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This case was last updated from Los Angeles County Superior Courts on 06/18/2019 at 14:10:54 (UTC).

TRISTAR REALTY GROUP, LLC VS. KOURY ENGINEERING

Case Summary

On 10/17/2016 TRISTAR REALTY GROUP, LLC filed a Contract - Other Contract lawsuit against KOURY ENGINEERING. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Not Classified By Court.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4767

  • Filing Date:

    10/17/2016

  • Case Status:

    Not Classified By Court

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs, Cross Defendants and Appellants

18131 VENTURA BLVD. LLC

TRISTAR REALTY GROUP LLC

LAW OFFICE OF MATTHEW SHAYEFAR PC

Defendants, Respondents and Cross Plaintiffs

DOES 1-10

DOURY ENGINERRING & TESTING INC.

DOURY GEOTECHNICAL SERVICES INC.

ROY JACQUES BERTRAND

MENEFEE DVE

KOURY ENGINERRING & TESTING INC.

MENEFEE DAVE

KOURY RICHARD D

KOURY GEOTECHNICAL SERVICES INC.

Respondents and Cross Plaintiffs

HART KING

KOURY ENGINERRING & TESTING INC.

Not Classified By Court

LAW OFFICE OF MATTHRE SHAYEFAR PC

O'TOOLE EILEEN K.

Attorney/Law Firm Details

Plaintiff Attorney

SHAYEFAR MATTHEW

Defendant Attorney

HART WILLIAM ROBERT

 

Court Documents

Minute Order

10/20/2016: Minute Order

Unknown

11/2/2016: Unknown

Proof of Service by Mail

3/10/2017: Proof of Service by Mail

Unknown

10/16/2017: Unknown

Unknown

10/16/2017: Unknown

Unknown

10/16/2017: Unknown

Notice

1/17/2018: Notice

Notice

1/17/2018: Notice

Minute Order

4/23/2018: Minute Order

Minute Order

5/24/2018: Minute Order

Minute Order

9/20/2018: Minute Order

Declaration

12/3/2018: Declaration

Unknown

12/12/2018: Unknown

Opposition

2/8/2019: Opposition

Reply

2/15/2019: Reply

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/25/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

3/6/2019: Minute Order

Order

3/6/2019: Order

148 More Documents Available

 

Docket Entries

  • 06/11/2019
  • Appeal Record Delivered; Filed by Clerk

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  • 06/10/2019
  • Appeal - Original Clerk's Transcript 1 - 5 Volumes Certified; Filed by Clerk

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  • 05/21/2019
  • Appeal - Clerk's Transcript Fee Paid (APPELLANT PAID $1045.24)

    Read MoreRead Less
  • 05/16/2019
  • Appeal - Clerk's Transcript Fee Paid (RESPONDENT PAID $577.74 BY HART KING)

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  • 05/10/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Non-Appearance Case Review ((Status of the Appeal)) - Held

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  • 05/10/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review (Status of the Appeal)) of 05/10/2019); Filed by Clerk

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  • 05/10/2019
  • Minute Order ( (Non-Appearance Case Review (Status of the Appeal))); Filed by Clerk

    Read MoreRead Less
  • 05/08/2019
  • Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by Clerk

    Read MoreRead Less
  • 03/20/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript; Filed by Clerk

    Read MoreRead Less
  • 03/18/2019
  • Appeal - Notice of Filing of Notice of Appeal (Amended); Filed by Clerk

    Read MoreRead Less
197 More Docket Entries
  • 10/20/2016
  • at 08:30 AM in Department T; (Application-Ex Parte; Granted-As modified) -

    Read MoreRead Less
  • 10/20/2016
  • Declaration; Filed by Tristar Realty Group, LLC (Plaintiff)

    Read MoreRead Less
  • 10/20/2016
  • Declaration; Filed by Tristar Realty Group, LLC (Plaintiff); 18131 Ventura Blvd, LLC (Plaintiff)

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  • 10/20/2016
  • Minute order entered: 2016-10-20 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 10/20/2016
  • Ex-Parte Application; Filed by Tristar Realty Group, LLC (Plaintiff)

    Read MoreRead Less
  • 10/19/2016
  • Opposition; Filed by Tristar Realty Group, LLC (Plaintiff); 18131 Ventura Blvd, LLC (Plaintiff)

    Read MoreRead Less
  • 10/17/2016
  • Summons-Issued; Filed by Tristar Realty Group, LLC (Plaintiff); 18131 Ventura Blvd, LLC (Plaintiff)

    Read MoreRead Less
  • 10/17/2016
  • Complaint; Filed by Tristar Realty Group, LLC (Plaintiff); 18131 Ventura Blvd, LLC (Plaintiff)

    Read MoreRead Less
  • 10/17/2016
  • Civil Case Cover Sheet; Filed by Tristar Realty Group, LLC (Plaintiff); 18131 Ventura Blvd, LLC (Plaintiff)

    Read MoreRead Less
  • 10/17/2016
  • Notice of Case Management Conference; Filed by null

    Read MoreRead Less

Tentative Rulings

Case Number: LC104767    Hearing Date: November 06, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

tristar realty group, llc, et al.,

Plaintiffs,

v.

khoury engineering & testing, inc., et al.,

Defendants.

