On 04/09/2018 WILLIAM GLAD filed a Contract - Other Contract lawsuit against HONG WASH LLC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is MARK C. KIM. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Governor George Deukmejian Courthouse
Los Angeles, California
MARK C. KIM
WILLIAM GLAD - INDIV.
INDIV. WILLIAM GLAD -
DOES 1- 10 INC
BENNY HONG-INDIV & AS MANAGING MEM OF LLC
HONG WASH LLC - CA LLC
ANGLIN FLEWELLING RASMUSSEN CAMPBELL & TR
MCDOUGAL LOVE BOEHMER ETC (A. ABELN-OVERS
ABELN-OVERS MCDOUGAL LOVE BOEHMER ETC A.
ABELN-OVERS AMANDA RAE
ANGLIN FLEWELLING RASMUSSEN CAMPBELL & TR
TRAN JADE NGOC BAO
HICKMAN FREDERICK JAMES
9/25/2020: Request for Dismissal
9/15/2020: Other - - TENTATIVE RULING AND FINAL ORDER
9/8/2020: Declaration - DECLARATION DECLARATION OF GENA B. BURNS IN SUPPORT OF PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY'S FEES
9/1/2020: Opposition - OPPOSITION PLAINTIFF WILLIAM GLAD'S OPPOSITION TO DEFENDANT HONG WASH, LLC'S MOTION TO DENY OR STRIKE OR TO TAX COSTS
9/1/2020: Request for Judicial Notice
7/22/2020: Substitution of Attorney
7/23/2020: Offer to Compromise
7/10/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF ORDER TO SHOW CAUSE RE DISMISSAL OF BENNY HONG
3/17/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/17/2020
2/28/2020: Motion in Limine - MOTION IN LIMINE DEFENDANT BENNY HONG'S MOTION IN LIMINE NO. 3 TO PRECLUDE ANY EVIDENCE OF PLAINTIFF'S EXPENSES FOR COMPLYING WITH CITY REQUIRED UPGRADES; SUPPORTING DECLARATION OF
2/28/2020: Motion in Limine - MOTION IN LIMINE DEFENDANT BENNY HONG'S MOTION IN LIMINE NO. 2 TO PRECLUDE ANY EVIDENCE THAT EITHER BENNY HONG OR HONG WASH, LLC HAD PRIOR CODE VIOLATIONS; SUPPORTING DECLARATION OF
3/5/2020: Judgment - JUDGMENT JUDGMENT
3/5/2020: Order to Show Cause re: Dismissal (Settlement)
3/13/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)
12/5/2018: Minute Order - Minute Order (Case Management Conference)
8/28/2018: Case Management Statement
8/28/2018: Case Management Statement -
8/28/2018: Case Management Statement -
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Order to Show Cause Re: Dismissal (Settlement) (as to Defendant Benny Hong) - Not Held - Taken Off Calendar by CourtRead MoreRead Less
DocketRequest for Dismissal; Filed by WILLIAM GLAD - INDIV. (Plaintiff)Read MoreRead Less
DocketAcknowledgment of Satisfaction of Judgment; Filed by WILLIAM GLAD - INDIV. (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion to Amend Judgment - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Order to Show Cause Re: Dismissal (Settlement) (as to Defendant Benny Hong) - Held - ContinuedRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Application for Order for Appearance and Examination ((Benny Hong)) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion for Attorney Fees - HeldRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Motion - Other (Motion to Strike or Tax Costs) - HeldRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement) as to Defendan...)); Filed by ClerkRead MoreRead Less
DocketTentative Ruling and Final Order; Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department S27; Order to Show Cause Re: Failure to File Proof of Service (OSC-Failure to File Proof of Serv.; Matter Placed Off Calendar) -Read MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice and Acknowledgment of Receipt; Filed by PlaintiffRead MoreRead Less
DocketNotice and Acknowledgment of Receipt; Filed by WILLIAM GLAD - INDIV. (Plaintiff)Read MoreRead Less
DocketNotice of Case Management ConferenceRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketComplaint; Filed by WILLIAM GLAD - INDIV. (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketOrder (To show cause hearing)Read MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
Case Number: NC061726 Hearing Date: September 15, 2020 Dept: S27
Plaintiff, William Glad filed this action against Defendants, Hong Wash, LLC and Benny Hong for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence. Plaintiff filed his complaint on 4/09/18. Plaintiff’s complaint alleges Plaintiff entered into a business purchase agreement with Hong Wash; additionally, Plaintiff entered into a lease agreement with Benny Hong in connection with the same property. The parties’ agreement obligated Hong Wash to remove all of its inventory in a manner that did not cause damage to the fixtures on the property. Hong was required, under the lease, to repair any damage caused to the fixtures. In breach of the agreement, agents and/or employees of Hong Wash damaged the utilities and failed to repair the damage.
