Disposed - Judgment Entered
Other - Arbitration
DANIEL S. MURPHY
KAUFMAN PETER L.
PANISH SHEA & BOYLE LLP
LINDE DOUGLAS A. ESQ.
THE LAW OFFICES OF PATRICK R. MAHONEY PC
3/21/2018: NOTICE OF CHANGE OF ADDRESS FOR RESPONDENT'S COUNSEL
7/10/2018: Minute Order
7/26/2018: JUDGMENT ON RESPONDENT PROSPECT FUNDING (N.Y.), LLC'S PETITION TO CONFIRM ARBITRATION AWARD
8/28/2018: NOTICE OF ENTRY OF JUDGMENT
11/9/2017: STIPULATION TO CONSOLIDATE HEARING DATES ON PETITION TO VACATE AND PETITION TO CONFIRM ARBITRATION AWARDS
11/15/2017: ORDER RE: (1) PETITION TO VACATE ARBITRATION AWARD; ETC
11/15/2017: Minute Order
11/15/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
DocketAppellate Order Extending Time for Reporter Transcript Prep (NOA:10/12/18 B293259); Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (B293259); Filed by Clerk[+] Read More [-] Read Less
DocketNtc Designating Record of Appeal APP-003/010/103; Filed by Peter L. Kaufman (Plaintiff)[+] Read More [-] Read Less
DocketAppeal - Reporter Appeal Transcripts Deposit Paid; Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Reporter Appeal Transcript Process Fee Paid; Filed by Peter L. Kaufman (Appellant)[+] Read More [-] Read Less
DocketAppellate Order Reinstating Appeal (ORDER REINSTATING APPEAL FILED 10/12/18); Filed by Clerk[+] Read More [-] Read Less
DocketAppellate Order Dismissing Appeal (ORDER DISMISSING APPEAL FILED 10/12/18); Filed by Clerk[+] Read More [-] Read Less
DocketClerk's Notice of Non-Compliance of Default on Appeal; Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Notice of Default Issued; Filed by Clerk[+] Read More [-] Read Less
DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk[+] Read More [-] Read Less
DocketDECLARATION OF MARK A. LARSEN IN SUPPORT OF PROSPECT FUNDING (N.Y.), LLC'S RESPONSE TO PETITION TO VACATE AND PETITION TO CONFIRM ARBITRATIN AWARD[+] Read More [-] Read Less
DocketRESPONDENT PROSPECT FUNDING (N.Y.), LLC'S NOTICE OF APPEARANCE[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Peter L. Kaufman (Plaintiff); Panish, Shea & Boyle, LLP (Plaintiff)[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketPETITION TO VACATE ARBITRATION AWARD[+] Read More [-] Read Less
DocketPetition; Filed by null[+] Read More [-] Read Less
DocketDECLARATION OF DOUGLAS A. LINDE, ESQ., IN SUPPORT OF PETITION TO VACATE ARBITRATION AWARD[+] Read More [-] Read Less
Case Number: ****9525 Hearing Date: March 24, 2021 Dept: 32
Peter L. Kaufman, et al.,
Case No.: ****9525
Hearing Date: March 24, 2021
[Tentative] order RE:
(1) Petition’s motion for prevailing party attorney fees
This is a case involving an arbitration award whereby the parties filed cross-motions to confirm and vacate the award. The Court of Appeal found in favor of Petitioners Peter L. Kaufman and Panish, Shea & Boyle, LLP (“Petitioners”) and vacated the arbitration award. The Court of Appeal found that Respondent Prospect Funding, a litigation finance company, wrongfully sued Petitioners, the lawyers for a personal injury plaintiff, because Petitioners did not clearly and unmistakably consent to the arbitration provision.
Petitioners now seek $141,000 in attorney fees pursuant to the terms of the arbitration agreement Respondent claimed Petitioners breached and Civil Code section 1717.
