Judge: Cynthia A Freeland, Case: 37-2022-00017670-CU-NP-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2022-00017670-CU-NP-NC GOGAL VS DENG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 01/05/2024

Plaintiffs/Cross-Defendants Michael Gogal and Hildy Baumgartner-Gogal (collectively, the 'Gogals')'s motion for post-trial attorneys' fees is granted in part and denied in part.

Factual Background and Procedural History This action involves a landlord-tenant dispute. On May 6, 2022, Plaintiffs initiated this lawsuit by filing a Complaint against Defendants/Cross-Complainants Xinhui Deng aka Sam Deng, Jianhua Wu aka Jan Wu, and the Xinhui Deng and Jianhua Wu Living Trust aka Deng Xinhui and Wu Jianhua Living Trust (collectively, 'Defendants'). See ROA No. 1. The operative First Amended Complaint (the 'FAC') filed on December 21, 2022 alleges the following causes of action against Defendants: (1) breach of written contract; (2) retaliatory eviction; (3) harassment; (4) breach of the covenant of good faith and fair dealing; (5) breach of the covenant of quiet enjoyment of the premises; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) negligence; (9) constructive eviction; (10) declaratory relief – deposit of monies into court pending disposition; and (11) violations of security deposit law and bad faith. See ROA No. 100. Defendants filed a Cross-Complaint against the Gogals on June 8, 2022. See ROA No. 13. The operative Second Amended Cross-Complaint (the 'SACC') filed on March 13, 2023 alleges causes of action against the Gogals for: (1) breach of contract; (2) failure to pay rent; and (3) breach of the covenant of good faith and fair dealing. See ROA No. 143.

The matter came on for trial on December 4, 2023. Trial thereafter continued on December 5 and 6, 2023, with closing arguments bring presented on December 7, 2023. At the conclusion of closing arguments, the court took the matter under submission. On December 18, 2023, the court issued its Decision After Bench Trial (the 'Decision'). See ROA No. 323. In relevant part, the court in its Decision: (1) found in Plaintiffs' favor on Plaintiffs' first, second, third, fifth, ninth, tenth, and eleventh causes of action; (2) determined that Defendants shall take nothing by way of their SACC; and (3) concluded that Plaintiffs are the prevailing party for purposes of pursuing costs as allowed by law. On February 23, 2024, the court entered a Judgment in Plaintiffs' favor in the amount of $23,890.38 plus the $10,231.15 on deposit with the court, while reserving the issue of attorneys' fees and costs to be adjudicated by way of Defendants' motion to strike costs and Plaintiffs' motion for attorney's fees (the 'Judgment'). See ROA No. 343. Plaintiffs now seek an award of attorneys' fees in the total amount of $152,440.00.

Legal Analysis California follows the 'American rule,' under which 'each party to a lawsuit must ordinarily pay his own attorney fees.' Trope v. Katz (1995) 11 Cal. 4th 274, 278 (citing Gray v. Don Miller & Associates, Inc.

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3072206 CASE NUMBER: CASE TITLE:  GOGAL VS DENG [IMAGED]  37-2022-00017670-CU-NP-NC (1984) 35 Cal. 3d 498, 504; United Services Auto. Assn. v. Dalrymple (1991) 232 Cal. App. 3d 182, 187).

The Legislature codified the American rule when it enacted California Code of Civil Procedure ('CCP') § 1021, which provides that '[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.' See Cal. Code Civ. P. § 1021; Cargill, Inc. v. Souza (2011) 201 Cal. App. 4th 962, 966. CCP § 1033.5(a)(10) likewise allows attorneys' fees as costs under CCP § 1032 when contractually, statutorily, or legally authorized. See Cal. Code Civ. P. § 1033.5(a)(10).

In this case, the court, as it found in its Decision and Judgment, concludes that Plaintiffs are the prevailing party in this matter as Plaintiffs recovered a greater relief in this matter and successfully defended against all of the claims set forth in Defendants' SACC. Furthermore, there are two bases for the recovery of attorneys' fees in this matter: (1) ¶ 40 of the parties' Residential Lease or Month-To-Month Rental Agreement (the 'Lease'), and (2) California Civil Code ('CC') § 1942.5(i) (because Plaintiffs prevailed on their retaliatory eviction claim). Toward that end, Defendants are correct that, under ¶ 40 of the Lease, '[i]n any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000 . . . .' See Lease, ¶ 40. However, CC § 1942.5(i) provides that '[i]n any action brought for damages for retaliatory eviction, the court shall award reasonable attorney's fees to the prevailing party if ether party requests attorney's fees upon the initiation of the action.' See Cal. Civ.

