REZA SAMANDARI VS. BRIEN PIERSON, ET-AL

Tentative Rulings

Case Number: VC057705    Hearing Date: December 19, 2019    Dept: SEC

SAMADARI v. PIERSON

CASE NO.: VC057705

HEARING: 12/19/19

#7

TENTATIVE ORDER

Defendant’s Motion to Correct Clerical Error on Judgment and Amend Judgment is DENIED.

Opposing Party to give notice.

Defendant obtained a Judgment against Plaintiffs HOSEINI and SAMANDARI on January 10, 2018. (Tamborelli Decl., Ex. B.) On November 8, 2018, the January 10, 2018 Judgment against SAMANDARI was set aside. (Tamborelli Decl., Ex. C.)

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP §473(d).) Motions to amend judgments nunc pro tunc are often used to correct judgments which do not reflect a court’s findings as summarized in a Statement of Decision, or that otherwise contain clerical errors.

The Motion to Correct Clerical Error on Judgment and Amend Judgment is denied—the Motion seeks to impose a Judgment that is inconsistent with the Court’s findings in its December 1, 2017 Statement of Decision. To the extent that Defendant seeks to omit Mr. Samandari’s name from the November 8, 2018 Judgment—that request is unnecessary. Both parties concede that the January 10, 2018 Judgment was set aside as to Plaintiff Samandari. The Court’s record establishes that the January 10, 2018 Judgment was set aside as to Plaintiff Samandari.

Case Number: VC057705    Hearing Date: December 17, 2019    Dept: SEC

CALENDAR #5

TENTATIVE RULING

Defendant and Cross-Complainant BRIAN PIERSON’s unopposed motion for attorney fees and costs against Cross-Defendant James Hoseini d/b/a Home Expo is GRANTED in the reduced total amount of $63,034.02.

BACKGROUND

This is a breach of contract case arising out of unlicensed renovations done at Cross-Complainant Brian Pierson’s (“Pierson”) property.

On December 10, 2015, Pierson filed his cross-complaint asserting seven causes of action: (1) breach of contract; (2) conversion; (3) accounting; (4) violation of business and professions code; (5) fraudulent misrepresentation; (6) negligent misrepresentation; and (7) declaratory relief. Pierson’s cross-complaint named Reza Samandari (“Samandari”), James Hoseini d/b/a Home Expo (“Hoseini”), and Roes 1 through 100 as cross-defendants.

On November 14, 2017, the Court (Hon. Thomas D. Long) conducted a bench trial. Cross-Defendants Samandari and Hoseini did not appear. The Court ordered a default against Samandari and Hoseini and struck their joint answer. Following Pierson’s prove-up, the Court found in Pierson’s favor and held that Pierson was entitled to his attorney fees and costs under Code of Civil Procedure section 1029.8 pursuant to a filing of a memorandum of costs motion and attorney fees pursuant to Pierson’s noticed motion. (Tamborelli Decl. Ex. B pg. 4.)

On January 10, 2018, the Court entered judgment against Samandari and Hoseini. (Tamborelli Decl. Ex. C.)

On November 8, 2018, the Court granted Samandari’s motion to set aside judgment against Samandari.

On September 23, 2019, Pierson filed this motion seeking recovery of $74,535.00 in attorney fees and $3,997.37 in costs from Hoseini only.[1]

Hoseini did not oppose.

LEGAL AUTHORITY

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032 subd. (b).)

Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) states that attorney fees are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5) when authorized by statute or law.

Code of Civil Procedure section 1029.8, subdivision (a) provides authority for a court to award costs and attorney fees to an injured person that prevails in an action when in unlicensed person who causes injury or damage to another person as a result of providing goods or performing services.

“The trial court has ‘broad authority’ to determine the amount of a reasonable attorneys’ fees.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Ibid. [“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”].)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . 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.) If the items on a verified cost bill appear to be proper charges they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred. However, where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs. (Id. at p. 624.)

ANALYSIS

The Court previously determined Pierson is the prevailing party for fees purposes and is thus entitled an award of its attorney fees and costs.

Pierson requests recovery of attorney fees in the amount of $74,535.00 and costs in the amount of $3,997.37 from Hoseini.

Pierson argues that those attorney fees were reasonable and necessary to the conduct of litigation.

Pierson’s counsel, John V. Tamborelli, has over 30 years of experience with significant trial experience in contractual business disputes. (Tamborelli Decl. ¶ 6.) His hourly rate for this case was $350. (Id. ¶ 7.) A $350 hourly rate is reasonable considering his experience.

Tamborelli worked 202.5 hours litigating this case, not including time spent preparing this motion. (Tamborelli Decl. Ex. C.) Notably, Tamborelli spent 50 hours to prepare a motion to set aside default for void judgment and improper service and the corresponding hearing. While the Court notes that this was an unusual situation that merited more time than usual, the Court still finds the amount of time to be excessive. Additionally, the Court’s review of Tamborelli’s billing entries show that counsel did not efficiently litigate this action considering his experience and billing rate. Therefore, the Court finds 165 hours reasonable for Tamborelli’s work (a reduction of 37.5 hours, which is approximately 18.5% of the claimed hours). Accordingly, the Court awards $57,750.00 in attorney fees.

Pierson seeks $2,511.50 in attorney fees and costs in connection with this motion. Tamborelli spent 4 hours preparing this motion and anticipates spending 3 hours preparing a reply and 3 hours appearing at the hearing. (Id. ¶ 7.) Tamborelli overstates a reasonable amount of time needed for this simple motion. Additionally, no opposition was filed and thus no reply was necessary. Therefore, the Court finds only a total of 3.5 hours reasonable. Accordingly, the Court awards $1,225.00 in attorney fees and $61.65 in costs (filing fee) in connection with this motion.

Pierson filed a memorandum of costs seeking $3,997.37 on April 17, 2018. (Tamborelli Decl. Ex. D.) There is no opposition filed to these costs, nor is there a motion seeking to tax the costs. Accordingly, the Court awards $3,997.37 in costs.

The Court grants Pierson’s motion for attorney fees and costs in the total amount of $63,034.02 against Hoseini only.

Moving Party to give Notice.