This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 17:12:55 (UTC).

RUTH XIAOYU ZHANG VS NESTOR H. LLERNA

Case Summary

On 05/02/2016 RUTH XIAOYU ZHANG filed a Contract - Other Contract lawsuit against NESTOR H LLERNA. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judge overseeing this case is GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8411

  • Filing Date:

    05/02/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs

ZHANG RUTH XIAOYU

LU HONG JUN

Defendants

NATIONAL INVESTMENT GROUP

LLERNA NESTOR H.

US NATIONAL TREALTY

KONG JENNY

LLERENA MYRNA T.

US NATIONAL INVESTMENT GROUP A CALIFORNIA CORPORATION DBA US NATIONAL REALTY

Attorney/Law Firm Details

Plaintiff Attorneys

LI BIN LAW OFFICES OF

YANG JASON J.L

LI BIN

Defendant Attorneys

KLINERT JAMES E. ESQ.

CARLSON MARK C. ESQ.

 

Court Documents

Unknown

6/9/2016: Unknown

Case Management Statement

9/13/2016: Case Management Statement

Minute Order

10/24/2016: Minute Order

Unknown

10/2/2017: Unknown

Unknown

11/7/2017: Unknown

Unknown

11/9/2017: Unknown

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12/19/2017: Unknown

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1/10/2018: Unknown

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1/10/2018: Unknown

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1/10/2018: Unknown

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1/10/2018: Unknown

Unknown

1/19/2018: Unknown

Unknown

1/19/2018: Unknown

Unknown

1/19/2018: Unknown

Unknown

6/15/2018: Unknown

Memorandum of Points & Authorities

7/25/2018: Memorandum of Points & Authorities

Tentative Ruling

8/1/2018: Tentative Ruling

Notice of Lien

8/23/2018: Notice of Lien

75 More Documents Available

 

Docket Entries

  • 04/23/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 04/15/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Final Status Conference - Held

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  • 04/15/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 01/02/2019
  • Notice of Ruling (Notice of Case Reassignment); Filed by RUTH XIAOYU ZHANG (Plaintiff); HONG JUN LU (Plaintiff)

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  • 12/19/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 10/25/2018
  • Request for Dismissal; Filed by RUTH XIAOYU ZHANG (Plaintiff); HONG JUN LU (Plaintiff)

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  • 09/18/2018
  • Notice; Filed by Clerk

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  • 08/23/2018
  • Order

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  • 08/23/2018
  • Stipulation; Filed by NATIONAL INVESTMENT GROUP (Defendant); US NATIONAL REALTY (Defendant); Jenny Kong (Defendant)

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  • 08/23/2018
  • Notice of Lien

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98 More Docket Entries
  • 06/21/2016
  • Rtn of Service of Summons & Compl

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  • 06/21/2016
  • Rtn of Service of Summons & Compl

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  • 06/09/2016
  • Rtn of Service of Summons & Compl; Filed by RUTH XIAOYU ZHANG (Plaintiff); HONG JUN LU (Plaintiff)

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  • 05/23/2016
  • Complaint ( (1st)); Filed by Hong Jun Lu (Plaintiff); Ruth Xiaoyu Zhang (Plaintiff)

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  • 05/23/2016
  • Summons Issued; Filed by RUTH XIAOYU ZHANG (Plaintiff); HONG JUN LU (Plaintiff)

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  • 05/03/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/03/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/02/2016
  • Civil Case Cover Sheet

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  • 05/02/2016
  • Complaint; Filed by RUTH XIAOYU ZHANG (Plaintiff); HONG JUN LU (Plaintiff)

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  • 11/07/2011
  • Statement of Facts; Filed by US NATIONAL REALTY (Defendant)

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Tentative Rulings

Case Number: KC068411    Hearing Date: July 16, 2020    Dept: J

HEARING DATE: Thursday, July 16, 2020

NOTICE: OK[1]

RE: Zhang, et al. v. Llerena, et al. (KC068411)

______________________________________________________________________________

 

Defendants Nestor H. Llerena’s and Myrna T. Llerena’s MOTION FOR AWARD OF

ATTORNEYS’ FEES AND COSTS ON APPEAL

Responding Party: None (unopposed, as of 7/6/20, 12:02 p.m.; due 3/10/20[2])

Tentative Ruling

Defendants Nestor H. Llerena’s and Myrna T. Llerena’s Motion for Award of Attorneys’

Fees on Appeal is GRANTED, in the reduced amount of $18,617.50.

Background

Plaintiffs Ruth Xiaoyu Zhang and Hong Jun Lu (“Plaintiffs”) claim that defendants concealed a series of material facts as to the actual condition and defects of the property located at 924 Avenida Loma Vista in San Dimas (“Subject Property”) prior to the close of escrow. On May 23, 2016, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants Nestor H. Llerena, Myrna T. Llerena (collectively, “The Llerenas”), Jenny Kong (“Kong”), US National Investment Group dba US National Realty (“U.S. National”) and Does 1-10 for:

1. Fraud

2. Negligent Misrepresentation

3. Negligence

4. Breach of Civil Code § 2079

5. Breach of Contract

On January 26, 2018, the court granted The Llerenas’ motion for summary judgment. On February 9, 2018, the “Order Granting Defendants Nestor H. Llerena and Myrna T. Llerena’s Motion for Summary Judgment as to Plaintiffs’ First Amended Complaint” was filed.

