This case was last updated from Los Angeles County Superior Courts on 04/04/2019 at 00:02:30 (UTC).

ARKIUS INC VS HYUNDAE HEALTH CENTER INC ET AL

Case Summary

On 06/04/2009 ARKIUS INC filed a Contract - Other Contract lawsuit against HYUNDAE HEALTH CENTER INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL P. LINFIELD, ZAVEN V. SINANIAN, MARK A. BORENSTEIN, ELIZABETH ALLEN WHITE, ADR NEUTRAL, RUTH ANN KWAN and JAMES C. CHALFANT. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5114

  • Filing Date:

    06/04/2009

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL P. LINFIELD

ZAVEN V. SINANIAN

MARK A. BORENSTEIN

ELIZABETH ALLEN WHITE

ADR NEUTRAL

RUTH ANN KWAN

JAMES C. CHALFANT

 

Party Details

Plaintiffs and Cross Defendants

ARKIUS INC.

KIM PIUS

Defendants

ALL PARTIES OR ENTITIES CLAIMING ANY

ARDMORE PLAZA

DOES 1 THROUGH 100

HYUNDAE HEALTH CENTER INC.

SON BONG JOON

YEH CHARLES

YEH CHRISTINE

Others

LAW OFFICES OF JARK WAECHER

JERRY RAPPAPORT LAW OFFICES OF

VINCENT CAROLINE C.

Attorney/Law Firm Details

Plaintiff Attorneys

DORSETT DANA MOON ESQ.

PANMAN ROBERT H. ESQ.

WAECKER MARK ESQ.

Defendant Attorneys

EPSTEIN ROBERT M.

JACKSON LUKE D.

KIM DAVID D. ESQ.

MANN JEFF A. ESQ.

RHEE JONATHAN W. ESQ.

BROWNE DAVID M. ESQ.

MARK WAECKER APC

JEFF MANN LAW OFFICES OF

DAVID D. KIM & ASSOCIATES

VINCENT W. DAVIS & ASSOCIATES

JONATHAN W. RHEE LAW OFFICES OF

ROBERT M. EPSTEIN ATTORNEY AT LAW

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

7/6/2009: REQUEST FOR ENTRY OF DEFAULT

DEMAND FOR JURY TRIAL

3/22/2010: DEMAND FOR JURY TRIAL

DEFENDANT AND CROSS-COMPLAINANT, CHARLES YEHS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL CHARLES YEH TO APPEAR FOR DEPOSITION AND PRODUCE DOCUMENTS THEREAT, AND REQUEST FOR SANCTIONS; DECLARATION OF JE

4/16/2010: DEFENDANT AND CROSS-COMPLAINANT, CHARLES YEHS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL CHARLES YEH TO APPEAR FOR DEPOSITION AND PRODUCE DOCUMENTS THEREAT, AND REQUEST FOR SANCTIONS; DECLARATION OF JE

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO COMPEL AND MONETARY SANCTIONS; DECLARATION OF JONATHAN VV. RHEE, AND MEMORANDUM OF POINTS AND AUTHORITIES; AND EXHIBITS

5/7/2010: NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO COMPEL AND MONETARY SANCTIONS; DECLARATION OF JONATHAN VV. RHEE, AND MEMORANDUM OF POINTS AND AUTHORITIES; AND EXHIBITS

STIPULATION RE SETTLEMENT DISCUSSIONS WITH JUDGE SINANIAN

7/12/2010: STIPULATION RE SETTLEMENT DISCUSSIONS WITH JUDGE SINANIAN

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITOION TO APPLICATIONS FOR A RIGHT TO ATTACH ORDER; DECLARATION OF CHARELS YEH

8/8/2012: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITOION TO APPLICATIONS FOR A RIGHT TO ATTACH ORDER; DECLARATION OF CHARELS YEH

MEMORANDUM OF POINTS AN]) AUTRORITIES IN OPPOSITION TO MOTION IN LIMTNE NO.2 RE EVDIENCE NOT DISCLOSED IN DISCOVERY AND THE DISMISSED CROSS-COMPLAINT AND SETTLEMENT AGREEMENT

