On 03/27/2015 MARK BRAWERMAN filed a Contract - Professional Negligence lawsuit against LOEB LOEB LLP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ALLAN J. GOODMAN and JOSEPH R. KALIN. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ALLAN J. GOODMAN
JOSEPH R. KALIN
TURTLE MOUNTAIN INC.
DOES 1 TO 50
LOEB & LOEB LLP
LAW OFFICE OF STEVEN R. FRIEDMAN
MANGELS ROBERT E. ESQ.
4/1/2015: CIVIL DEPOSIT
4/1/2015: NOTICE OF CASE MANAGEMENT CONFERENCE
6/4/2015: PROOF OF SERVICE SUMMONS
7/8/2015: NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION AND STAY ACTION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF CHRISTOPHER KELLY IN SUPPORT
7/8/2015: CASE MANAGEMENT STATEMENT
7/8/2015: NOTICE OF INTENT TO APPEAR TELEPHONICALLY AT CASE MANAGEMENT CONFERENCE
7/20/2015: CASE MANAGEMENT STATEMENT
7/23/2015: Minute Order
11/2/2015: PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO COMPEL ARBITRATION
11/6/2015: DEFENDANTS' REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY ACTION [CCP ? 1281.2, 1281.4]
11/16/2015: Minute Order
11/16/2015: Minute Order
12/24/2015: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
1/14/2016: NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE
6/1/2016: DEFENDANTS' REPORT RE STATUS OF ARBITRATION PROCEEDINGS
6/13/2016: Minute Order
7/11/2016: Minute Order
at 08:30 AM in Department 32; (OSC-Failure to Appear; Order of Dismissal) -Read MoreRead Less
Minute OrderRead MoreRead Less
Opposition Document; Filed by Mark Brawerman (Plaintiff)Read MoreRead Less
PLAINTIFFS' OPPOSITION TO OSC RE: DISMISSAL. DECLARATION OF STEVEN R. FRIEDMAN AND EXHIBITS IN SUPPORT.Read MoreRead Less
at 08:30 AM in Department 32; Non-Appearance Case Review (Non-Appearance (Case Review); Off Calendar) -Read MoreRead Less
Minute OrderRead MoreRead Less
DEFENDANTS' REPORT RE STATUS OF ARBITRATION PROCEEDINGSRead MoreRead Less
Miscellaneous-Other; Filed by Loeb & Loeb LLP (Defendant)Read MoreRead Less
NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICERead MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Mark Brawerman (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Plaintiff/PetitionerRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Plaintiff/PetitionerRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Mark Brawerman (Plaintiff); Turtle Mountain, Inc. (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Case Number: BC576947 Hearing Date: August 05, 2020 Dept: 32
mark brawerman, et al.
loeb & loeb llp, et al.
Case No.: BC576947
Hearing Date: August 5, 2020
[TENTATIVE] order RE:
motion for attorney fees
Plaintiffs Mark Brawerman (Brawerman) and Turtle Mountain, Inc. (TMI) (collectively, Plaintiffs) commenced this legal malpractice action against Defendants Loeb & Loeb LLP (Loeb) and Christopher Kelly (Kelly) (collectively, Defendants) on March 27, 2015. Plaintiffs asserted causes of action for (1) professional negligence and (2) breach of fiduciary duty.
On November 16, 2015, the Court granted Defendants’ motion to compel arbitration and stayed the case pending the completion of arbitration.
On November 2, 2019, Plaintiffs petitioned to vacate the arbitration award.
On January 3, 2020, the Court denied Plaintiffs’ petition.
Judgment was entered on March 3, 2020. The judgment states that Plaintiffs shall recover the total amount of $233,008.02 from Defendants. The judgment also states that Defendants are “the prevailing parties in the post-arbitration judicial proceedings” and “shall recover from Plaintiffs their costs and attorneys’ fees in amounts to be determined in accordance with the procedures specified in the [CCP] and the [CRC].”
“The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” (CCP § 1293.2.)
