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This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 05:41:50 (UTC).

LEX HERWEN G BARTE VS JAMES A ALLEN ET AL

Case Summary

On 06/01/2017 LEX HERWEN G BARTE filed a Contract - Other Contract lawsuit against JAMES A ALLEN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3556

  • Filing Date:

    06/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiff, Petitioner and Cross Defendant

BARTE LEX HERWEN G.

Defendants, Respondents and Cross Plaintiffs

ALLEN DENISE M.

DOES 1 TO 50

ALLEN JAMES A.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

VERDUN ANDRE

VERDUN ANDRE LOUIS

Defendant and Respondent Attorneys

JURKOWITZ NICHOLAS

JURKOWITZ NICHOLAS DANIEL

 

Court Documents

DEFENDANTS JAMES A. ALLEN AND DENISE M. ALLEN'S DEMURRER TO THE 4TH COA IN THE SECOND AMENDED COMPLAINT IS OVERRULED.

3/7/2018: DEFENDANTS JAMES A. ALLEN AND DENISE M. ALLEN'S DEMURRER TO THE 4TH COA IN THE SECOND AMENDED COMPLAINT IS OVERRULED.

Unknown

4/30/2018: Unknown

Stipulation and Order

2/6/2019: Stipulation and Order

Minute Order

2/7/2019: Minute Order

NOTICE OF DEMURRER; DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF RANDY HSIEH

12/19/2017: NOTICE OF DEMURRER; DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF RANDY HSIEH

NOTICE OF ERRATA RE: DEMURRER TO SECOND AMENDED COMPLAINT FOR DAMAGES

12/27/2017: NOTICE OF ERRATA RE: DEMURRER TO SECOND AMENDED COMPLAINT FOR DAMAGES

SECOND AMENDED COMPLAINT FOR DAMAGES- DEMAND FOR JURY TRIAL

11/13/2017: SECOND AMENDED COMPLAINT FOR DAMAGES- DEMAND FOR JURY TRIAL

SUMMONS FOR SECOND AMENDED COMPLAINT

11/13/2017: SUMMONS FOR SECOND AMENDED COMPLAINT

PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

10/23/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

COMPLAINT FOR DAMAGES

6/1/2017: COMPLAINT FOR DAMAGES

SUMMONS

6/1/2017: SUMMONS

PROOF OF SERVICE SUMMONS

6/7/2017: PROOF OF SERVICE SUMMONS

Minute Order

8/2/2017: Minute Order

PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT

8/8/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER TO PLAINTIFF'S COMPLAINT

Minute Order

8/11/2017: Minute Order

ANSWER TO CROSS COMPLAINT; DEMAND FOR JURY TRIAL

8/16/2017: ANSWER TO CROSS COMPLAINT; DEMAND FOR JURY TRIAL

SUMMONS FOR FIRST AMENDED COMPLAINT

8/30/2017: SUMMONS FOR FIRST AMENDED COMPLAINT

Minute Order

9/29/2017: Minute Order

29 More Documents Available

 

Docket Entries

  • 02/26/2019
  • at 10:00 AM in Department 71, Monica Bachner, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 02/15/2019
  • at 09:00 AM in Department 71, Monica Bachner, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 02/07/2019
  • at 08:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Ex Parte Application (for Continuance of Trial) - Held - Motion Granted

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  • 02/07/2019
  • Ex Parte Application (for Continuance of Trial); Filed by Denise M. Allen (Defendant); James A. Allen (Defendant)

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  • 02/07/2019
  • Minute Order ( (EX PARTE APPLICATION OF DEFENDANTS, JAMES A. ALLEN AND DENISE...)); Filed by Clerk

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  • 02/06/2019
  • Stipulation and Order (REGARDING CONTINANCE OF TRIAL); Filed by Denise M. Allen (Cross-Complainant); James A. Allen (Cross-Complainant)

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  • 02/06/2019
  • Declaration (OF RANDY HSIEH IN SUPPORT OF CONTINUANCE OF TRIAL); Filed by Denise M. Allen (Cross-Complainant); James A. Allen (Cross-Complainant)

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  • 02/06/2019
  • Declaration (OF NICHOLAS JURKOWITZ IN SUPPORT OF CONTINUANCE OF TRIAL); Filed by Denise M. Allen (Cross-Complainant); James A. Allen (Cross-Complainant)

