SUSAN BITTAN VS AQ SKIN SOLUTIONS, INC., ET AL.,

Tentative Rulings

Case Number: BC603972    Hearing Date: August 27, 2020    Dept: O

Case Name: Bittan v. AQ Skin Solutions Inc., et al.

SUBJECT: MOTION FOR ATTORNEY FEES AND COSTS

MOVING PARTY: Plaintiff Susan Bittan

RESP. PARTY: Defendants AQ Skin Solutions, Inc. and Ahmed Al-Qahtani

TENTATIVE RULING

Plaintiff Susan Bittan’s Motion for Attorney Fees and Costs is GRANTED. Plaintiff is awarded $416,931.50 in attorney’s fees and $15,119.11 in costs.

Attorney’s Fees

Plaintiff moves for attorney’s fees in the amount of $431,646.50. It is undisputed that Plaintiff is entitled to reasonable attorney’s fees pursuant to the parties’ settlement agreement. Generally, 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. Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.

Defendants argue the requested fees are unreasonable. Specifically, Defendants argue (1) Plaintiff’s counsel’s hourly rates are unreasonable, (2) Plaintiff has failed to provide a breakdown between attorney fees and costs incurred to prosecute claims against Defendants as opposed to co-Defendant Leaf, (3) Plaintiff overstaffed this case, and (4) the timesheets are filled with vague and inflated entries.

The Court finds Plaintiff’s counsel’s hourly rates are reasonable given their experience, skills, and the locality of the services provided. (Kabateck Decl., ¶¶ 14-17; Kabateck Suppl. Decl., ¶¶ 29-32.)

The Court finds apportionment of fees incurred to prosecute claims against Defendants from those to prosecute co-Defendant Leaf is not appropriate. “‘Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.’” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 771 (quoting Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-30).) “Thus, ‘[a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.’” (Id. at 771-72 (quoting Reynolds Metals Co., supra, 25 Cal.3d at 129-30) (alteration in original).) Here, although not all claims are asserted against Defendants, the Court finds the claims are intertwined regarding the issue of consent to publish the photographs of Plaintiff. The Court finds apportionment would be impracticable.

With respect to the contention that the timesheets are filled with vague and inflated entries, Defendants specifically oppose entries by CN for “conf with SK” on January 11, 2016; “read email from BK/respond” on January 12, 2016; “read emails” on March 21, 2016; and “emails” on April 6, 2016 and entries by SK with respect to the July 11, 2017 deposition of Ahmed Al-Qahtani. While vague, the Court finds CN’s entries are not so vague as to warrant a reduction of the requested fees As for SK’s entries, Plaintiff’s counsel has acknowledged that there was an inadvertent error regarding double billing for the July 11, 2017 deposition such that 9 hours or $5,400 should be removed. (Karnikian Decl., ¶ 4.) The Court thus reduces the requested fees by an additional $5,400.

Accordingly, Plaintiff is awarded $416,931.50 in attorney’s fees.

Costs

Plaintiff moves for an award of costs in the amount of $30,468.03.

Defendant objects to Plaintiff’s claim for recovery of expert costs, specifically (1) $3,150 for Athleo Cambre, (2) $4,668.92 for Dr. Anthony Reading, and (3) $7,530 for Dante Puccinelli as Civil Code section 3344 does not allow for recovery of such costs.

In reply, Plaintiff argues that expert costs are allowed pursuant to the parties’ agreement. The parties settlement provided for “payment of all attorney fees and costs in an amount to be determined by the Court pursuant to a fee motion wherein Plaintiff is deemed the prevailing party under Civil Code Section 3344 for purposes of the fee motion.” (Kabateck Decl., ¶ 9) The parties did not specify or define what “costs” would be recoverable under their agreement. Nor did they define the discretion the Court could exercise to determine what costs to award. Based on the terms of the parties’ agreement, and its reference to Plaintiff as the “prevailing party” under Civil Code Section 3344, and the context under which the agreement was made, the Court construes the parties’ agreement to allow Plaintiff to recover those costs that are statutorily awardable to a prevailing party. See e.g. Ripley v. Pappadopoulos (1994), 23 Cal.App.4th 1616 (because Cal.Civ.Proc.Code § 1033.5(b)(1) specifically excludes expert witness fees from the list of recoverable costs, such costs are not recoverable as fees)

Accordingly, Plaintiff is awarded costs in the amount of $15,119.11.