This case was last updated from Los Angeles County Superior Courts on 03/05/2020 at 08:06:56 (UTC).

COMERICA BANK, A TEXAS CORPORATION VS DOROTHY J. WILSON, ET AL.

Case Summary

On 02/27/2019 COMERICA BANK, A TEXAS CORPORATION filed a Contract - Debt Collection lawsuit against DOROTHY J WILSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6849

  • Filing Date:

    02/27/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

COMERICA BANK A TEXAS CORPORATION

Defendants

WILSON DOROTHY J.

EXPERT PLANT CARE INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

AUGUEST MARSHALL

Defendant Attorney

CORTEZ LAURIE

 

Court Documents

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/13/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice - NOTICE OF CASE REASSIGNMENT

1/17/2020: Notice - NOTICE OF CASE REASSIGNMENT

Declaration - DECLARATION OF MARIO MARTINEZ JR. IN SUPPORT

2/4/2020: Declaration - DECLARATION OF MARIO MARTINEZ JR. IN SUPPORT

Declaration - DECLARATION OF MARSHALL J. AUGUST IN SUPPORT

2/4/2020: Declaration - DECLARATION OF MARSHALL J. AUGUST IN SUPPORT

Proof of Service by Mail

2/4/2020: Proof of Service by Mail

Separate Statement

2/4/2020: Separate Statement

Motion for Summary Judgment

2/4/2020: Motion for Summary Judgment

Proof of Service (not Summons and Complaint)

2/24/2020: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

10/28/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

10/8/2019: Case Management Statement

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

10/10/2019: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Case Management Statement

10/11/2019: Case Management Statement

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO SET ASIDE DEFAULT, PROPOSED ORDER, ANSWER TO COMPLAINT

9/6/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO SET ASIDE DEFAULT, PROPOSED ORDER, ANSWER TO COMPLAINT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE STIPULATION) OF 09/09/2019

9/9/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE STIPULATION) OF 09/09/2019

Minute Order - MINUTE ORDER (COURT ORDER RE STIPULATION)

9/9/2019: Minute Order - MINUTE ORDER (COURT ORDER RE STIPULATION)

Notice of Ruling

9/13/2019: Notice of Ruling

Case Management Statement

9/16/2019: Case Management Statement

Answer

9/16/2019: Answer

22 More Documents Available

 

Docket Entries

  • 02/22/2021
  • Hearing02/22/2021 at 09:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/11/2021
  • Hearing02/11/2021 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/28/2020
  • Hearing04/28/2020 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 02/24/2020
  • DocketProof of Service (not Summons and Complaint); Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/04/2020
  • DocketDeclaration (OF MARSHALL J. AUGUST IN SUPPORT); Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/04/2020
  • DocketSeparate Statement; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/04/2020
  • DocketProof of Service by Mail; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/04/2020
  • DocketMotion for Summary Judgment; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/04/2020
  • DocketDeclaration (OF MARIO MARTINEZ JR. IN SUPPORT); Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 01/17/2020
  • DocketNotice (OF CASE REASSIGNMENT); Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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21 More Docket Entries
  • 06/17/2019
  • DocketRequest for Entry of Default / Judgment; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 06/17/2019
  • DocketCase Management Statement; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 03/21/2019
  • DocketProof of Service by Mail; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 03/19/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/14/2019
  • DocketProof of Personal Service; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 03/14/2019
  • DocketProof of Personal Service; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/27/2019
  • DocketSummons (on Complaint); Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/27/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 02/27/2019
  • DocketComplaint; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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  • 02/27/2019
  • DocketCivil Case Cover Sheet; Filed by COMERICA BANK, a Texas corporation (Plaintiff)

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Tentative Rulings

Case Number: *******6849    Hearing Date: November 12, 2020    Dept: 76

Defendants are in default of promissory note and guaranty thereof due to the failure to make payments due and also due to the death of one of the guarantors, R. Wilson.

The Court granted Plaintiff’s motion for summary judgment and entered judgment in favor of Plaintiff and against Defendants. Plaintiff now moves for an award of attorney’s fees.

