On 12/01/2016 JAMES SALAMON filed a Contract - Other Contract lawsuit against HAROLD GREENBERG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RANDOLPH M. HAMMOCK
DOES 1 TO 11
TEITELBAUM MELVIN ESQ.
WAXLER ANDREW JAY
4/12/2018: REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT K. MURCH
4/17/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
7/23/2018: FIRST AMENDED ANSWER OF PLAINTIFFS CROSS-DEFENDANTS JAMES SALAMON AND JEANNE SALAMON TO CROSS-COMPLAINT OF DEFENDANT/CROSS-COMPLAINANT HAROLD GREENBERG.
8/17/2018: Minute Order
11/8/2018: Motion for Leave
11/30/2018: Case Management Order
1/19/2017: CROSS-COMPLAINT OF HAROLD GREENBERG FOR DAMAGES
1/19/2017: ANSWER OF DEFENDANT HAROLD GREENBERG TO PLAINTIFFS' UNVERIFIED COMPLAINT
3/2/2017: Minute Order
3/2/2017: TRIAL PREPARATION ORDER
3/10/2017: NOTICE OF SCHEDULING AND TRIAL SETTING
3/22/2017: GENERAL DENIAL
Appeal - Remittitur - Appeal Dismissed (B293006); Filed by ClerkRead MoreRead Less
Appellate Order Dismissing Appeal (Order of dismissal for appeal filed 9/28/18); Filed by ClerkRead MoreRead Less
Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by ClerkRead MoreRead Less
Appeal - Notice Court Reporter to Prepare Appeal Transcript (NOA 9/28/18;); Filed by ClerkRead MoreRead Less
at 08:35 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Leave (to file First Amended Answer and Cross Complaint) - HeldRead MoreRead Less
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Trial Setting Conference - HeldRead MoreRead Less
Minute Order ((Trial Setting Conference; Hearing on Motion for Leave to file...)); Filed by ClerkRead MoreRead Less
Case Management Order; Filed by ClerkRead MoreRead Less
Stipulation and Order to use Certified Shorthand ReporterRead MoreRead Less
Objection (to Late Received Opposition of Cross-Complainant Harold Greenberg to Motion of Plaintiffs James Salamon and Jeanne Salamon for Leave to File First Amended Answer; Declaration of Melvin Teitelbaum; Exhibit); Filed by James Salamon (Plaintiff); Jeanne Salamon (Plaintiff)Read MoreRead Less
Answer; Filed by Harold Greenberg (Defendant)Read MoreRead Less
at 00:00 AM in Department 47; Unknown Event TypeRead MoreRead Less
NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICERead MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
COMPLAINT-CONTRACTRead MoreRead Less
Complaint; Filed by James Salamon (Plaintiff); Jeanne Salamon (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC642412 Hearing Date: June 30, 2020 Dept: 47
James Salamon, et al. v. Harold Greenberg
GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES APPEARENCES BY COURT CALL. PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR VIA COURT CALL AT (888) 882-6878 (OR WWW.COURTCALL.COM). IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.
(1) MOTION FOR REASONABLE ATTORNEY’S FEES PURSUANT TO CODE OF CIVIL PROCEDURE § 1717;
(2) MOTION FOR ATTORNEY’S FEES [C.C.P. § 1717]
MOVING PARTY: (1) Defendant Harold Greenberg; (2) Cross-Complainant Harold Greenberg
RESPONDING PARTY(S): (1) No opposition on eCourt as of June 26, 2020; Defendant also filed a notice indicating he had not received an opposition. (2) No opposition on eCourt as of June 26, 2020.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs allege that Defendant attorney represented that if Plaintiffs settled in the underlying action, Defendant would represent Plaintiffs on a contingency basis in other cases that would yield large damage awards in Plaintiffs’ favor. Defendant filed a cross-complaint alleging that Plaintiffs have failed to pay attorney’s fees owed. Defendant prevailed on the complaint on summary judgment in July 2018 and on his cross-complaint on February 6, 2020, following a bench trial.
Defendant now seeks attorney’s fees in two separate motions, one for prevailing on the complaint and the other for prevailing on the cross-complaint.
