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This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 11:23:36 (UTC).

NHIENLE MAC ET AL VS EDWIN MINASSIAN ET AL

Case Summary

On 10/20/2017 NHIENLE MAC filed a Contract - Other Contract lawsuit against EDWIN MINASSIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0594

  • Filing Date:

    10/20/2017

  • 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

GREGORY W. ALARCON

 

Party Details

Plaintiffs and Petitioners

CUNNINGHAM SEAN

WE GOT EATEN LLC

MAC NHIENLE

Defendants and Respondents

LOS ROBLES ADVENTURES INCORPORATION

MINASSIAN EDWIN

DOES 1 TO 50

THE MIXX

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BERNARD STEPHEN ESQ.

BERNARD SHANE JACOB

KIM MITCHELL S

NELSON KEEVER CHARLIE CHAYA

Defendant Attorney

YARIAN LEVIK

 

Court Documents

FIRST AMFNDED VERIFIED COMPLAINT FOR DAMAGES: 1. NELIGENCE; 2. BREACH OF CONTRACT-WRITTEN; ETC

2/7/2018: FIRST AMFNDED VERIFIED COMPLAINT FOR DAMAGES: 1. NELIGENCE; 2. BREACH OF CONTRACT-WRITTEN; ETC

Proof of Service

3/5/2018: Proof of Service

Unknown

3/19/2018: Unknown

DECLARATION OF SHANE BERNARD RE SECOND AMENDED VERIFIED COMYLALNT FOR DAMAGES

6/6/2018: DECLARATION OF SHANE BERNARD RE SECOND AMENDED VERIFIED COMYLALNT FOR DAMAGES

SECOND AMENDED VERIFIED COMPLAINT FOR DAMAGES: 1. NEGLIGENCE; 2 BREACH OF CONTRACTWRITREN; 3. BREACH OF CONTRACT- ORAL; 4. INTENTIONAL MISREPRFSENTATION; 5. FALSE PROMISE 6. CONCEALMENT 7. FRAUD

6/6/2018: SECOND AMENDED VERIFIED COMPLAINT FOR DAMAGES: 1. NEGLIGENCE; 2 BREACH OF CONTRACTWRITREN; 3. BREACH OF CONTRACT- ORAL; 4. INTENTIONAL MISREPRFSENTATION; 5. FALSE PROMISE 6. CONCEALMENT 7. FRAUD

NOTICE COURT'S RULING ON DEFENDANT'S DEMURRER & MOTION TO STRIKE

10/1/2018: NOTICE COURT'S RULING ON DEFENDANT'S DEMURRER & MOTION TO STRIKE

Substitution of Attorney

2/13/2019: Substitution of Attorney

Declaration

4/30/2019: Declaration

Ex Parte Application

5/1/2019: Ex Parte Application

Notice

5/7/2019: Notice

Notice

5/13/2019: Notice

Declaration

5/30/2019: Declaration

Objection

5/31/2019: Objection

Proof of Service by Mail

5/31/2019: Proof of Service by Mail

Jury Instructions

5/31/2019: Jury Instructions

Exhibit List

5/31/2019: Exhibit List

Declaration

6/3/2019: Declaration

PROOF OF SERVICE SUMMONS

11/17/2017: PROOF OF SERVICE SUMMONS

54 More Documents Available

 

Docket Entries

  • 06/06/2019
  • at 08:32 AM in Department 36, Gregory W. Alarcon, Presiding; Final Status Conference - Held

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  • 06/06/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 06/03/2019
  • Declaration (SUPPLEMENTAL DECLARATION OF LEVIK YARIAN, ESQ. RE TRIAL DOCUMENTS); Filed by LOS ROBLES ADVENTURES, INCORPORATION (Defendant)

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  • 06/03/2019
  • Exhibit List; Filed by LOS ROBLES ADVENTURES, INCORPORATION (Defendant)

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  • 06/03/2019
  • Statement of the Case; Filed by LOS ROBLES ADVENTURES, INCORPORATION (Defendant)

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  • 06/03/2019
  • Witness List; Filed by LOS ROBLES ADVENTURES, INCORPORATION (Defendant)

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  • 05/31/2019
  • Proof of Service by Mail; Filed by SEAN CUNNINGHAM (Plaintiff); NHIENLE MAC (Plaintiff); WE GOT EATEN LLC (Plaintiff)

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  • 05/31/2019
  • Exhibit List; Filed by SEAN CUNNINGHAM (Plaintiff); NHIENLE MAC (Plaintiff); WE GOT EATEN LLC (Plaintiff)

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  • 05/31/2019
  • Declaration (re preparation of joint trial documents); Filed by SEAN CUNNINGHAM (Plaintiff); NHIENLE MAC (Plaintiff); WE GOT EATEN LLC (Plaintiff)