TENTATIVE RULING

Plaintiff Comerica Bank’s motion for attorney’s fees is GRANTED in the reduced amount of $19,580. Pursuant to CRC Rule 3.1700(b)(4), the $1,073.45 sought in the memorandum of costs are to be added to the judgment. Plaintiff’s request for $2,181.21 in non-statutory costs is DENIED.

ANALYSIS

Motion For Attorney’s Fees

On September 18, 2020 judgment was entered in favor of Plaintiff and against Defendants Expert Plant Care, Inc. and Dorothy J. Wilson in the principal sum of $88,999.77, plus interest through and including January 14, 2020 in the sum of $19,916.66 plus additional interest from and after January 15, 2020 at the daily rate of $22.25 through and including July 29, 2020 in the sum of $4,361.00 for total interest in the sum of $24,277.66 plus late charges in the sum of $1,103.16 for a total judgment sum of $114,380.59.

Plaintiff moves for an award of $33,802.64 in attorney’s fees and $2,181,21 in non-statutory costs (which do not include statutory costs sought by way of the memorandum of costs).

Pursuant to the attorney’s fees clause contained in the Note signed by Expert Plant Care and Guaranty signed by Wilson, Defendants agreed to pay attorney’s fees incurred by the Bank in connection with any suit instituted to collect upon the Note or in connection with the Guaranty. (See Complaint, Exh. 1, Page 3; Exh. 3, Page 1.)

Civil Code ; 1717 provides in pertinent 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 contract provides for attorney’s fees, 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.)

Here, Plaintiff is the prevailing party, having received a greater relief in the action on the contract, by way of the judgment entered in favor of Plaintiff and against Defendants in the total amount of $114,380.59.

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’" (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

The Court finds the hourly rates ranging from $195 to $510 an hour to be reasonable for counsel. (see Declaration of Marshall J. August ¶ 2.)

The Court notes that this was a standard loan collection action, and that Plaintiff dismissed the claims against the secured property, in order to prevail on summary judgment. The Court also notes that Defendants’ default had been entered, but then was set aside per stipulation of the parties. Thereafter, Plaintiff filed a motion for summary judgment, which was unopposed. There was no intervening law and motion.

In this regard, Plaintiffs basically could have obtained a default judgment, but incurred costs in stipulating to set aside the default, reviewing the answer, preparing discovery, attending court hearings, preparing a motion for summary judgment, and preparing this attorney’s fees motion.

The Court agrees that the Local Rule Attorney’s Fees Schedule at 3.214 should apply as a baseline to determine the amount of reasonable attorney’s fees for a contested case. This would be $4,830 based on a $88,999.77 principal amount: $3,270 plus 4% of excess over $50,000 (i.e., 4% of $38,999.77 = $1,560.00). In addition to this $4,830, the Court will award costs for preparing a motion for summary judgment and this attorney’s fees motion.

The Court has reviewed the billing summaries attached as Exhibit 2 to the Declaration of Marshall J. August. The Court finds that the reasonable amount of attorney’s fees incurred in addition to the $4,830 fee schedule amount is $14,750. Accordingly, the Court finds that the reasonable amount of attorney’s fees to be awarded is $19,580.

Plaintiff filed a memorandum of costs on September 24, 2020. Because a timely memorandum to tax these costs was not filed, the $1,073.45 sought in the memorandum of costs are to be added to the judgment. (Cal. Rules of Court, Rule 3.1700(b)(4).)

Plaintiff also seeks to recovery non-statutory costs in the sum of $2,181.21 for such items as photocopying charges, e-filing fees, messenger fees, court call costs). These costs are DENIED, as they were not specifically pled and proved in connection with the summary judgment motion. (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551; Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42.)

The Second District has declined to follow those cases which have permitted the parties to agree that the items allowable as costs include those not specifically allowed by CCP ; 1033.5(a), at least in the absence of such costs being specifically pleaded and proved at trial:

Bank contends the trial court erred in taxing the portion of its costs not expressly allowed under section 1033.5.

Section 1033.5, subdivision (a), specifies items allowed as costs and subdivision (b) specifies items not allowed. The court awarded only those costs allowed by section 1033.5. Bank argues, however, that the forbearance [*551]  and extension agreements expressly provide that the award of costs to the prevailing party shall not be limited to taxable costs.

