Judge Carolyn M. Caietti, Case Number: 37-2021-00004381-CU-FR-CTL, Date: 2024-07-03 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2021-00004381-CU-FR-CTL, Date: 2024-07-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - July 02, 2024

07/03/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2021-00004381-CU-FR-CTL UPTOWN INVESTMENTS LLC VS. MARTIN MCCOMAS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 12/11/2023

Defendant/Cross-Defendant McComas Construction, Inc.'s Motion for Determination of Prevailing Party and Reasonable Attorney Fees is GRANTED IN PART.

Background After five weeks of trial, a jury returned a verdict finding: (i) no liability on the operative Complaint against Martin McComas and McComas Construction; (ii) in favor of McComas Construction on claims for breach of the Asano Apartments contract against Uptown Investments, LLC (Uptown) and $966,830,44 in damages and prejudgment interest; (iii) in favor of McComas Construction on claims for breach of the Sydney Place contract against Uptown and $60,212.06 in damages and prejudgment interest; (iv) in favor of McComas Construction on claims for breach of the Transcript Building contract against Third Avenews, LLC (Third Avenews) and $90,804.11 in damages and prejudgment interest. (ROA 265 – Judgment.) Uptown/Third Avenews acknowledge the jury returned a verdict in favor of McComas Construction on all claims. (ROA 285 – Declaration of Kirk Miller, at ¶ 10.) The judgment states McComas Construction and Martin McComas shall recover costs of suit against Uptown and Third Avenews in an amount to be determined and McComas shall recover attorney fees against Uptown Investments, LLC in an amount to be determined. (ROA 265.) This motion first came on calendar on April 5, 2024. The Court requested additional briefing, which the parties provided. (ROA 291.) Discussion In this motion, McComas Construction (hereafter, McComas) seeks: (i) a determination that it is the prevailing party; (ii) an award of attorney fees in the amount of $762,895; and (iii) an award of expert fees in the amount of $74,585.25.

In the supplemental memorandum and reply, McComas acknowledged $23,920 of the fees originally sought can be allocated to prosecuting the contract claims by and against Third AveNews, LLC and are not recoverable against Uptown. Thus, the revised amount sought is $738,975 in attorney fees.

McComas is the Prevailing Party Uptown and ThirdAvenews do not dispute McComas is the prevailing party. (Civ. Code, § 1717; Opp., at Calendar No.: Event ID: TENTATIVE RULINGS

3113550 41 CASE NUMBER: CASE TITLE: UPTOWN INVESTMENTS LLC VS. MARTIN MCCOMAS [IMAGED] 37-2021-00004381-CU-FR-CTL p. 2:24-25.) The dispute in this motion is how much of the attorney fees McComas is entitled to recover.

As raised by Uptown, the only attorney fee/cost provision is in the Asano Contract at section 32.6, which states: 'If any party hereto commences an action or arbitration proceeding to interpret or enforce this Contract or any provision hereof, the prevailing party shall be entitled to an award of costs, attorney's fees and expert witness fees, in addition to all other amounts awarded by the court or arbitrator.' There is no evidence of any attorney fee/cost provision under the oral agreements regarding the Sydney Place project and Transcript building. Only attorney fees and costs related to the Asano Contract are recoverable. However, the Court agrees with McComas that apportioning attorney fees between the Asano Contract and the Sydney Place project claims are so intertwined that it would be impracticable to separate the time spent on one versus the other. (See, Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 (trial court does not abuse its discretion by failing to apportion attorney fees between claims that are so intertwined it would be 'impracticable, if not impossible' to separate the time spent on one versus the other); In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 589 (California law gives courts discretion to apportion fees even where the issues are connected, related or intertwined).) Here, the evidence at trial showed the Asano Contract included the issues of moving the existing single-family home from the Asano project site to Sydney Place. The disagreement between the parties regarding Sydney Place was whether the compensation for Sydney Place was included in the Asano Contract; the jury found it was not. The presentation of evidence concerning Sydney Place involved evidence tied to the performance of the Asano project dispute. The Court agrees with McComas that the Asano claims and counterclaims drove the litigation to trial and that the relatively minor monetary claims associated with Sydney Place would not have precipitated a five-week jury trial. (See, ROA 272 – Declaration of Sean Schwerdtfeger, at ¶ 19; ROA 293 – Supplemental Declaration of Sean Schwerdtfeger, at ¶¶ 18-22.) The Court is satisfied that the attorney time necessary to litigate the claims is inextricably intertwined and it would be impractical, if not impossible, to allocate the attorney time solely attributable to the Asano Contract.

