This case was last updated from Los Angeles County Superior Courts on 05/25/2019 at 12:50:17 (UTC).

HAI NGUYEN VS JOHN G CATALDO ET AL

Case Summary

On 09/29/2016 HAI NGUYEN filed a Property - Other Real Property lawsuit against JOHN G CATALDO. 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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5606

  • Filing Date:

    09/29/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

NGUYEN HAI

Defendants and Respondents

K&C PLUS COCO LLC

CATALDO JOHN G.

ALL PERSONS UNKNOWN CLAIMING ANY LEGAL

DOES 1-50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

PIERCE LAW FIRM A.P.C.

GREBOW ARTHUR ESQ.

Defendant Attorneys

COHEN JOSHUA A.

WU SAM X.J. ESQ.

 

Court Documents

SUBSTITUTION OF ATTORNEY

2/8/2018: SUBSTITUTION OF ATTORNEY

NOTICE RE: CONTINUANCE OF HEARING

6/12/2018: NOTICE RE: CONTINUANCE OF HEARING

DEFENDANT JOHN CATALDO'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 2 TO EXCLUDE EXPERT TESTIMONY BY JOHN CATALDO; ETC.

6/26/2018: DEFENDANT JOHN CATALDO'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 2 TO EXCLUDE EXPERT TESTIMONY BY JOHN CATALDO; ETC.

PLAINTIFF'S OPPOSITION TO DEFENDANT CATALDO'S MOTION IN LIMINE NO. 1 TO PRECLUDE EVIDENCE OF PLAINTIFF HAL NGUYEN HAVING A LEASE OR RIGHT OF FIRST REFUSAL FOR THE PROPERTY

6/26/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT CATALDO'S MOTION IN LIMINE NO. 1 TO PRECLUDE EVIDENCE OF PLAINTIFF HAL NGUYEN HAVING A LEASE OR RIGHT OF FIRST REFUSAL FOR THE PROPERTY

DEFENDANT CATALDO'S REPLY TO PLAINTIFF HAI NGUYEN'S OPPOSITION TO CATALDO'S MOTION IN LIMINE NO.4 TO PRECLUDE PLAINTIFF FROM INTRODUCING ANY ARGUMENT OR REFERENCE TO HIM HAVING A RIGHT OF FIRST REFUSA

7/3/2018: DEFENDANT CATALDO'S REPLY TO PLAINTIFF HAI NGUYEN'S OPPOSITION TO CATALDO'S MOTION IN LIMINE NO.4 TO PRECLUDE PLAINTIFF FROM INTRODUCING ANY ARGUMENT OR REFERENCE TO HIM HAVING A RIGHT OF FIRST REFUSA

DEFENDANT JOHN CATALDO'S REPLY TO OPPOSITION TO CATALDO'S MOTION IN LIMINE NO.5 TO EXCLUDE THE METROPOLITAN ESCROW LETTER

7/10/2018: DEFENDANT JOHN CATALDO'S REPLY TO OPPOSITION TO CATALDO'S MOTION IN LIMINE NO.5 TO EXCLUDE THE METROPOLITAN ESCROW LETTER

Minute Order

7/16/2018: Minute Order

JOHN G. CATALDO'S NOTICE OF LODGING MODIFIED CACI INSTRUCTION 308, 311, 313,314, 321, 323,326, 330, 331

7/17/2018: JOHN G. CATALDO'S NOTICE OF LODGING MODIFIED CACI INSTRUCTION 308, 311, 313,314, 321, 323,326, 330, 331

Declaration

1/29/2019: Declaration

Motion for Order

2/14/2019: Motion for Order

Motion for Order

2/14/2019: Motion for Order

Notice of Ruling

4/15/2019: Notice of Ruling

Motion for Summary Adjudication

4/23/2019: Motion for Summary Adjudication

Unknown

12/1/2016: Unknown

PLAINTIFF HAL NGUYEN'S OPPOSITION TO DEFENDANT CATALDO'S DEMURRER

1/3/2017: PLAINTIFF HAL NGUYEN'S OPPOSITION TO DEFENDANT CATALDO'S DEMURRER

DEFENDANT JOHN G. CATALDO'S VERIFIED ANSWER TO PLAINTIFF HAI NGUYEN'S COMPLAINT

2/3/2017: DEFENDANT JOHN G. CATALDO'S VERIFIED ANSWER TO PLAINTIFF HAI NGUYEN'S COMPLAINT

REQUEST FOR JUDICIAL NOTICE

3/8/2017: REQUEST FOR JUDICIAL NOTICE

Unknown

4/19/2017: Unknown

121 More Documents Available

 

Docket Entries

  • 05/08/2019
  • Notice of Ruling; Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
  • 05/07/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Leave to Amend (Complaint)

    Read MoreRead Less
  • 05/07/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Leave to Amend (Complaint) - Held

    Read MoreRead Less
  • 05/07/2019
  • Minute Order ( (Hearing on Motion for Leave to Amend Complaint)); Filed by Clerk

    Read MoreRead Less
  • 04/30/2019
  • Reply (TO DEFENDANT JOHN CATALDO'S OPPOSITION TO MOTION FOR ORDER GRANTING LEA VE TO AMEND COMPLAINT); Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
  • 04/24/2019
  • Opposition (to Plaintiff Nguyens Mtn for Leave to File First Amend Complaint); Filed by John G. Cataldo (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • Declaration (OF JOSHUA A COHEN IN SUPPORT OF CATALDOS MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION); Filed by John G. Cataldo (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • Separate Statement; Filed by John G. Cataldo (Defendant)

    Read MoreRead Less
  • 04/23/2019
  • Motion for Summary Adjudication; Filed by John G. Cataldo (Defendant)

    Read MoreRead Less
  • 04/18/2019
  • Request for Refund / Order; Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
243 More Docket Entries
  • 10/27/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 10/27/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/25/2016
  • Declaration re: Due Diligence; Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
  • 10/25/2016
  • NOT FOUND OR NON SERVICE RETURN

    Read MoreRead Less
  • 10/20/2016
  • Proof-Personal Service; Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
  • 10/20/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 09/29/2016
  • SUMMONS

    Read MoreRead Less
  • 09/29/2016
  • Complaint; Filed by Hai Nguyen (Plaintiff)

    Read MoreRead Less
  • 09/29/2016
  • VERIFIED COMPLAINT OF HAI NGUYEN FOR BREACH OF CONTRACT, SPECIFIC PERFORMANCE AND QUIET TITLE

    Read MoreRead Less
  • 06/26/2016
  • Opposition Document; Filed by Plaintiff/Petitioner

    Read MoreRead Less

Tentative Rulings

Case Number: BC635606    Hearing Date: December 20, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HAI NGUYEN.,

Plaintiff,

vs.

JOHN G. CATALDO, etc., et al.,

Defendants.

