On 11/06/2018 FRANK MCHUGH filed a Property - Commercial Eviction lawsuit against ROBIN INVESTMENT GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
ROBIN INVESTMENT GROUP INC
916 James M Wood Boulevard
Los Angeles, CA 90015
SCHORR ZACHARY DAVID
FEINBERG IRWIN BARON
5/7/2019: Notice (name extension) - Notice of Unavailability
4/12/2019: Declaration (name extension) - Declaration DECLARATION OF STEPHANIE C. GOLDSTEIN IN SUPPORT OF PLAINTIFF FRANK MCHUGH, TRUSTEE OF THE CHRISTINE ODONOVAN TRUST A DATED 8/19/86S MOTION FOR SUMMARY A
4/12/2019: Motion for Summary Adjudication - Motion for Summary Adjudication
4/12/2019: Declaration (name extension) - Declaration DECLARATION PAMELA ANN MCHUGH IN SUPPORT OF PLAINTIFF FRANK MCHUGH, TRUSTEE OF THE CHRISTINE ODONOVAN TRUST A DATED 8/19/86S MOTION FOR SUMMARY ADJUDICAT
4/17/2019: Declaration (name extension) - DEFENDANT'S DECLARATION OF IRWIN B. FEINBERG, ESQ. IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
4/17/2019: Declaration (name extension) - DEFENDANT'S DECLARATION OF REUBEN ROBIN IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION
4/17/2019: Memorandum of Points & Authorities - DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
4/18/2019: Request/Counter-Request To Set Case For Trial - Request/Counter-Request To Set Case For Trial
5/1/2019: Stipulation (name extension) - No Order - DEFENDANT'S STIPULATION RE CONTINUANCE OF TRIAL FROM MAY 6, 2019 TO MAY 8, 2019; ORDER THEREON
5/2/2019: Motion to Reclassify - Motion to Reclassify
5/3/2019: Minute Order - Minute Order (HEARING ON PLAINTIFF'S EX PARTE APPLICATION TO SET, ON SHORTE...)
11/6/2018: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
11/6/2018: Property Owner/Landlord Only Hearing Notice - Property Owner/Landlord Only Hearing Notice
11/7/2018: Notice of Unlawful Detainer (Eviction) - Notice of Unlawful Detainer (Eviction) (Robin Investment Group Inc)
12/3/2018: Answer - Answer
1/10/2019: Proof of Personal Service - Proof of Personal Service
1/11/2019: Order to Show Cause (Hearing) - Order to Show Cause (Hearing)
1/23/2019: Notice (name extension) - Notice NOTICE OF ORDER TO SHOW CAUSE HEARING
Notice of Ruling; Filed by: Frank McHugh (Plaintiff)Read MoreRead Less
Request/Counter-Request To Set Case For Trial; Filed by: Frank McHugh (Plaintiff); As to: Robin Investment Group Inc (Defendant)Read MoreRead Less
Non-Jury Trial scheduled for 05/08/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 91 Not Held - Vacated by Court on 05/08/2019Read MoreRead Less
Notice of Unavailability; Filed by: Robin Investment Group Inc (Defendant); As to: Robin Investment Group Inc (Defendant)Read MoreRead Less
Order to Show Cause Re: Sanctions scheduled for 05/06/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 91 Not Held - Vacated by Court on 05/06/2019Read MoreRead Less
Updated -- Motion to Reclassify: Filed By: Frank McHugh (Plaintiff); Result: Granted; Result Date: 05/03/2019Read MoreRead Less
Updated -- Ex Parte Application PLAINTIFF FRANK MCHUGH, TRUSTEE OF THE CHRISTINE O?DONOVAN TRUST ?A? DATED 8/19/86?S EX PARTE APPLICATION TO SPECIALLY SET, ON SHORTENED TIME, PLAINTIFF?S MOTION TO RECLASSIFY FROM LIMITED TO UNLIMITED; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIO: Filed By: Frank McHugh (Plaintiff); Result: Granted; Result Date: 05/03/2019Read MoreRead Less
Ex Parte Worksheet; Filed by: ClerkRead MoreRead Less
Minute Order (HEARING ON PLAINTIFF'S EX PARTE APPLICATION TO SET, ON SHORTE...)Read MoreRead Less
Hearing on Ex Parte Application PLAINTIFF FRANK MCHUGH, TRUSTEE OF THE CHRISTINE O?DONOVAN TRUST ?A? DATED 8/19/86?S EX PARTE APPLICATION TO SPECIALLY SET, ON SHORTENED TIME, PLAINTIFF?S MOTION TO RECLASSIFY FROM LIMITED TO UNLIMITED; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIO scheduled for 05/03/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 91 updated: Result Date to 05/03/2019; Result Type to Held - Motion GrantedRead MoreRead Less
Notice of Unlawful Detainer mailed 11/07/2018Read MoreRead Less
