Judge: Anne Richardson, Case: 19STCV27890, Date: 2024-05-16 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: 19STCV27890    Hearing Date: May 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

1. Complaint [Eisner LLP]

On August 7, 2019, Plaintiff/Cross-Defendant Eisner LLP filed a Complaint alleging claims of breach of contract and common counts against Defendants/Cross-Complainants/Cross-Defendants Jeffrey Bernstein (Bernstein) and Superior Equipment Solutions (SES).

The claim arose from the following allegations. Bernstein and SES owed Eisner LLP $65,936.25 for outstanding legal services fees. Those fees were incurred by Eisner LLP in representing Berstein and SES in Dale Saiden v. Jeffrey Bernstein, et al., LASC No. SC127857 (the underlying action). Representation was undertaken pursuant to an August 4, 2017, retainer agreement. James H. Turken (who was then an attorney at Eisner LLP) signed the agreement on behalf of Eisner LLP, and Jeffrey Bernstein signed on behalf of himself and SES. The agreement is attached as Exhibit A to the Complaint.

2. Cross-Complaint [Bernstein and SES]

On January 11, 2021, Bernstein and SES filed a Cross-Complaint alleging a single claim of professional negligence (legal malpractice) against James H. Turken, Greenspoon Marder, Eisner LLP (erroneously sued as Eisner PC), and Does 1-10.

The claim arose from the following allegations. Eisner LLC represented Bernstein and SES in the underlying action. During that representation, attorney Turken elected to claim privilege over a set of 2013 emails between Bernstein and Bernstein’s 2013-counsel, David Berger. The inclusion of those emails was of paramount importance to the disposition of the trial. However, the emails were excluded on motion prior to trial based on the prior invocation of privilege over them—sword and shield—directly resulting in a judgment and subsequent settlement with Dale Seiden for several million dollars.  At some point during the representation, Turken left Eisner and went to work at Greenspoon Marder, which then continued to represent Bernstein and SAS.

3. Cross-Complaint [Greenspoon Marder]

On August 20, 2021, Greenspoon Marder filed a First Amended Cross-Complaint (FAXC) alleging the claims of (1) Breach of Contract, (2) Open Book Account, (3) Account Stated, and (4) Quantum Meruit against Jeffrey Bernstein and SES.

The claims arose from allegations that Greenspoon Marder represented Berstein and SES in the underlying action and that Berstein and SES failed to pay Greenspoon Marder $500,971.17 in legal fees pursuant to the parties’ retainer agreement.

B. Disposition of Pleadings as Applicable, Judgment, and Appeals

1. Complaint [Eisner LLP]

On August 8, 2023, counsel for Jeffrey Bernstein and SES executed a Code of Civil Procedure section 998 offer (998 offer) in favor of Eisner LLP providing that “judgment [was] to be taken in favor of Eisner LLP and against Bernstein and SES jointly and severally on said [the] complaint, in the amount of $66,000 plus a sum equal to the amount of reasonable attorney fees and costs incurred by Eisner LLP in prosecution of its complaint through the date of th[e] offer, in satisfaction of all claims brought by Eisner LLP as plaintiff against Bernstein and SES in Eisner LLP’s complaint in this action.”

On August 10, 2023, Eisner LLP accepted and executed the 998 offer.

On August 17, 2023, Bernstein and SES filed the 998 offer with the Court.

On September 1, 2023, at a final status conference, “Defendant’s” counsel represented to the Court that all issues had been resolved and agreed to file a proposed order. All counsel agreed that the case was settled as to what appears to be the Complaint alone.

2. Cross-Complaint [Bernstein and SES] and Appeal to Summary Judgment

Prior to the 998 offer, on November 18, 2021, Eisner LLP filed a motion for summary judgment in its favor as relating to Bernstein and SES’s Cross-Complaint and its single claim of professional negligence (legal malpractice) against Eisner LLP et al.

On January 20, 2022, Bernstein and SES filed an opposition to Eisner LLP’s motion.

That same day, Greenspoon Marder and James H. Turken filed an opposition to Eisner LLP’s motion.

On January 28, 2022, Eisner LLP filed an omnibus reply to the oppositions.

On February 3, 2022, Eisner LLP’s motion came before the Court and was taken under submission.

