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This case was last updated from Los Angeles County Superior Courts on 03/22/2016 at 20:36:59 (UTC).

R & R CONSTRUCTION, INC. VS REON ROSKI

Case Summary

On 12/26/2014 R R CONSTRUCTION, INC filed a Contract - Other Contract lawsuit against REON ROSKI. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Disposed - Dismissed.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****3446

  • Filing Date:

    12/26/2014

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiff

R & R CONSTRUCTION INC. A CALIF. CORP.

Defendant

ROSKI REON

Attorney/Law Firm Details

Plaintiff Attorney

FELDMAN & ASSOCIATES

Defendant Attorney

ALLEN MATKINS LECK GAMBLE MALLORY NATSIS

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 07/09/2015
  • Notice of Ruling (AT ORDER TO SHOW CAUSE HEARING REGARDING STATUS OF ARBITRATION; NOTICE OF CONTINUANCE OF ORDER TO SHOW CAUSE HEARING ) Filed by Attorney for Plaintiff

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  • 06/02/2015
  • Notice of Ruling (AT CASE MANAGEMENT CONFERENCE ) Filed by Attorney for Plaintiff

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  • 05/13/2015
  • Statement-Case Management Filed by Attorney for Plaintiff

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  • 05/01/2015
  • Notice of Continuance (REON ROSKI'S NTC OF CONTINUANCE OF MOTION TO COMPEL ARBITRATION AND TO STAY ACTION ) Filed by Attorney for Defendant

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  • 05/01/2015
  • Stipulation (JOINT STIP TO CONTINUE HEARING DATE AND REPLY BRIEF FILING DATE AND REPLY BRIEF FILING DATE ON DEFT REON ROSKI'S MOTION TO COMPEL ARBITRATION AND TO STAY ACTION) Filed by Attorney for Defendant

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  • 04/13/2015
  • Opposition (TO MOTION BY REON ROSKI TO COMPEL ARBITRATION AND STAY ACTION; DECLARATION OF C.J. RUDOLF IN SUPPORT THEREOF ) Filed by Attorney for Plaintiff

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  • 03/23/2015
  • Declaration (OF APPENDIX OF AUTHORITY IN SUPPORT OF MOTION TO COMPEL ARBI- TRATION AND TO STAY ACTION ) Filed by Attorney for Defendant

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  • 03/23/2015
  • Notice of Motion (TO COMPEL ARBITRATION AND TO STAY ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF ) Filed by Attorney for Defendant

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  • 03/23/2015
  • Declaration (OF REON ROSKI IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY ACTION ) Filed by Attorney for Defendant

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  • 02/25/2015
  • Proof of Svc of Summons & Co./Ptn. (RE: REON ROSKI, AN INDIVIDUAL ) Filed by Attorney for Plaintiff

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  • 12/26/2014
  • Notice-Case Management Conference Filed by Clerk

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  • 12/26/2014
  • OSC-Failure to File Proof of Serv Filed by Clerk

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  • 12/26/2014
  • Summons Filed

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  • 12/26/2014
  • Complaint filed-Summons Issued

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Tentative Rulings

Case Number: EC063446    Hearing Date: December 31, 2020    Dept: A

The Superior Court is open under “Here for You | Safer for You” Conditions and Orders

Counsel are urged to use remote appearance technology LACourtConnect

If it is indispensable for counsel to be present in court, face masks (without a valve) are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

1. Argument is limited to three minutes, unless the court grants a request for additional time.

2. The reading of argument is feckless and nugatory.

3. State your name at the beginning of all statements.

4. Do not speak directly to other counsel without permission of court.

5. Do not interrupt or attempt to speak over another speaker.

6. Do not announce your presence until called by your name or case name.

7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

8. Maintain silence in your surroundings – no keyboarding, dogs barking, children crying, etc.

R & R Construction v Roski

Motion for Attorneys' Fees

Calendar:

01

Case No.:

EC063446

Hearing Date:

December 31, 2020

Action Filed:

December 26, 2014

Trial Date:

n/a

MP:

Defendant Reon Roski

RP:

Plaintiff R&R Construction, Inc., a California Corporation

ALLEGATIONS:

R&R Construction, Inc., a California Corporation ("Plaintiff") filed suit against Reon Rosk ("Defendant") regarding a breach of contract claim.

