POONSOOK BRAINANGKUL VS SELECT PORTFOLIO SERVICING, INC.

Tentative Rulings

Case Number: EC065616    Hearing Date: April 23, 2021    Dept: D

TENTATIVE RULING

Calendar: 13

Date: 4/23/2021

Case No. EC 065616

Case Name: Brainangkul v. Select Portfolio Servicing, Inc., et al.

MOTION TO TAX COSTS

Moving Party: Defendants Select Portfolio Servicing, Inc. and The Bank of

New York Mellon

Responding Party: Plaintiff Poonsook Brainangkul

RELIEF REQUESTED:

Order striking and taxing costs claimed in Plaintiff’s Memorandum of Costs dated December 31, 2020

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Poonsook Brainangkul alleges that she is the owner of real property in Glendale where she resides as her principal residence. Plaintiff alleges that in July 2015, she submitted a loan modification application to defendant Select Portfolio Servicing, and was approved for a trial period plan, pursuant to which she would make three timely payments and thereafter her loan would be permanently modified. Plaintiff made all three payments, due from October 2015 through December 2015 on time. Plaintiff was provided a permanent modification agreement which she signed and returned to Select Portfolio. Plaintiff made the payments in January and February, which were accepted by Select Portfolio, but the March 2016 payment, received by Select Portfolio was returned, with indication that plaintiff had not returned the permanent loan modification. Plaintiff submitted the tracking number and assured Select Portfolio she had returned a signed permanent modification agreement, but Select Portfolio refused to permanently modify the loan and initiated foreclosure.

Select Portfolio invited plaintiff to submit another loan modification application, and in an effort to save her home, plaintiff submitted the application. Plaintiff alleges that during the second loan modification process, Select Portfolio constantly mishandled her documents, losing some and requesting resubmission, and making inquiry concerning whether submitted paystubs reflected regular or seasonal income, to which plaintiff responded, and then denying the loan modification because plaintiff had not sent in paystubs.

On September 23, 2016, plaintiff spoke with her relationship manager for Select Portfolio, who recommended she appeal the decision. Plaintiff submitted the documents to appeal the decision that day, and on September 26, 2016 the relationship manager confirmed she had received the appeal and would submit it for review.

Plaintiff alleges that she called Select Portfolio or defendant The Wolf Firm every day to check on the status of the appeal, which they informed her was still pending. On October 4, 2016, the Wolf Firm conducted a trustee’s sale, in which the property was sold to Volantis, an experienced foreclosure sale buyer.

The operative complaint alleges that on October 11, 2016, plaintiff’s counsel provided ex parte notice to Volantis of its intent to seek a temporary restraining order enjoining Volantis from recording a TDUS pursuant to plaintiff’s claims against defendants. On October 12, 2016, at 8:30 a.m., plaintiff sought the TRO, but while plaintiff awaited the court to hear the matter, Volantis recorded the TDUS at 8:52 a.m.

The file shows that on February 9, 2018, the court heard a motion for summary judgment, or in the alternative summary adjudication, brought by defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon. The motion for summary adjudication was granted as to the third cause of action for breach of implied covenant of good faith and fair dealing. The motion was otherwise denied.

On January 17, 2019, the court entered a Judgment on Stipulation submitted by plaintiff Brainangkul and defendants Select Portfolio Servicing and The Bank of New York Mellon, entering judgment in favor of Plaintiff, declaring that plaintiff is the owner and title holder of the subject property, that BONY holds the loan encumbering the property, and that SPS is the servicer of the loan. The judgment provides that once plaintiff’s loan was modified, and the default cured, defendants lacked the power to sell the property under the power of sale in the DOT because there was no default to enforce and set aside the trustee’s sale of October 4, 2016 as void. The judgment states:

“7. The foreclosure sale shall be set aside and Volantis Global shall be entitled to a return of the sale proceeds of $502,000.00, and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

Plaintiff then filed a motion for attorney’s fees, which was originally scheduled to be heard on April 26, 2019. On that date, the court also heard a motion brought by Volantis Global to vacate the Judgment on Stipulation, arguing the court was not authorized to quiet title as to Volantis and the party to which the property has since been transferred, Half Life, based on the stipulation of plaintiff and the bank defendants, without including Volantis or conducting a properly noticed evidentiary hearing in open court.