The “judicial proceedings” covered by section 1293.2 include petitions to confirm or vacate an arbitration award, and the “costs” awardable under this statute include attorney fees when authorized by contract. (Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) Accordingly, section 1293.2 mandates that a trial court award attorney fees to a prevailing parties in a petition to vacate an arbitration award when attorney fees are authorized by contract. (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 877-78.)
“Unless a statute provides otherwise, it is presumed the Legislature intended that the amount of a statutory award of reasonable attorney fees should be determined by application of the lodestar adjustment method.” (People v. Millard (2009) 175 Cal.App.4th 7, 32 (citing Ketchum v. Moses (2001) 24 Cal.4th 1122).) “Under the lodestar method, the trial court must first determine the lodestar figure — the reasonable hours spent multiplied by the reasonable hourly rate — based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.” (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744, 751.) After determining the lodestar, the trial court may adjust the lodestar figure based on numerous factors. (Ibid.)
Defendants Loeb and Kelly move for an order awarding Loeb $107,680.50 in attorney fees as the prevailing party in post-arbitration proceedings. Plaintiffs oppose.
A. Entitlement to Fees
Defendants are the prevailing parties in these post-arbitration proceedings. Defendants successfully opposed Plaintiffs’ petition to vacate the arbitration award, and the resulting judgment designates Defendants as “the prevailing parties in the post-arbitration judicial proceedings.”
The parties’ written engagement agreement provides for recovery of attorney fees incurred in connection with arbitration or litigation between the parties: “By executing this letter you agree that if any dispute between you and the firm arises out of this Agreement, our relationship with you or our performance of any current or future legal services, whether those services are the subject of this particular engagement letter or otherwise, that dispute will be resolved solely by binding arbitration…. [¶] The prevailing party in any such arbitration or litigation will be entitled to recover all attorneys’ fees (including, in the event we are the prevailing party, the value of the time of all attorneys in our firm who perform legal services in any such arbitration or litigation, computed at their normal billing rates), all experts’ fees and expenses and all costs (whether or not such costs are recoverable pursuant to the [CCP]) which may be incurred in connection with either obtaining or collecting any judgment and/or arbitration award, in addition to any other relief to which that party may be entitled.” (Mangels Decl. Ex. 1.)
Defendants are therefore entitled to attorney fees in these post-arbitration proceedings.
B. Reasonableness of Fees
1. Reasonableness of Hourly Rates
Three attorneys represented Defendants in these post-arbitration proceedings and seek fees in this motion: (1) Robert Mangels (Mangels), (2) Dan P. Sedor (Sedor), and (3) Andrew I. Shadoff (Shadoff). Defendants claim that Mangels’ hourly rate was $975 in 2019 and $995 in 2020, Sedor’s hourly rate was $775 in 2019 and $795 in 2020, and Shadoff’s hourly rate was $535 in 2019 and $565 in 2020.
Plaintiffs argue, and the Court agrees, that these hourly rates are unreasonable. Relying on its own knowledge and familiarity with the legal market, the Court determines that the reasonable hourly rates of Defendants’ attorneys are (1) $850 for Mangels, (2) $700 for Sedor, and (3) $475 for Shadoff.
2. Reasonableness of Number of Hours Billed
The total number of billable hours claimed by Defendants’ attorneys is 138.7 hours. Mangels claims 41.4 billable hours, Sedor claims 62.4 billable hours, and Shadoff claims 34.9 billable hours.
As a threshold matter, Plaintiffs contend that Defendants can recover attorney fees only for hours in connection with opposing the petition to vacate. The Court disagrees. Case law has construed section 1293.2 as authorizing recovery of attorney fees in post-arbitration judicial proceedings generally, not just for law and motion work. (See Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 261 (“The matter must be remanded to the superior court to award Nicastro reasonable attorney fees and costs incurred in post-arbitration judicial proceedings.”).) The Court concludes that section 1293.2 authorizes recovery of attorney fees for any work reasonably connected with the petition to vacate the arbitration award and entry of judgment denying that petition.