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  • 01/22/2019
  • at 08:30 AM in Department 71, Monica Bachner, Presiding; Post-Mediation Status Conference - Held

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  • 01/22/2019
  • Minute Order ( (Post-Mediation Status Conference)); Filed by Clerk

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79 More Docket Entries
  • 07/13/2017
  • Cross-Complaint; Filed by Defendant and Cross-Complainant

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  • 06/16/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/16/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/07/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 06/07/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 06/07/2017
  • PROOF OF SERVICE SUMMONS

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  • 06/07/2017
  • PROOF OF SERVICE SUMMONS

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  • 06/01/2017
  • COMPLAINT FOR DAMAGES

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  • 06/01/2017
  • SUMMONS

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  • 06/01/2017
  • Complaint; Filed by Lex Herwen G. Barte (Plaintiff)

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Tentative Rulings

Case Number: BC663556    Hearing Date: December 08, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

LEX HERWEN G. BARTE, an individual,

vs.

JAMES A. ALLEN, an individual, et al.

Case No.: BC663556

Hearing Date: December 8, 2020

Plaintiff Lex Herwin G. Barte’s motion for attorneys’ fees is granted in the reduced amount of $124,000.

Plaintiff and Cross-Defendant Lex Herwen G. Barte (“Plaintiff” or “Cross-Defendant”) moves for an award of attorneys’ fees in the amount of $136,826 against Defendants and Cross-Complainants James A. Allen (“James”) and Denise M. Allen (“Denise”) (collectively “Defendants” or “Cross-Complainants”) as the prevailing party on the Second Amended Complaint (“SAC”) in this action. (P-Notice of Motion, pgs. 1-2; Civil Code §1717.)

The instant motion came for hearing before the Court on September 23, 2020, along with a motion brought by Defendants for attorneys’ fees against Plaintiff. The Court denied Defendants’ motion for attorneys’ fees and continued the instant motion to December 8, 2020 on the grounds that the attorneys’ fees request was not sufficiently supported. The Court ordered Plaintiff to submit further support for the attorneys’ fees and to address Defendants’ objections to the fees no later than 10 Court days prior to the hearing and permitted Defendants to file a sur-reply no later than five Court days prior to the hearing.

On November 23, 2020, Plaintiff filed supplemental briefing and a declaration in support. On December 1, 2020, Defendants filed a sur-reply and evidentiary objections to Plaintiff’s supplemental declaration.

The Court incorporates by reference its ruling on the parties’ evidentiary objections, its discussion of the background of the action, and the authority and analysis relating to whether the parties are entitled to attorneys’ fees from its September 23, 2020 Ruling. (See Court’s 9/23/20 Ruling, pgs. 2-5.)

New Evidentiary Objections & Supplemental Briefing

Defendants’ 12/1/20 evidentiary objections to the Supplemental Declaration of Verdun in support of Plaintiff’s supplemental briefing are overruled as to Nos. 1-6.

The Court notes that in his 11/23/20 supplemental briefing, Plaintiff does not dispute Defendants’ evidentiary objections, believes the objections have merit to the extent the Court sustained those objections, and therefore submits on the Court’s tentative ruling on the objections. (Supp-Brief, pg. 1.) However, Plaintiff misinterpreted the Court’s instruction in its prior ruling. The Court ordered Plaintiff to address Defendants’ arguments raised in opposition to certain fees claimed by Plaintiff, which the Court described as “objections” to fees claimed, which Plaintiff failed to address in reply. (See 9/23/20 Ruling, pg. 5; Opposition, pgs. 7-11.) The Court did not request Plaintiff address Defendant’s evidentiary objections. As such, Plaintiff’s sur-reply is non-responsive to the Court’s instruction.

Amount of Attorneys’ Fees

The Court previously ruled Plaintiff’s request for attorneys’ fees in the amount of $136,826 was excessive and not sufficiently supported given discrepancies in the Verdun’s declaration with respect to the hours incurred and his hourly rate when compared to the invoice Verdun submitted in support. (See Court’s 9/23/20 Ruling, pgs. 5-6.)

