Judge: Barbara M. Scheper, Case: 20STCV40688, Date: 2023-10-12 Tentative Ruling

Case Number: 20STCV40688    Hearing Date: October 12, 2023    Dept: 30

Dept. 30

Calendar No. 

WIL 2019, LLC, et. al. vs. Feliciano, et. al., Case No. 20STCV40688 

Tentative Ruling re”  Defendant’s Motion for Attorney’s Fees and Costs

Defendant Look at the Moon Pictures, LLC (Defendant) moves for an award of attorney’s fees and costs against Plaintiffs Tae Hoon Chung, Andrea Chung, Ghalib Datta, and Christine Kim (collectively, Plaintiffs). The Court awards fees and costs to Defendant against Plaintiff Tae Hoon Chung (TH Chung) in the amount of $39,254.30.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b).) “Prevailing party” includes the party with a net monetary recovery. (Code Civ. Proc. § 1032, subd. (a)(4).) “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Code Civ. Proc. § 1717, subd. (a).)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “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.)

On June 13, 2023, the Court sustained Defendant’s demurrer to Plaintiffs’ First Amended Complaint and dismissed Defendant from this action. The FAC had alleged two causes of action against Defendant, a cause of action for Breach of Investment Agreement by TH Chung and a cause of action for Aiding and Abetting Breach of Fiduciary Duty by Plaintiff Andrea Chung.

            Defendant seeks to recover attorney’s fees and costs pursuant to the “Production Investment Agreement” (the Agreement) between TH Chung and Defendant. (FAC ¶ 67, Ex. 2.)  The Agreement provided for TH Chung’s investment of $150,000 into the film Women is Losers, and stated in part, “In any action between the parties to enforce the terms of this agreement, the prevailing party shall, in addition to any other award of damages or other remedy, be entitled to reasonable outside attorneys’ fees (and costs) from the non-prevailing party or parties.” (FAC, Ex. 2, § 22(b).) Plaintiffs do not dispute that Defendant is entitled to recover attorney’s fees and costs against TH Chung pursuant to the Agreement.

            As an initial matter, contrary to Plaintiffs’ argument, this motion is not untimely. The motion was filed on August 21, 2023. The time for filing a motion for attorney’s fees is 60 days from service of the Notice of Entry of Judgment. (Rules of Court, rule 3.1702, subd. (b).) Here, the Notice was served on June 21, 2023, and so the 60-day deadline fell on August 20, 2023, a Sunday. Because the last day of the deadline was a Sunday, the deadline is moved to August 21, the Monday after. (Rules of Court, rule 1.10, subd. (a) [“The time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or other legal holiday, and then it is also excluded.”)

Defendant requests an award of $52,967.33 for fees and costs incurred up to Defendant’s dismissal, plus fees of $10,695 for hours incurred in connection with the current motion, for a total of $63,662.33. (Matz Decl. ¶ 16, Ex. E; Matz Reply Decl. ¶ 6.)

Counsels’ hourly rates range from $350 to $650. (Metz Decl. ¶¶ 20-26.) The Court finds that the requested rates are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783.)

Plaintiffs contest the requested hours billed in connection with Plaintiffs’ Motion for TRO/PI, Defendants’ Motion to Compel Arbitration, discovery directed towards other defendants, and restoring this action to the Court’s active docket.

First, Defendant seeks 50% of fees for work related to Plaintiffs’ requests for a Temporary Restraining Order and Preliminary Injunction against Defendant Lisette Feliciano (Feliciano). (Metz Decl. ¶ 17; Ex. E-1.) Plaintiffs sought a TRO and PI enjoining Feliciano from using money invested in WIL 2019 without authorization from Plaintiffs, from soliciting financing for WIL 2019 or the film Women Is Losers, altering the film or showing the film to any third-party, or taking any action with respect to rights to sale or distribution of the film. Both the TRO and PI were granted in part, and enjoined Feliciano from taking any action concerning the encumbrance of, assignment of rights in, sale of and/or commercial distribution of the film.

