KIUMARS SOLEIMANY ET AL VS MOSTAFA NARIMANZADEH ET AL

Tentative Rulings

Case Number: BC663036    Hearing Date: August 20, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants’ motion for attorneys’ fees and costs is granted in the reduced total amount of $61,862.65, reflecting $59,780 in attorneys’ fees and $2,082.65 in costs.

Defendants Mostafa Narimanzadeh aka Mostafa Narimanzadeh aka Thomas Nariman (“Narimanzadeh”), Fariba Atighehchi, GQ Fresh, Inc. dba Pinkberry aka Pinkberry Sunset and Fuller, and Pink Partners, Inc. (collectively “Defendants”) move for an award of attorneys’ fees in the amount of $60,620, pursuant to Civil Code §1717 and C.C.P. §1033.5 against Plaintiffs Kiumars Soleimany and Shanaz “Suzy” Soleimany aka Shahnaz Soleimany (collectively “Plaintiffs”). (Notice of Motion, pg. 1.) Defendants also move for an award of costs in the amount of $2,082.65 against Plaintiffs. (Notice of Motion, pg. 1.)

Background

Plaintiffs filed the instant action against Defendants for breach of loan agreements and related causes of action on May 26, 2017. On October 1, 2018, the Court conducted the first phase of the trial on the issue of whether the loans were usurious and on December 7, 2018, the Court announced its Tentative Decision and Proposed Statement of Decision finding the loans’ interest rates usurious. After considering objections, on March 4, 2019, the Court issued its final statement of decision on Phase I, finding both loans usurious. On December 16, 2019, the Court conducted the second phase of the trial regarding damages and on December 17, 2019, the Court announced its Tentative Decision and Proposed Statement of Decision finding that Plaintiffs failed to establish any damages; this became the Final Statement of Decision. On January 13, 2020, Defendants filed the instant motion. On February 24, 2020, the Court entered Judgment pursuant to its Statements of Decision issued on March 4, 2019 (Phase I) and December 17, 2019 (Phase II), under which Plaintiffs take nothing by their complaint against Defendants and Defendants recover from Plaintiffs their costs of suit and attorneys’ fees in amounts to be determined. On February 28, 2020, Plaintiffs filed their Notice of Appeal of the Judgment.

Jurisdiction to Rule on Attorneys’ Fees Motion Pending Appeal

As a preliminary matter, the Court retains jurisdiction to rule on the attorneys’ fees motion notwithstanding Plaintiffs’ filing of a Notice of Appeal of the Judgment. “[T]he filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial. Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal. [Citations]”) (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368, superseded by statute on other grounds in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187.) Plaintiffs’ arguments in opposition that the Court lacks jurisdiction to rule on the instant motion are without merit. (Opposition, pgs. 1-2.) Accordingly, the Court will rule on the merits of the motion.

Attorneys’ Fees

Civil Code §1717(a) provides that, “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.”

Civil Code section 1717(b)(1) provides that, “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…”

C.C.P. §1032(b) provides that, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled … to recover costs in any action or proceeding.” Attorneys’ fees awarded pursuant to Civil Code §1717 are allowable as costs under C.C.P. §1032 as they are attorneys’ fees authorized by contract. (C.C.P. §1033.5(c)(5)(B); C.C.P. §1033.5(a)(10)(A).) Attorneys’ fees are therefore recoverable as an element of costs.

Defendants are entitled to an award of reasonable attorneys’ fees against Plaintiff under Civil Code §1717. In its February 24, 2020 Judgment, the Court ruled Plaintiffs take nothing by their complaint against Defendants and that Defendants are to recover from Plaintiffs their costs of suit and attorneys’ fees determined after subsequent motion practice. (2/24/20 Judgment, pg. 2.) In opposition, Plaintiffs do not dispute that Defendants are the prevailing parties in the action; rather, Plaintiffs only object to certain attorneys’ fees and costs as unreasonable. (Opposition, pgs. 3-10.) In addition, Defendants submitted evidence that both the loan agreements at issue in this action included attorneys’ fees provisions entitling the prevailing party to attorneys’ fees, which Plaintiffs do not dispute. (Decl. of Fasen ¶3, Exhs. A, B.) As such, Defendants are entitled to attorneys’ fees and costs as the prevailing party.

Defendants’ request for attorneys’ fees in the amount of $60,620 is predominately reasonable and supported. (Motion, pgs. 8-10; Decl. of Fasen ¶¶5-7, Exh. D.) Specifically, Defendants submitted billing entries supporting the 173.2 hours incurred and a declaration of Plaintiff’s counsel Leo Fasen (“Fasen”) setting forth his experience and billing rate of $350 per hour. Based upon the declaration of counsel, and the Court’s own experience, the Court finds the hourly rate of $350 per hour is reasonable and justified.