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  • 05/31/2019
  • Statement of the Case; Filed by SEAN CUNNINGHAM (Plaintiff); NHIENLE MAC (Plaintiff); WE GOT EATEN LLC (Plaintiff)

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89 More Docket Entries
  • 02/14/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 02/07/2018
  • First Amended Complaint; Filed by Plaintiff/Petitioner

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  • 02/07/2018
  • FIRST AMFNDED VERIFIED COMPLAINT FOR DAMAGES: 1. NELIGENCE; 2. BREACH OF CONTRACT-WRITTEN; ETC

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  • 11/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/17/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/17/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 11/17/2017
  • Proof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 10/20/2017
  • VERIFIED COMPLAINT FOR DAMAGES

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  • 10/20/2017
  • SUMMONS

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  • 10/20/2017
  • Complaint; Filed by NHIENLE MAC (Plaintiff); SEAN CUNNINGHAM (Plaintiff); WE GOT EATEN LLC (Plaintiff)

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Tentative Rulings

Case Number: BC680594    Hearing Date: March 29, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

NHIENLE MAC, et al.,

Plaintiff,

v.

EDWIN MINASSIAN, et al.,

Defendant.

Case No.: BC680594

Hearing Date: 3/29/2021

[TENTATIVE] RULING RE: Motion for Attorney’s Fees, Costs and Expenses

The motion is granted in part. Attorneys’ fees of $133,454.30 and costs of $8,538.47 are awarded. The court declines to award a lodestar multiplier.

Request to Stay

Defendant Los Robles, Inc. in opposition to this motion requests without authority for the court to stay the matter pending appeal of the judgment. Generally, the award of attorney’s fees is a collateral matter to the judgment now on appeal. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Without adequate authority or argument in support on the issue, the court proceeds to the merits of the motion.

 

Notice

The moving papers were timely and properly served by mail on Defendants’ counsel on December 11, 2020. (CCP § 1005(b).)

The opposition filed by Defendant Minassian, and the Notice of Joinder to the opposition filed by Defendant Los Robles Ventures, Inc., were served by electronic service only on January 22, 2021, to the email address mitchell.kim@rmkb.com. Plaintiffs on reply object to this service as improper.

Under the amended CCP § 1010.6(a)(2)(A)(i), as of September 18, 2020, “[f]or cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d).”

For papers opposing a motion, the opposition is to be filed by “personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (CCP § 1005(c).)

This action was commenced on October 20, 2017, prior to December 31, 2018. A consent to electronic service is not on file, and the Plaintiffs have filed a declaration on reply attesting that an agreement to electronic service had not been made. (Reply, Kim Decl. ¶¶ 17-19.) In addition, the email address listed on the proof of service, Mitchell.kim@rmkb.com, differs from that listed in Plaintiffs’ motion, mitch.kim@klgates.com.

Based on the foregoing, service of the opposition was improper. In light, however, that Plaintiffs filed a reply in response to the opposition, addressing the arguments therein, the court proceeds to address the merits.

Legal Standard

Attorneys’ fees are recoverable as costs under Code of Civil Procedure section 1032 when authorized by statute. (Code Civ. Proc. § 1033.5(a)(l0)(B).)

Civil Code, section 1717, subdivision (a) provides in relevant part:

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

Discussion

1. Prevailing Party

Civil Code, section 1717, subdivision (a) provides for the award of attorney’s fees and costs to the prevailing party in an action on a contract that provides for the recovery of attorney’s fees and costs.

“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.” (Id. at (b).) “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Id. at (c).)

Defendant Minassian on opposition asserts that recovery may not be had against him for attorney’s fees and costs under Section 1717, because he was voluntarily dismissed as a defendant in this action pursuant to the parties’ stipulation filed on November 21, 2018. These issues have been raised by Defendant Minassian in objections to the Statement of Decision and the Proposed Judgment in this action and have been overruled by the court. The court issued its Judgment finding in favor of Plaintiffs and against Defendants on October 27, 2020. Accordingly, the court does not follow Defendant Minassian’s argument based on the same grounds with respect to whether Plaintiffs are the prevailing party in this action. The court finds that Plaintiffs are the prevailing party in this action, having so stated in the Judgment, and as the party who gained a monetary relief in this action.

2. Entitlement to Attorney’s Fees

Civil Code, section 1717, subdivision (a) provides in relevant part:

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

This action concerned a Master Services agreement, and three promissory notes of May 2017, June 2017, and July 2017. The Master Services Agreement provides for the recovery of attorney’s fees and costs for a prevailing party in the event that either party would need to enforce or defend related to the terms, conditions, or rights under the MSA. (Kim Decl., Exh. 2, at ¶ 14.) The three Promissory Notes also provide for the collection of attorney’s fees if suit was brought for collection or enforcement of the Notes. (Id. at pp. 37, 40, 44.) Costs and fees were incurred to enforce the Master Services Agreement and Promissory Notes.

