This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 00:39:46 (UTC).

THE L A WHOLESALE PRODUCE MARKET LLC VS ATLAS CAPITAL GROUP

Case Summary

On 07/25/2016 THE L A WHOLESALE PRODUCE MARKET LLC filed a Property - Other Real Property lawsuit against ATLAS CAPITAL GROUP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8018

  • Filing Date:

    07/25/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

LOS ANGELES WHOLESALE PRODUCE MARKET LLC

Defendants and Respondents

ALAMEDA SQUARE OWNER LLC

DOES 1 THROUGH 100

ALL PERSONS UNKNOWN CLAIMING ANY LEGAL

ATLAS CAPITAL GROUP LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BOREN OSHER & LUFTMAN LLP

BOREN STEPHEN Z.

Defendant Attorneys

MCCANN KATHRYN L.

GAROFALO ELLYN S

HALLOCK KAREN

KALTGRAD AMIR

 

Court Documents

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. I

7/9/2018: OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. I

DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION IN LIMINE NO.3; DECLARATION OF KAREN L. HALLOCK AND EXHIBIT THERETO

7/13/2018: DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION IN LIMINE NO.3; DECLARATION OF KAREN L. HALLOCK AND EXHIBIT THERETO

DEFENDANT ALAMEDA SQUARE OWNER LLC'S NOTICE OF LODGING OF DEPOSITION TRANSCRIPTS

7/16/2018: DEFENDANT ALAMEDA SQUARE OWNER LLC'S NOTICE OF LODGING OF DEPOSITION TRANSCRIPTS

Minute Order

10/2/2018: Minute Order

Declaration

12/5/2018: Declaration

Order

5/13/2019: Order

Memorandum of Costs (Summary)

5/24/2019: Memorandum of Costs (Summary)

DECLARATION OF KIM N. A. BORAS IN SUPPORT OF MOTION FOR ORDER GRANTING A PRELIMINARY INJUNCTION ENJOINING DEFENDANTS FROM (1) ENTERING PLAINTIFF'S PROPERTY TO ACCESS ROW DTLA; AND (2) DISMANTLING, REM

8/16/2016: DECLARATION OF KIM N. A. BORAS IN SUPPORT OF MOTION FOR ORDER GRANTING A PRELIMINARY INJUNCTION ENJOINING DEFENDANTS FROM (1) ENTERING PLAINTIFF'S PROPERTY TO ACCESS ROW DTLA; AND (2) DISMANTLING, REM

NOTICE OF CHANGE OF TELEPHONE NUMBER

3/13/2017: NOTICE OF CHANGE OF TELEPHONE NUMBER

NOTICE RE: CONTINUANCE OF HEARING

4/21/2017: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

6/20/2017: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

RULING RE: DEFENDANTS ATLAS CAPITAL GROUP, LLC AND ALAMEDA SQUARE OWNER LLC'S MOTION FOR PROTECTIVE ORDER

6/26/2017: RULING RE: DEFENDANTS ATLAS CAPITAL GROUP, LLC AND ALAMEDA SQUARE OWNER LLC'S MOTION FOR PROTECTIVE ORDER

PLAINTIFF'S MOTION IN LIMINE NO. 3 TO PRECLUDE DEFENDANTS FROM INTRODUCING EVIDENCE AT TRIAL IN SUPPORT OF THE DEFENSES ASSERTED IN UNVERIFIED ANSWER TO VERIFIED FIRST AMENDED COMPLAINT

8/9/2017: PLAINTIFF'S MOTION IN LIMINE NO. 3 TO PRECLUDE DEFENDANTS FROM INTRODUCING EVIDENCE AT TRIAL IN SUPPORT OF THE DEFENSES ASSERTED IN UNVERIFIED ANSWER TO VERIFIED FIRST AMENDED COMPLAINT

(DEFENDANTS' PROPOSED) JOINT EXHIBIT LIST

8/9/2017: (DEFENDANTS' PROPOSED) JOINT EXHIBIT LIST

Minute Order

8/30/2017: Minute Order

PLAINTIFF'S REPLY TO OPPOSITION TO MOTION IN LIMINE NO. 1 TO PERMIT TRIER OF FACT TO VIEW THE PROPERTIES WHICH ARE THE SUBJECT OF THIS ACTION