9/4/2012: MEMORANDUM OF POINTS AN]) AUTRORITIES IN OPPOSITION TO MOTION IN LIMTNE NO.2 RE EVDIENCE NOT DISCLOSED IN DISCOVERY AND THE DISMISSED CROSS-COMPLAINT AND SETTLEMENT AGREEMENT

CIVIL SUBPOENA

9/19/2012: CIVIL SUBPOENA

Minute Order

9/27/2012: Minute Order

DEFENDANTS? RESPONSE TO PLAINTIFF?S REQUEST FOR STATEMENT OF DECISION [CRC 3.1590(E)]

1/18/2013: DEFENDANTS? RESPONSE TO PLAINTIFF?S REQUEST FOR STATEMENT OF DECISION [CRC 3.1590(E)]

I ) SUPPLEMENTAL DECLARATION OF ) EDWIN P. MAH

3/26/2013: I ) SUPPLEMENTAL DECLARATION OF ) EDWIN P. MAH

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

3/13/2015: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

Proof of Service

9/1/2015: Proof of Service

ORDER

11/5/2015: ORDER

PLAINTIFF'S COMBINED MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO JUDGMENT CREDITOR LAW OFFICES OF MARK WAECKER, APC'S MOTION TO INTERVENE IN THIS ACTION AND MOTION FOR AN ORDER DIRECTING PAY

1/8/2016: PLAINTIFF'S COMBINED MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO JUDGMENT CREDITOR LAW OFFICES OF MARK WAECKER, APC'S MOTION TO INTERVENE IN THIS ACTION AND MOTION FOR AN ORDER DIRECTING PAY

LIMITED OPPOSITION TO PLAINTIFF'S MOTION FOR THE IMPOSITION OF ATTORNEY FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MARK WAECKER

5/31/2016: LIMITED OPPOSITION TO PLAINTIFF'S MOTION FOR THE IMPOSITION OF ATTORNEY FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MARK WAECKER

PLAINTIFF ARKIUS, INC.'S NOTICE OF AMENDED MOTION AND AMENDED MOTION FOR STATUTORY ATTORNEYS' FEES; ETC

7/6/2016: PLAINTIFF ARKIUS, INC.'S NOTICE OF AMENDED MOTION AND AMENDED MOTION FOR STATUTORY ATTORNEYS' FEES; ETC

NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)

12/6/2016: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)

385 More Documents Available

 

Docket Entries

  • 09/21/2018
  • Memo of Costs on Appeal; Filed by Defendant/Respondent

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  • 09/21/2018
  • MEMORANDUM OF COSTS ON APPEAL

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  • 09/05/2018
  • REMITTITUR

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  • 09/05/2018
  • Unknown Document Type; Filed by Clerk

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  • 07/19/2017
  • NOTICE OF FEES DUE FOR CLERKS TRANSCRIPT ON APPEAL (CIVIL)

    Read MoreRead Less
  • 06/19/2017
  • Ntc to Prty re fee Clk's Transcpt; Filed by Clerk

    Read MoreRead Less
  • 06/19/2017
  • NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)

    Read MoreRead Less
  • 01/18/2017
  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL

    Read MoreRead Less
  • 01/18/2017
  • Ntc to Reptr/Mon to Prep Transcrpt; Filed by Clerk

    Read MoreRead Less
  • 12/09/2016
  • NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

    Read MoreRead Less
796 More Docket Entries
  • 06/12/2009
  • Proof-Service/Summons; Filed by Arkius, Inc. (Legacy Party)

    Read MoreRead Less
  • 06/12/2009
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 06/12/2009
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 06/12/2009
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 06/12/2009
  • PROOF OF SERVICE BY MAIL

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  • 06/12/2009
  • Proof-Service/Summons; Filed by Arkius, Inc. (Legacy Party)

    Read MoreRead Less
  • 06/12/2009
  • AFFIDAVIT OF REASONABLE DILIGENCE

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  • 06/04/2009
  • SUMMONS

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  • 06/04/2009
  • COMPLAINT FOR DAMAGES 1. BREACH OF CONTRACT; ETC.

