On 03/04/2015 RICHARD C COLYEAR filed a Property - Other Real Property lawsuit against ROLLING HILLS COMMUNITY ASSOCIATION OF. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT L. HESS and RAFAEL A. ONGKEKO. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ROBERT L. HESS
RAFAEL A. ONGKEKO
COLYEAR RICHARD C.
LORIG FRED DOE 1
LIU YU PING
ROLLING HILLS COMM ASSOC RANCHO PV
BD OF DIRS. OF ROLLING HILLS COMM ASSOC
MICHAEL D. BERK ATTORNEY AT LAW
RICHLAND KENT L. ESQ.
CHUCK STEPHEN CRAIG
GREENBERG WHITCOMBE & TAKEUCHI LLP
ALICE LIU JENSEN ATTORNEY AT LAW
6/26/2019: Ex Parte Application
7/10/2018: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER
8/17/2018: CASE MANAGEMENT STATEMENT
4/24/2015: REQUEST FOR JUDICIAL NOTICE BY RESPONDENTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES, BOARD OF DIRECTORS OF ROLLING HILLS COMMUNITY ASSOCIATION, AND DAVID MCKINNIE, JOSEPH HEITZLER, G
8/6/2015: OPPOSITION OF PETITIONER RJCHARD C. COLYEAR TO RESPONDENTS RHCA AND MEMBERS OF THE BOARD OF RHCA'S MOTION TO STRIKE PUNITIVE DAMAGES ALLEGATIONS IN PETITION
8/28/2015: STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE ETC.
9/16/2015: FIRST AMENDED VERIFIED PETITION FOR ALTERNATIVE WRITS OF TRADITIONAL MANDATE AND PROHIBITION (CAL CONST., ARTS. II, 1& IV 1; CODE CIV. PROC. 1085 ET SEQ.; 1102 ET SEQ.; CIV. CODE ?5975) AND FOR ATTORN
10/27/2015: REQUEST FOR JUDICIAL NOTICE BY RESPONDENTS AND DEFENDANTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES, BOARD OF DIRECTORS, ETC.
12/8/2015: REPLY IN SUPPORT OF DEFENDANT/RESPONDENT YU PING LIU'S SPECIAL MOTION TO STRIKE SLAPP SUIT
1/21/2016: ORIGINAL COURT REPORTER'S TRANSCRIPTS OF PROCEDINGS IN THIS ACTION (ATTACHED)
2/8/2016: Minute Order
2/16/2016: NOTICE OF ENTRY OF ORDER
2/16/2016: NOTICE OF ASSOCIATION OF COUNSEL; REQUEST FOR CHANGE OF SERVICE LIST
3/7/2016: EX PARTE APPLICATION OF PETITIONER AND PLAINTIFF RICHARD C. COLYEAR FOR ORDER STAYING ALL FURTHER PROCEEDINGS AGAINST REMAINING RESPONDENTS AND DEFENDANTS PENDING RESOLUTION OF PENDING APPEAL OF ORDER
9/28/2016: NOTICE OF APPEAL
10/5/2016: Proof of Service
10/13/2016: DECLARATION OF RICHARD C. COLYEAR RE: MOTION FOR ATTORNEYS FEES BY RESPONDENTS AND DEFENDANTS
at 08:30 AM in Department 73; Hearing on Ex Parte Application (for an Order to advance hearing on Motion to Compel) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application for an Order to advance Heari...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (for an Order to Advance Hearing on Motion to Compel); Filed by Richard C. Colyear (Petitioner)Read MoreRead Less
Declaration (OF MICHAEL BERK); Filed by Richard C. Colyear (Petitioner)Read MoreRead Less
Separate Statement; Filed by Richard C. Colyear (Petitioner)Read MoreRead Less
Motion to Compel (Further Responses); Filed by Richard C. Colyear (Petitioner)Read MoreRead Less
Notice (of Continuance of Hearing and Order); Filed by Rolling Hills Comm Assoc Rancho PV (Respondent)Read MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
at 3:45 PM in Department 73; Informal Discovery Conference (IDC) - HeldRead MoreRead Less
Minute Order ( (Informal Discovery Conference (IDC))); Filed by ClerkRead MoreRead Less
RESPONDENT YU PING LIU'S JOINDER IN DEMURRER AND MOTION TO STRIKE OF RESPONDENTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES; BOARD OF DIRECTORS OF ROOLING HILLS COMMUNITY ASSOCIATION; DAVID MCKINNIE, PRESIDENT, JOSEPH HEITZLER, GIAN STARINRead MoreRead Less
NOTICE OF RESPONDENT YU PING LTU'S SPECIAL MOTION TO STRIKE SLAPP SUIT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIONS IN SUPPORT THEREOFRead MoreRead Less
Motion to Strike; Filed by Defendant/RespondentRead MoreRead Less
Defendant's Demurrer; Filed by Defendant/RespondentRead MoreRead Less
REQUEST FOR JUDICIAL NOTICE BY RESPONDENTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES, BOARD OF DIRECTORS OF ROLLING HILLS COMMUNITY ASSOCIATION, AND DAVID MCKINNIE, JOSEPH HEITZLER, GIAN STARINIERI, MARCIA GOLD AND TOM HEINSHEIMER, AS MEMRead MoreRead Less
