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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU13-079658, Morris v. United Waste Systems, 8/22/2014
>Case No. CU12-078757, Green v. Goldstein, 8/22/2014
>Case No. CU09-074323, ACIC v. Pavone, 8/22/2014 at 10:30 a.m. - Judge R. Michael Smith

Case No. CU13-079658, Morris v. United Waste Systems, 8/22/2014 

Defendant’s Motion for Summary Judgment is dropped. The Court has received a Notice of Settlement of the Entire Action.

Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


Case No. CU12-078757, Green v. Goldstein, 8/22/2014 

Plaintiff’s Motion for Attorney’s Fees.

Code of Civil Procedure §1094 provides, “(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

The Court finds that CCP §1031 which limits attorney’s fees for such actions does not apply, as the amount demanded exceeded $300.

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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….” Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154. Trial courts properly may use equitable considerations to reduce the lodestar amount of attorney fees, including on the basis that certain fees were unnecessary. EnPalm, LLC v. The Teitler Family Trust, etc. (2008) 162 Cal.App.4th 770, 778.

“Where fees are authorized for some causes of action in a complaint but not for others, allocation is a matter within the trial court's discretion.” Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604. In the present case, only the Labor Code violation authorized attorney’s fees. The Labor Code violation was one of nine causes of action. The Court finds it appropriate to consider the fees only with respect to this single cause of action.

The complaint was filed on July 30, 2012. The Answer, asserting Defendant’s statute of limitations defense, was filed on December 10, 2012. In all fairness to Plaintiff, defense counsel failed to properly plead the specific statute upon which he was relying. Notwithstanding, the best outcome of this cause of action from the beginning was only $5,208, and as trial approached, the specific defense became quite apparent. Plaintiff fully litigated every aspect of this claim through five days of unlimited jurisdiction trial. Plaintiff recovered a mere $100 on the labor claim, largely as a result of all but a few hours of the wage claim being time barred. Plaintiff now claims attorney fees in the sum of $232, 067.80.

While the Court is guided by the above authority in making a Lodestar analysis, the statute calls only for “reasonable” fees. Here, counsel should reasonably have known before filing that the bulk of the claim was time barred. Having received a copy of the Answer, counsel should reasonably have known that the Defendant intended to rely on a statute of limitations defense to this claim. Counsel should reasonably have anticipated the recovery on this claim to be somewhere between zero and one hundred dollars. Counsel should reasonably have known that the cost of pursuing such a claim in an unlimited jurisdiction case would far outweigh any benefit. Yet counsel now boldly and unabashedly seeks over $230,000 in attorney fees for the collective efforts of his firm.

In this Court’s view, almost any award of fees would be unreasonable. The bulk of the fees were incurred with respect to the other causes of action. Further, only a miniscule amount of the fees was incurred prior to the Answer being filed, which framed the issues in terms of the timeliness of the claim. It is abundantly clear that the only reason for pursuing the wage claim was to parlay statutory attorney fees across the entirety of Plaintiff’s case. In this court’s view, Plaintiff’s dogged pursuit of the claim was unwarranted. Rewarding the Plaintiff for such lack of insight and judgment would not be a reasonable exercise of the Court’s discretion.

A reasonable contingent fee for a small stakes case is 50%. Plaintiff is therefore awarded $50.

Plaintiff’s request to impose individual liability against Tammie and Floyd Goldstein based on alter ego is denied without prejudice. A motion seeking attorney’s fees is not the proper vehicle for seeking such an order.

Plaintiff’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


Case No. CU09-074323, ACIC v. Pavone, 8/22/2014 at 10:30 a.m. - Judge R. Michael Smith 

This tentative ruling is issued by Judge R. Michael Smith. If oral argument is requested, such oral argument shall be heard on Friday, August 22, 2014. At 10:30 am in Dept. 6. CourtCall is permitted.

Respondent Pavone’s Motion for Reconsideration is denied.

"A motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements).

A court reasoned that the requirement of new or different law was not satisfied where it was available before the original hearing. See Scott Co. of Cal. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197, 205, disapproved on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 n.5.

Here, the law of which Pavone cites in the motion for reconsideration was available at the time of the hearing. Thus, this is not “new law” as required by CCP §1008.

The proper motion for seeking relief from an order based on failure to timely request oral argument would be a CCP §473(b) motion.

Nonetheless, the Court has reviewed the legal authority offered by Respondent. However, Respondent failed to provide any authority that a claimant could borrow an attorney’s fees provision from a related case to support attorney’s fees in an interpleader action. Further, there is no statutory authority for claimants to recover attorney’s fees in an interpleader. Rather, CCP §386.6 provides attorney’s fees only for those who interplead the funds, not the claimants to the funds.

Lastly, the remaining funds on deposit with the court are being claimed by another Respondent. To allow Pavone to have additional fees and costs would potentially take the money directly out of the pockets of claimant Wild & Carter.

Based upon the foregoing, the motion for reconsideration is denied.


Pavone’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.