Bank cites section 1032, subdivision (c). That subdivision provides: “Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” Section 1034 requires the Judicial Council to adopt rules for claiming and contesting allowable prejudgment costs and costs on appeal, as well as rules establishing allowable costs on appeal.

On its face, section 1032, subdivision (c), allows the parties to agree to “procedures” for awarding costs. It does not expressly authorize the parties to expand by agreement the items allowable as costs.

Bank relies on Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491–492 [54 Cal. Rptr. 2d 888].  There the court held that sophisticated parties may agree to a broader standard of costs than allowed by section 1033.5. Bank fails to mention, however, that in Arntz the costs were pleaded and proved pursuant to a procedure stipulated by the parties.

Because costs other than those allowed under section 1033.5 are not based on statute, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs. (See Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [28 Cal. Rptr. 2d 878]; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) Only Bussey v. Affleck (1990) 225 Cal. App. 3d 1162, 1166 [275 Cal. Rptr. 646], has awarded nonstatutory costs without pleading and proof. We join other courts that have considered the matter and refuse to follow it. (See, e.g., Ripley, supra, at pp. 1625–1626.) Because here the Bank did not plead and prove nonstatutory costs, the trial court did not err in refusing to award them.

(Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551.)

Even the First District, which decided Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1166, upon which Defendant relies, later recognized that non-statutory costs to be recovered pursuant to the contractual agreement of the parties must be specifically and proven at trial, not awarded posttrial:

Plaintiff urges us to follow Arntz, and to construe the Agreement here as providing a standard of “costs” broader than the statutory definition. But the costs award is insupportable even if we were to do as plaintiff urges. Recovery of costs provided by contract must be specially pleaded and proven at trial, and not awarded posttrial as was done here. (Arntz, supra, 47 Cal.App.4th at p. 491; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) “[T]he proper interpretation of a contractual agreement for shifting litigation costs is a question of fact that ‘turns on the intentions of the contracting parties.’ ”  [*1342]  (First Nationwide Bank, supra, at p. 879.) Accordingly, “the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion.” (Ibid.)

Nor may the disputed costs be awarded to plaintiff as an element of attorney fees under the rationale that the expenses were disbursed by the attorneys in the course of litigation. We disavow this court's previous adoption of that view as an unwarranted conflation of fees and costs. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1167 [275 Cal. Rptr. 646].) As persuasively argued by our colleagues in the Third Appellate District in disagreeing with Bussey: “In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees.” (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626 [28 Cal. Rptr. 2d 878].) We join other divisions of this district in following Ripley on this point. (First Nationwide Bank v. Mountain Cascade, Inc., supra, 77 Cal.App.4th at p. 878; Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1154 [82 Cal. Rptr. 2d 143].)

Defendants also argue that $ 1,530.91 spent by plaintiff to expedite preparation of deposition transcripts is not recoverable as an item of costs. Standard transcription fees for “necessary” depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise of the trial court's discretion. (Code Civ. Proc., ; 1033.5, subds. (a)(3), (c)(4).) Plaintiff maintains that the trial court either found the extra deposition fees to be necessary or exercised its discretion in allowing recovery of these extra fees. Plaintiff notes that the court commented, at the hearing on costs: “I am not satisfied that [the expedited transcripts] are merely convenient.” However, the court also said that the requested expedited deposition costs are “not allowed under the code section,” and proceeded to award the costs under the parties' contract which, in the court's view, provided a more expansive definition of costs. The court erred in awarding costs not authorized by statute. We will therefore modify the judgment to strike the recovery of expert witness fees, general photocopying costs, and expedited deposition transcript fees, thus reducing the costs award by $ 70,996.99.

(Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42 [bold emphasis added].)

Accordingly, the motion for attorney’s fees is GRANTED in the reduced amount of $19,580. Pursuant to CRC Rule 3.1700(b)(4), the $1,073.45 sought in the memorandum of costs are to be added to the judgment. Plaintiff’s request for $2,181.21 in non-statutory costs is DENIED.



Case Number: *******6849    Hearing Date: November 05, 2020    Dept: 76

Defendants are in default of promissory note and guaranty thereof due to the failure to make payments due and also due to the death of one of the guarantors, R. Wilson.