CASE NO.: BC635606

[TENTATIVE] ORDER RE:

MOTION FOR ATTORNEYS’ FEES

Date: December 20, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant K&C Plus Coco, LLC (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Hai Nguyen

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) specific performance; and (3) quiet title. Plaintiff’s complaint is based on Defendants’ alleged wrongful actions in denying Plaintiff’s right to first refusal to purchase a commercial building located at 15718 South Manhattan Place in Gardena, CA (the “Property”) that was contained in a lease agreement (the “Lease”).

On July 2, 2019, the Court adopted its tentative ruling and entered an order granting the motion for summary judgment of Defendant John G. Cataldo (“Cataldo”) as to all three causes of action asserted in Plaintiff’s complaint. On August 23, 2019, the Court entered judgment in favor of Cataldo as to the first, second, and third causes of action in the complaint and indicated that Plaintiff would take nothing against Cataldo. The Court’s judgment also indicated that judgment was entered in favor of Moving Defendant as to the third cause of action for quiet title and that Plaintiff would take nothing against Moving Defendant.

Moving Defendant filed a motion for attorneys’ fees pursuant to California Civil Code, Section 1717 and requests attorneys’ fees in the amount of $108,875.00. The Court finds that Moving Defendant’s motion for attorneys’ fees is timely.

Moving Defendant argues that: (1) its motion for attorney’s fees is proper and timely; (2) attorneys’ fees are warranted because the lease which Plaintiff sought to enforce provides for an award of attorneys’ fees to the prevailing party; (3) equitable principles supporting a “mutuality of remedy” of attorneys’ fees exists and is warranted here; (4) Plaintiff’s complaint supports the recovery of attorneys’ fees despite the absence of an executed written lease agreement; (5) expiration of the two-year lease term and the subsequent creation of a month-to-month tenancy do not make attorneys’ fees unavailable; and (6) Moving Defendant is entitled to actual reasonable attorneys’ fees.

Plaintiff opposes Moving Defendant’s motion for attorney’s fees on the grounds that: (1) Moving Defendant is not entitled to attorney’s fees because it was not a party to the lease agreement and did not sign the lease agreement; and (2) Moving Defendant has not satisfied its burden by providing records to establish entitlement to his request for fees.

Initially, the Court finds that Plaintiff’s citations in his opposition with respect to the alleged inability of Moving Defendant to recover attorneys’ fees because it was not a signatory or a party to the lease agreement at issue are inapposite. Baugh did not address the issue of whether a non-signatory or non-party to a contract can recover attorneys’ fees where the non-signatory is sued yet prevails on a quiet title cause of action that, as explained below, is premised on an unsigned and unexecuted lease agreement. (Baugh v. Garl (2006) 137 Cal.App.4th 737.) Moreover, Plaintiff’s citation to Hyudke’s Valley Motors is equally unpersuasive for the same reason. (Hyduke’s Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430.) “[A]n opinion is not considered authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn.2.)

Plaintiff fails to address the arguments of Moving Defendant that: (1) its motion for attorney’s fees is proper and timely; (2) attorneys’ fees are warranted because the lease which Plaintiff sought to enforce provides for an award of attorneys’ fees to the prevailing party; (3) equitable principles supporting a “mutuality of remedy” of attorneys’ fees exists and is warranted here; (4) Plaintiff’s complaint supports the recovery of attorneys’ fees despite the absence of an executed written lease agreement; and (5) expiration of the two-year lease term and the subsequent creation of a month-to-month tenancy does not make attorneys’ fees unavailable. Due to Plaintiff’s failure to address these arguments in his opposition papers, the Court finds that Plaintiff has conceded to Moving Defendant’s arguments on these points. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

DISCUSSION

“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 prevailing party 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.” (Cal. Civ. Code § 1717(a).) “Each party to a lawsuit must pay his or her own attorney fees except where a statute or contract provides otherwise.” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966.) “Where a contract specifically provides for an award of attorney’s fees incurred to enforce the provisions of the contract, the prevailing party in an action on the contract is entitled to reasonable attorney’s fees.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379.) “Section 1717 was enacted to establish mutuality of remedy where a contractual provision makes recovery of attorney fees available for only one party and to prevent oppressive use of one-sided attorney fees provisions.” (Milman v. Shukhat (1994) 22 Cal.App.4th 538, 543) “Construing Section 1717 to carry out its purpose, the Supreme Court held that the statute gives a reciprocal remedy for a nonsignatory defendant.” (Id.) Where an action involves a contract, and a plaintiff succeeds in the action with respect to that contract, then that plaintiff would be entitled to attorney’s fees under Section 1717. (Id.) “As long as an action involves a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.” (Id.)

“[A] party can be entitled to attorney fees under Section 1717 even when the contract at issue is adjudged to be inapplicable, invalid, unenforceable, or even nonexistent.” (California-American Water Co. v. Marina Coast Water Dist. (2017) 18 Cal.App.5th 571, 578.) Even where a contract is deemed to be void because it was nonexistent because it was never signed, a prevailing party can still be entitled to attorney’s fees. (Id. at 579; see also Milman v. Shukhat (1994) 22 Cal.App.4th 538.) “[N]umerous appellate decisions have applied section 1717 to award attorneys fees to prevailing parties even in situations where the contract containing the attorney fees provisions is unenforceable, rescinded, or nonexistent, or where the party sued on a contract is actually a nonsignatory.” (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.) “[I]t is extraordinarily inequitable to deny a party who successfully defends an action on a contract, which claims attorney’s fees, the right to recover its attorney’s fees and costs simply because the party initiating the case has filed a frivolous lawsuit.” (Id.) “As a consequence . . . a prevailing defendant sued for breach of contract containing an attorney’s fees provisio[n] and having had to defend the contract cause of action is entitled to recover its own attorney’s fees and costs therefor, even though the trial court finds no contract existed.” (Id.)

Issue No. 1: Moving Defendant Not Being a Party to the Lease Agreement

Plaintiff asserts that because Moving Defendant and Plaintiff did not enter into a lease agreement, Section 1717 is inapplicable and therefore Moving Defendant is not entitled to recover attorneys’ fees. The Court rejects Plaintiff’s argument on this point. Under the rule set forth in Milman, Section 1717 provides a remedy for a non-signatory defendant. Here, it is undisputed that Moving Defendant was not a party to the lease agreement at issue, and in fact the lease agreement was never signed by any party in this action. (Gomez Decl. at Exhibit C.) The lease agreement at issue purported to be between Cataldo and Plaintiff but the lease agreement was never signed. (Id.) Moreover, the action in which Moving Defendant successfully defended—although only the third cause of action was asserted against Moving Defendant—was based on a contract. The third cause of action in the complaint incorporated by reference all of the previous allegations that were set forth in the complaint. (Gomez Decl, Exhibit B at ¶ 54.) Both the first and second causes of action were clearly based on contract, specifically the lease agreement at issue. (Id., Exhibit B at ¶¶ 36-53.) Although the third cause of action was only pleaded against Moving Defendant, that does not lessen the fact that the complaint was based on contract and that Moving Defendant had to defend itself in an action based on contract. Thus, under North Associates it would be inequitable to not allow Moving Defendant to recover attorneys’ fees it incurred as a prevailing party due to Plaintiff’s filing of the instant lawsuit. “[I]t is necessary to determine whether the parties entered into an agreement for the payment of attorney’ fees and, if so, the scope of the attorney fee agreement.” (Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 990.) Nevertheless, the rule in Maynard still yields to the mutuality of remedy doctrine articulated in North Associates. The lease agreement at issue, although unexecuted, did contain an attorneys’ fee provision. (Gomez Decl., Exhibit C at ¶ 15.)