The court heard the motion to set aside the judgment and set a non-jury trial on the issue of title and ruled that this attorney fee motion was to be set and heard after the trial was conducted.

The trial was conducted on June 19, 2019, and continued to July 24, 2019, and again to July 26, 2019. The court announced it oral statement of decision, finding that plaintiff prevails on the quiet title action as to causes of action Nos. 5, 6 and 7 of the Verified Second Amended Complaint, and cross-defendant prevails as to Volantis’ Second Amended Cross-Complaint for Declaratory Relief and to Quiet Title

On October 23, 2019, the court signed and filed its Judgment on Stipulation, finding that plaintiff owns the property subject to a loan held by BONY and serviced by SPS, the foreclosure sale of October 4, 2016 was void because defendants lacked the power of sale as there was no default on which the sale could be based, so the foreclosure sale was set aside as void. Judgment was entered in favor of plaintiff, with plaintiff and defendants to bear their own costs. The judgment states, “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Judgment on Stipulation, p. 5:8-9]. A Notice of Entry of Judgment was filed and served the same date.

On October 28, 2019, plaintiff filed a Notice of Lodging and Reinstating Plaintiff’s Attorney Fee Motion, with a hearing date of December 13, 2019.

On December 4, 2019, the court heard an ex parte application filed on behalf of defendant SPS and the Bank of New York Mellon, as Trustee, to continue the hearing on the motion for attorney fees, which was granted. The motion was continued several times while the Volantis appeal was pending.

On March 16, 2020, Volantis filed an Abandonment of Appeal, indicating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was evidently never served on the parties.

On May 6, 2020, Volantis filed a Motion for Further Orders on Judgment.

On May 20, 2020, Volantis filed another Abandonment of Appeal stating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was served on the parties.

On July 24, 2020, the court signed and filed a Stipulation Re: Disbursement of Purchase Funds Following Abandonment of Appeal, which was stipulated by all parties, including Volantis, and states, in pertinent part:

“12. On May 6, 2020, Volantis filed a Motion for Further Orders on Judgment (the “Motion for Further Orders”) seeking an Order compelling the Wolf Firm to remit the Purchase Amount to Volantis.

13. Subsequent to the filing of the Motion for Further Orders on May 6, 2020, Half Life contacted the Wolf Firm and counsel for Defendants and made a demand for payment of the Purchase Amount directly to Half Life.

14. On June 16, 2020, Volantis instructed, in writing, the remittance of the entire Purchase Amount directly to Half Life.

BASED ON THE ABOVE-STATED FACTS, IT IS HEREBY STIPULATED AND AGREED between the Parties that The Wolf Firm shall remit and return all of the sales proceeds (i.e. the Purchase Amount) from the void Trustee’s Sale in the amount of $502,000 directly to Half Life, and that, by doing so, any obligation of any type to return the Purchase Amount to Volantis shall be deemed to have been fully satisfied.”

On October 23, 2020, the court heard the motion for attorney’s fees as well as a motion by Volantis for further orders on the judgment previously entered. The motion for further orders was denied.

The motion for attorney’s fees was granted, and the court, after reviewing the evidence and billings, making deductions for apportionment and billing irregularity, calculated a lodestar of $350,782.25, applied a 1.5 multiplier on the work performed by attorneys other than Attorney Lee, and awarded total fees of $521,513.38.

On November 23, 2020, this court signed and filed an Amended Judgment which included the award of attorney’s fees. Notices of Entry of Judgment filed by defendants on December 14, 2020 attach a copy of a judgment dated December 7, 2020, which includes this same language, and indicate judgment was entered on December 7, 2020.

ANALYSIS:

Procedural

This is a motion to tax costs sought by plaintiff in a Memorandum of Costs After Judgment.

Such a motion is permitted under CCP section 685.070(c), which provides in connection with a judgment creditor’s claim for costs for enforcing a judgment:

“(c) Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.”

Defendants argue that the court should not consider the Memorandum, as it was not properly served on defendants, and was not served by the recognized means for service under the statute.

CCP section 685.070 (b) provides:

“(b) Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.

