Judge Bruce G. Iwasaki, Case BC652405 2023-03-17 Tentative Ruling

Moving Party: Defendants/Cross-Complainant/Respondents Community Rebuild Partners;

Tentative Ruling: The Motion for attorney’s fees is granted. The Chanins are ordered to pay to counsel for Community Rebuild as and for attorney’s fees $348,459.

Community Rebuild Partners and Community Rebuild Asset Holdings (Community or Cross-complainant) filed an unlawful detainer action against Sam and Lieba Chanin (Lieba) in Case No. LC105136 on January 23, 2017. In response, the Chanins sued in this Court (BC652405) on March 1, 2017, alleging multiple causes of action including fraud, negligence, trespass, and invasion of privacy. The parties were ordered to arbitration, where Community filed its Cross-complaint for ejectment and rental damages.

After the arbitrator remanded the case, this Court dismissed the Chanins’ Complaint with prejudice as a terminating sanction on October 28, 2021. However, the case remained open because of Community’s Cross-complaint.

Community then moved for summary judgment on its Cross-complaint for rental damages. The Chanins did not oppose, and the motion was granted.

Community is now moving for attorney’s fees in the amount of $387,435 for the “necessary defense of this action.” The amount requested is for work done between August 8, 2018 and September 28, 2022.

The prevailing party has the burden of showing that the requested attorney fees were “reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].’ ” (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.) Therefore, if the “time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿

A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.) It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.) Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.)

The contractual provision allowing for attorney’s fees is in Paragraph 22A and 25 of the “Residential Purchase Agreement and Joint Escrow Instructions”:

A. MEDIATION: . . . If, for any dispute or claim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.

(1) EXCLUSIONS: The following matters are excluded from mediation and arbitration: . . . (ii) an unlawful detainer action; and (iii) any matter that is within the jurisdiction of a probate, small claims or bankruptcy court.

25. ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.

On July 6, 2021, Community moved for attorney’s fees on the appeal. The Chanins argued that they requested to mediate in the unlawful detainer case, but Community refused. (See Zelig Declaration, Exs B-C.) On October 28, 2021, Judge Doyle declined to grant appellate fees, stating:

Defendants do not dispute that they did not agree to mediate, but instead argue, “However, Community did not initiate this lawsuit - Chanin did. There is no requirement that a wrongfully sued defendant - first attempt mediation prior to defending an action. Therefore, a straightforward interpretation of the two contracts grants reasonable fees to the attorney who prevails in a action (even if they did not first attempt mediation).

This lacks merit. There is no contractual language providing that “wrongfully sued defendants[s]” need not mediate. To the contrary, the contracts are clear that there will be no fees for a party that “before commencement of an action refuses to mediate after a request has been made . . . .” Because Defendants failed to mediate, they are not entitled to fees under contract. The Motion for attorneys’ fees is denied.

The Court finds that the mediation requirement does not apply because Community filed an unlawful detainer action first, in the Van Nuys court. Unlawful detainer actions are excluded from the Purchase Agreement’s mediation requirement. Thereafter, it was the Chanins who filed in this Court their tort-based claims for which mediation is required. Thus, the Chanins were the ones who breached the mediation requirement and so they are the ones not entitled to fees as there is no evidence that they requested prior mediation.

Community seeks to recover a total of $387,485.00 in attorneys’ fees. The Court will consider all fees from August 2018 through September 2022 except for all fees and costs relating to the appeal considered by Judge Doyle. That is, the Court will deny attorney’s fees that were already considered in the October 28, 2021 minute order.

From the 12-4-2019 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 7.15 hours for $500/hr, totaling $3,575.00. Comparing the same bill attached for this instant motion, Community’s counsel claims the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $3,575.00.

From the 2-27-2020 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 3.1 hours for $500/hr, totaling $1,550.00. Comparing the same bill attached for this instant motion, Community’s counsel claims 2.55 of the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $1,275.00.

From the 4-21-2020 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 1.3 hours for $500/hr, totaling $650.00. Comparing the same bill attached for this instant motion, Community’s counsel claims .45 of the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $225.00.

From the 7-31-2020 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 3.9 hours for $500/hr, totaling $1,950.00. Comparing the same bill attached for this instant motion, Community’s counsel claims 1.3 of the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $650.00.