Code § 1942.5(i). CC § 1942.5(i), unlike the Lease, does not cap the potential recovery of attorneys' fees at $1,000.00. That being said, California law is clear that '[w]hen attorney fees are specifically provided for by statute, 'the question is whether the statutory attorney fees provision expressly, or the policy of the statute implicitly, overrides the freedom to contract for a different outcome.'' Soni v. Cartograph, Inc. (2023) 90 Cal. App. 5th 1, 11 (quoting County of Sacramento v. Sandison (2009) 174 Cal. App. 4th 646, 651). The California Supreme Court has explained that 'Section 1942.5 is a remedial statute aimed at protecting tenants from certain types of abuses. It is to be 'liberally construed to effect its objectives and to suppress, not encourage, the mischief at which it was directed. (Citation.)'' Barela v. Sup. Ct. (1981) 30 Cal. 3d 244, 251 (quoting Kriz v. Taylor (1979) 92 Cal. App. 3d 302, 311). Given CC § 1942.5's remedial intent at protecting tenants and curbing landlord abuses, the court must conclude that the attorneys' fees provision of CC § 1942.5(i) overrides and/or supersedes the $1,000.00 limit the parties contracted to in the Lease. Put differently, the court respectfully must disagree with Defendants that the Gogals' attorneys' fees should be capped at $1,000.00 in this matter. This is particularly true given that the court in its Decision found that Defendants' conduct was retaliatory and sufficiently malicious to warrant the imposition of actual and punitive damages.

The court nevertheless must determine the amount of reasonable attorneys' fees to which the Gogals are entitled. In this case, the evidence shows that Mr. Gogal, prior to filing suit, consulted with Darwin Bustarde, Esq. of Branfman Mayfield Bustarde Reichenthal LLP. Mr. Bustarde provided legal advice and assisted in preparing Plaintiffs' initial Complaint. He also helped with post-trial costs and attorneys' fees issues. See Gogal Decl., ¶ 2. However, the Gogals represented themselves in this action. On August 9, 2022, the Gogals filed separate substitutions of attorney substituting Mr. Gogal, who is a licensed attorney, into the case as their counsel of record. See ROA Nos. 35-36. Mrs. Gogal likewise asserts in her declaration that she signed a written retainer agreement with the Gogal Law Office on August 8, 2022 and that her husband, Mr. Gogal, has represented her throughout this litigation. See Baumgartner-Gogal Decl., ¶ 2. By way of the pending motion, the Gogals seek to recover the attorneys' fees charged by Mr. Bustarde and Mr. Gogal. The court addresses each request in turn.

Mr. Bustarde's Attorneys' Fees '[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.' See Ketchum v. Moses (2011) 24 Cal. 4th 1122, 1136.

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3072206 CASE NUMBER: CASE TITLE:  GOGAL VS DENG [IMAGED]  37-2022-00017670-CU-NP-NC In determining a reasonable hourly rate, the court must consider the prevailing market rates in the relevant community, which typically means comparable attorneys' rates in the forum district. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009. The court should consider the requesting attorney's experience, skill, and reputation, and may also rely upon its own knowledge and familiarity with the legal market. Ibid. In addition, the court can review attorney affidavits regarding prevailing fees in the community and rate determinations in other cases. Ibid. The difficulty or complexity of the litigation is also a relevant factor. See Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 700.

Defendants do not take issue with Mr. Bustarde's hourly rate. Defendants merely argue, without support, that Mr. Bustarde did not represent Plaintiffs in this matter. The Gogals' evidence contradicts this contention. Moreover, the court finds that Mr. Bustarde's experience, skill, and reputation warrants the requested hourly rate. The requested rate is also consistent with the court's understanding of the prevailing market rate for similarly situated attorneys in the San Diego legal community. Moreover, while the court agrees with Defendants that the issues set forth in this action were not overly complex, Mr.

Bustarde's legal services in this matter were significantly narrow in scope and were reasonably necessary to achieving the Gogals' pre-litigation goals. Accordingly, the court approves Mr. Bustarde's hourly rate as requested.

As to the number of hours expended, Defendants, as the objecting party, bear the burden of referring to the specific items challenged, with sufficient arguments and citations to the evidence. See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564. 'General arguments that fees claims are excessive, duplicative, or unrelated do not suffice.' Ibid.

The court also must independently assess the reasonableness of the time spent. Toward that end, verified time statements are entitled to credence absent a clear indication that the records are erroneous. See City of Colton v. Singletary (2012) 206 Cal. App. 4th 751, 785. However, the billing statements merely form the basis for the hours reasonably expended and the court may reduce the number of hours if it concludes that Mr. Bustarde's efforts were unnecessary, duplicative, or excessive in light of the issues fairly presented. See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 440.

In this case, Defendants did not meet their initial burden of identifying specific entries in Mr. Bustarde's invoices that Defendants believe were not reasonably and necessarily incurred. Additionally, the court has carefully reviewed Mr. Bustarde's invoices and finds that the invoices reflect time reasonably expended in representing Mr. Gogal.

Accordingly, the court awards the Gogals $1,780.00 in attorneys' fees associated with Mr. Bustarde's work in this matter.