NOTICE OF DEMURRER BY RESPONDENTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES, BOARD OF DIRECTORS OF ROLLING HILLS COMMUNITY ASSOCIATION, AND DAVID MCKINNIE, JOSEPH HEITZLER, GIAN STARINIERI, MARCIA GOLD AND TOM HEINSHEIMER, AS MEMBERS OF TRead MoreRead Less
NOTICE OF MOTION BY RESPONDENTS ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES, BOARD OF DIRECTORS OF ROLLING HILLS COMMUNITY ASSOCIATION, AND DAVID MCKINNIE, JOSEPH HEITZLER, GIAN STARINIERI, MARCIA GOLD AND TOM HEINSHEIMER, AS MEMBERS OF THERead MoreRead Less
SUMMONS ON PETITIONRead MoreRead Less
VERIFIED PETITION FOR ALTERNATIVE WRITS OF MANDATE AND PROHIBITIONRead MoreRead Less
Petition; Filed by Richard C. Colyear (Petitioner)Read MoreRead Less
Case Number: BS150539 Hearing Date: January 07, 2021 Dept: 76
Petitioner/Plaintiff alleges that the Respondent/Defendant Rolling Hills Community Association of Rancho Palos Verdes (“RHCA”) seeks to enforce the Trees and Plantings Covenant in Declaration 150 against Petitioner/Plaintiff’s lot. Petitioner/Plaintiff alleges that the covenant does not apply to his lot and is not enforceable against his lot.
On September 4, 2020, the Court entered judgment in favor of Plaintiff Colyear and against all Defendants on the claims for declaratory relief, injunctive relief, and breach of fiduciary duty, and in favor of Defendant RHCA and against Plaintiff Colyear on the claim for slander of title.
Petitioner/Plaintiff Richard C. Colyear moves for attorney’s fees and costs.
Respondents/Defendants Rolling Hills Community Association of Rancho Palos Verdes, David McKinnie, Thomas Heinsheimer, and Frederick Lorig move to tax Petitioner/Plaintiff’s memorandum of costs.
The hearing on Plaintiff Colyear’s motion for attorney’s fees is CONTINUED to March 5, 2021. Plaintiff’s supplemental brief identifying hours which Berk and Miller spent prosecuting the fifth and sixth counts against all Defendants, and responding to any of the other reductions which the Court has tentatively indicated will apply, is due February 5, 2021. Defendants’ supplemental opposition is due February 19, 2021. Plaintiff’s supplemental reply is due February 26, 2021. No further briefs will be permitted without prior authorization of the Court.
Plaintiff’s motion to recover non-statutory costs not included in the memorandum of costs in the sum of $27,991.41 is DENIED, as they were not specifically pled and proved at trial.
As to Defendants’ motion to tax costs, the Court determines that, for purposes of recovery of costs pursuant to CCP § 1032, Plaintiff is the prevailing party as against Defendants RHCA only, but not as against the Director Defendants Heinsheimer, McKinnie and Lorig.
Defendants’ motion to tax costs is GRANTED as to Item No. 1 in the amount of $536.95, DENIED as to Items Nos. 5, 9 and 11, GRANTED as to Item No. 12 in the amount of $3,468.98, and GRANTED as to Item No. 13 in the amount of $14,882.52.
Motion For Attorney’s Fees
Request For Judicial Notice
Petitioner/Plaintiff’s and Respondents/Defendants’ request that the Court take judicial notice of court records pertaining to this action is GRANTED. (Evid. Code § 452(d)(court records).)
Petitioner/Plaintiff Richard C. Colyear seeks to recover attorney’s fees and non-statutory costs in the total amount of $1,949,374.90 (attorney’s fees of $1,921,383.50 and costs not included in the memorandum of costs of $27,991.41).
Prevailing Party Status
On September 4, 2020, the Court entered judgment in favor of Plaintiff Colyear and against all Defendants on the claims for declaratory relief, injunctive relief, and breach of fiduciary duty, and in favor of Defendant RHCA and against Plaintiff Colyear on the claim for slander of title. The basis for Petitioner/Plaintiff’s recovery of attorney’s fees is Civil Code § 5975, which provides:
(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.
(b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association.
(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.
(Civ. Code, § 5975.)