The opposition concedes that plaintiff did not serve the Memorandum on the judgment debtors directly, but on their counsel, indicating they are large corporations with headquarters outside California. Plaintiff also concedes that the Memorandum was served by email, not by personal service or mail.

Defendants rely on David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4^th 133, in which the Second District interpreted section 685.070 in connection with statutes governing parties in default, and concluded “nonetheless that section 685.070 must be interpreted as requiring service of the memorandum of costs on all judgment debtors, including default judgment debtors…” and held that the judgment creditor was “required to serve” the application in that case on the judgment debtor, and that the trial court erred as a matter of law in concluding otherwise. Davis S. Karton, at 147-148.

Plaintiff argues that this case is distinguishable because in David S. Karton, no notice at all was given to the default judgment debtor in any manner, when in this case defendants’ counsel actually received the Memorandum as electronically served. No legal authority is cited under which the statute has been interpreted to permit an exception. The motion to strike accordingly is granted on the ground the Memorandum was not properly served on the judgment debtors.

Substantive

Defendants argue that the Memorandum, which seeks $28,258.50 in Attorney Fees, from “4/16/19-12/31/2020,” does not seek costs after judgment, but improperly seeks attorney fees incurred pre-judgment, and that plaintiff has failed to properly seek such fees by a memorandum or noticed motion addressed to pre-judgment costs and fees.

The file shows that on November 23, 2020, this court signed and filed an Amended Judgment which provides, in pertinent part:

“Plaintiff filed her motion for attorney’s fees on March 18, 2019 and Defendants filed their opposition to said motion for attorney’s fees on April 15, 2019. The Court held a hearing on Plaintiff's motion for attorney’s fees on October 23, 2020 and granted attorney’s fees in the amount of $521,513.38 to be paid by Defendants within 60 days of its order. Interest shall accrue from the date of entry of this judgment on the unsatisfied principal amount of this money judgment in accordance with Code of Civil Procedure section 685.010.”

[Amended Judgment, para. 8].

The Notices of Entry of Judgment filed by defendants on December 14, 2020 attach a copy of a judgment dated December 7, 2020, which includes this same language.

The Memorandum seeks to recover attorney’s fees plaintiff claims were incurred in connection with the motion for attorney’s fees heard on October 23, 2020, which were evidently not included in that motion. As argued by defendants, these are not costs or fees which are not recognized as being recoverable pursuant to a Memorandum of Costs After Judgment; they are pre-judgment costs incurred to obtain the judgment, not to enforce the judgment.

Under CCP section 685.070:

“(a) The judgment creditor may claim under this section the following costs of enforcing a judgment:…  (6) Attorney's fees, if allowed by Section 685.040.”

CCP § 685.040 provides:

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”

(Emphasis added).

Subparagraph (A) of paragraph (10) of subdivision (a) of CCP § 1033.5 provides that allowable costs include:

“(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.”

There is no dispute here that the court awarded attorney’s fees as authorized by contract. However, the fees sought now, as reflected in the declarations attached to the Memorandum, describe work performed by the various attorneys in connection with the attorney’s fees motion (which could have been sought by actual evidence or projections in that motion), or in pursuing mediation, which appears to have occurred prior to the previous hearing on fees or prior to the entry of judgment.

The opposition does not explain how any of the charges would qualify as fees incurred in enforcing a judgment. Such fees might reasonably include fees to pursue writs of execution, judgment debtor examinations, or post-trial discovery.

The other allowable costs under a Memorandum of costs enforcing judgment under CCP section 685.070 (a), for example, are clearly limited to conduct in enforcing the judgment, and include:

“(a)

Defendants rely on Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5^th 416, in which the court of appeal found that the trial court had erred in ruling that section 685.040 and 685.080 applied to fees motions brought by plaintiffs to recover fees which had been incurred in pursuing an alter ego motion under section 187, seeking to add a third party as an additional judgment debtor on an underlying judgment. The court of appeal found that all of the fees incurred in pursuing the alter ego motion, to the date of the judgment granting that motion, are “prejudgment fees.” Highland Springs, at 423, italics in original.