On February 18, 2022, the Court ruled in favor of Eisner LLP, granting summary judgment as to Bernstein and SES’s sole claim of professional negligence (legal malpractice).

On April 13, 2022, Greenspoon Marder and James H. Turken filed a (ultimately, premature) notice of appeal against the Court’s February 18, 2022, ruling.

On April 14, 2022, Jeffrey Bernstein and SES filed a (premature) notice of appeal against the Court’s February 18, 2022, ruling.

On December 8, 2022, the court of appeal dismissed the April 13, 2022, Bernstein-SES appeal based on default.

On February 8, 2023, the court of appeal issued remittitur of the April 14, 2022, Bernstein-SES appeal [stet], B320721, with respondent Eisner to recover costs on appeal. It is unclear from the record as to the status of the April 13, 2022 appeal as to Greenspoon Marder and James H. Turken, but presumably that was dismissed as well.

3. Cross-Complaint [Greenspoon Marder]

On November 13, 2023, Greenspoon Marder filed a request for dismissal of the FAXC with prejudice, which the Clerk entered that same day.

4. Judgment

On December 4, 2023, Greenspoon Marder and James H. Turken filed a proposed judgment. The proposed judgment (1) resolved the Eisner LLP Complaint in Eisner LLP’s favor according to the 998 offer with fees and costs to be later determined, (2) resolved the Jeffrey Bernstein-SES Cross-Complaint in favor of Eisner LLP with fees and costs to be later determined, and (3) provided that Bernstein and SES would take nothing on their Cross-Complaint as against Greenspoon Marder and James H. Turken.

On December 12, 2023, the Court entered judgment according to the proposed judgment.

That same day, the Clerk and Greenspoon Marder and James H. Turken gave notice of entry of judgment.

5. Appeals to December 12, 2023, Judgment

On January 2, 2024, Jeffrey Bernstein and SES filed a notice of appeal challenging the December 12, 2023, judgment after an order granting a summary judgment motion.

On February 9, 2024, Greenspoon Marder and James H. Turken filed a notice of appeal challenging the December 12, 2023, judgment after an order granting a summary judgment motion.

On April 3, 2024, the Court issued a notice of default in relation to Greenspoon Marder and James H. Turken’s February 9, 2024, appeal.

On April 29, 2024, the Clerk issued a notice of non-compliance of default on appeal in relation to Greenspoon Marder and James H. Turken’s February 9, 2024, appeal.

The record fails to reflect that any of the December 12, 2023, judgment appeals have been resolved, either in dismissal or otherwise. The record also fails to reflect that Greenspoon Marder and James H. Turken have cured their default on appeal. The Court will assume that this appeal remains pending, and the moving party has clarified in reply that it is not seeking any fees for that pending appeal.

C. Motion Before the Court [Attorney’s Fees] and Costs Memoranda

On December 22, 2023—after entry of judgment but before the appeals were filed—Eisner LLP filed a memorandum of costs for costs and expenses incurred in relation to the Eisner LLP Complaint. The costs memo seeks $711.50 in costs and expenses.

That same day, Eisner LLP filed a second memorandum of costs for costs and expenses incurred in relation to what appears to be the Bernstein-SES Cross-Complaint. The costs memo seeks $747.24 in costs and expenses.

On February 13, 2023, Eisner LLP filed a motion for attorneys’ fees and non-statutory costs (i.e., non-Code Civ. Proc., § 1033.5 costs) in the amount of $76,369.23 against Jeffrey Bernstein and SES, jointly and severally. The motion is premised on a fees clause in the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement attached as Exhibit A to the Eisner LLP Complaint (§ 14).

On May 6, 2024, Jeffrey Bernstein and SES filed a “response” to Eisner LLP’s motion. The response challenges only the hours sought by Eisner LLP in relation to work related to Greenspoon Marder’s “indemnification” claim. The response also requests that any fees award made by the Court attribute which fees are awarded for work done regarding which pleading while arguing that any such recovery will be stayed in light of the pending Bernstein-SES appeal. The response last argues, in essence, that the motion to fees should be refiled to clarify the parties against whom fees are being sought and on what basis.