The Lodestar Calculation The next issue is how much to award. The award will be based on the number of hours expended by counsel multiplied by the prevailing market rate for comparable legal services in San Diego. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96 (PLCM) (ruling a lodestar method to calculate attorney fees under Civil Code section 1717 is proper).) After review of the supporting declarations and based on the Court's experience, the hourly rates charged are reasonable and are the prevailing rates charged by attorneys of similar skill and experience in the San Diego community. (PLCM, at p. 1095.) Initially, counsel charged McComas hourly rates of $300 for partners and $250 for associates. (Schwerdtfeger Decl., at ¶ 10.) By the time litigation was 'unequivocally headed into a protracted and complex jury trial,' the hourly rates increased to $400 for partners and $350 for associates. (Id., at ¶ 17.) Based on counsels' stated education and experience and the rates the Court commonly sees charged for similar services, the rates are reasonable.

The time spent also appears largely reasonable. Although McComas did not provide contemporaneous time records, which 'eclipse other proofs,' detailed time records are not required and an attorney's testimony suffices. (Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205, 207.) Here, the parties litigated the case for over three years, including a five week jury trial. The Court reviewed the monthly hours assigned to each rate period. (Schwerdtfeger Decl., at ¶¶ 11, 15, 18.) However, the award will be reduced by the hours charged by one of the two associates, Sara Richards, as her role is largely unaccounted for even over Uptown's opposition, and possibly duplicative to that of Catherine Coughlin's.

The Court calculates Attorney Richards charged $88,220 in fees.

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3113550 41 CASE NUMBER: CASE TITLE: UPTOWN INVESTMENTS LLC VS. MARTIN MCCOMAS [IMAGED] 37-2021-00004381-CU-FR-CTL Thus, by the Court's calculation, the following applies: Original Fee Requested: $762,895 Less Transcript Project Fees: -$23,920 Less Fees Charged by S. Richards: -$88,220 Total Fees: $650,755 Having a complete view of the case, an attorney fee award in the amount of $650,755 is reasonable.

Expert Costs McComas is also entitled to reasonable expert fees as provided in the Asano Contract. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050 (affirming trial court's award of expert witness fees to prevailing party under commercial lease provision providing the prevailing party was entitled to reasonable expenses including attorney fees, court costs, witness and expert fees).) The Asano Contract expressly provides, 'the prevailing party shall be entitled to an award of costs, attorney's fees and expert witness fees,...' On review of the moving declaration, sufficient information is provided substantiating the expert fees sought. (ROA 272 – Schwerdtfeger Decl., at ¶¶ 22-26.) Uptown also did not take issue with the amount sought nor its basis. McComas also sufficiently explained how the expert fees were not incurred on the Transcript Project and that none are separately allocated exclusively to the Sydney Place dispute. (ROA 293 – Supp. Schwerdtfeger Decl., at ¶¶ 16-17, 22.) For these reasons, the motion is GRANTED IN PART.

Concluding Orders Uptown Investments LLC is ordered to pay McComas Construction, Inc. attorney fees in the amount of $650,755.

Uptown Investments LLC is ordered to pay McComas Construction, Inc. expert fees in the amount of $74,585.25.

McComas Construction, Inc. is ordered to prepare and submit an amended judgment including these amounts in accordance with any rules and laws.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling on the matter. McComas Construction, Inc. is ordered to serve written notice of the Court's final ruling on all appearing parties by July 8, 2024.

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