The court of appeal noted that a section 187 motion to add an additional judgment debtor is generally recognized as not amending a judgment, but merely inserting the correct name of the real defendant, and noted that the Enforcement of Judgment Laws although not defining “enforcement,” do provide some guidance on this matter:

“As noted in McQueen, the EJL “addresses in detail several means of enforcing a judgment, including liens on real and personal property (§§ 697.010-697.920), writs of execution (§§ 699.010-701.830), garnishment of wages (§§ 706.010-706.154) and writs of possession or sale (§§ 712.010-716.030)....” (McQueen, supra, 59 Cal.4th at p. 609, 174 Cal.Rptr.3d 55, 328 P.3d 46.) Each of these means of enforcing a judgment results, at least to some degree, in the satisfaction of the judgment. But a section 187 motion to amend a judgment to add an additional judgment debtor does nothing to satisfy the judgment the movant seeks to amend.”

Highlands Springs, at 425-426.

It would appear even more clearly in this case that the attorney’s fees incurred to recover attorney’s fees to be included in the judgment were not incurred to satisfy the judgment, but to obtain that judgment. The fees were not incurred toward any efforts ordinarily considered to be pursuing satisfaction of that judgment.

Plaintiffs in opposition argue that plaintiff is entitled to all of the attorney’s fees she requested, arguing that there may be recovery of fees incurred to recover attorney’s fees, and seems to argue that the court simply ignore that the fees were not incurred to enforce the judgment, and not elevate form over substance in this matter.

This is not a matter of elevating form over substance, as plaintiff is not entitled to relief pursuant to the Memorandum of Costs After Judgment and its statutory scheme under which such fees have been sought. Any pre-judgment fees must be sought under the procedures governing the award of such fees.

The motion accordingly is granted, and the request for attorney’s fees in the Memorandum of Costs After Judgment will be stricken on the additional ground that such fees are not allowed by CCP section 685.040, as not incurred in enforcing a judgment.

Plaintiff in opposition requests that the Memorandum of Costs be stricken without prejudice and that plaintiff be given leave to file a motion for attorney’s fees for the additional fees claimed. Plaintiff fails to explain why the information supporting the Memorandum here was not available to plaintiff and presented prior to the hearing on the prior motion for pre-judgment attorney’s fees, which involved extensive briefing, and a hearing date which was continued several times and occurred after most of the purported fees in the current Memorandum were incurred. Such motions typically project fees which an attorney expects to incur in connection with the fees motions, such as the time to prepare reply papers and appear at the hearing.

The moving parties take the position that such a motion would be untimely and the claim to those fees would be waived. The court takes no position at this time with respect to those arguments, but will determine the issues in connection with motions, if appropriate, seeking relief to which the issues would apply.

RULING:

Defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon’s Motion to Strike and Tax Costs is GRANTED.

Procedurally, the Memorandum of Costs After Judgment was not served on the Judgment Creditors, as required under CCP section 685.070 (b)

Substantively, plaintiff has failed to establish that such fees are allowed by CCP section 685.040, as they do not appear to have been “incurred in enforcing a judgment.”

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest filed on December 31, 2020 is ordered stricken.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC065616    Hearing Date: October 23, 2020    Dept: NCD

“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. “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.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77 [227 Cal.Rptr. 804] explained: “Section 1717 provides for the payment of a 'reasonable' fee. After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.”

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624 [134 Cal.Rptr. 602].)

PLCM, at 1095-1096. (Bold print added).

The Court also held that the standard of review with respect to this determination is abuse of discretion:

““The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”-- meaning that it abused its discretion.”

PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.

The motion argues that a reasonable lodestar figure for the successful prosecution of this action is $369,657.00. Plaintiff also seeks an upward multiplier of 1.5, for a total amount of fees of $554,485.50.

The motion presents detailed declarations with billing records showing the following hours and fees:

Bryan Miller 69.6 hours $715 per hour $49,764

Pauliana Lara 72.2 hours $595 per hour $42,959

Matthew Faler 51 hours $565 per hour $28,815

Yelena Gurevich 351.5 hours $500 per hour $175,750

Maximilian Lee 23.3 hours $400 per hour $9,320

Lauren Rode 6.3 hours $375 per hour $2,362.50

Sage Stone 155.8 hours $275 per hour $42,845.00

Farah Ballout 80.1 hours $275 per hour $22,027.50

The motion also shows that these rates are lower than the rates provided by an adjusted Laffey Matrix calculation. The motion also submits expert declarations from V. James DeSimone, Mike Arias, and Dan Stormer explaining the reasonableness of the fees sought, and the contingency risks for such matters.

