This case was last updated from Los Angeles County Superior Courts on 06/23/2019 at 10:50:32 (UTC).

LUIS RODRIGUEZ VS. SECRET RECIPES, INC.

Case Summary

On 09/28/2015 LUIS RODRIGUEZ filed a Property - Commercial Eviction lawsuit against SECRET RECIPES, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DONNA FIELDS GOLDSTEIN and WILLIAM D. STEWART. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4549

  • Filing Date:

    09/28/2015

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Commercial Eviction

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DONNA FIELDS GOLDSTEIN

WILLIAM D. STEWART

 

Party Details

Plaintiffs and Respondents

RODRIQUEZ LUIS

AHMAD MOHAMAD

Defendant and Appellant

SECRET RECIPES INC. A CALIFORNIA CORP.

Attorney/Law Firm Details

Plaintiff Attorneys

TOMSIC GERALD

ABRAMSON MICHAEL ALAN

Defendant Attorneys

GILBERT R. GEILIM ESQ

GANJI HANI

 

Court Documents

Unknown

7/27/2018: Unknown

Unknown

9/24/2018: Unknown

Request for Judicial Notice

10/12/2018: Request for Judicial Notice

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

10/19/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Declaration

12/12/2018: Declaration

Request for Judicial Notice

12/24/2018: Request for Judicial Notice

Motion to Compel

12/24/2018: Motion to Compel

Notice of Motion

12/27/2018: Notice of Motion

Opposition

12/27/2018: Opposition

Other -

12/31/2018: Other -

Proof of Service (not Summons and Complaint)

1/11/2019: Proof of Service (not Summons and Complaint)

Notice

1/23/2019: Notice

Proof of Service (not Summons and Complaint)

1/24/2019: Proof of Service (not Summons and Complaint)

Reply

2/1/2019: Reply

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/8/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Ruling

2/8/2019: Notice of Ruling

Brief

4/2/2019: Brief

Unknown

5/30/2019: Unknown

105 More Documents Available

 

Docket Entries

  • 06/05/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript (;B296245;); Filed by Clerk

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  • 06/04/2019
  • Appeal - Reporter Appeal Transcript Process Fee Paid (Respondent); Filed by Luis Rodriquez (Respondent)

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  • 06/04/2019
  • Appeal - Reporter Appeal Transcripts Deposit Paid (Respondent)

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  • 06/03/2019
  • Respondent's Ntc Designating Record of Appeal; Filed by Luis Rodriquez (Respondent)

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  • 05/30/2019
  • Appeal Document (;B296245; NOA 3/7/19; Turn Down Letter re: Reporter's Transcript.); Filed by Clerk

    Read MoreRead Less
  • 05/30/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript (;B296245;); Filed by Clerk

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  • 05/28/2019
  • Appellate Order Extension of Time (NOA:03/07/19 B296245); Filed by Clerk

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  • 05/17/2019
  • at 08:30 AM in Department B; Hearing on Application for Order for Appearance and Examination (reAndreh Koygani) - Held

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  • 05/17/2019
  • Minute Order ( (Hearing on Application for Order for Appearance and Examinati...)); Filed by Clerk

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  • 04/30/2019
  • Notice of Ruling; Filed by Luis Rodriquez (Plaintiff)

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151 More Docket Entries
  • 11/19/2015
  • Application ; Filed by Luis Rodriquez (Plaintiff)

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  • 11/19/2015
  • Writ issued; Filed by Luis Rodriquez (Plaintiff)

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  • 11/06/2015
  • at 10:30 AM in Department B; Non-Jury Trial (Court Trial - Short Cause; End of Trial) -

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  • 10/29/2015
  • at 08:30 AM in Department B; Status Conference (Status Conference; Trial and Conference Set) -

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  • 10/27/2015
  • Request for Entry of Default / Judgment; Filed by Luis Rodriquez (Plaintiff)

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  • 10/27/2015
  • Answer; Filed by Secret Recipes, Inc., a California Corp. (Defendant)

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  • 10/27/2015
  • Proof of Service of Summons and Complaint; Filed by Luis Rodriquez (Plaintiff)

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  • 09/29/2015
  • Summons; Filed by Luis Rodriquez (Plaintiff)

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  • 09/29/2015
  • Summons Issued; Filed by Luis Rodriquez (Plaintiff)

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  • 09/28/2015
  • Complaint; Filed by Luis Rodriquez (Plaintiff)

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Tentative Rulings

Case Number: EC064549    Hearing Date: March 12, 2021    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

luis rodriguez,

Plaintiff,

v.

Secret recipes, inc.,

Defendant.

Case No.: EC064549

Related with: EC065007

Hearing Date: March 12, 2021

[TENTATIVE] order RE:

motion to set aside denial (in respect of order nos. 1 and 2) of motion for attorney’s fees on appeal

BACKGROUND

Plaintiff Luis Rodriguez (“Plaintiff”) commenced this unlawful detainer action against Defendant Secret Recipes, Inc. (“Defendant”). This action proceeded to a bench trial on November 6, 2015, to which Defendant did not appear. The Court then entered judgment in favor of Plaintiff on November 18, 2015.

On February 18, 2021, Plaintiff filed a motion to set aside denial (in respect to Order Nos. 1 and 2) of the motion for attorney’s fees on appeal. On March 1, 2021, Defendant filed an opposition brief. The Court is not in receipt of a reply brief.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of: (1) the Judgment dated November 18, 2015 in EC064549; (2) the Notice of Appeal dated March 7, 2019 in Case No. EC064549; (3) the Appellate Court’s order on Plaintiff’s motion to dismiss appeal dated July 9, 2019 in Appellate Case No. B296245; (4) the Partial Remittitur dated September 9, 2019 in EC064549/B296245; (5) the Appellate Court’s order on Plaintiff’s motion to dismiss appeal dated December 19, 2019 in EC064549/B296245; (6) the Remittitur dated December 19, 2019 in EC064549/B296245; (7) the Order dated October 16, 2020 granting in part and denying in part Plaintiff’s motion for attorney’s fees on appeal; (8) [proposed] notice of motion and motion for attorney’s fees on appeal; (9) [proposed] request for judicial notice in support of Plaintiff’s motion for attorney’s fees on appeal; and (10) [proposed] order re motion for attorney’s fees.

The request for judicial notice is granted as to Exhibits 1 to 7. (Evid. Code, § 452(d).) The request is denied as to Exhibits 8-10, which are proposed motion papers that have not been filed with the Court. (See Abramson Decl., ¶10.)

DISCUSSION

A. Relevant Procedural History

By way of background, the Court provides this relevant timeline of events:

· On 11/18/15, judgment was entered in favor of Plaintiff and against Defendant. (Pl.’s RJN Ex. 1.)

· On 11/16/18, the Court granted Plaintiff’s motion to compel further responses to post-judgment SROGs. Defendant then filed a motion for relief from order, which the Court denied on 1/11/19. Defendant appealed the Court’s 1/11/19 order (“Appeal No. 1”).

· On 2/8/19, the Court granted Plaintiff’s motion to compel Defendant’s further responses to the post-judgment RPD, set 2. On 3/7/19, Defendant filed a Notice of Appeal on this order (“Appeal No. 2”).

· On 5/16/16, Defendant filed a motion to vacate default judgment, which the Court denied on 7/8/16. On 12/12/18, Defendant filed a second motion to vacate default judgment, which the Court denied on 2/8/19. Defendant filed a Notice of Appeal on this order (“Appeal No. 3”).

· On 5/22/19, Plaintiff filed a motion to dismiss Defendant’s appeal as to Appeal Nos. 1-3. On 7/9/19, the Court of Appeal issued an Order dismissing Appeal Nos. 1-2, on the ground that they were not appealable orders. On 9/9/19, the Court of Appeal issued its Partial Remittitur, which attached the 7/9/19 order. (Pl.’s RJN, Exs. 3-4.) In the Court of Appeal’s Partial Remittitur, it stated: “Respondent(s) [Plaintiff] to recover costs on appeal.”

· Although the Court of Appeal denied the motion to dismiss as to Order No. 3 on 7/9/19, it dismissed Appeal No. 3 on 12/19/19 pursuant to Defendant’s request. (Pl.’s RJN, Ex. 5.) The Remittitur was issued the same day. (Pl.’s RJN, Ex. 6.) In the Court of Appeal’s Remittitur, it stated: “Respondent to recover costs on appeal.”

· On 1/28/20, Plaintiff filed a motion for attorney’s fees on appeal and Defendant opposed on 3/2/20. The Court held a hearing on the matter on 3/13/20 and ordered supplemental briefing and Plaintiff filed a supplemental brief on 3/25/20. The Court then held a hearing on 9/25/20 and ordered supplemental briefing on the timeliness issue for the motion for attorney’s fees on appeal. On 10/2/20, Plaintiff filed a supplemental brief on the timeliness issue and on 10/8/20, Defendant filed a supplemental brief in response.

· On 10/16/20, the Court: (1) granted Plaintiff’s motion for attorney’s fees on appeal in the amount of $7,152 in connection with Appeal No. 3 and not awarding fees in connection with Appeal Nos. 1 and 2; and (2) granted Plaintiff’s motion for post-judgment attorney’s fees in the amount of $32,550.