 

3. Reasonableness of Attorneys’ Fees

The moving party bears the burden of proof on any claim not based upon the court’s established attorney fee schedule. (CCP § 1033.5(c)(5).)

Plaintiffs in the motion sought attorney’s fees of $213,839.10, representing a lodestar plus a 1.5 multiplier. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (“the lodestar is the basic fee for comparable legal services in the community . . . .”).) In the Supplemental Declaration ordered by the court, Plaintiffs $214,431.45, having inadvertently left out 1.2 hours.

As an initial matter, the court generally may not grant greater relief than that stated in the Notice of Motion. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125; Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) As the Defendants have not had a fair opportunity to address the assertion first raised in the supplemental declaration, the court would not award attorney fees exceeding those requested in the Notice of Motion.

A. Lodestar

Generally, “a court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-32 (Ketchum).) A reasonable hourly rate must reflect the skill and experience of the attorney. (See Serrano v. Priest, 20 Cal.3d 25, 48 (1977).) The court reviews documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation.” (See Ketchum, supra, at p. 1132.) “To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.” (See Ketchum, supra, at p. 1138.)

Plaintiffs seek a lodestar of $133,454.30 in attorneys’ fees, comprised of the following amounts (Supp’l Kim Decl. ¶ 24):

Mitchell S. Kim

$435/hr.; $450/hr.; $475/hr.

107.90 hours

$44,222.80

Charlie Nelson Keever

$325/hr.

114.50 hours

$37,212.50

Joseph A. Ungaro II

$325/hr.

3.80 hours

$1,235.00

Shane Bernard

$400/hr

115.40 hours

$46,160.00

Jesus G. Morales

$400/hr.

4.65 hours

$1,860.00

Stephen Bernard

$600/hr.

2.00 hours

$1,200.00

Amy Rubinfeld

$160/hr.

7.30 hours

$1,168.00

F. Angrisano

$120/hr.

0.30 hours

$36.00

Tina Wang

$120/hr.

3.00 hours

$360.00

TOTAL

358.85 hours

$133,454.30

Next, the “reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095, as modified (June 2, 2000).) Parties may substantiate the reasonableness of counsel’s hourly rate by declaration that the rate is in line with that prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.) Counsel has now attested to the reasonableness of each attorney and paralegal’s hourly rate. (See Supp’l Kim Decl. ¶¶ 26-29; Kim Decl. ¶ 12.) Arguments against the hourly rate were not made in the Opposition, nor objections to the supplemental declaration. The court finds the hourly rates requested are reasonable. (See Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, as modified (Oct. 11, 2019), review denied (Jan. 2, 2020).)

Next, there are no arguments in the Opposition or objection to the supplemental declaration in support that any hours requested are not reasonable or may not be awarded. The billing records submitted are thus entitled to credence in the absence of indication the records are erroneous. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 987.) The court has reviewed the invoices and finds the hours reasonably incurred. (Kim Decl. ¶ 8, Exh. 3.)

B. Multiplier

A lodestar “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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Id.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Id.)

The court declines to apply a lodestar multiplier. There is insufficient showing of the novelty and difficulty of questions involved in this litigation involving issues of contract and fraud, or evidence in support of other factors such as the preclusion of other employment or contingent nature of the award.

4. Costs and Expenses

Plaintiffs request costs and expenses of $8,565.47. The court previously ordered Plaintiffs to submit supplemental evidence showing a calculation of these costs and expenses, showing that each category of costs and expenses is permitted under Code of Civil Procedure, section 1033.5(a), which Plaintiffs included in the Supplemental Declaration. (Supp’l Kim Decl. ¶ 23, Exh. 6.) No dispute was made to costs, nor a Motion to Tax the costs requested in the Memorandum of Costs. The expenses are reasonable and thus approved.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC680594    Hearing Date: February 04, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

NHIENLE MAC, et al.,

Plaintiff,

v.

EDWIN MINASSIAN, et al.,

Defendant.

Case No.: BC680594

Hearing Date: 2/4/2021

[TENTATIVE] RULING RE: Motion for Attorney’s Fees, Costs and Expenses

Hearing on Plaintiffs’ motion for attorney’s fees and costs is continued to March 28, 2021.

Plaintiffs are to provide a supplemental declaration described below within 10 days.

Request to Stay

Defendant Los Robles, Inc. in opposition to this motion requests without authority for the court to stay the matter pending appeal of the judgment. Generally, the award of attorney’s fees is a collateral matter to the judgment now on appeal. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Without adequate authority or argument in support on the issue, the court proceeds to the merits of the motion.