On February 26, 2018, Plaintiffs filed a Notice of Appeal. On August 23, 2018, a “Stipulation [and Order] Re: Determination of Good Faith Settlement Between Defendants US National Investment Group, Inc. dba US National Realty and Jenny Kong and [Plaintiffs]” was filed. On October 25, 2018, Plaintiffs dismissed Kong and U.S. National with prejudice.

On October 15, 2019, the remittitur was filed (affirmed).

Legal Standard

“[T]he party prevailing in the Court of Appeal in a civil case . . . is entitled to costs on appeal” (California Rules of Court [“CRC”] Rule 8.278(a)(1).) “The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal” (CRC Rule 8.278(a)(2).) “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.” (CRC Rule 8.278(d)(2).)

As in trial court litigation, attorney fees on appeal are recoverable if authorized by contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)-(C); Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.)

Discussion

The Llerenas move the court for an order awarding attorneys fees of $19,855.00 and costs of $763.93 incurred while this matter was on appeal.

Timeliness

A notice of motion to claim attorney’s fees on appeal—other than under CRC Rule 3.1702(b)—made pursuant to a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1)[3] (i.e., in an unlimited civil case). (CRC Rule 3.1702(c).)

The remittitur was filed on October 15, 2019. The instant motion was filed on November 22, 2019. The motion is timely.

Entitlement to Fees

 

Here, the Llerenas seek attorney’s fees on appeal pursuant to ¶ 21 of the Residential Purchase Agreement and Joint Escrow Instructions (“Agreement”) between the Llerenas and Plaintiffs, which reads as follows:

“21. ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller . . .” (Klinkert Decl., ¶1, Exh. A, p. 6, ¶27.)

Summary judgment was granted in favor of the Llerenas as reflected in an order filed on February 9, 2018. After hearing on August 1, 2018, the court awarded attorney’s fees of $42,267.50 and costs of $1,924.22 pursuant to Civil Code section 1717 and ¶21 of the Agreement. The Court of Appeal awarded the Llerenas their costs on appeal. Plaintiffs have not opposed the motion. The court determines that the Llerenas are entitled to recover fees.

 

Reasonableness of Fees

The issue remaining, then, is whether the fees sought via this instant motion are reasonable. “[O]nce a party has established he or she is entitled to fees, the lodestar method is generally presumed to be the starting point in analyzing the appropriate amount of attorney fees. Under this method, a court first calculates the number of hours reasonably spent multiplied by the reasonable hourly rate for each billing professional, and then may adjust the amount based on various relevant factors to ensure the fee reflects ‘”the fair market value [of the attorney services] for the particular action.”’” (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425 [citations omitted].) “Using the lodestar as the basis for the attorney fee award ‘anchors the trial court's analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary.’” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394 [citation omitted].)

“[V]erified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

Again, the Llerenas seek attorney’s fees in the amount of $19,855.00 [i.e., 61.7 hours at $275.00/hour, plus 10.5 hours expended in connection with the instant motion at $275.00/hour].

The Llerenas’ counsel, James Klinkert (“Klinkert”) has submitted a declaration, wherein he corroborates his hourly rate and attaches billing records. (Klinkert Decl., ¶7, Exh. C.) Klinkert represents that for the past 30 plus years he has been a civil litigator emphasizing real estate, construction and business matters. (Id., ¶6). Klinkert estimates that he has pursued “well over” 100 matters to verdict, judgment, administrative decision or binding arbitration award during that span of time, as well as handled more than 30 matters on appeal. (Id.)

Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in Klinkert’s Declaration, the court finds that the requested hourly rate of $275.00 is reasonable.

The motion, moreover, is unopposed; as such, there has been no challenge as to the number of hours expended on the appeal. The court will reduce the 10.5 hours counsel seeks in connection with the preparation and hearing of the instant motion, however, to 6 hours, in light of the fact that no reply needed to be prepared.

Accordingly, the court will award fees in the reduced amount of $18,617.50.

 

Costs

 

Plaintiff’s request for costs is separately addressed via the memorandum of costs procedure.


[1] The motion was filed on November 22, 2019 and originally set for hearing on March 23, 2020. On March 17, 2020, the March 23, 2020 hearing was continued, on the court’s own motion, to June 1, 2020; all counsel were provided notice of same. On April 23, 2020, the court, on its own motion, continued the June 1, 2020 hearing date to July 16, 2020 at 10:00 a.m.; all counsel were provided notice of same.

[2] i.e., based on original March 23, 2020 hearing date.

[3] This provision, in turn, reads as follows: “Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.”

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