In the October 16, 2020 order on the motion for attorney’s fees on appeal, the Court found merit to Defendant’s argument in opposition and at the September 25, 2020 hearing that Plaintiff did not timely file the fees motion as to Appeal Nos. 1 and 2. The Court’s October 16, 2020 ruling stated in relevant part:

“1. Timeliness Issue

In the opposition brief and at the hearing on September 25, 2020, Defendant argued that Plaintiff did not timely file this motion for attorney’s fees as to Appeal Nos. 1 and 2.

CRC Rule 8.278(c)(1) states that within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700. CRC Rule 3.1702(c) (re attorney’s fees on appeal) also states that a notice of motion to claim attorney’s fees on appeal under a statute or contract requiring the court to determine the entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1). The parties may stipulate to extend the time to file a motion for attorney’s fees up to an additional 60 days or, for good cause, the trial judge may extend the time for filing a motion for attorney’s fees in absence of a stipulation or for a longer period than allowed by stipulation. (CRC Rule 3.1702(c)(2), (d).)

Here, the Court of Appeal issued a remittitur on September 9, 2019 as to Appeal Nos. 1 and 2 and issued a remittitur on December 19, 2019 as to Appeal No. 3. This motion for attorney’s fees on appeal was filed on January 28, 2020.

Defendant argues that the motion is not timely as to Appeal Nos. 1 and 2 because the motion was filed on January 28, 2020, which is over 40 days from the issuance of the September 9, 2019 remittitur (i.e., 141 days elapsed). Thus, Defendant argues that Plaintiff is only entitled to recover fees in connection with Appeal No. 3 (i.e., 40 days elapsed).

In the supplemental brief (filed October 2, 2020), Plaintiff acknowledges that a motion for attorney’s fees on appeal must ordinarily be served within 40 days of the remittitur but argues that the motion is not untimely because the CRC Rules are silent on the subject of how these time frames apply in a case where an appeal is remitted to the trial court in a piecemeal fashion. (Pl.’s Supp. Brief at p.1.) Plaintiff argues that the common-sense approach would be to take the last remittitur as the trigger for the 40-day deadline. (Id. at p.2.) Plaintiff relies on CRC Rule 3.1702(d), which states that the trial judge may extend the time for filing a motion for attorney’s fees. Alternatively, Plaintiff argues that the Court should allow relief under CCP § 473(b) because counsel has made an honest mistake of law.

In its supplemental brief (filed October 8, 2020), Defendant argues that Plaintiff has not made an application for an extension of time accompanied by good cause because Plaintiff did not even file a reply brief to this motion and Plaintiff did not separately file a motion for an extension of time or for relief under section 473(b). Defendant also argues that Mr. Abramson’s current declaration retroactively pads and increases the hours sought and demands fees for work he did not do, such as time spent on filing a reply brief to this motion.

Based on the record before the Court, the Court does not find that the motion for attorney’s fees on appeal was timely filed as to Appeal Nos. 1 and 2. First, as acknowledged by both parties, the motion was not timely filed in relation to the remittitur issued by the Court of Appeal on September 9, 2019. Second, the parties did not stipulate to extend the time to file a motion for attorney’s fees. Third, Plaintiff did not apply for a Court order extending the time to file the motion for attorney’s fees on appeal. Moreover, the Court does not find that Plaintiff has established good cause for the delay in filing this motion.

In addition, the Court does not find merit to Plaintiff’s argument that Appeal Nos. 1, 2, and 3 should be treated together such that all costs on appeal should follow the second remittitur. The appeals involved three separate orders on different motions issued by this Court—Appeal Nos. 1 and 2 involved the Court’s orders on motions for post-judgment SROGs and post-judgment RPDs, while Appeal No. 3 involved the Court’s order regarding a motion to vacate default judgment. The Court of Appeal specifically issued separate remittiturs for Appeal Nos. 1-2 and Appeal No. 3. Thus, Plaintiff should have timely sought attorney’s fees on appeal following the respective remittiturs.

Finally, the Court does not find that CCP § 473(b) applies at this time. Plaintiff argues that this section is an alternate basis for relief under the circumstances. However, this section applies after a proceeding is taken against the party as a result of his or her mistake, inadvertence, surprise, or excusable neglect. As such, any argument under section 473(b) is premature.

Thus, Plaintiff shall be entitled to recover attorney’s fees on appeal in connection with Appeal No. 3 only.”

(October 16, 2020 ORDER RE: (1) MOTION FOR ATTORNEYS’ FEES ON APPEAL; AND (2) MOTION FOR POST-JUDGMENT ATTORNEYS’ FEES at pp.4-6.)

B. Discussion of Merits

Plaintiff moves pursuant to CCP § 473(b) on the grounds of inadvertence, surprise, mistake, or excusable neglect, requesting that the Court set aside its partial denial in respect to Order Nos. 1 and 2 of Plaintiff’s motion for attorney’s fees on appeal. Plaintiff argues that based on the Court’s October 16, 2020 order, the Court “strongly implied” that Plaintiff seek relief from the Court’s denial of attorney’s fees on appeal as to Order Nos. 1 and 2 pursuant to CCP § 473(b) after the fees motion was partially denied. (Mot. at p.3.)

In opposition, Defendant argues that Plaintiff has not established excusable neglect by Plaintiff’s counsel, who is an experienced attorney of 40 years. Defendant argues that the law regarding the 40-day deadline to move for fees is established by the California Rules of Court 8.278(c) and various case law. Defendant also argues that Plaintiff failed to move for an extension of time pursuant to Rule 3.1702(d) and did not even file a reply brief to the motion for attorney’s fees on behalf of Plaintiff after Defendant had raised the timeliness issue in its opposition brief. Defendant requests that if the Court is inclined to grant this motion, then relief under CCP § 473(c) directing Plaintiff’s counsel to pay $1,000 to the State Bar Client Security Fund is appropriate and the Court should reduce Plaintiff’s counsel’s hourly rate in determining a fee award.

As a preliminary matter, Plaintiff argues that this motion was timely filed pursuant to CCP § 473(b) as it was filed within a reasonable time, not exceeding 6 months from the October 16, 2020 order. The motion was filed on February 18, 2021, which is within 6 months. There is no issue with timeliness of filing this instant motion to set aside.

Next, Plaintiff argues that Plaintiff’s failure to timely file a motion for attorney’s fees as to Appeal Nos. 1 and 2 was, at worst, excusable neglect for his counsel, Michael A. Abramson. (Mot. at p.5.) Mr. Abramson provides the relevant procedural history of this case. (Abramson Decl., ¶¶3-7.) Most relevant is that: (a) on July 9, 2019, the Court of Appeal granted in part Plaintiff’s motion to dismiss Defendant’s appeal as to Appeal Nos. 1 and 2 and denied in part the motion as to Appeal No. 3; (b) on December 19, 2019, the Court of Appeal dismissed Defendant’s appeal as to Appeal No. 3 pursuant to the appellant/Defendant’s request; (c) on January 28, 2020, Plaintiff filed a motion for attorney’s fees on Appeal Nos. 1-3; and (d) on October 16, 2020, the Court denied in part the fees motion as to Appeal Nos. 1 and 2, and granted it in part as to Appeal No. 3. (Id., ¶¶7-8.) He states that although he is aware that a motion for attorneys’ fees on appeal must “ordinarily” be served within 40 days of the remittitur pursuant to CRC Rules 8.278(c)(1) and 3.1702(c), he was unaware of how those time frames applied in a case where an appeal was remitted to the trial court in piecemeal fashion. (Id., ¶9.) He states that in the absence of specific authority on the subject, he mistakenly assumed the December 19, 2019 remittitur on appeal would control the timetable for all the appeals, such that he filed the motion for attorney’s fees on appeal (for Appeal Nos. 1-3) on January 28, 2020, which was “inadvertently untimely as to Orders 1 and 2.” (Id.) He states that but for these facts, he would have timely filed the motion for attorney’s fees. (Id., ¶10.)

Plaintiff cites to Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304 and the following quote in support of his motion:

Furthermore, we see no prejudice to U–Haul resulting from the procedural snafus, and no reason to grant it windfall protection from attorney's fees exposure. It knew from before entry of judgment the legal grounds upon which fees were sought and the amount Robinson was seeking (including detailed breakdowns). The fact that there were procedural irregularities provides no basis for invalidating the award where UHC makes no attempt to show prejudice. (Pollardsupra, 12 Cal.3d at p. 381, 115 Cal.Rptr. 648, 525 P.2d 88 [“In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill”].)

(Robinson, supra, 4 Cal.App.5th at 328.)

In Robinson, U-Haul had sued Robinson and later dismissed its complaint; Robinson then filed a malicious prosecution action against U-Haul. U-Haul appealed the trial court’s permanent injunction in the second action, as well as its award of attorney’s fees to Robinson on the basis that Robin’s request for fees was filed late. (Robinson, supra, 4 Cal.App.5th at 309.) In the second action, after judgment had been entered, Robinson had filed a memorandum of costs, seeking costs and over $1 million in attorney’s fees. U-Haul responded with a motion to tax costs, informing Robinson that he could not seek attorney’s fees through a costs memorandum, but had to file a separately noticed motion. At that time, Robinson still had time to file a motion for attorney’s fees within 60 days of CRC Rule 3.1702(b)(1), but Robinson only opposed the motion to tax costs arguing that his attorney’s fees by memorandum of costs was appropriate. (Id. at 324.) In ruling on the motion to tax costs, the trial court struck the entire attorney’s fees amount requested from Robinson’s memorandum of costs, without prejudice to a renewed motion if Robinson sought and was granted an extension of time under Rule 3.1702(d).[1] (Id. at 325.) Robinson then filed a motion to extend time to file a motion for attorney’s fees “in which he sought to excuse his failure to timely file his attorney's fees motion based on his attorney's

‘mistaken view that the Court had already determined that Robinson was entitled to attorneys' fees and that therefore any motion for attorneys' fees would be moot.’” (Id.) The trial court granted Robinson’s motion to extend time, finding Robinson’s “honest mistake as to the necessity to file the attorneys’ fees motion” provided good cause to grant him more time under Rule 3.1702(d). (Id.)

