HENRY AGUILA VS. JOE GOMEZ

Tentative Rulings

Case Number: VC065193    Hearing Date: October 08, 2020    Dept: C

HENRY AGUILA v. JOE GOMEZ, et al.

CASE NO.: VC065193

HEARING: 10/8/20

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Defendant SHAWN BIDSAL’s unopposed Motion for Attorney’s Fees on Appeal is GRANTED.

Defendant is awarded $22,206.50 in attorney’s fees and $1,030.45 in costs with respect to the appeal.

Moving Party(s) to give notice.

Background

This is a breach of contact and fraud action. Plaintiff Henry Aguila (“Plaintiff”) alleges he entered into a promissory note with Defendant Joe Gomez (“Gomez”) on August 27, 2015 whereby Plaintiff loaned Gomez a sum of $250,000 to be used by Gomez to finance his various business ventures and Gomez promised to repay the note on or before October 1, 2015. As security for the note, Gomez pledged all of his nightclub trade fixtures and equipment. Gomez breached the note by failing to repay the loan by October 1, 2015 and failing to deliver the trade fixtures and equipment to Plaintiff’s nightclub in Pico Rivera. Plaintiff alleges Gomez fraudulently induced him into entering the promissory note and loaning him $250,000. Plaintiff further alleges Gomez and Defendant Shawn Bidsal (“Bidsal”), Gomez’s nightclub manager, converted the trade fixtures and equipment.

On December 7, 2015, Plaintiff filed a complaint against Defendants Gomez and Bidsal, asserting the following causes of action:

1. Breach of Written Contract

2. Common Counts

3. Conversion

4. Fraud & Deceit

5. Negligent Misrepresentation

6. Intentional Infliction of Emotional Distress

7. Breach of the Covenant of Good Faith and Fair Dealing

On April 13, 2016, Plaintiff filed a First Amended Complaint, adding Real Equities LLC as a defendant.

On December 22, 2016, the Court ordered Defendants Gomez and Real Equities, LLC dismissed without prejudice pursuant to CCP section 581 et seq.

On February 23, 2018, the Court granted Defendant Bidsal’s motion for summary judgment.

On July 2, 2018, Plaintiff filed a Notice of Appeal.

On August 14, 2018, the Court granted Defendant Bidsal’s unopposed motion for attorney’s fees.

On March 17, 2020, the Court of Appeal affirmed the Court’s ruling granting Bidsal’s motion for summary judgment. A remittitur indicating the decision had become final was issued on July 16, 2020.

On August 21, 2020, Defendant Bidsal filed a motion for attorney’s fees on appeal. No opposition has been filed.

Request for Judicial Notice

Defendant Bidsal requests judicial notice of (1) the decision by the Court of Appeal in Aguila v. Bidsal (B291265, March 17, 2020); (2) the Notice of Ruling on Defendant’s Motion for Attorneys’ Fees, Costs, and Expenses in this matter, (3) the Order/Ruling regarding Defendant’s motion for summary judgment in this matter, (4) the Notice of Ruling on Defendant’s motion for summary judgment in this matter, and (5) the remittitur by the clerk of the Court of Appeal in Aguila v. Bidsal (B291265, July 16, 2020). Defendant’s request is GRANTED.

Discussion

Defendant Bidsal moves for attorneys’ fees on appeal in the amount of $25,901.50 and costs on appeal in the amount of $1,030.45.

Attorney’s Fees

Defendant seeks attorney’s fees in the amount of $25,901.50 as the prevailing party on appeal and pursuant to CCP section 2033.420.

1. Entitlement to Attorney’s Fees

CRC Rule 8.278 provides that a party prevailing in the Court of Appeal in a civil case is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) “The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” (Id., rule 8.278(a)(2).) “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.” (Id., rule 8.278(d)(2).) CRC Rule 3.1702 authorizes a party to file a motion to claim attorney’s fees on appeal under a statute or contract when the court determines entitlement to fees, the amount of fees, or both. (Id., rule 3.1702(a), (c).)

Under CCP section 2033.420, when a party fails to admit the truth of any matter when requested to do so in a request for admission, and if the proponent of that request for admission proves the truth of that matter, the proponent of the request for admission may request the Court to order the party failing to admit the truth of the matter to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.  CCP section 2033.420(b) states that the Court shall make this order unless the Court finds any of the following:

1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

2) The admission sought was of no substantial importance.

3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

4) There was other good reason for the failure to admit.

(Code Civ. Proc., § 2033.420(b).)

Here, Plaintiff filed the appeal and the Court of Appeal affirmed the Court’s ruling granting Defendant’s motion for summary judgment. (RJN, Exs. 1, 5.) Defendant is thus the prevailing party pursuant to CRC Rule. 8.278(a)(2) and is entitled to recover his costs on appeal. The Court of Appeal opinion and remittitur confirms that Defendant is entitled to recover his costs on appeal. (RJN, Exs. 1, 5.) However, costs on appeal generally do not include attorney’s fees. (Cal. Rules of Court, rule 8.278(d)(2).) The issue is thus whether Defendant is entitled to attorney’s fees pursuant to CCP section 2033.420.

Generally, “[a] statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.) Here, the Court awarded attorney’s fees to Defendant pursuant to CCP section 2033.420. (RJN, Ex. 2.) CCP section 2033.420 does not create a specific exception for appellate fees. Therefore, Defendant is entitled to attorney’s fees on appeal pursuant to CCP section 2033.420.

2. Reasonableness of Attorney’s Fees

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 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. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at 48, n.23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.)

The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)

Plaintiff has not filed an opposition challenging the reasonableness of the requested attorney’s fees. Despite the lack of opposition, the Court reviews defense counsel’s declaration and billing statements for reasonableness.

The Court finds defense counsel’s hourly rates are reasonable given their experience and skills. (Goodkin Decl., ¶ 27.) A review of the attached billing statements also demonstrates that the hours billed are generally reasonable. However, the Court finds the $4,000 billed for the 10 hours anticipated for filing this motion, drafting and filing a reply, and attending the hearing for this motion is unreasonable, given that the motion is unopposed. Furthermore, Defendant has failed to justify the use of $400 as the hourly rate for the additional 10 hours anticipated with respect to this motion. The Court will thus only award 1 hour for the hearing on this motion at an hourly rate of $305.

Accordingly, Defendant is entitled to attorney’s fees in the amount of $22,206.50.

Costs

Defendant seeks $1,030.45 in costs. As discussed, Defendant is entitled to costs on appeal. The specific costs sought by Defendant are allowable pursuant to CRC rule 8.278(d)(1). (See 8/21/20 Memorandum of Costs; Cal. Rules of Court, rule 8.278(d)(1).) Therefore, Defendant is awarded $1,030.45 in costs.

Conclusion

Based on the foregoing, Defendant’s motion for attorney’s fees on appeal is GRANTED.

Defendant is awarded $22,206.50 in attorney’s fees and $1,030.45 in costs.