Plaintiff filed a Complaint on December 26, 2014, alleging five (5) causes of action sounding in: (1) Breach of Written Contract; (2) Goods, Wares, and Merchandise Sold and Delivered; (3) Open Book Account; (4) Account Stated; and (5) Recovery of Statutory Penalties.

PRESENTATION:

On June 04, 2018, Hon. Lawrence Crispo, appointed as Arbitrator for the case, issued an award for Defendant.

On October 23, 2018, the Court vacated the arbitration award.

On July 22, 2020, the Appellate Court reversed the order vacating the arbitration award and directed the trial court to enter a new order confirming the award.

On November 09, 2020, case was remitted to this Court, and the Court entered judgment for Defendant on November 20, 2020.

The Court received the instant motion, filed by Defendant, on November 25, 2020, the opposition filed by Plaintiff on December 17, 2020, and the reply filed by Defendant on December 23, 2020.

RELIEF REQUESTED:

Defendant moves for an order awarding Defendant attorney's fees of $301,419, representing 499.3 hours of work.

DISCUSSION:

Standard of Review – Attorney's Fees – A ‘reasonable’ attorney’s fee award generally falls “within the sound discretion of the trial judge.” (Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659.) However, in making a determination on the reasonableness of attorney’s fees and costs, a trial court should consider (1) the nature of the litigation, (2) its difficulty, (3) the amount involved, (4) the skill required and the skill employed in handling the litigation, (5) the attention given, (6) the success of the attorney's efforts, (7) his learning and age, (8) his experience in the particular type of work demanded the intricacies and importance of the litigation, and (9) the labor and necessity for skilled legal training and ability in trying the cause, and (10) the time consumed. (Id. at pp. 638-39.)

Plaintiff's Objections – Decl. Dennis, ¶ 6:18-21 – Plaintiff objects on the basis of lacking foundation, inadmissible hearsay, lack of personal knowledge, and improper legal conclusion. In opposition, Defendant argues that the facts are made pursuant to personal knowledge that Ms. Dennis learned during her representation as Defendant's lead counsel; that no out-of-court statement is offered to prove the truth of the matter asserted; Defendants' claimed fees are properly supposed by attached documentary evidence; and that the facts set forth by Ms. Dennis do not state mere conclusions.

The Court finds that Ms. Dennis' status as Defendant's counsel since the beginning of the instant suit properly supports her personal knowledge on these issues. Further, the Court finds that the objected material contains no hearsay and no improper legal conclusion.

The Court will overrule the above objections.

¶ 8:4-5 – Plaintiff objects on the basis of lacking foundation, lack of personal knowledge, and inadmissible hearsay. In opposition, Defendant argues that the facts are made pursuant to personal knowledge that Ms. Dennis learned during her representation as Defendant's lead counsel; Defendants' claimed fees are properly supposed by attached documentary evidence; and that no out-of-state court statement is offered to prove the truth of the matter asserted.

The Court finds that Ms. Dennis' status as Defendant's counsel since the beginning of the instant suit properly supports her personal knowledge on these issues. Further, the Court finds that the objected material contains no hearsay.

The Court will overrule the above objections.

¶ 9:7-10 – Plaintiff objects on the basis of lacking foundation, lack of personal knowledge, improper opinion, and improper legal conclusion.

The Court will overrule the above objections, as nothing in the objected material is improper.