The opposition argues that at least $64,612 of the fees were incurred by plaintiff solely in connection with the conduct of Volantis, not with the conduct of defendants with respect to the enforcement of the note and DOT.

The opposition argues that plaintiff can recover fees incurred in connection with Volantis’ UD action only if that separate lawsuit was inextricable intertwined with this action, i.e., were closely related and involved identical issues. The opposition cites to Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, in which the court of appeal found that the trial court had appropriately found separate proceedings “intertwined inextricably” for purposes of a fee award, the court of appeal concluding that the legal services performed in the other proceedings “were both useful and necessary to the ultimate resolution of the action, and directly contributed to that resolution.” Wallace, at 848-849.

As argued in the reply, the interests of Volantis, and its efforts to obtain possession of the property, were closely intertwined with the issues raised by the foreclosure, as the issue of Volantis’ rights with respect to the property would not have arisen had defendants not pursued a foreclosure which the judgment has now determined was void. The UD action involved a determination that the foreclosure sale was regularly and properly conducted, which is the main issue plaintiff prevailed on in this action, and under the note and DOT, which provides for fees.

The opposition also argues that fees cannot be recovered for plaintiff’s non-contractual claims.

In general, where an action involves other causes of action beyond the contract, the prevailing party may recover attorney’s fees under § 1717 only as they relate to the contract action. Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 129-130. Reynolds also held, however, the a plaintiff’s joinder of causes of action should not dilute its right to attorney’s fees, and that fees “need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” Reynolds, at 130. It appears that the trial court may apportion fees among the contractual and non-contractual claims, as long as it sufficiently substantiates its order to reduce a fee award. See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 690 (finding record before the court of appeal devoid of indication that the trial court had apportioned between contractual and noncontractual claims in reducing award).

The opposition argues that while plaintiff appears to be claiming that the issues here were intertwined, she should not be awarded fees for pursuing her HBOR claim or her negligence claim, which were non-contractual claims, and were based, in part, on the allegations that defendants foreclosed before issuing a written denial of plaintiff’s appeal of the loan modification denial, and that defendants improperly denied plaintiff a loan modification for failure to supply paystubs. The argument is that these issues are distinct from the issue of whether defendants failed to apply a loan modification, the contract claim in the SAC and the only claim resolved via stipulated judgment. The opposition requests that if the court is inclined to award attorney’s fees, that it apportion the amount to account for plaintiff’s time spent on these two non-contract-based claims. Defendants indicate that they cannot accurately apportion the time spent on those claims, and requests that the court fairly apportion the fees. Defendants indicate in a footnote that the time sheets show approximately $5,386.13 in fees was incurred because of plaintiff’s non-contract claims, and refers to objections filed.

A review of those objections shows that defendants have used the “objections” to identify certain billing entries which defendants claim are not appropriate or reasonable here. This does not appear to be the appropriate use of objections, and plaintiff in reply has responded that these objections are not a legal objection concerning the admissibility of evidence by an argument regarding the weight of that evidence.

The objections accordingly are overruled. However, the court could consider treating those objections as challenges to the reasonableness of the charges, but the court elects not to do so because such objections as posed do not constitute a proper challenge as to the reasonableness of any such fees as opposed to an objection regarding allocation of fees as to causes of action.

However, Objection No. 79 objects with specificity to tasks which defendants argue were devoted to the HBOR, negligence and other tort theories, such as wrongful foreclosure. According to billing records, at least some of that time was devoted to non-contractual theories. The time at issue is 5.1 hours for Bryan Miller ($715), 6.2 hours for Matthew Faler ($565) and 1.5 hours for Attorney Gurevich ($400). This totals Miller ($3,646.50), Faler ($3,503), and Gurevich ($600) which equals $7,749.50. Reducing half of these fees would result in a reduction of $3,874.75, which is an appropriate apportionment.