Updated -- Complaint: As To Parties changed from Robin Investment Group Inc (Defendant) to Robin Investment Group Inc (Defendant)Read MoreRead Less
Complaint; Filed by: Frank McHugh (Plaintiff); As to: Robin Investment Group Inc (Defendant)Read MoreRead Less
Civil Case Cover Sheet; Filed by: Frank McHugh (Plaintiff)Read MoreRead Less
Summons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
Notice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
Property Owner/Landlord Only Hearing Notice; Filed by: ClerkRead MoreRead Less
Case assigned to Hon. Lisa K Sepe-Wiesenfeld in Department 91 Stanley Mosk CourthouseRead MoreRead Less
Order to Show Cause Re: Failure to File Proof of Service scheduled for 01/15/2019 at 08:30 AM in Stanley Mosk Courthouse at Civil Clerk's OfficeRead MoreRead Less
Updated -- Complaint: As To Parties changed from Robin Investment Group Inc (Defendant) to Robin Investment Group Inc (Defendant)Read MoreRead Less
Case Number: 18STUD11974 Hearing Date: April 13, 2021 Dept: 61
Plaintiff Frank McHugh, Trustee of the Christine O’Donovan Trust “A” Dated 8/19/86’s Motion for Attorney Fees is GRANTED in the amount of $206,911.73, plus the $60 filing fee on this motion.
I. MOTION FOR ATTORNEY FEES
Plaintiff asks for $226,780.81 in attorney fees, plus the $60 filing fee for this motion. (Motion at p. 1.) This represents 507.9 hours spent litigating this matter and 13.9 hours in preparing this motion at rates ranging from $169.90 per hour for paralegals to $602.41 per hour for Zachary Schorr, an attorney of 16 years’ experience. (Schorr Decl. ¶¶ 17, 30.)
“Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)
“In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).) “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Civ. Code, § 1717, subd. (b)(1).)
Here, Plaintiff offers paragraph 31 of the operative lease, which states:
Attorneys’ Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The Attorney’s fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorney’s fees reasonably incurred.
(Motion Exh. 1, ¶ 31.)
Under this provision, Plaintiff is correct that it is the prevailing party in this action, as it has obtained judgment in its favor. Under this contract and Code of Civil Procedure § 1717, it is entitled to attorney fees.
“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (See id.)
In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at p. 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (See id. at p. 624.)
Plaintiff justifies the hourly rates of its attorneys and staff by reference to their experience and a locally adjusted version of the “Laffey Matrix,” a fee metric promulgated by the U.S. Department of Justice that has been used to calculate reasonable fees in California. (See Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701.) The hourly rates charged are reasonable. (Schorr Decl. ¶¶ 20–33.)
The invoices sought are also mostly reasonable. This matter was litigated extensively, and included the propounding and preparing of discovery, depositions, a motion to reclassify, a motion for summary adjudication, trial, and post-trial matters. (Schorr Decl. ¶ 18; Exh. 12.) The amount of hours charged is therefore not unreasonable on its face.
Certain fees are, however, unreasonable. Specifically, the fees incurred in bringing Plaintiff’s motion for summary adjudication, which was denied on April 17, 2019, are not reasonably compensable here. Not only was this motion denied, but it was denied on two fundamental bases: Plaintiff had failed to dispose of a triable issue of fact, and its motion targeted a matter that was neither an issue of duty nor dispositive of a whole cause of action, such that even a meritorious argument would not entitle it to relief. (See 4/17/2019 Ruling; Code Civ. Proc. § 437c, subd. (f).) The fees incurred in preparing and litigating this motion are therefore unreasonable, and, according to the invoices laid out with Plaintiff’s motion, include the following.
