Judge: David A. Rosen, Case: 22GDCV00511, Date: 2023-02-17 Tentative Ruling
Case Number: 22GDCV00511 Hearing Date: February 17, 2023 Dept: E
Hearing Date: 02/17/2023
– 8:30am
Case No: 22GDCV00511
Trial Date: N/A
Case Name: SHIN HO KIM and GENA SOON YOON v. ROBERT YEPREMIAN; DOES 1-10
TENTATIVE RULING ON MOTION FOR ATTORNEY’S FEES
Proof of Service
Timely Filed (CRC Rule 3.1300):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving Party: Defendant, Robert Yepremian
Responding Party: Plaintiffs, Shin Ho Kim and
Gena Soon Yoon
Opposition and Reply submitted.
Moving Papers: Motion
Opposition Papers: Opposition
Reply Papers: Reply
RELIEF
REQUESTED
Defendant requests as follows, “Defendant,
Robert Yepremian, will, and does hereby, move for an order granting Defendant
his reasonable attorney’s fees in the sums set forth in the attached
Declaration of Raymond Hovsepian or as reasonably fixed by the court, and for
an order vacating and setting aside Plaintiff’s voluntary dismissal of this
action. The motion will be, prevailing party; and alternatively, upon the
ground that Defendant was also a “prevailing party” notwithstanding any
dismissal even if this action were construed as a contract action in that the
dismissal was filed only after the court had already announced its intention to
grant defendant’s dispositive motion in this action, i.e., a demurrer without
leave to amend, and said voluntary dismissal was therefore ineffective.”
BACKGROUND
On 08/12/2022, Plaintiffs Shin Ho Kim and Gena
Soon Yoon filed an unlawful detainer action. On 09/20/2022, Plaintiffs filed their
amended complaint. Both the original complaint and the amended complaint filed
on 09/20/2022 used form complaints. In the amended complaint, Plaintiffs allege
that on or about July 17, 2017, Defendant agreed to rent the premises as a
fixed term lease.
Further in the amended
complaint, Plaintiffs demand possession from Defendant because of expiration of
a fixed-term lease. Plaintiffs also checked the box in the amended form
complaint, paragraph 15, that a written agreement between the parties provides
for attorney fees. Paragraph 19 of the amended form complaint states,
“Plaintiff Requests.” Under this section of “Plaintiff Requests,” there are
letters “a” – “i.” Some of these letters “a” – “i” are sentences, some of these
letters are boxes with sentences wherein the boxes are unchecked, and some of
these letters are boxes with sentences wherein the boxes are checked. In
Paragraph 19, Plaintiff requested “a” possession of the premises [this letter
was just a sentence, it did not contain a checked or unchecked box], “b” costs
incurred in this proceeding [this letter was just a sentence, it did not
contain a checked or unchecked box], “d” reasonable attorney fees [a checked
box], “e” forfeiture of the agreement [a checked box], and “g” damages at the
rate stated in item 13 from date July 16, 2022 [a checked box]. Letters “c”,
“f” “h”, and “i” all had requests with unchecked boxes.
A copy of the lease
was attached to the amended complaint as Exhibit 1.
On 11/10/2022, the
Court entered dismissal without prejudice at Plaintiff’s counsel’s request.
ANALYSIS
11/4/2022 Minute Order
As a preliminary matter, both parties argue
about what the tentative ruling stated. The Court notes that the parties’
argument as to this issue is irrelevant. Moving party is correct in that the
Minute Order of 11/4/2022 stated the tentative ruling after oral argument was
that the demurrer without the motion to strike filed by Robert Yepremian on
9/30/2022 was sustained without leave to amend. The Court notes that this was
just a tentative ruling because as the 11/4/2022 Minute Order indicated, the
Court allowed Plaintiff and Defendant to file supplement briefing and that the
matter would be submitted on November 18, 2022. Neither party provided
supplemental briefing because Plaintiff dismissed the action on 11/10/2022.
Opposition argues how
the “original” tentative which was posted on the Court’s website on November 3,
2022 tentatively ruled that the Court was going to overrule the demurrer.
Opposition attaches what appears to be the Court’s tentative ruling that was
published before the hearing date on the Court’s website, which does in fact
state that the tentative ruling, before argument, that Defendant’s demurrer was
overruled.
The Court notes that
both parties are correct; however, what the tentative ruling stated, whether
before argument or after, is irrelevant for purposes of this motion as explained
below.
