On 08/14/2014 SWIFTAIR filed a Contract - Other Contract lawsuit against ROW 44,INC. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are ALLAN J. GOODMAN and NANCY L. NEWMAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Santa Monica Courthouse
Los Angeles, California
ALLAN J. GOODMAN
NANCY L. NEWMAN
ROW 44 INC.
SOUTHWEST AIRLINES CO.
HOLMGREN DENNIS M.
BAKER & HOSTETLER LLP
SHEPPARD MULLIN RICHTER & HAMPTON
Court documents are not available for this case.
Proof of Service Filed by Attorney for PlaintiffRead MoreRead Less
Statement-Case Management Filed by Attorney for PlaintiffRead MoreRead Less
Points and Authorities (IN OPPOSITION TO PLTF'S PURPORTED MOTION TO COMPEL FURTHER RESPONSES & MOTION TO COMPEL COMPLIANCE REGARDING DEFT. ROW 44 INC'S RESPONSE TO PLTF. SWIFTAIR LLC'S REQUEST FOR PRODUCTION) Filed by Attorney for DefendantRead MoreRead Less
Response (TO PLTF'S SEPARATE STATEMENT OF ISSUES IN DISPUTE IN SUPPORT OF OPPOSITION TO PLTF'S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE ) Filed by Attorney for DefendantRead MoreRead Less
Response (TO PLTF'S SEPARATE STATEMENT OF ISSUES IN DISPUTE IN SUPPORT OF OPPOSITION TO PLTF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE) Filed by Attorney for DefendantRead MoreRead Less
Declaration (OF DYLAN J. PRICE IN SUPPORT OF DEFT. ROW 44, INC'S OPPOSITION TO PLTF'S PURPORTED MOTIONS TO COMPEL FURTHER RESPONSES RE: DOCUMENT DEMANDS & FORM INTERROGATORIES) Filed by Attorney for DefendantRead MoreRead Less
Declaration (OF DYLAN ) Filed by Attorney for DefendantRead MoreRead Less
Points and Authorities (IN OPPOSITION TO PLTF'S PURPORTED MOTION TO COMPEL FURTHER RESPONSES BY DEFT. ROW 44, INC. TO PLTF'S FORM INTERROGATORIES (SET ONE) ) Filed by Attorney for DefendantRead MoreRead Less
Points and Authorities Filed by Attorney for PlaintiffRead MoreRead Less
Motion to Compel (SWIFTAIR TO PROVIDE FURTHER RESPONSES TO SPECIAL INTERRO- GATORIES, SET ONE, & REQUEST FOR SANCTIONS ) Filed by Attorney for DefendantRead MoreRead Less
Statement-Case Management ("FAX FILING" ) Filed by Attorney for PlaintiffRead MoreRead Less
Order (granting pro hac vice motion ) Filed by Attorney for DefendantRead MoreRead Less
Demurrer (TO THE FOURTH, FIFTH, SIXTH SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH AND TWELFTH CAUSES OF ACTION IN THE COMPLAINT ) Filed by Attorney for DefendantRead MoreRead Less
Demurrer (TO COMPLAINT ) Filed by Attorney for DefendantRead MoreRead Less
Motion to Strike (PORTIONS OF SWIFTAIR, LLC'S ORIGINAL COMPLAINT ) Filed by Attorney for DefendantRead MoreRead Less
Memorandum - Other (IN FURTHER SUPPORT OF THE UNOPPOSED APPLICATION OF DOUGLAS D. D'ARCHE TO APPEAR AS COUNSEL PRO HAC VICE FOR DEFENDANT SOUTHWEST AIRLINES CO. ) Filed by Attorney for DefendantRead MoreRead Less
Stipulation and Order (FOR EXTENSION OF TIME FOR SOUTHWEST AIRLINES CO. TO RESPOND TO COMPLAINT; ) Filed by Attorney for PlaintiffRead MoreRead Less
Proof-Service/Summons Filed by Attorney for PlaintiffRead MoreRead Less
Complaint FiledRead MoreRead Less
Summons Filed Filed by Attorney for PlaintiffRead MoreRead Less
Case Number: SC122964 Hearing Date: February 28, 2020 Dept: P
Swiftair, LLC v. Row 44, Inc., Case No. SC122964
Hearing Date: February 28, 2020
Defendant Southwest’s Motion for Fees/Costs; Motions to Strike Memorandum of Costs
In August 2014, plaintiff SwiftAir LLC sued defendants Row 44 and Southwest Airlines Co. alleging breaches of an agreement for development of an inflight entertainment offering. The parties engaged in voluminous discovery and pretrial motion practice. After a thirteen-day trial beginning on August 19, 2019, the jury returned a verdict awarding SwiftAir no damages as to either defendant.
