ABLE RESTORATION, INC. VS KEVIN LONG

Tentative Rulings

Case Number: 17STLC02876    Hearing Date: March 04, 2020    Dept: 5

Case Number: 17STLC02876 Able Restoration v. Kevin Long

3/4/2020

Plaintiff’s Motion for Attorney’s Fees and Costs

TENTATIVE RULING

Costs

1. No motion for an award of costs is required. Judgment was entered in this matter on 9/6/2019. Plaintiff timely filed and served a Memorandum of Costs on Monday, 9/23/2019 in accordance with CRC (California Rules of Court) 3.1700(a)(1). No motion to strike or tax costs was filed and the time allowed for such motion under CRC 3.1700(b)(1) has expired. The Memorandum of Costs seeks trial and pretrial costs of $2,095.20. Plaintiff is entitled to those costs which shall be added to an Amended Judgment to be prepared and electronically filed with the court and served by mail on the Defendant within 5 days, or by 3/9/2020. Any objections to be electronically filed with the court and served on Plaintiff by 3/23/2020. Non-appearance OSC regarding review of and entry of Amended Judgment is set for 3/30/2020 at 8:30 a.m. in Dept. 5 of the LASC located at 312 No. Spring Street, Dept. 5, Los Angeles, CA 90012.

Attorney’s Fees

2. Judgment was entered on 9/6/2019 in favor of Plaintiff Able Restoration and against Defendant Kevin Long for the sum of $24,138.18. Plaintiff seeks an award of attorney’s fees pursuant to CCP §1033.5(a)(10.)(A), §1032, and Civil Code §1717. The prayer of the motion seeks fees in the amount of $37,899. The motion for attorney’s fees was timely filed pursuant to CRC 3.1702(b)(1) and 8.104(a)(1)(C). The court has also received and considered the opposition to the motion filed on 2/21/2020 and the Reply filed on 2/26/2020. Based upon the discussion below, Civil Code §1717, the parties written contract, and the points and authorities cited herein, Plaintiff is awarded attorney’s fees in the lodestar sum of $32,487.95. No multiplier is requested nor is one appropriate in this case. Plaintiff is ordered to prepare an Order Awarding Attorney’s Fees to the court and served by mail on the Defendant within 5 days, or by 3/9/2020. Any objections to be electronically filed with the court and served on Plaintiff by 3/23/2020. Non-appearance OSC regarding review of and entry of Order Awarding Attorney’s Fees is set for 3/30/2020 at 8:30 a.m. in Dept. 5 of the LASC located at 312 No. Spring Street, Dept. 5, Los Angeles, CA 90012.

2.a. Demand for Fees in Excess of Jurisdictional Limit. This is a limited jurisdiction case, but an award of attorney’s fees in excess of $25,000 is authorized: “where the recovery on a substantive demand is within the jurisdiction of a court, that court retains jurisdiction to award costs and attorney fees even though those items, when added to the substantive portion of the judgment, aggregate an amount in excess of the jurisdictional limit.” Stokus v. Marsh (1990) 217 Cal.App.3d 647, 650.

2.b. Prevailing Party. Plaintiff is the prevailing party as defined in CCP §1032 and CC §1717(b)(1) as Plaintiff received a net recovery on the contract cause of action. The victory by Plaintiff was an unqualified victory since Plaintiff prevailed on all contract claims; as such Plaintiff is entitled to an award of reasonable attorney’s fees incurred in the prosecution of these claims where the contract provides for an award of such fees. Hsu v. Abbara (1995) 9 Cal.4^th 863, 876.

2.c. Contractual Provision for Award of Attorney’s Fees. The contract between the parties is attached to the motion as Exhibit B and as Exhibit 1 to the Opposition. The contract provides at Paragraph 10: “[i]n the event of any litigation or arbitration between the parties concerning this Agreement or the work hereunder, the prevailing party shall be entitled to reasonable attorney’s fees and costs.”

3. Determination of Reasonable Fees

3.a. An award of attorney’s fees must be “fully compensatory.” Ketchum v. Moses (2001) 24 Cal. 4^th 1122, 1133. A party that qualifies for an award of fees should generally recover compensation for “all hours reasonably spent, including those relating solely to the motion for fees.” Id at 1133.

3.b. A judge has broad discretion in determining the amount of attorney’s fees. Burkhalter Kessler Clement & George LLP v. Hamilton (2018) 19 Cal. App. 5^th 38, 43. The value of the legal services performed in a case is a matter in which the judge may use his or her own expertise. The judge may determine the value of the services rendered without the necessity for, or even contrary to, expert testimony. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4^th 1084, 1096. Further, in the judge’s exercise of discretion the court may consider the terms of the contingency fee agreement between the attorney and client, but is not bound by the agreement in awarding fees. Id.