Case No.: LC104767

Hearing Date: November 6, 2020

[TENTATIVE] order RE:

defendants’ motion for attorneys’ fees as costs on appeal in the amount of $37,632.70

BACKGROUND

A. Allegations

Plaintiff Tristar Realty Group, LLC (“Tristar”) alleges that it entered into a Professional Services Agreement dated November 11, 2014 with Defendant Koury Engineering & Testing, Inc. (“KET”), whereby KET was to perform inspection and testing services for a construction project at 18131 Ventura Blvd. in Tarzana. The agreement indicated that it was a “not to exceed” contract and set forth specific exceptions where KET could charge more than the agreed budget. Tristar alleges that KET sought nearly four times the amount stated in the agreement and refused to release important documents to Tristar. The complaint, filed October 17, 2016, alleges causes of action for: (1) breach of contract; (2) fraud; (3) unjust enrichment; (4) slander of title; and (5) unlawful and unfair business practices.

On December 16, 2016, KET filed a cross-complaint against Plaintiffs/Cross-Complainants Tristar and 18131 Ventura Blvd, LLC (“Ventura”) for: (1) breach of contract; (2) indebitatus assumpsit; (3) account stated; (4) open book account; (5) quantum meruit; and (6) foreclosure of mechanic’s lien.

B. Relevant Background and Motions on Calendar

A bench trial was conducted on May 23 to May 25, 2018. The Court issued a statement of decision on June 25, 2018.

On October 15, 2018, the Court entered the Judgment in this action. The Judgment found in relevant part:

· For Defendant/Cross-Complainant KET and against Plaintiffs/Cross-Defendants Tristar and Ventura on the quantum meruit cause of action in the amount of $59,122.75.

· For all Defendants KET, Koury Geotechnical Services, Inc. (“KGS”), Richard D. Koury, Dave Menefee, and Jacques Bertrand Roy and against Plaintiffs on the causes of action for fraud, unjust enrichment, slander of title, and unlawful business practices.

· For KGS and against Plaintiffs on all causes of action by Plaintiffs against KGS.

· For Tristar and against KET on Tristar’s breach of contract claim in the amount of $12,512.84.

· For Tristar and Ventura’s and against KET as to KET’s breach of contract claim.

· KTS’s cause of action for foreclosure of mechanic’s lien (the mechanic’s lien was bonded) was dismissed, as well as KTS’s common count causes of action against Tristar and Ventura for indebitatus assumpsit, account stated, and open book account were dismissed.

· The monetary claims of the parties arise out of the same transaction and series of transactions and can be offset, which resulted in a net judgment for KET and against Tristar and Ventura in the amount of $46,609.91.

· KET is the prevailing party and may recover costs by bill of costs and attorney’s fees by motion. KGS and the individual Defendants are also prevailing parties and if any of them have separate costs, they may also submit a bill of costs.

On October 25, 2018, KET filed a Notice of Entry of Judgment.

Tristar appealed. The Court of Appeal issued an opinion on May 14, 2020, affirming the judgment. The Court of Appeal also awarded costs on appeal to KET. On July 31, 2020, a Remittitur was filed.

On September 9, 2020, KET filed a Memorandum of Costs on Appeal.

On September 9, 2020, KET, KGS, Mr. Koury, Mr. Menefee, and Mr. Roy (collectively, “KET”) filed a motion for an award of attorney’s fees as costs on appeal in the amount of $37,632.70 against Plaintiffs/Cross-Defendants Tristar and Ventura (collectively, “Tristar).

On October 26, 2020, Tristar filed an opposition to the motion.

On October 30, 2020, KET filed a reply brief.

DISCUSSION

A. Merits of Motion: Entitlement to Attorney’s Fees

Civil Code, § 1717(a) states in relevant part:

(a) In 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.

Where a , as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

(Civ. Code, § 1717.)

CRC Rule 8.278(a)(2) states that the prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.

KET seeks attorney’s fees pursuant to section 6.5 of the Professional Services Agreement. Section 6.5 (Legal Action) states in relevant part:

(b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys‘ fees, experts‘ fees, and other costs, in addition to any other relief to which the party may be entitled.

(Professional Services Agreement, §6.5(b).)

In the Court’s prior order granting KET attorney’s fees pursuant to Civil Code, § 1717, the Court already discussed KET’s entitlement to fees under paragraph 6.5 and that the language of the agreement was sufficiently broad enough to cover types of claims adjudicated in this action.