The opposition also argues that the lodestar figure is unreasonable, primarily arguing that the work performed was not reasonably necessary, as plaintiff could have resolved the case for the terms agreed upon in the stipulated judgment a year before the final settlement, and that plaintiff only retracted her demand for damages when she had inadequately prepared for trial, and lost a motion to compel a deposition and for leave to file a third amended complaint on the eve of trial. This argument does not specifically establish any unreasonableness here. A review of the docket submitted with the opposition, and the file, shows this was a highly litigated matter, with plaintiff placed fundamentally in a defensive position of preventing the loss of her home despite the void foreclosure proceedings, and the effect of those proceedings on Volantis’ position with respect to the property.

There is also an argument that plaintiff’s attorneys improperly seek to recover for fees that are clerical in nature, such as filing papers, and for fees for internal discussions, and for three attorneys to attend trial, but do not in the opposition point to any specific entries which would fall into these categories. The “objections” point to specific tasks objected to on these grounds.

A review of those specific entries does show some potential clerical tasks, but they do not appear excessive or for long duration. The team meetings and internal discussions do not appear unreasonable. There is one entry for 42 hours in one day for Attorney Gurevich to complete an opposition to MSJ, which can be reduced due to a mistaken time entry of 42 hours, to 12 hours, so a reduction of 30 hours at $500 per hour or $15,000. [See Objection No. 76].

Moreover, if the court, who presided over the trial, believes that three attorneys should not have attended the trial, each attorney billed 7 hours for that date, and a reduction can be made. [See Objection No. 91].

Defendants also argue that the claimed hourly rates are unjustifiable, arguing that the declarations of plaintiff’s attorneys are insufficient to provide support for the rates. It appears that the declarations submit appropriate evidence on the issue. The opposition argues that defendant’s counsel bills at $350 per hour, and that a broad national survey conducted in attorneys’ fees in consumer law found rates to range from $258 for 1 to 3 years practicing consumer law, to $534 for 21 to 25 years. The hourly rates charged, however, are appropriately supported, and the court will not reduce the hourly rates for any of the plaintiff’s attorneys.

Defendants also argue that attorney Gurevich lacks credibility, as she previously sought to recover attorney’s fees at $450 per hour for work that attorney Ballout performed, who seeks fees at $275 per hour in the motion. [See Ex. 11]. The opposition also indicates that two of the attorneys, Attorney Gurevich and Attorney Faler, have been disciplined by the State Bar in unrelated matters. This information does not justify a reduction in the billing rates for the work performed here, and, as argued in the reply, appears to be an improper tactic in connection with the reasonableness of the fees in this matter.

Overall, it would appear that the lodestar is reasonable with the reductions of $3,874.75 for apportionment of non-contractual issues, and $15,000 for time overbilled on one date. That would leave the lodestar of $369,657.00, less these sums, or $350,782.25.

This leaves the issue of the multiplier which is requested by plaintiff for 1.5 times the lodestar figure, only for the attorneys associated with the Consumer Action Law Group, not Attorney Lee. Plaintiff relies on Holguin v. Dish Network LLC (2014) 229 Cal.App.4^th 1310, in which the court of appeal, in finding a trial court had not abused its discretion in deciding not to apply a multiplier to its lodestar calculation, set forth the factors which are traditionally considered in such situations:

““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.” (PLCM Group, supra, .) These factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum, supra, .)”

Holguin, at 1332.

Plaintiff argues that the issues here were novel and difficult, as plaintiff’s right to stay in her home required interpretation of ever-evolving statutory and common law, and that the skill in presenting the questions was considerable, as multiple motions were made by defendants, including demurrers, and a motion for summary judgment/adjudication, and ex parte applications, which were substantially defeated by counsel for plaintiffs. Indeed, even this motion for fees required considerable research and the addressing of multiple issues.

Plaintiff indicates that most significantly, the contingent nature of the fee award weighs in favor of the multiplier. [Gurevich Decl., para 24]. It appears that the agreement was a contingency agreement, and that the Consumer Law Group attorneys spent significant time on this matter which could have been spent on other matters, have had a significant delay in receiving payment, and that the attorneys faced a significant risk that the matter would resolve against plaintiff, or in her favor but without significant monetary recovery or a fee award. A multiplier of 1.5 is reasonable here and will be applied to the lodestar sum for the attorneys other than Attorney Lee.