In his supplemental briefing and declaration, Verdun clarifies that he is seeking a total amount of $136,826, at an hourly rate of $430 per hour (not $435) for 318.2 hours of work. (Supp-Brief, pg. 1; Supp-Decl. of Verdun ¶¶3-7, Exh. 1.) The Court finds the supplemental briefing and declaration address the issues raised in the previous ruling with respect to the discrepancies between Verdun’s declaration and the attached invoice.

As noted above, Plaintiff does not address Defendants’ arguments that certain claimed fees by Verdun are excessive and/or not warranted. Specifically, Defendants objected to the following: (1) the 47 hours billed to “index/review” 289 pages of documents Plaintiff produced in discovery (Opposition, pgs. 8-9); (2) the 3 hours billed to respond to two requests for admission (Opposition, pg. 9); (3) the 46.5 hours billed for drafting the initial complaint and the first amended complaint, to which the Court sustained Defendants’ demurrers, as well as hours spent opposing Defendants’ demurrers (Opposition, pgs. 9-10); (4) the 24.1 hours incurred for propounding and reviewing responses to one set of discovery, including the 7.6 hours incurred for review of Defendants’ responses (Opposition, pg. 10); (5) 10 entries of 4.5 hours for travel to/from San Diego to Stanley Mosk Courthouse for Court Hearings (Opposition, pg. 9); and (6) Plaintiff’s instant motion for attorneys’ fees (Opposition, pg. 11.).

The Court finds that one of Defendants’ objections are meritorious: 47 hours to index/review 289 pages of documents is excessive. Accordingly, the court will impose some reduction for these hours. However, Defendants’ argument Plaintiff is not entitled to recover fees for hours incurred in preparing the initial complaint, the first amended complaint, and in opposing Defendants’ demurrers to those pleadings simply because Defendants prevailed on the demurrers is without merit. The fact Defendants prevailed on demurrers does not render fees incurred in drafting the complaint and first amended complaint unnecessary or unreasonable. In addition, Defendants objection to the 10 entries of 4.5 hours for travel to/from San Diego and Stanley Mosk Courthouse misreads the invoice for which Plaintiff billed at a $0 rate, and as such, Plaintiff claims no fees for these travel entries even though the hours spent travelling are noted on the invoice. Finally, Defendants’ argument that Plaintiff is not entitled to attorneys’ fees is based on the misplaced assertion that Plaintiff did not prevail on the instant action for the purposes of attorneys’ fees and is therefore without merit.

Based on the foregoing, Plaintiff’s motion for attorneys’ fees is granted in the reduced amount of $124,000.

Dated: December _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

Case Number: BC663556    Hearing Date: September 23, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

LEX HERWEN G. BARTE, an individual,

vs.

JAMES A. ALLEN, an individual, et al.

Case No.: BC663556

Hearing Date: September 23, 2020

Plaintiff Lex Herwin G. Barte’s motion for attorneys’ fees is continued to December 8, 2020 at 9:30 a.m. Plaintiff to submit further support for the attorneys’ fees requested and to address Defendants’ objections to fees claimed no later than 10 Court days prior to the hearing date.

Defendants James A. Allen and Denise M. Allen’s motion for attorneys’ fees is denied.

Two motions for attorneys’ fees are presently before the Court. First, Plaintiff and Cross-Defendant Lex Herwen G. Barte (“Plaintiff” or “Cross-Defendant”) moves for an award of attorneys’ fees in the amount of $136,826 against Defendants and Cross-Complainants James A. Allen (“James”) and Denise M. Allen (“Denise”) (collectively “Defendants” or “Cross-Complainants”) as the prevailing party on the Second Amended Complaint (“SAC”) in this action. (P-Notice of Motion, pgs. 1-2; Civil Code §1717.) Second, Defendants move for an award of attorneys’ fees in the amount of $79,995.72 against Plaintiff as the prevailing party on the cross-complaint in this action. (D-Notice of Motion, pg. 2; Civil Code §1717; CRC Rule 3.1702(d).)

In light of the overlapping issues between the two motions for attorneys’ fees, the Court will address the motions collectively.

Evidentiary Objections

Defendants’ 9/10/20 evidentiary objections to the Declaration of Andrew L. Verdun (“Verdun”) in support of Plaintiff’s Motion for Attorneys’ Fees are overruled as to Nos. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (immaterial given Exhibit 1 is offered only for the terms of the Attorneys’ Fees provision at issue in this action, the terms of which Defendants do not dispute), and 16 and sustained as to Nos. 1, 2, 3, 4.