Therefore, under North Associates and Milman, the mutuality of remedy doctrine dictates that Moving Defendant as the prevailing party as to the third cause of action is entitled to attorneys’ fees.

Issue No. 2: Reasonableness of Requested Attorney’s Fees

Moving Defendant argues that its requested attorneys’ fees were reasonably necessary to the litigation. Plaintiff contends that Moving Defendant has not satisfied its burden by providing records to establish entitlement to its request for fees.

A party seeking attorney’s fees has the burden of showing that such sought fees are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) “[A]n 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.) “[T]he verified time statements of . . . attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Where a party is challenging the reasonableness of attorneys’ fees as excessive that party must “attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at 564.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) With respect to awarding attorneys’ fees “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.) “Because time records are not required under California law . . . , there is no required level of detail that counsel must achieve.” (Id. at 699.) A court awards attorneys’ fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

Fees for employees other than attorneys assisting an attorney on a litigation matter may be awarded. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 93.) “[A]wards of attorneys’ fees for paralegal time have become commonplace, largely without protest.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) A paralegal’s and other litigation support staff’s fees must “be made on the basis of the reasonable market value of the services rendered.” (Id. at 274-275; see also PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1094.)

Gomez’s Declaration Filed with the Moving Papers

Counsel for Moving Defendant, Ronald Z. Gomez (“Gomez”), declares that: (1) the total fees incurred in this action are $108,875.00 (Gomez Decl. at ¶ 6); (2) he has reviewed all of the work produced by his firm in this case and all of the billing invoices to ensure that the work was done in an efficient manner and that the billing was reasonably necessary to the conduct of the litigation (Id. at ¶ 7); (3) the number of hours spent by attorneys on this matter was 345.7 hours and the number of hours spent by paralegals on this matter was 36.6 hours (Id. at ¶ 8); (4) associate attorneys in this matter billed at the rate of $265.00 per hour and paralegals in this matter billed at $165.00 per hour (Id.); (5) he has been a licensed attorney practicing in California for over 16 years and is familiar with the rates charged by other law firms and attorneys of similar experience and scope of services (Id.); (6) the amounts charged in fees are 25 to 35 percent below the value of the services rendered as compared with other firms with similar experience who charge much higher rates for the same caliber of services rendered by his firm. (Id.) Gomez also declares that work was done: (1) to prepare, file, and comprehensively research a strategically planned motion for judgment on the pleadings, discovery, necessary oppositions to Plaintiff’s motions; and (2) in the form of appearing in court, communicating with counsel for the parties and the client, and thoroughly and completely preparing the case for trial. (Id. at ¶ 7.) Moving Defendant also provides the Court with a billing summary chart of all the fees listed in the invoices to Moving Defendant which amount to $108,875.00. (Id. at ¶ 6 and Exhibit D.)

Gomez’s Supplemental Reply Declaration

In his supplemental declaration provided to the Court in connection with Moving Defendant’s reply brief, Gomez declares that: (1) attached as Exhibit E to his supplemental declaration are true and correct copies of invoices prepared and billed to Moving Defendant for all billable work performed by senior litigation attorneys, associate attorneys, paralegals, and law clerks (Gomez Supp. Decl., ¶ 3 and Exhibit E); (2) several entries are redacted to protect the attorney-client and work product privileges (Id. at ¶ 3); (3) during the redaction process, he found two errors totaling $318.00 in fees for entries totaling 1.2 hours and a credit will be issued and a request for attorneys’ fees will be reduced by $318.00 from $108,875.00 to $108,557.00 (Id.); (4) Sam X.J. Wu has 23 years of experience and worked 7.3 hours on this matter (Id. at ¶ 4); (5) Brian Stewart, a senior litigation associate, has 29 years of experience worked 73.8 hours on this case (Id.); (6) Ronald A. Chavez, a senior litigation associate, has over 38 years of experience worked 42.2 hours on this matter (Id.); (7) he has over 16 years of experience and spent 210.6 hours on this matter (Id.); (8) Jennifer Yu, an associate attorney who has over four years of experience, spent 3.5 hours on this case (Id); (9) Nicholas A. West, an associate attorney with two years of experience worked 8.1 hours on this case (Id.); (10) all attorneys who worked on this case billed at the same rate of $265.00 per hour; and (11) all paralegals billed at $165.00 per hour. (Id.)

Gomez further declares that: (1) by comparison, the fees which this Court awarded to Cataldo for work performed by his counsel were billed at an hourly rate of $395.00 for partners, $365.00 for associates, and $175.00 per hour for paralegals—44% to 28% higher than his firm’s attorney rates and almost 6% higher in paralegal rates under comparable attorney experience factors. (Id. at ¶ 5.)

The Court finds that Moving Defendant’s evidence with respect to the attorneys and paralegals who worked on his matter establishes the sufficiency of those hourly rates and work performed by such parties. The supplemental declaration of Gomez informs the Court of the reasonableness of the hourly rates and the invoices attached to Gomez’s declaration adequately informs the Court of the work that was completed on this matter. (Gomez Supp. Decl. at Exhibit E.)

Discrepancy in Calculation of Lodestar Amount

The Court finds, however, that there is a slight discrepancy in the calculation of the lodestar amount. Based on the declarations of Gomez and the Court’s calculation of the total hours of work done by attorneys pursuant to Gomez’s supplemental declaration, the Court finds that the total number of hours done by attorneys equals 345.5 hours at the rate of $265.00 per hour. Multiplying the total number of hours worked by the attorneys times the uniform hourly rate of $265.00 per hour equals $91,557.50 for work done by attorneys in this action. Based on the declaration of Gomez filed with the moving papers, paralegals collectively worked 36.6 hours on this matter at the uniform hourly rate of $165.00 per hour which would equal $6,039.00 for work done by paralegals on this action. Thus, based on this correct calculation, the correct lodestar amount for attorneys’ fees should be $97,596.50 and not the $108,875.00 which is requested by Moving Defendant.