Respondents/Defendants argue that Civil Code § 5975(c) does not apply because Plaintiff did not prosecute this case as an enforcement action. In this regard, the Court looks to case law interpreting the language in Civil Code § 1717 regarding the awarding of attorney’s fees to the prevailing party “[i]n any action on a contract.” Courts have construed actions to avoid enforcement of a contract, even if for declaratory relief, as “on the contract” for purposes of § 1717.
We first reject Turner's contention that the action was not “on the contract.” California courts construe the term “on a contract” liberally. “‘As long as the action “involve[s]” a contract it is “‘on [the] contract’” within the meaning of section 1717. [Citations.]’ [Citations.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894 [76 Cal. Rptr. 3d 325].) Where an attorney fee clause provides for an award of fees incurred in enforcing the contract, the prevailing party is entitled to fees for any action “on the contract,” whether incurred offensively or defensively. (Shadoan v. World Savings & Loan Assn. (1990) 219 Cal.App.3d 97, 107 [268 Cal. Rptr. 207] (Shadoan); see also IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 464 [185 Cal. Rptr. 341].) Such fees are properly awarded under section 1717 “to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.” (Shadoan, supra, 219 Cal.App.3d at p. 108.) An action for declaratory relief can be an action “on a contract.” (See City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50 Cal.App.4th 987, 999–1000 [58 Cal. Rptr. 2d 1]; Milman v. Shukhat (1994) 22 Cal.App.4th 538, 545 [27 Cal. Rptr. 2d 526].) In this action, Turner sought declaratory and injunctive relief to avoid enforcement of the agreement's arbitration provision absent an order compelling arbitration. Under these circumstances, we conclude that this action was on the contract for purposes of an award of attorney fees.
(Turner v. Schultz (2009) 175 Cal.App.4th 974, 979-80 [bold emphasis added].)
Here, consistent the line of cases cited in Turner, the Court construes the language: “[I]n an action to enforce the governing documents,” at Civ. Code § 5985(c) to include the present action which included a cause of action for declaratory and injunctive relief to avoid the enforcement of Declaration 150. (See Turner, supra, 175 Cal.App.4th at 979-80.) In fact, Plaintiff argued that the declaration of CC&Rs known as Declaration 150M, not Declaration 150, governed the subject property. (See Corrected Statement of Decision, Page 3:15-24.) Plaintiff obtained the following declaratory relief against all Defendants:
The Court finds and declares that: (1) the General Basic Restrictions set forth in the Agreement and Declaration No. 150-M recorded with the Los Angeles County Recorder’s Office on May 29, 1944 in Book 20928, Page 304 (“Declaration 150M”), which was recorded on the real property owned by Plaintiff Colyear located at 35 Crest Road West, Rolling Hills, California (“Subject Property”), are binding on the Subject Property; and (2) the General Basic Restrictions set forth in. . . Agreement and Declaration No. 150 recorded with the Los Angeles County Recorder’s Office on May 14, 1936 in Book 14065, Page 345 (“Declaration 150”), which was not recorded on the Subject Property, are not binding on the Subject Property except to the extent those restrictions are restated within Declaration 150M.
The Court shall and does hereby issue a permanent injunction against all Defendants prohibiting them and any of them, and any of their agents, employees, representatives and persons acting in concert with them, or any of them, from enforcing, or attempting to enforce, the Trees and Plantings Covenant of Declaration 150 against the Subject Property.
(Judgment, Page 3:1-13.)
Plaintiff obtained the following injunctive relief:
Judgment in favor of Plaintiff Colyear, and against all Defendants on Plaintiff Colyear’s Claim for Injunctive Relief as follows: the Court shall and hereby does issue a permanent injunction prohibiting all Defendants, and any of them, and any of their agents, employees, representatives and persons acting in concert with them, or any of them, from: (1) enforcing the Trees and Plantings Covenant, Article I, Section 11 of Declaration 150, against the Subject Property; and (2) publishing or disseminating in any statements or documents, including internet website content, indicating that the Trees and Plantings Covenant applies to or may be enforced against the Subject Property.
Because Plaintiff obtained the primary relief sought in the Complaint regarding the governing documents, the Court finds that Plaintiff is the prevailing party entitled to recover reasonable attorney’s fees pursuant to Civil Code § 5975(c).
“[C]ourts in cases involving … statutes which provide that the prevailing party ‘shall’ recover attorney fees also have concluded that a court has the discretion to find there is no prevailing party, even though the statute does not expressly say so. (Citations omitted.) The determination of whether there is a prevailing party is to be made ‘on a practical level’ after considering what each party accomplished via the litigation. (Citations omitted.) In construing a statute which gives the trial court discretion to determine whether there has been a prevailing party (Civ. Code, § 1717), the California Supreme Court has stated: “[W]e hold that in deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon a final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’ [Citation.]” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876 [39 Cal. Rptr. 2d 824, 891 P.2d 804].)
(Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137.)