8/30/2017: PLAINTIFF'S REPLY TO OPPOSITION TO MOTION IN LIMINE NO. 1 TO PERMIT TRIER OF FACT TO VIEW THE PROPERTIES WHICH ARE THE SUBJECT OF THIS ACTION

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

9/20/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

10/18/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

289 More Documents Available

 

Docket Entries

  • 05/31/2019
  • at 08:30 AM in Department 78; Hearing on Ex Parte Application (for Order Continuing Hearing) - Held

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  • 05/31/2019
  • Minute Order ( (Hearing on Ex Parte Application for Order Continuing Hearing)); Filed by Clerk

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  • 05/31/2019
  • Ex Parte Application (Amended Ex Parte Application for Order Continuing Hearing Date on Plaintiff's Motion for Attorneys' Fees); Filed by Atlas Capital Group, LLC (Defendant); Alameda Square Owner LLC (Defendant)

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  • 05/31/2019
  • Order (Granting Ex Parte Application)

    Read MoreRead Less
  • 05/30/2019
  • Opposition (To Defendants' Ex Parte Application for an Order Continuing the Hearing on Plaintiff's Motion for Attorney's Fees; Declaration of Stephen Z. Boren); Filed by Los Angeles Wholesale Produce Market, LLC (Plaintiff)

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  • 05/30/2019
  • Ex Parte Application (for Order Continuing Hearing); Filed by Atlas Capital Group, LLC (Defendant)

    Read MoreRead Less
  • 05/29/2019
  • Memorandum of Costs (Summary); Filed by Atlas Capital Group, LLC (Defendant); Alameda Square Owner LLC (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Request for Judicial Notice; Filed by Los Angeles Wholesale Produce Market, LLC (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Of Stephen Z. Boren In Support Of Plaintiffs' Notice of Motion and Motion for Attorney Fees); Filed by Los Angeles Wholesale Produce Market, LLC (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Of Robert Bruning In Support of Plaintiff's Motion for Attorney's Fees); Filed by Los Angeles Wholesale Produce Market, LLC (Plaintiff)

    Read MoreRead Less
548 More Docket Entries
  • 08/09/2016
  • Minute Order

    Read MoreRead Less
  • 08/09/2016
  • Minute order entered: 2016-08-09 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 08/05/2016
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

    Read MoreRead Less
  • 07/26/2016
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 07/26/2016
  • PEREMPTORY CHALLENGE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 170.6

    Read MoreRead Less
  • 07/26/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 07/25/2016
  • VERIFIED COMPLAINT FOR: (1) DECLARATORY RELIEF; ETC

    Read MoreRead Less
  • 07/25/2016
  • SUMMONS

    Read MoreRead Less
  • 07/25/2016
  • Complaint; Filed by Los Angeles Wholesale Produce Market, LLC (Plaintiff)

    Read MoreRead Less
  • 04/13/2016
  • Minute Order

    Read MoreRead Less

Tentative Rulings

Case Number: BC628018    Hearing Date: January 22, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

the los angeles wholesale produce market, llc;

Plaintiff,

vs.

atlas capital group, llc, et al.;

Defendants.

Case No.:

BC628018

Hearing Date:

January 22, 2020

[TENTATIVE] RULING RE:

DEFENDANTS ATLAS CAPITAL GROUP, LLC AND ALAMEDA SQUARE OWNER LLC’S NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES

Defendants Atlas Capital Group, LLC and Alameda Square Owner LLC’s Motion for Attorneys’ Fees is GRANTED in the amount of $808,445.20for Alameda Square Owner, LLC.

FACTUAL AND PROCEDURAL BACKGROUND

This action involves certain property in a section of downtown Los Angeles commonly known as “Alameda Square.” The Causes of Action of Plaintiff’ of Los Angeles Wholesale Produce Market (“LAWPM”) are set forth in its First Amended Complaint filed April 14, 2017.

On August 16, 2017 the Court granted LAWPM’s motions for summary adjudication on the First and Fourth causes of action. On December 22, 2017, after a bench trial, the Court entered judgment for LAWPM on the Second and Third Causes of Action. The facts relating to those causes of action are set forth in the written opinions granting the motion for summary adjudication and ruling for plaintiff on the 2nd and 3rd causes of action

LAWPM’s Fifth Cause of Action alleged that it was damaged because Alameda Square Owner (“Alameda”) removed a gate referred to as the “8th – Central gate” but failed to pay additional security costs that LAWPM incurred as a result of the relocation of this gate. This cause of action was tried to a jury on October 2-5 and 9, 2018. On October 9, 2018 the jury returned a verdict finding that Alameda was not required under the 1993 agreement to pay for any security costs incurred by LAWPM as a result of the removal of the 8th – Central gate. The jury also independently found that LAWPM did not incur any additional expenses as a result of the removal of the 8th – Central gate.