On May 9, 2024, Eisner LLP filed a reply to the Bernstein-SES opposition. The reply argues, among other things, that the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement entitles Eisner LLP to fees in relation to any dispute between Eisner LLP on one hand and Bernstein and SES on the other, e.g., the motion for summary judgment ruled on by the Court on February 18, 2022, for which Eisner LLP had to reply to the Bernstein-SES opposition and to the Greenspoon Marder-Turken opposition.

The record fails to reflect any filings by Greenspoon Marder in relation to Eisner LLP’s costs memoranda and fees and non-statutory costs motion.

Eisner LLP’s motion for attorney’s fees and non-statutory costs is now before the Court.

The Court also discusses Eisner LLP’s costs memoranda.

II. Motion for Attorneys’ Fees and Costs: GRANTED.

A. 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. (Civ. Code, § 1717, subd. (a); see 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] (Kaufman).)

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].)

B. Analysis

1. Preliminary Notes

The Court does not find it necessary or appropriate to deny or continue Eisner LLP’s motion based on alleged failure to differentiate fees as between work relating to Jeffrey Bernstein and SES and work relating to Greenspoon Marder. Issues arising from this topic are resolved below.

The Court also notes that the moving papers do not attach verified time records to support fee rates and hours spent on this action. Instead, as is permissible, the moving papers rely on a declaration from counsel and on a declaration from Eisner LLP’s accounting manager.

Next, the Court notes that the “response” does not appear to challenge this Court’s ability to make a ruling on fees, but rather, appears to argue that recovery of any fee award will be stayed pending the outcome of the Bernstein-SES appeal. (Response, ¶ 3(a).) To the extent that Jeffrey Bernstein and SES are arguing that this Court lacks authority to rule as to fees, the Court finds the argument lacks merit. As stated by the court of appeal in Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197: “[T]he filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial” and “[a]lthough a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal” because “an award of attorney fees as costs is a collateral matter [that] is embraced in the action but is not affected by the order from which an appeal is taken,” for which reason the “filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney[‘s] fees claimed as costs.”

Last, the Court notes that the Bernstein-SES response challenges Eisner LLP’s motion only in limited fashion. For example, Jeffrey Bernstein and SES’s response does not challenge the moving papers’ assertion that Eisner LLP is the prevailing party in contract as between itself and Bernstein and SES, nor does it challenge the requested fee rates, but the response does challenge Eisner LLP’s motion based on failure to differentiate between pleadings and based on inclusion of work related to opposing work by Greenspoon Marder—and James H. Turken, whose name is not raised in the response in relation to Greenspoon Marder’s filing, but who did, in conjunction with Greenspoon Marder, file the January 20, 2022, Greenspoon-Marder opposition to summary judgment of the Bernstein-SES professional negligence claim in favor of Eisner LLP. (See Response, pp. 1-2.)

2. Merits Discussion

Pursuant to a contract between itself, on the one hand and Jeffrey Bernstein and SES, on the other, Eisner LLC, as the prevailing party on its Complaint as against Jeffrey Bernstein and SES, and as the prevailing party on the Bernstein-SES Cross-Complaint as against Jeffrey Bernstein and SES, seeks an award of attorneys’ fees against both Bernstein and SES jointly and severally related to this action. (Complaint, Ex. A, § 14; see Notice of Motion, p. 2.)

a. Reasonable Fee Rate

i. Relevant Law

The lodestar calculation begins with a determination of the “reasonable hourly rate,” i.e., the rate “prevailing in the community for similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095; see, e.g., Stratton v. Beck (2017) 9 Cal.App.5th 483, 496 [finding no abuse of discretion in court setting attorney’s hourly rate based on comparison of rates from similarly experienced attorneys in same field and area]; Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783 (Children’s) [affirming award where “the hourly rates allowed by the trial court are within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work”], disapproved in Asanta v. California Dept. of Health Care Servs. (9th Cir. 2018) 886 F.3d 795, 802, fn. 14 [disapproving Commerce Clause interpretation in Children’s].)