In opposition, Plaintiffs argue the requested fees should be reduced for the following reasons and/or in the following manner: (1) entries for unnecessary ex parte applications must be struck or reduced; (2) 5/16/18 entry for preparing discovery responses is excessive and must be reduced by 6.8 hours; (3) 6/20/18 entry for preparing CMC that does not correspond with this case must be stricken; (4) 11/14/18 entry for 4.6 hours billed to prepare Defendants’ Closing Usury Brief is unreasonable given it is largely lifted from Defendants’ Opening and Supplemental Briefs; (5) 7.4 hours billed on 2/11/19 for legal research on interest rate brief is duplicative and should be reduced; (6) billings for clerical tasks should be reduced by 1 hour; and (7) due to block-billing and vagueness of the entries, the Court should further reduce the fees claimed by 25%. (Opposition, pgs. 6-9.) However, Plaintiffs’ arguments are predominately without merit.

Plaintiffs argue Defendants’ requested attorneys’ fees improperly involve “block billing” and, as such, a 25% reduction is warranted. However, this argument is without merit as Defendants’ counsel’s billing is detailed task by task. Moreover, Plaintiffs did not identify a “block billing” entry that is vague or indecipherable to warrant a 25% reduction. Plaintiffs did not submit adequate evidence showing Defendants’ fees were not incurred or are not reasonable. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (“The trial court abused its discretion in rejecting wholesale counsels’ verified time records. We think the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.”), Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682 (“the items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs”), and McGrath v. County of Nevada (9th Cir. 1995) 67 F.3d 248, 255 (“Regarding the County’s challenge to the accuracy of the time records submitted by plaintiffs’ counsel, the County did not meet its burden of challenging their accuracy below, and we are limited to reviewing the evidence presented to the district court.”).)

Plaintiffs’ assertion that fees incurred for the two ex parte applications were unreasonable is unsupported. The fees incurred for the first ex parte application were reasonable considering Defendants’ counsel had substituted into the case late and sought a continuance of the trial date to familiarize himself with the issues. (Reply, pg. 10.) In addition, Plaintiffs’ objection to fees incurred for the second ex parte application is unsupported considering Defendants’ evidence that the fees incurred on May 2, 2018 were not for an ex parte application, but for an opposition to Plaintiff’s motion to compel supplemental discovery. (Reply, pg. 5; Decl. of Fasen, Exh. D.) While Defendants did file a second ex parte application, they do not seek any fees incurred in its preparation.

Plaintiffs’ objection that hours Fasen billed excessive hours for preparing consolidated discovery responses is without merit. Plaintiffs submit no evidence suggesting the hours were not incurred or were not reasonable, and in reply, Defendants supported the amount billed given that their counsel had just substituted into the case with only two months before supplemental responses were due. (Reply, pgs. 5-6; Reply-Decl. of Fasen ¶3.)

Plaintiffs’ objections to the hours billed for preparing the Closing Usury Brief and legal research on the interest issue are unsupported. Defendants submitted evidence the fees were actually incurred and were reasonable considering the Closing Brief covered more areas of law and cited more cases compared to the other briefs and considering the Court’s order that the parties submit their briefs on the issues of usury as it related to their claims and defenses, requiring Plaintiffs’ counsel to review trial transcripts. (Reply, pgs. 6-7; Reply-Decl. of Fasen ¶3.)

However, Defendants do not address Plaintiffs’ objection to billings for clerical tasks such as e-filing certain documents with the Court (1 hour) or the 6/20/18 billing for preparing a Case Management Conference Statement (1.2 hours), notwithstanding the fact no such Statement was filed by Defendants on or near that date, nor could one have been filed, given that the parties were briefing the usury issue at that point and the CMC Statements were filed in 2017. (Opposition, pgs. 8, 9.) The Court finds Plaintiffs’ objections to these fees have merit, and accordingly, reduces the attorneys’ fees award by 2.4 hours in the amount of $840.

Defendants also submitted support for the $2,082.65 sought in costs. Specifically, Defendants submitted the Costs Memorandum and Worksheet demonstrating that the costs were incurred for filing the answers of the four defendants and for the two ex parte motions as well as filing fees for motion in limine, briefs, supplemental briefs, and response. (Decl. of Fasen, Exh. E.) In opposition, Plaintiffs do not object to the costs sought by Defendants, as such Defendants are entitled to the claimed costs.

Based on the foregoing, Defendants’ motion for attorneys’ fees is granted in the reduced total amount of $61,862.65, reflecting $59,780 in attorneys’ fees and $2,082.65 in costs.