Judge Barbara M. Scheper, Case Number: 19STCV45035, Date: 2024-03-22 Tentative Ruling

Judge: Barbara M. Scheper, Case: 19STCV45035, Date: 2024-03-22 Tentative Ruling

Case Number: 19STCV45035 Hearing Date: March 22, 2024 Dept: 30

Dept. 30

Calendar No.

Loy, et. al. vs. Kenney, et. al., Case No. 19STCV45035

Tentative Ruling re: Plaintiffs’ Motion for Attorney’s Fees

Plaintiffs Jessica Loy, Brittany Swigart, Brandon Swigart, Ramtin Mehrvijeh, Julia Summer Evans, Austin Matelson, Emily Kovach, Anthony V. Paradise Jr., Bobby Newberry, and CARU Society for the Prevention of Cruelty to Animals (“Plaintiffs”) move for an award of attorney’s fees against Defendants Trina Kenney, Rick Kenney, Elijah Kenney, and Jezriel Kenney (“Defendants”) The motion is granted. Attorney’s fees in the amount $1,195,516.84 are awarded to Plaintiffs.

Civ. Code § 1780(e) provides that “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.”

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “The reasonable hourly rate is that prevailing in the community for similar work.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.)

“[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Regional Planning Com., supra, 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, 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. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar 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.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) “[T]he burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1365.)

Where a party is challenging the reasonableness of attorney’s fees as excessive that party must attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence and arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.)

A “court should defer to the winning lawyer’s professional judgment as to the tasks completed in an action because he won, and might not have, had he been more of a slacker.” (Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, 1111.) A losing party cannot litigate tenaciously then be heard to complain about the time spent or tasks performed by the prevailing party in response. (City of Riverside v. Rivera (1986) 477 U.S. 561, 580, fn.11.) Where a defendant does not produce evidence contradicting the reasonableness of counsel’s hourly rates, the Court will deem an attorney’s hourly rate as reasonable. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473.)

In support of the motion, Plaintiffs’ counsel, Gary A. Praglin (“Praglin”), declares that

Cotchett, Pitre & McCarthy, LLP along with the ALDF have acted as counsel for Plaintiffs in this matter. (Praglin Decl., ¶ 2.) Praglin states that the SAC is the operative complaint in this action and, after Phases One and Two of trial before the Honorable Judge Barbara Scheper, the Court ruled in favor of Plaintiffs on all causes of action against all four Defendants. (Id., ¶¶ 3-4; Exhs. A and B.) Judgment was entered on January 5, 2024. (Id., ¶ 5; Exh. C.) Plaintiffs were represented throughout this litigation by Praglin, Theresa E. Vitale (“Vitale”) of Cotchett, Pitre, & McCarthy, and by Christopher A. Berry of the ALDF. (Id., ¶ 6.) Praglin presents a summary of the time spent by him and Vitale on this action and the lodestar calculation based on his firm’s current billing rates from the inception of this case through August of 2023. (Id., ¶ 7; Exh. D.) Praglin’s hourly rate is $750.00 per hour and Vitale’s hourly rate is $425.00 per hour. (Id.) Praglin states that the hourly rates set forth in the summary are the same as their usual and customary hourly rates charged for services in their other cases in litigation. (Id., ¶ 8; Exh. D.) Praglin declares that the total number of hours expended by him, Vitale, and Christopher A. Berry from inception through Phase Two of trial is 2,115 hours. (Id., ¶ 10.) Praglin states that itemized time entries can be submitted to the Court if deemed necessary. (Id., ¶ 10.) Praglin declares that the request for attorney’s fees is modest in light of the time and work required by this case as it only includes time from the filing of the complaint through Phase Two of trial and only includes lead attorney time. (Id., ¶ 10.)