The general rule is that “[t]he relevant ‘community’ is that where the court is located. [Citations.]” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71; accord Marshall v. Webster (2020) 54 Cal.App.5th 275, 285.) “When a plaintiff needs to hire out-of-town counsel, a trial court must consider counsel’s ‘home market rate’ when setting the hourly rate, rather than the local market rate.” (Caldera v. Department of Corrections & Rehabilitation (2020) 48 Cal.App.5th 601, 609, citing Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.) Counsel’s actual hourly rate is strong presumptive evidence of the reasonableness of that rate. (Mandel, supra, 92 Cal.App.3d at p. 761 [“The value of an attorney’s time generally is reflected in his normal billing rate”].)

ii. Court’s Determination

The Court finds in favor of Eisner LLP.

As discussed above, the fee rates requested by Eisner LLP are unchallenged.

The fee rates sought by Eisner LLP for the Capozzola Firm’s work range from $125 to $200 per hour according to the declaration of Diane Horowitz, the Firm’s accounting manager, who reviewed the pertinent business records. (Mot., Horowitz Decl., ¶¶ 1-4.)

The Court accepts the records representation and notes that for newly licensed lawyers, those rates are reasonable.

The fee rates sought by Eisner LLP for the work of Robie & Matthai, APC, and Long & Levit, LLP are also unchallenged.

The declaration of counsel, Leigh P. Robie—principal at Robie & Matthai, APC before joining Long & Levit, LLP as partner—supports the fee rates but no verified time records are attached to the moving papers. Eisner LLP requests rates of $375 per hour for partners, $325 per hour for senior associates, and $250 per hour for junior associates at Robie & Matthai, APC. (Mot., Robie Decl., ¶ 11.) Eisner LLP also requests rates of $375 per hour for partners, $350 per hour for senior counsel, and $125 per hour for paralegals at Long & Levit, LLP. (Mot., Robie Decl., ¶ 12.) The Robie declaration sets out the professional experience of the partners and various counsel working for the two firms, e.g., Edith Matthai having been a licensed attorney since 1975 and a certified legal malpractice specialist, and senior counsel Gabrielle Jackson being licensed since 1993. (Mot., Robie Decl., ¶¶ 11-12.)

The Court finds these fee rates are well supported by the declaration of counsel and based on the Court’s experience they are eminently reasonable.

b. Reasonable Hours Expended

i. Relevant Law

“Under the lodestar method, a party who qualifies for a fee should recover for all hours reasonably spent unless special circumstances would render an award unjust.” (Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446, citing Serrano, supra, 32 Cal.3d at pp. 632-633.) Time spent relating solely to the fee award is also compensable. (Ketchum, supra, 24 Cal.4th at p. 1133.)

“‘Reasonably spent’ means that time spent ‘in the form of inefficient or duplicative efforts is not subject to compensation.’” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394 (Horsford), quoting Ketchum, supra, 24 Cal.4th at pp. 1132-1133.) In assessing the reasonableness of the hours spent, “[t]he court can look to how many lawyers the other side utilized in similar situations as an indication of the effort required.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272, citation omitted.)

Because the court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided, the starting point for this determination is the attorney’s time records. (Horsford, supra, 132 Cal.App.4th at pp. 395-397 [verified time records entitled to credence absent clear indication they are erroneous].) However, California case law permits fee awards in the absence of detailed time sheets. (See e.g., Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651 [fees awarded based on attorney’s representation as to hours actually spent on contingency fee representation where no time records were available]; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810 [time records not entirely necessary where “estimates based on the functions performed [may] allow the court to properly calculate the lodestar amount”].) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

ii. Summary of Parties’ Arguments

Eisner LLP seeks recovery for an unspecified number of hours spent by the Capozzola Firm representing Eisner LLP in relation to Eisner LLP’s Complaint. Those hours, though not explicitly stated, cannot be great in number given that only $6,102.31 in attorney’s fees and costs are sought in relation to the Capozzola Firm’s work. (Mot., p. 6.) Based on fee rates ranging between $125 and $200 per hour, the Capozzola Firm must have worked somewhere between 30 to 48 hours on this action over the course of four years of representation. These hours are supported by a declaration from Eisner LLP’s accounting manager, Diane Horowitz, who reviewed records of the Capozzola Firm’s billings and relates that “the Capozzola Firm prepared and filed the complaint, propounded written discovery, communicated with opposing counsel and counsel for the Eisner Firm on the cross-complaint, analyzed discovery responses received, prepared and filed case management conference statements for filing with the court, prepared motions to compel responses discovery, and attended court hearings.” (Mot., Horowitz Decl., ¶ 4.)