The burden now shifts to Plaintiff to establish the unreasonableness of Moving Defendant’s claimed attorney’s fees.

Plaintiff presents no evidence to contradict the reasonableness of Moving Defendant’s claimed attorney’s fees. Plaintiff failed to file a declaration in connection with his opposition papers and Plaintiff failed to object to the declaration of Gomez filed in connection with Moving Defendant’s reply even though the billing statements provided by Gomez via his supplemental declaration is “supplemental to evidence submitted in the moving papers” and is allowed. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Plaintiff has thus presented no evidence to the Court with respect to the unreasonableness of Moving Defendant’s requested attorney’s fees and has such failed to meet his burden under Premier to establish unreasonableness.

The Court exercises its discretion under PLCM and GRANTS Moving Defendant’s motion for attorneys’ fees. The Court awards Moving Defendant reasonable attorneys’ fees in the amount of $97,278.50.00 which represents: (1) the amount of work done in this action through September 19, 2019 pursuant to the evidence provided in the supplemental declaration of Gomez and the Court’s correction of the lodestar amount claimed; and (2) accounts for the credit of $318.00 provided to Moving Defendant.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of December 2019

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC635606    Hearing Date: November 26, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HAI NGUYEN,

Plaintiff,

vs.

JOHN G. CATALDO, etc., et al.,

Defendants.

CASE NO.: BC635606

[TENTATIVE] ORDER RE:

MOTION FOR ATTORNEY’S FEES

Date: November 26, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant John G. Cataldo (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Hai Nguyen

The Court has considered the moving, opposition, and reply papers. Based on the original hearing date for Moving Defendant’s motion of November 5, 2019, any reply papers were required to be filed and served by October 29, 2019 pursuant to California Code of Civil Procedure, Section 1005(b). Although Moving Defendant filed and served its reply brief on November 4, 2019, the Court will exercise its discretion and consider Moving Defendant’s reply brief.

Also, contrary to Moving Defendant’s argument that counsel did not receive the opposition via mail or e-mail, and that counsel did not consent to accept electronic service, the proof of service attached to the opposition brief indicates that it was served on October 23, 3019 via mail and e-mail. California Rules of Court, Rule 2.251(c)(3) indicates that a party who is required to file documents electronically must also serve and accept service of documents electronically from other persons or parties. Also, since January 2, 2019, the Los Angeles Superior Court has mandated the filing of all documents electronically. (See First Amended General Order In Re Los Angeles Superior Court Mandatory Electronic Filing for Civil dated May 3, 2019 at 1:13-15.) Here, Moving Defendant is represented in a non-complex civil case and therefore must file documents electronically; moreover, Moving Defendant must also accept electronic service of documents under California Rules of Court, Rule 2.251(c)(3). As such, the Court will consider Plaintiff’s opposition papers.

BACKGROUND

Plaintiff filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) specific performance; and (3) quiet title. Plaintiff’s complaint is based on Defendants’ alleged wrongful actions in denying Plaintiff’s right to first refusal to purchase a commercial building located at 15718 South Manhattan Place in Gardena, CA (the “Property”) that was contained in a lease agreement (the “Lease”).

On July 2, 2019, the Court adopted its tentative ruling and entered an order granting Moving Defendant’s motion for summary judgment as to all three causes of action asserted in Plaintiff’s complaint. On August 23, 2019, the Court entered judgment in favor of Moving Defendant as to the first, second, and third causes of action in the complaint and indicated that Plaintiff would take nothing against Moving Defendant.

Moving Defendant filed a motion for attorney’s fees pursuant to California Civil Code, Section 1717 and argues that he is entitled to attorney’s fees based on the Court’s entry of judgment in his favor as to all causes of action asserted by Plaintiff. Moving Defendant requests attorney’s fees in the amount of $176,586.00.

Moving Defendant argues that: (1) his motion for attorney’s fees is proper and timely; (2) attorney’s fees are warranted per Section 1717 as the contract submitted by Plaintiff provides for the recovery of fees by the prevailing party; (3) Section 1717 must be applied mutually to all parties; (4) even though unsigned, Plaintiff’s pleading supports the recovery of fees; (5) attorney’s fees under Section 1717 survive expiration of the lease term; and (6) his requested attorney’s fees are reasonable.

Plaintiff opposes Moving Defendant’s motion for attorney’s fees on the grounds that: (1) Moving Defendant is not entitled to attorney’s fees because Plaintiff would not have been entitled to attorney’s fees had he prevailed; (2) Moving Defendant is not entitled to attorney’s fees under an equitable estoppel theory; and (3) Moving Defendant has not satisfied his burden by providing records to establish entitlement to his request for fees.

Plaintiff fails to address the arguments of Moving Defendant that: (1) Plaintiff sought costs of suit which includes attorney’s fees; (2) even though the Lease was unsigned, Plaintiff’s pleading supports the recovery of attorney’s fees; (3) attorney’s fees under Section 1717 survive expiration of the Lease term; and (4) that Moving Defendant’s motion for attorney’s fees is timely. Due to Plaintiff’s failure to address these arguments in his opposition papers, the Court finds that Plaintiff has conceded to Moving Defendant’s arguments on those four points. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

On November 5, 2019, the Court continued the hearing on Moving Defendant’s motion for attorney’s fees to Tuesday, November 26, 2019 due to the Court needing further details in order to rule on Moving Defendant’s motion for attorney’s fees. The Court ordered Moving Defendant to file and serve a supplemental declaration by the close of business on Tuesday, November 12, 2019: (1) setting forth additional details in connection with the reasonableness of the requested attorney’s fees; and (2) Moving Defendant was ordered to provide billing statements so that the Court could ascertain the reasonableness of Moving Defendant’s requested attorney’s fees. Plaintiff was given the opportunity to oppose Moving Defendant’s supplemental declaration by filing and serving a supplemental declaration by the close of business on Tuesday, November 19, 2019.

Plaintiff failed to file and serve a supplemental declaration by the close of business on Tuesday, November 19, 2019 and no courtesy copy of such declaration was provided to the Court.

DISCUSSION

“Each party to a lawsuit must pay his or her own attorney fees except where a statute or contract provides otherwise.” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966.) “Where a contract specifically provides for an award of attorney’s fees incurred to enforce the provisions of the contract, the prevailing party in an action on the contract is entitled to reasonable attorney’s fees.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379.) “Section 1717 was enacted to establish mutuality of remedy where a contractual provision makes recovery of attorney fees available for only one party and to prevent oppressive use of one-sided attorney fees provisions.” (Milman v. Shukhat (1994) 22 Cal.App.4th 538, 543) “Construing Section 1717 to carry out its purpose, the Supreme Court held that the statute gives a reciprocal remedy for a nonsignatory defendant.” (Id.) Where an action involves a contract, and a plaintiff succeeds in the action with respect to that contract, then that plaintiff would be entitled to attorney’s fees under Section 1717. (Id.) “As long as an action involves a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.” (Id.)