On May 6, 2019 the Court found that since there was no extrinsic evidence introduced at the jury trial relevant to the interpretation of the 1993 Agreement, the issue of whether Alameda breached the 1993 agreement by removing the 8th – Central gate was a question of law to be determined by the Court independent of the jury’s verdict. The Court found that that Alameda did not breach the 1993 Agreement because it offered to replace the gate within the parameters set forth in the 1993 Agreement but LAWPM prevented it from doing so. The Court also found that judgment against the LAWPM was independently required by the jury’s finding that LAWPM had did not incur any additional security costs as a result of the removal of the 8 – Central gate.

On May 6, 2019 the Court also addressed the issue of who was the prevailing party entitled to the recovery of costs under Code of Civil Procedure section 1032. Exercising the discretion granted it in this case under §1032, the Court found that LAWPM was the prevailing party on the 1st, 2nd 3rd and 4th causes of action and Alameda was the prevailing party on the 5th cause of action. This finding was repeated in the Judgment entered on May 14, 2019.

Alameda filed a Memorandum of Costs on May 29, 2019, seeking $36,671.73 in costs in defending the Fifth Cause of Action. LAWPM filed a Motion to Strike or Tax Costs on June 13, 2019, which this Court granted, leaving a total cost award to Alameda in the amount of $22,886.86.

On July 26, 2019, this Court granted LAWPM’s Motion for Attorneys’ Fees in the amount of $1,061,060.25.

On August 14, 2019, Defendants Atlas and Alameda filed the instant Motion for Attorneys’ Fees.

On October 18, 2019, LAWPM filed an Opposition.

On October 24, 2019, Defendants Atlas and Alameda filed a Reply.

On November 27, 2019, Defendants Atlas and Alameda filed a Supplemental brief.

On December 13, 2019, LAWPM filed an Opposition to the Supplement brief.

  1. OBJECTIONS

    LAWPM objects to portions of the declaration of Ellyn S. Garofalo submitted by Defendants in support of the present motion. These objections are OVERRULED.

    LAWPM also objects to portions of the declaration of Gerald G. Knapton submitted by Defendants in support of the present motion. Objection No. 2 is SUSTAINED, the remainder are overruled.

  2. MOTION FOR ATTORNEYS’ FEES

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘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.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.). Code of Civil Procedure section 1033.5(10) authorizes an award of attorneys’ fees as costs when they are provided for by contract, statute, or law. Further, “[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code § 1717,¿subd. (a).)¿

“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.”¿ (Melnyk¿v. Robledo¿(1976) 64 Cal.App.3d 618, 623.)¿ In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.¿ (See¿id.)¿¿¿

In determining the proper amount of fees to award, courts use the lodestar method.¿ The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.¿ “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”¿ (Serrano v. Priest¿(1977) 20 Cal.3d 25, 48 (Serrano¿III).)¿ A reasonable hourly rate must reflect the skill and experience of the attorney.¿ (Id.¿at p. 49.)¿ “Prevailing parties¿are compensated for hours reasonably spent on fee-related issues.¿ A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”¿ (Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635 (Serrano IV).)¿ The¿Court in¿Serrano IV¿also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.¿ (See¿id. at p. 624.)¿

Alameda is seeking attorneys’ fees, pursuant to section 13 of the 1993 Settlement Agreement, expended to defend the Fifth Cause of Action in the amount of $1,504,590.20. (Motion at pp. 1, 13.) The attorneys’ fees are based on an alleged 2,547.35 hours of attorney, paralegal and research staff work. (Motion at p. 12.)

Alameda justifies this high fee request on the grounds that it is entitled to recover all fees relating to the Fifth Cause of Action for Breach of Contract, including post-trial fees, as well as for the abandoned trespass claim, which they contend was the “forerunner to the breach of contract claim and arose under the same 1993 Settlement Agreement.” (Motion at pp. 8-10.) Alameda further argues that the fees are reasonable on the grounds that comparable firms charge more than $1,000 per hour, and that the number of hours spent by Alameda were “attributable to Plaintiff’s overly zealous and aggressive litigation practices, and refusal to give an inch in any quarter.” (Motion at p. 12.)