In this regard, this action can also be construed to be “on the contract” for purposes of Civil Code § 1717 because the Court applied contract law principles in construing Declaration 150M and Declaration 150. (See Corrected Statement of Decision, Pages 3:4 – 14:18.)
Even if Petitioner/Plaintiff took a position in the opposition to Defendants’ motion for attorney’s fees that “this was not an action seeking to enforce the governing documents of the Rolling Hills Community Association (“RHCA”), and therefore, Civil Code section 5975(c) is inapplicable,” the doctrine of judicial estoppel does not apply to this argument. Judge Hess did not find this position to be persuasive and, in fact expressly found that Defendants were entitled to fees under both Civil Code § 1717 and § 5975(c). (See October 27, 2016 Minute Order.)
The Court notes that recovery of attorney’s fees as damages for breach of fiduciary duty by RHCA is not recoverable pursuant to this motion, as such damages were required to be proven at trial.
Defendants argue that Plaintiff is not the prevailing party as against the Director Defendants (David McKinnie, Thomas Heinsheimer, and Frederick Lorig) pursuant to CCP § 1032. However, the definition of “prevailing party” set forth in § 1032 applies to costs, not attorney’s fees. (Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438.)
Although McLean was properly found to be the prevailing party under section 1032, “[c]ourts have consistently held the prevailing party for the award of costs under section 1032 is not necessarily the prevailing party for the award of attorney's fees in contract actions under section 1717.” (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1142 [70 Cal. Rptr. 2d 769]; see Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335, fn. 3 [104 Cal. Rptr. 3d 219, 223 P.3d 77] [noting differences in definition of “prevailing party” in the two statutes]; PNEC Corp. v. Meyer (2010) 190 Cal.App.4th 66, 70, fn. 2 [118 Cal. Rptr. 3d 730] [“prevailing party” inquiries under § 1717 and § 1032 “are distinct”].) Thus, as the trial court recognized, its finding McLean was the prevailing party under section 1032, although a necessary prerequisite for an award of attorney fees as costs (see Code Civ. Proc., § 1033.5, subd. (a)(10) [attorney fees allowable as costs when authorized by contract, statute or law]), was not determinative of whether she was also the prevailing party entitled to recover “reasonable attorney’s fees in addition to other costs” under the lease agreement and section 1717.
(Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438.)
The Third Amended Verified Petition and Second Amended Verified Complaint contained the following counts: (1) petition for traditional writ of mandate and, alternatively, writ of prohibition and stay of enforcement against the Rolling Hills Community Association of Rancho Palos Verdes (“RHCA”) and the Board of Directors of RHCA (“Board”); (2) declaratory relief against the RHCA, the Board, and the Members of the Board (collectively, David McKinnie, Joseph Heitzler, Gian Starinieri, Marcia Gold, Tom Heinsheimer, and Fred Lorig); (3) temporary and permanent injunction against the RHCA, the Board, and the Members of the Board; (4) quieting title and to remove cloud on title against the RHCA, the Board, and the Members of the Board; (5) slander of title against the RHCA, the Board, and the Members of the Board; (6) damages for breach of fiduciary duties against the RHCA, the Board and the Members of the Board.
As to count one, the Court did not issue a writ of mandate or writ of prohibition. As to count two, the Court entered judgment in favor of Plaintiff and against all Defendants: the RHCA, the Board, and the Members of the Board. As to count three, the Court entered judgment in favor of Plaintiff and against all Defendants: the RHCA, the Board, and the Members of the Board. As to count four, the Court did not quiet title in Plaintiff’s favor. As to the fifth count, the Court entered judgment in favor of Defendant RHCA and against Plaintiff. On the sixth count, the Court entered judgment in favor of Plaintiff and against Defendant RHCA, and in favor of the Individual Director Defendants against Plaintiff.
Apportionment of attorney’s fees is not required where they are incurred for representation on issues common to statutory and tort causes of action, i.e., inextricably intertwined. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.) Here, Plaintiff was successful as to the declaratory relief and injunctive relief counts against all Defendants, including the Director Defendants. Plaintiff is entitled to recover attorney’s fees against the Director Defendants pursuant to Civil Code § 5975(c) as to the second and third counts. However, Plaintiff did not prevail against the Director Defendants as to the fourth, fifth and sixth counts.
The Court finds that the work performed as to the fourth count to quiet title is inextricably intertwined with the work required for the second and third counts because Plaintiff’s right in the subject property was grounded in the interpretation of Declaration 150 vis-à-vis Declaration 150M.
However, the fifth and sixth counts are not inextricably intertwined with the work required for the second and third causes of action. The gist of the second and third counts was the interpretation of Declaration 150 vis-à-vis Declaration 150M, according to their own terms, in light of the absence of Declaration 150 in Plaintiff’s chain of title. (See Corrected Statement of Decision, Pages 3:4 – 14:18; 15:18 – 18:2.) This determination did not require an analysis of the wrongfulness of any Defendants’ actions. The Court has discretion to apportion fees to exclude from the lodestar calculation hours incurred as to unsuccessful, unrelated claims. (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 417.)