¶ 10:12-14 – Plaintiff objects on the basis of the best evidence rule, lacking foundation, improper opinion, inadmissible hearsay, and lacking personal knowledge. In opposition, Defendant argues that the facts are made pursuant to personal knowledge that Ms. Dennis learned during her representation as Defendant's lead counsel; Defendants' claimed fees are properly supposed by attached documentary evidence; no out-of-state court statement is offered to prove the truth of the matter asserted; Ms. Dennis' opinions are not expert opinions but based on her own perception; and that Plaintiff has failed to show a genuine dispute exists as to the material terms of the writing.

The Court finds that Ms. Dennis' status as Defendant's counsel since the beginning of the instant suit properly supports her personal knowledge on these issues and that the objected material contains no hearsay and no improper legal conclusion. Plaintiff further fails to sufficiently show that there exists a genuine dispute as to the material terms of the objected-to writing.

The Court will overrule the above objections.

¶ 11:17-18 – Plaintiff objects on the basis of lacking foundation, inadmissible hearsay, speculation, and the best evidence rule.

The Court will overrule the above objections under the same reasoning used in the ¶ 10:12-14 objection, supra.

¶ 12:20-22 – Plaintiff objects on the basis of the best evidence rule, lacking foundation, inadmissible hearsay, and lacking personal knowledge.

The Court will overrule the above objections under the same reasoning used in the ¶ 10:12-14 objection, supra.

¶ 13:3-5 – Plaintiff objects on the basis of lacking foundation, lacking personal knowledge, and improper opinion. In opposition, Defendant argues that the facts are made pursuant to personal knowledge that Ms. Dennis learned during her representation as Defendant's lead counsel and that Ms. Dennis' opinions are not expert opinions but based on her own perception.

The Court will overrule the above objections, as nothing in the objected material is improper.

Accordingly, the Court will overrule each one of Plaintiff's objections.

Defendant's Objections – Decl. Orland, ¶ 3 – Defendant objects on the basis of lacking foundation, lacking personal knowledge, argumentative, relevance, and that the referenced document speaks for itself.

The objections on the basis of argumentative, relevance, and that the document speaks for itself are not sufficiently supported and will be overruled. Mr. Orland asserts he was the counsel of record during the hearing on the motion to confirm or vacate the arbitration award, and thus has sufficient personal knowledge to state facts relating to the arbitration award. (Decl. Orland, ¶ 6.)

The Court will overrule the above objections.

¶ 5 – Defendant objects on the basis of relevance.

The Court will overrule the objection.

7 – Defendant objects on the basis of relevance, and that the referenced document speaks for itself.

The Court will overrule the above objections.

¶ 9 – Defendant objects on the basis that the material is conclusory, argumentative, inadmissible as expert opinion, speculative, and lacking in foundation and personal knowledge.

The objected-to material does not present the statements as expert opinion and is the type of information reasonably based on Mr. Orland's personal knowledge.

The Court will overrule the above objections.

¶ 10 – Defendant objects on the basis that the material is conclusory, argumentative, and inadmissible as expert opinion.

The Court will overrule the above objections.

¶ 11 – Defendant objects on the basis that the material is conclusory, argumentative, inadmissible as expert opinion, speculative, speaks for itself.

The objected-to material is not improper as expert opinion and is further not conclusory or argumentative in light of the attached Exhibit B. The Court will overrule the above objections.

¶ 12 – Defendant objects on the basis that the material is conclusory, argumentative, inadmissible as expert opinion, speculative, and lacking in foundation and personal knowledge.

The objected-to material is not improper as expert opinion and is further not conclusory or argumentative in light of the attached Exhibit B.

The Court will overrule the above objections.

Accordingly, the Court will overrule each of Defendant's evidentiary objections.

Merits – Defendant requests an award of $301,419, representing 499.3 hours of work, plus an additional $6,856 representing 11.8 hours of work as to the reply briefing.