In Opposition, LAWPM argues that Atlas did not prevail on any cause of action because the Court found that only Alameda prevailed on the Fifth Cause of Action. (Opposition at pp. 2-3.) LAWPM further argues that the 1991 and 1993 settlement agreement are related, and that it received a “lopsided victory” against Alameda by prevailing on the first four causes of action and thus that only LAWPM could be the prevailing party. (Opposition at p. 5.)

As an initial matter, the Court, pursuant to its discretion under Code of Civil Procedure section 1032, has previously determined the prevailing parties.

On May 6, 2019 and in the judgment entered on May 14, 2019, this Court held that Alameda is the prevailing party on the Fifth Cause of Action and LAWPM is the prevailing party on causes of action One through Four. The Court further determined LAWPM’s attorneys’ fees on July 26, 2019 based on this determination of prevailing parties. Accordingly, this Motion for Attorneys’ Fees may proceed for Alameda, only, as the prevailing party of the Fifth Cause of Action.

LAWPM further argues in Opposition that Defendants’ requested fees are unreasonable by virtue of seeking more than a million dollars in fees, and because Defendants’ cite to work in connection with a cross-complaint that was never filed, work performed prior to Plaintiff filing the FACC, issues related to the first phase of trial, opposing motions on which Plaintiff prevailed, a motion for protective order on which Defendants were sanctions, an appeal, and Defendants’ opposition to Plaintiff’s attorney fee motion. (Opposition at p. 8.) Even more, LAWPM argues that the prevailing attorney rates are too high and should be reduced, that entries by 12 billers totaling $330,539.50 are not identified in Declarations and that several of the billing attorneys are purportedly transactional attorneys not litigators, and that there are duplicative billing entries and entries for other causes of action. (Opposition at pp. 9-13.) Lastly, LAWPM argues that the cause of action for trespass does not arise out of the 1993 agreement and in any case does not have a prevailing party because it was voluntarily dismissed. (Opposition at p. 11.)

The Court agrees with LAWPM that Alameda’s recovery is limited to the Fifth Cause of Action. The previously dismissed trespass cause of action is not the Fifth Cause of Action. The First Amended Complaint, alleging the Fifth Cause of Action for Breach of Written Contract for the first time, was filed on April 14, 2017. Alameda may not claim attorneys’ fees for work done prior to April 14, 2017 because it was not the prevailing party on the trespass cause of action. (Civ. Code, § 1717 [“(2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section”].)

Further, Defendants have failed to explain why, when they lost on four causes of action and only prevailed on one cause of action, it is reasonable for their attorneys’ fees to exceed those awarded to LAWPM who prevailed on four causes of action. With such a lopsided result, it is de facto unreasonable for Alameda to nonetheless retain a greater share of attorneys’ fees.

However, the Court disagrees with LAWPM that Alameda may not claim time billed on motions lost or unsuccessful theories or claims. (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273 [“To reduce the attorney's fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the cost of enforcing that public right”].) Additionally, Alameda may claim time billed for litigating the fee award. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 583-584, as modified (Jan. 12, 2005).)

On October 31, 2019, the Court granted Alameda the opportunity provide billing statements limited to Alameda, after April 14, 2017 (the date of filing of the FAC), and limited to the Fifth Cause of Action. Alameda has refused to fully comply with the Court’s orders. Alameda continues to request a total fee award of $1,504,590.20. (Suppl. Motion at p. 3.)

Alameda has provided the Court with the same billing statements as in its original motion seeking attorneys’ fees for work plainly done for the First through Fourth Causes of Action. The provided billing statements seek, despite the Court’s previous ruling, to receive attorneys’ fees for work performed prior to April 14, 2017. (Suppl. Decl. Garofalo ¶ 4 [“True and correct copies of Liner's billing invoices for professional services, rendered to Defendants between July 1, 2016 and August 31, 2017, are attached and incorporated as Exhibit A hereto”].) The billing statements also do not provide totals without the highlighted portions, as the Court previously addressed. Additionally, many of the statements do not provide the dollar amount billed per entries, which makes it extremely difficult for the Court to compute a fee award.

