Judge: Anne Richardson, Case: 19STCV09659, Date: 2023-09-26 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV09659    Hearing Date: February 20, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleading

Plaintiff Mehdi Yahyanejad (Yahyanejad) sued Defendants 1812 Investments, LLC (1812 Investments), Joseph Harrison Soaris, Godstime Eghosa Erhahon, Rodeo Realty Inc., Gregory Daniel Medsker, Doe 1 Lucky Cats, Inc., and Does 2 through 100 pursuant to a March 20, 2019 Complaint alleging claims of (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Real Estate Seller’s Nondisclosure of Material Facts, (4) Intentional Fraud (Misrepresentation and Concealment), (5) Negligent Misrepresentation and Concealment, (6) Breach of Fiduciary Duty, and (7) Negligence.

Pre-Trial Procedural History

On May 9, 2023, the Court held an informal discovery conference (IDC) in this action pertaining to discovery that Plaintiff sought from 1812 Investments.

On May 12, 2023, the parties filed a stipulation and proposed order informed by the outcome of the IDC (May 2023 Stipulation).

On June 8, 2023, the Court signed the proposed order relating to the May 2023 Stipulation (hereafter, the June 8, 2023 IDC order).

On August 29, 2023, Plaintiff moved to compel 1812 Investments’ compliance with the June 8, 2023 IDC order on the grounds that 1812 Investments failed to enter the stipulation regarding production and failed to serve responses to the form interrogatories and requests for admission there at issue. The motion also sought monetary, issue, and evidentiary sanctions.

On September 26, 2023, the Court heard and granted Plaintiff’s August 29, 2023 motion, in part (the IDC Motion Order). Specifically, the Court ordered 1812 Investments to:

(1) “[S]erve on Plaintiff supplemental, full, and complete verified responses to Form Interrogatory Nos. 12.1, 50.1, 50.2, and 50.3 no later than Monday, October 2, 2023, including without limitation, full contact information as to persons who were hired to work and who worked on the Property at issue in this case before the sale to Mr. Yahyanejad”;

(2) “[S]erve on Plaintiff supplemental, verified responses to Requests for Admission Nos. 27, 28, and 63 no later than Monday, October 2, 2023”; and

(3) “[J]ointly and severally” with “Law Office of Winston K. McKesson” “remit payment of $9,410 in monetary sanctions to Plaintiff Mehdi Yahyanejad within 14 calendar days” of the ruling.

The Court also ordered that:

(1) “1812 Investments will not be permitted to use documents responsive to the Inspection Demands which are or were in the possession of agents of 1812 Investments and/or its principal, Robert J. Oshodin, Joseph Soaris, and Godstime Erhahon”; and

(2) “1812 Investments shall not be permitted to introduce at trial any documents responsive to the Inspection Demands which have not been produced to Mr. Yahyanejad in the discovery process, from whatever source they are alleged to have been obtained by 1812 Investments.”

On October 9, 2023, 1812 Investments’ counsel emailed Plaintiff’s counsel with purportedly supplemental responses to the form interrogatories and requests for admission. However, a review of the responses showed Plaintiff’s counsel that the responses only addressed the requests for admission, involved qualified responses rather than the unqualified admissions ordered by the Court, and were not verified.

On October 13, 2023, Plaintiff Yahyanejad moved for issue and/or evidentiary sanctions against 1812 Investments for failing to comply with the Court’s June 8, 2023 IDC order and the September 26, 2023 IDC motion order.

On October 31, 2023, the Court granted Plaintiff Yahyanejad’s motion in full (Sanctions Order).

Trial Proceedings and Judgment

Trial commenced in this action on October 31, 2023.

On December 15, 2023, the Court issued an order issuing its final statement of decision after trial, which found in favor of Plaintiff Yahyanejad and against Defendant 1812 Investments on the first through fourth and sixth causes of action, awarding $240,493 in compensatory damages.

Also that day, the Court signed judgment to this effect, leaving blank fields for attorney’s fees and costs, and the Clerk gave notice of entry of judgment.

Motion to Set Aside IDC Motion Order

On October 27, 2023, 1812 Investments filed a motion to set aside the IDC Motion Order under Code of Civil Procedure section 473 subdivision (b).

On January 24 2024, Plaintiff Yahyanejad opposed the motion.

No reply appears in the record.

Motion for Offset in Judgment

On December 20, 2023, 1812 Investments filed a motion for offset in judgment based on a settlement between Plaintiff Yahyanejad and other Defendants in this action.

On February 5, 2024, Plaintiff Yahyanejad opposed the motion for offset in judgment.

No reply appears in the record.

Motion for Attorneys’ Fees and Costs

On December 21, 2023, Plaintiff Yahyanejad filed a memorandum of costs.

On December 28, 2023, Plaintiff Yahyanejad filed a motion for attorneys’ fees and costs in the trial proceedings.