Further, the Court of Appeal \awarded KET costs on appeal based on its May 14, 2020 opinion. (See Morse Decl., Ex. A at p.18.) The Remittitur was issued on July 31, 2020, and KET filed the Memorandum of Costs on Appeal and this instant motion for attorney’s fees on appeal on September 9, 2020. This was timely filed within the 40-day filing period pursuant to CRC Rule 8.278.

Thus, the Court finds that the KET has established a valid basis for its entitlement to attorney’s fees.

B. Amount of Attorney’s Fees Awarded

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award. (Id.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id.) No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.)

KET requests that the Court award fees in the amount actually billed as opposed to using the lodestar method. (Mot. at p.9.) KET seeks $37,632.70 for attorney’s fees on appeal. In support of the motion, KET provides the declaration of its counsel, James S. Morse, and a copy of the billing records. (Morse Decl., Ex. B [Billing Records].)

In the moving papers, KET provides billing records from December 14, 2018 to April 28, 2020. KET argues that the total amount of hours billed by counsel is 130.6 hours total and that the total sought in attorney’s fees on appeal is $36,532.50 (i.e., $37,632.50 total sought minus $1,110 for time spent on this motion after the appeal). There appears to be some calculation issues by KET, which the Court has addressed in its footnotes and the chart below. As the total amount sought by KET in the notice of the motion is $37,632.50, the Court will base its calculations off this number.

Mr. Morse states that the Hart King (“HK”) law firm and Poliquin & DeGrave (“P&D”), the law firms hired by KET for the litigation and resulting appeal, accrued the following times (Morse Decl., ¶¶4, 11-12):

Attorney

Rates

Hours

Total Billed

Mr. Morse

(Partner, HK)

Admitted 1986

Ordinarily $385/hour, but billed at $275-$320/hour

13.3 hours

$2,325.50[1]

Rhonda H. Mehlman

(Senior counsel, HK)

Admitted 1989

· $230/hour for initial evaluation; and

· $230-$295/hour for preparing the record

· 0.2 hour

· 5 hours[2]

· $46 (12/17/18)

· $1,475 (3/25/19 to 8/20/19)

Total: $1,521

April Balangue

(P&D)

Admitted 2000

Primarily handled appellate briefing and argument. She passed away on July 10, 2020.

$295/hour

110.8

$32,686

Mr. Morse also seeks recovery of the time spent to file this motion for attorney’s fees and the reply brief, for another 4 hours, at an actual rate of $275/hour, for a total of $1,100. (Morse Decl., ¶13.) Thus, the total amount sought is $37,632.50.

The Court finds the billing rates sought by counsel to be reasonable and will not reduce the hourly rates sought. It does not appear that Tristar opposes the hourly rates sought by KET’s counsel.

However, Tristar argues that the times billed by counsel should be reduced by 47.9 hours, or $13,858 total.

Tristar argues that Mr. Morse’s billing from June 14, 2019 to April 28, 2020 (14.7 hours total) should be reduced because the times billed are duplicative and unnecessary and the hours sought are inflated. The Court has reviewed Mr. Morse’s billing records and finds that the times sought by Mr. Morse from December 14, 2018 to September 18, 2019 are reasonable in amount for the tasks performed. Ms. Balangue’s entries in the billing records do not appear until September 18, 2019. Further, his work performed thereafter involving review of the appellate brief, revising legal arguments, incorporating citations, attending the appeal telephonically, etc. appear to be modest in time and reasonable from September 25, 2019 to April 28, 2020. Thus, the Court will not make further reductions to the time sought by Mr. Morse. The total recoverable for Mr. Morse’s time in this action shall be $2,325.50 as calculated in the footnote of the Court’s order.

Tristar argues that Ms. Mehlman’s time should be reduced because the hours sought are duplicative and unnecessary for an attorney, inflated, and the tasks she performed are clerical in nature. Ms. Mehlman’s billed hours on the appeal from December 17, 2018 to August 20, 2019. The Court will reduce the hours spent by Ms. Mehlman as follows. The time spent by Ms. Mehlman on December 17, 2018 (0.2 hour) is essentially duplicative of the work performed by Mr. Morse on December 14, 2018, and thus will be reduced at the $230/hour rate ($46 reduction). The Court will reduce Ms. Mehlman’s time spent on obtaining and reviewing transcripts by half on July 8, 2019 (0.3 hour), July 15, 2019 (0.2 hour), and July 16, 2019 (0.2 hour), August 18, 2019 (2.9 hours), and August 20, 2019 (0.5 hour), as the tasks performed were mainly clerical; the total reduction shall be for 2.05 hours at the $295/hour rate ($604.75 reduction). Thus, the Court will reduce the total amount of time spent by Ms. Mehlman on the appeal in the total amount of $650.75. The total amount that may be recoverable for Ms. Mehlman’s time shall be $870.25 ($1,521 minus $650.75).