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  • 06/04/2009
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC415114    Hearing Date: January 10, 2020    Dept: 37

HEARING DATE: January 10, 2020

CASE NUMBER: BC415114

CASE NAME: Arkius Inc. v. Hyundae Health Center, Inc., et al.

TRIAL DATE: None. Notice of Settlement March 11, 2016

MOTION: Plaintiff Arkius, Inc.’s Motion for Attorney Fees

MOVING PARTIES: Plaintiff, Arkius, Inc.

RESPONDING PARTY: Defendants, Charles Yeh, Christine Yeh

MOVING PAPERS: Timely filed September 30, 2019

OPPOSITION: Timely filed December 27, 2019

REPLY: None filed as of January 8, 2020

TENTATIVE: Arkius’ motion for attorney’s fees is granted in-part. Arkius is awarded attorney fees and costs in the total amount of $59,269.47 as the prevailing party on Contract Nos. 3 and 4. Plaintiff to give notice.

Background

Much of the description of the facts of this case are taken from the last two court of appeal decisions and the factual discussions in the trial court’s minute order dated May 13, 2013 and the ruling on the Arkius motion for fees. The court is somewhat hampered in deciding this motion by the parties’ failure to submit the evidence necessary to judge fees. For example, some billing information is submitted but it is far less than the amount requested in fees. There is a reference in the May 13 minute order to plaintiff’s allocation of the fees among the various contracts, and Defendants refer to this in its opposition, but the parties have not provided the court with the cites to the record. An appellate record was provided to the court, but it is the parties’ obligation to cite to the record, not the court’s obligation to search it for supporting evidence. The parties did not even provide the court with the contractual attorney fee language. Accordingly, the following summary may not be entirely accurate.

This action arose out of a fire occurring in 2006 that caused damage to a portion of commercial property, Ardmore Plaza on 6th Street in Los Angeles (“Property”), owned by Defendant Charles Yeh. Yeh operated Hyundae Health Center, Inc., a Korean men’s spa, and related business on the first floor. Yeh rented out offices on the second floor to multiple tenants. Yeh entered into four contracts (“Contract Nos. 1-4”) with Plaintiff Arkius, Inc. and its owner, Pius Kim (collectively, “Arkius”) whereby Arkius agreed to perform certain construction services to repair the Property. The contract the parties refer to as Contract No. 2 was not signed and it is alleged to be an oral contract. Arkius stopped repair work on the Property around March 20, 2009, contending that Yeh failed to pay certain sums owed under each contract and that it, therefore, did not have sufficient funds to complete the work.

On June 4, 2009, Arkius filed this action against Charles Yeh, Christine Yeh, Hyundae Health Center, Ardmore Plaza, Boon Joon Son, and others holding an interest in the Property, alleging the following five causes of action: (1) breach of contract, (2) account stated, (3) quantum meruit, (4) open book account, and (5) foreclosure of mechanic’s lien. The complaint sought $307,791.00 in damages. On July 10, 2009, Charles Yeh and Christen Yeh each filed an answer to Arkius’s complaint[1] and Charles Yeh filed a cross-complaint alleging Arkius failed to perform all work agreed upon to repair the Property and negligently caused a flood and resulting water damage by failing to properly cover the roof before a rainstorm while Arkius was repairing the roof.

On June 17, 2010, Charles Yeh, Christine Yeh and Hyundae Health Center, Inc. entered into a release and settlement agreement with Arkius (“SA”). Under the SA, in exchange for a payment of $35,000, Charles Yeh, Christine Yeh and Hyundae Health Center, Inc. agreed to settle and release all claims against Arkius arising out of Arkius’s work at the Property. Thereafter, on June 21, 2010, Yeh dismissed his cross-complaint against Arkius with prejudice.

On July 14, 2010, a bench trial before Judge Sinanian proceeded on the issue of Arkius’s license status.[2] After the bench trial concluded on July 15, 2010, the court granted Yeh’s Motion for Nonsuit. Arkius appealed (“First Appeal”). On September 27, 2011, the court of appeal reversed the trial court decision and awarded Arkius its costs on appeal.