1/23/2019: 0.3 SN
SN’s (Stefanie Naifeh) paralegal rate is $173 per hour (Schorr Decl. ¶ 30), which makes this expense $51.90.
2/13/2019: 0.6 ZS
2/14/2019: 0.4 ZS
2/15/2019: 0.4 ZS
2/15/2019: 0.7 ZS
3/05/2019: 0.3 ZS
3/10/2019: 1.1. ZS
3/11/2019: 1.1 ZS
3/19/2019: 0.2 ZS
4/10/2019: 0.9 ZS
4/17/2019: 4.7 ZS
ZS’s (Zachary Schorr) hourly rate for this time was $556.78. (Schorr Decl. ¶ 30.) The entries above add up to 10.4 hours, which makes the above hourly billings add up to $5,790.51.
1/23/2019: 1.1 SY
1/23/2019: 0.6 SY
1/24/2019: 0.8 SY
2/13/2019: 0.3 SY
2/13/2019: 1.4 SY
2/14/2019: 1.8 SY
2/15/2019: 1.5 SY
2/15/2019: 1.0 SY
2/22/2019: 1.2 SY
2/26/2019: 0.9 SY
3/05/2019: 1.0 SY
SY’s (Stephanie Yang) hourly rate at this time was $347.99. (Schorr Decl. ¶ 30.) The entries above add up to 11.6 hours, which makes the above hourly billings add up to $4,036.68.
2/13/2019: 0.5 SG
3/05/2019: 3.0 SG
3/06/2019: 3.4 SG
3/07/2019: 2.6 SG
3/08/2019: 1.1 SG
3/11/2019: 2.9 SG
3/18/2019: 0.3 SG
3/21/2019: 0.2 SG
4/10/2019: 2.7 SG
4/12/2019: 0.5 SG
4/15/2019: 0.1 SG
4/16/2019: 0.4 SG
4/17/2019: 0.2 SG
SG’s (Stephanie Goldstein) hourly rate at this time was $366.41. (Schorr Decl. ¶ 30.) The entries above add up to 17.4 hours, which makes the above hourly billings add up to $6,375.53. The lodestar amount is reduced by the above combined amounts, a reduction of $16,254.62.
Additionally, the lodestar includes $3,614.46 for seven hours of attorney work to prepare a reply brief and attend hearing on this motion, when no opposition has been filed. The lodestar amount is accordingly reduced by $3,614.46.
The motion for attorney fees is therefore GRANTED in the amount of $206,911.73, plus the $60 filing fee on this motion.
Plaintiff to provide notice.
Case Number: 18STUD11974 Hearing Date: January 12, 2021 Dept: 61
The court SUSTAINS Plaintiff’s Objection No. 5 as to Reuben Robin’s testimony whether the administration of the McHugh trust prevented sale of parking lot, as Robin’s testimony lacks foundation as to whether he possessed personal knowledge of such administrative difficulties. However, Plaintiff’s Objections No. 1–4 and 6–20, which primarily concern Robin’s characterizations of the lease and purchase agreements and the circumstances surrounding the formation of each, are OVERRULED. While such testimony may be inadmissible to interpret or change the terms of an integrated contract, the present motion, as explained below, does not rely upon contractual interpretation, but a balance of hardships and the parties’ respective fault for same. For such purposes, evidence outside the contract is relevant and admissible.
MOTION FOR RELIEF FROM FORFEITURE
The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.
An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served at least five days prior to the hearing on the plaintiff in the judgment, who may appear and contest the application. Alternatively, a person appearing without an attorney may make the application orally, if the plaintiff either is present and has an opportunity to contest the application, or has been given ex parte notice of the hearing and the purpose of the oral application. In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.
(Code Civ. Proc., § 1179.)
“So long as the court imposes the statutory conditions, the full payment of rent due or full performance of conditions or covenants so far as practicable, the court has broad equitable discretion to relieve a tenant from forfeiture and restore him to his former tenancy in case of hardship.” (SRO Housing v. Dyce (2014) 223 Cal.App.4th Supp. 1, 4, internal quotation marks omitted.)