On January 24, 2024, 1812 Investments opposed the motion.

1812 Investments, however, did not file a motion to strike or tax costs.

On January 30, 2024, Plaintiff Yahyanejad replied to the opposition.

Motion For New Trial re Pretrial Interest

On December 27, 2023, Plaintiff Yahyanejad noticed an intent to move for new trial.

On December 28, 2023, Plaintiff Yahyanejad filed a motion for a new trial on prejudgment interest.

On January 24, 2024, 1812 Investments opposed the motion.

On January 30, 2024, Plaintiff Yahyanejad replied to the opposition.

Present Hearing

On February 6, 2024, the Court continued the hearing on three of the above motions so that all four motions could be heard together, on February 20, 2024.

All four motions summarized above are now before the Court.

Motion to Set Aside IDC Motion Order

Legal Standard

Section 473 subdivision (b) of the Code of Civil Procedure provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

The mandatory provision provides that “[n]otwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b); see, e.g., Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-1819 [Summary judgments not within the purview of the mandatory relief provision of section 473, subdivision (b) because relief is limited to defaults, default judgments, and dismissals, contrasted by discretionary relief provision of section 473, subdivision (b), which applies to any ‘judgment, dismissal, order, or other proceeding].)

The affidavit need only attest to the attorney’s mistake, inadvertence, surprise, or neglect in causing the default or default judgment—the reasons for it need not be explained. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) Attestation that one of these reasons existed is sufficient to obtain relief unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) This is because “the purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why.” (Martin Potts, supra, 244 Cal.App.4th at p. 439.) The lawyer’s negligence need not be the exclusive or sole cause of the client’s loss so long as it was in fact a proximate cause. (Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 867.) However, mandatory relief under section 473, subdivision (b) may be denied where dismissal or default resulted from intentional conduct rather than a mistake, inadvertence, surprise, or neglect. (See Pagarigan v. Aetna U.S. Healthcare of Cal., Inc. (2007) 158 Cal.App.4th 38, 45-46 (Pagarigan) [affirming trial court finding of deliberate conduct rather than mistake supporting mandatory relief under section 473 where court of appeal found unreasonable error of law as grounds for the motion, objectively strategic reason to engage in “mistake,” and trial court’s ability to make assessment of credibility].)

Order Setting Aside/Vacating IDC Motion Order: GRANTED, in part; DENIED, in part.

After review, the Court GRANTS Defendant 1812 Investment’s motion, in part, only insofar as the Court reduces the monetary sanctions to $2,610 from the IDC Motion Order, as explained below.

The challenged portions of the September 26, 2023 order are:

“1) 1812 Investments will not be permitted to use documents responsive to the Inspection Demands which are or were in the possession of agents of 1812 Investments and/or its principal, Robert J. Oshodin, Joseph Soaris, and Godstime Erhahon; and 2) 1812 Investments shall not be permitted to introduce at trial any documents responsive to the Inspection Demands which have not been produced to Mr. Yahyanejad in the discovery process, from whatever source they are alleged to have been obtained by 1812 Investments.”

(9/26/23 Order, pp. 5-6.)

The mandatory relief portion of section 473 subdivision (b) does not apply to orders relating to monetary or evidentiary sanctions, at least not those orders that do not constitute an effective dismissal or default of the case. Both the language of the statute and case law are clear on that point. (Code Civ. Proc., § 473, subd. (b); see, e.g., Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-1819 [Summary judgments not within the purview of the mandatory relief provision of section 473, subdivision (b) because relief is limited to defaults, default judgments, and dismissals, contrasted by discretionary relief provision of section 473, subdivision (b), which applies to any ‘judgment, dismissal, order, or other proceeding]; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138 [same].)

Even though there is no mandatory relief, there still remains discretionary relief to set aside any order under section 473 subdivision (b). Here, the Court exercises its discretion to reduce the monetary sanctions but does not otherwise find a basis to set aside the order.

The Court has heard and understands 1812 Investment’s positions that (1) it met its discovery requirements because it produced all relevant discovery and (2) Winston McKesson specifically was not aware of the IDC motion or hearing until after he received the order, which was served on September 27, 2023. (10/27/23 Mot. [CRS# 7032], McKesson Decl., ¶¶ 7-23.) Counsel admits that he was served electronically, but states that because he was involved in back-to-back trials, he was not checking email frequently, which caused his emails to get backed up. (Ibid.)

As to the first argument, in fact, Defendant concedes that it did not produce verified, supplemental responses that stated that Defendant had produced all responsive information. (10/27/23 Mot. [CRS# 7032], McKesson Decl., ¶ 18.) Plaintiff was trying to obtain a verified response that no additional information would be provided. Thus, while Defendant contended he had nothing more to offer, in fact, that statement was never provided in a verified response, even after an agreement was reached to do so during an IDC. Hence, the motion for sanctions was justified.