On July 11, 2012, Arkius filed a first amended complaint alleging the same causes of action but revising the amount it alleged Yeh owed on Contract No. 1 from $35,868 to 13,690.

A non-jury trial was held before Judge Linfield that concluded on December 12, 2012.[3] At trial Arkius further reduced the damages claimed on Contract No. 1 to $7,329.50, but did not amend the other damages claims, resulting in a total claim of $279,452.50. The court entered judgment on February 15, 2013, in favor of Arkius and against Yeh, awarding Arkius $7,329.50, plus attorney fees and costs on Contract No. 1 only. The court denied Arkius any recovery under Contract Nos. 2-4.

Arkius moved for an award of attorney fees of $104,538 out of its total claimed fees of $261,347.33. Plaintiff represented to the court that 40% of the fees were for Contract No.1; 40% for Contract No. 2; and 20% for Contracts 3 and 4. (Minute Order dated 5/13/13.) The trial court stated that those percentages appeared to come out of “thin air” and awarded Arkius $65,336.83, or 25% of what it concluded were reasonable attorney fees of $261,347.33. The court declined to award interest.

Arkius appealed (“Second Appeal”) the trial court’s denial of recovery on Contract Nos 2-4 and Defendants cross appealed. On May 14, 2015, the court of appeal reversed that part of the judgment denying Arkius recovery on Contract Nos. 3 and 4 based on Arkius’ alleged negligence in completing Contract No. 1. It did not allow Arkius to recover on Contract No. 2, which did not have an attorney fee clause. It denied Defendants’ cross appeal on the amount of fees and the amount of damages. The court of appeal ordered a new trial on the issue of liability and damages on Contracts Nos. 3 and 4. It stated that the judgment was affirmed “in all other respects,” with respect to the judgment on Contract Nos. 1 and 2. (see Appellate Opinion of May 14, 2015, p. 12.) That affirmed the fee award on those claims and is law of the case.

On March 11, 2016, Arkius filed a notice of settlement of the entire case. The Notice of Settlement indicated that a request for dismissal was to be filed after the Honorable Judge Barbara Meiers ruled on Arkius’ motion for attorney fees and after the settlement was paid.

On August 25, 2016, the Honorable Judge Meiers issued her nineteen-page opinion on Arkius’ motion for attorney fees after extensive briefing and argument, having taken the matter under submission on August 10, 2016. The Honorable Judge Meiers awarded Arkius $7,000 in attorney’s fees on Contract No. 3 only, finding that Contract No. 4 did not provide for attorney fees to be awarded.

Arkius appealed this August 25, 2016 order awarding attorney fees (“Third Appeal”). On May 22, 2019, the court of appeal reversed the August 25, 2016 attorney fees award and remanded to the trial court for a determination on the amount of fees Arkius was entitled to under both Contract Nos. 3 and 4. (see May 22, 2019 Opinion, p. 12.) In remanding to the trial court, the court of appeal did not find that the amount awarded by the trial court was inappropriate and instead held that “we cannot review these additional contentions at this juncture because the trial court’s mistaken finding that attorney fees were not available under Contract No. 4 affected the amount of attorney fees it awarded under Contract No. 3.” (May 22, 2019 Opinion at p. 11.) The court also noted that the trial court’s finding that Contract No. 4 did not provide for attorney’s fees was erroneous and based on an incomplete copy of Contract No. 4 filed with the court and commented that a less expensive means for addressing that would have been to point out the appropriate provision to the trial court and allow it to correct the judgment. (Id. at pp. 9-11.) However, the court noted that Arkius was not required to raise this issue prior to appeal. (Id.)

Upon remand, Arkius filed a 170.6 challenge to the trial judge and the matter was transferred to this court. On July 19, 2019, Arkius moved ex-parte to extend the deadline to file the instant motion for attorney’s fees. The ex-parte motion was granted, extending the deadline to September 30, 2019.

Arkius filed the instant motion for attorney’s fees on September 30, 2019. Defendants Charles Yeh (“Charles”) and Christine Yeh (“Christine”) (together, “Yeh Defendants.”) oppose the motion.