Attorney’s
Fees
“Except 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.” (CCP §1021.)
Here, Defendant is
moving for attorney fees because the lease allowed for recovery of attorney’s
fees. Defendant refers the Court to Paragraph 22 of the lease which is attached
to the amended complaint. Paragraph 22 states as follows:
(FAC Ex. 1, ¶22.)
Defendant
argues that since Plaintiff dismissed the action, Defendant is the prevailing party,
and it can recover attorney fees under the lease. Defendant argues that Civil
Code 1717(b)(2), which precludes attorney’s fees when a complaint is
voluntarily dismissed, is inapplicable here because that provision precluding
attorney’s fees applies to contract claims, and the instant action for unlawful
detainer is a tort action.
In
Opposition, Plaintiff argues that the instant action is an action based on
contract, that Defendant’s reliance on Drybread v. Chipain Chiropractic
Corp. (2007) 151 Cal.App.4th 1063 is misplaced, and since the action is an
action based on contract, Civil Code 1717(b)(2) applies, and thus attorney’s
fees were precluded when Plaintiff voluntarily dismissed the complaint.
Civil Code
1717
Drybread v. Chipain Chiropractic Corp. explains the recovery of attorney’s fees with respect to when a
plaintiff dismisses a cause of action in an unlawful detainer action in the
context of Civil Code 1717.
In
relevant part, Civil Code 1717 provides:
(a) In any action on a contract, where the contract specifically
provides that attorney’s fees and costs, which are incurred to enforce that
contract, shall be awarded either to one of the parties or to the prevailing
party, then the party who is determined to be the party prevailing on the contract,
whether he or she is the party specified in the contract or not, shall be
entitled to reasonable attorney’s fees in addition to other costs.
Where a contract provides for attorney’s fees, as set forth above,
that provision shall be construed as applying to the entire contract, unless
each party was represented by counsel in the negotiation and execution of the
contract, and the fact of that representation is specified in the contract.
Reasonable attorney’s fees shall be fixed by the court, and shall be
an element of the costs of suit.
Attorney’s fees provided for by this section shall not be subject to
waiver by the parties to any contract which is entered into after the effective
date of this section. Any provision in any such contract which provides for a
waiver of attorney’s fees is void.
(b)(1) The court, upon notice and motion by a party,
shall determine who is the party prevailing on the contract for purposes of
this section, whether or not the suit proceeds to final judgment. Except as
provided in paragraph (2), the party prevailing on the contract shall be the
party who recovered a greater relief in the action on the contract. The court
may also determine that there is no party prevailing on the contract for
purposes of this section.
(b)(2) Where an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing party for
purposes of this section.
(Civil Code §1717(a)-(b)(2).)
“The
limitation of Civil Code section 1717, subdivision (b)(2)—precluding
attorney's fees when a complaint is voluntarily dismissed—applies only to
contract claims.[citing Santisas v. Goodin (1998) 17 Cal.4th 599, 622.] It
does not apply to noncontract claims and thus does not preclude attorney's fees
on noncontract claims where the contractual attorney's fees clause is broad
enough to encompass noncontract claims.” (Drybread
v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1070-1071.)
In Drybread,
the Court of Appeal found the following clause broad enough, “If any action or
other proceeding arising out of this Sublease is commenced by either party to
this sublease concerning the subleased premises, then as between Sublessor and
Sublessee, the prevailing party shall be entitled to receive from the other
party, in addition to any other relief that may be granted, the reasonable
attorneys' fees, costs, and expenses incurred in the action or other proceeding
by the prevailing party.” (Drybread v. Chipain Chiropractic Corp. (2007)
151 Cal.App.4th 1063, 1071-1072.)
The
attorney fee clause in the instant lease states as follows, “In the event any
party hereto shall find it necessary to institute suit or proceeding against
the other party for violation of any of the covenants of this Lease, or the
recovery of any stipulated rentals, or for the recovery of the possession of
said premises, the losing party in such action agrees to pay and be liable to
the prevailing party for the reasonable fees of the attorney of such prevailing
party in such suit or proceeding.” (FAC, Ex. 1, ¶22.)
Here, the
Court finds the instant attorney fees clause in the lease broad enough to
encompass noncontract claims because it is sufficiently similar to the clause
in Drybread.
Contract
vs. Non-Contract
At issue here, just as in Drybread, is
whether this unlawful detainer action was an action on a contract to which
Civil Code section 1717 applies and bars attorney’s fees, or a noncontract
claim in which recovery of fees by the prevailing party is not barred.