Nature of the Litigation – The nature of the litigation is based on a breach of contract claim by Plaintiff against Defendant and a cross-claim for defective construction and resultant damage to defendant. An arbitrator found for Defendant, the Court vacated this award, and the Court of Appeals reversed the order and directed the arbitration award be awarded to Plaintiff.

The battlefield for this matter had three fronts: first, the basic dispute itself: like most contractor-homeowner disputes this court has seen, that alone was a pitched and intense fight. Next were the dueling motions, one to affirm the arbitrator’s decision, the other to set it aside. Again the parties were adamantine in their positions. Then, of course came the appeal and the petition for review; this court reviewed those related documents as the appeals progressed. Again the parties left no stone unturned in this round of their extended bout. There was intense, highly skilled, professional, and zealous advocacy again. That those extensive clashes resulted in relatively high fees comes as an expected corollary to the long-running confrontation, not an exceptional outlier.

Difficulty of the Litigation – On review of the records, there is evidence the case represented a moderate level of difficulty, as the case involved a moderate amount of motion practice and discovery and included an arbitration and an appeal. The actions of the parties or counsel placed the litigation into a more significant sort.

An explanation for the degree of legal warfare involved may be not only the interests and positions of the parties, but that the issue was a) quite narrow, b) bordered near the subjective, and c) touched upon widely divergent competing legal objectives: 1) finality in the contractual arbitration context and 2) that the power of the single neutral arbitrator being so tremendous that the arbitrator be held to stringent high standards of disclosure, given that an award may be based on broad principles of justice and equity. “[a]rbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.” Moncharsh v Heily & Blase (1992) 3 Cal. 4th 1 at 10. (The arbitration agreement in this case does not seem to have provided that the arbitrator must “act in conformity with rules of law” as set forth above, and a review of the AAA Construction Industry Rules does not lead to such an understanding.)

Amount Involved – The total amount sought in the action was $147,109.91, along with interest at a rate of 10% per annum plus a statutory penalty of 24% per annum, and the judgment awarded on the cross-claim was $265,036.40. Additionally, there is another factor which the court points out to counsel frequently: when there is a viable cross-complaint arising from the same transaction, the percentage of relative success in litigation (or arbitration for that matter) aggregates 50%; not 50% for each party, but a total of 50% for both. We explain: when two parties enter the courtroom or arbitration room in a simple complaint with two parties, without knowing any of the merits, each party has a statistical chance of 50% of walking away as the clear winner, thus totaling 100%; however, with a cross-complaint, again without knowing the merits, each party may prevail on its claim, but with a set-off based on the other side’s award; in that circumstance, each side has only a 25 % statistical chance of walking away as the clear winner; with each side at 25%, the totality of “winning” for the entire case is 50%! This phenomenon increases the level of fighting even more because the wages of the war have been greatly diminished. It is well known among litigators that a viable cross-complaint can, and frequently does, “wash out” the merits of a complaint. Of course, there is also the possibility of flat-out recovery on the cross-claim, as here. But walking into the courthouse or the arbitration room, the odds are three-to-one against each party. Here, one party succeeded in beating those odds and finally walked out with the clear recovery.

Skill Required and Skill Employed – Nothing in the documents before the Court indicate that any outstanding skill, training, or experience was utilized by Defendant's counsel in the course of the litigation, and so the Court will find that the skill employed may be characterized as ordinary legal skill.

This court believed that the voluntary association of one’s personal interests with the awesome enforcement power of the state should be disclosed by an arbitrator. One counsel herein advanced this thought as well; another roundly disputed it. A Justice of the Second District Court of Appeal was similarly inclined with this court; two others disagreed. There are splits all along the way, typical of a narrow, nearly idiosyncratic question.

Attention Given – In the Declaration of Marissa M. Dennis and Supplemental Declaration of Marissa M. Dennis, Ms. Dennis represents that her firm billed a total of $308,275 for a total of 511.1 combined hours. (Decl. Dennis, ¶ 12; Supp. Decl. Dennis, ¶ 2.)