On 3/04/20, Plaintiff filed a Notice of Settlement with Benny Hong. The Notice of Settlement indicated an intent to dismiss Hong by 4/17/20. On 3/05/20, the Court scheduled an OSC re: dismissal for 4/08/20. Because of the pandemic, the OSC was continued to 7/10/20. On 7/10/20, Plaintiff appeared and requested additional time to complete the settlement. There is an OSC re: dismissal due to settlement as to Benny Hong on calendar contemporaneously with today’s motion hearings. The Offer to Compromise shows that Benny Hong has agreed to settle with Plaintiff for the total amount of $40,000.
On 3/04/20, the Court signed a Judgment in favor of Plaintiff and against Hong Wash. The Judgment was entered in light of Hong Wash’s acceptance of Plaintiff’s §998 offer. The Judgment is in favor of Plaintiff and against Hong Wash in the amount of $15,000, and specifically states, “Defendant, Hong Wash, LLC will pay to plaintiff, William Glad, reasonable attorneys’ fees and taxable costs that plaintiff, William Glad incurred up to and including to the date of the offer to compromise, February 28, 2020, pursuant to a subsequently filed motion for attorneys’ fees and costs by plaintiff, William Glad.”
On 5/05/20, Plaintiff filed a timely motion for attorneys’ fees. Plaintiff seeks to recover $96,372.50 in attorneys’ fees. Defendant opposes the motion. The issues to be decided by way of this motion include:
Is Plaintiff entitled to attorneys’ fees at all?
Does it matter that the case settled for less than the jurisdictional limit?
Does it matter that billing does not differentiate between Hong Wash and Benny Hong?
Does the amount Plaintiff has actually paid to his attorneys matter?
Is the billing excessive overall?
Should a lodestar multiplier be applied?
Can Plaintiff recover fees incurred after the parties settled?
Settlement Below Jurisdictional Limit of Limited Jurisdiction Court
Defendant argues Plaintiff is entitled to no fees at all because Plaintiff ultimately settled for $15,000, which is $10,000 less than the limit on recovery in limited jurisdiction court. While the general law does provide the Court such discretion, the Court will not exercise that discretion where, as here, Defendant specifically consented (by way of its attorney’s signature on the proposed judgment) to the language detailed above concerning attorneys’ fees and costs. Defendant cannot agree to permit Plaintiff to recover attorneys’ fees, then turn around and argue Plaintiff cannot recover any attorneys’ fees.
Effect of Failure to Differentiate Between Benny Hong and Hong Wash in Billing
Defendant also argues it should not have to pay all of the attorneys’ fees because there were two named defendants, and Plaintiff’s attorney’s billing does not differentiate between the two defendants. Defendant notes that the contract providing for an award of fees is with Hong Wash, but not with Benny Hong.
Defendant does not cite authority in connection with this issue. The Court has not found authority directly on point, but did review Cruz v. Ayamloo (2007) 155 Cal.App.4th 1270, 1277. In Cruz, there were multiple plaintiffs, some of whom had an attorneys’ fees provision in a contract and others of whom did not. All of the plaintiffs were represented by the same attorney and sued on the same claims. The trial court affirmed an award of ALL attorneys’ fees incurred by the plaintiffs’ attorney, without apportionment. The court of appeals affirmed.
In this case, Hong Wash and Benny Hong were sued jointly on all claims. Defendant failed to show how Plaintiff could have meaningfully apportioned the fees between the two defendants on the joint claims. The Court will therefore not reduce the fee award against Hong Wash because Benny Hong was also a defendant.
