Case Number: SC128659    Hearing Date: March 7, 2025    Dept: I

The matter here today is Buckley’s application to continue the request for equitable relief.  It appears that the matter went on calendar but no papers were filed or served.  Given that, the court believes that the application should be GRANTED.

As long as we are all here, though, the court will deal with the prejudgment interest objection.  The court could deal with it from chambers, which is what it was going to do, but under the circumstances, before doing so the court will hear from the parties if they agree.  Here is the court’s thought.

The court has considered Buckley’s objection to Pomerantz’s view that prejudgment interest is appropriate.  Pomerantz prevailed on his breach of contract cause of action and the jury awarded damages.  The damages were less than Pomerantz had sought, but were plainly based on an hourly fee basis.  Buckley contends that there is no interest here because the amount of the award was not liquidated nor capable of ready calculation.  The rule on prejudgment interest in the contract context is that if the damages are liquidated or capable of ready calculation, then interest is appropriate.  If not, then not.  No one disputes that if interest is appropriate, the rate is 10% simple per annum.  According to Buckley, that means that if the dispute is about liability, but all generally agree as to what the damages are if they are appropriate at all, then interest is appropriate.  But if the methodology is disputed, then they are not. 

The court does not quite agree with Buckley.  The court believes that the rule does not require the parties to agree on the calculation precisely.  The parties can disagree as to the right measure of damages.  The question in the court’s mind is whether the metric is one that leads to a readily calculable figure or not.  At the extremes, the test is easy to apply; not so much at the margins.

While this case is not without doubt, the court tends to side with Pomerantz.  The court well knows that Buckley’s view is that Pomerantz is bound to take no more than 1/3 of the total $75,000 award because he claims he agreed to that limit if Buckley settled the underlying case (which Buckley did) and because Pomerantz allegedly made a jural admission in his complaint to that effect, while Pomerantz argued he was entitled to the hourly fee set forth in the contract.  The court’s take is that these are two different metrics, but the fact that the parties disputed which metric was appropriate was more a matter of liability than anything else.  Buckley claimed that the contract had been substantively altered so as to be the 1/3 valuation; Pomerantz argued that there was no such modification that was legally effective.  It is not that the sum could not be calculated; it is that there was a dispute as to whether the contract had been altered or amended.  As such, interest is appropriate.  The flaw in Buckley’s reasoning is that where there are multiple theories of damages, but each is readily calculable, interest can be recovered even where the parties dispute which measure is the right one.  (Shell Oil Co. v. national union Fire Ins. Co. (1996) 44 Cal.App.4th 1633; Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740; see generally Chesapeake Industries v. Togova Enterprises (1983) 149 Cal.App.3d 901, 907 [the focus in determining whether prejudgment interest is appropriate is whether the defendant knew the amount plaintiff sought or could reasonably calculate it from information available to the defendant].)  Here, Buckley knew that Pomerantz was seeking damages based on his hourly rate times the number of hours spent, or, alternatively, one-third of the total recovery.  While these are two very different measures, they are both readily calculable.  Buckley knew the amount of the settlement, but more importantly for this motion, he also knew the hours that Pomerantz claimed and the hourly rate because he had been given Pomerantz’s bill.  While it is true that Buckley believed that the agreement was that Pomerantz was entitled to an award only if the settlement exceeded $125,000 or from a fee recovery following a trial, all that means is that, again, the parties disputed only liability and methodology, but not the underlying calculation once liability and methodology were determined.

Of course, the court must also deal with the fact that Pomerantz did not get the full contract amount he claimed.  The jury reduced the award significantly—by about $15,000.  The court’s take on the subject, although it is admittedly not express in the verdict form, is that the jury concluded that Pomerantz was not entitled to recover for all of the time he claimed, either because it was not appropriate or because it was overbilled or because it was unnecessary.  But the calculation need not be precise to yield prejudgment interest.  In short, the court agrees that the award of prejudgment interest is appropriate.

Having so concluded, the court agrees that Pomerantz’s calculation is the appropriate one.  Prejudgment interest is therefore awarded in the amount of $50,645.60.  The total will earn interest of 10% per annum from the date judgment is entered until paid.