This case has also been characterized by what has been termed “hammers and tongs” litigation. Both sides have engaged in furious, paroxysmal, intensive, wide-ranging litigation using every tool, stratagem, device and argument, finally resulting in a rather outré objection to each other’s declaration of counsel, this in a matter which virtually falls entirely in the experience and discretion of the judge. . (More on this below.)

When R & R filed its motion to set aside the arbitration award, the notice of motion did not set forth in the notice the precise ground or grounds upon which the motion was made. Although Code of Civil Procedure 1010 requires such as statement, Roski did not oppose the motion on such basis, but addressed the various points discernible from the scattershot motion itself: incompetence of the arbitrator, refusal of the arbitrator to hear material evidence, incompleteness of the award, various relationships not disclosed by the arbitrator and, of course, the failure to disclose the previous similar experience of the arbitrator which became the basis for the trial court’s ruling. Later, of course, subsequent to the trial court’s ruling, the issue narrowed, but nevertheless led to multi-faceted issues, briefings, citations and discussions.

This case on the merits represents again the principle contained in the cautionary statement of Justice Aiso in Lesser Towers, Inc. v Rosecoe- Ajaz Construction Co. (1969) 271 Cal.App.2d 675 at 677: “This case illustrates that unfortunately arbitration is not always a simple, expeditious, or inexpensive method of adjudicating commercial controversies.” A simple, expeditious, and inexpensive method of resolution was no doubt intended by R & R in including the arbitration clause in its agreement. For whatever the reasons, the proceeding itself was none of the above. Then, dissatisfied with the result, R & R undertook its various attempts to set aside the unfavorable award, and this was a virtual guarantee that the process would not be inexpensive. Indeed, Roski referred to the court proceedings as virtually a case of first impression in its (appeal) Reply Brief at page 19: “ . . . the rule R & R seeks is unprecedented. Not one of the authorities cited by R & R - not the cases, not the statutes, not the Judicial Council standards - involved, let alone required a neutral to disclose, a personal dispute. R & R asks this Court to legislate in areas where the bodies constituted to legislate and regulate have declined to do so. If past “personal litigation” were an appropriate matter for disclosure, the legislature or the Judicial Council would have included that category with the copious rules they did impose.”

In these circumstances, there does arise imitative behavior – one side engages in a shallow, perhaps poorly-thought through stratagem or tactic, and the other side is engrossed by the resulting action and then decides to dish up the same behavior in the “here’s back at you” style of litigation. A perfect example herein is the objections to declarations of opposing counsel. On December 17, 2020, R & R filed its EVIDENTIARY OBJECTIONS TO DECLARATION OF MARISSA M. DENNIS AND EXHIBITS THERETO. R & R stated at page 2 “ . . . the Dennis declaration attempts to justify the conclusion that the unverified billing amounts were reasonable or necessary.” Such basis for detailed multi-faceted objections is wholly unnecessary and a complete abuse of the time of the court and its staff. The rules for determining a fee motion are well known: in Ketchum v Moses (2001) 11 Cal. 4th 1122 at 1131: . . . a court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (omitting citations) We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method “ ‘is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’ (omitting citations) In referring to “reasonable ” compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation. (omitting citations) Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (omitting citations) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. 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.’ ” (omitting citations).

That being the law, it is the judge who determines what is reasonable and necessary in terms of legal work and effort; it is the judge who determines the reasonable prevailing fee structure. Every attorney will say his or work was reasonable and necessary; every attorney on the other side will contend it is not. Judges do not need this kind of help from counsel.