Tristar argues that Ms. Balangue’s time should be reduced by 28.1 hours from October 15, 2019 to December 29, 2019, or $8,289.50 total. The Court will reduce some of the time spent on Ms. Balangue as duplicative. The Court will reduce by half the 4.6, 2.3, and 3.3 hours spent on reviewing the transcript on October 15, 2019; the 3.40 hours on November 8, 2019; and 4.8 hours on November 11, 2019, for a reduction of 9.2 hours ($2,714 reduction). The Court will also reduce by half the 1.8 hours and 2 hours she spent on assembling exhibits on December 3, 2019, for a total reduction of 1.9 hours ($560.50 reduction). Thus, the Court will reduce the total amount of time spent by Ms. Balangue on the appeal by the total amount of $3,274.50. The total amount that may be recoverable for Ms. Balangue’s time shall be $29,411.50 ($32,686 minus $3,274.50).

For the time spent on this motion and the anticipated time on the reply and the hearing, the Court will award a reasonable sum of $1,100 as requested. The Court finds that the time spent on the motion and the anticipated time spent on the reply brief and to attend the hearing are reasonable in amount.

Based on the findings above, the Court grants KET’s motion for attorney’s fees in the amount of $33,707.25. This includes $2,325.50 for Mr. Morse’s time, $870.25 for Ms. Mehlman’s time, and $29,411.50 for Ms. Balangue’s time, plus $1,100 for this motion.

In the reply brief, KET asks that the Court enter also approve the costs sought in the Memorandum of Costs in the amount of $986.94, as it was unchallenged by Tristar. Pursuant to CRC Rule 3.1700(b)(4), after the time has passed for a motion to strike or tax costs or for the determination of that motion, the clerk must immediately enter the costs on the judgment. The Court need not enter the costs by way of this motion, but the costs appear reasonable and should be included in the judgment.

CONCLUSION AND ORDER

KET’s motion for attorney’s fees on appeal is granted in the amount of $33,707.25.

Defendants shall provide notice of this order.


[1] As it was unclear what total hours and at what hourly rate Mr. Morse billed at, the Court summarizes his hours billed:

· 12/14/18 for 0.2 hour for $64 total

· 6/14/19 for 0.5 hour for $137.50 total

· 9/5/19 for 6 hours for $1,650 total

· 9/18/19 for 1.2 hours for $330 total

· 9/25/19 for 0.6 hour for $165 total

· 11/17/19 for 1.5 hour for $412.50 total

· 12/9/19 for 0.3 hour for $82.50 total

· 12/17/19 for 0.6 hour for $165 total

· 4/22/20 for 3.5 hour for $962.50 total

· 4/28/20 for 0.8 hour for $220 total

Taking these entries, it appears that Mr. Morse has billed 15.2 hours and a total of $4,204.20. However, Plaintiff did not request 15.2 hours and instead only requested 13.3 hours total for Mr. Morse. Thus, the Court will only consider Mr. Morse’s hours at 13.3 hours as Plaintiff gave notice of these slightly reduced hours with the moving papers.

The Court will consider Mr. Morse’s total billing to be $2,325.50. The Court arrived at this figure by taking the total requested amount of fees of $37,632.50, minus $1,100 sought for the time spent on this motion, minus $32,686 for the time billed by Ms. Balangue, minus $1,521 for the time billed by Ms. Melman. The remainder leaves $2,325.50 to account for Mr. Morse’s time.

[2] KET states that Ms. Mehlman has billed 6.5 hours, but the Court is only aware of 5.2 hours total billed by Ms. Mehlman. As such, the Court will base its analysis on the 5.2 hours billed in the invoices.

Case Number: LC104767    Hearing Date: August 28, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

tristar realty group, llc, et al.,

Plaintiffs,

v.

khoury engineering & testing, inc., et al.,

Defendants.

Case No.: LC104767

Hearing Date: August 28, 2020

[TENTATIVE] order RE:

(1) defendants’ motion for attorneys’ fees and costs; and

(2) plaintiff’s motion to strike and/or tax costs

BACKGROUND

A. Allegations

Plaintiff Tristar Realty Group, LLC (“Tristar”) alleges that it entered into a Professional Services Agreement dated November 11, 2014 with Defendant Koury Engineering & Testing, Inc. (“KET”), whereby KET was to perform inspection and testing services for a construction project at 18131 Ventura Blvd. in Tarzana. The agreement indicated that it was a “not to exceed” contract and set forth specific exceptions where KET could charge more than the agreed budget. Tristar alleges that KET sought nearly four times the amount stated in the agreement and refused to release important documents to Tristar. The complaint, filed October 17, 2016, alleges causes of action for: (1) breach of contract; (2) fraud; (3) unjust enrichment; (4) slander of title; and (5) unlawful and unfair business practices.

