Judge Bruce G. Iwasaki, Case Number: 22STCV36942, Date: 2023-10-05 Tentative Ruling

Tentative Ruling: The Motion for Attorney Fees is granted in the reduced amount of $29,050.

This dispute arises out of a creditor’s claim filed by Plaintiff, Gayle Mullen, (Plaintiff) in the probate estate matter of her ex-husband, Steven Mullen (Decedent).

On December 1, 2009, Plaintiff was awarded a Judgment of Dissolution in the amount of $263,035 in child support arrearages with prejudgment interest of $238,724.02 for a total judgment of $501,759.04 (Support Judgment). On February 17, 2022, Decedent died, and, on February 23, 2022, a Petition for Letters of Administration was filed in case number 22STPB01715 (Probate Action). Defendants Tyler Moallem and Jonathan Redwood (Defendants) were appointed administrators of Decedent’s estate. On August 8, 2022, Plaintiff filed a creditor’s claim in the Probate Action, claiming $495,289.13 was due on the Support Judgment. On September 28, 2022, Defendants rejected Plaintiff’s creditor’s claim in full.

On July 17, 2023, Plaintiff filed a motion for summary judgment. Defendants opposed the motion. The Court granted the motion for summary judgment.

Entitlement to Attorney Fees under Probate Code section 9354, subdivision (c):

Plaintiff requests attorney fees in the amount of $67,158 pursuant to Probate Code section 9354, subdivision (c). Plaintiff argues that Defendants’ rejection of Plaintiff’s creditor’s claim and their maintaining a defense in this action was unreasonable.

Probate Code section 9354 provides in pertinent part: “The prevailing party in the action [on a creditor's claim] shall be awarded court costs and, if the court determines that the prosecution or defense of the action against the prevailing party was unreasonable, the prevailing party shall be awarded reasonable litigation expenses, including attorney's fees.” (Prob. Code, § 9354, subd. (c).)

As noted by Plaintiff, no published opinion defines “unreasonable” in the context of Probate Code section 9354. However, this term is used in other cost-shifting statutes that courts have construed. For example, in Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, the Court of Appeal construed Business and Professions Code section 809.9, which authorizes an award of costs and attorney fees to the prevailing party “if the other party's conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith.” For the term “unreasonable”, the Court of Appeal applied the “any-reasonable-attorney standard,” which asks “whether any reasonable attorney would have thought the claim tenable” based on “the facts known to the plaintiff when [it] filed or maintained the action.” (Id. at p. 32.)

Thus, the Court must determine whether Defendants’ “defense of the action against the [Plaintiff] was unreasonable.”

By way of background, the relevant statutory scheme underlying Plaintiff’s claim is as follows:

With an exception not relevant here, “after the death of the decedent all money judgments against the decedent ... are payable in the course of administration and are not enforceable against property in the estate of the decedent under the Enforcement of Judgments Law.” (Prob. Code, § 9300, subd. (a).) However, such judgments must be filed “in the same manner as other claims” against a decedent’s estate. (Prob. Code, § 9300, subd. (b); Embree v. Embree (2004) 125 Cal.App.4th 487, 493–494.) Thus, a creditor seeking payment of a judgment from an estate must file a claim with the personal representative of the decedent's estate within a certain period or be barred from enforcing their claims. (Prob. Code, §§ 9100, 9150, subd. (d).)

Upon the filing of a claim, the personal representative must allow or reject the claim, in whole or in part. (Prob. Code, §§ 9250, subd. (a); 9255, subd. (a).) When a personal representative rejects a claim, in whole or in part, a creditor must “bring an action on the claim” or the rejected part of the claim within a specified period or the claim will be barred. (Prob. Code, §§ 9255, subd. (b), 9353, subd. (a).)

In support of Plaintiff’s request for attorney fees, Plaintiff argues it was unreasonable for Defendants to reject her creditor’s claim of $495,289.13 given the documents she provided to Defendants attached to her creditor’s claim and attached to her Complaint. These documents included the underlying Support Judgment, documents related to a bankruptcy discharge of the Watts Charges Judgment, and all credits that were applied to Plaintiff’s Support Judgment. (Compl., Ex. A [Credit’s Claim, Exhibits 1-9].)

The underlying Support Judgment shows that, on December 1, 2009, Plaintiff was awarded a judgment in the Orange County Superior Court case No. 95D00841, in the amount of $501,759.04; in that same action, Decedent was awarded $300,574 for the fair community property rental value of the home that Plaintiff resided in during the dissolution (Watts Charges Judgment). The Bankruptcy documents showed a discharge of the Watts Charges Judgment. (Compl., Ex. A [Credit’s Claim, Exhibits 3-5.)