The Court granted Plaintiff’s motion for summary judgment and entered judgment in favor of Plaintiff and against Defendants. Plaintiff now moves for an award of attorney’s fees.

TENTATIVE RULING

Plaintiff Comerica Bank’s motion for attorney’s fees is GRANTED in the reduced amount of $19,580. Pursuant to CRC Rule 3.1700(b)(4), the $1,073.45 sought in the memorandum of costs are to be added to the judgment. Plaintiff’s request for $2,181.21 in non-statutory costs is DENIED.

ANALYSIS

Motion For Attorney’s Fees

On September 18, 2020 judgment was entered in favor of Plaintiff and against Defendants Expert Plant Care, Inc. and Dorothy J. Wilson in the principal sum of $88,999.77, plus interest through and including January 14, 2020 in the sum of $19,916.66 plus additional interest from and after January 15, 2020 at the daily rate of $22.25 through and including July 29, 2020 in the sum of $4,361.00 for total interest in the sum of $24,277.66 plus late charges in the sum of $1,103.16 for a total judgment sum of $114,380.59.

Plaintiff moves for an award of $33,802.64 in attorney’s fees and $2,181,21 in non-statutory costs (which do not include statutory costs sought by way of the memorandum of costs).

Pursuant to the attorney’s fees clause contained in the Note signed by Expert Plant Care and Guaranty signed by Wilson, Defendants agreed to pay attorney’s fees incurred by the Bank in connection with any suit instituted to collect upon the Note or in connection with the Guaranty. (See Complaint, Exh. 1, Page 3; Exh. 3, Page 1.)

Civil Code ; 1717 provides in pertinent 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 contract provides for attorney’s fees, 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.)

Here, Plaintiff is the prevailing party, having received a greater relief in the action on the contract, by way of the judgment entered in favor of Plaintiff and against Defendants in the total amount of $114,380.59.

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’" (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

The Court finds the hourly rates ranging from $195 to $510 an hour to be reasonable for counsel. (see Declaration of Marshall J. August ¶ 2.)

The Court notes that this was a standard loan collection action, and that Plaintiff dismissed the claims against the secured property, in order to prevail on summary judgment. The Court also notes that Defendants’ default had been entered, but then was set aside per stipulation of the parties. Thereafter, Plaintiff filed a motion for summary judgment, which was unopposed. There was no intervening law and motion.

In this regard, Plaintiffs basically could have obtained a default judgment, but incurred costs in stipulating to set aside the default, reviewing the answer, preparing discovery, attending court hearings, preparing a motion for summary judgment, and preparing this attorney’s fees motion.

The Court agrees that the Local Rule Attorney’s Fees Schedule at 3.214 should apply as a baseline to determine the amount of reasonable attorney’s fees for a contested case. This would be $4,830 based on a $88,999.77 principal amount: $3,270 plus 4% of excess over $50,000 (i.e., 4% of $38,999.77 = $1,560.00). In addition to this $4,830, the Court will award costs for preparing a motion for summary judgment and this attorney’s fees motion.

The Court has reviewed the billing summaries attached as Exhibit 2 to the Declaration of Marshall J. August. The Court finds that the reasonable amount of attorney’s fees incurred in addition to the $4,830 fee schedule amount is $14,750. Accordingly, the Court finds that the reasonable amount of attorney’s fees to be awarded is $19,580.

Plaintiff filed a memorandum of costs on September 24, 2020. Because a timely memorandum to tax these costs was not filed, the $1,073.45 sought in the memorandum of costs are to be added to the judgment. (Cal. Rules of Court, Rule 3.1700(b)(4).)

Plaintiff also seeks to recovery non-statutory costs in the sum of $2,181.21 for such items as photocopying charges, e-filing fees, messenger fees, court call costs). These costs are DENIED, as they were not specifically pled and proved in connection with the summary judgment motion. (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551; Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42.)

The Second District has declined to follow those cases which have permitted the parties to agree that the items allowable as costs include those not specifically allowed by CCP ; 1033.5(a), at least in the absence of such costs being specifically pleaded and proved at trial:

Bank contends the trial court erred in taxing the portion of its costs not expressly allowed under section 1033.5.

