Case Number: SC121303 Hearing Date: September 19, 2019 Dept: P

TENTATIVE RULINGS

Peter Kleidman v. RFF Family Partnership, LP CASE NUMBER: SC121303

HEARING DATE: 9/19/2019

This breach of contract action arises out of a loan agreement/promissory note. Judgment for defendant was entered in April 2015; the Court of Appeal affirmed in October 2018 (see exhibits to motion). Both the trial court and Court of Appeal found defendant to be the prevailing party.

Defendant’s Motion for Attorney’s Fees – Civil Code 1717

Plaintiff argues the fees claim should be disregarded because defendant failed to supply a “cognizable line of reasoning or ratiocination applying Civil Code §1717(a)’s first sentence to the alleged facts[.]” No “reasoning or ratiocination” is required. Plaintiff does not dispute the existence of an attorney’s fees clause.

Plaintiff also argues the court should treat Mr. Parcell’s declaration with skepticism because an Ohio bankruptcy court questioned his credibility. A court may not take judicial notice of the truth of matters stated in other court papers, as plaintiff requests. Furthermore, this court cannot rely on conclusions reached under different circumstances in a separate matter to pass judgment on the credibility of declarations filed here.

Plaintiff offers constitutional objections, arguing judicial determination of attorney’s fees motions violates his right to due process because it does not permit full discovery. He also argues the motion should be decided by jury trial. Plaintiff provides no authority that due process in determining post-litigation fee awards requires access to the tools of pre-trial discovery. No jury trial is available since the motion does not constitute an action separate from the underlying breach of contract claim.

Defendant requests $600/hour for Parcell’s work and $350/hour for more junior attorneys’ work (Mehdian and Claybon). These amounts are in line with counsels’ experience and work provided. The hours requested (77.85) is not unreasonable, given that this matter was tried and appealed. The only line entry challenged is 2.5 hours requested for correcting pagination of a brief. The court agrees this seems excessive for this task.

The court will subtract the value of 2.5 hours ($1,500.00) from defendant’s total award. The court will also rely on the $40,072.50 requested in the notice (and Exh. 3 to the motion). Defendant is awarded $38,572.50 in attorney’s fees.

Defendant’s Motion for Protective Order and Sanctions

On November 26, 2018 plaintiff filed requests for production of documents on defendant, seeking information corroborating defendant’s claimed attorney’s fees. Defendant moves for a protective order stating that it need not respond to these discovery requests on the grounds that they were filed long after the discovery deadline passed.

The cut-off date for completion of discovery is 30 days before the trial date. Code of Civ. Proc. §2024.020. When a party is served with a request for production of documents, the party may move for a protective order stating that some or all of the categories in the demand need not be produced. A party unsuccessfully opposing a motion for protective order is subject to sanctions unless the party acted with substantial justification. Code of Civ. Proc. §2031.060(a), (b), (h).

Plaintiff argues due process requires that he be able to obtain the requested information. Plaintiff provides no authority that his rights would be violated or that he is entitled to such discovery following conclusion of trial and appeal.

Motion GRANTED. Plaintiff did not act with “substantial justification” in seeking these documents years after the discovery deadline passed, so sanctions are warranted. The request for $4,561 is excessive. $1,000.00 in sanctions will be awarded.