The early billing entries that Alameda seeks to have included in its fee award (all entries not highlighted) largely relate to work performed in connection with the Motion for Summary Judgment, which was pursued as to five causes of action. It is not clear as why Defendants believe that every summary judgment billing entry should be billed to a single cause of action. The descriptions are broadly written and appear to apply to the entire motion, not just the Fifth Cause of Action. Further, the billing statements have not been separated as to the Fifth Cause of Action only, as previously ordered.

However, Alameda has sufficiently supported its requested billing rates. Alameda provided a Supplemental Declaration of Gerald Knapton. Knapton states that the requested billing rates of the attorneys for Alameda range from $414.31 per hour for an attorney admitted to the practice of law in 2017 to $876.66 per hour for an attorney admitted to the practice of law in 1987. (Knapton Suppl. Decl. ¶ 4.) Th declaration identifies rates of attorneys at comparable firms in comparable real estate litigation matters with rates ranging from $576.94 to $1,255.78 for attorneys. (Knapton Suppl. Decl. ¶¶ 6-7.) Based on this declaration the Court finds the requested billing rates to be reasonable.

To resolve the issue with the un-adjusted billing statements, the Court will allow Alameda to receive attorneys’ fees for 1/5 of work performed from April 14, 2017 through August 16, 2017, the date of the Court’s ruling on the Motion for Summary Judgment, reflecting only the Fifth Cause of Action on a motion pursued against five causes of action. The total amount requested from April 14, 2017 through August 16, 2017 is $386,155.50, divided by 5 is $77,223.10 for Alameda for this period.

From August 16, 2017 through December 22, 2017, the Court will not allow Alameda to receive attorneys’ fees. The billing statements for this period exclusively refer to trial and deposition preparation, and the court trial on the Second and Third Causes of Action took place in November 2017, with a tentative statement of decision published in December 2017. The jury trial on the Fifth Cause of Action did not take place until October 2018.

The Court will award the remaining amount, minus the approximate value of the highlighted amounts (approximate due to the fact that all billing statements provided for this period do not include dollar amount allocations per billing entry). The calculated total remaining amount from January 2018 onwards is $731,222.10.

Accordingly, the total fee award for Alameda is $808,445.20.

DATED:  January 22, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC628018    Hearing Date: October 31, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

the los angeles wholesale produce market, llc;

Plaintiff,

vs.

atlas capital group, llc, et al.;

Defendants.

Case No.:

BC628018

Hearing Date:

October 31, 2019

[TENTATIVE] RULING RE:

DEFENDANTS ATLAS CAPITAL GROUP, LLC AND ALAMEDA SQUARE OWNER LLC’S NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES

Defendants Atlas Capital Group, LLC and Alameda Square Owner LLC’s Motion for Attorneys’ Fees is CONTINUED until _________. Alameda is to provide the Court with updated billing statements and summary totals that exclude time billed prior to the FAC on April 14, 2017 and exclude time billed for work performed for Atlas because they are not a prevailing party. Alameda is further to provide accurate comparable billing rates of similarly situated attorneys.

FACTUAL AND PROCEDURAL BACKGROUND

This action involves certain property in a section of downtown Los Angeles commonly known as “Alameda Square.” The Causes of Action of Plaintiff’ of Los Angeles Wholesale Produce Market (“LAWPM”) are set forth in its First Amended Complaint filed April 14, 2017.

On August 16, 2017 the Court granted LAWPM’s motions for summary adjudication on the First and Fourth causes of action. On December 22, 2017, after a bench trial, the Court entered judgment for LAWPM on the Second and Third Causes of Action. The facts relating to those causes of action are set forth in the written opinions granting the motion for summary adjudication and ruling for plaintiff on the 2nd and 3rd causes of action

LAWPM’s Fifth Cause of Action alleged that plaintiff was damaged because defendants removed a gate referred to as the “8th – Central gate” but failed to pay plaintiff additional security costs that plaintiff incurred as a result of the relocation of this gate. This cause of action was tried to a jury on October 2-5 and 9, 2018. On October 9, 2018 the jury returned a verdict finding that Alameda Square Owner or was not required under the 1993 agreement to pay for any security costs incurred by LAWPM as a result of the removal of the 8th – Central gate. The jury also independently found that LAWPM did not incur any additional expenses as a result of the removal of the 8th – Central gate.