From the 8-12-2020 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 0.2 hours for $500/hr, totaling $100.00. Comparing the same bill attached for this instant motion, Community’s counsel claims the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $100.00.

From the 11-11-2020 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 10.5 hours for $500/hr, totaling $5,250.00. Comparing the same bill attached for this instant motion, Community’s counsel claims the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $5,250.00.

From the 3-15-2021 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 11.35 hours for $500/hr, totaling $5,675.00. Comparing the same bill attached for this instant motion, Community’s counsel claims 11.25 of the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $5,626.00.

From the 4-28-2021 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 6.7 hours for $500/hr, totaling $3,350.00. Comparing the same bill attached for this instant motion, Community’s counsel claims the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $3,350.00.

From the 6-22-2021 bill attached to the previous request for attorney’s fees heard on October 28, 2021, Community’s counsel claimed 3.55 hours for $500/hr, totaling $1,775.00. Comparing the same bill attached for this instant motion, Community’s counsel claims the same hours for the same work performed. Thus, the Court strikes these fees in the amount of $1,775.00.

The Court reduces fees that had previously been considered and denied in the amount of $21,826.

The Court notes that the some of the fees requested in the instant motion as provided in the chart on page 22 of the Motion do not correspond to the bills attached.

For the 12-11-2018 bill, Community’s counsel claims 62.45 hours for a total of $31,225.00. However, the bill for that date shows that the hours total up to 61.45 for a total of $30,725.00.

For the 3-27-2019 bill, Community’s counsel claims 110.97 hours for a total of $57,485.00. However, 110.97 hours at a rate of $500/hr is $55,485.00.

For the 7-31-2020 bill, Community’s counsel claims 13.40 hours for a total of $6,700.00. However, the bill for that date shows that the hours total up to 9.85 hours for a total of $4,925.

For the 11-11-2020 bill, Community’s counsel claims 62.45 hours for a total of $10,500.00. However, the bill for that date shows that the hours total up to 20.1 for a total of $10,050.00.

For the 11-18-2021 bill, Community’s counsel claims 62.45 hours for a total of $4,925.00. However, the bill for that date shows that the hours total up to 9.3 hours for a total of $4,650.00.

For the 6-27-2022 bill, Community’s counsel claims 62.45 hours for a total of $22,500.00. However, the bill for that date shows that the hours total up to 20.6 hours for a total of $10,300.00.

Although the 7-31-2020 and 11-11-2020 bills were also claimed in the previous motion (heard on October 28, 2021), Community’s counsel fails to show which specific items were miscalculated. Thus, the Court corrects all hours as indicated above.

After striking the fees relating to the appeal which are also claimed here and adjusting the fees which were erroneously calculated, Community’s adjusted fee request is $348,459.

The Court finds Community’s counsel’s rate of $500 per hour to be reasonable, and the Chanins do not contest this. The Court has reviewed the fee records submitted by Community and concludes they are reasonable and necessary.

The Court rejects the Chanins’ proposals to award attorney’s fees solely against Lieba, or reduce the awards by an arbitrary 66% or 80%. Although Lieba was the signatory to the Purchase Agreement, all Chanin parties remained in the suit. The Chanins made this litigation unreasonably contentious and costly.

After striking the appellate fees and correcting certain entries, the Court finds that reasonable attorney’s fees owed by the Chanins to Community’s counsel is $348,459.

The Chanins and each of them are ordered to pay to Community’s counsel $348,459 on or before April 20, 2023.

Bill Dates	Appellate Fees
12/4/19	$3,575.00
2/27/20	$1,275.00
4/21/20	$225.00
7/31/20	$650.00
8/12/20	$100.00
11/11/20	$5,250.00
3/15/21	$5,626.00
4/28/21	$3,350.00
6/22/21	$1,775.00
Total	$21,826.00

Bill Dates	Correct Calculation
12/11/18	$31,225 - 30,725	500
3/27/19	$57,485 - 55,485	2,000
7/31/20	$6,700 - 4,925	1,775
11/11/20	$10,500 - 10,050	450
11/18/21	$4,925 - 4,650	275
6/27/22	$22,500 - 10,300	12,200
Total		$17,200

Department 58