On December 16, 2016, KET filed a cross-complaint against Plaintiffs/Cross-Complainants Tristar and 18131 Ventura Blvd, LLC (“Ventura”) for: (1) breach of contract; (2) indebitatus assumpsit; (3) account stated; (4) open book account; (5) quantum meruit; and (6) foreclosure of mechanic’s lien.

B. Relevant Background and Motions on Calendar

A bench trial was conducted on May 23 to May 25, 2018. The Court issued a statement of decision on June 25, 2018.

On October 15, 2018, the Court entered the Judgment in this action. The Judgment found in relevant part:

· For Defendant/Cross-Complainant KET and against Plaintiffs/Cross-Defendants Tristar and Ventura on the quantum meruit cause of action in the amount of $59,122.75.

· For all Defendants KET, Koury Geotechnical Services, Inc. (“KGS”), Richard D. Koury, Dave Menefee, and Jacques Bertrand Roy and against Plaintiffs on the causes of action for fraud, unjust enrichment, slander of title, and unlawful business practices.

· For KGS and against Plaintiffs on all causes of action by Plaintiffs against KGS.

· For Tristar and against KET on Tristar’s breach of contract claim in the amount of $12,512.84.

· For Tristar and Ventura’s and against KET as to KET’s breach of contract claim.

· KTS’s cause of action for foreclosure of mechanic’s lien (the mechanic’s lien was bonded) was dismissed, as well as KTS’s common count causes of action against Tristar and Ventura for indebitatus assumpsit, account stated, and open book account were dismissed.

· The monetary claims of the parties arise out of the same transaction and series of transactions and can be offset, which resulted in a net judgment for KET and against Tristar and Ventura in the amount of $46,609.91.

· KET is the prevailing party and may recover costs by bill of costs and attorney’s fees by motion. KGS and the individual Defendants are also prevailing parties and if any of them have separate costs, they may also submit a bill of costs.

On October 25, 2018, KET filed a Notice of Entry of Judgment.

On November 3, 2018, KET filed a Memorandum of Costs.

Tristar appealed. The Court of Appeal issued an opinion on May 14, 2020, affirming the judgment. The Court of Appeal also awarded costs on appeal to KET. On July 31, 2020, a Remittitur was filed.

On December 13, 2018, KET filed a motion for attorney’s fees in the amount of $364,603.50 against Tristar pursuant to Civil Code, §1717, CCP §§1021, 1032, and 1033.5, and CRC Rule 3.1702. On February 11, 2019, Plaintiffs filed an opposition. On February 15, 2019, KET filed a reply.

On December 3, 2018, Plaintiffs filed a motion to strike and/or tax costs. On February 8, 2019, Defendants filed an opposition. On February 15, 2019, Plaintiffs filed a reply.

On August 17, 2020, Plaintiffs filed a supplemental memorandum of points and authorities and declaration regarding the two motions.

On August 20, 2020, KET filed a supplemental memorandum of points and authorities.

DISCUSSION RE MOTION FOR ATTORNEY’s FEES

A. Request for Judicial Notice

KET filed a request for judicial notice with the reply brief. It seeks judicial notice of: (1) Ruling on Submitted Matter in this action on June 25, 2018; and (2) Declaration of Edward O. Morales in support of Tristar’s motion for attorney’s fees and costs filed on July 16, 2018. The request is granted. (Evid. Code, §452(d).)

B. Merits of Motion: Entitlement to Attorney’s Fees

Civil Code, §1717(a) states in relevant part:

(a) In 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.

Where a , as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

(b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(Civ. Code, §1717.)

KET seeks attorney’s fees pursuant to section 6.5 of the Professional Services Agreement. (Morse Decl., Ex. A [Professional Services Agreement at p.7, §6.5].) Section 6.5 states in relevant part:

6.5 Legal Action

(b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys‘ fees, experts‘ fees, and other costs, in addition to any other relief to which the party may be entitled.

(Professional Services Agreement, §6.5(b).)

KET argues that the parties’ causes of action in the complaint and the cross-complaint fall squarely within paragraph 6.5’s provision regarding any legal action to enforce the Agreement, or based on a dispute, breach, default, or misrepresentation in connection with the Agreement. KET also points out that Plaintiffs sought attorney’s fees based on the same Agreement, such that Plaintiffs cannot now claim that the attorney’s fees provision does not apply.

In opposition, Plaintiffs argue that this is a case with mixed relief such that the Court has discretion to decide on whether attorney’s fees are awardable. Plaintiffs argue that they were meritorious on their breach of contract claim against KET in the complaint, as well as KET’s breach of contract claim in the cross-complaint.

