Judge Armen Tamzarian, Case Number: 21STCV04596, Date: 2025-04-10 Tentative Ruling

Judge: Armen Tamzarian, Case: 21STCV04596, Date: 2025-04-10 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: 21STCV04596 Hearing Date: April 10, 2025 Dept: 52

Plaintiff O’Gara Coach Company, LLC’s Motion for Attorneys’ Fees Post-Appeal

Plaintiff O’Gara Coach Company, LLC moves for attorney fees incurred since February 22, 2023. After defendant Viken Chelebian opposed this motion, plaintiff conceded it miscalculated the amount of fees. Plaintiff seeks $38,922.50 in attorney fees. (Reply, App. A.)

Declaration of Tami S. Crosby

Defendant objects that the declaration of plaintiff’s counsel Tami S. Crosby is inadmissible because she did not specify the date of execution. A declaration “executed within this state” must “state[] the date and place of execution.” (Code Civ. Proc., § 2015.5.) Crosby’s declaration stated, “Executed this [blank] day of January, 2025, at Santa Ana, California.” (Crosby Decl., p. 5.) Assuming failing to state the day of the month would make the declaration inadmissible, plaintiff submitted a notice of errata with a corrected version of the declaration stating it was “Executed this 31st day of January, 2025… .” Omitting the day of the month in the initial declaration did not prejudice defendant and does not justify refusing to consider plaintiff’s evidence. Defendant’s objection to the declaration of Tami S. Crosby is overruled.

Amount of Fees

In determining what constitutes a reasonable fee, the court ordinarily begins with the lodestar, that is, “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) The court may rely on its own experience and knowledge in determining the reasonable value of attorney fees. (Id. at p. 1096; accord Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249.)

Defendant argues plaintiff’s fees are excessive because they amount to more than half of the $73,692.50 it incurred litigating the case to judgment on the merits. “There is ‘no mathematical rule requiring proportionality between compensatory damages and attorney’s fees awards, [citation], and courts have awarded attorney’s fees where plaintiffs recovered only nominal or minimal damages.’ ” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.) “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.) Defendant does not identify any excessive billing in plaintiff’s counsel’s invoices. With one exception discussed below, the court finds plaintiff reasonably incurred all attorney fees it claims.

Defendant contends the court cannot award fees for the reply brief because plaintiff had not incurred those fees when it filed this motion. In fee motions, the initial papers frequently estimate the fees anticipated for work on the reply brief. (See, e.g., Minser v. Collect Access, LLC (2023) 92 Cal.App.5th 781, 796, Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 617.) Doing so comports with “[t]he general rule of motion practice … that new evidence is not permitted with reply papers” as a matter of due process. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

The court does, however, find plaintiff claimed excessive attorney fees for the reply brief. Plaintiff estimated $3,200 in fees for 8 hours of work at $400 per hour. (Crosby Decl., ¶ 10.C.) In its reply brief, plaintiff asserts it incurred 8.5 hours of attorney fees for time spent to: “review the Opposition and Declaration (1.0 hours), research the statutes and cases cited by Chelebian to determine validity and identify contrary authority (1.5 hours), draft the Reply brief to counter Chelebian’s arguments and point out where he admitted he had no opposition (4.5 hours), prepare for the Hearing (0.5) hours, and attend the Hearing (1.0 hours).” (Reply, p. 8.)

The court finds plaintiff reasonably incurred only a total of 6 hours of fees at $400 per hour. The reply brief was relatively simple. Its substantive arguments total six pages. (Reply, pp. 3-8.) The court will therefore reduce plaintiff’s lodestar by $800 (2 hours at $400 per hour).

Finally, defendant argues awarding further fees to plaintiff would be inequitable. “An ‘award of contractual attorney fees is governed by equitable principles.’ ” (Wertheim, LLC v. Currency Corporation (2021) 70 Cal.App.5th 327, 339.) The court does not find it appropriate to deny plaintiff’s fees incurred on appeal. As the Court of Appeal stated in its opinion affirming the judgment in this case: “[I]n violation of a noncooperation clause in his severance agreement, for which he was paid valuable consideration, Chelebian deliberately insinuated himself into litigation between OGC and a third party – the very thing he agreed not to do, and accepted money to refrain from doing.” (O’Gara Coach Company, LLC v. Chelebian (Cal. Ct. App., Oct. 29, 2024, No. B330483) 2024 WL 4611529, at *3.)

Defendant could have avoided these attorney fees by not appealing or by not contesting the case so vigorously. A defendant “ ‘cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.’ ” (Serrano v. Unruh (1982) 32 Cal.3d 621, 638.) Defendant could have even allowed a default judgment against him. Plaintiff’s complaint specifically demanded only “the severance payment of $16,200.” (Comp., p. 10, prayer ¶ 1.) Though the complaint sought numerous other unspecified categories of damages, “[a] default judgment greater than the amount specifically demanded in the complaint is void as beyond the court’s jurisdiction.” (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018.)

Disposition

Plaintiff O’Gara Coach Company, LLC’s motion for attorney fees post-appeal is granted in part. Plaintiff O’Gara Coach Company, LLC shall recover an additional $38,122.50 in attorney fees from defendant Viken Chelebian.