Praglin further declares that this was a contentious, hard-fought lawsuit, which required considerable time spent in preparation of Plaintiffs’ case and in response to the various defenses raised and positions taken. (Id., ¶ 10.) Discovery was protracted and the depositions of Defendants were protracted due to the witnesses’ responses and combative demeanor. (Id., ¶ 10.) Considerable time was also spent responding to an appeal from the issuance of a preliminary injunction including oral argument before the Court of Appeal. (Id., ¶ 10.) The decision of the trial court was upheld on appeal. (Id., ¶ 10.) Praglin states that the total lodestar for his firm and the ALDF is only for the time spent by three attorneys and comes to $1,218,027.50. (Id., ¶ 10.) Praglin states that counsel spent additional time on post-trial briefing, drafting the proposed judgment, and drafting the instant motion. (Id., ¶ 11.) Praglin states that Cotchett, Pitre & McCarthy LLP and the ALDF have each incurred significant expenses in the four years since the case was filed. (Id., ¶ 12.) Plaintiffs are submitting their memorandum of costs concurrently with the motion and Praglin states that Plaintiffs’ costs through trial are $15,578.53. (Id., ¶ 13; Exh. E.)

Christopher Berry (“Berry”), who is the managing attorney at the ALDF, declares that his organization and Cotchett, Pitre & McCarthy, LLP have acted as counsel for Plaintiffs in this matter. (Berry Decl., ¶ 2.) Berry states that he spent 53.1 hours at the hourly rate of $829.00 per hour which amounts to $44,020.00 in fees. (Id., ¶ 3.) Berry states that ALDF advanced recoverable litigation costs in this matter in the amount of $23.37. (Id., ¶ 5.) Berry declares that the schedule of attorneys’ fees and costs were put together at his direction and are based on contemporaneous records maintained by ALDF. (Id., ¶¶ 4, 6.)

In his supplemental declaration, Praglin declares that on January 11, 2024, counsel for Plaintiffs filed their motion for an award of reasonable attorneys’ fees, and Plaintiffs originally requested their total lodestar for time spent by the three lead attorneys for the majority of the case, which are Praglin, Berry, and Vitale. (Praglin Supp. Decl., ¶ 2.) Praglin, Berry, and Vitale have acted as lead counsel to all Plaintiffs in this matter. (Id., ¶ 3.) Praglin presents time records regarding this action. (Id., ¶ 4; Exh. 1.) The total number of hours expended over the several years of litigation by Praglin, Vitale, and Berry from inception through the Phase Two trial is 2,115 hours; however, after an additional review of the detailed time records, Plaintiffs have removed a total of 31.24 hours. (Id., ¶ 6.) Plaintiffs are requesting attorneys’ fees in the amount of $1,195,516.84 for the 2,083.76 combined hours spent by lead counsel. (Id., ¶ 7.) Praglin states that Cotchett, Pitre & McCarthy LLP and the ALDF have each incurred significant time and expenses in the four years since the case was filed. (Id.)

Initially, the Court finds that Defendants’ argument that Plaintiff CARU cannot recover

attorney’s fees under Civ. Code § 1780(e) is moot as Defendants have indicated on reply that Plaintiff CARU is not seeking attorney’s fees. (Reply at p. 1: 28.)

The Court also rejects Defendants’ contention that the ALDF only represented Plaintiff CARU in this action as Plaintiffs have provided declarations from counsel indicating that the ALDF represented all Plaintiffs in this action along with Cotchett, Pitre & McCarthy LLP.

Plaintiffs have now submitted itemized billing records in support of the motion, which substantiate the hours worked on this matter. Plaintiffs have therefore provided evidence of the reasonableness of their claimed attorneys’ fees. Defendants did not file a declaration in support of the opposition or provide any evidence contesting the reasonableness of Plaintiffs’ claimed attorneys’ fees. Moreover, Defendants have failed to file an opposition to Plaintiffs’ supplemental brief. As such, Defendants have not met their burden to challenge the reasonableness of Plaintiffs’ attorneys’ fees pursuant to Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th 550, 563-564.