must be pled with specificity not is a general or conclusory matter. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) However, [l]ess specificity should be required of fraud claims when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,[citation]. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) The Complaint alleges that Defendants presented to Plaintiff that they would construct and deliver the two tiny homes by September 13, 2022 in order to induce her to pay them $120,000.00. (Compl., ¶29.) The Complaint alleges that Defendants knew their representations were false at the time they were made with the intent to defraud Plaintiff of $120,000.00. (Id. at ¶30.) The Complaint further alleges that Defendants had no reasonable grounds to believe these representations were true when they were made to Plaintiff. (Id. at ¶39.) The Complaint also alleges that Defendants represented to Plaintiff that they would willfully discharge their duties under the agreement, which they knew was false. (Id. at ¶¶45-46.) These allegations are insufficient to support the fraud claims are currently pled because they allege facts in a conclusory matter without specifying which Defendants made what statements to Plaintiff, when these statements were made, or even how these alleged misrepresentations were communicated to Plaintiff. Therefore, the demurrer is sustained with leave to amend as to the third, fourth, and fifth causes of action. Sixth Cause of Action for Conspiracy to Commit Fraud Additionally, Defendant Allen argues that the sixth cause of action fails to state sufficient facts to constitute a cause of action because there are no allegations that Defendants conduct was wrongful. To support a conspiracy claim, a plaintiff must allege the following elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct. (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 (internal citations omitted).) The Complaint alleges that Plaintiff was harmed by Defendants fraud and deceit. (Compl., ¶54.) The Complaint alleges that Defendants are all responsible for the harm because they conspired to commit fraud and deceit and to commit wrongful acts. (Id.) As discussed above, the Complaint fails to plead the fraud and deceit claims with the required specificity. Likewise, a reasonable jury could infer on the face the Complaint what are the actual wrongful acts of the Defendants to which they conspired against Plaintiff. Therefore, the demurrer is sustained with leave to amend as to the sixth cause of action. Eleventh Cause of Action for Business & Professions Code Section 17200 Lastly, Defendant Allen argues that the eleventh cause of action fails to state sufficient facts to constitute a cause of action because it is based on the breach of contract and fraud claims, which Plaintiff fails to sufficiently plead. To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) The Complaint alleges that the foregoing conduct of Defendants constituted either fraud and/or breach of contract, and other unlawful conduct. (Compl., ¶86.) As explained above, the Complaint fails to (1) distinguish whether the parties entered into a written or oral contract, (2) adequately plead breach of oral contract in the alternative, and (3) plead the fraud claims with specificity. Therefore, the demurrer is sustained with leave to amend as to the eleventh cause of action. III. Conclusion The Court therefore sustains Defendant Jon Allens Demurrer. Plaintiff shall serve and file her amended Complaint on or before August 30, 2024.
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