Judge: Craig Griffin, Case: "His Passion, Inc. vs. Hiten Adhvaryu", Date: 2022-10-10 Tentative Ruling
Plaintiff His Passion, Inc.’s Motion For An Order Determining It Was Prevailing Party and An Award Of Attorney’s Fees On Appeal is GRANTED.
Prevailing Party
The Court of Appeal affirmed the trial court’s postjudgment order and amended judgment. The Court of Appeal ordered that His Passion, Inc. recover costs on appeal. Defendants concede in their Opposition that there is no dispute that plaintiff is entitled to attorneys fees as the prevailing party. Accordingly, the Court finds plaintiff to be the prevailing party for purposes of the appeal.
Attorneys Fees
Plaintiff seeks an award of $34,600 in attorneys fees incurred in connection with the appeal.
A party seeking an award of fees has the burden of establishing entitlement to an award, and of documenting the appropriate hours spent, and the hourly rates. 569 E. County Blvd. LLC v Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432; Lunada Biomedical v Nunez (2014) 230 Cal.App.4th 459, 486. In challenging an attorney fee request, the burden falls upon the challenging party to point to specific items challenged, with arguments and citation to evidence. General claims that fees are excessive insufficient. Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564. A party cannot litigate tenaciously and then be heard to complain about the time incurred. Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114.
Counsel should submit billing time records “in a manner that will enable a reviewing court to identify distinct claims.” Guillory v. Hill (2019) 36 Cal. App. 5th 802, 815. Block-billed time entries are generally insufficient to allow for detailed judicial review and approval of attorney’s fees. Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1328-1329. “A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended. . . . Reasonable compensation does not include compensation for . . . inefficient or duplicative efforts . . . .’” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.)
Plaintiff has submitted a detailed itemization of the attorney billing upon which the motion is based. The motion is further supported by declarations of attorneys Charles Smith and Philip Hummel. Accordingly, the plaintiff has met their burden to both establish entitlement to the award and to document the basis for the attorney’s fees sought.
Defendants contend that 10 entries which total $3,075 (8.7 hours) were related to judgment enforcement between 10/23/20 and 3/16/22. Defendants contend that that the judgment was satisfied as of April 15, 2022 and that any fees pertaining to the judgment were required to be part of a motion filed “before the judgment is satisfied in full.” (CCP §685.080) Since the instant motion was filed on 6/21/22, Defendants claim any billing to enforce the judgment is barred.
Plaintiff contends that 10 entries were “part of the work on appeal and included time devoted to whether the portion of the judgment based on attorney’s fees and costs (the subject of [the] Appeal) could be enforced during the pendency of the appeal.” (Opp. at 2:14-16.)
The entry on 10/23/20 for 2.2 hrs. ($770) is for “Receipt and review of e-mails between PLH and opposing appellate attorney Timothy Kowal re satisfaction of judgment; E-mails with both re same; Legal research and analysis re Quiles v. Parent (2017) 10 Cal.App.5th 130.” The Quiles case deals with a stay of execution of a judgment for costs is appealed. The Quiles case addresses whether a costs award can be enforced while an appeal is pending, whether an undertaking is required and whether there is an automatic stay. In fact, Quiles holds that there was no requirement that the defendants post an undertaking where the appeal was from an award of costs. (Quiles v. Parent (2017) 10 Cal.App.5th 130, citing Ziello v. Superior Court (1999) 75 Cal.App.4th 651, 655 - “Since the appeal is limited to the order awarding costs, including attorney's fees, it is within the exclusion of the final provision of section 917.1, subdivision (d).”) This entry therefore relates to the effect of the appeal of the fees award on the judgment. Accordingly, this charge is related to the appeal and reasonable.
The other entry on 10/23/20 for .6 hrs. specifically says it is a conference among counsel regarding the appeal. Defendants claim that this must be related to judgment enforcement efforts because it took place on the same date as the review of the Quiles case. This is speculation and the charge is reasonable.
On 11/4/20, 11/20/20, 11/24/20 and 11/25/20, there are four entries totaling 3.6 hours for $1,260 which reference the judgment but the Reply characterizes these entries as being work done to determine whether the judgment “could be enforced during the pendency of the appeal.” (Reply at 2:16-17). In light of the Quiles v. Parent case, these entries appear related to the appeal and reasonable.
On Dec. 15, 2020, there is an entry for .5 hours stating, “Telephone conference with PLH re appeal and collection status; Emails with clients re same.” This specifically references the appeal and to the extent it is related to collection, it seems to be assessing the impact of the appeal of the attorney’s fee award on collection. This is reasonable.
A second entry on Dec. 15, 2020, for a .3 telephone call makes no reference to a judgment but the Opposition asserts that it must be related to collection. This is speculation. The charge is reasonable.
The entries on March 5 and 16, 2022 refer to making a motion for appellate attorney’s fees. These fees are reasonable.
To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. V. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.)
Here, defendants point to five dates in the opposition on which two attorneys did work that defendants believe was duplicative. First, the entries do not appear duplicative. Second, it is not uncommon for attorneys to consult with their colleagues on issues in order to ensure that the decision which best helps the client is made. Third, dividing labor where one attorney is talking with the client and another attorney talking with counsel necessarily requires the two attorneys to talk with each other. Fourth, it is not uncommon or unreasonable for a client to speak with both of his/her attorneys in separate calls.
In the “Summary of the Opposition,” defendants state that hourly rates of $450 and $400 for attorneys Hummel and Pentis were excessive because they only have minimal qualifications. (Opp at 2:27-3:2) The Hummel declaration shows that the two lawyers have 36 and 38 years experience, respectively, focusing on business litigation.
Factors to be considered in determining the reasonableness of attorney fees include, “the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded (citation); the intricacies and importance of the litigation, the labor and the necessity for skilled legal training and ability in trying the cause, and the time consumed.” (Clejan v. Reisman (1970) 5 Cal.App.3d 224, 241.)
Given the issues in the appeal, the experience of the attorneys, the successful result achieved and the strategy employed, the rates are reasonable. “Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.) The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Ingram v. Oroudjian (9th Cir.2011) 647 F.3d 925, 928.)”(Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)
Also mentioned in passing in the Opposition is Defendant’s assertion that “The Court should not award appellate fees for Mr. Hummel’s or Mr. Prentis’s services.” (Opp. at 14:5.) Defendant’s assert generally “Almost the entirety of Mr. Hummel’s fees of $5,040 are for attorney conferences.” (Opp. at 11:1) However, the specific contested entries are not identified and Defendants fail to meet their burden to identify the specific entries. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.)
Further, based on a review of the records, Hummel and Pentis’s billing was reasonable. The Hummel firm represented His Passion initially and brought in the Bohm Wildish firm during the appeal process. The principals at His Passion were long time clients of Hummel. Pentis worked at the Hummel firm. Hummel remained involved in the appeal and was regularly in contact with the clients. Pentis billed for one client meeting, including preparation therefor. All of this is reasonable and not atypical. With an appeal pending, the clients would be expected to want to be in contact and regularly updated by the firm they initially hired to represent them. It is also not surprising that the clients would be in contact with the firm brought on to work on the appeal.
The Court finds the attorneys’ fees document in the moving papers and declarations of attorneys Charles Smith and Philip Hummel to be reasonable.
The Motion is GRANTED, and Plaintiff is awarded $34,600.00 in attorney fees.
The Court orders the clerk to give notice.