DON BURKHOLDER VS. MATTHEW D. GIRARDI...ET. AL.

Tentative Rulings

Case Number: YC071648    Hearing Date: October 26, 2020    Dept: M

Hearing Date: October 26, 2020

Moving Parties: Plaintiff Don Burkholder

Responding Party: Defendant Matthew Girardi

Motion for an Award of Attorney’s Fees

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Plaintiff is awarded $34,900 in attorneys’ fees and costs against defendant.

BACKGROUND

On October 20, 2016, plaintiff Don Burkholder filed a complaint against defendants Matthew D. Girardi and The Girardi Firm, LLP for breach of contract, intentional infliction of emotional distress, negligence, and waste. Plaintiff alleges that on June 7, 2016, plaintiff and defendants entered into an unlawful detainer stipulation whereby defendants agreed to return possession of the property by August 7, 2016 in a broom clean and undamaged condition. Defendants did not vacate the property by August 7, 2016, and when they finally vacated the property, it was left in a damaged condition.

On March 29, 2017, defendants filed a First Amended Cross-Complaint for breach of contract, breach of the implied covenant of habitability, negligent infliction of emotional distress, abuse of process, and malicious prosecution.

A trial was held over several days in January and February 2020.

On June 8, 2020, a statement of decision was filed and a judgment was entered in favor of plaintiff and against defendants in the amount of $22,594.06 and interest in the amount of $7,750. Plaintiff was determined to be the prevailing party.

LEGAL AUTHORITY

“The trial court has ‘broad authority’ to determine the amount of a reasonable attorneys’ fees. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Id. [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].)

Under Civil Code §1717(a), “[i]n any action on contract, where the contract specifically provides that attorney 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 prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to other costs.”

DISCUSSION

Pursuant to Civil Code §1717, plaintiff requests an award of attorney’s fees in the amount of $44,880 as the prevailing party under the residential lease.

Plaintiff asserts that although this dispute was not complicated, the matter necessitated “exorbitant hours of time” responding to defendant Girardi’s numerous ex parte applications and motions. The trial was continued seven times, and many of them were continued because of defendant’s six ex parte applications on the eve of trial, two noticed motions, and an ex parte application for leave to amend his answer. Plaintiff also filed two discovery motions, which resulted in five hearings. Plaintiff’s counsel’s rate is $350/hr. in 2018 and increased to $400 in 2019.

In opposition, defendants argue that the request for attorney’s fees is unreasonable. He contends that this case should have been filed in limited jurisdiction, where the costs would have been significantly less. Further, defendants argue, the amount is unreasonable in light of the amount in controversy and the amount of the judgment. Defendants also assert that plaintiff refused to consider any discussion of settlement or resolution that did not include an amount of punitive damages, which is in bad faith. As for the trial continuance, defendant contends, they were the result of defendant’s serious medical conditions.

Under CCP §1033(a), “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case.” “[S]ection 1033(a) applies when a plaintiff has obtained a judgment for money damages in an amount (now $25,000 or less) that could have been recovered in a limited civil case, but the plaintiff did not bring the action as a limited civil case and thus did not take advantage of the cost- and time-saving advantages of limited civil case procedures. In this situation, even though a plaintiff who obtains a money judgment would otherwise be entitled to recover litigation costs as a matter of right, section 1033(a) gives the trial court discretion to deny, in whole or in part, the plaintiff’s recovery of litigation costs.” Chavez v. City of Los Angeles (2010) 47 Cal. 4^th 970, 982-83. “The Courts of Appeal have identified factors that a trial court should ordinarily consider in exercising its discretion under section 1033(a), including the amount of damages the plaintiff reasonably and in good faith could have expected to recover and the total amount of costs that the plaintiff incurred.” Id. at 984 (citations omitted). “If . . . the plaintiff’s attorney might reasonably have expected to be able to present substantial evidence supporting . . . an amount exceeding the damages limit for a limited civil case, or if the plaintiff’s attorney might reasonably have concluded that the action could not be fairly and effectively litigated as a limited civil case, the trial court should not deny attorney fees merely because, for example, the trier of fact ultimately rejected the testimony of the plaintiff’s witnesses or failed to draw inferences that were reasonably supported, although not compelled, by the plaintiff’s evidence.” Id. at 987.

Plaintiff was seeking over $29,000 (damages and lost rent), which is over the limited jurisdiction threshold, plus treble damages, emotional distress, and exemplary damages. Plaintiff’s amount requested is unreasonable though in terms of hourly rate for certain tasks and for hours incurred (114.25). Plaintiff’s counsel’s emails to the client alone were billed at over $2,000. Plus, plaintiff is seeking attorney’s fees for time incurred before the complaint was filed, amounting to $805. Further, although it appears that plaintiff’s counsel is a sole practitioner, plaintiff is seeking attorney’s fees for tasks that fall under either clerical or paralegal or associate tasks at an hourly rate of $350 or $400. The court thus finds that $34,900 ($350/hr. x 22 hrs. = $7,700 plus $400/hr. x 68 hr. = $27,200) is a reasonable amount.

The motion is therefore GRANTED.

Plaintiff is ordered to give notice of the ruling.