Judge Daniel M. Crowley, Case Number: 23SMUD00354, Date: 2023-09-05 Tentative Ruling

Defendant Robert Yager’s unopposed motion for attorneys’ fees against Plaintiff Blackburn Holdings, LLC is granted in the reduced total amount of $83,940.00.

Defendant Robert’s Yager’s unopposed request for recoverable costs is granted in the total amount of $1,089.28.

Defendant Robert Yager (“Yager”) (“Defendant”) moves unopposed for an order awarding him attorneys’ fees and costs against Plaintiff Blackburn Holdings, LLC (“Blackburn”) (“Plaintiff”). (Notice of Motion, pg. 2.) Defendant requests fees in the amount of $86,940.00, reflecting 144.90 hours of attorney time spent on the matter at $600 per hour, and $1,089.28 in recoverable costs, for a total amount of fees and costs of $88,029.28. (Notice of Motion, pg. 2; C.C.P. §§1032, 1033.5; Civ. Code §1717.)

On February 27, 2023, Plaintiff filed its initial Complaint for unlawful detainer against Yager and Jeffrey Weiss (“Weiss”) (collectively, “Defendants”). On March 20, 2023, Plaintiff filed a first amended complaint (“FAC”). On May 10, 2023, Plaintiff filed its second amended complaint (“SAC”). On July 18, 2023, this Court sustained Yager’s demurrer to the SAC without leave to amend. (7/18/23 Minute Order.) On July 31, 2023, this Court entered a judgment of dismissal, stating Yager shall recover attorneys’ fees and costs from Plaintiff. (7/31/23 Judgment.)

On August 3, 2023, Yager filed the instant motion for attorneys’ fees and a memorandum of costs. As of the date of this hearing Plaintiff has not filed an opposition.

A party may not recover attorneys’ fees unless allowed by contract or statute. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464; C.C.P. §1021.)

“In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees.” (Hom, 67 Cal.App.5th at pg. 464; see also C.C.P §1021.) When the parties enter into a contract that “specifically provides that attorney’s fees and costs [incurred to enforce the contract are recoverable] . . . then the party who is determined to be the prevailing party on the contract . . . shall be entitled to reasonable attorneys’ fees in addition to other costs.” (Civ. Code §1717(a).) The phrase “‘shall be entitled’ reflect[s] a legislative intent that a party prevailing on a contract receive attorney fees as a matter of right (and that the trial court is therefore obligated to award attorney fees) whenever the statutory conditions have been satisfied.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 872.)

C.C.P. §1032(4) provides, in part: “‘Prevailing party’ includes . . . a defendant in whose favor a dismissal is entered . . . . When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not . . ..” (C.C.P. §1032(4).)

Here, Yager is entitled to recover attorneys’ fees and costs pursuant to the attorneys’ fees provision in his lease with Plaintiff because he obtained a judgment of dismissal in his favor on the unlawful detainer claim. (Decl. of Riley ¶3, Exh. 1 at ¶23.) As such, Yager is the prevailing party in this case per C.C.P. §1032(4). Accordingly, Yager’s motion for attorneys’ fees is proper.

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by Yager’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, emphasis added.) “The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.)

Yager’s Counsel declares Plaintiff vigorously pursued the litigation which required a devotion of large stretches of time in a compressed time frame and required effort and persistence for Yager to finally prevail. (Decl. of Riley ¶15.) Yager’s Counsel declares Plaintiff’s vigorous litigation of the UD claim was based on Plaintiff’s position that the UD notices were “substantially” compliant and imparted the necessary notice required for forfeiture of Yager’s lease, which required counsel to conduct detailed legal research to defeat the position. (Decl. of Riley ¶15.) Yager’s Counsel declares his hourly rate is $600.00 per hour for this matter, and his associate, Rena E. Kreitenberg’s hourly rate is $600.00 per hour for this matter. (Decl. of Riley ¶¶19-20.) Yager’s Counsel attaches the Laffey Fee Matrix in support of his argument that the hourly rates requested are reasonable. (Decl. of Riley ¶¶23-24.) Based on the Court’s experience, Yager’s Counsel’s hourly rate of $600.00 per hour is reasonable in their community of practice and specialized area of law.

The verified time entries of the attorneys are entitled to a presumption of credibility, which extends to an attorney’s professional judgment as to whether time spent was reasonably necessary to the litigation. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [“We think the verified time statements of the attorney as officers of the court are entitled to credence in the absence of a clear indication the records are erroneous.”].) “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699.)

Here, the declaration by counsel of the time incurred on the instant case demonstrates the reasonableness of billed hours, which totals 139.90 hours, with Dennis Riley’s billed hours totaling 37.5 hours, and Rena E. Kreitenberg’s billed hours totaling 102.4 hours. (Decl. of Riley ¶¶19-20, Exhs. 2-3.) Yager’s Counsel requests 5.0 hours in anticipated fees for reviewing any opposition, preparing a reply, and appearing at the hearing. In light of the fact that the instant motion is unopposed, such fees are not reasonable and are denied. Accordingly, Yager’s Counsel’s billed hours for 139.90 are reasonable.

CRC, Rule 3.1700(b)(1) provides “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (CRC, Rule 3.1700(b)(1).)

“After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.” (CRC, Rule 3.1700(b)(4).)

Yager filed a memorandum of costs on August 3, 2023. Pursuant to CRC, Rule 3.1700(b)(4), the time to file a motion to strike or tax costs has passed; therefore, the clerk must enter the costs on the judgment.

Yager’s Counsel’s rate of $600.00 per hour for 139.90 hours results in a final lodestar of $83,940.00.

Yager’s unopposed motion for attorneys’ fees is granted in the reduced amount of $83,940.00.

Yager’s unopposed request for costs is granted in the total amount of $1,089.28.

Accordingly, Yager’s motion is granted in the reduced total amount of $85,029.28.

Hon. Daniel M. Crowley

Judge of the Superior Court