Finally, a word on procedure.  The court cannot sign the final judgment until the equitable issues are completed.  Thus, the court will set the hearing on Buckley’s equitable issues for the earliest date available.  When that is determined, a judgment will be issued based on the jury verdict and the result of the equitable ruling.  It is really only then that the court can enter the one final judgment, and it is at that point that Buckley’s motion for a new trial would be ripe.

Case Number: 24SMCV04610    Hearing Date: March 6, 2025    Dept: I

Please call the courtroom after 8 am to obtain a copy of the court’s tentative order.  

Case Number: 24SMCV06296    Hearing Date: March 6, 2025    Dept: I

This is a motion to strike, and it is DENIED.  Essentially, plaintiff contends that she rented a unit from the defense and was exposed to dangerous levels of toxic mold and suffered injuries therefrom.  

The court came very close to granting the motion.  But the court notes that in the context of a pleading motion like this, the court must read the complaint liberally, draw all inferences in plaintiff’s favor, and assume all allegations to be true.  The court agrees with the defense that if defendant did the inspections as claimed using licensed inspectors and those inspectors found no mold, and that it did them promptly, then there is no basis for punitive damages.  Even if defendant’s inspectors were sloppy and in error, that is not oppression, fraud, or malice sufficient to warrant punitive damages. 

But plaintiff might be arguing something else.  Turning to the complaint, rather than defendant’s recitation of it, plaintiff contends that defendant downplayed the issue by claiming that the smell was only “old glue.”  Plaintiff also states that she was complaining of the problem since November 2023.  Plaintiff alleges that on June 5, 2024, she tested positive for mold and informed defendant of it.  She alleges that on June 20, 2024, she asked the defense to investigate.  She agrees that the defense stated to her that they did test, but that they found no problem.  However, she alleges that she never got the report from the defense.  She alleges that on June 24, 2024, she hired an inspector to do an inspection of the unit and that the inspector found highly elevated levels of toxic mold and that plaintiff sent that report to the defense, but the defense did not acknowledge the report.  She states that on July 13, 2024, the defense did reinspect but they never said who would do the inspection.  Plaintiff claims that contrary to the parties’ agreement, the testers showed up a day early.  The defense later claimed that the results showed all was well but never sent her the reports.  Plaintiff asserts that she requested an inspection from the city and that the city sent defendant a letter requiring remediation.

Reading the complaint broadly, plaintiff appears to allege that defendant’s report did not really show that all was well, but rather showed that there was a problem.  The court interprets the complaint that way due to the repeated allegations that although the defense did tests, plaintiff never got a copy of the results coupled with plaintiff’s assertion that her tests showed highly elevated levels, the long-time smell, the fact that she herself tested positive for elevated levels of mold, and the city’s letter requiring remediation.  If it is true that the defense did the inspections but mis-led plaintiff as to the results, that would qualify as malice or oppression or fraud.  The court is not saying that such is the case; the court is merely saying that the court cannot tell on a pleading motion.  That is better tested by way of a summary adjudication motion.  In that kind of motion, defendant can submit the actual test results if they showed normal levels of mold.  If that is the case, the court would be hard pressed to deny the motion.

For now, though, the motion to strike is DENIED.  Defendant has 30 days to answer the complaint.

Case Number: 24SMCV05330    Hearing Date: March 10, 2025    Dept: I

The demurrer to the first and second causes of action is SUSTAINED WITH LEAVE TO AMEND.  The demurrer to the third cause of action is OVERRULED.

This is a quiet title case.  Plaintiff alleges that in 2024, defendant bought property next door to property plaintiff owns, which is essentially vacant land.  Plaintiff contends, though, that he owns the property by virtue of adverse possession.  Plaintiff alleges that he has maintained the property since 2019, fenced the property to protect it from animals and trespassers, and oversees the utility lines including propane lines.  Plaintiff also contends that he has paid property taxes on the property.  Defendant demurs, arguing that the property taxes were not timely paid, and therefore there can be no adverse possession.  Defendant also argues that the prior owner gave plaintiff an easement to do what he did, and therefore plaintiff’s use was permissive and not hostile.  Because of that, defendant asserts, plaintiff’s claims must fail, and defendant has demurred.  Plaintiff opposes.  Defendant’s request for judicial notice of the recorded easement is GRANTED.  The court notes that the request should have been made in a separate document, but the court will overlook that issue.