Thus, in accordance with the “imitative” principle stated above, moving party submitted its own DEFENDANT REON ROSKI'S EVIDENTIARY OBJECTIONS TO DECLARATION OF JAMES J. ORLAND, ESQ. on December 23, 2020. This is of no help to the court at all for the reasons stated above, and of no earthly use to the parties. It simply takes the time of the court and its staff in a completely wasteful manner. This court has near 53 years of preparing, auditing and reviewing legal fee bills, primarily of course in the trial court setting of the litigation, but not infrequently in the appellate setting as well. Adversarial litigation is not known as a highly efficient industry, not only because of the stakes, but because if one side misses, misconstrues, or fails to answer a point, the other side is certain to capitalize on that error (no matter how minor) against the possibility that it could become the central ratio decidendi of the matter at hand.

Opposing party in its Dec. 17 filing did voice several specific objections which are among those the court would review and analyze in any event: : a) multiple partners/attorneys correcting each other's work; b) multiple partners appearing at court hearings; c) multiple attorneys duplicating work; d) interoffice conferences amongst multiple attorneys; d) grossly excessive billing practices; and e) attorneys billing for clerical/paralegal tasks. The larger, more generalized objections are: 1) this was a simple single-family residence construction defect case; 2) construction defect attorneys’ bill rates are lower than those charged herein; 3) the total fees are grossly disproportionate to the amount recovered; 4) the 499.3 hours billed was overstated by 406 hours = 93.3 hours was sufficient for the necessary work required; 5) the arbitrator’s fee award of $589,967.50 for attorneys' fee and costs was unreasonable; finally, objecting party files a copy of the fee record at issue, highlighting large areas (probably the 406 hours referred to as the “overstated” amount) but not assigning any particular reason for each highlighted item nor a rationale for why it was unreasonable, unnecessary, or otherwise abusive.

In the absence of citation to any case or statutory authority, this court does not find that it has any jurisdiction to analyze, correct or modify the arbitrator’s fee award; it was not asked in R & R’s motion to modify the award – it was asked to set it aside entirely – the fee issue was not mentioned when the matter came back from arbitration. The arbitrator’s fee award of $589,967.50 is quite simply outside the current motion.

Success of Efforts – There is no dispute that Plaintiff succeeded in the litigation.

Learning and Age – Ms. Dennis represents that the primary attorneys who worked on the instant case are as follows:

Anthony J. Oliva (SBN #123971) has been licensed to practice law in California since August 1986 and is a graduate of the University of California, Berkeley School of Law.

Marshall C. Wallace (SBN #127103) has been licensed to practice law in California since January 1987 and is a graduate of the University of California, Berkeley School of Law.

Marissa M. Dennis (SBN #245027) has been licensed to practice law in California since December 2006 and is a graduate of Loyola Law School.

Stacey Villagomez (SBN #317081) has been licensed to practice law in California since December 2017 and is a graduate of the University of California, Los Angeles.

Experience in the Particular Type of Work and Importance of the Litigation – Ms. Dennis represents that the primary attorneys who worked on the instant case are as follows:

Anthony J. Oliva is a partner and practiced real estate litigation for 30 years

Marshall C. Wallace is a litigation partner with over 30 years of experience as an appellate and trial litigator.

Marissa M. Dennis is a litigation partner and focuses on real estate litigation.

Stacey Villagomez is a litigation associate.

As to the importance of this litigation, the Court finds that the instant litigation is of low importance, as this is a moderate-difficulty case regarding established law on breach of contract and further, a single issue, perhaps idiosyncratic as pointed out above, involving an arbitrator's potential bias, and no matters of public concern.

Need for Specialized Ability – An increased rate for specialized knowledge is intended to compensate the more specialized attorney for the fewer number of hours worked in achieving the same result in litigation. Neither party argues and the Court does not find that there was “specialized” ability required to litigate the instant action, such as the courts frequently see in litigation such as product liability, molestation, and the like.

Time Consumed – Defendant argues Plaintiff's counsel billed 406 of the 499.3 hours as unreasonable or unnecessary work, including billing for multiple partners or associates editing each other's' work, both appearing at standard hearings, charging attorney rates for paralegal or administrative tasks, and charging for interoffice communications. (Oppo., Ex. B.) Defendant further argues the number of hours worked in the case is unconscionable considering the matter involves a simple construction defect issue.