Indeed, the Court indicated that if Declaration 150 did not govern the subject property, the additional issues regarding Plaintiff’s tort claims (fifth and sixth counts) would be “deciding the nature and significance of Defendants’ actions with regard to the enforcement of the Trees and Plantings Covenant.” (See Corrected Statement of Decision, Page 4:10-14.)
In this regard, attorney’s fees incurred as to fifth and sixth counts—even though Plaintiff was successful as to the sixth cause of action against Defendant RHCA—must be apportioned. The Court will address apportionment below.
Reasonableness of Attorney’s Fees
The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he 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….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’" (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)
The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)
Defendants do not take issue with the hourly rates of counsel. (Opposition at Page 12:21.) The Court has reviewed the Declarations of Stephen C. Chuck (hourly rate of $230, Michael D. Berk ($450 hourly rate), Mona D. Miller ($175 hourly rate) Kent L. Richland (hourly rates ranging from $100 to $850), and approves the various rates of counsel as reasonable.
According to the Opposition, Colyear’s personal counsel, Michael Berk, focused on prosecuting counts five and six, as well as any counts, claims and causes of action against individual board members, while attorney Stephen C. Chuck did not represent Plaintiff as to the prosecution of counts five and six, nor as to any counts, claims and causes of action against individual board members. (Declaration of Stephen C. Chuck, ¶¶ 10-11.)
The Court acknowledges that attorney Berk represented Plaintiff Colyear from the beginning of the lawsuit since January 27, 2015, through the present time. (Berk Decl., ¶ 12.) As such, it is not appropriate to exclude from the lodestar calculation the entirety of the time Berk and Mona D. Miller, the attorney who assisted him, spent on Plaintiff’s case. However, as noted above, it is appropriate to exclude from the lodestar calculation that time which Berk and Miller spent prosecuting the fifth and sixth counts against all Defendants. In this regard, the Court instructs Plaintiff to prepare an analysis of the hours which Berk and Miller spent prosecuting the fifth and sixth counts against all Defendants. These hours will be excluded from the lodestar calculation.
The Court notes that Defendants argue that approximately $373,609.25 of the attorney’s fees claimed by Plaintiff for work performed by Berk and Miller on claims against the Director Defendants. (See Opposition, Page 10:3-11:19; Declaration of Michael Weinberger, ¶¶ 14-34.) The Court views this as a starting point for the foregoing exclusion, but Plaintiff will have an opportunity to demonstrate otherwise in the supplemental briefing.
Weinberger also identifies a mathematical mistake regarding Miller’s time and fees, resulting in a total amount of $57,289.63 in overstated fees. (Weinberger Decl., ¶¶ 35 – 38.) Plaintiff may address this assertion in the supplemental briefing.
In the Opposition, Defendant also make the following arguments:
u Attorneys Berk and Miller billed in 0.25 hour time increments (15 minutes), even though the industry standard is to bill in time increments of 0.1 hours (6 minutes), thereby likely resulting in overbilling. The Court finds this to be persuasive and will adopt Defendants’ recommendation of a 10% reduction of the time billed by Berk and Miller.
u At times, the case was overstaffed, in particular, at depositions, when three attorneys would attend without any justification. Defendants argue that only attorneys Chuck (representing the insurer) and either attorney Berk or Miller, but not both, should have attended. The Court finds that have two of Plaintiff’s personal attorneys attend the deposition was not unreasonable under the circumstances of this case. No reduction to the lodestar amount will be made in this regard.
u The time records for four attorneys—especially as to Berk and Miller—contain significant block billing for multiple tasks in one billing entry. “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) While the Court agrees that reduction should occur due to the block billing, the Court will apply a 10% reduction, rather than the 25% reduction advocated by Defendants.
u Several attorneys unreasonably billed at their full rate for clerical or paralegal tasks that should have been billed at the firm’s paralegal rates. Defendants argue that such time should be billed at paralegal rates and clerical work should be fully deducted, as set forth at ¶ 26(A) of the Kaufman Decl. The Court finds this argument to be persuasive, and the deductions in this regard proposed by Kaufman in his declaration will be adopted by the Court.
u Several attorneys billed for time with vague descriptions that do not permit determination of the reasonableness of the time incurred, as set forth at ¶ 26(b) of the Kaufman Declaration. The Court does not find that this requires deductions other than the 10% reduction the Court will apply for block billing in general. (See above re: block billing.)
u Several attorneys billed at times for wholly unreasonable and inappropriate tasks, whether billing twice for the same activity, billing for dialing an unanswered phone number, of reading and reviewing the work of others without substantive work product, as discussed in the Kaufman Declaration at ¶ 26(C). The Court finds this argument to be persuasive, and the deductions in this regard proposed by Kaufman in his declaration will be adopted by the Court.