“[A] party can be entitled to attorney fees under Section 1717 even when the contract at issue is adjudged to be inapplicable, invalid, unenforceable, or even nonexistent.” (California-American Water Co. v. Marina Coast Water Dist. (2017) 18 Cal.App.5th 571, 578.) Even where a contract is deemed to be void because it was nonexistent because it was never signed, a prevailing party can still be entitled to attorney’s fees. (Id. at 579; see also Milman v. Shukhat (1994) 22 Cal.App.4th 538.) “[N]umerous appellate decisions have applied section 1717 to award attorneys fees to prevailing parties even in situations where the contract containing the attorney fees provisions is unenforceable, rescinded, or nonexistent, or where the party sued on a contract is actually a nonsignatory.” (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.) “[I]t is extraordinarily inequitable to deny a party who successfully defends an action on a contract, which claims attorney’s fees, the right to recover its attorney’s fees and costs simply because the party initiating the case has filed a frivolous lawsuit.” (Id.) “As a consequence . . . a prevailing defendant sued for breach of contract containing an attorney’s fees provisio[n] and having had to defend the contract cause of action is entitled to recover its own attorney’s fees and costs therefor, even though the trial court finds no contract existed.” (Id.)

Issue No. 1: Plaintiff’s Entitlement to Attorney’s Fees in the Event he Prevailed

Plaintiff asserts that attorney’s fees should not be awarded because Plaintiff would not have been entitled to an award of attorney’s fees had he prevailed on his claims. Plaintiff asserts that Moving Defendant does not fall into any of the two categories in which contract-based fees can be awarded against a non-signatory litigant. As explained below, the Court finds Plaintiff’s arguments unpersuasive.

The Court finds that the cases cited in support of Plaintiff’s argument are meritless. Real Property Services was an action by a non-signatory plaintiff against a signatory defendant for breach of contract under a third-party beneficiary theory where the contract included an attorney’s fee provision. Thus, Real Property Services does not support Plaintiff’s argument because as indicated by the Court’s order in connection with granting Moving Defendant’s motion for summary judgment, the Lease between the parties was never signed. (See July 2, 2019 Minute Order.) The Lease contained an attorney’s fee provision that provides for the attorney’s fees for the prevailing party. (Cohen Decl., Exhibit A at ¶ 19.) As indicated from the allegations of the complaint, Moving Defendant was alleged to have breached the Lease by not acting in accordance with the right of first refusal that was contained in the Lease (Id.)

Plaintiff’s citation to Cargill is also meritless. Plaintiff asserts that a non-signatory is entitled to attorney’s fees “where the nonsignatory party stands in the shoes of a party to the contract.” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966.) Although the Lease was never signed, Moving Defendant and Plaintiff were both parties to the Lease. Thus, Plaintiff’s argument that Moving Defendant cannot stand in the shoes of Plaintiff is meritless. Also, the factual standing of the parties in Cargill is different than that of Moving Defendant and Plaintiff. In Cargill, the allegations of the complaint were that “Cargill alleged that the Souzas failed to pay Cargill as agreed in the Transfer Agreement as a third party beneficiary.” (Id. at 966.) Here, there is no such allegation that either Plaintiff or Moving Defendant was a third-party beneficiary. Moreover, neither of the parties here are signatories to the Lease because the Lease was never signed. (Cohen Decl. at Exhibit A.) As such, the facts of this action and those in Cargill cannot be reconciled. Plaintiff’s citation to Prouty is also unpersuasive. (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225.) Prouty did not discuss the issue of attorney’s fees at all and did not even mention California Civil Code, Section 1717.

Therefore, under North Associates and Milman, Moving Defendant as the prevailing party is entitled to attorney’s fees because Plaintiff would have been entitled to such fees per those cases if Plaintiff had prevailed. Moving Defendant: (1) was alleged to have breached the Lease which contains an attorney’s fee provision for the prevailing party; (2) Moving Defendant prevailed on his motion for summary judgment with respect to each cause of action in the complaint; and (3) the complaint was premised on Moving Defendant’s breach of the Lease.

Issue No. 2: Reasonableness of Requested Attorney’s Fees

Moving Defendant argues that the attorney’s fees he seeks are reasonable. Plaintiff argues that Moving Defendant has not satisfied his entitlement to his request for fees because he has not presented any time records.

A party seeking attorney’s fees has the burden of showing that such sought fees are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) “[A]n 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, emphasis added.) “[T]he verified time statements of . . . attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Where a party is challenging the reasonableness of attorneys’ fees as excessive that party must “attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at 564, emphasis added.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) With respect to awarding attorneys’ fees “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.) “Because time records are not required under California law . . . , there is no required level of detail that counsel must achieve.” (Id. at 699.) A court awards attorneys’ fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

Fees for employees other than attorneys assisting an attorney on a litigation matter may be awarded. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 93.) “[A]wards of attorneys’ fees for paralegal time have become commonplace, largely without protest.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) A paralegal’s and other litigation support staff’s fees must “be made on the basis of the reasonable market value of the services rendered.” (Id. at 274-275; see also PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1094 (reasonable market value calculation includes the prevailing hourly rate in the community for comparable legal services).)

Cohen’s Initial Declaration

Counsel for Moving Defendant, Joshua A. Cohen (“Cohen”), declares: (1) there is a prevailing party’s clause for attorney’s fees in the Lease at paragraph 19 (Cohen Decl. at ¶ 2 and Exhibit A); (2) the total fees incurred in this matter from October 1, 2016 through September 3, 2019 are $175,418.00 (Id. at ¶ 4 and Exhibit C); (3) the fees for work performed in this matter for Moving Defendant was $395.00 per hour for partners, $365.00 per hour for associates, and $175.00 per hour for paralegals (Id. at ¶ 5); (4) he has been a licensed attorney in California for over twenty- four years and he is familiar with the rates charged by other attorneys of similar experience, and scope of services (Id.); (5) the amounts charged are below the value of the services rendered as compared with other firms with similar experience who charge higher rates for the services of the caliber his firm provides (Id.); (6) the rate is even less than what his firm regularly charges new clients of $425.00 per hour for his services regarding real property matters and $485.00 for partners (Id.); (7) he is an associate at the firm (Id. at ¶ 1); (8) the rates charged to Moving Defendant were at least 25% below market for the litigation services provided (Id. at ¶ 5); (9) he personally supervised all of the legal services provided, and worked with the partner, Mr. Brian Stewart who worked on the file as well (Id. at ¶ 6); and (10) the amounts billed were reasonable and incurred in the necessary representation of Moving Defendant including but not limited to the work needed to prepare a motion for summary judgment, conduct additional discovery, file necessary motions, appear in court, communicate with the client, and prepare the case for trial. (Id.)

