Department 58

Hearing Date: November 20, 2024

Case Name: West v. Thackeray

Case No.: 19STCV24892

Matter: Motion for Attorney Fees and Costs

Moving Party: Plaintiff Rebecca West

Responding Party: Defendant Eduardo Thackeray, Trustee of the Thackeray Family Revocable Trust

Tentative Ruling: The Motion for Attorney Fees is granted in the reduced amount of $60,625. The request for costs is granted in the reduced amount of $2,381.15.

This is a case arising out of the sale of residential home. On June 22, 2017, Defendant Eduardo Thackeray (Defendant Thackeray) listed for sale the real property located at 1217 Daniels, Los Angeles 90035 (Property); the marketing information showed that the Property was a 1,627 square foot house with a pre-approved plan for an additional 1,050 square feet. On July 10, 2017, Plaintiffs Rebecca West and Luca Giorgetti (Plaintiffs) executed a Purchase Agreement with Defendant for the Property. In November 2017, Plaintiffs learned that, in April 2017, Defendant had withdrawn the request for the permit for an additional 1,050 square feet and sought a refund of the $5,811.02 fee that had been paid; the permit was revoked and a refund issued on June 14, 2017.

Thereafter, on July 16, 2019, Plaintiffs sued Defendants Thackeray (as trustee of the Thackeray Family Revocable Trust and individually), Rodeo Realty, Belen Palacios, and Alex Griswold. The Complaint alleges causes of action for (1.) intentional misrepresentation, (2.) negligent misrepresentation, (3.) breach of fiduciary duty, and (4.) breach of implied covenant of good faith and fair dealing.

On March 26, 2020, Plaintiffs filed a motion to compel arbitration to arbitrate their claims against Defendant Thackery. On November 4, 2020, the Court granted the motion.

On July 11, 2023, the Arbitrator submitted the Final Award, which was twenty-two pages in length. The Arbitrator found in favor of Plaintiff West – awarding awarded actual damages in the amount of $206,300 against Respondent Eduardo Thackeray, as Trustee of the Thackeray Family Revocable Trust; Plaintiff was also awarded $210,000 in attorneys’ fees and $50,239.86 in costs as the prevailing party.

On September 13, 2023, Plaintiff Rebecca West (Plaintiff) filed a Motion to Confirm the Arbitration Award and sought attorney fees and costs in the amount of $20,720. Defendant Thackeray opposed the motion on limited grounds. A reply was filed. On December 1, 2023, a Sur-Reply was filed; the Court will disregard this unauthorized filing.

The motion to confirm the Arbitration Award was granted in part; the request for attorney fees was granted in the reduced amount of $8,125.

Now, Plaintiff Rebecca West moves for $70,000 in attorney’s fees and $4,841.15 in costs incurred for enforcing her judgment against Defendant Eduardo Thackeray, Trustee of the Thackeray Family Revocable Trust (Defendant), pursuant to Code of Civil Procedure sections 685.040 and 1033.5(a)(10)(A). Defendant opposes the motion.

The motion for attorney fees is granted in the reduced amount of $60,625. The request for costs is granted in the amount of $2,381.15.

Legal Standard

Code of Civil Procedure section 685.040 provides “[t]he judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”

Thus, under Section 685.040, “there are two requirements before a motion for an award of postjudgment attorney fees may be awarded as costs: (1) the fees must have been incurred to ‘enforce’ a judgment; and (2) the underlying judgment had to include an award for attorney fees pursuant to ... section 1033.5, subdivision (a)(10)(A), which provides that attorney fees may be awarded when authorized by contract.” (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 935.)

Analysis

Plaintiff West moves for attorney’s fees in the amount of $70,000 and costs in the amount of $4,841.15, pursuant to Code of Civil Procedure sections 685.040 and 1033.5(a)(10)(A).

In opposition, Defendant does not dispute that Plaintiff West is entitled to fees to enforce the judgment. Rather, Defendant argues the fees requested are unsubstantiated as fees incurred by West and unreasonable in the amount.

Challenge to the Underlying Attorney Invoice Evidence

Defendant first argues that Plaintiff has failed to demonstrate that the fees incurred were fees incurred by Plaintiff West. Specifically, Defendant notes that the invoices attached to the motion identify the client as “Luca Giorgetti” and the matter identified was “Giorgetti/general corporate matters.” (Hughes Decl., Ex. A.)

In response, Plaintiff argues that “the fact that the legal invoices reflecting those fees happen to be addressed to Plaintiff West’s co-Plaintiff (Luca Giorgetti) does not rebut Plaintiff’s counsel’s sworn declaration that the claimed fees were incurred “for” Plaintiff West.” (Reply 2:9-12.)

Plaintiff’s argument is well taken. The heading on the invoices – which identify co-Plaintiff Giorgetti– are not dispositive to determining whether attorney fees were “incurred” by Plaintiff West. Rather, the more persuasive evidence is the Hughes’ declaration and the invoice descriptions, which is adequate evidence that these hours were incurred on behalf of Plaintiff in enforcing the judgment entered in her favor. (Hughes Decl., ¶¶2-3.) That is, the description of the work performed on the invoices are consistent with attorney fees incurred to enforce Plaintiff’s judgment.