In opposition, Defendants contend that their defense of this action was not unreasonable. First, Defendants argue that the creditor’s claim amount was questionable given that Plaintiff calculated the judgment herself while self-represented.

This argument is not well taken. Being self-represented is not a basis to render a filing or claim inherently suspect. Moreover, the Creditor’s Claim provides all the information Defendants would need to independently verify Plaintiff’s calculations.

Defendants also argue that Plaintiff provided no information on the disposition of the Watts Judgment until ten months after she filed the Creditor’s Claim. Specifically, Defendants argue that Plaintiff failed to present evidence of existence of a settlement agreement regarding the Watts Judgment until June 16, 2023 – which was ten months after Plaintiff filed her Creditor's Claim and seven months after she filed her Complaint in this action.

This argument is also not well taken. Plaintiff’s Creditor’s Claim documentation disclosed the bankruptcy, including a case number; Plaintiff correctly argues that a reasonable investigation into this bankruptcy would have established that the Decedent’s Watts Charges Judgment against Plaintiff was settled/discharged in bankruptcy. (Compare Compl., Ex. A [Credit’s Claim, Ex. 5 [Docket No. 85] with Summary Judgment Motion, RJN Ex. J [June 13, 2011 Order Approving the Motion for Compromise and Settlement Agreement].)

Defendants’ arguments as to why their conduct in rejecting the Creditor’s Claim and their defense of this action on the Creditor’s Claim was reasonable are unpersuasive. None of Defendants’ arguments suggest a reasonable basis for rejecting Plaintiff’s Creditor’s Claim based on the information that was provided and/or reasonably/publicly accessible to Defendants.

Defendants’ opposition arguments are further undermined by their weak opposition to the motion to summary judgment. Without repeating Defendants’ argument in that opposition, the Court found the arguments largely lacked any legal authority in support and were mostly based on speculation.

Plaintiff has demonstrated that Defendants’ conduct was unreasonable under the circumstances.[1]

“ ‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that 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.” ’ [Citation.] Generally, the reasonable hourly rate used for the lodestar calculation ‘is that prevailing in the community for similar work.’ [Citations.] After making the lodestar calculation, the court may augment or diminish that amount based on a number of factors specific to the case, including the novelty and difficulty of the issues, the attorneys' skill in presenting the issues, the extent to which the case precluded the attorneys from accepting other work, and the contingent nature of the work. [Citation.]” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.)

Here, Plaintiff seeks attorney fees at an hourly rate of $350 an hour. (Altomare Decl., ¶¶ 15-17, Exs. A-B.) Based on the Court's familiarity with the current local market, and Plaintiff’s evidence of the experience and skills of the various attorneys – the Court finds that Plaintiff's requested rate per hour of $350 is reasonable.

Plaintiff also submits evidence that counsel spent 80 hours in this matter and expects to spend an additional 3 hours on this attorney fee motion, for a total of 83 hours. (Altomare Decl., ¶¶ 18-20, Ex. C.) In opposition, Defendants do not challenge reasonableness of Plaintiff’s counsel’s hourly rates or Plaintiff’s lodestar calculation.

“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. Failure to raise specific challenges in the trial court forfeits the claim on appeal.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) Here, Defendants do not even argue that the fees are unreasonable or excessive.

Thus, the Court finds the hours incurred in this litigation are not unreasonable. The Court will award the lodestar amount of $29,050 in reasonable attorney’s fees.

Plaintiff seeks a 2.25 lodestar multiplier based on the risk of taking this case on contingency, the complexity of the litigation, the delay in receiving payment, and the success of the litigation.

Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Although this matter was taken on contingency, none of the other factors support the application of a multiplier. This action was not an unusually complex; there were no novel or difficult questions presented. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.) Further, the¿contingent risks were limited given Plaintiff’s position that the rejection of the creditor’s claim was patently unreasonable, which also informs on the level of skills required for Plaintiff’s attorney to obtain the successful outcome.

Moreover, while the Court did not reduce the number of hours incurred in this litigation –the number of hours incurred by Plaintiff’s counsel were high (although not excessive) given the minimal issues and motion involved in this litigation. Thus, Plaintiff’s lodestar amount is adequate compensation for this litigation and a lodestar multiplier is unwarranted.

The motion for attorneys’ fees and costs is granted in part. In sum, the Court grants Plaintiff’s request for attorneys’ fees in the total amount of $29,050.

Defendants are ordered to pay to Plaintiff’s counsel the sum of $29,050 for attorneys’ fees.

[1] Defendants also argue, in opposition, that the motion for attorney fees is moot because the estate is insolvent and cannot pay an award in any amount. As the Court explained on the motion for summary judgment, this argument – which again fails to cite any relevant legal authority – does not render the motion moot. Plaintiff is entitled to a complete judgment even where the judgment may not ultimately be satisfied.