2016-00205373-CU-BC

JAH’s Legal Insight Service vs. Cube Smart Self Storage

Nature of Proceeding: Motion for Attorney Fees

Filed By: Cale, Jason R.

Defendant Cube Smart Self Storage’s motion for attorneys’ fees against Plaintiff Anthony J. Hall (“Hall”) is unopposed but is DENIED.

In this action, Plaintiffs Hall and J.A.H.’s Legal Insight Service (collectively “Plaintiffs”) allege that Defendant wrongfully terminated the storage unit contract by claiming that they had not paid rent for the storage unit. Plaintiffs also allege that Defendant wrongfully converted the property in the storage unit.

On 11/8/2018, the Court granted Defendant’s unopposed motion for terminating sanctions against Hall.

Defendant now seeks $26,754.35 in attorneys’ fees pursuant to contract. (Civ. Code 1717.)

Defendant points to the following provision in the contract which it contends entitles it to attorneys’ fees:

Section 10: Default, Remedies

If You are in default of this Agreement We may, at Our option (a) immediately terminate this Agreement, (b) if it is a monetary default, commence to sell, and sell, the Space Contents as set forth in Paragraph 9 and this Agreement will terminate on the sale date (and, if the Space Contents do not sell. We may dispose of the Space Contents), and/or (c) exercise any other remedy in this Agreement, at law, or in equity. You
will pay to Us any attorneys’ fees, court costs, or other expenses that We incur in connection with Your default.

Section 17: Indemnity

You will indemnify, defend, and hold each of the Released Parties harmless from and against any and all losses, claims, actions, causes of action, costs, expenses (including, without limitation, attorneys’ fees and court costs), liabilities, and/or damages arising out of (i) Your or Your agents or invitees acts or omissions, (ii) Your default under this Agreement, (iii) Your or Your agents or invitees use of the Space or the Facility, (iv) any damage to or loss of the Space Contents, and/or (v) the sale of any Space Contents after Your default, including, without limitation any Files described in Paragraph 28.

Section 36: Attorney Fees

If We retain counsel to enforce any of Our rights under this Agreement, You will pay Our reasonable attorneys’ fees, court costs, and expenses whether incurred during or after the term of this Agreement.

The Court is not convinced that any of these sections entitle Defendant to attorneys’ fees.

With respect to the default provision, Defendant fails to proffer any legal authority or analysis showing that the fees were incurred “in connection with” Plaintiffs’ default. The Court is not persuaded that this provision extends so far as to encompass Plaintiffs’ action.

With respect to the indemnity/defense provision, Defendant again fails to proffer any legal authority or analysis showing how this provision applies to Plaintiff’s action. The Court is not persuaded that Hill is required to indemnify Defendant for Hill’s own action against Defendant. Nor is the Court convinced that Hill is required to defend Defendant against Hill’s own complaint. Such a reading would lead to absurd results.

With respect to the attorneys’ fee provision, the section applies only when Defendant retains counsel to “enforce any of Our rights under this Agreement.” In this action, Defendant is not “enforcing” any of its rights. Rather, it is defending Plaintiffs’ action. Nor has Defendant filed a cross-complaint in which it seeks to “enforce” its rights.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 8 2016-00205373-CU-BC

JAH’s Legal Insight Service vs. Cube Smart Self Storage

Nature of Proceeding: Motion to Compel Deposition

Filed By: Cale, Jason R.

Defendant Cube Smart Self Storage’s motion to compel former Plaintiff Anthony J.

Hall’s (“Hall”) deposition is UNOPPOSED but is DENIED without prejudice.

On 10/3/2018, Defendant served Hall with a notice of deposition for a deposition on 10/19/2018. Hall failed to appear. On 11/8/2018, the Court granted Defendant’s motion for terminating sanctions against Hall for his failure to respond to discovery and failure to comply with the Court’s repeated discovery orders.

On 12/14/2018, Defendant filed the instant motion to compel Hall’s attendance based on his failure to appear pursuant to the notice of deposition.

CCP § 2025.450(a) provides that “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination. . . the party giving the notice may move for an order compelling the deponent’s attendance.”

Defendant proffers no legal that since Hall is no longer a party to the action, Defendant

may now compel Hall’s attendance based on the notice of deposition (rather than on a

subpoena).

Defendant’s request for monetary sanctions pursuant to CCP 2025.450(g)(1) is DENIED. The section only allows for an award of monetary sanctions if the motion is granted.

Defendant’s request for monetary sanctions pursuant to CCP 2025.450(g)(2) is also DENIED. The section allows for monetary sanctions “on a motion of any other party who. . . attended ….the deposition.” This section does not apply to the party moving to compel the deposition, but rather the “any other party” that attended the deposition.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.