Section 1033.5, subdivision (a), specifies items allowed as costs and subdivision (b) specifies items not allowed. The court awarded only those costs allowed by section 1033.5. Bank argues, however, that the forbearance [*551]  and extension agreements expressly provide that the award of costs to the prevailing party shall not be limited to taxable costs.

Bank cites section 1032, subdivision (c). That subdivision provides: “Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” Section 1034 requires the Judicial Council to adopt rules for claiming and contesting allowable prejudgment costs and costs on appeal, as well as rules establishing allowable costs on appeal.

On its face, section 1032, subdivision (c), allows the parties to agree to “procedures” for awarding costs. It does not expressly authorize the parties to expand by agreement the items allowable as costs.

Bank relies on Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491–492 [54 Cal. Rptr. 2d 888].  There the court held that sophisticated parties may agree to a broader standard of costs than allowed by section 1033.5. Bank fails to mention, however, that in Arntz the costs were pleaded and proved pursuant to a procedure stipulated by the parties.

Because costs other than those allowed under section 1033.5 are not based on statute, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs. (See Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [28 Cal. Rptr. 2d 878]; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) Only Bussey v. Affleck (1990) 225 Cal. App. 3d 1162, 1166 [275 Cal. Rptr. 646], has awarded nonstatutory costs without pleading and proof. We join other courts that have considered the matter and refuse to follow it. (See, e.g., Ripley, supra, at pp. 1625–1626.) Because here the Bank did not plead and prove nonstatutory costs, the trial court did not err in refusing to award them.

(Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 550-551.)

Even the First District, which decided Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1166, upon which Defendant relies, later recognized that non-statutory costs to be recovered pursuant to the contractual agreement of the parties must be specifically and proven at trial, not awarded posttrial:

Plaintiff urges us to follow Arntz, and to construe the Agreement here as providing a standard of “costs” broader than the statutory definition. But the costs award is insupportable even if we were to do as plaintiff urges. Recovery of costs provided by contract must be specially pleaded and proven at trial, and not awarded posttrial as was done here. (Arntz, supra, 47 Cal.App.4th at p. 491; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878–879 [92 Cal. Rptr. 2d 145].) “[T]he proper interpretation of a contractual agreement for shifting litigation costs is a question of fact that ‘turns on the intentions of the contracting parties.’ ”  [*1342]  (First Nationwide Bank, supra, at p. 879.) Accordingly, “the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion.” (Ibid.)

Nor may the disputed costs be awarded to plaintiff as an element of attorney fees under the rationale that the expenses were disbursed by the attorneys in the course of litigation. We disavow this court's previous adoption of that view as an unwarranted conflation of fees and costs. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1167 [275 Cal. Rptr. 646].) As persuasively argued by our colleagues in the Third Appellate District in disagreeing with Bussey: “In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees.” (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626 [28 Cal. Rptr. 2d 878].) We join other divisions of this district in following Ripley on this point. (First Nationwide Bank v. Mountain Cascade, Inc., supra, 77 Cal.App.4th at p. 878; Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1154 [82 Cal. Rptr. 2d 143].)

Defendants also argue that $ 1,530.91 spent by plaintiff to expedite preparation of deposition transcripts is not recoverable as an item of costs. Standard transcription fees for “necessary” depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise of the trial court's discretion. (Code Civ. Proc., ; 1033.5, subds. (a)(3), (c)(4).) Plaintiff maintains that the trial court either found the extra deposition fees to be necessary or exercised its discretion in allowing recovery of these extra fees. Plaintiff notes that the court commented, at the hearing on costs: “I am not satisfied that [the expedited transcripts] are merely convenient.” However, the court also said that the requested expedited deposition costs are “not allowed under the code section,” and proceeded to award the costs under the parties' contract which, in the court's view, provided a more expansive definition of costs. The court erred in awarding costs not authorized by statute. We will therefore modify the judgment to strike the recovery of expert witness fees, general photocopying costs, and expedited deposition transcript fees, thus reducing the costs award by $ 70,996.99.

(Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341-42 [bold emphasis added].)

Accordingly, the motion for attorney’s fees is GRANTED in the reduced amount of $19,580. Pursuant to CRC Rule 3.1700(b)(4), the $1,073.45 sought in the memorandum of costs are to be added to the judgment. Plaintiff’s request for $2,181.21 in non-statutory costs is DENIED.