Eisner LLP also seeks recovery for 189.60 hours spent by Robie & Matthai, APC on this action. The declaration from counsel explains that “Robie & Matthai prepared the answer to the cross-complaint, propounded written discovery to Bernstein, evaluated the claims and applicable defenses for report to the clients, responded to written discovery, prepared a motion for summary judgment, prepared a separate statement of undisputed facts and identification of evidence in support of motion for summary judgment, and conferred with Bernstein’s counsel, prepared replies to oppositions to motion for summary judgment, attended court hearings, and prepared for and attend hearing on summary judgment,” for a total of 189.60 hours of attorney time totaling $62,562.50 in fees, $1,465.96 in costs, and $718.42 in non-statutory costs. (Mot., Robie Decl., ¶ 11.)

Eisner LLP last seeks recovery for 10.9 hours spent by Long & Levit, LLP on this action. The declaration of counsel explains that “[a]ttorneys with Long & Levit, LLP edited the judgment, corresponded with Bernstein’s counsel regarding the judgment, corresponded with counsel regarding the pending appeal, and prepared the cost bill and this motion for attorney’s fees. (Mot., Robie Decl., ¶ 12.)

In opposition, Jeffrey Bernstein and SES argue in essence that any fees related to prosecuting or defending against Greenspoon Marder should not be recoverable under the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement. The opposition frames “Greenspoon Marder’s actions” as “in the nature of seeking indemnification or a claim over against Eisner for the underlying malpractice.” (Response, ¶ 3(b).)

In reply, Eisner LLP argues that Greenspoon Marder fees are recoverable on various grounds, including the wide scope of the fees provision in the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement. Eisner LLP argues that there is no support for the “indemnification” argument in the record. Eisner LLP points out that it filed an omnibus reply to the two oppositions, and that it was Bernstein and SAS that were responsible for bringing Greenspoon Marder into the litigation by naming them in their cross-complaint. Finally, Eisner LLP argues that the pending appeal should not stay a determination on this motion and that the fees requested by Eisner LLP do not include fees for work related to the pending Bernstein-SES appeal, instead involving for example fees relating to the April 13, 2022, Bernstein-SES premature appeal to the Court’s April 18, 2022, summary judgment ruling, which has since been dismissed.

iii. Court’s Determination

The Court finds that all hours sought here are reasonable.

Here, the record reflects sufficiently heavy motion practice to justify the hours raised in connection with Robie & Matthai, APC, the firm that did the lion’s share of the representation in terms of time. In lieu of verified time records, the Court accepts counsel’s declaration as it relates to explaining how Robie & Matthai, APC spent 189.60 hours on this action: “Robie & Matthai prepared the answer to the cross-complaint, propounded written discovery to Bernstein, evaluated the claims and applicable defenses for report to the clients, responded to written discovery, prepared a motion for summary judgment, prepared a separate statement of undisputed facts and identification of evidence in support of motion for summary judgment, and conferred with Bernstein’s counsel, prepared replies to oppositions to motion for summary judgment, attended court hearings, and prepared for and attend hearing on summary judgment,” for a total of 189.60 hours of attorney time totaling $62,562.50 in fees, $1,465.96 in costs, and $718.42 in non-statutory costs. (Mot., Robie Decl., ¶ 11.)

The Court does not accept the response argument that Robbie & Mathai’s work replying to the January 20, 2022, Greenspoon Marder-Turken opposition to summary judgment on the Bernstein-SES Cross-Complaint is not compensable. Most important, the language of the fees clause is extremely broad and permits recovery for “all costs and expenses of any sort incurred” “in any litigation” between the parties arising from the retainer agreement. This entire series of pleadings arose from Eisner LLP’s representation of Jeffrey Bernstein and SES. Fees related to replying to the Greenspoon Marder-Turken opposition thus appear appropriate. Second, Eisner LLP’s November 18, 2021, motion for summary judgment sought to dispose of issues between Eisner LLP and Bernstein/SES. Had the Court relied on the Greenspoon Marder-Turken opposition in denying summary judgment, Plaintiff’s action would have benefited from that decision. Instead, the Court ruled the other way. By replying to that opposition, Eisner LLP ensured that it best positioned itself to obtain judgment in relation to the Bernstein-SES Cross-Complaint. Under these circumstances, work related to replying to the January 20, 2022, Greenspoon Marder-Turken opposition is reasonably compensable under the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement (§ 14).

