Judge: Anne Richardson, Case: 19STCV12991, Date: 2024-04-12 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: 19STCV12991    Hearing Date: April 12, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On April 5, 2019, Plaintiff/Cross-Defendant Taft Electric Company, Inc. (Taft Electric) initiated this action by filing a Complaint alleging claims of various breach of contract and related claims against Defendant/Cross-Complainant Cal-City Construction, Inc. (Cal-City) and Defendants Antelope Valley-East Kern Water Agency (Antelope Water), Western Surety Company (Western Surety), and Does 1-25.

On June 4, 2019, Cal-City filed a Cross-Complaint alleging a breach of contract claim against Taft Electric.

B. Procedural History

Between November 6 and 16, 2023, a trial took place in this action. On November 22, 2023, the Court took the matter under submission.

On December 13, 2023, the Court issued a tentative statement of decision.

On January 30, 2024, after considering the objections and holding a hearing, the Court issued a final statement of decision after trial.

That same day, the Court entered judgment, and the clerk gave notice of entry of judgment.

C. Motion Before the Court

On March 14, 2024, Taft Electric filed a memorandum of costs.

That same day, Taft Electric filed a motion for attorney’s fees and costs related to the trial court proceedings.

On April 2, 2024, Cal-City filed an opposition to Taft Electric’s motion.

On April 5, 2024, Taft Electric filed a reply to Cal-City’s opposition.

Taft Electric’s memo of costs and motion for fees and costs are now before the Court.

II. Motion for Fees and Costs After Trial

A. Fees: GRANTED.

1. 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).)

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 (PLCM Group).) 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]; see Yu v. Superior Court of Los Angeles County (2020) 56 Cal.App.5th 636, fn. 6 [disapproving dictum In re Marriage of Demblewski re: whether motions may be filed before a referee’s decision is entered].)

2. Analysis

Taft Electric seeks $548,256 in legal fees for 1,345.20 billable hours expended on this action by counsel between October 13, 2017, and February 19, 2024. (Mot., p. 4 at Attorney Fees; Mot., Yokomizo Decl., Ex. B [summary at p. 142].)

The Court briefly notes that it considers the opposition because although it was untimely filed eight court days before the hearing (see Reply, p. 2), plaintiff has had an opportunity to fully respond and there would be no prejudice to the plaintiff in the Court’s consideration of the opposition.

The Court also notes that Taft Electric is entitled to fees as the prevailing party at trial and based on a contract with Cal-City providing for attorney’s fees, which the Court noted in the final statement of decision. (1/30/24 Statement of Decision, pp. 34-35 at § 6.)

Although Taft stated that it would be entitled to additional fees for responding to the reply and appearing at the hearing, no additional fees were sought in the Reply.

a. Reasonable Fee Rate

After review, the Court determines that the fees sought by Cal-City are eminently reasonable.

As described by the moving papers, the rates are: “$385 per hour in 2017 to $410 per hour from January 2018 for Mr. Hurst and $400 per hour in 2021 to $450 per hour for Mr. Yokomizo.” (Mot., p. 7.) Counsel’s declaration attached to the moving papers describes counsel’s legal experience. (Mot., Yokomizo Decl., ¶¶ 7, 13, 15-16.) The Court itself observed the quality of advocacy at trial at least as to Mr. Yokomizo (as Mr. Hurst did not participate at trial), and based thereon, can state that these hourly rates are low in comparison to the high quality of advocacy.

b. Reasonable Hours

After review, the Court determines that the 1,345.20 billable hours for which Taft Electric seeks recovery are reasonable. (See Mot., pp. 7-9; Mot., Yokomizo Decl., Ex. B.)

Throughout parts of this litigation and at trial, Defendants unreasonably opposed a large number of issues, forcing Taft Electric to litigate them all. Defendants also entered into stipulations just weeks before trial as to multiple change orders, which delayed resolution on matters that could have been resolved much sooner. Cal-City cannot tenaciously litigate this action only to now be heard to complain that the time spent by Taft Electric’s counsel in response was excessive. (Ketchum, supra, 24 Cal.4th at p. 1141.)

The Court otherwise notes that spending 1,345.20 hours on this action over six years and four months amounts to 17.7 hours spent on this case per month and 212.4 hours per year. The tasks listed in Exhibit B to the Yokomizo declaration are described with sufficient particularity, do not show block billing, and are reasonable in relation to the nature of the task and the times required to perform those tasks. (Mot., Yokomizo Decl., Ex. B.) The Court finds that the matter was complex and hard-fought, and that the Plaintiff’s attorneys exercised skill and attention to detail throughout the litigation.

c. Multiplier Enhancement Award

The moving papers do not request a multiplier enhancement award.

d. Fees Conclusion

Fees are thus GRANTED in the amount of $548,256.