Respondent argues that: (1) the appellate opinion does not entitle Petitioners to attorney fees because they have not prevailed on all claims under the contract; (2) the opinion to vacate the award is analogous to a motion to change venue, not a complete defense on the merits; (3) Petitioners are not otherwise entitled to attorney fees; and (4) if Petitioners are entitled to attorney fees, the requested fees are inflated and/or not recoverable because they were incurred because of Petitioners' own negligence.
The prevailing party in “any action on a contract” shall be awarded reasonable attorney’s fees incurred to enforce that contract where the contract specifically provides for attorney’s fees. (Cal. Civ. Code ; 1717(a).) “When a party obtains a simple, unqualified victory by completely prevailing on or defeating all contract claims in the action and the contract contains a provision for attorney fees, section 1717 entitles the successful party to recover reasonable attorney fees incurred in prosecution or defense of those claims. (Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4th 1103, 1109.) “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Hsu v. Abbara (1995) 9 Cal. 4th 863, 876.)
Petitioners move for an award of attorney fees in the amount of $141,000.00.
A. Entitlement to Attorney Fees
Petitioners contend that they are the prevailing party in this action because the court entered judgment in their favor. The Court agrees. As such, Petitioners are the prevailing party in this action entitled to a reasonable amount of attorney fees.
It is undisputed that Petitioners are prevailing parties in the sense that they successfully appealed a trial court order confirming the arbitration award. However, Respondent contends that its contractual claims have not been adjudicated. Respondent claims that there is no determination yet on the underlying matters of the contract. In other words, it is premature for Petitioners to claim they are a prevailing party on the contract as a whole.
Respondent's argument, however, misses that the Court of Appeal has ruled that "Kaufman and PS&B [i.e., Petitioners] were not parties to the Agreement and had no duties under it." (Pg. 11; see also pg. 3 ["Prospect and Sangkaphim were the only parties to the Agreement."]; see also pg. 12 ["We know from the first sentence of the Certification that 'this agreement' refers to the Agreement, to which neither Kaufman nor PS&B was a party, rather than some new agreement contained in the Certification."]; see also pg. 13 ["Their duties under the Letter were to their client, Sangkaphim, not Prospect. Indeed, we assume the transaction was structured as it was — i.e., not including Kaufman and PS&B as parties to the Agreement . . . ."].)
If Petitioners owe no contractual duties under the agreement, then Respondent cannot successfully sue Petitioners in another forum (i.e., a trial court) even if they choose to do so. The Court of Appeal has in fact ruled on the merits of the claims. Therefore, Respondent's argument by analogy that Petitioners' success in the appeal amounts to a motion to change venue is factually incorrect.
B. Reasonableness of Fees
1. Reasonable Hourly Rates
Petitioners request $141,000 for 235 hours of work performed in this case by attorney Douglas Linde.
“In determining hourly rates, the court must look to the ‘prevailing market rates in the relevant community.’” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 100.) In making this determination, “[t]he court may rely on its own knowledge and familiarity with the legal market.” (Ibid.)
The Court finds that $500 per hour is the reasonable hourly rate in this case.
2. Hours Reasonably Expended
The total number of billable hours claimed by Petitioners’ attorneys is hours 235.00 hours.
Respondent claims that the number of hours billed is unreasonable.
The Court finds that the reasonable hours spent by Petitioners’ attorney in this matter are 200 hours.
In making this determination, the court found that some of Petitioners’ counsel billing was excessive, especially for attorneys as experienced as Petitioners’ counsel.
Petitioners did not request a lodestar multiplier enhancement.
The Court finds that an upward adjustment to the lodestar would not be warranted in this action. This was a straight forward contract case. The Court also finds that a downward adjustment to the lodestar would not be warranted either.
D. Entitlement and Reasonableness of Costs
Petitioner requests a total of $814.05 in costs and expenses. Respondent does not dispute these costs and expenses.
Based on the foregoing reasons, Plaintiff’s motion for attorney fees is GRANTED. The Court awards (1) $100,000.00 in attorney fees and $814.05 in costs.
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