Judge: Craig Griffin, Case: Duffy v. Winthrop et al, Date: 2022-09-12 Tentative Ruling
Before the Court is the Motion for Attorneys’ Fees filed by defendants Reid A. Winthrop and Winthrop Law Group (“Defendants”) on 5/5/22.
As a preliminary matter, an unauthorized sur-reply was filed by John Duffy and Laura Duffy (“Plaintiffs”) on 8/4/22: Defendants responded with a request to strike the untimely sur-reply. The Court instead continued the hearing to provide them with an opportunity to respond thereto - which they have now done. The Motion to Strike is therefore DENIED.
On the merits, Defendants have demonstrated a right to recover the majority of the fees claimed. Although Plaintiffs have made many arguments in their Opposition papers, none compel a contrary conclusion.
The demands for arbitration are misplaced. A client's right to MFAA arbitration is waived by filing any pleading seeking affirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct. (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1362.) Here, the consolidated cases both included malpractice claims. And the MFAA does not apply to this Motion, as what is at issue here is not a dispute over fees charged to a client, but a claim for prevailing party fees based on the underlying contracts. Although those contracts provided for arbitration of any disputes between the parties upon written request, Plaintiffs did not elect to arbitrate: they instead filed these suits and pursued relief in court for more than 5 years. A party who does not demand arbitration within a reasonable time is considered to have waived the right to arbitrate. (Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1099.) Plaintiffs thus waived that right here. And although the fee provisions in the underlying contracts would permit an arbitrator to award fees and costs as part of an arbitration proceeding, those provisions plainly do not require arbitration of a fee claim made after the other side has litigated the dispute to conclusion.
Nor is the fee claim precluded because the case was involuntarily dismissed. (See Civil Code §1717(b)(1) [court to determine who is the party prevailing on the contract “for purposes of this section, whether or not the suit proceeds to final judgment.”] and §1717(b)(2) [no prevailing party where dismissal voluntary].) That some of the claims sounded in tort also does not preclude the requested relief, in light of the broad scope of the fee provisions at issue. (See Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1070-1074.) And the claims here were clearly so entwined that apportionment would not be warranted in any event.
As for the specific sums claimed, the fee setting inquiry ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)
Here, the hourly rates presented for the services rendered appear reasonable in the context of this litigation. The majority of the hours claimed also appear reasonable in context. However, it appears that 111 attorney hours were expended on the summary judgment motions. (Winthrop Decl. ¶¶ 20-21, and Ex. 6.) Having considered both the time entries for those services and the motions themselves, the Court finds that the sum which is claimed for those services should be reduced by 12 hours for the motions and 10 hours for the replies, so that $64,125 of the $74,589.35 sum claimed should be awarded. The Court also concludes, from a review of the time entries for The Vanderpool Firm (“TVF”), that because multiple people billed time to the file and there were multiple charges for internal meetings and communications, some duplication of effort occurred. The Court thus concludes that a 5% reduction in the sum claimed is warranted, so that $66,685.25 of the $70,195 sum claimed for work through April 2022 should be awarded. In addition, the Court finds that an additional $5,580 for fees incurred on this motion should be recovered, along with the $60 filing fee, for a total of $5,640 for this motion. The total fee award is therefore $64,125 for Mr. Harmeling’s services, and $72,325.25 for TVF’s services, for a grand total of $136,450.25.
Finally, arguments as to the merits of the costs claimed under C.C.P. § 1032 are untimely. Defendants are the prevailing party for a cost claim under C.C.P. § 1032. (See Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890; Santisas v. Goodin (1998) 17 C4th 599, 606.) They presented a timely Memorandum of Costs in accordance with C.R.C. 3.1700(a)(1). Any motion to strike or tax those costs was to be filed and served within 15 days thereafter. (C.R.C. 3.1700(b)(1).) Failure to do so constitutes a waiver of the right to object. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) As Plaintiffs did not timely move to strike or tax those costs, all objections to the MOC, including assertions concerning the application of the C.C.P. § 998 offers, have been waived.
Defense counsel is to give notice of this ruling.