Factors to be weighed in assessing a request for relief from forfeiture include “the nature and character of the breach; the hardship, if any, to the lessee from the forfeiture; the hardship, if any, to the lessor from relieving the lessee from the forfeiture; . . . the good faith or lack of it on the part of any party, whether lessor, lessee or sublessee; the extent of bad faith, if any, on the part of any party, whether lessor, lessee or sublessee; . . . and any other similar factors relevant to the issues to be resolved.” (Thrifty Oil Co. v. Batarse (1985) 174 Cal.App.3d 770, 778.)
Defendant argues that the equities favor granting it a relief from forfeiture in the present case. It argues that its neighboring property next door has no parking of its own, and that it relied upon its lease with Plaintiff to provide parking for the property, even when it originally purchased the property from Plaintiff. (Motion at p. 13.) Conversely, Defendant argues that granting relief does not impose a hardship on Plaintiff because, despite late payments, Defendant has paid and continues to pay all rent owed on the property. (Motion at p. 14.)
Additionally, despite service of the 3-day notice to pay or quit served on the property in question (a parking lot), Defendant argues that this service was not calculated to provide notice to it at its ordinary business address. (Motion at p. 14.) Defendant argues that this method of service demonstrates that the motive of Plaintiff is not the timely receipt of rent, but to create circumstances conducive to the termination of the lease. (Motion at pp. 15–16.) Defendant argues that Plaintiff’s bad faith is further demonstrated by its failure to elect a remedy within the lease for late payment of rent, which is for the landlord to demand payment of rent quarterly and in advance. (Motion at p. 16.)
Plaintiff in opposition argues that this court should not consider extrinsic parol evidence to establish hardship or good faith, because this court already ordered such evidence excluded when it held trial in this matter last January. (Opposition at p. 8.) “The parol evidence rule generally prohibits the introduction of any extrinsic evidence to vary or contradict the terms of an integrated written instrument.” (Bionghi v. Metropolitan Water Dist. of So. California (1999) 70 Cal.App.4th 1358, 1364.) But Plaintiff’s argument on this point is inapposite, as the evidence that Defendant submits is, unlike during the trial, not being submitted to interpret the lease agreement, but to establish hardship and good faith under an equitable relief from forfeiture analysis.
No relief, however, is appropriate under this analysis, as Defendant has not demonstrated that it will suffer any hardship from forfeiture. The sole hardship that it identifies is that an adjacent apartment property lacks any parking of its own and depends upon the leased premises for same. (Robin Decl. ¶¶ 2–3.) Yet Defendant does not contend that it, Robin Investment Group, Inc., needs the parking lot to operate the apartment, because Defendant does not contend that it, Robin Investment Group, Inc., owns the apartment at all. It was Defendant’s “affiliate” that purchased the apartment in a transaction taking place several months before it entered into the lease that is the subject of this action. (Motion at pp. 4, 7, 13; Opposition Exh. 11.) Although the loss of parking might be a blow to the owner of the apartment, or to Defendant’s president, Reuben Robin, who testifies in support of Defendant, neither one is party to the lease at issue.
Even assuming for the moment that such an interest exists, Defendant has not shown that it will suffer unjust hardship by the forfeiture in question. Although Defendant characterizes the availability of parking in the subject lot as critical for the decision for its affiliate entity to purchase the apartment, Plaintiff submits evidence substantially mitigating the persuasiveness of this account. Specifically, Teri McHugh, the broker who managed the sale of the apartment in 2012, presents the email correspondence between herself and the buyer’s agent relating to the sale of the property, culminating in the execution of a sale agreement on August 2, 2012. (McHugh Decl. ¶¶ 4–7; Exh. 11–13.) McHugh further testifies that it was not until August 10, 2012, after the apartment was purchased, that Defendant’s broker contacted her asking if Plaintiff was willing to sell the parking lot. (McHugh Decl. ¶¶ 9–13.) When she relayed back that the lot was available for lease, not sale, she testifies that she did not hear back regarding the parking lot until February 2013, after escrow had closed on the apartment. (McHugh Decl. ¶¶ 9–13.) This testimony is corroborated by email evidence, as well as the silence of the respective apartment purchase and lease agreements as to Defendant’s claims. The court thus has little basis to find that the forfeiture of the parking lot would work an unjust forfeiture upon Defendant.
The motion is DENIED.
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