Defendant Southwest moves for attorney’s fees and costs under its Beta Test Agreement with plaintiff, which contains an attorney’s fees provision, and states it “shall be governed by and construed in accordance with the laws of the State of Texas.”
A prevailing party is entitled to recover costs as a matter of right, including attorney’s fees if authorized by statue or contract. Cal. Code of Civ. Proc. §1032(b), 1033.5(a)(10). In an action on a contract allowing for attorney’s fees, the prevailing party is the party “who recovered a greater relief.” The court may also determine that there is no prevailing party on the contract. Cal. Civ. Code §1717 (b)(1).
The same is true under Texas Law, which governs the Beta Test Agreement. A defendant who did not recover actual damages is the prevailing party if it successfully defends against a contract claim and secures a “take-nothing judgment on the main issue or issues in the case.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP (2019) 578 S.W.3d 469, 486.
The Beta Test agreement states “[i]n any action to enforce this Agreement the prevailing party will be entitled to costs and attorney’s fees.” Ex. B to D’Arche Decl. at ¶8. Additionally, the content provider agreement between SwiftAir and defendant Row 44 provides “[i]n the event that any dispute between the parties should result in litigation, arbitration, or mediation the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including reasonable attorneys’ fees and expenses[.]” D’Arche Decl., Ex. C.
Southwest argues it is the prevailing party because, as in Rohrmoos, it obtained a judgment from which plaintiff was awarded no damages. Plaintiff argues Southwest is not the prevailing party because the jury found Southwest did breach the Beta Test Agreement. Therefore, plaintiff argues, defendant did not obtain an unmixed victory. Plaintiff argues Rohrmoos is distinguishable because there defendant obtained a verdict that resulted in a “material alteration in its legal relationship with the plaintiff,” whereas here there was no ongoing legal relationship to be altered.
The court agrees Rohrmoos applies. Plaintiff’s primary objective was an award of damages, seeking well over $10 million. After years of litigation and a two-week trial, plaintiff was awarded no damages. The Rohrmoos court stated “a defendant can obtain actual and meaningful relief, materially altering the parties’ legal relationship, by successfully defending against a claim and securing a take nothing judgment on the main issue.” Rohrmoos, supra 578 S.W.3d at 486. Under Rohrmoos, a defendant who secures a “take nothing judgment” against plaintiff has per se materially altered the parties’ legal relationship. Defendant is the prevailing party and is entitled to reasonable costs and fees under the Beta Test Agreement. Since all reasonable fees and costs are recoverable, the court need not analyze the recoverability of fees under the Content Provider Agreement or defendant’s §998 offer.
A reasonable attorney’s fee is calculated based on the reasonable hourly rate prevailing in the community for similar work, the nature of the litigation, skill required, experience of counsel, attention given and success or failure. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096. A fee request may be denied or reduced if the requested fee is unreasonable and inflated. Serrano v. Unruh (1982) 32 Cal.3d 621, 635.
Southwest provides a spreadsheet detailing hours expended between August 2014 and September 2019. Though Southwest seeks a huge amount, the fees are not unreasonable for this case that lasted over five years and involved numerous complex issues. SwiftAir argues the fees requested are unreasonable in part because they include hours spent attending hearings pertaining to co-defendant Row 44. Such fees are reasonable, as Southwest’s interests were directly affected by the rulings and judgments sought by Row 44. As the requested fees and costs are reasonable, they are recoverable.
Because Southwest’s reasonable attorney’s fees are recoverable under the Beta Test Agreement, the court does not need to consider whether to specifically award attorney’s fees as sanctions in connection with its motion to compel compliance. Southwest’s motion for fees/costs is GRANTED.
Southwest’s Motion to Strike SwiftAir’s Memorandum of Costs
Southwest moves to strike SwiftAir’s memorandum of costs. Since, as explained above, SwiftAir is not the prevailing party, it cannot recover costs/fees. The motion is GRANTED.
SwiftAir also moves to strike two costs in Southwest’s memorandum of costs, specifically $209,886.89 for experts not ordered by the court and $98,108.01 for food, lodging, travel and telephone charges.
Under Cal. Code of Civ. Proc. §1033.5(b), fees of experts not ordered by the court and telephone charges are not recoverable as costs. Southwest notes that costs allowed under §998 can be augmented if a settlement offer under §998 is rejected. SwiftAir rejected the §998 offer and did not obtain a more favorable outcome. The expert witness fees are recoverable. Although the court has discretion to award the requested $98,108.01 in “other” costs, the court finds this figure is excessive, and the opposition fails to adequately demonstrate the necessity of these costs.
SwiftAir’s motion to strike is DENIED as to expert fees but GRANTED as to the section of the memorandum of costs labeled “other”. The requested costs and fees will be awarded, less $98.108.01.