No other basis for challenging hours appears in the Bernstein-SES response. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn (2008) 163 Cal.App.4th 550, 564.)

Last, the Court determines that the hours expended on this action by the Capozzola Firm (between 30 to 48 hours) and Long & Levit, LLP (10.9 hours) are facially reasonable and supported by declarations from either Eisner LLP’s accounting manager (Capozzola Firm fees) or counsel (other fees).

c. Multiplier Enhancement

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.)

No multiplier is requested here, for which reason the Court need not further discuss this issue.

d. Costs

Eisner LLP’s motion seeks “non-statutory recoverable costs” based on the August 4, 2017, Eisner LLP and Jeffrey Bernstein/SES retainer agreement.

Fees beyond the ambit of Code of Civil Procedure section 1033.5 may be recovered by a party pursuant to contract. (Kaufman, supra, 229 Cal.App.4th at pp. 8-9 [Civ. Code, § 1717 fees and costs motion not subject to Cal. Rules of Court, rule 3.1700’s requirements].)

Here, the retainer agreement at issue provided for “all costs and expenses of any sort incurred” “[i]n the event that a dispute” arose between the parties under the retainer agreement. (Complaint, Ex. A, § 14.)

Non-statutory costs are thus awardable here.

The moving papers are clear that the costs requested in this motion are limited to non-statutory (non-1033.5) costs, whereas the two costs memoranda filed in December 2023 relate to statutory costs. (Mot., p. 2 & fn. 1.)

Last, the Court notes that while the exact costs are somewhat unclear in that they are not plainly stated other than in a single paragraph whose scope is unclear, they at least involve $718.42 in non-statutory costs out of the $76,369.23 in total relief sought. (See Mot., Robie Decl., ¶ 11.) There is no mention of these costs in the “Response.”

These modest costs, which are not opposed in any way, are thus awarded.

e. Disposition

Eisner LLP’s motion for attorney’s fees is GRANTED in the amount of $76,369.23.

III. Costs Memoranda: GRANTED.

A. Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The term “prevailing party” for costs purposes is defined by statute to include:  

(1) The party with a net monetary recovery;  

(2) A defendant who is dismissed from the action;  

(3) A defendant where neither plaintiff nor defendant recovers anything; and  

(4) A defendant as against those plaintiffs who do not recover any relief against that defendant.

(Code Civ. Proc., § 1032, subd. (a)(4).)

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)

Challenges to costs sought pursuant to section 1032 must be filed and served within 15 days of service of the memorandum of costs plus extra court or calendar days depending on the type of service. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) Failure to challenge costs within this timeframe results in waiver of those rights. (Griffith v. Wellbanks & Co. (1915) 26 Cal.App. 477, 480.)

B. Analysis

On December 22, 2023—10 days after notice of entry of judgment—Eisner LLP timely file cost memoranda relating to the Eisner LLP Complaint and to the Bernstein-SES Cross-Complaint.

No motion to strike or tax costs appears in the record.

The costs memoranda are thus unchallenged.

A review of the costs memoranda shows that they request $711.50 in costs related to prosecution of the Eisner Complaint and $747.24 in costs related to defending against the Bernstein-SES Cross-Complaint.

These costs are reasonable on their face as to a more than four-year litigation by the time of judgment.

Costs pursuant to the cost memoranda are thus GRANTED.

IV. Conclusion

A. Motion for Attorneys’ Fees

Plaintiff and Cross-Defendant Eisner LLP’s Motion for Attorneys’ Fees is GRANTED.

Eisner LLP shall file a proposed amended judgment including this award, which is comprised of fees and non-statutory costs.

B. Cost Memoranda

Eisner LLP’s costs requests in its December 22, 2023, costs memoranda are GRANTED.

Eisner LLP shall file a proposed amended judgment including this award.