Discussion

I. Legal Standard

California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (See Code Civ. Proc., § 1021.)

Civil Code, section 1717, subdivision (a) provides in relevant part:

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).) Attorney fees are awarded based “upon the terms of the contractual attorney fee provision” pursuant to Code of Civil Procedures, section 1021. (Santisas v. Goodin (1998) 17 Cal.4th 599, 602 (Santisas).) “The primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.” (Id. at p. 610.) The Supreme Court recognized that in order to ensure mutuality, “it has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party’s recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. (Id. at p. 611.)

“ ‘[B]ecause contractually authorized attorney fees are now listed as costs under Code of Civil Procedure section 1033.5, … they may either be requested of the court of appeal while the appeal is pending, or of the trial court upon issuance of the remittitur. The trial court has jurisdiction to award them, regardless of the lack of specific instructions in the opinion or the remittitur.’ ” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 924, quoting Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 264-265.)

Section 1717 by its terms contemplates that the trial court is to determine who the prevailing party is for the awarding of fees. Here the parties stipulated that Arkius is the prevailing party as part of a settlement agreement. If an action has been voluntarily dismissed or dismissed pursuant to settlement, there is no prevailing party for purposes of awarding § 1717 fees under the contract. (Civ.C. § 1717(b)(2); Santisas v. Goodin (1998) 17 Cal 4th 599, 617.) Parties cannot contract around this statutory prohibition. (Santisas v. Goodin, supra, 17 Cal. 4th at 616-617; see Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal. App, 4th 698, 707.) However, as part of a settlement, the parties may agree that before dismissal, the court shall determine the question of attorney fees. In such cases, the court may determine who is the “prevailing party” and award fees accordingly. (Jackson v. Homeowners Ass'n Monte Vista Estates-East (2001) 93 Cal. App. 4th 773, 784.) In this case, the parties have not dismissed the case, so the court may make an award pursuant to section 1717.

The parties have not cited any authority for the proposition that they may stipulate to the prevailing party and divest the court of its equitable determination based on the entire litigation. Judge Meiers’ Ruling articulates a number of reasons why a court might reach a contrary conclusion to the parties’ stipulation. Indeed, if this court were exercising its discretion to decide who was the prevailing party based on all the factors to be considered (Hsu v. Abbara (1995) 9 Cal.4th 863, 877–878), this court may well fail to find a prevailing party in this casse. (See Berkla v. Corel Corp. (9th Cir. 2002) 302 F.3d 909, 919-920 (applying California law) (court did not abuse its discretion in determining that a plaintiff who obtained a net recovery of less than 3% of the amount sought before trial was not a prevailing party under section 1717).) However, in this case as the settlement related to money being paid to Arkius on Contract Nos. 3 and 4, the court is willing to accept their stipulation for the purposes of this ruling.

In addition, section 1717 provides for attorney fees expended on enforcing the contract. There were four contracts in this case and only three had attorney fee language. The attorney fee amount for Contract No. 1 and the oral contract were decided and became law of the case after the second appeal. Thus, the only fees recoverable at this point were for Contract Nos. 3 and four. Again, counsel has made no effort to allocate the fees claimed to those contracts. At the time of the first fee application Arkius claimed that 20% of the fees were on those two claims. The instant motion now seeks 75% of the pre-second appeal fees. No information is provided to justify those fees or the allocation. In addition, the second appeal did not only deal with Contract Nos. 3 and 4, yet Arkius is seeking all the fees on those appeals. The failure to segregate those fees presents a potentially insurmountable burden for this court.

  1. Basis for the Attorney’s Fees Request

Arkius requests a total of $494,160.50 in attorney fees and costs, which it contends represents the total reasonable amount of attorney fees relating to Contract Nos. 3 and 4. (Notice of Motion, 1-2.) Arkius contends that it is now entitled to all fees requested because it has been determined to be the prevailing party on Contracts Nos. 3 and 4 by the terms of the 2016 stipulation for settlement.

The Yeh defendants do not dispute that Arkius was deemed the prevailing party as of the 2016 settlement. Neither do the Yeh defendants dispute that each of Contracts 3 and 4 include a clause providing for the attorney fees to be awarded to the prevailing party. (May 22, 2019 Opinion at p. 6.)

