Judge: Curtis A. Kin, Case: 20STCV28063, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV28063    Hearing Date: September 29, 2022    Dept: 72

MOTION FOR ATTORNEY FEES

Date:               9/29/22 (8:30 AM)

Case:               Y.M.I. Jeanswear, Inc. v. Ambulnz Health, LLC (20STCV28063)

TENTATIVE RULING:

Plaintiff YMI Jeanswear, Inc.’s Motion for Contractual Attorney Fees is GRANTED IN PART.

Plaintiff YMI Jeanswear, Inc. moves for an award of attorney fees in the amount of $378,204.75. This includes the fees for bonding and enforcing the judgment and preparing the reply to the instant motion, the evidence for which plaintiff provided in the declaration supporting its reply. (Pines Reply Decl. ¶¶ 21-24 & Es. 3-5.)

Defendant Ambulnz Health, LLC does not dispute that plaintiff, who obtained a judgment in its favor at trial, is entitled to an award of reasonable fees under paragraph 31 of the Standard Industrial/Commercial Multi-Tenant Lease between plaintiff and defendant. (Pines Decl. ¶ 2 & Ex. A.)

Defendant argues that plaintiff’s request should be reduced by $87,690.00, because plaintiff omitted from discovery documents pertaining to offers from FEC Studios and Brand Holdings LLC to lease the subject premises. (Wirtschafter Decl. ¶¶ 7, 14.)  For the reasons that follow, the Court reduces plaintiff’s fee request by $12,025.00, which the Court concludes are the fees not reasonably incurred by plaintiff due to the error in failing to produce such discovery initially.

On December 8, 2020, defendant propounded document requests and interrogatories, wherein defendant asked for information pertaining to mitigation of damages and efforts to find a replacement tenant for the subject lease. (Wirtschafter Decl. ¶¶ 10, 12 & Exs. 1, 3.) On February 22, 2021, plaintiff responded to the discovery but did not include information concerning the FEC Studios and Brand Holdings LLC offers. (Wirtschafter Decl. ¶¶ 11, 13, 14 & Exs. 2, 4.) On July 6, 2021, defendant propounded document requests and interrogatories seeking updates to plaintiff’s discovery responses. (Wirtschafter Decl. ¶ 16 & Exs. 5, 6.) On August 20, 2021, plaintiff served responses, which continued to omit information about the FEC Studios and Brand Holdings offers. (Wirtschafter Decl. ¶ 17 & Exs. 7, 8.)

On October 9, 2021, plaintiff confirmed that it had documents in its possession responsive to the foregoing discovery requests that it had not initially turned over.  (Wirtschafter Decl. ¶ 24 & Ex. 11.)  Plaintiff’s failure to earlier disclose and turn over such discovery led to additional litigation, which could have been avoided, and caused a continuance of the trial date.  (See Wirtschafter Decl. ¶¶ 29, 30 & Exs. 14, 15; Pines Reply Decl. ¶ 14 [supplemental depositions of Colin Smyth and David Vered taken].)

Accordingly, the Court reduces plaintiff’s request by the $12,025.00 in fees it finds were unreasonably incurred by counsel Adam Pines in connection with the delayed production of emails concerning offers from FEC Studios and Brand Holdings LLC, as follows:

·                     On 10/12/21, counsel billed $1,110.00 for reviewing and responding to defense counsel concerning the delayed document production.

·                     On 10/12/21, counsel billed $185.00 for a telephone conference with defense counsel regarding a trial continuance and settlement.

·                     On 10/12/21, counsel billed $1,942.50 to research for and prepare an opposition to defendant’s motion to continue trial.

·                     On 10/13/21, counsel billed $92.50 for reviewing defendant’s ex parte notice and scheduling a hearing.

·                     On 10/13/21, counsel billed $462.50 for telephone conferences with defense counsel regarding settlement and defendant’s request for a trial continuance.

·                     On 10/13/21, counsel billed $185.00 to prepare and send a letter to defense counsel concerning discovery issues and defendant’s request for a trial continuance.

·                     On 10/14/21, counsel billed $2,035.00 to review and prepare an opposition to defendant’s ex parte application to continue trial.