Lastly, Defendant’s assertion, without evidence, that Plaintiff Giorgetti paid the claimed fees on Plaintiff West’s behalf, even if true, are of no consequence. (Lolley v. Campbell (2002) 28 Cal.4th 367, 373 [“California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets.”].)

Challenge to the Hourly Rate

Plaintiff’s counsel contends that he incurred 112 hours enforcing the Judgment at $625 an hour. (Hughes Decl., ¶¶ 2-3, Ex. A.)

Defendant challenges Attorney Hughes’ hourly rate of $625 by arguing that this “uncomplicated” collection action did not require an attorney with such a high hourly rate. (Opp., 4:4-5.) Defendant contends that a reasonable price for a collection attorney is $350 per hour.

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”¿(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿

Defendant’s naked assertion that $625 is unreasonable is insufficient to overcome Hughes’ evidence.[1] Specifically, a review of the declaration submitted in support of the motion for attorney’s fees supports finding that Plaintiff’s attorney’s hourly rate of $625 is reasonable; the rate is supported by substantial evidence under the present circumstances. (Hughes Decl., ¶¶ 6-8 [ showing Hughes’ education and experience].)

The hourly rate is reasonable.

Challenge to Hours Incurred

Next, Defendant challenges specific categories of attorney fees.

Preparing a writ of execution: Defendant argues that Plaintiff’s request for 10.5 hours for this task was unreasonable. In reply, Plaintiff notes that this mischaracterizes the time spent on this task, which includes time spent researching the legal requirements for levy against property held by a trust, additional time on calls with the Sheriff’s department regarding levy on the property, and other tasks related to this “highly technical task.” Based on the foregoing, the time incurred on these tasks were reasonable.

Opposing Defendant’s Demurrer: Defendant argues that time incurred by Plaintiff to oppose Defendant’s demurrer is not recoverable because the demurrer was unrelated to collecting the judgment; thus, the 5.9 hours incurred for this task should be struck. Plaintiff persuasively argues that opposing this demurrer was necessary to ensue that Defendant participated in judgment-enforcement proceedings. (See 5/24/2024 Minute Order) The hours incurred on this task are recoverable under Code of Civil Procedure section 685.040.

Applying for an order for sale: Although Plaintiff has requested 63.8 hours for this task, Defendant argue it should have taken no more than 8 hours. Plaintiff argues that this task was time intensive: applying for Order for Sale of a “dwelling” is “arcane and involves multiple statutes and multiple steps.” (Reply 5:23-6:8.) While the Court agrees with Plaintiff’s argument that these legal tasks were not simple, the amount of hours incurred was excessive, especially given Attorney Hughes’s extensive experience in handling “real estate litigation matters.” (Hughes Decl., ¶ 6.) The Court will reduce these hours by 15 hours (reduction of $625 x 15 = $9,375).

Settlement discussions: Defendant argues that the 9.8 hours requested for this task are not recoverable because they were not reflected in the attached invoices; rather, the invoices show time spent discussing resolution with other defendants, unrelated to the collection of the judgment. Plaintiff’s reply demonstrates the necessity of the hours incurred for this task and that this time was recoverable under Code of Civil Procedure section 685.040. (Reply 6:9-18.)

Preparing the costs bill and attorney fee motion: Defendant argues the 14.7 requested for these tasks is excessive and should be reduced by 9.7 hours for a total of 5 hours. Although Plaintiff’s reply does not address these fees, these fees reflect a reasonable amount incurred in this highly litigious action.

Costs:

Finally, Defendant challenges Plaintiff’s request for costs, seeking a reduction of $4,449.22, for a total of $391.93 in costs.

Process server fees: Defendant argues that he should not have to cover Plaintiff’s process server fees of $2,000. In response, Plaintiff claims these fees were incurred in connection with submitting levy instructions to the Sheriff’s Department (which does not accept electronic filing) and filing and serving the various moving and reply papers relating to the Order of Sale. (Reply 6:24-26.) These costs were reasonably necessary to the enforcement of the judgment. The request to strike this cost is denied.

Parking fees: Defendant challenges Plaintiff’s right to recover parking fee costs. In reply, Plaintiff argues she is not seeking parking fee costs. (Reply 7:3-6.)

LA County Sherriff’s Department Levy Fee: Defendant contends that this levy fee is only $40, not $2,500. Although these costs may be recoverable, the reply does not further substantiate these costs with evidence (except by reference to the FAQs on the Sheriff’s Department website) and, therefore, Plaintiff has not met its burden for this cost. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698 [“[W]here the items are properly objected to by the plaintiff they are put in issue, and the burden of proof is upon the defendant to establish the costs which are objected to.”].) Accordingly, this cost will be stricken except as to $40.

Accordingly, the Court will grant costs in the reduced amount of $2,381.15.

Conclusion

The motion for attorney fees is granted in the reduced amount of $60,625 ($70,000-9,375). The request for costs is granted in the reduced amount of $2,381.15. Defendant s ordered to pay to Plaintiff’s counsel the sum of $63,006.15 on or before December 23, 2024.

[1] The reply also suggests Defendant’s position is hypocritical given Defendant’s own “veteran legal team.”