The Court of Appeal affirmed the trial court’s ruling, finding that Rule 3.1702(d) is “remedial” and should be given a liberal, rather than strict interpretation and that “[e]ven a claim of inadvertence, if it is not prejudicial, may constitute good cause for a late filing.” (Id. at 326.) In making its determination, the Court of Appeal found that the standard under CCP § 473(b) should not be imported to Rule 3.1702, which only required a finding of “good cause”—i.e., a good reason for a party's failure to perform that specific requirement of the statute from which he seeks to be excused. (Id. at 326-327.) The Court of Appeal stated: “Just because Lewow cited a case decided under Code of Civil Procedure section 473 [citation] does not mean it should be read as importing that section's legal standards wholesale into Rule 3.1702. To the extent that it has been so read [citation], we believe further proliferation of this idea should be avoided. Rather, in our view, the trial court has considerably more latitude in ruling on an extension of time to file an attorney's fees motion under the ‘good cause’ standard of Rule 3.1702(d) than it does in granting relief from a ‘judgment, dismissal [or] order’ under Code of Civil Procedure, section 473, subdivision (b).” (Id.) The Court of Appeal found that an honest mistake of law may constitute good cause depending in large part on the reasonableness of the misconception (or counsel’s misunderstanding of the case and the court’s prior orders) and that the trial court was in a best position to determine counsel’s credibility and the reasonableness of counsel’s misconception. (Id. at 328.)

Here, the legal standard under which Plaintiff is seeking relief is pursuant to CCP § 473(b) for Mr. Abramson’s failure to file the motion for attorney’s fees, which Plaintiff claims was a result of “excusable neglect.” Robinson was determined on the “good cause” standard pursuant to CRC Rule 3.1702(d), which the Court of Appeal expressly distinguished from the standard under CCP § 473(b).

Although the standards under CCP § 473(b) and CRC Rule 3.1702(d) are different, the Court finds that Plaintiff has met the burden under section 473(b)’s excusable neglect. Further, Mr. Abramson’s declaration would be sufficient to satisfy the “good cause” requirement under Rule 3.1702(d). While the Court’s analysis on the previous motion treated the Appeal as three different appeals, counsel could also have viewed Defendant’s appeal as a single appeal, and therefore reasonably thought that a motion for attorneys’ fees would only be considered after the appeal had been fully ruled upon and return to the court below. In this regard, the Court notes that Defendant filed only a single Notice of Appeal, referencing three different orders.

Defendant requests that the Court impose a CCP § 473(c) penalty against Mr. Abramson. This request is denied. While the Court ruled against Mr. Abramson, his decision was not improperly motivated, and, if the Court had been willing, would have resulted in judicial economy. In light of this, no purpose is served by payment to the State Bar Client Security Fund. Defendant also requests that Mr. Abramson’s hourly rate in the upcoming motion for attorney’s fees be reduced. The Court declines to make such an order regarding Mr. Abramson’s hourly rate at this time; this argument is better raised in Defendant’s opposition to the motion for attorney’s fees.

Thus, the motion to set aside the denial of the motion for attorney’s fees on appeal as to the appeals of orders Nos. 1 and 2 is granted.

CONCLUSION AND ORDER

Plaintiff’s motion to set aside the denial (in respect to Appeal Nos. 1 and 2) of the motion for attorney’s fees on appeal, which the Court ruled on October 16, 2020 is granted. Plaintiff is ordered to reserve a hearing date and pay appropriate filing fees and file and serve the motion for attorney’s fees on appeal as to Appeal Nos. 1 and 2 pursuant to code.

At the hearing, the Court may set a status conference to inquire of the parties what remains issues, if any, remain outstanding in this case.

Plaintiff shall provide notice of this order.


[1]For good cause, the  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 Rule 3.1702(d) [emphasis added].)

Case Number: EC064549    Hearing Date: October 16, 2020    Dept: NVB

Superior Court of California

County of Los Angeles

North Central District

Department B

luis rodriguez,

Plaintiff,

v.

Secret recipes, inc.,

Defendant.

Case No.: EC064549

Related with: EC065007

Hearing Date: October 16, 2020 (cont. from September 25, 2020)

[TENTATIVE] order RE:

(1) motion for attorneys’ fees on appeal; and

(2) motion for post-judgment attorneys’ fees

BACKGROUND

Plaintiff Luis Rodriguez (“Plaintiff”) commenced this unlawful detainer action against Defendant Secret Recipes, Inc. (“Defendant”). This action proceeded to a bench trial on November 6, 2015. Defendant did not appear. The Court then entered judgment in favor of Plaintiff on November 18, 2015.

There are two motions for attorney’s fees on calendar this date in this case.

On January 28, 2020, Plaintiff filed a motion for attorney’s fees on appeal in the amount of $44,500.00. On March 2, 2020, Defendant filed an opposition brief. The Court initially held a hearing on the motion for attorney’s fees on appeal on March 13, 2020, and continued the hearing to March 27, 2020. The Court ordered Plaintiff to file a supplemental declaration of counsel that includes legible copies of the Sublease and the Master Lease, as well as Plaintiff’s counsel’s billing records/invoices by March 20, 2020. On March 25, 2020, Plaintiff’s counsel untimely filed a supplemental brief.

On May 4, 2020, Plaintiff filed a motion for post-judgment attorneys’ fees in the amount of $63,620.00. On September 14, 2020, Secret Recipes filed an opposition brief. On July 17, 2020, Plaintiff filed a reply brief.

On September 25, 2020, the Court held a hearing on the motions. The Court continued both motions to October 16, 2020 in order to allow the parties to file supplemental papers regarding: (1) the timeliness of Plaintiff’s motion for attorney’s fees on appeal and (2) support for Plaintiff’s requested attorney’s fees in support of the motion for post-judgment attorney’s fees.

On October 2, 2020, Plaintiff filed a supplemental brief re timeliness of Plaintiff’s motion for attorney’s fees on appeal. On October 8, 2020, Defendant filed a supplemental brief.

On October 2, 2020, Plaintiff filed a supplemental declaration of Michael Abramson in support of the motion for post-judgment attorney’s fees. On October 8, 2020, Defendant filed a supplemental brief.

DISCUSSION RE Plaintiff’s MOTION FOR ATTORNEYS’ FEES ON APPEAL

A. Request for Judicial Notice

Plaintiff requests judicial notice of: (1) the judgment dated November 18, 2015 filed in this case; (2) the Notice of Appeal dated March 7, 2019 filed in this case; (3) the Appellate Court’s Order on Plaintiff’s Motion to Dismiss Appeal dated July 9, 2019 in LASC Case No. EC064549 and the Court of Appeal Case No. B296245; (4) the Partial Remittitur dated September 9, 2019 in both cases; (5) the Appellate Court’s order on Plaintiff’s Motion to Dismiss Appeal dated December 19, 2019 in both cases; and (6) the Remittitur dated December 19, 2019 in both cases. The request is granted pursuant to Evidence Code, §452(d).

B. Relevant Background

By way of background, the Court provides this relevant timeline of events:

· On 11/18/15, judgment was entered in favor of Plaintiff and against Defendant.

· On 11/16/18, the Court granted Plaintiff’s motion to compel further responses to post-judgment SROGs. Defendant then filed a motion for relief from order, which the Court denied on 1/11/19. Defendant appealed the Court’s 1/11/19 order (“Appeal No. 1”). (Pl.’s RJN, Ex. 2.)

· On 2/8/19, the Court granted Plaintiff’s motion to compel Defendant’s further responses to the post-judgment RPD, set 2. On 3/7/19, Defendant filed a Notice of Appeal on this order (“Appeal No. 2”). (Pl.’s RJN, Ex. 2.)

· On 5/16/16, Defendant filed a motion to vacate default judgment, which the Court denied on 7/8/16. On 12/12/18, Defendant filed a second motion to vacate default judgment, which the Court denied on 2/8/19. Defendant filed a Notice of Appeal on this order (“Appeal No. 3”). (Pl.’s RJN, Ex. 2.)

· On 5/22/19, Plaintiff filed a motion to dismiss Defendant’s appeal as to Appeal Nos. 1-3. On 7/9/19, the Court of Appeal issued an Order dismissing Appeal Nos. 1-2, on the ground that they were not appealable orders. (Pl.’s RJN, Ex. 3.) On 9/9/19, the Court of Appeal issued its Partial Remittitur, which attached the 7/9/19 order. (Pl.’s RJN, Ex. 4.) In the Court of Appeal’s Partial Remittitur, it stated: “Respondent(s) [Plaintiff] to recover costs on appeal.” (Id.)