As to the second issue, while the Court has no doubt that Mr. McKesson was in fact extremely busy during this time, such occupation with other matters cannot be used to prevent an opponent from moving a case forward. The discovery at issue in this motion for sanctions had been initiated back in 2020. Moreover, Defendant has not shown any prejudice from the evidentiary sanctions because, at trial, Defendant’s counsel conceded that the evidentiary sanctions that were issued were essentially the same as what its position would have been without the evidentiary sanctions.

Nonetheless, the amount that was granted in sanctions in the IDC Motion Order ($9,410) is quite high; at a billing rate of $425 an hour, that comes to 22 hours plus the $60 filing fee. The motion itself was not complex, dealing simply with a failure to produce discovery responses that had already been agreed to be provided, and the motion was unopposed and thus no reply was needed. Plaintiff’s counsel requested to be compensated for his time meeting and conferring and to prepare, attend, and document the IDC. However, 22 hours for this simple motion is excessive, and the Court would almost certainly have reduced it had the motion been opposed for these reasons.

 Accordingly, the Court GRANTS the motion insofar as it will reduce the sanctions to the amount of $2,610, which amounts to six hours for attorney work drafting the motion, meeting and conferring, and appearing at the hearing.

Defendant 1812 Investment’s motion is otherwise DENIED.

Motion for Offset in Judgment

Legal Standard

“Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” (Code Civ. Proc. § 877.) As a result, a settlement with a joint tortfeasor or co-obligor provides the remaining defendants with an offset against the plaintiff’s award in the amount specified or the amount of the consideration, whichever is more. (Code Civ. Proc. § 877(a); Engle v. Endlich (1992) 9 Cal.App.4th 1152, 1163 (Engle).) The nonsettling tortfeasors are entitled to an offset for the full amount of the settlement, rather than by an amount measured by the settling tortfeasor’s proportionate responsibility for the injury. (Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1489.)

Order Granting Judgment Offset: GRANTED, in part.

Defendant 1812 Investments moves for an offset in the December 15, 2023 judgment in light of a $135,000 good faith settlement between Plaintiff Yahyanejad and other Defendants in this action, thus reducing the judgment amount from $240,493 to $105,493. (12/20/23 Mot. [CRS# 2302], pp. 2-4.)

The Court notes that the motion for offset fails to attach any proof of service of the motion on Plaintiff Yahyanejad. (See 12/20/23 Mot. [CRS# 2302], pp. 1-6 & Proposed Order, pp. 1-2.)

In opposition, Plaintiff Yahyanejad argues that this motion should be denied (1) as untimely because the motion was served fewer than sixteen court days prior to this hearing, in violation of Code of Civil Procedure section 1005, subdivision (b), and (2) for failure to attach supporting evidence to the moving papers, e.g., despite including a “Winston McKesson” declaration in the motion’s notice, failing to include such a declaration in the moving papers. Plaintiff Yahyanejad also argues that any offset should be limited to $67,500. Plaintiff elaborates by explaining that the settlement at issue involved a payment of $67,500 from Defendants Joseph Soaris and Lucky Cats, Inc. (the real estate agent and broker who represented Defendant 1812 Investments) and another payment of $67,500 from Gregory Daniel Medsker and Rodeo Realty (the real estate agent and broker who represented Plaintiff). Plaintiff argues that the judgment against Defendant 1812 Investments cannot be offset by any settlement with Defendants Medsker and Rodeo Realty because the claims that were brought against Medsker and Rodeo Realty differed from the claims brought against the other Defendants such that Medsker and Rodeo Realty were not joint tortfeasors with the other Defendants. (Opp’n, pp. 1-6.)

The record fails to reflect a reply by 1812 Investments.

The Court finds that an offset is warranted.

The Court initially notes that when an opposing party expressly objects to inadequate notice but opposes the motion on the merits, the issue of defective notice may be waived unless the opposing party makes a request for a continuance or demonstrates prejudice from the defective notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) Here, Plaintiff Yahyanejad has not made any showing of prejudice and has not requested a continuance. The issue of defective notice is thus waived.

The Court next determines that Plaintiff is correct in noting that Defendant 1812 Investments failed to attach any evidence to the moving papers. The motion is supported only by unsworn points and authorities. (See Mot., p. 4; see also In re Zeth S. (2003) 31 Cal.4th 396, 413 [“the unsworn statements of counsel are not evidence”]; South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)

Nevertheless, the Court notes that it can take judicial notice of Superior Court records, including records of settlements in this action. (See Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).) On December 4, 2020, the Court entered a stipulation and order agreeing on a good faith $135,000 settlement between Plaintiff Yahyanejad and Defendants Joseph Harrison Soaris, Lucky Cats, Inc., Gregory Denial Medsker, and Rodeo Realty, Inc. (the Settling Defendants). (See 12/4/20 Stipulation and Order, pp. 1-5.) The Court takes judicial notice of the settlement documents. (See Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

