Judge Cynthia A Freeland, Case 37-2019-00011330-CU-OR-NC 2023-09-15 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2019-00011330-CU-OR-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2019-00011330-CU-OR-NC F M & SONS INCORPORATED VS RYAN COMPANIES US INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/11/2023

Defendant/Cross-Complainant Ryan Companies US, Inc. ('Defendant' or 'Ryan')'s motion to amend judgment to add additional attorney's fees incurred after November 10, 2022 is denied.

Factual Background and Procedural History On September 26, 2022, the court, having presided over a 10-day bench trial, issued its Final Statement of Decision After Bench Trial (the 'Statement of Decision') under which it found, inter alia, that: (1) Plaintiff/Cross-Defendant FM & Sons, Incorporated ('Plaintiff' or 'FM') shall recover nothing from Ryan by way of Plaintiff's Second Amended Complaint, and (2) Ryan shall recover $642,071.92 from FM, less retention monies ($92,752.62) kept by Ryan, for a total of $549,319.30, plus prejudgment interest, in connection with Ryan Third Amended Cross-Complaint. See ROA No. 429.

On November 10, 2022, Ryan filed: (1) its initial Memorandum of Costs under which it sought costs in the total amount of $556,083.68 (see ROA No. 435), and (2) its motion for prevailing party attorney's fees under which it sought $483,596.88 in attorney's fees under California Code of Civil Procedure ('CCP') § 1032, California Civil Code ('CC') §§ 8814, 8818, and California Business and Professions Code ('BPC) § 7108.5 (see ROA No. 434). On November 23, 2022, the court entered a Judgment consistent with its Statement of Decision. See ROA No. 439; Goodman Decl., Ex. A. That same day, the court entered a minute order setting a February 24, 2023 hearing to address: (1) the propriety of prejudgment interest in this case, and (2) if proper, the date from which prejudgment interest should be calculated. The court also advanced the hearing on Ryan's motion for prevailing party attorney's fees to February 24, 2023 to be heard alongside Ryan's motion for prejudgment interest. See ROA No. 441; Goodman Decl., Ex. B. On November 28, 2022, FM filed a motion to strike or tax costs. See ROA No.

452. The next day, Cross-Defendant The Gray Insurance Company ('Gray') filed its own motion to strike or tax costs which included a joinder to FM's motion to strike or tax costs. See ROA No. 453. On December 29, 2022, by stipulation of the parties, the court rescheduled the hearing dates for FM's and Gray's motions to strike or tax costs to February 24, 2023 to be heard alongside Ryan's motions for prevailing party attorney's fees and for prejudgment interest. See ROA No. 462. That same day, Ryan re-filed its Memorandum of Costs. See ROA No. 461. On January 18, 2023, FM and Gray each filed motions to strike or tax costs outlined in Ryan's December 29, 2022 Memorandum of Costs. See ROA Nos. 463, 465. On January 27, 2023, Ryan filed its motion for prejudgment interest to be added to the Judgment. See ROA No. 469. On February 9, 2023, Ryan filed separate oppositions to FM's and Gray's motions to strike or tax costs. See ROA Nos. 473, 475. That same day, FM and Gray each filed oppositions to Ryan's: (1) motion for prejudgment interest, and (2) motion for prevailing party attorney's fees. See ROA Nos. 477-480. On February 16, 2023, Ryan filed replies to FM's and Gray's opposition to Calendar No.: Event ID: TENTATIVE RULINGS

2971573 CASE NUMBER: CASE TITLE: F M & SONS INCORPORATED VS RYAN COMPANIES US INC 37-2019-00011330-CU-OR-NC Ryan's motions for prejudgment interest and for prevailing party attorney's fees. See ROA Nos. 482-489.

On February 24, 2023, the court held a hearing on: (1) Ryan's motion for prevailing party attorney's fees; (2) Ryan's motion for prejudgment interest; (3) Gray's motion to strike or tax costs; and (4) FM's motion to strike or tax costs. That same day, the court: (1) granted Ryan's motion for prejudgment interest and awarded Ryan $22,875.76 in prejudgment interest from September 26, 2022 to February 24, 2023 (see ROA No. 501), and (2) granted Ryan's motion for prevailing party attorney's fees in part and awarded Ryan $314,337.97 in attorney's fees against FM only (see ROA No. 506; Goodman Decl., Ex. C). On March 6, 2023, the court, having taken the matters under submission, granted FM's and Gray's motions to strike or tax costs in part. See ROA Nos. 507, 509.