· Although the Court of Appeal denied the motion to dismiss as to Order No. 3 on 7/9/19, it dismissed Appeal No. 3 on 12/19/19 pursuant to Defendant’s request. (Pl.’s RJN, Ex. 5.) The Remittitur was issued the same day. (Pl.’s RJN, Ex. 6.) In the Court of Appeal’s Remittitur, it stated: “Respondent to recover costs on appeal.” (Id.)

C. Merits of Motion: Entitlement to Attorney’s Fees on Appeal

Plaintiff moves for attorney’s fees on appeal pursuant to CCP §1033.5(a)(10)(A), Civil Code §1717, and CRC Rules 8.278(d)(2) and 3.1702(c).

CRC Rule 8.278(a)(2) states that the prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. CCP §1033.5(a)(10) states that an allowable cost includes attorney’s fees, which are authorized by: (A) contract; (B) statute; or (C) the law.

1. Timeliness Issue

In the opposition brief and at the hearing on September 25, 2020, Defendant argued that Plaintiff did not timely file this motion for attorney’s fees as to the Appeal Nos. 1 and 2.

CRC Rule 8.278(c)(1) states that within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700. CRC Rule 3.1702(c) (re attorney’s fees on appeal) also states that a notice of motion to claim attorney’s fees on appeal under a statute or contract requiring the court to determine the entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1). The parties may stipulate to extend the time to file a motion for attorney’s fees up to an additional 60 days or, for good cause, the trial judge may extend the time for filing a motion for attorney’s fees in absence of a stipulation or for a longer period than allowed by stipulation. (CRC Rule 3.1702(c)(2), (d).)

Here, the Court of Appeal issued a remittitur on September 9, 2019 as to Appeal Nos. 1 and 2 and issued a remittitur on December 19, 2019 as to Appeal No. 3. This motion for attorney’s fees on appeal was filed on January 28, 2020.

Defendant argues that the motion is not timely as to Appeal Nos. 1 and 2 because the motion was filed on January 28, 2020, which is over 40 days from the issuance of the September 9, 2019 remittitur (i.e., 141 days elapsed). Thus, Defendant argues that Plaintiff is only entitled to recover fees in connection with Appeal No. 3 (i.e., 40 days elapsed).

In the supplemental brief (filed October 2, 2020), Plaintiff acknowledges that a motion for attorney’s fees on appeal must ordinarily be served within 40 days of the remittitur but argues that the motion is not untimely because the CRC Rules are silent on the subject of how these time frames apply in a case where an appeal is remitted to the trial court in a piecemeal fashion. (Pl.’s Supp. Brief at p.1.) Plaintiff argues that the common-sense approach would be to take the last remittitur as the trigger for the 40-day deadline. (Id. at p.2.) Plaintiff relies on CRC Rule 3.1702(d), which states that the trial judge may extend the time for filing a motion for attorney’s fees. Alternatively, Plaintiff argues that the Court should allow relief under CCP § 473(b) because counsel has made an honest mistake of law.

In its supplemental brief (filed October 8, 2020), Defendant argues that Plaintiff has not made an application for an extension of time accompanied by good cause because Plaintiff did not even file a reply brief to this motion and Plaintiff did not separately file a motion for an extension of time or for relief under section 473(b). Defendant also argues that Mr. Abramson’s current declaration retroactively pads and increases the hours sought and demands fees for work he did not do, such as time spent on filing a reply brief to this motion.

Based on the record before the Court, the Court does not find that the motion for attorney’s fees on appeal was timely filed as to Appeal Nos. 1 and 2. First, as acknowledged by both parties, the motion was not timely filed in relation to the remittitur issued by the Court of Appeal on September 9, 2019. Second, the parties did not stipulate to extend the time to file a motion for attorney’s fees. Third, Plaintiff did not apply for a Court order extending the time to file the motion for attorney’s fees on appeal. Moreover, the Court does not find that Plaintiff has established good cause for the delay in filing this motion.

In addition, the Court does not find merit to Plaintiff’s argument that Appeal Nos. 1, 2, and 3 should be treated together such that all costs on appeal should follow the second remittitur. The appeals involved three separate orders on different motions issued by this Court—Appeal Nos. 1 and 2 involved the Court’s orders on motions for post-judgment SROGs and post-judgment RPDs, while Appeal No. 3 involved the Court’s order regarding a motion to vacate default judgment. The Court of Appeal specifically issued separate remittiturs for Appeal Nos. 1-2 and Appeal No. 3. Thus, Plaintiff should have timely sought attorney’s fees on appeal following the respective remittiturs.

Finally, the Court does not find that CCP § 473(b) applies at this time. Plaintiff argues that this section is an alternate basis for relief under the circumstances. However, this section applies after a proceeding is taken against the party as a result of his or her mistake, inadvertence, surprise, or excusable neglect. As such, any argument under section 473(b) is premature.

Thus, Plaintiff shall be entitled to recover attorney’s fees on appeal in connection with Appeal No. 3 only.

2. Civil Code, §1717(a)

Civil Code, §1717(a) states in relevant part:

(a) 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.

Where a , as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

(b)(1) 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. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(2) Where an action has been voluntarily dismissed or dismissed pursuant to a  of the case, there shall be no prevailing party for purposes of this section.

(Civ. Code, §1717(a).)

When a contract or a statute authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at trial and on appeal.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.)

Plaintiff argues that he is entitled to attorney’s fees pursuant to the Sublease at paragraph 11 and the Master Lease at paragraph 31. (Rodriguez Decl., ¶¶4-5, Ex. 7 [Sublease], Ex. 8 [Master Lease]; Abramson Supp. Decl., ¶3.)

The Sublease at paragraph 11 is illegible in both the versions attached in the initial motion and the Supplemental Abramson Declaration. However, sections 8.3 and 84 state that the terms and conditions of the Sublease are subject to the Master Lease and the sublease agrees to assume, perform, and comply with the Master Lease, except where there are direct contradictions in the Sublease and where specifically identified.

The Master Lease states at paragraph 31:

31. Attorneys’ Fees. If any Party or Broker brings an action or proceeding involving the Premises whether found in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claims or defenses. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, Lessor shall be entitled to attorneys’ fees, costs, and expenses incurred in the preparation and service of notices of Default and consultation in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

(Master Lease, ¶31; see version filed with the Abramson Supp. Decl.)

In connection with Appeal Nos. 1-3, the Court of Appeal expressly provided that costs were awardable to Plaintiff. Further, there is a valid agreement for attorney’s fees in connection with this action.

In opposition, Defendant argues that its case in Case No. EC065007 (Secret Recipes, Inc. v. Lopez, et al. for breach of contract and specific performance to obtain possession of the subject property against Rodriguez and other defendants) is still outstanding and thus this motion is premature. However, EC065007 is a separate action that has not been consolidated with this case, such that the entitlement to fees in that action have no bearing on this action.

Rather, the Court finds that the attorney’s fees provision in the Master Lease is sufficiently broad. Unlawful detainer actions may sound in contract and/or tort, and the attorney’s fees provision here sufficiently covers actions in both. (See Daybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1076; see also Beverly Hills Properties v. Marcolino (1990) 221 Cal.App.3d Supp. 7, 12 [quoting North Associates v. Bell

D. Amount of Attorney’s Fees Awarded on Appeal

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award. (Id.) 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. (Id.) 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.) No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.)

Initially, in the moving papers, Plaintiff sought $44,500.00 in attorney’s fees in connection with his defense against Defendant’s appeal. In the Supplemental Abramson Declaration (filed March 25, 2020), Plaintiff seeks $44,525.00. In the second Supplemental Abramson Declaration (filed October 2, 2020), Plaintiff seeks $30,825.00.

Mr. Abramson initially sought a billing rate of $650/hour. At the September 25, 2020 hearing, the Court indicated that it would reduce the hourly rate from $650/hour to $375/hour. As such, in his current declaration, Mr. Abramson has made adjustments to his requested fees using the $375/hour billing rate. (See 2nd Supp. Abramson Decl., ¶4.)

In his current declaration, Mr. Abramson states that the Court has referred to the three appeals as Appeal No. 1, Appeal No. 2, and Appeal No. 3, but argues instead that the appeals are in actuality one “omnibus” appeal and thus he cannot differentiate his billing among the three different orders appealed. (2nd Supp. Abramson Decl., ¶5.) Mr. Abramson suggests that the Court should take the total time spent on the three appeals (80.2 hours at $375/hour for $30,825 total), divide it by 3, and apportion $10,025 as the amount incurred for each of the three appeals. (Id.) Paragraph 6 lists the dates, hours spent, and tasks performed.