The requirements for adverse possession are: (1) possession under a claim of right or color of title; (2) actual, open, and notorious occupation of the premises providing reasonable notice to the true owner; (3) adverse and hostile possession as to the true owner; (4) continuous possession for at least five years; and (5) timely payment of all property taxes during that five year period.  (Code Civ. Proc. sec. 325; Hansen v. Sandridge Partners, L.P.  (2018) 22 Cal.App.5th 1020.)  The quiet title cause of action stands or falls with adverse possession.

Plaintiff contends that he meets the property tax requirement (which is generally the downfall of adverse possession claims).  He asserts that the prior owner did not pay the property taxes, causing a default.  Plaintiff learned of the default and potential foreclosure of the property, and plaintiff therefore paid the taxes himself.  Essentially, the default began in 2020.  However, plaintiff did not make the payment until 2023.  According to defendant, by 2023 it was plain that at least some of the payments were not timely.  Plaintiff counters that he made the payment as soon as he learned of the issue, and therefore the payments are timely for statutory purposes.  The court disagrees.  The requirement for “timely” payment was added by the Legislature in 2010.  The requirement was added to foreclose the doctrine to those who scoured the tax records to find delinquent properties and make a lump sum payment and claim that they met the other requirements.  The court agrees that plaintiff did not do that, but the court’s job is not to further the court’s view of legislative intent; the court’s job is to enforce the statute as written.  Plaintiff relies on Smith v. Byer (1960) 179 Cal.App.2d 118.  However, that case was decided before the amendment adding the “timely” requirement.  More recent authority, including McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, makes it clear that timely means timely.  The court could conceive of a substantial compliance argument such that if the bill was paid a month late or so it would count.  But the bills here were paid years late.  The court is by no means faulting plaintiff; plaintiff understandably did not pay the taxes until plaintiff was aware that no one was paying them.  But it still will not satisfy the timeliness requirement.

The court must also agree with the defense as to the hostile use issue.  While it is true that “hostile” does not mean that the parties have to write nasty letters back and forth, it does mean that the use must be without permission.  Here, there was an express easement granted by the prior owner that allowed for much of the work that plaintiff claims he did.  Because that use was pursuant to an easement, it is not hostile; it is permissive.  The easement was recorded on January 13, 2023, which was during the five year period plaintiff alleges possession.  Once the easement was granted, the hostile possession stopped.  Plaintiff contends that the easement’s intent was far more limited than the work the plaintiff actually did.  The court cannot consider those issues because they are outside the pleadings.  But even if the court could so consider, the prior owner’s mental intent in granting the easement is of no worth; the key fact is what the easement itself says.  And the easement language does not have all of the limitations plaintiff asserts.  True enough, if the easement was for utility lines and plaintiff built a house on the property, the easement would not destroy the hostile use argument.  But it is not clear to the court that such is the case.  It could be that plaintiff can plead around this one, but the current complaint does not do so.

The court need not, and does not, address plaintiff’s claim of exclusive use.  There are issues there, such as defendant’s argument that the use could not have been exclusive because of the easement.  But the court need not go there because, frankly, the timeliness issue seems insurmountable and for present purposes, so does hostile use.

The bottom line is that the demurrer is SUSTAINED.  The court will give plaintiff leave to amend because it is almost reversable error not to do so.  But if plaintiff does choose to amend, plaintiff will need to demonstrate timely payment or, in the next round of briefing, find some much, much stronger legal authority as to why taxes paid years late are “timely” within the statute’s meaning.  Plaintiff should also address the hostile use issue and ought to be prepared to deal with the other arguments.  Plaintiff will have 30 DAYS’ LEAVE TO AMEND.

This disposes of the first and second causes of action.  However, the third cause of action is different.  It is for unjust enrichment.  While the court understands defendant’s argument about taxes paid for periods before defendant owned the property, the court need not and does not address that issue.  It is enough that at least some of the taxes are for the period when defendant did own the property.  The court is not prepared to say that plaintiff’s payment of those taxes did not unjustly enrich the defendant, who presumably therefore did not have to pay property tax on property defendant owned.  And because a demurrer must go to an entire cause of action, that is enough to require that the demurrer to the third cause of action be OVERRULED.