The Court next concludes that the portion of the settlement paid by Defendants Medsker and Rodeo Realty cannot offset the judgment against Defendant 1812 Investments. The Complaint’s claims against Defendants Medsker and Rodeo Realty arose from allegations that these Defendants failed to properly represent Plaintiff Yahyanejad in connection with purchasing the Property (i.e., buyer’s agents did not act in accordance with duty). (Complaint, ¶¶ 63-71.) In contrast, the claims alleged against Defendant 1812 Investments and against the other Defendants arise from the seller’s side of the transaction, with 1812 Investments as the seller and Soaris and Lucky Cats, Inc. as 1812’s representatives. (Cf. Complaint, ¶¶ 19-62.) Consequently, any offset would be limited to the $67,500 paid by Defendants Soaris and Lucky Cats, Inc. to Plaintiff Yahyanejad.

As to whether the $67,500 paid by Defendants Soaris and Lucky Cats, Inc. to Plaintiff Yahyanejad should offset the judgment against Defendant 1812 Investments, the Court finds in favor of Defendant 1812 Investments. The only three claims alleged against Defendants Soaris are the third to fifth causes of action, which were equally stated against Defendant 1812 Investments, and allege misrepresentations related to the Property that 1812 Investments sold to Plaintiff, with Defendants Soaris and Lucky Cats, Inc. acting as 1812 Investments’ real estate agent and broker. (Complaint, ¶¶ 34-62.) As for Lucky Cats, the Complaint alleges five claims against this Defendant but only insofar as Lucky Cats, Inc. is alleged as Doe 30, and thus any allegations against Lucky Cats, Inc. are Doe allegations alleged in tandem with liability to 1812 Investments. (See Complaint, ¶¶ 19-62; see also 1/6/20 Amendment to Complaint.) The Court can thus accept that Defendants Soaris, Lucky Cats, Inc., and 1812 Investments were joint tortfeasors, a position that is not disputed with any vigor by Plaintiff’s opposition.

Defendant 1812 Investments’ motion is GRANTED.

The judgment is OFFSET by $67,500, for a modified judgment of $172,993.

The Court notes that an April 4, 2021 default judgment appears in the record against Defendant Erhahon in the amount of $136,932.70. To the extent that this default judgment has been satisfied, a further question of offset may remain.

Motion for Attorney’s Fees and Costs

Legal Standard

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Attorney’s fees and costs may be awarded where a contract between the parties at issue specifically provides for such fees and costs and one party prevails over the other on the contract. (See Civ. Code, § 1717, subd. (a).)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

Order Granting Fees and Costs: GRANTED, in part.

As the prevailing party at trial, Plaintiff Yahyanejad seeks a Court order awarding $331,387.50 in attorneys’ fees and $222 in reasonable costs in addition to the costs requested in the December 21, 2023 memo of costs. (See 12/28/23 Mot. [CRS# 3078], Notice, p. i.) To get to that number, Yahyanejad subtracted $9,350 in attorney fees for the sanction motion discussed above and another $4,572.50 attributable to the bankruptcy of Lucky Cat, and added additional time spent between December 2023 to the present. (Id. at pp. 4-5, 12.)

The Court notes that Plaintiff Yahyanejad is entitled to fees pursuant to a written agreement between the parties. (See 12/28/23 Mot. [CRS# 3078], Light Decl., Ex. A., California Residential Purchase Agreement and Joint Escrow Instructions [Purchase Agreement], ¶ 25; see also Code Civ. Proc., § 1717.)

I. Reasonable Rates

In his motion, Plaintiff Yahyanejad argues that the fee rates sought for counsel—$425 per hour for Harold J. Light and $350 per hour for Bruce A. Gilbert—are reasonable. The rates are supported by a declaration from counsel summarizing the academic and professional background of counsel. (12/28/23 Mot. [CRS# 3078], p. 9; 12/28/23 Mot. [CRS# 3078], Light Decl., ¶¶ 12-13, Ex. C [verified time records].)

In opposition, 1812 Investments argues that the rates sought by Plaintiffs are unreasonable because Plaintiff Yahyanejad has failed to provide evidence of the prevailing rates in the Los Angeles legal market for civil, breach of contract attorneys of like skill, experience, and reputation engaging in similar work, any evidence of Plaintiff’s counsel’s own experience, skill, reputation, or track record, or any evidence of reasons supporting the requested fee rates. (1/24/24 Opp’n [CRS# 3078], pp. 5-6.)

In reply, Plaintiff Yahyanejad argues that counsel have been attorneys for nearly 40 years and have specialized legal experience supporting the requested fee rates. (1/30/24 Reply [CRS# 3078], p. 3.)

The Court finds in favor of Plaintiff.