Mr. Gogal's Attorneys' Fees The Gogals' request for attorneys' fees arising from Mr. Gogal's legal services is denied. Under California law, an attorney who represents himself or herself in an action to enforce a contract containing an attorney fee provision cannot recover his or her own attorney's fees. See Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 93. Indeed, 'an attorney litigating in propria persona cannot be said to 'incur' compensation for his time and his lost business opportunities.' Trope v. Katz (1995) 11 Cal. 4th 274, 280. In Gorman, the plaintiffs, in part, argued that there was an attorney-client relationship between the Gorman firm and Mr. Gorman's wife. Mrs. Gorman also declared that she had entered into written retainer agreements with the Gorman firm and another law firm. The Sixth District Court of Appeal explained: We can certainly imagine cases in which a true attorney-client relationship exists between spouses.

However, in this case, husband and wife sued for and obtained recovery for the defective construction of their residence. There is no indication that Cheng suffered any damages apart from those suffered by her husband. Their interests in this matter appear to be joint and indivisible. There is no claim that Calendar No.: Event ID:  TENTATIVE RULINGS

3072206 CASE NUMBER: CASE TITLE:  GOGAL VS DENG [IMAGED]  37-2022-00017670-CU-NP-NC Gorman spent extra time in this case representing his wife in addition to the time he spent representing himself. There is no claim that each of them owes half his fees. Their community estate is liable for their contracts. (Fam.Code, § 910, subd. (a).) Since Gorman's billable hours appear to be entirely attributable to representing his common interests with Cheng, we conclude that the rule of Trope applies to this situation.

Gorman, 178 Cal. App. 4th at 95.

Such is the case here. As in Gorman, there is no indication that Mrs. Gogal suffered any damages apart from those suffered by Mr. Gogal – indeed, their interests in this matter were joint and indivisible and flow from Defendants' unlawful conduct concerning the Lease. Consequently, the Gogals cannot recover attorneys' fees for the legal services Mr. Gogal provided to support his and Mrs. Gogal's joint interests in this action.

Plaintiffs cite Rickley v. Goodfriend (2012) 207 Cal. App. 4th 1528 for the proposition that a non-attorney spouse in a joint representation between the spouses may recover attorney's fees for their spouse-attorney's legal services so long as there is an attorney-client relationship and the attorney's fees are authorized by statute. The court respectfully disagrees. In Rickley, the appellants (an attorney and her spouse) filed a nuisance action against neighboring homeowners and others stemming from an illegal unpermitted remodel which resulted in construction trash and debris on the hillside of the appellants' property in a landslide-sensitive area. The appellants ultimately obtained a judgment to abate the nuisance (the 'First Judgment'). The appellants, again represented by the attorney spouse, then filed a second action for nuisance and violation of CC&Rs based upon the encroachment of fences and foliage on the appellants' property. The appellants again obtained a judgment (the 'Second Judgment').

The respondents failed to comply with the terms of the Second Judgment, resulting in the appellants filing charging affidavits of contempt. The court ultimately issued a judgment and order of contempt against the respondents. The appellants then filed a motion for attorneys' fees under CCP § 1218. The trial court denied the attorney spouse's request for fees, finding no binding authority for an award of fees in a contempt proceeding to a pro se plaintiff, whether the plaintiff-attorney was the sole plaintiff or also sued with her partner. The appellants appealed. The issue on appeal was whether the general rule that pro se attorneys are not entitled to recover attorneys' fees should apply to contempt proceedings when the attorney represents a co-plaintiff.

The Second District Court of Appeal reversed the lower court's decision, noting that the lower court had failed to consider the existence of an attorney-client relationship between the attorney appellant and her spouse. In relevant part, the Second District noted the following: Despite the language in Gorman, we do not feel that identical damages, nor joint and indivisible interests between the spouse-attorney and the other spouse defeat the attorney-client relationship. Instead, we must determine whether Rickley consulted Roit in her professional capacity and whether their relationship in terms of this lawsuit, was for the purposes of obtaining legal advice. As the record indicates, the trial court did not make a determination about whether an attorney-client relationship existed. The matter must be remanded before the issue of entitlement to fees can be adjudicated.

Rickley, 207 Cal. App. 4th at 1538.

Contrary to Plaintiffs' position, the Rickley court did not create a bright line rule that a pro per attorney litigant representing himself or herself and his or her spouse is entitled to an award of attorneys' fees whenever a statutory fee-shifting provision applies. At most, the Rickley court found, on the then-existing record, that the trial court failed to consider the conditions on which the appellant-attorney agreed to represent her spouse. Simply put, the court does not read Rickley as broadly as Plaintiffs. Moreover, Plaintiffs cite no authority for the proposition that deterring landlord retaliation against tenants vindicates an important public interest to the same extent the Rickley court found an important public interest in ensuring compliance with a court's contempt orders.

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3072206 CASE NUMBER: CASE TITLE:  GOGAL VS DENG [IMAGED]  37-2022-00017670-CU-NP-NC Accordingly, the court denies the Gogals' request for attorneys' fees associated with Mr. Gogal's work in this matter.

Conclusion In light of the foregoing, the court: (1) grants the motion as to Mr. Bustarde's legal services and awards the Gogals $1,780.00 in attorneys' fees, and (2) denies the motion as to Mr. Gogal's legal services.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 29, 2024. 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.

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