Defendants’ 9/10/20 evidentiary objections to the Declaration of Anthony Karian in support of Plaintiff’s motion for Attorneys’ Fees is overruled as to No. 22 and sustained as to Nos. 17, 18, 19, 20, 21.

Defendants’ 9/10/20 evidentiary objections to the Declaration of Stanislaus Pulle in support of Plaintiff’s motion for Attorneys’ Fees is overruled in part as to no. 27 (“Mr. Verdun is one of the most talented lawyers this school has ever produced”) and sustained as to Nos. 23, 24, 25, 26, and 27.

Defendants’ 9/16/20 evidentiary objection to the Declaration of Verdun in support of Plaintiff’s Opposition to Defendants’ Motion for Attorneys’ Fees is overruled as to No. 1 (Exhibit 1).

Background

On November 13, 2017, Plaintiff filed his SAC, which alleged causes of action for breach of contract, breach of covenant of good faith and fair dealing, fraud, and unfair business practices based on fraud against Defendants in connection with their sale of Chartwell Home Health Care, Inc. (“Chartwell”) to Plaintiff. On July 13, 2017, Defendants filed a cross-complaint against Plaintiff for breach of contract and conversion in connection with Plaintiff’s purchase of Chartwell from Defendants.

The purchase sale agreement underlying both the SAC and the cross-complaint included an attorneys’ fees provision. The Court notes Defendants’ argument that they dispute the version of the purchase sale agreement attached to Plaintiff’s motion. (D-Opposition, pgs. 2, fn. 1, 3-4.) However, for the purposes of the instant motions, the attorneys’ fees provision is not in dispute. Both parties agree the following attorneys’ fees provision applies to the instant action:

“9.10 Attorney’s Fees: Should any proceeding or litigation be commenced between the parties to this agreement concerning any of the matters described herein, this agreement, or the rights and duties of any of the parties in relation thereto, the party or parties prevailing in such proceeding or litigation shall be entitled, in addition to such relief as may be granted, to a reasonable sum as and for its attorney’s fees in such proceeding or litigation, including the expenses and costs incurred …”

(P-Motion, pgs. 2-3, citing Decl. of Verdun, Exh. 1, pgs. 22-23; D-Motion, pg. 4, citing Decl. of Hsieh ¶3; D-Opposition, pg. 4.)

Moreover, both parties seek attorneys’ fees pursuant to this fee provision as the operative fee provision in the purchase sale agreement (“Agreement”) between the parties and, pursuant to which, Plaintiff and Cross-Complainants brought the instant action.

Trial was held on January 30, and 31, 2020, with closing arguments delivered on February 14, 2020. On February 14, 2020, the Court found for Plaintiff and against Defendants on the cause of action for fraud-intentional concealment regarding the suite in the amount of $180,000. The Court also found in favor of Cross-Complainants and against Cross-Defendant in the amount of $1,300. Finally, the Court founds no offset. The Court ordered judgment entered for Plaintiff against Defendants on the SAC for damages of $180,000 for a total of $180,000. The Court also ordered judgment entered for Cross-Complainants against Cross-Defendant on the Cross-Complaint for damages of $1,300 for a total of $1,300. (See 2/14/20 Minute Order.) On March 16, 2020, the Court entered judgment in favor of Plaintiff and in favor of Cross-Complainant.

Attorneys’ Fees

“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 §1717(a). “Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.” (Civil Code §1717(a).)

“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.” (Civil Code §1717(b)(1).)

“The trial court ruling on a motion for fees under section 1717 is vested with discretion in determining which party has prevailed on the contract, or that no party has. [Citation] ‘If neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees.’ [Citation]…[A] party who obtains an unqualified victory on a contract dispute, including a defendant who defeats recovery by the plaintiff on the plaintiff's entire contract claim, is entitled as a matter of law to be considered the prevailing party for purposes of section 1717. [Citation] But ‘when the results of the [contract] litigation are mixed,’ the trial court has discretion under the statute to determine that no party has prevailed. [Citation]” (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 973.)

Under Civil Code §1717, “there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit.” (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 520.)

C.C.P. §1033.5(a)(10) provides that attorneys’ fees are allowable as costs under C.C.P. §1032 when authorized by contract, statute, or law.