The Court’s experience informs its determination that the requested fee rates are eminently reasonable for litigators of Plaintiff’s counsel’s experience in the Los Angeles area and for such a case. (Excelsior Union High Sch. Dist. of L.A. Cnty. v. Lautrup (1969) 269 Cal.App.2d 434, 448 [The Court is considered “an expert in the matter of attorney fees” since “[t]he value of attorney’s services is a matter with which a judge must necessarily be familiar”; “[w]hen the court is informed of the extent and nature of such services, its own experience furnishes it with every element necessary to fix their value”].)

II. Reasonable Hours

In his motion, Plaintiff Yahyanejad argues that he should be able to recover compensation for all hours expended on this action by counsel, even for hours expended on work related to the Defendants who settled in 2020. Plaintiff also argues that the hours expended in this action are reasonable and supported by verified time records. Last, Plaintiff argues that the conduct of 1812 Investments and counsel made this litigation more expensive than it should have been. (12/28/23 Mot. [CRS# 3078], pp. 7-9, 9-11; see (12/28/23 Mot. [CRS# 3078], Light Decl., Ex. C [verified time records showing 786.50 hours of work expended by counsel in this nearly five-year litigation].)

In opposition, 1812 Investments argues that fees should be reduced or denied for a variety of reasons having to do with improper hours. These reasons include block billing, excessive hours, duplicative entries, vague and/or unnecessary work entries, work that could have been done by a lower biller, and vagueness as to ascertainability of the defendant in relation to which hours were expended. (1/24/24 Opp’n [CRS# 3078], pp. 6-16.)

In reply, Plaintiff Yahyanejad argues in favor of reasonability of hours expended. (1/30/24 Reply [CRS# 3078], pp. 2-3, 3-10.)

The Court finds in favor of Plaintiff in part and Defendant in part.

The Court first determines that, because the Court has already found that Defendants Soaris, Lucky Cats, Inc., and 1812 Investments were joint tortfeasors (see Motion for Offset discussion supra), Plaintiff may obtain fee compensation for hours expended by counsel in relation to these Defendants. However, the same conclusion does not apply to work expended in prosecuting this case against Defendants Medsker and Rodeo Realty, who were not joint tortfeasors to Defendant 1812 Investments. The verified time records filed by Plaintiff Yahyanejad (2/28/23 Mot. [CRS# 3078], Light Decl., Ex. C) do not differentiate between work expended as to Defendants Soaris, Lucky Cats, Inc., and 1812 Investments and as to Defendants Medsker and Rodeo Realty. This lack of clarity is discussed below.

The Court next determines that even if counsel’s rates are reasonable, and even if Defendant failed to participate, the number of hours expended on this action show overlitigation. “When a voluminous fee application is made the court may make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 40 (Morris), quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 [internal quotation marks and ellipses deleted].) “A trial court is not required to state each charge it finds reasonable or unreasonable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case.” (Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744.) “But the court must clearly explain its reasons for choosing the particular negative multiplier that it chose; otherwise, the reviewing court is unable to determine that the court had valid, specific reasons for its across-the-board percentage reduction.” (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41, disagreed with in Morris, supra, at pp. 36-37, fn. 6 [disagreement re: standard on lemon law fee awards on appeal].)

Here, 1812 Investments routinely failed to participate in these proceedings, which led to a lot of meet and confer efforts and non-complex motion work. However, the hours spent for such work should not have risen to the hours requested by Plaintiff, precisely because the issues were not complex, and Defendant did not heavily litigate or even respond to many of Plaintiff’s motions. Despite this, the verified time records show billing for 786.50 hours of attorney time over five years, broken down over 58 pages of billing records, with many vague entries and redactions to the records making it difficult to determine if the time expended on each task is appropriate for the nature of the task (the redacted content). (12/28/23 Mot. [CRS# 3078], Light Decl., Ex. C; see Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1318-1319 [“[s]ubstantial evidence … [of a] fee request with” overly redacted and perhaps overinclusive, unculled, redundant, and padded billing entries may “destroy[] the credibility of the submission and … justify[] a severe reduction].)

For example, many of the entries include such redactions as: “Telephone conference with Gilbert regarding [redacted]” and “Exchange emails with client regarding [redacted].” (12/28/23 Mot. [CRS# 3078], Light Decl., Ex. C pp. 1-3). Other entries show block billing and an unreasonably long time allocated to certain activities, such as the approximately 54 hours spent preparing responses to discovery requests from June 16-23, 2020, (id. at pp. 14-15) and at least 28 hours to prepare a mediation brief in August, 2020, (id. at pp. 16-17), in addition to the 22 hours spent on the motion for sanctions which the Court also found excessive above (as well as an equivalent amount of time for each of two other motions to compel).

On the other hand, the time records also show that some of the time spent by Plaintiff was in response to the repeated nonparticipation of 1812 Investments, resulting in the need to reschedule depositions, file numerous motions to compel, meet and confer, etc., that would not have reached such a high rate had the Defendant cooperated consistently. Defendant cannot be heard to complain of time spent following up on his own failure to participate in the litigation, as long as the time requested is reasonable.