Defendant’s motion for attorney’s fees is DENIED as untimely.
Cross-Complainant’s motion for attorney’s fees is GRANTED in the amount of $95,900, which the Court finds to be the total and reasonable amount of attorney’s fees incurred for the work performed on behalf of Cross-Complainant.
Motion for Attorney’s Fees for Prevailing on Complaint
In his most recently filed motion for attorney’s fees, Defendant Harold Greenberg seeks attorney’s fees under CCP § 1717 incurred “in connection with his successful motion for summary judgment.” (Motion, at p.3.) Defendant seeks fees in the amount of $294,920.00.
A motion for attorneys’ fees is to be filed within 60 days after the date of service of the notice of entry of judgment. (CRC 3.1702(b)(1) [incorporating by reference the 60-day deadline of 8.104(1)(A)].) This rule applies to “claims for attorney’s fees provided for in a contract” (CRC 3.1702(a)), which is the type of fees claimed here. However, judgment was entered on the complaint following Defendant’s successful motion for summary judgment on July 1, 2018, and the notice of entry of judgment on the complaint was served by mail on August 1, 2018. This motion was not filed until May 18, 2020, nearly two years later. Needless to say, this is the definition of untimely.
“For good cause, the trial judge may extend the time for filing a motion for attorney’s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” (CRC 3.1702(d).) Defendant does not point to any stipulation to extend the time for him to file his fee motion; nor has he even acknowledged, in declarations or otherwise, that this motion was filed late, let alone arguing that any good cause exists to ignore the untimeliness.
Not only has Defendant not shown good cause, case law suggests that the Court may not even have discretion to “disregard noncompliance with the procedural requirements for claiming contractual attorney fees.” (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1729 [interpreting Civil Code §§ 1033.5 and 1717].) In Russell, the court analyzed the legislative history of Civil Code §§ 1033.5 and 1717 and concluded that “the trial court does not have discretion to disregard the statutory requirement that a claim for contractual attorney fees must be made by a timely written motion.” (Russell, supra, 19 Cal.App.4th at 1728.) Thus, even if Defendant had offered an explanation for the lateness, case law suggests that it would have been improper to consider it.
In other words, the Russell case and the Rutter Guide seem to say that the time limit is mandatory (they don't use the term “jurisdictional”) but can be excused via a 473(b) motion. For example, a 2013 case described Russell as holding that "even though procedural requirements for obtaining costs are mandatory, trial court retains jurisdiction to grant relief upon proper showing of mistake, inadvertence, surprise or excusable neglect." (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1442.) Russell points out that "Judicial Council rules have the force of statutes to the extent that they are not inconsistent with legislative enactments or constitutional provisions." (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1723–1724.) It also notes that "two divisions of the Second District have expressed the view that the procedural requirements are mandatory, such that the trial court does not have discretion to disregard noncompliance." (Id. at 1725.) One of those held that "the trial court abused its discretion by considering a motion for attorney fees filed after expiration of the maximum time extension allowed by rule." (Id. at 1726, citing Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1640–1641.)
Accordingly, Defendant’s motion for attorney’s fees based on prevailing on summary judgment in 2018 is DENIED as untimely.
Motion For Attorney’s Fees for Prevailing on Cross-Complaint
Cross-Complainant Harold Greenberg also moves for attorney’s fees for prevailing on his cross-complaint.
Cross-Complainant represented himself in connection with the Cross-Complaint, and therefore, generally speaking, he would not be entitled to attorney’s fees. (Trope v. Katz (1995) 11 Cal.4th 274, 292 [“[A]n attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover ‘reasonable attorney's fees’ under Civil Code section 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision.”].)
Here, however, Cross-Complainant seeks fees based on work performed by other lawyers who assisted him. “If an attorney is in fact retained by the pro se litigant and renders legal services assisting in the lawsuit, the attorney need not be an attorney of record in order for the reasonable fees of the attorney to be awarded to the prevailing party.” (Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324.) This applies “equally to both attorney and non-attorney pro se litigants.” (Ibid.) Of course, Cross-Complainant did not explain any of these principles. Nevertheless, it is appropriate to consider the motion as to lawyers who assisted Cross-Complainant in connection with the cross-complaint.