On review of Exhibit B, the Court does not find such examples of unreasonable or unnecessary work, except as noted above. Plaintiff fails to sufficiently support the argument that multiple attorneys were not necessary for the hearings in question, that the 'repeated' routine revisions were not necessary, that multiple attorneys working on the same motions were not necessary, that inter-office communications were not related to proper and relevant matters, and that mock arguments were not necessary. The Court further cannot locate any instances where Defendant charged attorney rates for paralegal or administrative tasks.

Defendant's counsel spent 511.1 hours split among five attorneys in the instant case. The Court considers that a higher than average amount of attention was devoted to this action by Defendant's counsel, but that Plaintiff fails to sufficiently show excessive costs or fees requested by Defendant. The instant case may have begun as a simple construction defect case, but with the cross-claim and the motions and appeals to this court, the Court of Appeals and the California Supreme Court elevated the issues and correspondingly snowballed the work hours for the case.

Unreasonable Rate – Ms. Dennis represented that:

Anthony J. Oliva billed "$825 per hour from June 5, 2018 – June 30, 2018, $875 per hour from July 1, 2018 – June 30, 2019, $925 per hour from July 1, 2019 – June 30, 2020, and $955 per hour from July 1, 2020 to the present."

Marshall C. Wallace billed "$775 per hour from November 1, 2018 through June 30, 2019, $825 per hour from July 1, 2019 – June 30, 2020, and $850 per hour from July 1, 2020 to the present."

Marissa M. Dennis billed "$625 per hour from June 5, 2018 – June 30, 2018, $650 per hour from July 1, 2018 – June 30, 2019, $695 per hour from July 1, 2019 – June 30, 2020, and $715 per hour from July 1, 2020 to the present."

Stacey Villagomez billed " $350 per hour from July 1, 2018 – June 30, 2019, $410 per hour from July 1, 2019 – June 30, 2020, and $450 per hour from July 1, 2020 to the present."

Plaintiff argues these hourly rates are unconscionable and contends that litigators prosecuting construction defect claims typically charge $250 to $350 per hour. In reply, Plaintiff argues that the total fee sought is a little over one third of the judgment, and that the hourly rates are in line with rates charged by other similarly sized firms in Los Angeles for similar cases. The Court finds that the rates charged by Defendant's counsel are reasonable given the circumstances, except as noted below.

The court will further analyze the matter of bill rates: The matter appears to have been “staffed” in a manner not atypical for real property construction-related litigation, with only one minor exception: the necessity of Mr. Oliva’s participation in the litigation. The court infers that Mr. Oliva was the main or controlling client contact and thus he certainly had reason to be involved and to keep the client advised. However, it is stated that his specialty is “real estate litigation, including fair market rent disputes.” The court is aware of the highly specialized practice in this field, the outcome of which, by negotiation or litigation can result in the difference of many millions of dollars in rents over the term of leases in commercial buildings. His rate is eminently justified in that setting, but the court does not find such a specialty was required here, but nevertheless, his skills in maintaining client contact, keeping the client fully informed and maintaining the client’s interest does have value. The court will reduce his rates by $125.00 per hour to account for this discrepancy.

Mr. Marshall’s billings are a bargain for an accomplished specialist in appellate work. The court is aware that some specialized appellate firms are bidding for work at a fixed fee, frequently in the six figure range. Mr. Marshall’s in-house availability is a highly beneficial feature of a large multi-specialty firm. The court did examine his billings for matters that were unlikely to be of value or otherwise unnecessary or misdirected. For example, appellate counsel may consider some arguments or theories that are “longshots.” This can result in extensive research time with no benefit and no use in the final product. Although the court found some references in his billings that warranted looking into, no incongruent, unnecessary, or misdirected issues were found.