Does the Amount Plaintiff Actually Paid to His Attorneys Matter?
Defendant argues Plaintiff has only paid $30,000 toward fees, which shows that the fees are grossly inflated. Defendant relies on Exhibit A to the Notice of Lodgment with the moving papers, which shows a total of $93,572.50 has been billed as of 2/28/20 in attorneys’ fees, plus $11,995.50 in costs, for a total amount due of $105,568.00. The bill then shows Counsel has received various payments from Plaintiff in the total amount of $42,732.13. Defendant presumes costs were paid first, leaving approximately $30,000 for attorneys’ fees.
The fact that a client has not, to date, paid all outstanding bills does not mean the client (a) will not pay those bills, and/or (b) is not obligated to pay those bills. Counsel and Plaintiff could have an agreement for payment of the bill over time, or any other arrangement. Plaintiff’s actual payment of fees and costs is not relevant to the issue of the amount of fees and costs owed.
Reasonableness of Fees
The biggest issue is whether the fees are reasonable. As noted above, Counsel seeks to recover $93,572.50 as of 2/28/20 (plus additional fees incurred in connection with this motion, discussed below). Defendant argues this amount is (a) not based on sufficiently detailed billing to ascertain whether it is reasonable, and (b) objectively not reasonable.
Plaintiff’s attorneys billed at rates of $350/hour and $450/hour, which rates Defendant does not challenge. The Court therefore finds the hourly rates reasonable. The Court has concerns, however, about the amount of time billed, especially when the ultimate recovery was only $15,000. Pursuant to Niederer v. Ferreiro (1987) 189 Cal.App.3d 1485, 1508, the amount of damages recovered is an important factor in determining a “reasonable fee.” Defense Counsel’s declaration shows that Plaintiff created a lot of his own problems, that he made unreasonable demands throughout the case, and that Defendant offered, near the onset of litigation, to pay for the majority of the damages that ultimately resulted in settlement. Counsel also shows that Plaintiff made numerous motions that were denied; while making the motions was arguably “reasonable,” the fact that they were not successful bodes in favor of finding Plaintiff unnecessarily complicated this litigation.
The Court is inclined to award $15,000 in attorneys’ fees incurred through 2/28/20. The Court realizes that the litigation was protracted and sometimes difficult. On the contrary, Plaintiff could have settled the litigation in the early stages and avoided the vast majority of the fees incurred. On balance, the Court finds imposing fees in excess of the actual recovery is unreasonable and unfair.
The Court will not use a lodestar multiplier, as the Court finds the $15,000 is a full and complete reasonable fee under the circumstances.
Fees Incurred After 2/28/20
Plaintiff also seeks to recover fees incurred in connection with the motion for attorneys’ fees. The Judgment, however, which was agreed to by both parties, specifically provides for fees “incurred up to and including to the date of the offer in compromise.” It does not permit recovery of fees incurred thereafter. The Court therefore will not award additional fees incurred after 2/28/20.
Plaintiff apparently filed an amended memorandum of costs on 3/18/20, pursuant to which he seeks to recover $8472.01 in costs. The memorandum of costs is not in the court file, and is not attached to the motion to tax costs or opposition. The Court has therefore used the parties’ papers to determine the merits of the motion to the best of the Court’s ability.
Defendant moves to tax the costs bill, contending:
Effect of Limited Jurisdiction Option
Defendant argues no costs should be awarded because this case could have been litigated in limited jurisdiction court. Defendant provides authority for this position. However, similar to the motion for attorneys’ fees, above, the Court finds the parties specifically agreed to permit Plaintiff to recover costs. The Judgment, which was submitted jointly by the parties, specifically includes a provision permitting Plaintiff to recover costs incurred from the filing of the litigation until 2/28/20. The Court will therefore permit Plaintiff to recover costs.
Defendant argues costs should be reduced by 75% because there were two defendants in the action. Defendant argues the costs should be reduced by 50% because there are two defendants, and another 25% because the costs are unreasonable. Defendant does not cite authority for his position that reducing costs by half is appropriate when there are two defendants; similarly, Plaintiff does not cite any authority in support of recovering all incurred costs in Plaintiff’s opposition to the motion.