On May 6, 2019 the Court found that sine there was no extrinsic evidence introduced at the jury trial relevant to the interpretation of the 1993 Agreement, the issue of whether defendants breached the 1993 agreement by removing the 8th – Central gate was a question of law to be determined by the Court independent of the jury’s verdict. The Court found that that did not breach the 1993 Agreement because it offered to replace the gate within the parameters set forth in the 1993 Agreement but LAWPM prevented it from doing so. The Court also found that judgment against the LAWPM was independently required by the jury’s finding that LAWPM had did not incur any additional security costs as a result of the removal of the 8 – Central gate.

On May 6, 2019 the Court also addressed the issue of who was the prevailing party entitled to the recovery of costs under Code of Civil Procedure section 1032. Exercising the discretion granted it in this case under §1032, the Court found that LAWPM was the prevailing party on the 1st, 2nd 3rd and 4th causes of action and defendants were the prevailing party on the 5th cause of action. This finding was repeated in the judgment entered on May 14, 2019.

Alameda filed a Memorandum of Costs on May 29, 2019, seeking $36,671.73 in costs in defending the Fifth Cause of Action. LAWPM filed a Motion to Strike or Tax Costs on June 13, 2019, which this Court granted, leaving a total cost award to Alameda in the amount of $22,886.86.

On July 26, 2019, this Court granted LAWPM’s Motion for Attorneys’ Fees in the amount of $1,061,060.25.

On August 14, 2019, Defendants Atlas and Alameda filed the instant Motion for Attorneys’ Fees.

On October 18, 2019, LAWPM filed an Opposition.

On October 24, 2019, Defendants Atlas and Alameda filed a Reply.

  1. OBJECTIONS

    Defendants object to portions of the declarations of Robert Bruning and Steven Kuehl submitted by LAWPM in opposition to the present motion. These objections are OVERRULED.

    LAWPM objects to portions of the declaration of Ellyn S,. Garofalo submitted by Defendants in support of the present motion. These objections are OVERRULED.

  2. MOTION FOR ATTORNEYS’ FEES

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘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.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.). Code of Civil Procedure section 1033.5(10) authorizes an award of attorneys’ fees as costs when they are provided for by contract, statute, or law. Further, “[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code § 1717,¿subd. (a).)¿

“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.”¿ (Melnyk¿v. Robledo¿(1976) 64 Cal.App.3d 618, 623.)¿ In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.¿ (See¿id.)¿¿¿

In determining the proper amount of fees to award, courts use the lodestar method.¿ The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.¿ “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”¿ (Serrano v. Priest¿(1977) 20 Cal.3d 25, 48 (Serrano¿III).)¿ A reasonable hourly rate must reflect the skill and experience of the attorney.¿ (Id.¿at p. 49.)¿ “Prevailing parties¿are compensated for hours reasonably spent on fee-related issues.¿ A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”¿ (Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635 (Serrano IV).)¿ The¿Court in¿Serrano IV¿also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.¿ (See¿id. at p. 624.)¿

Defendants Atlas and Alameda are seeking attorneys’ fees, pursuant to section 13 of the 1993 Settlement Agreement, expended to defend the Fifth Cause of Action in the amount of $1,504,590.20. (Motion at pp. 1, 13.) The attorneys’ fees are based on an alleged 2,547.35 hours of attorney, paralegal and research staff work. (Motion at p. 12.)

Defendants justify this high fee request on the grounds that it is entitled to recover all fees relating to the Fifth Cause of Action for Breach of Contract, including post-trial fees, as well as for the abandoned trespass claim, which they contend was the “forerunner to the breach of contract claim and arose under the same 1993 Settlement Agreement. (Motion at pp. 8-10.) Defendants further argue that the fees are reasonable on the grounds that comparable firms charge more than $1,000 per hour, and that the number of hours spent by Alameda were “attributable to Plaintiff’s overly zealous and aggressive litigation practices, and refusal to give an inch in any quarter.” (Motion at p. 12.)

In Opposition, LAWPM argues that Atlas did not prevail on any cause of action because the Court found that only Alameda prevailed on the Fifth Cause of Action. (Opposition at pp. 2-3.) LAWPM further argues that the 1991 and 1993 settlement agreement are related, and that it received a “lopsided victory” against Alameda by prevailing on the first four causes of action and thus that only LAWPM could be the prevailing party. (Opposition at p. 5.)

As an initial matter, the Court finds LAWPM’s arguments largely unpersuasive regarding the prevailing parties. The Court, pursuant to its discretion under Code of Civil Procedure section 1032, has previously determined the prevailing parties.

