Judge: Anne Richardson, Case: BC681286, Date: 2023-03-13 Tentative Ruling

Case Number: BC681286    Hearing Date: March 13, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

JHM Ventures sued Cavalier Closeouts, Inc. and Eyal Dahan pursuant to claims of Breach of Contract and Accounting on the grounds that Defendants had breached written contracts between the parties relating to three business deals.

On February 18, 2020, the Court entered judgment for Defendants after finding in its January 24, 2020 Statement of Decision that (1) Plaintiff failed to prove the existence of two of the alleged contracts, (2) Plaintiff’s claims were barred by the statute of limitations, and (3) Plaintiff failed to show it suffered damages.

On April 10, 2020, Plaintiff appealed the Court’s findings, arguing that the Court erred by (1) applying the wrong legal analysis in concluding Plaintiff’s claims were barred by the statute of limitations and (2) finding Plaintiff failed to prove damages.

On September 2, 2020, the Court awarded $110,920 in attorney’s fees to Defendants pursuant to Civil Code section 1717 and a contractual provision between the parties for attorney’s fees in the event one party successfully sued the other.

On October 30, 2020, Plaintiff appealed the fees award, arguing the Court erred by awarding Defendants attorney’s fees related to claims for which there were not written contracts in evidence.

The two appeals were consolidated on February 22, 2021.

On June 1, 2022, the court of appeal affirmed the Court’s judgment findings and grant of attorney’s fees in favor of Defendants, returning Remittitur on August 16, 2022.

On September 22, 2022, Defendants made the instant Motion for Attorney’s Fees, seeking $68,485 in attorney’s fees for work performed by defense counsel in successfully defending against Plaintiff’s appeal of the Court’s 2020 judgment and attorney’s fees award, as well as work on the original 2020 fees motion.

Plaintiff filed an opposition against this motion on February 28, 2023, against which Defendants filed a reply on March 6, 2023.

Request for Judicial Notice

The Court GRANTS the request to take judicial notice of the United States Attorney’s Office Attorney’s Fees Matrix for the years 2015-2021 and the Department of Labor Statistics’ publication titled Exploring Price Increases. (Mot., RJN; Reply, RJN; Evid. Code, §§ 452, subd. (h).)

Motion for Attorney’s Fees: GRANTED, in Part.

Legal Standard

Attorney’s fees are recoverable as costs when authorized by contract, statute, or law. (Cal. Rules of Court, rule 8.278 [attorney’s fees recoverable as costs on appeal]; Civ. Code, § 1717 [fees recoverable where contractual provision between the parties provides that prevailing party may recover fees].) 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.) 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, 1393-94.)

Analysis

Defendants seek $68,485 as reasonable compensation for the work expended by defense counsel in defending the Court’s 2022 judgment and attorney’s fees award in their favor, as well as for work related to the 2020 fees motion. (Mot., 9:14-10:2 [breakdown of fees sought], Woolf Decl., Ex. A [supporting time records].) Defendants argue they are entitled to fees by contract, as confirmed by this Court’s September 2, 2020 finding that all aspects of the case are controlled by a contract between the parties containing an attorney’s fees provision. (Mot., 6:2-7:15; see 9/2/22 Minutes, p. 4.) The Court agrees, and Plaintiff does not dispute this interpretation of the contract(s) between the parties.

I. Reasonable Fee

Defendants seek a fee rate of $550 per hour for counsel Chaim J. Woolf. (Mot., 9:6-12, Woolf Decl., ¶ 3.)

Defendants support this fee rate through the Declaration of Chaim Woolf, the United States Attorney’s Office Attorney’s Fees Matrix for the years 2015-2021, and a Department of Labor Statistics Exploring Price Increases publication. (Mot., Woolf Decl. & RJN; Reply, RJN.)

The Woolf Declaration explains that Mr. Woolf has been practicing law since 2004 and has been licensed in California since 2005. (Mot. Woolf Decl., ¶ 6.) Mr. Woolf describes his practice as involving “prosecuting and defending class action litigations as lead counsel,” during which time he has “first chaired a number of bench and jury trials besides the case at issue,” been involved “in high stakes federal court litigation relating to soft IP rights such as trade secret and trademark matters,” and familiarized himself with appellate work. (Mot. Woolf Decl., ¶¶ 7-10.)

The U.S. Attorney’s Fees Matrix provides for a fee rate of $591 per hour for attorneys with 16 to 20 years of experience like Mr. Woolf. (Mot., RJN, Ex. A.)