Cross-Complaint seeks fees pursuant to Civil Code § 1717, which 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.
(Civil Code § 1717(a), bold emphasis added.)
The Court entered judgment on the cross-complaint on February 6, 2020, and this motion was filed on the same day that the notice of entry of judgment was served. Thus, the motion is timely. (CRC 3.1702(b)(1) [incorporating by reference the 60-day deadline of 8.104(1)(A)].)
Contractual Basis for Fees
Here, the underlying agreement between the parties provided for the recovery of attorney’s fees by the prevailing party:
15. ATTORNEY’S FEES FOR ENFORCEMENT OF CONTRACT: If any legal action is necessary to enforce the terms of this Contract including collection of the agreed fees for services performed by Attorney, the prevailing party shall be entitled to reasonable attorney fees and costs of suit in addition to any other relief to which that party may be entitled.
(Cross-Complainant’s Exh. 2, at p.5.)
Cross-Complainant’s claims were for (1) breach of contract, (2) open book account, (3) unjust enrichment, and (4) services rendered/quantum meruit. (Cross-Complainant’s Exh. 1.) Thus, the Court finds that the action was filed to enforce the terms of the contract and to collect the agreed fees for Cross-Complainant’s services. Thus, if Cross-Complainant was the prevailing party, he is entitled to attorney’s fees under Civil Code § 1717.
Prevailing Party Determination
The Court entered judgment in favor of Cross-Complainant on all four of the causes of action he alleged in his cross-complaint. (Cross-Complainant’s Exh. 1.) Thus, Cross-Complainant was the prevailing party on the cross-complaint.
Reasonable Amount of Fees
The determination of reasonable amount of attorney’s fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)
The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)
Here, the Court finds that counsel’s hourly rate of $500 is reasonable, although the Court notes that much of counsel’s declaration attempts to establish counsel’s expertise in every area of law other than that which was at issue in this case. (Declaration of Robert L. Bastian, Jr. ¶¶ 7-9.) It is hard to imagine how expertise in police misconduct, prisoner rights, and employment discrimination is relevant to this contractual dispute between an attorney and his clients. Nevertheless, in light of counsel’s practice experience, the Court finds the $500 rate to be reasonable. (Id. ¶ 12.)
Although counsel’s rates are reasonable, Cross-Complainant is seeking fees for certain tasks unrelated to the cross-complaint. For example, on August 19, 2019 and several later dates, counsel has billed for work related to the complaint: an opposition to a motion to set aside the judgment on the complaint. In addition, frequently Cross-Complainant has sought fees for both attorneys’ review of a particular document. (See, e.g., Cross-Complainant’s Exh. 3 [entries for May 6, May 31, August 19, September 19, November 24, December 14, and December 15, 2019].) While it is to be expected that one attorney’s work will be reviewed by another, if both attorneys are billing at $500, it is less reasonable for both attorneys to routinely review those documents together. This is especially true when one of the attorneys has drafted the documents; presumably the other could review them on her own. Cross-Complainant also anticipated fees for 3 hours of time for the anticipated hearing, when counsel has been encouraged to attend via CourtCall and save the travel time included in that total.
Utilizing a lodestar approach, and in view of the totality of the circumstances, including the fact that Cross-Defendants did not oppose this motion, the Court finds that the total and reasonable amount of attorney’s fees incurred for the work performed on behalf of Cross-Complainant on those tasks related to the Cross-Complaint is $95,900.
Accordingly, Plaintiff’s motion for attorney’s fees is GRANTED in the amount of $95,900.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: June 30, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org
 Additionally, according to Rutter, the time to file the CCP § 473(b) motion would begin when it's "raised as an objection by an adversary or is in some manner enforced by the trial court," which suggests that this Court could raise it in the first instance. In any case, this Court makes no finding at this time as to whether the six-month time limits contained in CCP § 473(b) relief started sometime in 2018 or when this Court “enforced” the 60 day time period for motions for attorney’s fees.