3.c. Use of Lodestar Calculation. In fixing a reasonable fee, the judge should first compute the “lodestar” figure, which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4^th 1084, 1095. The judge may then adjust this figure upward or downward based upon factors specific to the case that the judge did not consider in determining this figure, in order to fix the fee at the fair market value for the legal services provided. Id. at 1095. Factors that the court should consider include the nature and difficulty of the litigation, the necessity for the litigation, the amount involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances of the case. Id. at 1096. When the lodestar is more than a reasonable amount, the judge must reduce it to a reasonable amount. EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App.4^th 770, 774.

3.d. The reasonable market value of an attorney’s services for purposes of the lodestar calculation is the measure of a reasonable hourly rate. This standard applies regardless of whether the attorney represents the client on a straight contingency fee basis, charges at below-market discounted rates, charges nothing for the services, or is in-house counsel. Nemecek & Cole v. Horn (2012) 208 Cal.App.4^th 641, 651. The court must generally calculate the lodestar figure by using the reasonably hourly rate in the local community for similar work. PLCM Group, Inc. v. Drexler, supra. at page 1095.

3.e. In determining whether a fee request is reasonable, the court may reduce the prevailing party’s fees to the extent that they were unnecessary. Hill v. Affirmed Housing Group (2014) 226 Cal.App.4^th 1192, 1198-1199. The court may reduce the requested fees upon a finding that the fees were unnecessary because the case was overlitigated or because the attorney merely acted as an assistant to another primary attorney. See Holguin v. Dish Network LLC (2014) 229 cal.App.4^th 1310, 1329 – 1331; Marriage of Minkin (2017) 11 Cal.App.5^th 939, 954.

3.f. The judge has the discretion to determine the reasonableness of the amount of the attorney’s fees requested considering the nature of the litigation, the complexity of the issues, the experience and expertise of counsel, the amount of time involved, and whether the amount requested is based on unnecessary or duplicative work. Ketchum v. Moses (2001) 24 Cal. 4^th 1122, 1133. Wysinger v. Automobile Club of S. Cal. (2007) 157 Cal.App.4^th 413, 430.

3.f.1. Nature of the litigation. The matter was a relatively simple breach of written contract action, although there were numerous efforts at resolution of the case and ultimately a 2-day bench trial. Defendant was uncooperative and self-represented and did not comply with discovery requests and there was much delay in ultimately proceeding to trial with the case. The initial action was filed on 10/11/2017 by Attorney LePore and Defendant filed his Answer on 10/26/2017. Thereafter nothing happened in the action as can be determined by the evidence until present counsel filed a substitution of attorneys on 2/22/2019. Thereafter the matter proceeded to trial in about 6 months, on 8/14/2019 and judgment was entered on 9/6/2019. Up until 2/22/2019, Plaintiff had incurred legal fees of $1,700 paid to LePore. In the last 7 months leading to the judgment Varner & Brandt billed $26,522.95 as detailed in Exhibit B to the Declaration of Mr. Soliman.

3.f.2. The complexity of the issues. The issues were not complex in this action since it was based upon a breach of written contract action.

3.f.3. Experience and Skill of Counsel. It is evident from the declaration of Mr. Soliman that he is a qualified associate attorney with the Varner & Brandt firm, having graduated from Lewis & Clark Law School in 2014. The content of the declaration confirms his competency to perform the tasks outlined in the billing record attached to his declaration. Relative to Mr. Marca, the declaration of Mr. Soliman indicates that he is a partner in the lawfirm of Varner & Brant and is an Associate in ABOTA. Mr. Marca graduated from Pepperdine Law School in 1987 and has been an attorney for 33 years. It is apparent that once retained Soliman and Marca aggressively pursued the case and competently prepared and brought the matter for trial within a short period of less than one year from retention. The hourly rate billed by Soliman ($325 per hour) and Marca ($495 per hour) is reasonable based upon their training, experience, and the quality of their work.

3.f.4. Success. Plaintiff achieved an unqualified success in the litigation.

3.g. Comparing Billing Record to Declaration. The billing record details 85.8 hours incurred (Exhibit A to Soliman Declaration) as of August 26, 2019 and a total fee charged of $26,522.95. In addition to the billing records, there is proof satisfactory to the court that Mr. LePore was reasonably paid $1,700 for preparation of the Complaint, filing, and service of Mr. Long. There is also proof that the preparation of the motion and attendance at the hearing will result in an additional fee of $4,265 (13 hours of work.) The summary of the hours worked in the Soliman declaration total 110.6 hours, but this conflicts with Exhibit A to the declaration that itemizes the hours at 85.8 hours. Added to the 13 hours for the fee motion and hearing, the totals do not match. The court can find substantiation for only 98.8 hours in addition to the $1,700 LePore bill. This totals $32,487.95.

4. The court concludes from a review of the declarations and work performed in this case that the reasonable lodestar fee for the work done and substantiated by declarations and billing records is $32,487.95.

5. Conclusion. Plaintiff is award attorney fees in the sum of $32,487.95.