Each of Contracts Nos. 3-4 include the following provision:

“If either party to this contract is required to hire an attorney to enforce the terms of this agreement or to collect any of the amounts due under this contract, the prevailing party shall be entitled to recover as additional to his damages, all attorney fees and costs even if litigation is not commenced.”

(see, e.g., Contract 1, Terms and Conditions No. 4, attached to the Complaint.) It is undisputed that the same language appears in each of the three written contracts. (see May 22, 2019 Opinion at p. 6.)

Thus, Arkius is entitled to reasonable attorney fees and costs for litigating through the first two trials and for that portion of the Second Appeal relating to Contract Nos. 3 and 4. Arkius is not entitled to its entire fee request.

  1. Recoverable Amount of Attorney Fees

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1321 (Christian).) The court “need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court’s sound discretion.” (Ibid.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 (Wilkerson).) “The basis for the trial court’s calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford).) “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375 (Raining Data).)

A. Reasonableness of Hourly Rates

Arkius presents the Declaration of Dana M. Dorsett (“Dorsett”) in support of the instant motion. Dorsett attests that she is one of the attorneys for plaintiff and additionally is one of the custodians of records at Moon & Dorsett PC (“Moon & Dorsett”) and that she supervised the other attorneys who worked on this matter, Jeffrey Dorsett (“JD”) and Jeremy Cook (“JC”). (Dorsett Decl. ¶¶ 1-2.) According to Dorsett, she maintains the daily time entries made by JD and JC and they worked on this matter under her supervision and direction. (Dorsett Decl. ¶ 2.)

Dorsett attests to the hourly rates of the billing attorneys on this matter. (Dorsett Decl. ¶ 4.) Specifically, Dorsett attests that her rate is $650.00 per hour and that JD’s rate is $450, while JC’s is $400. (Id.) Dorsett attests in support of these rates that she has been practicing in civil litigation for 23 years, while JD has been practicing for 9 years and JC has been practicing for 7 years. (Dorsett Decl. ¶ 7.)

The Yeh Defendants contend that these rates are grossly inflated and submit the declaration of their attorney, David M. Browne (“Browne”) in support of these contentions. Brown attests that he has reviewed the Dorsett Declaration and that the rates Dorsett claims are “grossly disproportionate to the market for legal services for this type of case.” (Browne Decl. ¶ 30.) Further, Browne attests on information and belief that Arkius’ rates are inflated because they have never been paid, as Arkius’ principle alleged has significant unpaid judgments and other debts. (Brown Decl. ¶ 31.) Further, Browne attests that the actual rates and amounts requested do not reflect that this is an ordinary construction dispute matter, where an allegedly reasonable rate for each Arkius counsel would be half or less. (Brown Decl. ¶¶ 32-35.)

The court has experience with the rates charged in the community and the court exercises its discretion and finds that the rates requested by each counsel for Arkius are reasonable for the Los Angeles market. The court notes that Judge Linfield reached the same conclusion in his 3/13/13 Minute Order. For her part Judge Meiers did not criticized the hourly rates.

Accordingly, the court will now review the parties’ arguments regarding the amount of fees requested.

B. Reasonableness of Amount Requested

Arkius requests a total of $494,160.50 in fees and costs, broken down as follows: (1) $196,010.50 for work done from initiation through second trial, (2) $219,330.00 for work done in connection with the second appeal only, and (3) $79,820.00 for work done in connection with the third appeal and “related proceedings.” (Motion, 12-14.) Dorsett submits copies of Moon & Dorsett’s billing records as Exhibit D to the motion. Those records pertain to only part of the fees.

The Yeh Defendants do not contend that Arkius is not entitled to attorney fees but instead contend that the amounts requested are unreasonably high. First, the Yeh Defendants’ opposition, taken as a whole, appears to contend that the proper amount to award Arkius on this motion is $7,000 apparently based on Judge Meiers’ Ruling. However, that decision was reversed. It may be some evidence of reasonable fees, but this court is required by the Opinion on the Third Appeal to determine the amount of fees and costs to be awarded, if any, under Contract Nos. 3 and 4. Accordingly, the court must make its own determination based on the evidence presented.

