On 02/03/2015 JOHNNY GALLO filed a Personal Injury - Other Personal Injury lawsuit against JAY HERGOT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MITCHELL L. BECKLOFF, RICHARD A. STONE and CRAIG D. KARLAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MITCHELL L. BECKLOFF
RICHARD A. STONE
CRAIG D. KARLAN
LOWE STEVEN T.
BERLIN DIANE LEE
BERLIN DIANE L.
1/12/2016: Minute Order
4/27/2016: Notice of Continuance
5/10/2016: Legacy Document
6/30/2016: Case Management Statement
8/31/2016: Minute Order
9/21/2016: Legacy Document
12/21/2016: Legacy Document
2/16/2017: Legacy Document
5/9/2017: Minute Order
5/9/2017: Legacy Document
5/9/2017: Proof of Service (not Summons and Complaint)
10/26/2017: Legacy Document
8/17/2018: Notice of Motion
8/20/2018: Notice of Motion
11/30/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
5/29/2019: Notice of Ruling
at 09:00 AM in Department M; Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
at 09:00 AM in Department M; Final Status Conference - Not Held - Vacated by CourtRead MoreRead Less
at 08:30 AM in Department M; Hearing on Motion for Summary Judgment (previously set on October 23, 2018 is placed back on the courts calendar and) - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Appeal - Notice of Filing of Notice of Appeal; Filed by ClerkRead MoreRead Less
Motion for Attorney Fees; Filed by Jay Hergot (Defendant)Read MoreRead Less
Proof of Service (not Summons and Complaint) (Appeal); Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
Appeal - Notice of Appeal/Cross Appeal Filed; Filed by Johnny Gallo (Appellant)Read MoreRead Less
at 08:30 AM in Department M; Hearing on Motion - Other (new trial) - Held - Motion DeniedRead MoreRead Less
Notice of Ruling; Filed by Jay Hergot (Defendant)Read MoreRead Less
Minute Order ( (Hearing on Motion - Other new trial)); Filed by ClerkRead MoreRead Less
Minute order entered: 2015-07-08 00:00:00; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department M; Case Management Conference - HeldRead MoreRead Less
at 08:30 am in Department WEM, Richard A. Stone, Presiding; Conference-Case Management - Status conference is held & cont.Read MoreRead Less
Minute Order; Filed by ClerkRead MoreRead Less
Minute order entered: 2015-05-26 00:00:00; Filed by ClerkRead MoreRead Less
Summons; Filed by PlaintiffRead MoreRead Less
Complaint; Filed by Johnny Gallo (Plaintiff); JOHNNY GALLO (Plaintiff)Read MoreRead Less
Complaint FiledRead MoreRead Less
Summons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
Civil Case Cover Sheet; Filed by JOHNNY GALLO (Plaintiff)Read MoreRead Less
Case Number: SC123721 Hearing Date: July 06, 2020 Dept: M
CASE NAME: John Gallo v. Jay Hergot
CASE NUMBER: SC123721
MOTION: Defendant’s Motion for attorney’s fees
HEARING DATE: 7/6/2020
This case arises out of the lease of a property located at 9869 Yoakum Dr, Beverly Hills, CA 90210. On March 26, 2017, Plaintiff Johnny Gallo filed a third amended complaint against Defendant Jay Hergot alleging (1) nuisance, (2) breach of quiet enjoyment and possession of the property, (3) breach of the implied covenant of good faith and fair dealing, (4) promissory fraud, (5) retaliatory eviction; (6) violation of civil code section 1950.5, and (7) conversion. This case was dismissed on a motion for terminating sanctions.
On June 28, 2019, Defendant filed a motion for attorney’s fees under Code of Civil Procedure §§ 1032, 1033.5, 1717, and CRC Rule 3.1700(a). Defendant seeks $171,585 in attorney’s fees based on a rate of $450 per hour for 381.3 hours of work. Defendant also seeks costs of $4,710.88.
“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.” (Code Civ. Proc., §1717(a).)
“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. . . . [T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Code Civ. Proc., § 1717(b)(1).) The “prevailing party” is the one that achieved its main litigation objectives. (Heather Farms Association v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)
In determining whether requested fees are reasonable, courts consider the following factors: (1) the number of hours spent on the case, (2) reasonable hourly compensation for the attorney, (3) the novelty and difficulty of the questions involved, (4) the skill displayed in presenting them, and (5) the extent to which the litigation precluded other employment by the attorney. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 880.) In addition, courts consider “other circumstances in the case.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096 [quoting Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623–624].)
Basis for attorney fees
Defendants argues that they entitled to reasonable attorney fees under Code of Civil Procedure §§ 1032 and 1717 on the grounds that the parties’ lease agreement contained an attorney fees provision for the prevailing party. Paragraph 39 of the lease agreement contains an attorney’s fees provision that states: “In any action or proceeding arising out of this agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in Paragraph 38A.” (Ex. A to Mot.) The third amended complaint is based on the lease agreement between Plaintiff and Defendant. (See e.g., 3AC ¶¶ 4, 8, 23.) In the third cause of action, paragraph 23, Plaintiff alleges that Defendant “Hergot breached his contractual duty to ensure that Gallo received the benefits of the lease agreement.” (Id. ¶ 23.) On February 6, 2019, the Court granted Defendant’s motion for terminating sanctions, making Defendant the prevailing party.