In light of the above determinations—vagueness as to whether billing entries relate to work expended prosecuting this action against relevant Defendants, vagueness in billing entry descriptions, excessiveness in time expended on certain tasks performed in this litigation, as well as the high quality of the work product and 1812 Investment’s lack of cooperation—the Court finds that the most appropriate remedy is to make an across-the-board reduction to the requested lodestar of $331,387.50 by thirty percent, making an award of $231,971.25 the appropriate recovery of reasonable fees in favor of Plaintiff Yahyanejad for work expended by counsel in this action in relation to Defendant 1812 Investments and related joint tortfeasors.

III. Multiplier Enhancement

Plaintiff Yahyanejad does not seek a multiplier enhancement award, for which reason the Court does not further discuss this fees’ consideration.

IV. Costs in Costs Memorandum

The Cour finds that the $25,269.34 in costs sought in the December 21, 2023 memorandum of costs are recoverable by Plaintiff Yahyanejad.

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700, subd. (a)(1).)

Here, notice of entry of judgment was issued by the Clerk on December 15, 2023.

Six days later, Plaintiff Yahyanejad filed a memorandum of costs, putting costs at issue per rule 3.1700. (See 12/21/23 Memo of Costs.)

The memo of costs was served on Winston McKesson via email at his regular email address on December 21, 2023. (See Memo of Costs, Proof of Service [winstonkevinmckesson0331@gmail.com].)

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4). (Cal. Rules of Court, rule 3.1700, subd. (b)(1).)

Here, Defendant 1812 Investments has altogether failed to file a motion to strike or tax costs.

For this reason, costs are GRANTED in the amount of $25,269.34. (See Cal. Rules of Court, rule 3.1700, subd. (b)(4) [re: memo of costs].)

V. Costs Related to This Motion

The Court also finds that the $222 in costs connected with this motion were reasonably incurred and are thus GRANTED. (12/28/23 Mot. [CRS# 3078], Light Decl., ¶ 21.)

VI. Fees and Costs Conclusion

Plaintiff Yahyanejad’s motion is GRANTED, in part, in the amount of $231,971.25 in reasonable fees and $25,491.34 in reasonable costs.

Any proposed amended judgment filed by the parties should include this award.

Motion for New Trial

Legal Standard 

An aggrieved party may move for new trial may under seven grounds prescribed by Code of Civil Procedure 657. A party seeking reversal of an adverse summary judgment ruling may also make a motion for new trial on the grounds that there are triable issues of material fact or that there is newly discovered evidence favoring reversal of the summary judgment ruling. (See Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1504-1505.)

The seven grounds are:

(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

(2) Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

(3) Accident or surprise, which ordinary prudence could not have guarded against.

(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

(5) Excessive or inadequate damages.

(6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

(7) Error in law, occurring at the trial and excepted to by the party making the application.

(Code Civ. Proc., § 657, subds. (1)-(7).)

To grant a new trial, the Court must determine that there exists in this action an insufficiency of evidence at trial to justify the verdict because, after weighing the evidence, the court is not convinced from the entire record, including reasonable inferences, that the judge or jury clearly should have reached a different verdict or decision. (See Code Civ. Proc., § 657; Lauren H v. Kannappan (2002) 96 Cal.App.4th 834, 839; see Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 216 [A judge may not grant a new trial even where the judge would have found differently from the jury].) The standard is instead one requiring the conclusion “that the verdict was obviously and clearly wrong.” (Cal. Judges Benchbook: Civil Proceedings-After Trial (2021 Supp.) Insufficient Evidence to Justify Verdict or Decision (CCP § 657(6)), § 2.56.)

“[T]he [denial] of a motion for a new trial rests so completely within the discretion of the trial court that an appellate court will not interfere with his action unless” there is an “‘affirmative showing of a gross, manifest or unmistakable abuse of discretion.’ [Citation.]” (Dunford v. General Water Heater Corp. (1957) 150 Cal.App.2d 260, 264.) “The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons. [Citation.]” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)

Order Granting Prejudgment Interest: GRANTED, as to Code Civ. Proc., § 662.

The parties dispute whether Plaintiff Yahyanejad is entitled to an award of prejudgment interest.