In the moving papers (filed January 28, 2020), Mr. Abramson claimed that he spent 71.53 hours on the appeals. In his supplemental declaration (filed October 2, 2020), Mr. Abramson now claims 80.2 hours. As pointed out by Defendant, Plaintiff has included additional time that was not previously sought in the initial moving papers, such as drafting a reply brief on March 6, 2020 for this motion. The Court notes that Plaintiff did not file a reply brief to this motion. It also appears that Mr. Abramson has added more hours/tasks to the work performed regarding this motion. For example, in his March 25, 2020 declaration, he stated that he spent 7.8 total hours on the motion, which accounts for 1.1 hours on January 12, 2020, 0.7 hours on January 20, 2020, 3.4 hours on January 27, 2020, and 2.6 hours on January 28, 2020. However, in his most recent declaration (filed October 2, 2020), he now claims that he spent 3.7 hours on this motion on January 12, 2020, 3.8 hours on January 20, 2020, 1.6 hours on January 26, 2020, 5 hours on January 27, 2020, and 3.9 hours on January 28, 2020. Also, Mr. Abramson now seeks additional hours for attending the September 25, 2020 hearing and drafting/reviewing the supplemental papers. However, the Court will not award counsel for the additional hours sought, as they were not requested in the initial papers. Further, the Court will not award fees on the time spent by Mr. Abramson to address the timeliness issue or to provide billing records, as these additional filings could have been avoided had Mr. Abramson filed a reply brief or provided billing records earlier. As such, the Court will consider the hours spent by Plaintiff’s counsel at 71.53, which is the original amount of hours sought by Plaintiff.

Plaintiff argues that the Court should apportion a third of the hours to each appeal as the work Mr. Abramson performed on the three appeals cannot be distinguished. The Court finds this is to be reasonable approach and will apportion the time spent on each appeal as 1/3 of 71.53 hours (or 23.84 hours each).

Thus, the total amount that Plaintiff’s counsel may recover in attorney’s fees on Appeal No. 3 shall be $7,152 (23.84 hours x. $375/hour). No fees shall be recoverable for Appeal Nos. 1 and 2.

DISCUSSION RE MOTION FOR POST-JUDGMENT ATTORNEY’S FEES

A. Request for Judicial Notice

Plaintiff requests judicial notice of: (1) the judgment dated November 18, 2015 filed in this case; (2)-(4) Plaintiff’s motion to compel answer to post-judgment SROGs dated 10/12/18. Plaintiff’s notice of Defendant’s non-opposition to the motion dated 11/15/18, and the notice of ruling on the motion dated 11/19/18; (5)-(6) Defendant’s motion for order granting relief from the 11/16/13 order on Plaintiff’s motion to compel dated 12/12/18 and the Court’s 1/11/19 order denying the motion; (7) notice of appeal dated 3/7/19; (8)-(11) OSC re contempt documents filed in this action; (12) defense counsel’s declaration dated 4/3/19 in support of Defendant’s compliant with 11/16/18 order; (13) 4/15/19 order re motion to vacate and correct 12/14/18 order; (14) the Appellate Court’s Order on Plaintiff’s Motion to Dismiss Appeal dated 7/9/19 (Court of Appeal Case No. B296245); (15) the Partial Remittitur dated 9/9/19; (16)-(19) Plaintiff’s motion to compel Defendant’s answer to RPD dated 12/24/18, Defendant’s opposition dated 1/7/19, Plaintiff’s reply dated 1/11/19, and the Court’s 2/8/19 order granting the motion; (20)-(21) OSC re contempt documents; (22)-(23) Plaintiff’s motion for sanctions against Defendant dated 11/26/19 and the Court’s 1/24/20 order granting the motion; (24)-(25) Defendant’s motion to vacate the judgment dated 5/16/16 and the Court’s 7/8/16 order denying the motion; (26) Defendant’s second motion to vacate judgment dated 12/12/18; (27) the Appellate Court’s order on Plaintiff’s Motion to Dismiss Appeal dated 12/19/19; and (28) the Remittitur dated 12/19/19. The request is granted pursuant to Evidence Code, §452(d).

B. Merits of Motion: Entitlement to Post-Judgment Attorney’s Fees

Plaintiff argues that he incurred post-judgment expenses in connection with his motions to compel Defendant’s further responses to post-judgment SROG and RPD, to defend against Defendant’s motions to vacate the judgment, and to conduct the judgment debtor examination of Hovik Grigorian and Andreh Koygani (each 50% shareholders of Defendant).

Plaintiff argues he is entitled to attorney’s fees pursuant to the Sublease and Master Lease because he was the prevailing party on the contract. He also argues that this Court may award additional fees for post-trial proceedings. (Mot. at pp.7-8.)

As these efforts were made in connection with the lease, the same analysis discussed regarding the entitlement to fees applies here.

C. Amount of Attorney’s Fees

In the moving paper, Plaintiff seeks post-judgment attorney’s fees in the amount of $63,620.00. In his declaration in support of the reply brief, Mr. Abramson states that in recognition of the 2-year limitations period on motions for post-judgment attorney’s fees set forth in CCP §685.080(a), he and his firm have adjusted their request for post-judgment attorney’s fees to exclude fees incurred prior to May 4, 2018, such that the total from May 4, 2018 to the present is $63,020.00. (Abramson Decl. re Reply, ¶4.) Following the initial hearing on the matter on September 25, 2020, Mr. Abramson states in his supplemental declaration (filed October 2, 2020) that he has adjusted his rate from $600 to $375/hour based on the Court’s determination, and thus the total amount he now seeks in this motion is $39,375.00. (Abramson Suppl. Decl., ¶4.)

Plaintiff provides the declaration of his counsel, Michael A. Abramson, in support of the request:

· Mr. Abramson details the post-judgment work that he performed in this action after obtaining the judgment on November 18, 2015. (Abramson Decl. re Mot., ¶¶3-20.) He states that a majority of the hours billed in these proceedings were spent in preparing and seeking to enforce Plaintiff’s post-judgment SROGs and RPDs, defending against Defendant’s successive and unsuccessful motions to vacate the judgment, conducting 2 judgment debtor examinations, and ex parte applications for an OSC re contempt. (Id., ¶21.)

· Mr. Abramson also states that the fees for this motion for attorney’s fees amount to $3,900.00 because he had to review all relevant client bills, invoices, and billing entries to prepare the memorandum and declaration. (Abramson Decl., ¶26.)

· Mr. Abramson states that he bills at $650/hour, which he believes is reasonable and consistent with the market rate of attorneys with comparable skill and experience. (Abramson Decl., ¶27.) He states that he has practiced law for over 30 years. (Id.)

· Mr. Abramson states that work done prior to May 4, 2018, involved the preparation and service of post-judgment discovery in December 2017, where he billed $600. Thus, Mr. Abramson adjusted the requested amount of fees from $63,620.00 to $63,020.00. (Abramson Decl. re Reply, ¶5.)

· In his supplemental declaration, Mr. Abramson provides the tasks he performed, the dates they were performed, and the time spent on each of the days. (Abramson Suppl. Decl., ¶4.) Mr. Abramson seeks fees from July 31, 2018 to October 16, 2020. He seeks 39 hours at $375/hour, or a total of $39,375.00. (Id.)

As an initial matter, Mr. Abramson states in his supplemental declaration that he is seeking 39 hours total at $375/hour and that this figure is $39,375.00 total. However, 39 hours multiplied by $375/hour is $14,625. Adding the total number of hours together in paragraph 4 of Mr. Abramson’s supplemental declaration, the total number of hours sought is actually 105 hours at $375/hour.

The Court notes that it previously granted Plaintiff’s request for sanctions for bringing post-discovery motions. On November 16, 2018, the Court granted Plaintiff’s request for sanctions against Defendant and Mr. Ganji in the amount of $2,935 in connection with a motion to compel Defendant’s responses to post-judgment SROGs, set two (filed 10/12/18). On April 15, 2019, the Court ordered Defendant and its counsel to pay $500 in discovery sanctions to Plaintiffs’ counsel in connection with Plaintiff’s motion to vacate and correct the December 14, 2018 order (filed 2/12/19). On January 24, 2020, the Court ordered Defendant and its counsel of record to pay Plaintiff $5,000 in sanction in connection with Plaintiff’s motion for monetary sanctions for misuse of the discovery process (filed 11/26/19). As the Court has already awarded sanctions to Plaintiff for these motions, the Court will adjust the fees as follows:

· The fees sought in connection with the motion to compel Defendant’s responses to post-judgment SROGs shall be reduced by .5 hour (7/31/18), 1 hour (9/4/18), 4.3 hours (10/12/18), and 3.8 hours (11/16/18). The reduction is 8.6 hours total.

· The fees sought in connection with the motion for sanctions shall be reduced by 4.1 hours (11/26/19), 1 hour (1/13/20), and 3.5 hours (1/24/20). The reduction is 8.6 hours total.

· The total reduction of hours shall be 17.2 hours. As such, the total amount of hours that the Court will award is 87.8 hours (= 105 hours requested minus 17.2 hours).

With these adjustments, the Court will grant the motion for post-judgment attorney’s fees in the total amount of $32,925 ($375/hour x 87.8 hours).

CONCLUSION AND ORDER

Plaintiff’s motion for attorney’s fees on appeal is granted in the amount of $7,152 in connection with Appeal No. 3. No fees shall be awarded in connection with Appeal Nos. 1 and 2.

Plaintiff’s motion for post-judgment attorney’s fees is granted in the amount of $32,925.00.

Plaintiff shall provide notice of this order.

Case Number: EC064549    Hearing Date: September 25, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

luis rodriguez,

Plaintiff,

v.

Secret recipes, inc.,

Defendant.

Case No.: EC064549

Related with: EC065007

Hearing Date: September 25, 2020

[TENTATIVE] order RE:

(1) motion for attorneys’ fees on appeal; and

(2) motion for post-judgment attorneys’ fees

BACKGROUND

Plaintiff Luis Rodriguez (“Plaintiff”) commenced this unlawful detainer action against Defendant Secret Recipes, Inc. (“Defendant”). This action proceeded to a bench trial on November 6, 2015. Defendant did not appear. The Court then entered judgment in favor of Plaintiff on November 18, 2015.