Cohen also declares that: (1) the amount of fees billed each month are accurate and were only invoiced after careful review of the various billing entries for the personnel performing the work on the matter (Id. at ¶ 7 and Exhibit C); (2) included in the amounts incurred and billed, the preparation of Moving Defendant’s motion for attorney’s fees and related exhibits and declarations took 2.2 hours at the rate of $365.00 per hour and at $175.00 per hour for a paralegal who spent 4.2 hours totaling $1,538.00 (Id. at ¶ 8); (3) he estimates the hearing on the motion will take an additional 3.2 hours or $1,168.00 in expected future fees that will be incurred and the amount of $1,168.00 is requested for the instant motion as any additional necessary attorney’s fees (Id.); and (4) the total amount spent in this matter is $175,418.00 with the expected additional fees for the hearing totals $176,586.00 in fees. (Id.)

Cohen states that: (1) the time spent by attorneys was 363.9 hours from the time of October 1, 2016 through September 3, 2019 and 200 hours were spent by paralegals under his supervision in this action (Id. at ¶ 9); (2) over 300 hours were logged by himself alone in the defense of this action (Id.); (3) the total attorney time of 363.9 hours was a reasonable amount of time given its length, repeated hearings, and over 15 court appearances from October 2016 to the current date (Id.); (4) multiplying the fair cost of his services by the 363.9 hours logged by attorneys in this matter results in $154,657.50 for attorney work (Id.); and (5) a reasonable charge of 240.9 hours would be $44,566.50 for a total reasonable lodestar amount of $199,224.00. (Id.)

Cohen’s Supplemental Declaration

In his supplemental declaration provided to the Court, Cohen declares: (1) Brian Stewart, Esq. who is managing partner at CCMS and has 33 years of experienced worked only 0.3 hours on this matter (Cohen Supp. Decl. at ¶ 4); (2) Joshua Cohen, Esq. has 24 years of litigation experience and he worked over 300 hours on this matter (Id.); (3) Joshua Brown, Esq. who has five years of experience and two at the time he performed services on this matter billed 61 hours (Id.); (4) Christian Foy-Nagy, Esq. is an appellate specialist with 15 years of experience spent 2.3 hours on this matter (Id.); (5) Erica Row, Esq. now has over two years of experience and worked 1.2 hours on this matter (Id.); (6) the fees for the work performed were at the rate of $395.00 for partners, $365.00 per hour for associates including himself, and $175.00 per hour for paralegals (Id. at ¶ 5); (7) he has been a licensed attorney practicing in California for over twenty-four years and is familiar with the rates charged by other attorneys of similar experience and scope of services (Id.); (8) the amounts charged are below the value of the services rendered as compared with other firms with similar experience who charge higher rates for the services of the caliber his firm provides (Id.); (9) the rate is even less than what his firm regularly charges to new clients of $425.00 per hour for his services regarding Real Property matters and $485.00 for partners (Id.); and (10) the rates his firm charged Mr. Cataldo are at least 25% below market for the litigation services provided. (Id.)

Cohen also declares that: (1) during November 2019 his firm logged and billed Mr. Cataldo for an additional 9.8 hours related to this litigation which includes work on the motion for attorney’s fees, the continuance of the court hearing on November 5 to November 26, and the preparation of the additional declaration and redacting the invoices for use as an exhibit (Id. at ¶ 7); (2) the amount logged of 9.8 hours equals $3,577.00 in November 2019 and the total fees incurred to date are $181,955.50 (Id.); (3) his firm has a robust internship program and law students have served as paralegals in this matter (Id. at ¶ 10); (3) Samantha Mirabello who provided paralegal services in mid-2018 became an attorney in June 2019 (Id.); (4) Sam Farzani and Amanda Papc are paralegals who will be receiving their bar results this week are practically attorneys in their training worked on this matter (Id.); (5) Esther Adabale served as a paralegal during the summer after her second year of law school (Id.); (6) several staff paralegals provided services including Travis Chow, Veronica Chavez, and Sarita Candy are all certified paralegals (Id.); (7) this matter was complicated in that it combined landlord-tenant law, real estate law, the statute of frauds, as well as an intricate series of events and facts (Id. at ¶ 11); (8) the matter was declared ready for trial in mid-2018 after all parties had spent significant time and efforts to have all motions in limine filed and briefed but subsequently in 2019 the matter was set again for trial which required additional pretrial preparations (Id.); (9) many of the pre-trial documents including MILs, jury instructions, trial briefs, exhibits, and exhibit lists were prepared in part or drafted by paralegals which in his experience is more cost-effective given the volume of the documents, motions, and various trial-related submissions (Id. at ¶ 12); (10) Plaintiff filed two separate motions for leave to amend the suit which required opposition and the oppositions and hearings bookended the preparation of the determinative motion for summary judgment which increased the costs in the mid-2019 period (Id. at ¶ 13); and (11) during the course of the litigation, his firm only prepared documents, motions, or submissions if he believed them necessary to defend the client in the action and all of the actions taken and billed for were deemed important and necessary. (Id. at ¶ 13.)

The Court finds that Moving Defendant’s evidence with respect to the attorneys and paralegals who worked on his matter establishes the sufficiency of those hourly rates and work performed by such parties. The supplemental declaration of Cohen adequately apprises the Court of the reasonableness of the hourly rates, work performed, and the accompanying invoices attached to Cohen’s declaration sufficiently informs the Court of the work that was completed on this matter. (Cohen Supp. Decl. at Exhibits E and F.)

The Court, however, finds Moving Defendant’s request for $3,577.00 in attorney’s fees for work done in November 2019 in this action to be included in the awarded attorney’s fees is unreasonable. (Cohen Supp. Decl. at ¶ 7.) Cohen’s supplemental declaration failed to attach an invoice reflecting the work done for the month of November 2019. As such, the $3,577.00 worth of work performed in this action in November 2019 will not be included in the Court’s calculation of attorney’s fees.

The burden now shifts to Plaintiff to establish the unreasonableness of Moving Defendant’s claimed attorney’s fees.

Plaintiff presents no evidence to contradict the reasonableness of Moving Defendant’s claimed attorney’s fees. Plaintiff failed to submit a supplemental declaration to the Court by the required deadline. Plaintiff failed to lodge a declaration in connection with his opposition papers. Plaintiff has thus presented no evidence to the Court with respect to the unreasonableness of Moving Defendant’s requested attorney’s fees and has such failed to meet his burden under Premier to establish unreasonableness.

The Court exercises its discretion under PLCM and GRANTS Moving Defendant’s motion for attorney’s fees. The Court awards Moving Defendant reasonable attorney’s fees in the amount of $178,378.50 which represents: (1) the amount of work done in this action through October 30, 2019 per the evidence provided in the supplemental declaration of Cohen. Moving Defendant’s motion put Plaintiff on notice that he was seeking to “recover his attorney’s fees as a result of defending against [Plaintiff] Nguyen’s complaint.” (Motion at 9:9-12.)