In opposition, Plaintiff argues that: Mr. Woolf has billed the Defendants as little as $300 per hour (see 4/17/20 Fees Motion, Woolf Decl.); the Court has previously reduced Mr. Woolf’s fee rate to $400 per hour (see 9/2/20 Minutes); and that Mr. Woolf seeks rates to which he would be entitled today, not at the time during which the appeal was taking place 15 months ago. (Opp’n, 2:4-15.) The opposition, does not, however, speak as to the fee rate Plaintiff thinks is reasonable.

In reply, Defendants argue that quality of representation, attorney experience, results obtained, and the contingent risk presented in taking on this case all support the fee requested by Plaintiff for Mr. Woolf. (Reply, 4:3-28; see Mot., 10:3-22 [same arguments made in the context of a multiplier enhancement].) Defendants also make an argument regarding inflation supporting the requested fee rate. (Reply, 5-28.)

The Court finds that a fee rate of $550 per hour is reasonable for an attorney of Mr. Woolf’s experience for the work done on the appeal and post-appeal, given both the nature of the work and the fact of inflation since the prior award.

II. Reasonable Hours

Defendants’ motion seeks fees for 129 hours expended by Mr. Woolf in this action, including on appeal and post-appeal work already performed by Mr. Woolf (96.3 hours), work on the first motion for attorney’s fees made on April 17, 2020 and heard September 2, 2020 (16.8 hours), and hours expected to be expended on the reply for this motion (16 hours). (Mot., 9:14-10:2.) Defendants argue that such hours are reasonable based on an examination of the contemporaneous time records provided by Mr. Woolf. (Mot., 9:10-12.)

In opposition, Plaintiff argues that: (1) hours should be reduced for the appeals work performed by Mr. Woolf because this case was not complex or sophisticated on appeal; (2) hours related to the first fees motion should be denied as they should have been included in the 2020 motion; and (3) hours related to reply work on this motion does not support 16 hours of additional billing where counsel only spent 12.4 hours on the moving papers. (Opp’n, 2:16-27.)

In reply, Defendants argue that: (1) fees from the first fees motion should be recoverable because Defendants overlooked asking for these when they made their 2020 motion; (2) the 96.3 appeals hours sought by Defendants are reasonable because (a) Plaintiff fails to properly elaborate on reasons why such hours are excessive, (b) this figure represents defense counsel’s work on what could be considered two appeals (the 2020 judgment appeal and the 2020 attorney’s fees award appeal, consolidated on February 22, 2021), and (c) the quality of work on appeal supports the 96.3 hour figure; and (3) the 16 hours sought for work on the reply are merited when responding to opposition arguments seeking to reduce Defendants’ recovery by 43%. (Reply, 6:4-27, 7:1-9:4, 9:5-22.)

The Court first finds that the 16.8 hours for the first motion for attorney’s fees are not recoverable.  While Defendants argue that they are not seeking to amend the prior award, but rather to request fees that were not previously requested, that matter was fully concluded and finalized and an appeal was made from that attorney fee award. To add more fees now for the work done at that time would reopen a matter that has since been concluded.  

The Court next finds that the 96.3 hours expended on appeals and post-appeals work is reasonable, particularly as supported by Mr. Woolf’s time records. (Mot., Woolf Decl., Ex. A [time records]; see Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 397 [“trial court abused its discretion in rejecting wholesale counsels’ verified time records” where “verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous”].)

The Court last finds that 16 hours for a reply in this matter is excessive, given that the Opposition was only one page long.  The Court will award 10 hours for the reply.

III. Enhancements and Costs

While Defendants make a “multiplier” argument in the motion, that argument relates to why $550 per hour is a reasonable rate for Mr. Woolf. (Mot., 10:3-22.) This argument therefore does not contemplate a true multiplier analysis, which adjusts the reasonable fee and reasonable hour recovery upwards based on various factors. (See PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095.)

This motion also does not seek costs.

The Court therefore does not further address these issues in determining the proper recovery of attorney’s fees based on this motion.

IV. Conclusion on Fees

The Defendants motion is GRANTED, in Part, in the amount of $58,465, comprised of a reasonable fee rate of $550 per hour times 106.3 hours reasonably expended on appeal and post-appeal work in this case, including reply work related to this motion.

Conclusion

Defendants Eyal A. Dahan and Cavalier Closeouts, Inc.’s Motion for Attorney’s Fees is GRANTED, in Part, in the amount of $58,465, because this figure represents the reasonable recovery for the Defendants in relation to their counsel’s appeals and post-appeals work in this action.