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Tentative Rulings, Truckee - Law and Motion

>TCU13-5398 Nuti v. The Law Offices of Les Zieve
>TCU16-6265 Arndell Family Trust v. Generation Mortgage
>T12-5038C Charles v. US Bank
>TCU14-5971 Amco Ins. v. Lawton Construction

TCU13-5398 Nuti v. The Law Offices of Les Zieve 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch

Defendants’ Motion for Attorney’s Fees is granted in part.

In an action on a contract, where the contract specifically contains an attorney’s fee provision, attorney’s fees shall be awarded to the prevailing party. Civil Code §1717(a). The underlying contract at issue provides for attorneys’ fees. Additionally, Defendants were awarded their costs, including fees, on appeal.

“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.

In the present case, the court finds the reasonable hourly rate for this community is $450 and the reasonable number of hours for this litigation is 75 hours. Thus, attorney’s fees are awarded in favor of Defendants against Plaintiffs in the amount of $33,750. Defendants are also entitled to costs in the sum of $2,033.67.

Defendants’ 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) 582-7835 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.


TCU16-6265 Arndell Family Trust v. Generation Mortgage 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Defendants Reverse Mortgage, Waterfall Victoria, Waterfall Asset, and TRM’s Demurrer to the First Amended Complaint is sustained without leave to amend in part, sustained with leave to amend in part, and overruled in part.

Defendants’ Request for Judicial Notice is granted in its entirety.

Claim preclusion applies to “all matters actually raised in the first suit but also matters which could have been raised.” Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1175.

As set forth in the second and third causes of action, the Amended Complaint alleges fraud in the origination process back in 2007 and for cancellation of the Notice of Default and Notice of Sale recorded back in 2014. These claims could have been raised in the original action. Consequently, these two claims are barred against Reverse, Waterfall Victoria, and Waterfall Asset.

Additionally, Plaintiff alleges in paragraph 30 of the Amended Complaint that the loan was transferred to TRM on 12/23/15. Thus, TRM is in privity with these three defendants. Thus, the claims for fraud and cancellation are also barred against Defendant TRM. The demurrer to these two causes of action is, therefore, sustained without leave to amend as to all four moving defendants.

However, the factual allegations in support of the declaratory relief and quiet title claims focus on the purportedly improper transfer of the loan to TRM on 12/17/15. This allegation was not addressed in the prior action, and could not have been addressed in the prior action because such transfer occurred after that action was finally adjudicated.

Accordingly, the first and fourth causes of action are not barred by res judicata or claims preclusion.

Further, the Court finds the claim for declaratory relief to be prospective, and not based on righting a past wrong. Thus, the demurrer to the declaratory relief claim is overruled as to all four moving defendants.

As to the cause of action for quiet title, “It is settled that an action to set aside a trustee's sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.” Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 213, quoting Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578. Here, Plaintiff has failed to allege tender and did not address this argument in the Opposition to the present demurrer. Thus, the demurrer to the quiet title claim is sustained with leave to amend as to all four moving defendants.

Any Amended Complaint must be served and filed by August 4, 2016.

Moving Party’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) 582-7835 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.


T12-5038C Charles v. US Bank 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Motion for Attorneys’ Fees

Defendants’ Motion for Attorneys’ Fees is granted in part.

Here, there is an attorneys’ fees provision in the Settlement Agreement relating to fees for interpreting or enforcing the agreement. Thus, there is a contract which allows for the fees sought herein.

“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.

The court notes that the Declaration in support of the motion does not provide for the attorney’s experience, hourly rate, or any information relating to the reasonableness of the fees sought. Rather, only the billing statements are verified.

Accordingly, the Court limits the hourly rate to that of a median attorney in the area, at $275 per hour. The Court also finds that a reasonable number of hours relating to the motion to enforce/amend, discovery, the motion for summary judgment, the motion for fees, all of which pertain to the enforcement of the Settlement Agreement, is 125 hours.

Thus, the Court grants Defendants attorneys’ fees in the amount of $34,275.


Motion to Tax Costs

Plaintiff’s Motion to Tax is granted in part.

The Court hereby taxes the first appearance fee of $2,175. There was no appearance fee required upon the filing of the Amended Answer. Any first appearance fee prior to Settlement Agreement date is not permissible.

However, the filing fee for the motion for summary judgment and the deposition costs relating to the settlement agreement are allowable.

Thus, the Court taxes only $2,175.

Defendants’ attorney is to submit a formal order that sets out verbatim the tentative ruling herein for both matters 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) 582-7835 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.


TCU14-5971 Amco Ins. v. Lawton Construction 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Defendant’s Motion for Good Faith Settlement is denied without prejudice. There is no declaration in support of the motion so there is no evidence to support the argument that the settlement is in good faith. The court notes that the caption of the Memo of Ps&As states that a declaration is attached, but nothing is attached to the Memo in the court’s file. In addition, the proof of service provides only that a “Notice of Motion” was served.

Moving Party’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) 582-7835 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.