“[T]he term ‘in connection with’ is broad, and has been interpreted to extend to both contract and tort claims in a contractual attorney fees provision.” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC Here, the language of the attorney’s fees provision is broad as it states that the prevailing party to “any legal action or other proceeding” to enforce the Agreement or as a result of an alleged dispute, breach, default, or misrepresentation “in connection with” the Agreement is entitled to recover fees. Though the judgment was in favor of Plaintiffs on the breach of contract claims, KET and the other Defendants were still deemed the prevailing parties as they prevailed on the remainder of the action. The broad language of the Agreement covers such claims as well.

Finally, as noted by the Court of Appeal in its recent decision in this case:

Tristar is not the victim in this case. Tristar’s current position is not the result of its refusal to pay KET $290,000 at a critical time during construction; it is the result of refusing to pay KET $57,000 for KET’s work after November 2015. Tristar would be the prevailing party if it had paid that lesser sum.

KET is not the villain. KET did not refuse to work at a critical time until the full amount was paid; KET agreed to resume work on the basis of Tristar’s promises of future payments. KET is not being rewarded for its failed demand for $290,000. Attorney fees will go to KET’s attorneys.

(5/14/20 Court of Appeal Opinion at p. 17.)

The Court finds that the Professional Services Agreement provides a basis for attorney’s fees and costs, pursuant to Civil Code, §1717.

C. Amount of Attorney’s Fees Awarded

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.) The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award. (Id.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id.) No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.)

KET seeks $364,603.50 in attorney’s fees. In support of the motion, KET provides the declaration of its counsel, James S. Morse. Mr. Morse states that the Hart King law firm and staff billed for the following (Morse Decl., ¶¶4, 12, 13; Ex. E [Billing Records]):

Attorney

Rates

Hours

Total Billed

Mr. Morse

(Partner)

Admitted 1980

$385/hour

576.80 hours

$222,068.00

Christopher R. Elliot

(Partner)

Admitted 1988

· $350/hour up to 12/31/16

· $375/hour from 1/1/17 to 11/30/17

· $385/hour from 11/31/17 to the present.

· 69.9 hours at $350/hour

· 140.2 hours at $375/hour

· 134.8 hours at $385/hour

$128,938.00

Rhonda H. Mehlman

(Senior counsel)

Admitted 1989

· $350/hour up to 12/31/16

· $385/hour currently

· 0.7 hour at $350/hour

· 11.2 hours at $385/hour

$4,557.00

Neil Cacili

(Associate)

$175/hour

0.9 hour

$157.50

Cheyenne Ryan

(Litigation paralegal)

$105/hour

7.6 hours

$798.00

From 10/17/16 to 11/30/28

TOTAL

942.1 hours

$356,518.50

Mr. Morse also seeks recovery of the time spent to file this motion for attorney’s fees and the reply brief, for another 21 hours, or $8,085.00. (Morse Decl., ¶14.) Thus, the total amount sought is $364,603.50.

KET argues that the fees sought are reasonable because KET defended itself against Tristar’s claims and in pursuing its own valid affirmative defenses. KET argues that substantial discovery was taken in this case because Plaintiffs sought $477,865.68 in compensatory damages against KET and Co-Defendants, plus punitive damages and attorney’s fees. (Morse Decl., ¶8.) KET also argues that the bench trial was conducted over 3 days and the Court ultimately found in KET’s favor, awarding KET a net judgment. (Id., ¶9.)

In opposition and the supplemental papers, Plaintiffs argue that certain fees should be reduced because the fees are unreasonable in amount and are much higher than the judgment amount. Plaintiffs also argue that the following fees incurred are unreasonable: (1) fees incurred by counsel to obtain insurance from CNA for KET (approximately 20 hours); (2) KET’s abuse of discovery which prompted Plaintiffs to file motions; (3) KET’s improper attempt in February and March 2018 to consolidate the case with another case to delay trial (approximately 75 hours); (4) KET’s change of lead counsel from Mr. Elliot to Mr. Morse from December 2017 to February 2018 (approximately 10-25 hours); (5) travel time for KET’s counsel from Santa Ana to Van Nuys (approximately 25 hours); and (6) time spent in connection with a case management conference (14.1 hours).

First, the billing records reflect that counsel had communications with CNA during the litigation, but the billing records do not necessarily support that these communications were for the purpose of obtaining insurance on KET’s behalf. KET argues that the only reason its counsel communicated with its insurance company was because Plaintiffs sued KET, and thus the time spent was reasonable. The Court will not reduce these hours.

Second, it is unclear what discovery motions Plaintiffs are referring to in its opposition. Is it every motion Plaintiffs filed or only certain discovery issues? Without specification or citing to dates/lines in the nearly 100 pages of billing records, the Court cannot ascertain what Plaintiffs are referring to. As such, the Court will not reduce these hours.