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 26th day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC635606    Hearing Date: November 05, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HAI NGUYEN.,

Plaintiff,

vs.

JOHN G. CATALDO, etc., et al.,

Defendants.

CASE NO.: BC635606

[TENTATIVE] ORDER RE:

MOTION FOR ATTORNEY’S FEES

Date: November 5, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant John G. Cataldo (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Hai Nguyen

The Court has considered the moving and opposition papers. No reply papers were filed.

BACKGROUND

Plaintiff filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) specific performance; and (3) quiet title. Plaintiff’s complaint is based on Defendants’ alleged wrongful actions in denying Plaintiff’s right to first refusal to purchase a commercial building located at 15718 South Manhattan Place in Gardena, CA (the “Property”) that was contained in a lease agreement (the “Lease”).

On July 2, 2019, the Court adopted its tentative ruling and entered an order granting Moving Defendant’s motion for summary judgment as to all three causes of action asserted in Plaintiff’s complaint. On August 23, 2019, the Court entered judgment in favor of Moving Defendant as to the first, second, and third causes of action in the complaint and indicated that Plaintiff would take nothing against Moving Defendant.

Moving Defendant filed a motion for attorney’s fees pursuant to California Civil Code, Section 1717 and argues that he is entitled to attorney’s fees based on the Court’s entry of judgment in his favor as to all causes of action asserted by Plaintiff. Moving Defendant requests attorney’s fees in the amount of $176,586.00.

Moving Defendant argues that: (1) his motion for attorney’s fees is proper and timely; (2) attorney’s fees are warranted per Section 1717 as the contract submitted by Plaintiff provides for the recovery of fees by the prevailing party; (3) Section 1717 must be applied mutually to all parties; (4) even though unsigned, Plaintiff’s pleading supports the recovery of fees; (5) attorney’s fees under Section 1717 survive expiration of the lease term; and (6) his requested attorney’s fees are reasonable.

Plaintiff opposes Moving Defendant’s motion for attorney’s fees on the grounds that: (1) Moving Defendant is not entitled to attorney’s fees because Plaintiff would not have been entitled to attorney’s fees had he prevailed; (2) Moving Defendant is not entitled to attorney’s fees under an equitable estoppel theory; and (3) Moving Defendant has not satisfied his burden by providing records to establish entitlement to his request for fees.

Plaintiff fails to address the arguments of Moving Defendant that: (1) Plaintiff sought costs of suit which includes attorney’s fees; (2) even though the Lease was unsigned, Plaintiff’s pleading supports the recovery of attorney’s fees; (3) attorney’s fees under Section 1717 survive expiration of the Lease term; and (4) that Moving Defendant’s motion for attorney’s fees is timely. Due to Plaintiff’s failure to address these arguments in his opposition papers, the Court finds that Plaintiff has conceded to Moving Defendant’s arguments on those four points. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

DISCUSSION

“Each party to a lawsuit must pay his or her own attorney fees except where a statute or contract provides otherwise.” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966.) “Where a contract specifically provides for an award of attorney’s fees incurred to enforce the provisions of the contract, the prevailing party in an action on the contract is entitled to reasonable attorney’s fees.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379.) “Section 1717 was enacted to establish mutuality of remedy where a contractual provision makes recovery of attorney fees available for only one party and to prevent oppressive use of one-sided attorney fees provisions.” (Milman v. Shukhat (1994) 22 Cal.App.4th 538, 543) “Construing Section 1717 to carry out its purpose, the Supreme Court held that the statute gives a reciprocal remedy for a nonsignatory defendant.” (Id.) Where an action involves a contract, and a plaintiff succeeds in the action with respect to that contract, then that plaintiff would be entitled to attorney’s fees under Section 1717. (Id.) “As long as an action involves a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.” (Id.)

“[A] party can be entitled to attorney fees under Section 1717 even when the contract at issue is adjudged to be inapplicable, invalid, unenforceable, or even nonexistent.” (California-American Water Co. v. Marina Coast Water Dist. (2017) 18 Cal.App.5th 571, 578.) Even where a contract is deemed to be void because it was nonexistent because it was never signed, a prevailing party can still be entitled to attorney’s fees. (Id. at 579; see also Milman v. Shukhat (1994) 22 Cal.App.4th 538.) “[N]umerous appellate decisions have applied section 1717 to award attorneys fees to prevailing parties even in situations where the contract containing the attorney fees provisions is unenforceable, rescinded, or nonexistent, or where the party sued on a contract is actually a nonsignatory.” (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.) “[I]t is extraordinarily inequitable to deny a party who successfully defends an action on a contract, which claims attorney’s fees, the right to recover its attorney’s fees and costs simply because the party initiating the case has filed a frivolous lawsuit.” (Id.) “As a consequence . . . a prevailing defendant sued for breach of contract containing an attorney’s fees provisio[n] and having had to defend the contract cause of action is entitled to recover its own attorney’s fees and costs therefor, even though the trial court finds no contract existed.” (Id.)

Issue No. 1: Plaintiff’s Entitlement to Attorney’s Fees in the Event he Prevailed

Plaintiff asserts that attorney’s fees should not be awarded because Plaintiff would not have been entitled to an award of attorney’s fees had he prevailed on his claims. Plaintiff asserts that Moving Defendant does not fall into any of the two categories in which contract-based fees can be awarded against a non-signatory litigant. As explained below, the Court finds Plaintiff’s arguments unpersuasive.

The Court finds that the cases cited in support of Plaintiff’s argument are meritless. Real Property Services was an action by a non-signatory plaintiff against a signatory defendant for breach of contract under a third-party beneficiary theory where the contract included an attorney’s fee provision. Thus, Real Property Services does not support Plaintiff’s argument because as indicated by the Court’s order in connection with granting Moving Defendant’s motion for summary judgment, the Lease between the parties was never signed. (See July 2, 2019 Minute Order.) The Lease contained an attorney’s fee provision that provides for the attorney’s fees for the prevailing party. (Cohen Decl., Exhibit A at ¶ 19.) As indicated from the allegations of the complaint, Moving Defendant was alleged to have breached the Lease by not acting in accordance with the right of first refusal that was contained in the Lease (Id.)