·                     On 10/15/21, counsel billed $1,757.50 to travel to and attend final status conference and defendant’s ex parte application to continue trial. 

·                     On 10/15/21, counsel billed $277.50 to calendar new dates.

·                     On 10/19/21, counsel billed $1,665.00 to draft and circulate supplemental responses to defendant’s discovery.

·                     On 10/20/21, counsel billed $370.00 to prepare and serve supplemental discovery responses.

·                     On 10/20/21, counsel billed $185.00 to prepare correspondence concerning discovery issues to defense counsel.

·                     On 10/21/21, counsel billed $277.50 to prepare correspondence to defense counsel concerning discovery issues.

·                     On 10/23/21, counsel billed $277.50 to review, prepare, and produce documents to defense counsel.

·                     On 10/27/21, counsel billed $185.00 to draft supplemental responses to defendant’s document requests.

·                     On 10/29/21, counsel billed $92.50 to prepare correspondence concerning document production and discovery issues to defense counsel.

·                     On 11/1/21, counsel billed $185.00 to prepare correspondence to defense counsel concerning supplemental discovery responses.

·                     On 11/1/21, counsel billed $185.00 to prepare and serve supplemental responses to defendant’s document requests and privilege log.

·                     On 11/10/21, counsel billed $185.00 to review an additional email from defendant’s officer’s computer and produce the email to opposing counsel.

·                     On 10/28/21, counsel billed $185.00 to prepare and circulate supplemental responses to document requests. 

·                     On 10/28/21, counsel billed $185.00 to prepare correspondence to defense counsel regarding deposition scheduling.

(Pines Reply Decl. ¶ 19 & Ex. 1.)

The fees set forth above would not have been incurred if plaintiff had diligently searched its records and produced all the requested discovery with its February 22, 2021 discovery responses.

The other billing entries defendant seeks to exclude from plaintiff’s request would have been incurred even if plaintiff had timely produced and disclosed the offer emails. For example, on 10/23/21, attorney Robert Handler billed $385.00 for reviewing emails to or from Brand Holdings. On 10/27/21, attorney Adam Pines billed $1,480.00 for review of plaintiff’s owner’s emails and the preparation of a privilege log. Although these tasks should have been completed before February 22, 2021, when plaintiff first responded to discovery, these fees would have been incurred regardless of the delay in production of emails concerning the offers. Similarly, defendant deposed plaintiff’s broker, Senior Vice President, and owner after plaintiff produced the offer emails to defendant, but questions concerning these emails would have been asked regardless of when the depositions occurred. (Pines Reply Dec. ¶¶ 8-14.)

Moreover, even though trial was continued so that defendant could conduct limited discovery concerning the offer emails, the continuance only affected the scheduling—not the length—of  the trial. Thus, plaintiff would have incurred the fees for trial-related expenses regardless of when the trial took place.

Defendant also contends that fees that plaintiff incurred in May 2021 related to a mediation were unreasonable, as defendant was missing information that would have given defendant leverage. However, emails concerning offers from FEC Studios and Brand Holdings were not necessarily helpful to defendant.  The receipt of such offers is arguably viewed as evidence that plaintiffs were actively engaged in efforts to mitigate by re-renting the property.  Further, insofar as defendant contends plaintiffs failed to mitigate by unreasonably turning down such offers, the Court found in its Statement of Decision that plaintiff was within its rights to reject the offers from both these entities. (5/11/22 Statement of Decision at 5-7.) In any event, regardless of what position defendant took concerning these offers at mediation, it was undisputed in this action that defendant owed some amount of unpaid rent. It was therefore reasonable for plaintiff to incur fees for mediation.

Aside from $12,025.00 in fees described above, plaintiff’s fees were reasonable. Plaintiff was forced to address numerous hurdles defendant presented before, during, and after trial so that plaintiff could ultimately obtain a judgment in its favor and enforce said judgment. Ultimately, plaintiff prevailed.

The motion is GRANTED IN PART. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees and costs incurred for the work performed in obtaining and enforcing a judgment in this action is $366,179.75 ($378,204.75 requested by plaintiff - $12,025.00 fees related to delayed document production). Such fees and costs are awarded to plaintiff YMI Jeanswear, Inc. against defendant Ambulnz Health, LLC.