Plaintiff asserts he is the prevailing party on the contract, and as such, is entitled to attorneys’ fees pursuant to the Agreement. Plaintiff asserts that his fraud in the inducement cause of action is embraced by the attorneys’ fees provision of the Agreement, and as such, in prevailing on that cause of action Plaintiff is the prevailing party. (P-Motion, pgs. 4-5; P-Reply, pgs. 1-6.) Defendants assert Plaintiff is not the prevailing party on the contract because the Court found Defendants did not breach the agreement and by entering judgment in the favor of Defendants (as Cross-Complainants), the Court found they were the prevailing parties on the contract. (D-Opposition, pgs. 5-6.) However, Defendants overstate the Court’s findings and entering judgment as a determination of which party was the prevailing party for the purposes of determining entitlement to attorneys’ fees pursuant to the Agreement. To determine the prevailing party on the contract in this action, the Court must first address whether the claim on which Plaintiff prevailed is embraced by the attorneys’ fees provision notwithstanding the fact it is a claim for fraud, and not breach of contract.

The attorneys’ fees provision in the Agreement is broad enough to cover Plaintiff’s fraud claim against Defendants. While Defendants dispute which version of the agreement was entered into by the parties, the parties do not dispute the Agreement contains an attorneys’ fees provision that provides as follows: “Should any proceeding or litigation be commenced between the parties to this agreement concerning any of the matters described herein, this agreement, or the rights and duties of any of the parties in relation thereto, the party… prevailing in such proceeding or litigation shall be entitled [to attorneys’ fees].” (Emphasis Added.) (See Khan v. Shim (2016) 7 Cal.App.5th 49, 59-62 [tort claims fell within contractual attorney fee provision applying to “any litigation . . .concerning [the contract’s terms, interpretation or enforcement or the rights and duties of any party in relation thereto.”]) Here, Plaintiff’s cause of action for fraud-intentional concealment against Defendants falls within the broad attorney fee provision, which embraces litigation concerning the rights and duties of the parties to the Agreement.

Plaintiff is the prevailing party in this litigation. Plaintiff recovered greater relief in his action on the contract than Defendants. (Civil Code §1717(b)(1).) In addition, Defendants’ recovery of $1,300 on their cross-complaint constituted a small fraction of the $60,000-$70,000 they sought via the cross-complaint, and was conceded by Plaintiff. (P-Reply, pgs. 7-9; Cross-Complaint ¶20.) The Court finds Defendant is not the prevailing party in this litigation. As such, Plaintiff is entitled to an award of reasonable attorneys’ fees pursuant to Civil Code §1717. Defendants’ motion for attorneys’ fees and costs is denied.

Amount of Attorneys’ Fees

Plaintiff’s request for attorneys’ fees in the amount of $136,826 is excessive/not sufficiently supported. The Court notes a discrepancy in Verdun’s declaration in support of his requested attorneys’ fees: Verdun declared he spent 88.2 hours of pure litigation work, but he also declared he spent 371.2 hours in this action. (Decl. of Verdun ¶¶36-38.) However, neither of these total hours amounts supports the requested fees of $136,826 at $435 per hour, since 88.2 hours would amount to $38,367 in fees and 371.2 hours would amount to $161,472 in fees. As such, Verdun’s declaration does not set forth the number of hours he incurred in fees in the motion. The Court notes Verdun submitted an invoice that shows a total fee amount of $136,826; however, the invoice does not address the total number of hours. (Decl. of Verdun, Exh. 2.) Moreover, the invoice suggests Verdun’s hourly rate is $430, which differs from the rate of $435 per hour asserted in his declaration, and as such, the Court is not in a position to determine whether the requested fees are reasonable and supported. (Decl. of Verdun ¶38, Exh. 2.) Finally, in opposition, Defendants objected to various fees claimed by Plaintiff as unreasonable and unsupported; however, Plaintiff does not address these arguments or disputed fees in reply. (D-Opposition, pgs. 7-11.)

Based on the foregoing, Plaintiff’s motion for attorneys’ fees is continued to December 8, 2020 at 9:30 a.m. Plaintiff is to submit support for the attorneys’ fees requested and address the Defendants’ objections to Plaintiff’s claimed fees no later than 10 Court days prior to the hearing. Defendants’ motion for attorneys’ fees is denied.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

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