Ms. Dennis bill rates are not excessive based on billings of similar litigators based in Los Angeles, Orange and San Diego Counties recently: a ten year highly skilled litigator will achieve around a $500.00 bill rate, and $50.00 additional per hour per year after that to Ms. Dennis current rate is neither excessive or exceptional in litigation.

Ms. Villagomez rates seems somewhat high for a new associate. However, the court’s reviews of other fee bills in similar litigation show that the new associates tend to inefficiency, i.e., rather excessive time is spent on what would otherwise be a routine task. Here, Ms. Villagomez does not exhibit that common fault, but instead her time is billed at customary time inputs for a more advanced associate. Either her time inputs were cut or she has previous experience. There is no reason to adjust her time or rate.

Opposing party did not specify, and the court did not locate any noticeable items relating to secretarial time, and the case did not appear to lend itself to the use of a paralegal, such as a case with volumes of discovery, data or other materials to organize, analyze or reference.

It is not unusual for several attorneys to appear at a hearing in a significant case; in the court’s experience, it is so common as to be near-universal.

R & R is correct that the team-staffing approach can lend itself to abuses and multiple persons duplicating work or plowing ground already tilled or otherwise adding little if anything to the proceedings or process. A review of the fee bill here does not suggest any such abuse – the percentage of items related to meetings or conferences appears less than 5%.

The holding of a practice or mock argument is probably not universal, but so widespread as not to be considered unusual or unnecessary. The time spent as recorded was not excessive.

The court does not find instances of attorneys “correcting” each others’ work; there are revisions and edits customary in a lawyer-like preparation of letters, memos, briefs, pleadings, motions, emails and the like and the court sees no excess here. Attention to detail is one of the hallmarks of good practices for litigation counsel.

Counsel’s argument concerning insurance paid fees for construction defect cases is not applicable here. There is no suggestion that Roski had any insurance available that she could call upon, and insurance would not have prosecuted her cross-complaint in any event. Parties are not required by any authority known to the court to select only insurance defense lawyers engaged in the same or similar line of work as that at hand. Counsel similarly are not required to set their fees according to the lowest common denominator for such work.

The court will eliminate the work associated with the preparation of DEFENDANT REON ROSKI'S EVIDENTIARY OBJECTIONS TO DECLARATION OF JAMES J. ORLAND, ESQ. for the reasons stated above. Because this work is lumped with other activities which the court would not strike, the court will eliminate the following entries:

8301234 12/21/2020 2336 Villagomez, Stacey 374830 1 $1,215.00 2.7 Draft Reply to Motion for Attorneys Fees, objections to J. Orland Declaration, response to evidentiary objections to M. Dennis declaration.

8301359 12/22/2020 2059 Wallace, Marshall 374830 1 $3,060.00 3.6 Revise draft reply brief and response to R & R's objections to evidence, and compose email to client regarding same.

8301386 12/22/2020 2336 Villagomez, Stacey 374830 1 $720.00 1.6 Finalize responses to R & R objections to evidence and objections to J. Orland declaration; draft M. Dennis supplemental declaration; proofread first draft of reply.

"Involving" the Contract – Plaintiff argues that none of the issues raised by Defendant during appeal "involved" the contract at issue in the instant case. In reply, Defendant cites to Section 24.1 of the parties' contract, which states: "In the event of any litigation between any parties to this Agreement, including a reference proceeding, involving or arising out of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorneys' fees and costs incurred. . ." (Decl. Dennis, ¶ 2, Exh. A, p. 13.) The Court finds that appeals as to the instant case qualify as "any litigation between any parties to this Agreement".

Accordingly, the Court will grant the instant motion, but eliminate the sume of $,995.00 as explained above..

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Reon Roski's Motion for Attorney Fees came on regularly for hearing on December 31, 2020 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED, THE SUM $4,995.00 IS STRIKEN.

DATE: _______________ _______________________________

JUDGE

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