There are two motions for attorney’s fees on calendar this date in this case.

On January 28, 2020, Plaintiff filed a motion for attorney’s fees on appeal in the amount of $44,500.00. On March 2, 2020, Defendant filed an opposition brief. The Court initially held a hearing on the motion for attorney’s fees on appeal on March 13, 2020, and continued the hearing to March 27, 2020. The Court ordered Plaintiff to file a supplemental declaration of counsel that includes legible copies of the Sublease and the Master Lease, as well as Plaintiff’s counsel’s billing records/invoices by March 20, 2020. On March 25, 2020, Plaintiff’s counsel untimely filed a supplemental brief.

On May 4, 2020, Plaintiff filed a motion for post-judgment attorneys’ fees in the amount of $63,620.00. On September 14, 2020, Secret Recipes filed an opposition brief. On July 17, 2020, Plaintiff filed a reply brief.

DISCUSSION RE Plaintiff’s MOTION FOR ATTORNEYS’ FEES ON APPEAL

A. Request for Judicial Notice

Plaintiff requests judicial notice of: (1) the judgment dated November 18, 2015 filed in this case; (2) the Notice of Appeal dated March 7, 2019 filed in this case; (3) the Appellate Court’s Order on Plaintiff’s Motion to Dismiss Appeal dated July 9, 2019 in LASC Case No. EC064549 and the Court of Appeal Case No. B296245; (4) the Partial Remittitur dated September 9, 2019 in both cases; (5) the Appellate Court’s order on Plaintiff’s Motion to Dismiss Appeal dated December 19, 2019 in both cases; and (6) the Remittitur dated December 19, 2019 in both cases. The request is granted pursuant to Evidence Code, §452(d).

B. Relevant Background

By way of background, the Court provides this relevant timeline of events:

· On 11/18/15, judgment was entered in favor of Plaintiff and against Defendant.

· On 11/16/18, the Court granted Plaintiff’s motion to compel further responses to post-judgment SROGs. Defendant then filed a motion for relief from order, which the Court denied on 1/11/19. Defendant appealed the Court’s 1/11/19 order (“Appeal No. 1”). (Pl.’s RJN, Ex. 2.)

· On 2/8/19, the Court granted Plaintiff’s motion to compel Defendant’s further responses to the post-judgment RPD, set 2. On 3/7/19, Defendant filed a Notice of Appeal on this order (“Appeal No. 2”). (Pl.’s RJN, Ex. 2.)

· On 5/16/16, Defendant filed a motion to vacate default judgment, which the Court denied on 7/8/16. On 12/12/18, Defendant filed a second motion to vacate default judgment, which the Court denied on 2/8/19. Defendant filed a Notice of Appeal on this order (“Appeal No. 3”). (Pl.’s RJN, Ex. 2.)

· On 5/22/19, Plaintiff filed a motion to dismiss Defendant’s appeal as to Appeal Nos. 1-3. On 7/9/19, the Court of Appeal issued an Order dismissing Appeal Nos. 1-2, on the ground that they were not appealable orders. (Pl.’s RJN, Ex. 3.) On 9/9/19, the Court of Appeal issued its Partial Remittitur, which attached the 7/9/19 order. (Pl.’s RJN, Ex. 4.) In the Court of Appeal’s Partial Remittitur, it stated: “Respondent(s) [Plaintiff] to recover costs on appeal.” (Id.)

· Although the Court of Appeal denied the motion to dismiss as to Order No. 3 on 7/9/19, it dismissed Appeal No. 3 on 12/19/19 pursuant to Defendant’s request. (Pl.’s RJN, Ex. 5.) The Remittitur was issued the same day. (Pl.’s RJN, Ex. 6.) In the Court of Appeal’s Remittitur, it stated: “Respondent to recover costs on appeal.” (Id.)

C. Merits of Motion: Entitlement to Attorney’s Fees on Appeal

Plaintiff moves for attorney’s fees on appeal pursuant to CCP §1033.5(a)(10)(A), Civil Code §1717, and CRC Rules 8.278(d)(2) and 3.1702(c).

CRC Rule 8.278(a)(2) states that the prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. CCP §1033.5(a)(10) states that an allowable cost includes attorney’s fees, which are authorized by: (A) contract; (B) statute; or (C) the law.

1. Civil Code, §1717(a)

Civil Code, §1717(a) states in relevant part:

(a) 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.

Where a , as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

(b)(1) 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. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(2) Where an action has been voluntarily dismissed or dismissed pursuant to a  of the case, there shall be no prevailing party for purposes of this section.

(Civ. Code, §1717(a).)

When a contract or a statute authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at trial and on appeal.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.)

Plaintiff argues that he is entitled to attorney’s fees pursuant to the Sublease at paragraph 11 and the Master Lease at paragraph 31. (Rodriguez Decl., ¶¶4-5, Ex. 7 [Sublease], Ex. 8 [Master Lease]; Abramson Supp. Decl., ¶3.)

The Sublease at paragraph 11 is illegible in both the versions attached in the initial motion and the Supplemental Abramson Declaration. However, sections 8.3 and 84 state that the terms and conditions of the Sublease are subject to the Master Lease and the sublease agrees to assume, perform, and comply with the Master Lease, except where there are direct contradictions in the Sublease and where specifically identified.

The Master Lease states at paragraph 31:

31. Attorneys’ Fees. If any Party or Broker brings an action or proceeding involving the Premises whether found in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claims or defenses. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, Lessor shall be entitled to attorneys’ fees, costs, and expenses incurred in the preparation and service of notices of Default and consultation in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

(Master Lease, ¶31; see version filed with the Abramson Supp. Decl.)

In connection with Appeal Nos. 1-3, the Court of Appeal expressly provided that costs were awardable to Plaintiff. Further, there is a valid agreement for attorney’s fees in connection with this action.

In opposition, Defendant argues that its case in Case No. EC065007 (Secret Recipes, Inc. v. Lopez, et al. for breach of contract and specific performance to obtain possession of the subject property against Rodriguez and other defendants) is still outstanding and thus this motion is premature. However, EC065007 is a separate action that has not been consolidated with this case, such that the entitlement to fees in that action have no bearing on this action.

Rather, the Court finds that the attorney’s fees provision in the Master Lease is sufficiently broad. Unlawful detainer actions may sound in contract and/or tort, and the attorney’s fees provision here sufficiently covers actions in both. (See Daybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1076; see also Beverly Hills Properties v. Marcolino (1990) 221 Cal.App.3d Supp. 7, 12 [quoting North Associates v. Bell

D. Amount of Attorney’s Fees Awarded on Appeal

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award. (Id.) 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. (Id.) 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.) No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.)

Initially, in the moving papers, Plaintiff sought $44,500.00 in attorney’s fees in connection with his defense against Defendant’s appeal. In the Supplemental Abramson Declaration, Plaintiff seeks $44,525.00.

Plaintiff provides the declaration of his counsel, Michael A. Abramson in support of the request:

· Mr. Abramson states that approximately 60 of the 71.53 hours he billed in defending against Defendant’s appeal was spent in preparing the motion to dismiss the appeal. (Abramson Decl., ¶8.) He states that he incurred $38,000.00 for this purpose because this required a detailed review of the Superior Court record for appeal, reviewing Defendant’s opening brief, and researching and drafting the opposition. (Id.) He states that considering the complexity of the issues concerning the appealability of post-judgment discovery orders and relief from default, as well as timeliness issues and the disentitlement doctrine make $44,500.00 sought in appeal reasonable and justified. (Id., ¶¶9-10.)

o In his supplemental declaration, he provides a breakdown of the 58.5 hours incurred per date and the tasks he performed from May 2, 2019 to May 22, 2019. (Abramson Supp. Decl., ¶4.) He seeks $38,025.00 for the time incurred. (Id.)

· Mr. Abramson also states that he incurred $6,500.00 in connection with filing the motion for attorney’s fees because he had to review all relevant client bills, invoices, and billing entries to prepare the memorandum and declaration. (Abramson Decl., ¶11.) He states that he spent approximately 7.5 hours. (Id.)

o In his supplemental declaration, he provides a breakdown of the 7.8 hours incurred from January 12, 2020 to January 28, 2020 to draft this motion for attorney’s fees. He requests a total of $5,070.00. (Abramson Supp. Decl., ¶5.)

· Mr. Abramson states in his supplemental declaration that he will continue to incur fees of at least 2.2 hours for filing fees, notices of continuance, preparing and appearing at the hearing. (Abramson Supp. Decl., ¶6.) He seeks a total of $1,430.00 for this. (Id.)

· Total, based on his supplemental declaration statements, Mr. Abramson seeks $44,525.00 (= $38,025.00 for motion to dismiss appeal + $5,070.00 for attorney’s fees motion + $1,430.00 prep/appearance). (Abramson Supp. Decl., ¶7.)

· Mr. Abramson states that he bills at $650/hour, which he believes is reasonable and consistent with the market rate of attorneys with comparable skill and experience. (Abramson Decl., ¶12.) He states that he has practiced law for over 30 years. (Id.)