On May 6, 2019 and in the judgment entered on May 14, 2019, this Court held that Alameda is the prevailing party on the Fifth Cause of Action and LAWPM is the prevailing party on causes of action One through Four. This Court further awarded LAWPM’s attorneys’ fees on July 26, 2019 based on this determination of prevailing parties. Accordingly, this Motion for Attorneys’ Fees may proceed for Alameda, only, as the prevailing party of the Fifth Cause of Action.

LAWPM further argues in Opposition that Defendants’ requested fees are unreasonable by virtue of seeking more than a million dollars in fees, and because Defendants’ cite to work in connection with a cross-complaint that was never filed, work performed prior to Plaintiff filing the FACC, issues related to the first phase of trial, opposing motions on which Plaintiff prevailed, a motion for protective order on which Defendants were sanctioned, an appeal, and Defendants’ opposition to Plaintiff’s attorney fee motion. (Opposition at p. 8.) Even more, LAWPM argues that the prevailing attorney rates are too high and should be reduced, that entries by 12 billers totaling $330,539.50 are not identified in Declarations and that several of the billing attorneys are purportedly transactional attorneys not litigators, and that there are duplicative billing entries and entries for other causes of action. (Opposition at pp. 9-13.) Lastly, LAWPM argues that the cause of action for trespass does not arise out of the 1993 agreement and in any case does not have a prevailing party because it was voluntarily dismissed. (Opposition at p. 11.)

The Court agrees with LAWPM that Alameda’s recovery is limited to the Fifth Cause of Action as the previously dismissed trespass cause of action is not the Fifth Cause of Action. The First Amended Complaint, alleging the Fifth Cause of Action for Breach of Written Contract for the first time, was filed on April 14, 2017. Alameda may not claim attorneys’ fees for work done prior to April 14, 2017 because it was not the prevailing party on the trespass cause of action. (Civ. Code, § 1717 [“(2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section”].)

Here, Defendants have attached various billing statements to their Motion. However, every billing statement attached to the declaration of Ellyn S. Garofalo lists Atlas Capital Group, LLC as the client. (Garofalo Decl., Exh. 1.) Garofalo does not address this and it is impossible for the Court to determine which billing entries relate to Atlas and which entries relate to Alameda. As several entries expressly list Atlas in the description, the Court cannot assume that all entries relate only to Alameda. (Garofalo Decl., Exh. 1 [e.g., Invoice No. 200951, 11/9/2016].) Numerous entries are marked in highlighter, but Garofalo does not explain what the highlight represents. The Declaration of Gerald Knapton indicates that highlights represent where time was removed, but this is not further explained nor are adjusted totals provide per invoice, which makes it impossible for the Court to confirm Defendants’ calculations. (Knapton Decl. ¶¶ 18, 20.) Further, as addressed above, the entries prior to April 14, 2017 may not be included. Lastly, Defendants have not compiled the totals per invoice that they are purporting to include in their $1,504,590.20 total, which makes it impossible for the Court to ascertain whether the highlighted portions have actually been excluded from the total, as well as whether other amount such as costs have inadvertently been included in the total, as well.

Defendants have further sought to justify their high billing rates with comparisons to the billing rates of attorneys at similar firms. However, the sample list of attorneys billing over $1,000 per hour at similar large law firms is nearly entirely comprised of transactional attorneys, not litigators in state court as in the instant case. (Knapton Decl. ¶ 55.) A comparable billing rate must be supported by evidence of the rates of similarly practicing attorneys. (Stratton v. Beck (2017) 9 Cal.App.5th 483, 496.)

Lastly, Defendants have failed to explain why, when they lost on four causes of action and only prevailed on one cause of action, it is reasonable for their attorneys’ fees to exceed those awarded to LAWPM who prevailed on four causes of action.

However, the Court disagrees with LAWPM that Alameda may not claim time billed on motions lost or unsuccessful theories or claims. (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273 [“To reduce the attorney's fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the cost of enforcing that public right”].) Additionally, Alameda may claim time billed for litigating the fee award. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 583-584, as modified (Jan. 12, 2005).)

Accordingly, rather than deny the Motion outright, Alameda is to provide the Court with updated billing statements and summary totals that exclude time billed prior to the FAC on April 14, 2017 and exclude time billed for work performed for Atlas because they are not a prevailing party. Alameda is further to provide accurate comparable billing rates of similarly situated attorneys.

DATED:  October 31, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court