That effort is made more difficult by the fact that this court did not handle any of the prior matters, so it has no personal information about the nature and quality of the services, other than reading records.

With respect to the first trial, Judge Linfield’s ruling and the current judgment on Contract Nos. 1 and 2 eliminates any claims under those two contracts. The court notes that Judge Linfield who conducted the trial concluded that the total fees requested in the motion before him were reasonable for those services. He was certainly in a better position to assess that and the court adopts that conclusion. The court also agrees that the allocations sought by the Plaintiff were made out of thin air. However, his decision to arbitrarily award a percentage is not one that this court would have adopted. It was Plaintiff’s obligation to allocate the fees appropriately to the respective contracts or to make a factual showing that such an allocation could not be done.

Plaintiff allocated 20% of the fees and costs to Contract Nos. 3 and 4. That may have been over stating the amount. On the other hand, Defendants did not effectively dispute that allocation. Unfortunately, that is the best information available to the court at this time, and it is some allocation. Accordingly, the court awards 20% of that original fee request to Contract Nos. 3 and 4 or $52,269.47.

Here, it is now undisputed that each of Contracts 1, 3 and 4 provides for the prevailing party to receive attorney fees. Further, it is also undisputed that Arkius was deemed the “prevailing party” in the parties’ March 2016 settlement agreement. Moreover, the opinion on the Second Appeal was clear that the 2013 award of attorney fees was being affirmed and, additionally, the opinion on the Third Appeal was also clear that the trial court was being asked to determine the amount of attorney fees that Arkius was entitled to recover under Contract Nos. 3 and 4 only.

As such, there is no question that Arkius is entitled to reasonable attorney fees and costs on Contract Nos. 3 and 4 from the Second Appeal going forward. Accordingly, the court considers whether Arkius’ requests for $219,330.00 in connection with the Second Appeal, $72,320.00 in connection with the Third Appeal and an estimated $7,500 in connection with this motion is reasonable.

With regard to the $219,330.00 Arkius requests in connection with the Second Appeal, that appeal involved claims regarding Contract No. 2 and a cross appeal regarding the ruling regarding liability and fees for Contract No. 1. Reviewing the billing records attached, there are some questions about the reasonableness of the loadstar amounts as pointed out in Judge Meiers’ ruling. However, this court cannot even analyze those entries, because they involve work for which there is no further entitlement to fees and work for Contract Nos. 3 and 4. The court finds that Arkius has not sustained its burden to prove the reasonableness of the fees requested or any part thereof.

With regard to the $72,320.00 in connection with the Third Appeal, the court finds that this amount is not reasonable. For a small amount of fees, Arkius could have pointed out the error in Judge Meiers’ August 25, 2016 ruling and possibly eliminated those fees on appeal. Failing to do so was a tactical choice, but it is not reasonable to order Defendants to pay for more than $4,000 of those fees.

Finally, with regard to the $7,500 Arkius appears to request in connection with the instant motion, the court finds this amount unreasonable and reduces it to $3,000. A review of Moon & Dorsett’s billing sheets appears to indicate that Arkius’ attorneys spent 12.7 hours to draft the instant motion and anticipate spending an additional estimated 10.0 hours to draft a reply and attend the hearing. There is no reply. The court has reviewed Arkius’ previous fee motions in this action and finds that the instant motion makes substantially the same arguments as prior motions with different amounts requested. As such the total fee request is unreasonable for the complexity of the issues presented and will be reduced.

Conclusion

Arkius’ motion for attorney’s fees is granted in-part. Arkius is awarded attorney fees and costs in the total amount of $59,269.47 as the prevailing party on Contract Nos. 3 and 4. Plaintiff to give notice.


[1] The other named defendants in this action defaulted, including Hyundae Health Center, Inc.

[2] The trial court bifurcated the trial and ordered that the issue of Arkius’s licensure be tried before any other issues raised in the complaint.

[3] The second trial was a four-day bench trial held between October 31, 2012 and December 12, 2012.