Plaintiff argues that a motion for a prejudgment interest award under Code of Civil Procedure section 3287 may be made by a motion for new trial pursuant to Code of Civil Procedure section 657, as discussed in North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830 (North Oakland), and that alternatively, because this case was a bench trial, the Court can modify the judgment to reflect a prejudgment interest award pursuant to Code of Civil Procedure section 662. Plaintiff Yahyanejad also argues that the pleadings properly provide grounds for seeking an interest award and that an interest award is mandatory because the award was readily ascertainable following the Los Angeles Housing and Community Investment Department’s (LAHCID) determination that the Property’s deficiencies had been corrected, permitting interest from February 19, 2020 to December 15, 2023, the date of judgment in this litigation. Alternatively, Plaintiff argues that if damages were not for a readily identifiable sum certain, then the Court may still issue a discretionary interest award pursuant to Code of Civil Procedure section 3287 because Defendant was on notice of the costs incurred by Plaintiff Yahyanejad in remediating the deficiencies in the Property, e.g., no permitting from City. Last, Plaintiff Yahyanejad argues that the Court may also award interest pursuant to Code of Civil Procedure section 3288 on the ground that the action involved trial claims upon which Plaintiff Yahyanejad prevailed at trial, and upon which seven percent interest can be recovered. (12/28/23 Mot. [CRS# 8456], pp. 7-14.)

In opposition, Defendant 1812 Investments argues that an interest award should be denied for three reasons. First, 1812 Investments argues that because there was no award for prejudgment interest in the final statement of decision, there can be no interest award, which is barred by claim and issue preclusion based on the judgment. Next, 1812 Investments argues that the damages were unliquidated (not for a sum certain) because 1812 Investments could not ascertain the amount of damages for various reasons, including that it did not know or reasonably discover information related to the damage on the Property. 1812 Investments adds that the Court may deny a discretionary award and that the Court should do so here because the Court has already denied an interest award, i.e., through the omission of such an award from the statement of decision. Last, 1812 Investments very briefly argues that if the Court issues an interest award, the Court should make the start date of the interest award September 2023, when trial preparation began, and that interest should be limited to 2%. (1/24/24 Opp’n [CRS# 8456], pp. 1-4.)

In reply, Plaintiff Yahyanejad argues that there is no res judicata in either form of preclusion because the doctrine applies where two different actions are at issue, with judgment in the former barring proceedings in the latter, whereas here, Defendant 1812 Investments is advocating for the application of res judicata in the same action. Plaintiff Yahyanejad next argues that the damages here were made certain by Plaintiff’s discovery responses related to damages (Form Interrogatory No. 9.1) and Trial Exhibit 132, which showed comparable damages requested by Plaintiff. Plaintiff Yahyanejad adds that if the Court determines that this is not a liquidated damages action, then the Court should still exercise its discretion to award interest pursuant to North Oakland and based on the lack of merit to the res judicata defense. Plaintiff Yahyanejad clarifies that an interest award can be requested by new trial. Last, Plaintiff Yahyanejad argues that interest should start from February 19, 2020, which is a date after this action was initiated, or as of June 23, 2020, when the Form Interrogatory No. 9.1. responses were served by Plaintiff Yahyanejad on 1812 Investments, and that an interest award of two percent is not supported by any authority in the opposition or the applicable law in the Civil Code. (1/30/24 Reply [CRS# 8456], pp. 1-5.)

The Court finds that a modification of the judgment reflecting a prejudgment award is proper here.

First, the Court determines that a prejudgment interest award was not barred by the final statement of decision or the judgment because neither pleading made a determination on this issue and the award need not be decided before or at trial. (See North Oakland, supra, 65 Cal.App.4th at pp. 830-831; see also 12/15/23 Statement of Decision; 12/15/23 Judgment.)

Second, the Court determines that a basis for a prejudgment interest award was properly stated prior to trial in this action. (Id. at pp. 829-830 [“[P]rejudgment interest is not a cost, but an element of damages,” and therefore “prejudgment interest should be awarded in the judgment on the basis of a specific request therefor made before entry of judgment,” where “a general prayer in the complaint is adequate to support an award of prejudgment interest”]; see 3/20/19 Complaint, Prayer, All Causes of Action, ¶ 1 [seeking “[i]nterest on the damages according to law”].)

Third, the Court determines that Plaintiff Yahyanejad followed proper procedure in making this motion. “[T]here is no authority mandating any particular procedure for securing an award of prejudgment interest.” (Id. at p. 829.) “[N]o statute or rule of court establishes a procedure for requesting an award of prejudgment interest, or a time limit therefor, in the superior court.” (Id. at pp. 829-830.) In the absence of a statute or a rule of court setting forth procedural requirements for a request for prejudgment interest, “requests for prejudgment interest under section 3287 by a successful plaintiff must be made by way of motion prior to entry of judgment, or the request must be made in the form of a motion for new trial no later than the time allowed for filing such a motion. (Code Civ. Proc., § 659.)” (Id. at p. 831; cf. Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 299 (Watson) [“[A] request for prejudgment interest is sufficient if it ‘provides the relevant information to the opposing party and the court and gives the adverse party a reasonable opportunity to oppose the request on its merits. [Citations.]”].) Here, the request for a prejudgment interest award was made in a motion for new trial, making it timely and proper.