The Rutter Guide on Civil Procedure Before Trial, §§17:274, et seq., has the following to say on the issue:
A defendant prevailing against multiple plaintiffs who joined together and sued on a single theory of recovery (e.g., product liability) is not required to file separate costs memoranda against each plaintiff or otherwise apportion its costs among the plaintiffs. Rather, defendant may file a single memorandum of costs for which all plaintiffs would be jointly and severally liable. If some costs are not related to the single theory of liability, but are specific to a particular plaintiff, plaintiffs may move to tax particular costs on the ground that it is unfair to include such costs in a joint award. [ Acosta v. SI Corp. (2005) 129 CA4th 1370, 1376-1379, 29 CR3d 306, 310-313]
In Acosta, however, the trial court did not fulfill its duty to engage in an itemized review before awarding costs to D ( Acosta v. SI Corp., supra, 129 CA4th at 1380, 29 CR3d at 314).
1) [17:275] Comment re plaintiff prevailing against multiple defendants: Presumably, the same result would obtain when a single plaintiff prevails against multiple defendants sued on the same theory—i.e., plaintiff need not apportion his or her costs among the defendants but, rather, may submit a single memorandum of costs for which defendants would be jointly and severally liable.
In light of the above, the Court finds Plaintiff is entitled to recover 100% of costs incurred against Hong Wash. The Court notes that there is a pending settlement against Benny Hong. The Court will, of course, not permit Plaintiff double recovery of his costs. If Plaintiff seeks to recover costs against Benny Hong, such recovery will be joint and several, not duplicative.
Specific Items of Costs
Defendant seeks to reduce or eliminate various items of costs. The Court will detail and discuss each item in turn.
First, Defendant seeks to reduce the filing fees incurred. Defendant contends the complaint filing fee should be split between the two defendants, and the two ex parte filing fees should be eliminated because the application to continue the trial was for Plaintiff’s own convenience and the application to add a fraud claim was denied. The Court finds these filing fees were actually incurred, and were reasonable, even if one application was for Plaintiff’s convenience and the other was denied; the mere fact that some applications are not granted does not render the applications objectively unreasonable.
Second, Defendant seeks to eliminate the $150 jury fee, as no jury was called, and Defendant contends the fee can be refunded to Plaintiff if Plaintiff requests a refund. Plaintiff argues the fee is recoverable even if it is refundable, because costs are allowable if incurred, whether or not paid. This seems to be a misunderstanding of the purpose of the statute. A cost would be incurred but not paid if the party was obligated to pay it, but did not actually do so. In this case, it is not reasonable to require Defendant to pay a cost Plaintiff concedes is refundable. The motion to tax this cost is granted.
Third, Defendant seeks to reduce the $4538.22 in deposition costs. Defendant contends Plaintiff has improperly failed to itemize the costs. Defendant contends no more than half of these costs should be allowed, again because there were two defendants. The Court again rejects that position. Defendant also argues depositions scheduled by Benny Hong should not be charged to Hong Wash. Plaintiff, in opposition to the motion, provides the actual invoices for the depositions. The Code absolutely permits reasonable costs of deposition to be awarded. The motion to tax these costs is denied.
Fourth, Defendant seeks to eliminate service of process costs, contending Plaintiff could have had Defendants served through their attorney, whose identity was known to Plaintiff prior to litigating. Plaintiff, in opposition, provides the invoices for service of process. Notably, the invoices were for service of process for appearance of witnesses at trial, and were therefore necessary.
Fifth, Defendant seeks to reduce witness fees because they were not actually paid. Plaintiff provides the invoices in connection with the opposition, thus defeating Defendant’s argument.
Sixth, Defendant seeks to eliminate interpreter fees because Benny Hong, not Hong Wash, required an interpreter. As noted above, costs of suit are jointly recoverable against all of the defendants in this action. The argument therefore fails.
Seventh, Defendant seeks to eliminate or reduce fees for electronic filing or service. These fees are recoverable per Code, and Plaintiff provides evidence that they were actually incurred with the opposition papers. The motion to tax them is denied.
The motion to tax costs is granted as to the jury fee of $150 only. It is otherwise denied.
The parties are reminded that there is an ORAP and an OSC re: dismissal after settlement on calendar today concurrently with the hearing on the two motions, above.