The Court notes that the fact that Plaintiff claims to have incurred in excess of $30,000 in attorney’s fees after this motion for attorney’s fees was filed (Reply at Page 10:3-10; Suppl. Decl. of Michael D. Berke; Suppl. Decl. of Stephen C. Chuck) suggests that Plaintiff’s counsel engages in padding of bills, and the Court is inclined to view the billing statements of Plaintiff’s counsel.
Accordingly, the hearing on the motion for attorney’s fees is CONTINUED to March 5, 2021. Plaintiff’s supplemental brief identifying hours which Berk and Miller spent prosecuting the fifth and sixth counts against all Defendants, and responding to any of the other reductions which the Court has tentatively indicated will apply, is due February 5, 2021. Defendants’ supplemental opposition is due February 19, 2021. Plaintiff’s supplemental reply is due February 26, 2021.
Petitioner/Plaintiff also seeks to recover non-statutory costs not included in the memorandum of costs in the sum of $27,991.41. These costs are DENIED, as they were not specifically pled and proved at trial. (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551; Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42.)
The Second District has declined to follow those cases which have permitted the parties to agree that the items allowable as costs include those not specifically allowed by CCP § 1033.5(a), at least in the absence of such costs being specifically pleaded and proved at trial:
Bank contends the trial court erred in taxing the portion of its costs not expressly allowed under section 1033.5.
Section 1033.5, subdivision (a), specifies items allowed as costs and subdivision (b) specifies items not allowed. The court awarded only those costs allowed by section 1033.5. Bank argues, however, that the forbearance [*551] and extension agreements expressly provide that the award of costs to the prevailing party shall not be limited to taxable costs.
Bank cites section 1032, subdivision (c). That subdivision provides: “Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” Section 1034 requires the Judicial Council to adopt rules for claiming and contesting allowable prejudgment costs and costs on appeal, as well as rules establishing allowable costs on appeal.
On its face, section 1032, subdivision (c), allows the parties to agree to “procedures” for awarding costs. It does not expressly authorize the parties to expand by agreement the items allowable as costs.
Bank relies on Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491–492 [54 Cal. Rptr. 2d 888]. There the court held that sophisticated parties may agree to a broader standard of costs than allowed by section 1033.5. Bank fails to mention, however, that in Arntz the costs were pleaded and proved pursuant to a procedure stipulated by the parties.
Because costs other than those allowed under section 1033.5 are not based on statute, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs. (See Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [28 Cal. Rptr. 2d 878]; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) Only Bussey v. Affleck (1990) 225 Cal. App. 3d 1162, 1166 [275 Cal. Rptr. 646], has awarded nonstatutory costs without pleading and proof. We join other courts that have considered the matter and refuse to follow it. (See, e.g., Ripley, supra, at pp. 1625–1626.) Because here the Bank did not plead and prove nonstatutory costs, the trial court did not err in refusing to award them.
(Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551.)
Even the First District, which decided Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1166, upon which Defendant relies, later recognized that non-statutory costs to be recovered pursuant to the contractual agreement of the parties must be specifically and proven at trial, not awarded posttrial:
Plaintiff urges us to follow Arntz, and to construe the Agreement here as providing a standard of “costs” broader than the statutory definition. But the costs award is insupportable even if we were to do as plaintiff urges. Recovery of costs provided by contract must be specially pleaded and proven at trial, and not awarded posttrial as was done here. (Arntz, supra, 47 Cal.App.4th at p. 491; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) “[T]he proper interpretation of a contractual agreement for shifting litigation costs is a question of fact that ‘turns on the intentions of the contracting parties.’ ” [*1342] (First Nationwide Bank, supra, at p. 879.) Accordingly, “the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion.” (Ibid.)
Nor may the disputed costs be awarded to plaintiff as an element of attorney fees under the rationale that the expenses were disbursed by the attorneys in the course of litigation. We disavow this court's previous adoption of that view as an unwarranted conflation of fees and costs. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1167 [275 Cal. Rptr. 646].) As persuasively argued by our colleagues in the Third Appellate District in disagreeing with Bussey: “In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees.” (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626 [28 Cal. Rptr. 2d 878].) We join other divisions of this district in following Ripley on this point. (First Nationwide Bank v. Mountain Cascade, Inc., supra, 77 Cal.App.4th at p. 878; Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1154 [82 Cal. Rptr. 2d 143].)