Plaintiffs’ primary objection to the billable hours is that the majority of Defendants’ work on the opposition to the petition to vacate involved the “recycling and double billing of their” opposition to Plaintiffs’ motion to remand brought during the arbitration proceeding. (Opp. at 5-7, 10-13, Ex. 1.)
The Court finds this argument unpersuasive. As Defendants note (Reply at 4), the purported “recycling” is largely attributable to natural overlap of the motions’ factual background sections and analysis of the Birbrower case. Loeb should not be penalized for saving time by reusing parts of its prior opposition. More important, the motions differed in material respects. (If they did not differ, then Plaintiffs presumably would have filed identical briefs in support of its motion to remand and motion to vacate.) The motion to remand sought to invalidate the engagement agreement primarily on the basis of the Birbrower case in order to vindicate Plaintiffs’ right to a jury trial. (Mangels Supp. Decl. Ex. 17, pp. 9-12.) A considerable portion of the motion to remand was also devoted to the proposal that the arbitrator sit as a temporary judge of the Los Angeles Superior Court, empanel a jury, preside over the jury trial, and issue a judgment in this capacity. (Id. at 16-24.) Conversely, the motion to vacate sought to invalidate the engagement agreement primarily on the basis of the Sheppard case. (Mangels Supp. Decl. Ex. 18, pp. 7-10.) The motion to vacate also advanced new arguments including (1) the engagement agreement was unenforceable because of illegal consideration and (2) the arbitrator’s award of interest violated AAA rules. (Mangels Supp. Decl. Ex. 18, pp. 14-15.) Because of the motions advanced different arguments, the motions cited few of the same cases. As Defendants note, the motion to vacate cited over 30 cases, very few of which were cited in the motion to remand. Finally, there is merit to Defendants’ general point that defeating the motion to vacate was vitally important and required careful review and analysis. If Defendants failed to defeat the motion to vacate, the Court would have vacated the arbitration award, remanded the decision back to the arbitrator or required the parties to litigate the case, and likely awarded attorney fees to Plaintiffs for prevailing on their motion to vacate. These high stakes obligated Defendants to review their opposition brief to the motion to remand, research the law further, sharpen their old arguments, and (obviously) respond to new arguments raised in the motion to vacate. Given the practical considerations of opposing the motion to vacate and the different issues raised in the two motions, the Court discerns no reasonable basis for discounting Defendants’ billable hours based on this argument.
Plaintiffs argue that Defendants should be judicially estopped from arguing that their opposition to the motion to vacate is substantially different from their opposition to the motion to remand. Plaintiffs point to Defendants’ statement in their opposition to the motion to vacate that the “Court should rule the same way” as the arbitrator did in denying Plaintiffs’ motion to remand. At the hearing on the motion to vacate, Mangels also represented: “This issue was raised to the Arbitrator. Judge Steele raised in 10 days before the arbitration. Judge Steele had a hearing. Judge Steele entered a detailed, reasoned opinion … The Arbitrator considered it. He exercises equitable powers. He considered. He ruled on the case …. So I submit, clearly, there’s no case law suggesting that in this fact situation, the Arbitrator was incorrect or this would be incorrect in upholding this agreement.” (Friedman Decl. Ex. 6.)
This argument fails because Plaintiffs have failed to substantiate at least two elements of the judicial estoppel doctrine. The doctrine of judicial estoppel applies where (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1228-29.)
Defendants’ positions were not totally inconsistent. Defendants argued in opposition to the motion to vacate and at the motion hearing that the arbitrator decided these same issues (not the same arguments) and that the Court should rule the same way. Defendants did not represent that they spent no time opposing the motion to vacate or that the motion to vacate required no supplemental research and analysis to ensure a favorable outcome. Conversely, Defendants claim in this motion for attorney fees that the hours spent drafting an opposition to the motion to vacate were reasonable and non-duplicative because the motion to vacate made new arguments and cited new case law.