Defendant argues that it is entitled to recover fees for work concerning Plaintiffs’ requests for injunctive relief because those requests were premised upon Feliciano’s alleged breach of the Investment Agreement with TH Chung. The Court disagrees. The Minute Order granting the preliminary injunction shows that the Court’s decision relied exclusively on evidence of Feliciano’s alleged breach of the Operating Agreement between Andrea Chung and WIL 2019. (Minute Order 12/3/2020, p. 10 [“Because Plaintiff Chung has shown a reasonable probability of prevailing on her contract action, the court need not analyze the causes of action for breach of fiduciary duty or breach of investment agreement.”].) Defendant was not named in either of Plaintiffs’ proposed orders for the TRO and PI. Though TH Chung submitted a short declaration in support of the motion for PI, Plaintiffs’ accompanying Reply brief did not discuss TH Chung’s claim; rather, Plaintiffs relied on evidence of Feliciano’s breach of the WIL 2019 Operating Agreement, and cited the provision for injunctive relief in the Operating Agreement. (Metz Decl., Ex. K, Ex. J, p. 9 [242].) Accordingly, the Court finds that work related to Plaintiffs’ PI/TRO requests did not fall under the scope of the attorney’s fee provision in TH Chung’s Agreement.

The Court also agrees with Plaintiffs that hours billed for Feliciano’s Motion to Compel Arbitration are not recoverable under the Agreement, which applies to “any action between the parties to enforce the terms of this agreement.” (Metz Decl., Ex. K.) Feliciano filed a Motion to Compel Arbitration on December 3, 2020, seeking arbitration of Andrea Chung’s claims against her, and requesting a stay as to the remaining defendants. The motion was premised upon an arbitration provision in the WIL 2019 Operating Agreement and was not directed at Defendant, and so plainly did not seek to enforce Defendant’s Agreement with TH Chung. (See Khan v. Shim (2016) 7 Cal.App.5th 49, 60 [discussing interpretation of fee provisions applying to actions to “enforce” agreement at issue].)

Plaintiffs next challenge the partial fees requested for hours incurred to respond to discovery directed at Feliciano and other defendants. (Metz Decl., Ex. E-4.) The Court agrees that Defendant may not recover attorney’s fees under the Agreement for time spent responding to discovery that was not directed at Defendant. Accordingly, the requested discovery fees are reduced by $1,400.

Plaintiffs last challenge the 50% of fees requested for 22 hours spent to restore this action to the active docket. (Metz Decl. ¶¶ 45-46, Ex. E-5.) Defendant explains that the other two defendants, Cecilia Ramos, and Brooks Robertson, were billed separately; consequently, the billing entries presented reflect only half of the total fees to all defendants, such that the 50% attributed to Defendant is 25% of the total amount. (Metz Decl. ¶¶ 11, 17(b).) Given this, the Court finds that these requested fees are proper.

After excluding fees incurred in connection with Plaintiffs’ TRO/PI ($19,140), the Motion to Compel Arbitration ($5,388.45), and discovery served on other defendants ($1,400), the recoverable fees amount to $27,038.88. The Court declines to award a fee multiplier; there is no indication that the litigation involving Defendant presented difficult or novel questions, or that any other relevant factors warrant an enhancement. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Defendant also requests recovery of costs in the amount of $2,319.13. (Metz Decl. ¶ 16, Ex. E-7.) Plaintiff argues that Defendant may not recover costs because it did not file a timely Memorandum of Costs as required under Rules of Court, rule 3.1700. However, rule 3.1700 “is inapplicable to [a] request for attorney fees under Civil Code 1717”; instead, “rule 3.1702 constitutes the sole rule governing [a] request” pursuant to Section 1717. (Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 9.) Consequently, “a party seeking fees incurred before judgment under Civil Code section 1717 need not file a memorandum of costs regarding the fees, in addition to filing a fee motion in compliance with rule 3.1702.” (Id. at 11.) Because Defendant’s request is “for attorney's fees provided for in a contract,” pursuant to rule 3.1702, Defendant was not required to file a memorandum of costs. The requested costs are not otherwise challenged by Plaintiff, and so are granted.

Finally, Defendant requests $10,695 for fees and $220.42 for costs incurred in connection with the current motion, plus $1,300 for hours anticipated for the hearing on this motion ($12,215.42 total). (Matz Reply Decl. ¶¶ 6, 9.) The requested fees and costs are granted. The Court awards attorney’s fees and costs to Defendant in the amount of $39,254.30.