The billing rate of $650 per hour is high for the work done on appeal, which included a relatively uncomplicated motion to dismiss. The Court finds that a more reasonable hourly rate for the appeal in this action is $375 per hour.

Next, the Court has reviewed the work performed by Mr. Abramson in preparing the appeal documents on for the motion to dismiss and research thereto. While the 58.5 hours is a bit steep for the work done on appeal, the Court finds that Mr. Abramson has justified the work he performed.

The Court has also reviewed the 7.8 hours Mr. Abramson incurred in drafting and filing the motion for attorney’s fees and finds the hours to be reasonable. Finally, the preparation of the motion, filing fees, and anticipated appearance at the hearing for 2.2 hours is also reasonable.

Employing the lodestar method, the Court calculates reasonable attorney’s fees to be in the amount of $25,687.50. This accounts for a total of 68.5 hours (= 58.5 hours on appeal + 7.8 hours on this motion + 2.2 hours for the hearing), multiplied by an hourly rate of $375/hour.

DISCUSSION RE MOTION FOR POST-JUDGMENT ATTORNEY’S FEES

A. Request for Judicial Notice

Plaintiff requests judicial notice of: (1) the judgment dated November 18, 2015 filed in this case; (2)-(4) Plaintiff’s motion to compel answer to post-judgment SROGs dated 10/12/18. Plaintiff’s notice of Defendant’s non-opposition to the motion dated 11/15/18, and the notice of ruling on the motion dated 11/19/18; (5)-(6) Defendant’s motion for order granting relief from the 11/16/13 order on Plaintiff’s motion to compel dated 12/12/18 and the Court’s 1/11/19 order denying the motion; (7) notice of appeal dated 3/7/19; (8)-(11) OSC re contempt documents filed in this action; (12) defense counsel’s declaration dated 4/3/19 in support of Defendant’s compliant with 11/16/18 order; (13) 4/15/19 order re motion to vacate and correct 12/14/18 order; (14) the Appellate Court’s Order on Plaintiff’s Motion to Dismiss Appeal dated 7/9/19 (Court of Appeal Case No. B296245); (15) the Partial Remittitur dated 9/9/19; (16)-(19) Plaintiff’s motion to compel Defendant’s answer to RPD dated 12/24/18, Defendant’s opposition dated 1/7/19, Plaintiff’s reply dated 1/11/19, and the Court’s 2/8/19 order granting the motion; (20)-(21) OSC re contempt documents; (22)-(23) Plaintiff’s motion for sanctions against Defendant dated 11/26/19 and the Court’s 1/24/20 order granting the motion; (24)-(25) Defendant’s motion to vacate the judgment dated 5/16/16 and the Court’s 7/8/16 order denying the motion; (26) Defendant’s second motion to vacate judgment dated 12/12/18; (27) the Appellate Court’s order on Plaintiff’s Motion to Dismiss Appeal dated 12/19/19; and (28) the Remittitur dated 12/19/19. The request is granted pursuant to Evidence Code, §452(d).

B. Merits of Motion: Entitlement to Post-Judgment Attorney’s Fees

Plaintiff argues that he incurred post-judgment expenses in connection with his motions to compel Defendant’s further responses to post-judgment SROG and RPD, to defend against Defendant’s motions to vacate the judgment, and to conduct the judgment debtor examination of Hovik Grigorian and Andreh Koygani (each 50% shareholders of Defendant).

Plaintiff argues he is entitled to attorney’s fees pursuant to the Sublease and Master Lease because he was the prevailing party on the contract. He also argues that this Court may award additional fees for post-trial proceedings. (Mot. at pp.7-8.)

As these efforts were made in connection with the lease, the same analysis discussed regarding the entitlement to fees applies here.

C. Amount of Attorney’s Fees

Plaintiff seeks post-judgment attorney’s fees in the amount of $63,620.00. In his declaration in support of the reply brief, Mr. Abramson states that in recognition of the 2-year limitations period on motions for post-judgment attorney’s fees set forth in CCP §685.080(a), he and his firm have adjusted their request for post-judgment attorney’s fees to exclude fees incurred prior to May 4, 2018, such that the total from May 4, 2018 to the present is $63,020.00. (Abramson Decl. re Reply, ¶4.)

Plaintiff provides the declaration of his counsel, Michael A. Abramson, in support of the request:

· Mr. Abramson details the post-judgment work that he performed in this action after obtaining the judgment on 11/18/15. (See Abramson Decl., ¶¶3-20.) He states that a majority of the hours billed in these proceedings were spent in preparing and seeking to enforce Plaintiff’s post-judgment SROGs and RPDs, defending against Defendant’s successive and unsuccessful motions to vacate the judgment, conducting 2 judgment debtor examinations, and ex parte applications for an OSC re contempt. (Id., ¶21.)

· Mr. Abramson also states that the fees for this motion for attorney’s fees amount to $3,900.00 because he had to review all relevant client bills, invoices, and billing entries to prepare the memorandum and declaration. (Abramson Decl., ¶26.)

· Mr. Abramson states that he bills at $650/hour, which he believes is reasonable and consistent with the market rate of attorneys with comparable skill and experience. (Abramson Decl., ¶27.) He states that he has practiced law for over 30 years. (Id.)

· Mr. Abramson states that work done prior to May 4, 2018, involved the preparation and service of post-judgment discovery in December 2017, where he billed $600. Thus, Mr. Abramson adjusted the requested amount of fees from $63,620.00 to $63,020.00. (Abramson Decl. re Reply, ¶5.)

Plaintiff and his counsel have not provided billing records and/or invoices for the Court’s review. Mr. Abramson’s declaration also does not include a breakdown of the time and hours spent on the post-judgment matters, such that the Court is unable to make a lodestar determination, or determine reasonableness or necessity of the actions taken. Though Plaintiff argues that the amount of hours billed is reasonable, Plaintiff fails to inform the Court how much time counsel spent on each of the motions, debtor examinations, etc.

As such, the hearing on the motion for post-judgment attorney’s fees will be continued so that Plaintiff’s counsel may file a supplemental declaration and billing records detailing the hours spent on each activity so that the Court may perform a lodestar analysis.

CONCLUSION AND ORDER

Plaintiff’s motion for attorney’s fees on appeal is granted in the amount of $25,687.50.

Plaintiff’s motion for post-judgment attorney’s fees is continued to October 16, 2020. The supplemental declaration of counsel with billing records shall be filed with the Court by October 5, 2020. Plaintiff should also provide a courtesy copy of this document by the end of the business day on October 5, 2020. No further briefing, arguments, or additional requests for fees in connection with this motion shall be permitted.

Plaintiff shall provide notice of this order.

Case Number: EC064549    Hearing Date: March 13, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

luis rodriguez,

Plaintiff,

v.

Secret recipes, inc.,

Defendant.

Case No.: EC064549

Related with: EC065007

Hearing Date: March 13, 2020

[TENTATIVE] order RE:

motion for attorneys’ fees on appeal

BACKGROUND

Plaintiff Luis Rodriguez (“Plaintiff”) commenced this unlawful detainer action against Defendant Secret Recipes, Inc. (“Defendant”). This action proceeded to a bench trial on November 6, 2015. Defendant did not appear. The Court then entered judgment in favor of Plaintiff on November 18, 2015.

On January 28, 2020, Plaintiff filed this instant motion for attorney’s fees on appeal. On March 2, 2020, Defendant filed an opposition brief.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of: (1) the judgment dated November 18, 2015 filed in this case; (2) the Notice of Appeal dated March 7, 2019 filed in this case; (3) the Appellate Court’s Order on Plaintiff’s Motion to Dismiss Appeal dated July 9, 2019 in LASC Case No. EC064549 and the Court of Appeal Case No. B296245; (4) the Partial Remittitur dated September 9, 2019 in both cases; (5) the Appellate Court’s order on Plaintiff’s Motion to Dismiss Appeal dated December 19, 2019 in both cases; and (6) the Remittitur dated December 19, 2019 in both cases. The request is granted pursuant to Evidence Code, §452(d).

DISCUSSION

A. Relevant Background

By way of background, the Court provides this relevant timeline of events:

· On 11/16/18, the Court granted Plaintiff’s motion to compel further responses to post-judgment SROGs. Defendant then filed a motion for relief from order, which the Court denied on 1/11/19. Defendant appealed the Court’s 1/11/19 order (“Appeal No. 1”). (Pl.’s RJN, Ex. 2.)

· On 2/8/19, the Court granted Plaintiff’s motion to compel Defendant’s further responses to the post-judgment RPD, set 2. On 3/7/19, Defendant filed a Notice of Appeal on this order (“Appeal No. 2”). (Pl.’s RJN, Ex. 2.)

· On 5/16/16, Defendant filed a motion to vacate default judgment, which the Court denied on 7/8/16. On 12/12/18, Defendant filed a second motion to vacate default judgment, which the Court denied on 2/8/19. Defendant filed a Notice of Appeal on this order (“Appeal No. 3”). (Pl.’s RJN, Ex. 2.)

· On 5/22/19, Plaintiff filed a motion to dismiss Defendant’s appeal as to Appeal Nos. 1-3. On 7/9/19, the Court of Appeal issued an Order dismissing Appeal Nos. 1-2, on the ground that they were not appealable orders. (Pl.’s RJN, Ex. 3.) On 9/9/19, the Court of Appeal issued its Partial Remittitur, which attached the 7/9/19 order. (Pl.’s RJN, Ex. 4.) In the Court of Appeal’s Partial Remittitur, it stated: “Respondent(s) [Plaintiff] to recover costs on appeal.” (Id.)

