Judge: Armen Tamzarian, Case: 20STCP01873, Date: 2024-06-26 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 20STCP01873 Hearing Date: June 26, 2024 Dept: 52
Petitioner
Eyal Raziel’s Motion for Attorneys’ Fees After Appeal and Release of Funds
Attorney Fees
Petitioner Eyal Raziel moves for $100,430.40
in attorney fees and other expenses. In
his reply brief, he withdrew some billing entries. (Reply, pp. 6-7.) Ultimately, Raziel seeks $98,065.40 in
attorney fees.
Fees on Appeal
Respondents Extended Vision, LLC, Farhad Eliasi, and Elad Benisti argue petitioner
cannot recover attorney fees incurred on appeal because the Court of Appeal’s
opinion stated “Raziel is awarded costs on appeal” but does not specifically
award attorney fees. (Opp., p. 3.) That does not preclude petitioner from
recovering fees. California Rules of
Court, rule 8.278(d)(2) provides, “Unless the court orders otherwise, an award
of costs neither includes attorney’s fees on appeal nor precludes a party from
seeking them under rule 3.1702.” “The
plain meaning of rule 8.278(d)(2) is that an award of costs in the Court of
Appeal generally has no bearing on a party’s ability to seek appellate attorney
fees in the trial court. Indeed, a
leading treatise instructs, ‘Unless an appellate decision expressly awards or
denies fees, any decision on allocation of appellate costs is irrelevant
to a later motion for fees in the trial court.’ ” (Stratton v. Beck (2018) 30
Cal.App.5th 901, 911.) A party may recover
attorney fees on appeal if permitted by statute (id. at p. 909) or
contract (Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192,
1199).
Amount of Attorney Fees
Petitioner
meets his burden of showing the $98,065.40 he claims were necessary and
reasonable. In calculating the lodestar,
the court must determine whether the tasks performed by an attorney were
necessary and whether the amount of time billed for each task was
reasonable. (Baxter v. Bock (2016) 247 Cal.App.4th 775, 793.) Respondents oppose the amount of attorney
fees for four reasons.
1. Fees Not Related to Appeal
First, respondents argue many of the fees
claimed are not for work on the appeal. For example, they contend petitioner
claims $23,270 for work opposing defendants’ application and motion to
extinguish the writ of execution in the trial court. (Opp., p. 5.)
Whether all fees claimed were incurred for the appeal is
irrelevant. Courts have “substantial latitude in allowing fees to be awarded
without strict compliance with statutory temporal and procedural
limitations.” (Gunlock Corp. v. Walk
on Water, Inc. (1993) 15 Cal.App.4th 1301, 1305.) The
true issue is whether petitioner is entitled to recover the fees, not whether
they were incurred for the appeal.
It is undisputed that petitioner prevailed in this
action and is entitled to recover reasonable attorney fees pursuant to
Corporations Code section 17704.10(g) and under the operating agreement of
Extended Vision, LLC. (Lowery Decl., Ex.
J, § 14.14.) Attorney fees spent
opposing the post-judgment motion to extinguish judgment lien were therefore
also recoverable. (See CCP § 685.040.)
2. Unsuccessful Efforts
Second,
respondents argue petitioner should not recover fees for opposing the motion to
extinguish lien and release funds because the opposition was unsuccessful. The opposition was successful. The court granted the motion in part as to
extinguishing the abstract of judgment lien.
Raziel did not oppose that part of the motion. The opposition argued (a) an undertaking was
required to stay enforcement of the judgment and (b) the court should not
release the funds. The court agreed on
both points and denied the motion as to releasing the $90,600.22.
Even if the opposition were unsuccessful, that does
not preclude recovery of attorney fees. “California
law requires that attorney fee awards be ‘fully compensatory,’ ” which
“includes work on unsuccessful arguments.”
(State Farm General Insurance Company v. Lara (2021) 71
Cal.App.5th 197, 218.) Unsuccessful
motions or arguments can still constitute reasonable advocacy. (Rozanova v. Uribe (2021) 68
Cal.App.5th 392, 399.) Opposing the
motion was reasonable.
The
opposition also argues petitioner should not recover for work done on a demand
letter not sent, a declaration of “David Krol” not submitted with this motion,
and a motion for sanctions and to dismiss the appeal that was not filed. In his reply brief, petitioner withdrew a
portion of those billing entries.
(Reply, pp. 6-7.) Respondents do
not meet their burden of showing the remaining bills were unnecessary or
excessive.
3.
Legal Research
Third, respondents argue $11,017.50 for “Legal research for opposing the Appeal
and the present Motion” should be excluded because they “are not allowable as
costs.” (Opp., p. 5.) Those items are not costs of legal
research. They are bills for attorneys’
time spent doing research. They are
recoverable.
4. Excessive Time
Finally,
for the appeal itself, respondents argue petitioner should have incurred only
$35,000 in fees. (Opp., p. 6.) “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.” (Premier Medical Management
Systems, Inc v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550,
564.)
Respondents do not meet that burden. They rely on the following conclusory
declaration: “I have conferred with other counsel and colleagues working in the
locale of this Court inquiring what the reasonable amount for attorney’s fees
should be to draft a appellate respondent’s brief consisting of twenty pages of
argument and analysis on a relatively simple argument as the one in the
underlying matter, and received an overwhelming consensus such a brief and oral
argument should cost between $25,000 and $35,000.” (Catanzarite Decl., ¶ 7.) Respondents do not identify any specific
billing entries that were excessive or unnecessary. After reviewing the billing records (Levinson
Decl., Ex. 1), the court finds all hours billed were reasonable and
necessary.
Amount of Other Expenses
Respondents argue only $412.20 of the $1,447.87
claimed in the memorandum of costs was incurred for the appeal. A “verified memorandum of costs is prima
facie evidence of their propriety, and the burden is on the party seeking to
tax costs to show they were not reasonable or necessary.” (612 South LLC v. Laconic Limited
Partnership (2010) 184 Cal.App.4th 1270, 1285.) For the same reasons as attorney fees, it is
irrelevant that not all costs were incurred for the appeal. The issue is whether they are
recoverable. These costs are facially
proper. Respondents do not meet their
burden of showing they should not be recovered.
Release of Levied Funds
Petitioner
further moves the court to release the $90,600.22 held on deposit in the
Court’s registry pending appeal. Petitioner
prevailed on the appeal and is entitled to recover those funds. Respondents do not oppose the motion on this
point.
Post-judgment Interest
Finally,
petitioner moves for $17,375.31 in post-judgment interest. “[I]nterest accrues at the rate of 10 percent
per annum on the principal amount of a money judgment remaining unsatisfied.” (CCP § 685.010(a)(1).) Petitioner is entitled to post-judgment
interest. Respondents do not oppose the
motion as to post-judgment interest.
Disposition
The
motion is granted.
Petitioner Eyal Raziel shall recover $98,065.40 in
attorney fees and other expenses from respondents
Extended Vision, LLC, Farhad Eliasi, and Elad
Benisti. Petitioner shall recover
$17,375.31 in post-judgment interest. The
clerk shall release to petitioner the $90,600.22 held in the court’s registry.