Third, though the consolidation request may not have been meritorious, that is not the standard for whether attorney’s fees are appropriate. (In reply, KET argues that its counsel spent 61.9 hours on the consolidation request and not 75 as suggested by Plaintiffs in opposition.) The Court will reduce the hours by 60 hours as the time spent on the consolidation was not necessary to the action and is unreasonable in amount. As Mr. Morse was the staff member who spent the most time on the consolidation application, the reduction will be in the amount of 60 hours using Mr. Morse’s hourly billing rate.

Fourth, the Court will reduce the time billed in late 2017 to early 2018 for transitioning counsel. The reduction will be for a reasonable amount of 10 hours.

Fifth, with regard to the travel time, the Court will reduce the fees sought for travel time in the amount of 25 hours.

Sixth, with regard to the CMC preparation, Plaintiff fails to specify what hours and dates that Plaintiff is seeking to reduce. KET’s counsel spent time preparing for, attending, preparing notices of continuance for the CMC in February to May of 2017, as well as in February 2018. However, 14.1 hours spent on the CMC is unreasonably high. As such, the Court will reduce the time spent on the CMC to 2 hours total (12.1 hour reduction).

Although Plaintiffs argue that the billing rates of counsel are high, the Court finds the billing rates to be reasonable and will not reduce them. As such, the Court will award fees as follows:

· Mr. Morse: The total recoverable for Mr. Morse’s time in this action shall be $180,834.50 (=$385/hour x 469.7 hours, taking into account the 60 hour reduction for the consolidation application, 10 hour reduction for transitioning counsel, 25 hours for travel time, and 12.1 hours for CMC work).

· Mr. Elliot: The total recoverable for Mr. Elliot’s time in this action shall be $128,938.00 as requested.

· Ms. Mehlman: The total recoverable for Ms. Mehlman’s time in this action shall be $4,557.00 as requested.

· Mr. Cacili: The total recoverable for Mr. Cacili’s time shall be $157.50 as requested.

· Ms. Ryan: The Court declines to award fees for Ms. Ryan’s time incurred in this action. The tasks of legal assistants and paralegals billing to the matter are predominantly secretarial and administrative. The billing rates are sufficiently high to include secretarial and administrative time of support personnel.

· For the filing of this motion and reply, the Court will award a reasonable sum of $3,850.00 (= $385/hour x a reasonable time of 10 hours).

· The reasonable sum of attorney’s fees of $318,337.00.

Thus, KET’s motion for attorney’s fees is granted in the amount of $318,337.00.

DISCUSSION RE MOTION TO STRIKE/TAX COSTS

A. Memorandum of Costs

On November 13, 2018, Defendants/Cross-Complainant filed a memorandum of costs requesting the following costs:

· Item 1 Filing and Motion Fees: $2,295.00

· Item 4 Deposition Costs: $12,263.47

· Item 11 Court Reporter Fees as established by statute: $2,783.00

· Item 12 Models, Enlargements, and Photocopies of Exhibits: $3,703.07

· Item 16 Other: $2,552.93

· TOTAL: $23,597.47

B. Timeliness of the Motion

A  who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (CRC Rule 3.1700(a)(1).)

Plaintiffs argue that the memorandum of costs filed on November 13, 2018 should be struck as untimely because the Court served the notice of entry of the judgment on October 17, 2018 such that Defendants had until November 1, 2018 (15 calendar days) to file their costs memorandum or latest November 6, 2018 (15 calendar days, plus 5 days for mailing pursuant to CCP §1013(a)). In contrast, Defendants argue that their costs memorandum was timely filed pursuant to CCP §664.5 because while the clerk of the court provided a courtesy copy of the judgment to the parties, Defendants as the parties submitting the order or judgment for entry was required to serve the notice of entry of judgment.

According to the Court of Appeal in Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277: “[t]o be service ‘pursuant to Section 664.5’ (§§ 659, 660) the notice of entry of judgment mailed by the clerk must ‘affirmatively state’ it is given ‘ “upon order by the court’ or ‘under section 664.5” ’.” Here, the Judgment is filed stamped October 15, 2018, but the Court’s records do not reflect when the Judgment was mailed to counsel or that mailing was done pursuant to CCP §664.5. As such, the 15-day time limit to file a costs memorandum after a clerk’s service pursuant to section 664.5 does not apply.

Next, Defendants argue that their costs memorandum was timely filed on November 13, 2018, which is the 15th day, plus 5 days for mailing, from when they served the Notice of Entry of Judgment on October 25, 2018. Plaintiffs argue that the extension of time for mailing applies only to the party served—not the sending party—and thus the memorandum was not timely filed by November 9, 2018 (15 days only). (See Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc.