Defendants also argue that $ 1,530.91 spent by plaintiff to expedite preparation of deposition transcripts is not recoverable as an item of costs. Standard transcription fees for “necessary” depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise of the trial court's discretion. (Code Civ. Proc., § 1033.5, subds. (a)(3), (c)(4).) Plaintiff maintains that the trial court either found the extra deposition fees to be necessary or exercised its discretion in allowing recovery of these extra fees. Plaintiff notes that the court commented, at the hearing on costs: “I am not satisfied that [the expedited transcripts] are merely convenient.” However, the court also said that the requested expedited deposition costs are “not allowed under the code section,” and proceeded to award the costs under the parties' contract which, in the court's view, provided a more expansive definition of costs. The court erred in awarding costs not authorized by statute. We will therefore modify the judgment to strike the recovery of expert witness fees, general photocopying costs, and expedited deposition transcript fees, thus reducing the costs award by $ 70,996.99.
(Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42 [bold emphasis added].)
Motion To Tax Costs
Defendants argue that Plaintiff cannot be held to have prevailed as against Director Defendants because there was no net monetary recovery against them, and they prevailed on the tort claims.
CCP § 1032(a)(4) provides:
(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.
(Code Civ. Proc., § 1032(a)(4)[bold emphasis added].)
The Court considers the relief which Plaintiff obtained against the Director Defendants by way of the judgment. Plaintiff obtained declaratory relief and injunctive relief against all Defendants, but did not obtain any monetary relief as against the Director Defendants on the tort causes of action. In its discretion, the Court determines that, for purposes of recovery of costs pursuant to CCP § 1032, Plaintiff is the prevailing party as against Defendants RHCA only, but not as against the Director Defendants Heinsheimer, McKinnie and Lorig. The Court agrees that the declaratory and injunctive relief against the RHCA would effectively prevent the Director Defendants from enforcing Declaration 150 against the subject property.
Defendants move to strike and/or tax the following costs claim by Plaintiff
1. Item No. 1: Filing and motion fees.
Defendants move to tax Item No. 1 in the amount of $536.95 for filing fees for “new defendants added” on May 1, 2015, even though no new defendants were added in any filing with the Court in or around that time period.
This cost is reflected in the Memorandum of Costs (Worksheet), Attachment 1G, No. 2. The Court agrees with Defendants that no new defendants were added between the date that the Verified Petition was filed on March 4, 2015 and the date that all Defendants filed a demurrer to the Verified Petition on April 24, 2015. In the Opposition, Plaintiff appears to admit that this $536.95 charge was for the first filing fee of $435.00, plus “service charges” of $101.95. Because a “first appearance fee” was already claimed as Item No. 1 in Attachment G, this is a duplicate charge. To the extent the “service charge” is for a messenger fee, it will be disallowed in the Court’s discretion. Plaintiff misrepresented this as being related to “new defendants added.” Also, the Court has discretion whether to allow messenger fees, which are not recoverable as of right per CCP § 1033.5(a). (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)
The motion to tax Item No. 1 is GRANTED in the amount of $536.95.
2. Item No. 5: Service of process.
Defendants move to tax Item No. 5 in the amount of $511.58 for service of subpoena on trial witness Donald Crocker because counsel for both parties agreed that counsel for Defendants would accept service by email on behalf of Crocker, thereby negating any need for costly personal service.
Plaintiff indicates that attempts to personally serve Crocker, a non-party, using a professional attorney service had been undertaken beginning August 1, 2019, and Defendants’ counsel did not agree to accept service on behalf of Crocker until August 7, 2019; however, personal service upon Crocker had already been successful by that time. (Declaration of Steven C. Chuck, ¶ 3.) The Court will allow Plaintiff to recover this cost, which is authorized per CCP § 1033.5(a)(4), and was reasonably necessary to the conduct of the litigation (CCP § 1033.5(c)(2)) as there is no expectation that opposing counsel will accept service on the part of a non-party.
The motion to tax Item No. 5 is DENIED.
3. Item No. 9: Court-ordered transcripts.
Defendants move to tax Item No. 9 in the amount of $1,396.00 on the grounds that the Court orally ordered transcripts on September 18, 2020 for reference in connection with the closing briefs due by October 18, 2020, there was no testimony on September 4, 2020 or November 1, 2020, so the Court did not order transcripts for those days.
In ordering the trial transcripts, the Court did not specifically request a certain date, nor exclude a certain date. The Court will allow Plaintiff to recover all costs of trial transcripts as “[t]ranscripts of court proceedings ordered by the court.” (CCP § 1033.5(a)(9).)
The motion to tax Item No. 9 is DENIED.
4. Item No. 11: Court reporter fees as established by statute.
Defendants move to tax Item No. 11 in the amount of $824.18 on the ground that there is no statutory basis cited.
Court reporter fees as established by statute are recoverable costs. (Code Civ. Proc., § 1033.5(a)(11).) Gov. Code § 68086(a) provides for a fee representing the services of an official court reporter for each proceeding lasting more than one hour.
The Court reporter fee was incurred on August 26, 2019 in the amount of $824.18. Per Plaintiff’s counsel, the court reporter attended the technical start of trial, was designated as an official pro tempore court reporter, and recorded the proceedings. (Declaration of Stephen C. Chuck, ¶ 4.) The Court will allow Plaintiff to recover these costs.