B. Costs: GRANTED.

1. 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); see also Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 8-9 [Civ. Code, § 1717 fees and costs motion not subject to Cal. Rules of Court, rule 3.1700’s requirements]).

2. Analysis

a. Costs Generally

The Court GRANTS Taft Electric’s requests for costs.

First, the Court notes that any objections to costs based on the limits of allowable costs in Code of Civil Procedure section 1033.5 is inapplicable where the scope of allowable costs here was set by the parties’ contractual agreement, which permits an award of “all costs and expenses, including attorney’s fees, related to the presentation and prosecution of such claims.” (Complaint, Ex. A, Jan. 11, 2017, Subcontract, § 13.) That language is not qualified to costs that are allowable under section 1033.5, but rather, includes all costs and expenses related to the reasonable presentation and prosecution of the claims. (Ibid.; see Hart v. Clear Recon Corp. (2018) 27 Cal.App.5th 322, 326 [reciprocity of unilateral fees provision].) For these reasons, the Court’s analysis is not restricted by allowable costs under section 1033.5.

A review of the amounts claimed in costs—including the internal communications, mediation, deposition, and transcript costs addressed in the opposition and as rebutted in the reply—shows that the costs requested are reasonable, as supported by documentary evidence. (Memo of Costs, p. 1; Mot., Yokomizo Decl., Ex. C [documentary evidence].)

All the sought-after costs are thus proper and may be awarded.

The Court nevertheless separately analyzes the reasonability of the expert costs.

b. Expert Costs

Cal-City argues that expert witness fees should not be recoverable, because no expert witnesses were ordered by the court (Code Civ. Proc. § 1033.5 subd. (a)(8)), and because fees of experts not ordered by the court are not allowable as costs, “except when expressly authorized by law.” (Code Civ. Proc. § 1033.5 subd. (b)(1).) However, as pointed out by Taft, here, the contract specified that the parties agreed to the award to the prevailing party of “attorney’s fees, witness fees, and other expenses related to the preparation and presentation of its case in a reasonable amount.” (Complaint, Ex. A, Jan. 11, 2017, Subcontract, § 13.)

            As pointed out by Taft, this Court has already decided that Taft is entitled to reasonable expert fees based on this contract provision. (1/30/24 Statement of Decision at p. 34:4-6.) This is an appropriate conclusion, based on California caselaw. In Applied Medical Distribution Corp. v. Jarrells (2024) 100 Cal.App.5th 556, 226-227 (Jarrells), the court of appeal was presented with a similar contractual provision; in that case, the provision provided that the prevailing party was entitled to “reasonable attorneys fees, costs and expenses incurred in obtaining such relief.”

There, the court first noted that, in Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1066 (Thrifty), under a contractual provision, expert expenses are not necessarily recoverable where the agreement merely mentions “fees” and “costs,” but are recoverable where the parties agreed to recovery of “expert fees.” (Jarrells, supra, 100 Cal.App.5th at p. 226.)

The Jarrells court then rejected the losing party’s argument that the term “expert witness” must appear in the contractual language, holding that “nothing in Thrifty Payless—or in any other case cited to us by either party—holds that to authorize recovery of out-of-pocket expenses beyond recoverable statutory costs, contracting parties must specify precisely what expenses they are referring to. We see no basis to require parties who wish to agree to authorize recovery of expenses beyond statutory costs to specifically enumerate every category of additional ‘expenses’ they intend their contract to embrace …. We therefore hold expert fees were recoverable by [plaintiff] pursuant to the Agreement to the extent they were reasonable in amount and reasonably incurred to obtain equitable relief.” (Jarrells, supra, 100 Cal.App.5th at p. 227.)

The Court here finds that the parties similarly did not limit their contractual language to recovery of “fees” and “costs,” which would have limited them to the costs recoverable under Code of Civil Procedure section 1033.5. The Court also finds that the expert fees requested here were reasonable in amount and “related to the preparation and presentation of its case.” Both sides had experts, and though it is true that plaintiff’s expert worked with plaintiff’s counsel at the beginning of the case as well as through trial, the Court finds that the early work was necessary, as it related to the presentation of the case in court if the matter did not settle. At trial, plaintiff’s expert’s careful and credible testimony provided a calculation and explanation of the damages requested to the Court, rebutted defendant’s expert testimony, and was largely adopted by the Court.

Plaintiff’s request for $94,606.25 in expert witness fees is thus GRANTED as a part of the costs and reasonable expenses. 

III. Conclusion

Plaintiff/Cross-Defendant Taft Electric Company’s Motion for an Award of Attorney’s Fees and Costs is GRANTED in the amount of $548,256 in attorney fees and $143,856.52 in costs.