Notice

The moving papers were timely and properly served by mail on Defendants’ counsel on December 11, 2020. (CCP § 1005(b).)

The opposition filed by Defendant Minassian, and the Notice of Joinder to the opposition filed by Defendant Los Robles Ventures, Inc., were served by electronic service only on January 22, 2021, to the email address mitchell.kim@rmkb.com. Plaintiffs on reply object to this service as improper.

Under the amended CCP § 1010.6(a)(2)(A)(i), as of September 18, 2020, “[f]or cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d).”

For papers opposing a motion, the opposition is to be filed by “personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (CCP § 1005(c).)

This action was commenced on October 20, 2017, prior to December 31, 2018. A consent to electronic service is not on file, and the Plaintiffs have filed a declaration on reply attesting that an agreement to electronic service had not been made. (Reply, Kim Decl. ¶¶ 17-19.) In addition, the email address listed on the proof of service, Mitchell.kim@rmkb.com, differs from that listed in Plaintiffs’ motion, mitch.kim@klgates.com.

Based on the foregoing, service of the opposition was improper. In light, however, that Plaintiffs have filed a reply in response to the opposition, addressing the arguments therein, the court proceeds to address the merits of Plaintiffs’ motion.

Legal Standard

Attorneys’ fees are recoverable as costs under Code of Civil Procedure section 1032 when authorized by statute. (Code Civ. Proc. § 1033.5(a)(l0)(B).)

Civil Code, section 1717, subdivision (a) provides in relevant part:

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

Discussion

1. Prevailing Party

Civil Code, section 1717, subdivision (a) provides for the award of attorney’s fees and costs to the prevailing party in an action on a contract that provides for the recovery of attorney’s fees and costs.

“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.” (Id. at (b).) “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” (Id. at (c).)

Defendant Minassian on opposition asserts that recovery may not be had against him for attorney’s fees and costs under Section 1717, because he was voluntarily dismissed as a defendant in this action pursuant to the parties’ stipulation filed on November 21, 2018. These issues have been raised by Defendant Minassian in objections to the Statement of Decision and the Proposed Judgment in this action and have been overruled by the court. The court issued its Judgment finding in favor of Plaintiffs and against Defendants on October 27, 2020. Accordingly, the court does not follow Defendant Minassian’s argument based on the same grounds with respect to whether Plaintiffs are the prevailing party in this action. The court finds that Plaintiffs are the prevailing party in this action, having so stated in the Judgment, and as the party who gained a monetary relief in this action.

2. Entitlement to Attorney’s Fees

Civil Code, section 1717, subdivision (a) provides in relevant part:

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

This action concerned a Master Services agreement, and three promissory notes of May 2017, June 2017, and July 2017. The Master Services Agreement provides for the recovery of attorney’s fees and costs for a prevailing party in the event that either party would need to enforce or defend related to the terms, conditions, or rights under the MSA. (Kim Decl., Exh. 2, at ¶ 14.) The three Promissory Notes also provide for the collection of attorney’s fees if suit was brought for collection or enforcement of the Notes. (Id. at pp. 37, 40, 44.) Costs and fees were incurred to enforce the Master Services Agreement and Promissory Notes.

 

3. Reasonableness of Attorneys’ Fees

The moving party bears the burden of proof on any claim not based upon the court’s established attorney fee schedule. (CCP § 1033.5(c)(5).)

Plaintiffs seek attorney’s fees of $213,839.10, which represents a lodestar plus a 1.5 lodestar multiplier. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (“the lodestar is the basic fee for comparable legal services in the community . . . .”).)

Plaintiffs have not provided a clear calculation of the lodestar in the moving papers, by means of a compilation of hours worked by each attorney. Plaintiffs are to provide a compilation calculating the total hours worked by each attorney in this action so that the court may verify the reasonableness of the hours worked. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-32.)

Next, the “reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095, as modified (June 2, 2000).) Plaintiffs have not provided evidence in support of the prevailing rates of attorneys of similar experience in similar practice areas for Plaintiffs’ counsel, nor of the experience of Plaintiffs’ counsel, for the court to verify the prevailing rates for Plaintiffs’ counsel. Plaintiffs are to provide such documentation to the court for approval of attorney’s fees.

4. Costs and Expenses

Plaintiffs request costs and expenses of $8,565.47, but have not provided a calculation of the requested costs and expenses. Plaintiffs are to submit a declaration showing a calculation of these costs and expenses, showing that each category of costs and expenses is permitted under Code of Civil Procedure, section 1033.5(a).

Dated: ____________________________

Gregory Alarcon

Superior Court Judge