Plaintiff’s citation to Cargill is also meritless. Plaintiff asserts that a non-signatory is entitled to attorney’s fees “where the nonsignatory party stands in the shoes of a party to the contract.” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966.) Although the Lease was never signed, Moving Defendant and Plaintiff were both parties to the Lease. Thus, Plaintiff’s argument that Moving Defendant cannot stand in the shoes of Plaintiff is meritless. Also, the factual standing of the parties in Cargill is different than that of Moving Defendant and Plaintiff. In Cargill, the allegations of the complaint were that “Cargill alleged that the Souzas failed to pay Cargill as agreed in the Transfer Agreement as a third party beneficiary.” (Id. at 966.) Here, there is no such allegation that either Plaintiff or Moving Defendant was a third-party beneficiary. Moreover, neither of the parties here are signatories to the Lease because the Lease was never signed. (Cohen Decl. at Exhibit A.) As such, the facts of this action and those in Cargill cannot be reconciled. Plaintiff’s citation to Prouty is also unpersuasive. (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225.) Prouty did not discuss the issue of attorney’s fees at all and did not even mention California Civil Code, Section 1717.

Therefore, under North Associates and Milman, Moving Defendant as the prevailing party is entitled to attorney’s fees because Plaintiff would have been entitled to such fees per those cases if Plaintiff had prevailed. Moving Defendant: (1) was alleged to have breached the Lease which contains an attorney’s fee provision for the prevailing party; (2) Moving Defendant prevailed on his motion for summary judgment with respect to each cause of action in the complaint; and (3) the complaint was premised on Moving Defendant’s breach of the Lease.

Issue No. 2: Reasonableness of Requested Attorney’s Fees

Moving Defendant argues that the attorney’s fees he seeks are reasonable. Plaintiff argues that Moving Defendant has not satisfied his entitlement to his request for fees because he has not presented any time records.

A party seeking attorney’s fees has the burden of showing that such sought fees are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) “[A]n 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, emphasis added.) “[T]he verified time statements of . . . attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Where a party is challenging the reasonableness of attorneys’ fees as excessive that party must “attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at 564, emphasis added.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) With respect to awarding attorneys’ fees “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.) “Because time records are not required under California law . . . , there is no required level of detail that counsel must achieve.” (Id. at 699.) A court awards attorneys’ fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

Fees for employees other than attorneys assisting an attorney on a litigation matter may be awarded. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 93.) “[A]wards of attorneys’ fees for paralegal time have become commonplace, largely without protest.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) A paralegal’s and other litigation support staff’s fees must “be made on the basis of the reasonable market value of the services rendered.” (Id. at 274-275; see also PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1094 (reasonable market value calculation includes the prevailing hourly rate in the community for comparable legal services).)

Moving Defendant’s Evidence

Counsel for Moving Defendant, Joshua A. Cohen (“Cohen”), declares: (1) there is a prevailing party’s clause for attorney’s fees in the Lease at paragraph 19 (Cohen Decl. at ¶ 2 and Exhibit A); (2) the total fees incurred in this matter from October 1, 2016 through September 3, 2019 are $175,418.00 (Id. at ¶ 4 and Exhibit C); (3) the fees for work performed in this matter for Moving Defendant was $395.00 per hour for partners, $365.00 per hour for associates, and $175.00 per hour for paralegals (Id. at ¶ 5); (4) he has been a licensed attorney in California for over twenty- four years and he is familiar with the rates charged by other attorneys of similar experience, and scope of services (Id.); (5) the amounts charged are below the value of the services rendered as compared with other firms with similar experience who charge higher rates for the services of the caliber his firm provides (Id.); (6) the rate is even less than what his firm regularly charges new clients of $425.00 per hour for his services regarding real property matters and $485.00 for partners (Id.); (7) he is an associate at the firm (Id. at ¶ 1); (8) the rates charged to Moving Defendant were at least 25% below market for the litigation services provided (Id. at ¶ 5); (9) he personally supervised all of the legal services provided, and worked with the partner, Mr. Brian Stewart who worked on the file as well (Id. at ¶ 6); and (10) the amounts billed were reasonable and incurred in the necessary representation of Moving Defendant including but not limited to the work needed to prepare a motion for summary judgment, conduct additional discovery, file necessary motions, appear in court, communicate with the client, and prepare the case for trial. (Id.)

Cohen also declares that: (1) the amount of fees billed each month are accurate and were only invoiced after careful review of the various billing entries for the personnel performing the work on the matter (Id. at ¶ 7 and Exhibit C); (2) included in the amounts incurred and billed, the preparation of Moving Defendant’s motion for attorney’s fees and related exhibits and declarations took 2.2 hours at the rate of $365.00 per hour and at $175.00 per hour for a paralegal who spent 4.2 hours totaling $1,538.00 (Id. at ¶ 8); (3) he estimates the hearing on the motion will take an additional 3.2 hours or $1,168.00 in expected future fees that will be incurred and the amount of $1,168.00 is requested for the instant motion as any additional necessary attorney’s fees (Id.); and (4) the total amount spent in this matter is $175,418.00 with the expected additional fees for the hearing totals $176,586.00 in fees. (Id.)

Cohen states that: (1) the time spent by attorneys was 363.9 hours from the time of October 1, 2016 through September 3, 2019 and 200 hours were spent by paralegals under his supervision in this action (Id. at ¶ 9); (2) over 300 hours were logged by himself alone in the defense of this action (Id.); (3) the total attorney time of 363.9 hours was a reasonable amount of time given its length, repeated hearings, and over 15 court appearances from October 2016 to the current date (Id.); (4) multiplying the fair cost of his services by the 363.9 hours logged by attorneys in this matter results in $154,657.50 for attorney work (Id.); and (5) a reasonable charge of 240.9 hours would be $44,566.50 for a total reasonable lodestar amount of $199,224.00. (Id.)

The Court finds that Moving Defendant’s evidence with respect to reasonableness is insufficient. Moving Defendant only provides a one-page sheet indicating the month, hours worked, and fees charged. (Id. at Exhibit C.) The Court is not able to ascertain: (1) for what specific tasks the fees were billed; (2) who specifically worked on each task; and (3) the hourly rate charged by each individual who worked on this matter. Also, Cohen’s declaration does not specify how many hours each individual: (1) partner; (2) associate; or (3) paralegal worked on this matter.

The Court needs further details for the Court to rule on Moving Defendant’s motion for attorney’s fees. The Court therefore CONTINUES the hearing on Moving Defendant’s motion for attorney’s fees to Tuesday, November 26, 2019 at 8:30 a.m. in this department.

Moving Defendant is ordered to file and serve a supplemental declaration by the close of business on Tuesday, November 12, 2019 setting forth additional details in connection with the reasonableness of the requested attorney’s fees to overcome the above-explained deficiencies; moreover, Moving Defendant is to provide billing statements—which may be redacted for the purposes of protecting the attorney-client privilege—so that the Court is able to ascertain the reasonableness of Moving Defendant’s requested attorney’s fees. Plaintiff may oppose Moving Defendant’s supplemental declaration by filing and serving a supplemental declaration by the close of business on Tuesday, November 19, 2019.

Moving Party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 5th day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court