Fourth, the Court determines that the damages here are discretionary because they are not for a sum certain. The amount of damages requested in the Complaint is “an amount in excess of $200,000.” (See, e.g., Complaint, Prayer, First to Seventh Causes of Action, ¶ 1.) Plaintiff’s June 23, 2020 Form Interrogatory No. 1 framed damages as $271,497.59, with $29,700 of those monies based on an estimate rather than monies actually expended on costs related to correcting the deficiencies in the Property. (12/28/23 Mot. [CRS# 8456], Light Decl., ¶ 6, Ex. B, pp. 7-8.) Plaintiff’s trial documents contained a summary of costs incurred to remedy issues at the Property, which totaled damages of $271,994. (12/28/23 Mot. [CRS# 8456], Light Decl., Ex. C.) The Court award damages of $240,493. (12/15/23 Judgment, p. 2.) While the damages were estimated to be within $1,000 of $271,000, they were variable estimates, and the Court found damages were $30,000 less than estimated. Accordingly, the damages were not liquidated.

Fifth, the Court determines that a discretionary award is merited. An award of prejudgment interest may also be made as to unliquidated amounts after judgment, beginning on a date prior to judgment, provided that such awards are discretionary and, in deciding whether to exercise its discretion, the court “consider[s] the circumstances, realizing a party cannot pay the amount due until it is determined what that amount was.” (Civ. Code § 3287, subd. (b); Union Pacific Railroad Company v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 203 [quoted language].) Here, 1812 Investments focuses on the merit of insufficient grounds for an interest award. (See 1/24/24 Opp’n [CRS# 8456], pp. 1-4.) Plaintiff requested prejudgment interest in the Complaint. (Complaint, Player, All Causes of Action, ¶ 1.) Plaintiff prevailed at trial. (See 12/15/23 Judgment.) An interest award should follow, particularly where breach of contract and fraud were found by the Court. (12/15/23 Judgment, p. 2.)

Sixth, the Court nevertheless determines that an interest award dated is proper from Plaintiff’s June 23, 2020 service of his responses to Form Interrogatory 9.1 to the date of judgment, December 15, 2023. As of that June 23, 2020, Defendant 1812 Investments was aware of a claim against it in the amount of at least $271,497.59, with $29,700 of those monies based on an estimate rather than monies actually expended on costs related to correcting the deficiencies in the Property. (12/28/23 Mot. [CRS# 8456], Light Decl., ¶ 6, Ex. B, pp. 7-8.)

Seventh, the Court determines that the proper interest rate is 10% based on the breach of contract nature of the judgment and pursuant to Civil Code section 3289, subdivision (b). (See 12/28/23 Mot. [CRS# 8456], Light Decl., Ex. A [no legal rate of interest in agreement between parties]; see also Civ. Code, § 3289, subd. b [if no interest rate in contract, 10% per annum after breach applies].)

Eighth, the Court determines that the proper interest award is $49,858.17, which is comprised of a modified judgment of $172,993 (see Motion for Offset discussion supra), minus $29,700 in estimated damages (12/28/23 Mot. [CRS# 8456], p. 6, § 2.5), for a base “interest judgment” of $143,293, at a rate of 10% per annum from June 23, 2020 to December 15, 2023, yielding the above interest amount.

Last, the Court determines that the best manner to effect the award is to amend the judgment and add this award to the judgment (Code Civ. Proc., § 662), with a proposed amended judgment to be filed including this award.

Plaintiff Yahyanejad’s motion is thus DENIED and the Court, pursuant to Code of Civil Procedure section 662, MODIFIES the December 15, 2023 to add:

“Plaintiff Mehdi Yahyanejad is AWARDED prejudgment interest of $49,858.17.”

Conclusion

I.

Defendants 1812 Investments, LLC’s Motion to Set Aside Monetary and Evidentiary Sanctions [CRS# 7032] is GRANTED, in part, and DENIED, in part, as follows:

(1) GRANTED as to reducing sanctions in the IDC Motion Order to $2,610; and

(2) Otherwise DENIED.

II.

Defendants 1812 Investments, LLC’s Motion for Offset [in Judgment] [CRS# 2302] is GRANTED, in part.

The December 15, 2023 judgment is OFFSET by $67,500, for a reduction from $240,493 to $172,993.

III.

Plaintiff Mehdi Yahyanejad’s Motion for an Award of Attorney’s Fees and Costs Against Defendant 1812 Investments, LLC [CRS# 3078] is GRANTED, in part, in the amount of $231,971.25  in reasonable fees and $25,491.34 in reasonable costs.

IV.

Plaintiff Mehdi Yahyanejad’s Motion for New Trial and/or Modification of Judgment re Prejudgment Interest [CRS# 8456] is GRANTED insofar as the Court MODIFIES the December 15, 2023 judgment to add:

“Plaintiff Mehdi Yahyanejad is AWARDED prejudgment interest of $49,858.17.”