This results in an award of $9,320 for the services of Attorney Lee, and a remaining lodestar of $350,782.25, less $9,320, or $341,462.25. Multiplying this sum by 1.5 results in a sum of $512,193.38. Adding this to the $9,320 results in a total fee award of $521,513.38.

RULING:

Motion for Further Orders on Judgment is DENIED.

Plaintiff Poonsook Brainangkul’s Motion for Attorney’s Fees is GRANTED. The Court finds that plaintiff Poonsook Brainangkul was the prevailing party in the action, and that the action arose from the enforcement of a written promissory note between the parties and a deed of trust which include applicable attorney’s fees provisions.

The Court has reviewed the evidence and billings and finds the reasonable lodestar, after deductions for apportionment and billing irregularity, is $350,782.25. The Court also finds that plaintiff has sufficiently established entitlement to a 1.5 multiplier on work performed by attorneys other than Attorney Lee, so that the total fees awarded are $521,513.38. These fees are to be awarded to plaintiff Poonsook Brainangkul against defendants Select Portfolio Servicing, Inc. and the Bank of New York Mellon, as Trustee.

Defendants’ Objections to Declarations and Evidence Submitted in Support of Plaintiff’s Motion for Attorney’s Fees are OVERRULED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC065616    Hearing Date: February 14, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 21

Date: 2/14/20

Case No: EC 065616 Trial Date: None Set

Case Name: Brainangkul v. Select Portfolio Servicing, Inc., et al.

MOTION FOR ATTORNEY’S FEES

Moving Party: Plaintiff Poonsook Brainangkul

Responding Party: Defendants Select Portfolio Servicing, Inc. and the

Bank of New York Mellon, as Trustee

RELIEF REQUESTED:

Award of attorneys’ fees in favor of plaintiff and against defendants Select Portfolio Servicing and the Bank of New York Mellon in the sum of $554,485.50.

SUMMARY OF FACTS:

Plaintiff Poonsook Brainangkul alleges that she is the owner of real property in Glendale where she resides as her principal residence. Plaintiff alleges that in July 2015, she submitted a loan modification application to defendant Select Portfolio Servicing, and was approved for a trial period plan, pursuant to which she would make three timely payments and thereafter her loan would be permanently modified. Plaintiff made all three payments, due from October 2015 through December 2015 on time. Plaintiff was provided a permanent modification agreement which she signed and returned to Select Portfolio. Plaintiff made the payments in January and February, which were accepted by Select Portfolio, but the March 2016 payment, received by Select Portfolio was returned, with indication that plaintiff had not returned the permanent loan modification. Plaintiff submitted the tracking number and assured Select Portfolio she had returned a signed permanent modification agreement, but Select Portfolio refused to permanently modify the loan and initiated foreclosure.

Select Portfolio invited plaintiff to submit another loan modification application, and in an effort to save her home, plaintiff submitted the application. Plaintiff alleges that during the second loan modification process, Select Portfolio constantly mishandled her documents, losing some and requesting resubmission, and making inquiry concerning whether submitted paystubs reflected regular or seasonal income, to which plaintiff responded, and then denying the loan modification because plaintiff had not sent in paystubs.

On September 23, 2016, plaintiff spoke with her relationship manager for Select Portfolio, who recommended she appeal the decision. Plaintiff submitted the documents to appeal the decision that day, and on September 26, 2016 the relationship manager confirmed she had received the appeal and would submit it for review.

Plaintiff alleges that she called Select Portfolio or defendant The Wolf Firm every day to check on the status of the appeal, which they informed her was still pending. On October 4, 2016, the Wolf Firm conducted a trustee’s sale, in which the property was sold to Volantis, an experienced foreclosure sale buyer.

The operative complaint alleges that on October 11, 2016, plaintiff’s counsel provided ex parte notice to Volantis of its intent to seek a temporary restraining order enjoining Volantis from recording a TDUS pursuant to plaintiff’s claims against defendants. On October 12, 2016, at 8:30 a.m., plaintiff sought the TRO, but while plaintiff awaited the court to hear the matter, Volantis recorded the TDUS at 8:52 a.m.