Defendants also were not successful in asserting “the first position.” That is, the Court did not accept Defendants’ invitation to rule in the same way as the arbitrator simply because the arbitrator had already analyzed some of the issues raised in the petition. The Court issued a 32-page decision analyzing all of the material cases cited by Plaintiffs. The Court also expressly noted: “In making the findings and conclusions in this Order, the Court has evaluated, considered, and weighed all the evidence submitted by the parties in connection with this motion. The Court has reached its own findings and conclusions as to the legality of the Retainer Agreement and the enforceability of the provision to arbitrate.” (Statement of Decision, p. 23.)
Plaintiffs contend that Defendants’ billable hours should be reduced because Defendants billed an unreasonable number of hours on internal communications. Plaintiffs’ counsel states that 57.3 of the 138.7 billable hours sought relate to calls, teleconferences, emails, and other communications with Defendants and defense counsel. (Friedman Decl. ¶ 29.) This argument is unfounded. A closer inspection of these time entries shows that they involve communications with clients and opposing counsel and that most of the entries involve several activities, only some of which involve internal correspondence. (See Mangels Decl. Exs. 10-16.) The Court shall not reduce fees on this basis.
Plaintiffs contend that Defendants have improperly billed 8.6 hours for work performed three months before Plaintiffs filed their petition to vacate. The invoices show that this work involved reviewing the arbitrator’s final award and performing research on enforcing the award. (Mangels Decl. Ex. 10.) The Court concludes that this work is reasonably connected with these post-arbitration judicial proceedings and is therefore compensable.
Plaintiffs contend that Defendants have improperly billed 3.2 hours for research on “appeal issues.” The invoices actually show that Defendants billed 3.2 hours for (1) attending a hearing on the motion to vacate, (2) drafting follow-up emails, and (3) researching “appeal issues.” (Mangels Decl. Ex. 13.) The Court concludes that some research on appeal issues is reasonably connected to these post-arbitration judicial proceedings because an appeal can be taken after such proceedings. The Court finds this small amount of time spent on this research is compensable.
Plaintiffs contend that Shadoff block-billed 4.6 hours to draft the Kelly Declaration in opposition to the motion to vacate even though the declaration was identical to the one submitted in opposition to the motion to remand. Plaintiffs are incorrect. Shadoff billed 4.6 hours to draft / review (1) the opposition brief to the motion to vacate, (2) the Kelly Declaration, and (3) emails with clients. (Mangels Decl. Ex. 13.) The Court finds this time entry acceptable.
Plaintiffs contend that the invoices are “riddled with fraudulent redundancies.” Plaintiffs point to two billing items for review of the judgment and “emails regarding same.” Plaintiffs also point to Shadoff’s billing item for drafting a memo and Mangels’ billing item for review of the memo. The Court sees no redundancies. Reviewing the judgment and objections to the proposed statement of decision can be time-intensive tasks which require several hours of work. These billing items reflect this reality.
Plaintiffs have not substantiated a ground to reduce Defendants’ billable hours.
Defendants’ motion for attorney fees is granted in the total amount of $94,972.50.
 Defendants’ objections to the Friedman Declaration are sustained. The Court finds the objected-to portions of the Friedman Declaration to be irrelevant. Defendants’ objections to the Kehr Declaration are also sustained. The Court shall employ its own knowledge and familiarity with the legal market to determine the reasonableness of (1) the hourly rates charged and (2) the number of hours billed.
 In reply, Defendants reduced their request for attorney fees by $565 because Defendants inadvertently included a billing entry for time spent on settlement. (Reply at 12-13.)
 Plaintiffs’ opposition is 15 pages long. The opposition brief uses smaller font, reduced line spacing, and an argumentative “Explanation of Exhibit 1” to circumvent the CRC requirements on page limits. Furthermore, the opposition brief is, as Defendants note, “heavy on invective and personal attacks.” (See, e.g., Opp. at 4 (accusing defense counsel of extorting opposing counsel).) The Court admonishes Plaintiffs for these violations of court rules and unprofessional behavior.
 Mangels: $850 hourly rate x 41.4 billable hours = $35,190
Sedor: $700 hourly rate x 62.4 billable hours = $43,680
Shadoff: $475 hourly rate x (34.9 billable hours – 1 hour for settlement time) = $16,102.50
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