Case Number: *******6849    Hearing Date: July 16, 2020    Dept: 76

Due to the social distancing requirements and other measures implemented by the Court in response to the COVID-19 pandemic, the Court will hold a telephonic hearing on this matter at the time noted on the Court's calendar.  No physical appearances will be entertained at that time.  Any party wishing to appear physically to argue the motion may contact Department 76 to request that a hearing be scheduled.  The Court will then continue the hearing to the earliest available hearing time that allows for appropriate social distancing.
Counsel who wish to submit on the tentative ruling should email Department 76 at SMCDept76@lacourt.org
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendants are allegedly in default of promissory note and guaranty thereof due to the failure to make payments due and also due to the death of one of the guarantors, R. Wilson.

Plaintiff moves for summary judgment.

TENTATIVE RULING

Plaintiff Comerica Bank’s motion for summary judgment is DENIED.

ANALYSIS

Motion For Summary Judgment

Plaintiff has only noticed a motion for summary judgment, not summary adjudication in the alternative. As such, the Court cannot grant summary adjudication on individual causes of action and Plaintiff must prevail as to each cause of action asserted in the Complaint in order to obtain summary judgment. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-46.)

The language in Code of Civil Procedure section 437c, subdivision (f) makes it clear that a motion for summary adjudication cannot be considered  [*1546]  by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought. ( Homestead Savings v. Superior Court, supra, 179 Cal.App.3d at pp. 497-498; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (1986) ;; 10:21, 10:43.) "If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion. . . ." ( Homestead Savings v. Superior Court, supra, 179 Cal.App.3d at p. 498.) There is a sound reason for this rule: ". . . the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied." (Weil & Brown, supra, at ; 10:44.)

(Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-46.)

(p) For purposes of motions for summary judgment and summary adjudication:

(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c(p)(1).)

Here, Plaintiff has failed to demonstrate that it is entitled to judgment as to the second cause of action[1] is for recovery of personal property (claim and delivery).

“[A]n action in claim and delivery is a possessory action, and that one entitled to possession is entitled to maintain the action even though he is not vested with the legal title.” (Feigin v. Kutchor (1951) 105 Cal.App.2d 744, 747.) “[A]n action of claim and delivery will only lie against persons who have possession of property in dispute at the time of its commencement. (Richards v. Morey, 133 Cal. 437, [65 Pac. 886].)” (Home Payment Jewelry Co. v. Smith (1914) 24 Cal.App.486, 488.)

"It may be conceded," said the court in Taylor v. , 58 Cal.App. 404, 408 [209 P. 55], "that it is the general rule that an action of claim delivery lie persons possession . ( Richards v. , 133 Cal. 437 [65 P. 886]; Home Payment Jewelry Co. v. , 24 Cal.App. 488 [141 P. 933].) But the term 'possession,' as used in this class of cases, has been construed to mean either actual or constructive. (34 Cyc. 1396-1400; Eastern Outfitting Co. v. , 39 Cal.App. 316 [180 P. 669].) And if it be shown that the property sought to be recovered is under the control of a person, or if it be shown that it is within the power of such person to deliver the property, such person is liable, although the property be not in his actual physical possession. This latter rule is recognized in Richards v. , cited and is relied upon by appellant. It is there said: 'But the findings show that the property sought to be recovered was not in the possession of the defendant when the action was commenced, nor within his power to deliver, and therefore said findings would not have sustained a judgment in favor of plaintiffs for the delivery. . . .' (Italics are ours.)"

(Phillips Aviation Co. v. Superior Court of Los Angeles County (1966) 246 Cal.App.2d 46, 53 [bold emphasis added].)

The separate statement does not cite any evidence as to whether the Personal Property Collateral is in the actual or constructive possession of Defendants.

Accordingly, because Plaintiff has not met its initial burden of demonstrating that it is entitled to the second cause of action, the burden does not shift to Defendants to demonstrate that a triable issue of material fact exists.

The motion for summary judgment is DENIED.

[1] In this regard, Plaintiff’s voluntary dismissal of the third cause of action for conversion without prejudice on July 13, 2020—after this motion was filed—does not change the analysis.



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