The file shows that on February 9, 2018, the court heard a motion for summary judgment, or in the alternative summary adjudication, brought by defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon. The motion for summary adjudication was granted as to the third cause of action for breach of implied covenant of good faith and fair dealing. The motion was otherwise denied.

On January 17, 2019, the court entered a Judgment on Stipulation submitted by plaintiff Brainangkul and defendants Select Portfolio Servicing and The Bank of New York Mellon, entering judgment in favor of Plaintiff, declaring that plaintiff is the owner and title holder of the subject property, that BONY holds the loan encumbering the property, and that SPS is the servicer of the loan. The judgment provides that once plaintiff’s loan was modified, and the default cured, defendants lacked the power to sell the property under the power of sale in the DOR because there was no default to enforce and set aside the trustee’s sale of October 4, 2016 as void. The judgment states:

“7. The foreclosure sale shall be set aside and Volantis Global shall be entitled to a return of the sale proceeds of $502,000.00, and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

This motion was originally scheduled to be heard on April 26, 2019. On that date, the court also heard a motion brought by Volantis Global to vacate the Judgment on Stipulation, arguing the court was not authorized to quiet title as to Volantis and the party to which the property has since been transferred, Half Life, based on the stipulation of plaintiff and the bank defendants, without including Volantis or conducting a properly noticed evidentiary hearing in open court.

The court heard the motion to set aside the judgment and set a non-jury trial on the issue of title and ruled that this attorney fee motion was to be set and heard after the trial was conducted.

The trial was conducted on June 19, 2019, and continued to July 24, 2019, and again to July 26, 2019. The court announced it oral statement of decision, finding that plaintiff prevailed on the quiet title action as to causes of action Nos. 5, 6 and 7 of the Verified Second Amended Complaint, and cross-defendant prevailed as to Volantis’ Second Amended Cross-Complaint for Declaratory Relief and to Quiet Title

On October 23, 2019, the court signed and filed its Judgment on Stipulation, finding that plaintiff owns the property subject to a loan held by BONY and serviced by SPS, the foreclosure sale of October 4, 2016 was void because defendants lacked the power of sale as there was no default on which the sale could be based, so the foreclosure sale was set aside as void. Judgment was entered in favor of plaintiff, with plaintiff and defendants to bear their own costs. The judgment states, “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Judgment on Stipulation, p. 5:8-9]. A Notice of Entry of Judgment was filed and served the same date.

On October 28, 2019, plaintiff filed a Notice of Lodging and Reinstating Plaintiff’s Attorney Fee Motion, with a hearing date of December 13, 2019.

On December 4, 2019, the court heard an ex parte application filed on behalf of defendant SPS and the Bank of New York Mellon, at Trustee to continue the hearing on the motion for attorney fees, which was granted, and the motion continued to this date.

On December 23, 2019, Volantis filed a Notice of Appeal giving notice that Volantis appeals from the Judgment on Stipulation entered on October 23, 2019. On December 9, 2019, Volantis filed a Notice of appeal from the adverse judgment from the court trial on Volantis cross-complaint against the plaintiff to quiet title.

RULING:

Plaintiff Poonsook Brainangkul’s Amended Motion for Attorney’s Fees is CONTINUED to October 23, 2020 at 9:00 a.m. as a “place holder” hearing date in light of the pendency of the appeals by Volantis Global Inc. from the Judgment on Stipulation and from the adverse judgment from the court trial on Volantis’ cross-complaint. On October 23, 2020, the court will also conduct a status conference regarding the two appeals. The court will not resolve attorney fee motion now because if Volantis prevails on any of its two appeals, the Motion for Attorneys Fees will either be moot or premature, given the likelihood of more litigation, and the plaintiff losing its status as the prevailing party until a re-trial is concluded. Any re-trial would require the court to make a new determination of the prevailing party, even if plaintiff were to prevail on any such re-trial. Therefore, any determination of plaintiff as the prevailing party at this time before the appeals are resolved could be subject to a de facto nullification if the Court of Appeal were to reverse any one of the two judgments the court entered in favor of the plaintiff. Hence, the court will not proceed at this juncture on plaintiff’s Motion for Attorney’s Fees due to the potential waste of judicial resources even though the court technically has jurisdiction to adjudicate the attorney’s fees motion while the appeals are pending.