· Although the Court of Appeal denied the motion to dismiss as to Order No. 3 on 7/9/19, it dismissed Appeal No. 3 on 12/19/19 pursuant to Defendant’s request. (Pl.’s RJN, Ex. 5.) The Remittitur was issued the same day. (Pl.’s RJN, Ex. 6.) In the Court of Appeal’s Remittitur, it stated: “Respondent to recover costs on appeal.” (Id.)

B. Merits of Motion: Entitlement to Attorney’s Fees

Plaintiff moves for attorney’s fees on appeal pursuant to CCP §1033.5(a)(10)(A), Civil Code §1717, and CRC Rules 8.278(d)(2) and 3.1702(c).

CRC Rule 8.278(a)(2) states that the prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. CCP §1033.5(a)(10) states that an allowable cost includes attorney’s fees, which are authorized by: (A) contract; (B) statute; or (C) the law.

1. Civil Code, §1717(a)

Civil Code, §1717(a) states in relevant part:

(a) 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.

Where a , as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

(b)(1) 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. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(2) Where an action has been voluntarily dismissed or dismissed pursuant to a  of the case, there shall be no prevailing party for purposes of this section.

(Civ. Code, §1717(a).)

Plaintiff argues that he is entitled to attorney’s fees pursuant to the Sublease at paragraph 11 and the Master Lease at paragraph 31. (Rodriguez Decl., ¶¶4-5, Ex. 7 [Sublease], Ex. 8 [Master Lease].) The Sublease at paragraph 11 is illegible. The Master Lease is also somewhat illegible, such that the Court is only able to discern the following language:

31. Attorneys’ Fees. If any Party or Broker brings an action or proceeding involving the Premises whether found in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall eb entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to [illegible] or judgment. The term, “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or [illegible] the relief sought, as the [illegible], whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claims or defenses. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, Lessor shall be entitled to attorneys’ fees, costs, and expenses incurred in the preparation and service of notices of Default and consultation in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

(Master Lease, ¶31.)

The terms of the Sublease and Master Lease provided by Plaintiff are illegible. Thus, the Court will continue the motion so that Plaintiff can provide legible copies of the documents for the Court’s review.

C. Amount of Attorney’s Fees Awarded on Appeal

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award. (Id.) 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. (Id.) 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.) No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.)

Plaintiff seeks $44,500.00 in attorney’s fees in connection with his defense against Defendant’s appeal. Plaintiff provides the declaration of his counsel, Michael A. Abramson:

· Mr. Abramson states that approximately 60 of the 71.53 hours he billed in defending against Defendant’s appeal was spent in preparing the motion to dismiss the appeal. (Abramson Decl., ¶8.) He states that he incurred $38,000.00 for this purpose because this required a detailed review of the Superior Court record for appeal, reviewing Defendant’s opening brief, and researching and drafting the opposition. (Id.) He states that considering the complexity of the issues concerning the appealability of post-judgment discovery orders and relief from default, as well as timeliness issues and the disentitlement doctrine make $44,500.00 sought in appeal reasonable and justified. (Id., ¶¶9-10.)

· Mr. Abramson also states that he incurred $6,500.00 in connection with filing the motion for attorney’s fees because he had to review all relevant client bills, invoices, and billing entries to prepare the memorandum and declaration. (Abramson Decl., ¶11.) He states that he spent approximately 7.5 hours. (Id.)

· Mr. Abramson states that he bills at $650/hour, which he believes is reasonable and consistent with the market rate of attorneys with comparable skill and experience. (Abramson Decl., ¶12.) He states that he has practiced law for over 30 years. (Id.)

The Court will continue the motion so that Plaintiff’s counsel may provide billing records and/or invoices for the Court’s review.

CONCLUSION AND ORDER

Plaintiff’s motion for attorney’s fees on appeal is continued to March 27, 2020 at 8:30 a.m. Plaintiff is ordered to file a supplemental declaration of counsel that includes legible copies of the Sublease and the Master Lease, as well as Plaintiff’s counsel’s billing records/invoices. The supplemental declaration shall be filed by March 20, 2020 and may not include any additional arguments.

Plaintiff shall provide notice of this order.

Case Number: EC064549    Hearing Date: January 24, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

luis rodriguez,

Plaintiff,

v.

Secret recipes, inc.,

Defendant.

Case No.: EC064549

Related with: EC065007

Hearing Date: January 24, 2020

[TENTATIVE] order RE:

motion for monetary sanctions in the amount of $7,920.00 against secret recipes, inc. for misuse of the discovery process

BACKGROUND

Plaintiff Luis Rodriguez (“Plaintiff”) commenced this unlawful detainer action against Defendant Secret Recipes, Inc. (“Defendant”). This action proceeded to a bench trial on November 6, 2015. Defendant did not appear. The Court then entered judgment in favor of Plaintiff on November 18, 2015.

On November 26, 2019, Plaintiff filed a motion to sanctions against Defendant for misuse of the discovery process in the amount of $7,920.00. On January 10, 2020, Defendant filed an opposition brief. On January 16, 2020, Plaintiff filed a reply brief.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of: (1) the Court’s February 8, 2019 order regarding Plaintiff’s motion to compel Defendant’s responses to post-judgment requests to produce documents; (2) the Court of Appeal’s order on Plaintiff’s motion to dismiss the appeal dated July 9, 2019 and partial remittitur dated September 9, 2019; (3) the Court’s April 15, 2019 order on Defendant’s motion to vacate the December 14, 2018 order; and (4) the Court’s August 16, 2019 order. The request is granted pursuant to Evidence Code, §452(d).

DISCUSSION

By way of background, the Court provides this relevant timeline of events:

· On October 17, 2018, Plaintiff served post-judgment RPD, set two, on Defendant. On November 21, 2018, Defendant served objections to each request. On December 24, 2018, Plaintiff filed a motion to compel further responses to the RPD.

· On February 8, 2019, the Court granted Plaintiff’s motion to compel Defendant’s further responses to the post-judgment RPD, set two. Defendant was ordered to produce responsive documents in its possession, custody, and control without objection within 20 days of notice of the order. Plaintiff mailed notice of the ruling on February 8, 2019.

· On March 7, 2019, Defendant filed a Notice of Appeal of the February 8, 2019 order (among other orders).

· On August 16, 2019, the Court issued a tentative order on Plaintiff’s Motion to Set an OSC re Contempt for Defendant and Judgment Debtor’s failure to comply with the Court’s February 8, 2019 order. The tentative did not become the final order of the Court. The Court’s minute order reflects that the OSC was continued to September 5, 2019.

· On September 5, 2019, the OSC re Contempt was called for hearing. Upon Plaintiff’s request, the OSC was withdrawn without prejudice.

· On September 9, 2019, the Court of Appeal issued a Partial Remittitur with its attached Order dated July 9, 2019. The Court of Appeal granted Plaintiff’s motion to dismiss the appeal with respect to Orders 1 and 2, and denied the motion as to Order 3. Defendant had appealed 3 separate post judgment orders: (1) January 11, 2019 order denying Defendant’s motion for relief from an order compelling responses to interrogatories (Order 1); (2) February 8, 2019 order granting Plaintiff’s motion to compel further responses to the requests for production of documents (Order 2); and (3) February 8, 2019 order denying Defendant’s motion to set aside the default judgment on equitable grounds (Order 3).

A. August 16, 2019 Tentative Order

Plaintiff argues that monetary sanctions should be imposed against Defendant because the Court invited Plaintiff to seek sanctions through motion practice against Defendant in its August 16, 2019 tentative order regarding Plaintiff’s motion to set OSC re contempt for Defendant and Judgment Debtor’s failure to comply with the Court’s order of February 8, 2019. In its tentative order, the Court stated that “Defendant’s conduct may be subject to monetary sanctions as discovery abuse, and if, proper discovery is not made promptly, the Court will consider the cost of this motion in connection with such sanctions.” (Pl.’s RJN, Ex. 4 at p.4.)

However, the Court’s August 16, 2019 tentative order did not become the final order of the Court. Rather, the August 16, 2019 minute order reflects that the OSC hearing was continued to September 5, 2019 and that Plaintiff withdrew the OSC on September 5, 2019. As such, this will not be aground upon which the Court will grant the motion to impose sanctions against Defendant.

B. Monetary Sanctions under CCP §2023.030

CCP §2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Misuses of the discovery process include but are not limited to failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery. (CCP §2023.010(d), (g).)

Plaintiff argues that Defendant has failed to comply with the Court’s February 18, 2019 order to provide responses to the RPD, set two, requests.

Based on the moving papers, it does not appear that Defendant has provided any further responses in compliance with the Court’s February 8, 2019 order. The Court of Appeals dismissed the appeal from the Order on September 9, 2019. There is no further excuse for the Defendant’s failure to comply.

The Court awards the sanctions in the amount of $5,000. Hopefully this will be sufficient to motivate compliance.

CONCLUSION AND ORDER

Plaintiff’s motion for monetary sanctions against Defendant is granted in the amount of $5,000. Defendant and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $5,000 to Plaintiff, by and through counsel, within twenty (20) days of notice of this order.

Plaintiff shall provide notice of this order.

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