Plaintiff does not dispute that Defendant is entitled to attorney’s fees under the contract cited by Defendant. Plaintiff disputes that Defendant is entitled to attorney’s fees for work done related to the conversion and the fraud causes of action. Defendant argues that he is entitled to the attorney’s fees claimed, including attorney’s fees that relate to the fraud and conversion causes of action because all of the causes of action arise from the lease. “[A]n attorney fee provision applicable to ‘any dispute under the agreement’ is sufficiently broad to include the assertion of a contractual defense to fraud and breach of fiduciary duty causes of action. [Citations.]” (Gil v. Mansano (2004) 121 Cal.App.4th 739, 744.) In Santisas v. Goodin, the Supreme Court found that an attorney’s fees provision in a contract containing the language “In the event legal action is instituted by the Broker(s), or any party to this agreement, or arising out of the execution of this agreement or the sale, or to collect commissions, the prevailing party shall be entitled to receive from the other party a reasonable attorney fee to be determined by the court in which such action is brought,” focusing particularly on the phrase “arising out of the execution of th[e] agreement or the sale,” is sufficiently broad to encompass tort claims. (Santisas v. Goodin (1998) 17 Cal.4th 599, 607-608.)
Here, the conversion claim is related to the tenancy and thus the lease agreement because Plaintiff claimed that Defendant prevented Plaintiff from recovering his possessions. The fraud cause of action is also related to the lease agreement because Plaintiff based his fraud action on oral modifications to the lease agreement. Therefore, these claims arise out of the agreement and as a result, Defendant is also entitled to attorney’s fees with respect to the conversion and fraud actions.
Reasonableness of attorney’s fees
Plaintiff also argues that Court should reduce the attorney’s fees award by $2,060.00 awarded on May 9, 2017, and $12,000.00 awarded on November 7, 2018 for the previously awarded sanctions. Plaintiff argues that these awards duplicate prior awards given by the Court and that such an award would be unequitable under PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1094-1995. The Court takes this as an argument on the reasonableness of a portion of the amount of attorney’s fees requested. In reply, Defendant argues that Plaintiff failed to object to these sanctions when issued, and so has waived this argument. Defendant misunderstands Plaintiff’s argument: Plaintiff is not arguing that one sanctions award is a duplication of another award, rather, Plaintiff is arguing that it would be unfair to award all attorney’s fees requested in this motion given that the Court already awarded $2,060 and $12,000 in the form of monetary sanctions.
Defendant argues that PLCM Group is distinguishable on its facts because in PLCM Group, the Supreme Court dealt with the issue of whether an entity with an in-house attorney could recover attorney’s fees under Civil Code section 1717. Defendant argues that here, the court awarded discovery sanctions for discovery abuses. While the facts were different in PLCM Group, the law is still the same. “The trial court makes its determination [of reasonable attorney fees] after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. [Citation.]” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.)
Unless the Court finds that that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust, discovery sanctions are mandatory “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories.” (See Code Civ. Proc., § 2030.290.) Monetary sanctions include the payment of “reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030(a).) To argue that monetary sanctions for discovery abuses do not include attorney’s fees is misleading given that the statute expressly provides otherwise.
On May 9, 2017, the Court held a hearing on Defendant’s Motion to Compel Responses to Form Interrogatories. The Court Granted the motion and also awarded sanctions “in the reduced amount of $2,060, payable by the Plaintiff to the Defendant within 30 days.” (05/09/17 Minute Order.) On November 7, 2018, the Court held a continued hearing on Defendant’s motion for monetary sanctions or dismissal. The Court granted Defendant’s motion for discovery sanctions in the form of monetary sanctions “against the Plaintiff Johnny Gallo in the sum of $12,000 payable to the Defendant Jay Hergot by 11/21/2018” and the Court denied Defendant’s motion to dismiss. (11/07/18 Minute Order.) The sanctions were monetary sanctions in the form of attorney’s fees incurred for bringing those motions.
As previously noted, Defendant seeks $171,585 in attorney’s fees based on a rate of $450 per hour for 381.3 hours of work. Defendant also seeks costs of $4,710.88. After considering all of the relevant lodestar factors, the Court finds that it would be unreasonable to include in the attorney’s fees award fees for which the Court has already awarded attorney’s fees (in the form of monetary sanctions for discovery violations). Therefore, the Court finds that reasonable attorney’s fees in this case is $157,525.
Defendant’s motion for attorney’s fees is GRANTED in the amount of $157,525 and costs in the amount of $4,710.88 for a total of $162,235.88.
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