The motion to tax Item No. 11 is DENIED.
5. Item No. 12: Models, blowups, and photocopies of exhibits.
Defendants move to tax Item No. 12 in the amount of $3,468.98 on the grounds that the costs pertained to copy charges for exhibits not used or intended for use at trial. Defendants identify entries 13-15 and 18-22 on Worksheet Attachment 11 as the only copy charges for exhibits used at trial, or even prepared for potential use at trial, with the others not prepared for such purposes.
Plaintiff does not firmly dispute Defendants’ contention and proposed that half of the amount at issue, or $1,734.49, be allowed.
However, photocopying charges for exhibits which were not reasonably helpful to aid the trier of fact are not recoverable. (Code Civ. Proc., § 1033.5(a)(13), (b)(3).) The recovery of such costs is not authorized for exhibits not used at trial. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775).
Initial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum [of costs]. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. (Citation omitted.) Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality. Rule 870(a)(1) does not specify the type of documentation required.
(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 (bold emphasis added).)
Because Plaintiff has not produced supporting documentation for the costs put in issue as to Item No. 12, the $3,468.98 in costs challenged by Defendants will be disallowed.
The motion to tax Item No. 12 is GRANTED in the amount of $3,468.98.
6. Item No. 13: Other.
Defendants move to tax Item No. 13 in the amount of $14,915.93 including: (i) copy costs totaling $11,979.21 [Worksheet, Attachment 16, entries 1-7, 24-70, 80, 82-88, 90-92, 94-99, 156-160, 162-163 and 165-171]; (ii) duplicative cost entries totaling $214.83 [Worksheet, Attachment 16, entries 9, 10 and 15; Attachment 5d, entry 5; Attachment 1g, entry 6 and entry 15]; (iii) ambiguous costs totaling $508.50 [Worksheet, Attachment 16, entries 16 and 89]; (iv) costs incurred against another defendant (Dr. Liu) in the amount of $228.37 [Worksheet, Attachment 16, entries 71-72]; (v) postage costs in the amount of $97.96 [Worksheet, Attachment 16, entries 100-104, 107-108]; and (vi) transcripts not ordered by the court in the amount of $1,887.06 [Worksheet, Attachment 16, entries 141-143].
Plaintiff withdraws the request for $11,979.21 in copying charges at Item No. 13. As such, the amount of $11,979.21 will be taxed.
Plaintiff withdraws the request for $723.33 for duplicate cost entries at Item No. 13. This includes the ambiguous costs identified by Defendants totaling $508.50 at entries 16 and 89. As such, the amount of $723.33 will be taxed.
Plaintiff argues that the items at Attachment 16, entries 71-72 pertain to exhibits to the operative first amended petition, not exclusively to Dr. Liu’s anti-SLAPP motion. However, these charges are actually for FedEx delivery and One Legal e-filing and delivery of courtesy copy. The Court, in its discretion, disallows these costs as merely convenient or beneficial to the preparation of litigation. (Code Civ. Proc., § 1033.5(c)(2). The amount of $228.37 will be taxed.
Plaintiff explains that the items listed at 102 and 103 pertain to the recording of a notice of pendency as authorized by law. These costs will be permitted.
However, Plaintiff does not adequately explain the challenged postage costs at entries 100 ($1.11), 101 ($57.75), 104 ($1.19), 107 ($1.50) and 108 ($3.00). These costs, totaling $64.55, will be disallowed per CCP § 1033.5(b)(3). Plaintiff’s explanation would apply anytime any document is mailed. The amount of $64.55 will be taxed.
Plaintiff does not dispute that the $1,8867.06 in costs at entries 141-143 were for transcripts which were not ordered by the court. As such, they are not allowable as costs per CCP § 1033.5(b)(5). To the extent these do not fully represent the costs of “Court Reporter Transcripts” as listed at entries 141-143 on Attachment 16, they were misrepresented by Plaintiff. The amount of $1,887.06 will be taxed.
Accordingly, the motion to tax Item No. 13 is GRANTED in the total amount of $14,882.52.
 As such, the Court does not address Plaintiff’s alternative bases for recovering attorney’s fees pursuant to Civil Code § 1717 and CCP § 1021.5.
“ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Citations omitted.)
(People v. Castillo (2010) 49 Cal.4th 145, 155 [bold emphasis added].)
 On August 13, 2019, the Court granted the Director Defendants’ motion for summary adjudication as to the fifth count for slander of title.
 At Page 4:5-14 of the Corrected Statement of Decision, the Court recognized that a threshold issue was whether the Trees and Plantings Covenant in Declaration 150 governed the subject property, because if it did, essential elements of Plaintiff’s slander of title and breach of fiduciary duty counts would fail.
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