Regardless of which party is correct on this matter, the Court notes that CRC Rule 3.1700(b)(3) provides that in the absence of the parties’ agreement to extend the time to serve and file a cost memorandum or motion to tax costs, “the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” Thus, because the costs memorandum was filed within 30 days of the Judgment, the clerk’s service, and Defendants’ Notice of Entry of Judgment, the Court will consider the costs memorandum and the motion to strike/tax costs on their merits.

C. Merits of Motion to Strike/Tax Costs

Plaintiffs argue that Defendants’ costs are prima facie unreasonable and should be stricken in their whole because they seek $23,597.47 in costs in a case where they received damages of $46,609.91. However, this alone does not make the costs unreasonable because Plaintiffs brought this action, which in turn caused Defendants to respond by answering, defending against the action, and filing their own cross-complaint. Thus, the Court will evaluate the merits of Defendants’ sought costs to determine whether or not they should be stricken or taxed.

1. Deposition Costs

CCP §1033.5(a)(3) states that: (A) taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed; (B) fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language; and (C) travel expenses to attend depositions, are allowable costs under section 1032.

Defendants seek $12,263.47 in deposition costs.

Plaintiffs argue that the costs should be taxed because Defendants’ delay of discovery and depositions for nearly a year caused all deposition transcripts to be ordered on an expedited basis, which doubled the costs. Thus, they argue that Defendants’ $9,258.04 costs for transcripts should be taxed by at least half or $4,629.02. However, deposition costs including the costs of transcripts are recoverable. Exhibit A of the opposition brief includes the invoices for the depositions. As such, Defendants have substantiated their costs.

Next, Plaintiffs argue that the $2,297.88 cost of videotaped depositions of Plaintiffs’ witnesses, Robin and Daniel Kashani, were not necessary given that the action proceeded to a bench trial. However, the statue provides for the cost of video recording. In support of the cost, defense counsel states that a videotaped deposition was necessary because there was no way of knowing of Plaintiffs’ witnesses would appear at trial as they were volatile and their testimony was necessary. (Morse Decl., ¶9.)

The Court denies the motion to strike/tax deposition costs.

2. Models, enlargements, and photocopies of exhibits

An allowable cost under CCP §1033.5(a)(13) includes: “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.”

Defendants seek $3,703.07 in costs for photocopies of exhibits.

Plaintiffs argue that these costs are unreasonable in light of Defendants’ judgment in the amount of $46,609.91. They also argue that though Defendants provided 9 binders of exhibits of over 13,000 pages, only a small number of exhibits were admitted at and referenced during trial.

In opposition, Defendants argue that they made 4 sets of the exhibits (about 3,250 pages each) so that the Court, witnesses, Plaintiffs’ counsel, and defense counsel would each have their own copy. They argue the exhibits were necessary to prepare a defense against Plaintiffs’ case and thus they included any evidence they or Plaintiffs may have considered relevant.

As stated in CCP §1033.5(a)(13), costs for photocopies of exhibits may be allowed if reasonably helpful to the trier of fact. Here, the Court finds that the exhibits were reasonably necessary during trial and are not reasonable in amount in light of the number of pages and copies of folders made.

The Court denies the motion to strike/tax these costs.

3. Other Costs

“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (CCP §1033.5(c)(4).)

First, Plaintiffs argue that the $2,145 costs for voluntary mediation undertaken by the parties on April 4, 2018 should be stricken as merely convenient and not reasonably necessary. “[M]ediation costs fall within the category of costs that may be awarded in the trial court’s discretion.” (Berkeley Cement, Inc. v. Regents of University of California “Encouraging the parties to resolve lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state.” (Gibson v. Bobroff Though the mediation may not have been successful, the Court finds that it is still an instrumental part of the action. Thus, the motion to strike or tax the mediation costs is denied.

Second, Plaintiffs move to strike Defendants’ messenger fee costs related to trial in the amount of $407.93 because the cost is not allowable and Defendants have not stated what they incurred these costs on. Defendants argue that a messenger was charged to transport multiple boxes of exhibit binds and other trial documents from the Court and to opposing counsel’s office. (Morse Decl., ¶12, Ex. B.) The Court finds these costs to be merely convenient or beneficial to Defendants’ preparation, but not a reasonably necessary cost. (See CCP §1033.5(c).) As such, the motion is granted in the amount of $407.93.

CONCLUSION AND ORDER

KET’s motion for attorney’s fees is granted in the amount of $318,337.00.

Plaintiffs’ motion to strike/tax Defendants’ costs is granted in part and denied in part as follows:

· Item 1 Filing and Motion Fees: $2,295.00

· Item 4 Deposition Costs: $12,263.47

· Item 11 Court Reporter Fees as established by statute: $2,783.00

· Item 12 Models, Enlargements, and Photocopies of Exhibits: $3,703.07

· Item 16 Other: $2,145.00 ($407.93 reduction)

· TOTAL: $23,189.54

Defendants shall provide notice of this order.