On March 15, 2023, Ryan's counsel sent FM's and Gray's respective counsels a Proposed Amended Judgment as well as a declaration from Mr. Goodman regarding the amount of attorney's fees and prejudgment interest in the Proposed Amended Judgment. See Goodman Decl., Exs. D-E. The next day, FM filed its objections to Ryan's Proposed Amended Judgment. See ROA No. 511; Goodman Decl., Ex. F. On March 22, 2023, Gray filed its objections to Ryan's Proposed Amended Judgment. See ROA No.

512; Goodman Decl., Ex. G. On April 6, 2023, the court issued an ex parte minute order addressing the Proposed Amended Judgment in light of FM's and Gray's objections. See ROA No. 513; Goodman Decl., Ex. H. In relevant part, the court revised the Proposed Amended Judgment to reflect that: (1) Ryan, by way of its Third Amended Cross-Complaint, shall recover $549,319.30 from FM and Gray, jointly and severally, plus prejudgment interest from September 26, 2022 to November 23, 2022; (2) Ryan is awarded attorney's fees in the amount of $314,33.93 against FM only; and (3) Ryan is awarded post-judgment interest from November 23, 2022 at the annual rate of 10% from the date judgment is entered.

Ryan now seeks to amend the Judgment to recover an additional $24,878.08 in attorney's fees it incurred after it filed its motion for prevailing party attorney's fees on November 10, 2022.

Legal Analysis The court finds that Ryan has failed to demonstrate entitlement to additional attorney's fees in this matter. The court must respectfully disagree with Ryan that it has provided authority for such a request.

Ryan indicates that the motion is predicated upon CCP §§ 1032 and 1033.5, CC §§ 8814 and 8818, and BPC § 7108.5 – the same authority upon which it based its motion for prevailing party attorney's fees.

Indeed, Ryan contends in its reply that '[f]or all the same reasons this Court granted Ryan's prior motion for prevailing party attorney fees, this Court should grant this Motion as well.' See Ryan's Reply, p. 1, ll.

27-28. While Ryan is correct that the foregoing authorities were sufficient to grant its initial fee request, it cites no authority for the proposition that it can rely on the same provisions to support an award of additional post-judgment attorney's fees.

Seeming to acknowledge the foregoing, Ryan asks that the court grant the motion 'in equity, the promotion of justice, and in the interest of fundamental fairness.' See Ryan's Motion, p. 9, l. 6. The court declines to do so. Ryan contends that additional fees are warranted in this instance owing to the significant amount of unanticipated work counsel was required to undertake after Ryan filed its motion for prevailing party attorney's fees on November 10, 2022. This argument is unavailing for several reasons. First, and importantly, Ryan provides no explanation for why the work it performed after filing its initial fee request (aside from the briefing associated with the fee motion itself) was unanticipated. The work Ryan performed after November 10, 2022 consisted of: (1) filing oppositions to FM's and Gray's motions to strike or tax costs; (2) filing a motion for prejudgment interest and attendant reply briefs; (3) re-filing its Memorandum of Costs; (4) various court appearances; and (5) addressing FM's and Gray's objections to Ryan's Proposed Amended Judgment. However, the court fails to see how the foregoing work was unanticipated, particularly in a case that was zealously litigated from beginning to end. Indeed, motions to strike or tax costs are commonly litigated following the filing of a Memorandum of Costs.

Moreover, Ryan was on notice that prejudgment interest was possible in this case as early as September 26, 2022 when the court issued its Statement of Decision which indicated that Ryan was Calendar No.: Event ID: TENTATIVE RULINGS

2971573 CASE NUMBER: CASE TITLE: F M & SONS INCORPORATED VS RYAN COMPANIES US INC 37-2019-00011330-CU-OR-NC entitled to pre- and post-judgment interest. The Statement of Decision also directed Ryan to submit a proposed Judgment, and subsequent objections to proposed judgments are common following bench trials.

Second, and as FM notes in its opposition, while Ryan filed its motion for prevailing party attorney's fees on November 10, 2022, it did not file its reply brief until February 16, 2023, and the hearing was not until February 24, 2023. All of the 'additional' work Ryan now claims occurred during the briefing period on its initial fee motion. Ryan provides no explanation for why it could not, at a minimum, have included its additional fee request as part of its reply brief, other than to say that such a request would have been procedurally improper and, in any event, FM and Gray would have opposed it. The court finds Ryan's contention unavailing.

Conclusion In light of the foregoing, the court denies Defendant's motion to amend judgment to add additional attorney's fees incurred after November 10, 2022.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

2971573