Opposition
argues that Defendant’s reliance on Drybread is misplaced because in the
action in Drybread, the Plaintiff sought statutory damages under Civil
Code section 1174(b) on the grounds that defendant’s continued holdover
possession was malicious, whereas the complaint in this action does not.
Opposition argues that Drybread explains that malice pertains to tort
claims, not contract claims. Opposition also tries to distinguish Drybread since
the complaint in Drybread alleged that Defendant threatened to wreak
financial hardship on the plaintiff in retaliation for the recent termination
of their employment relationship. Opposition argues that the instant Amended Complaint
did not allege malice.
Although
Opposition accurately points out that the instant Amended Complaint doesn’t
allege malice, Opposition completely ignorees the main focus of the discussion
in Drybread – “The question is whether this unlawful detainer action was
‘an action on a contract’ (to which Civil Code section 1717 applies and bars
attorney’s fees) or a noncontract claim.” (Drybread v. Chipain Chiropractic
Corp. (2007) 151 Cal.App.4th 1063, 1072.)
In Drybread,
although the Court of Appeal acknowledged that while some unlawful detainer
actions sound in contract, the action in Drybread was a tort-based
unlawful detainer claim. (Drybread v. Chipain Chiropractic Corp. (2007)
151 Cal.App.4th 1063, 1074.)
“Unlawful
detainer actions may be based on (1) breach of the lease during the term of the
lease (arguable suggesting contract claims), or (2) a tenant holding over after
the lease expires (arguably suggesting tort claims for unlawful possession).” (Drybread
v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1073.) “Thus,
Plaintiffs’ unlawful detainer action was based on a claim of unlawful holdover
possession after expiration of the lease. It was not based on a breach of the
lease itself.” (Id at 1076.)
Here, Plaintiff’s
FAC appears to be based on the unlawful holdover possession after expiration of
a fixed term lease and not the breach of the lease during the term of the
lease. Nowhere in Plaintiff’s Amended Complaint does Plaintiff allege breach of
the lease during the term of the lease. Further, Plaintiff demands possession
because of expiration of a fixed term lease in Paragraph 11 of the FAC. Therefore,
Plaintiff’s unlawful detainer claim is a non-contract claim and thus Civil Code
section 1717 doesn’t apply and there is no bar on attorney’s fees.
Thus,
under the provision in the lease, the prevailing party can recover for
attorney’s fees. Further, CCP §1032(a)(4) helps define “prevailing party.”
Under CCP §1032(a)(4):
“Prevailing party” includes the party with a net monetary recovery, a
defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If 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 and, if
allowed, may apportion costs between the parties on the same or adverse sides
pursuant to rules adopted under Section 1034.
(CCP §1032(a)(4), emph. added.)
Here,
under CCP §1032(a)(4), Defendant is the prevailing party because a dismissal
was entered in Defendant’s favor.
Reasonableness
of Attorney’s Fees
Reynolds v. Ford Motor Company states as follows:
A trial court assessing attorney fees using the lodestar adjustment
method “begins with a touchstone or lodestar figure, based on the ‘careful
compilation of the time spent and reasonable hourly compensation of each
attorney ... involved in the presentation of the case.’ ” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1131–1132, 104 Cal.Rptr.2d 377, 17 P.3d 735, quoting in
part Serrano v. Priest (1977) 20 Cal.3d 25, 48, 141 Cal.Rptr.
315, 569 P.2d 1303 (Serrano).) Reasonable hourly compensation is
based on “prevailing hourly rates” in the community, thereby “anchoring the
calculation” to an objective standard. (Ketchum v. Moses, supra,
at p. 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735.) Once the touchstone or lodestar
figure (reasonable hours multiplied by reasonable rates) is calculated as “the
basic fee,” “it may be adjusted by the court [by applying a multiplier] based
on factors including ..., (1) the novelty and difficulty of the questions
involved, (2) the skill displayed in presenting them, (3) the extent to which
the nature of the litigation precluded other employment by the attorneys, (4)
the contingent nature of the fee award [Citation.] The purpose of such
adjustment is to fix a fee at the fair market value for the particular
action. In effect, the court determines, retrospectively, whether the
litigation involved a contingent risk or required extraordinary legal skill
justifying augmentation of the unadorned lodestar in order to approximate the
fair market rate for such services.” (Ibid.)
(Reynolds v. Ford Motor Company (2020) 47 Cal.App.5th 1105,
1112.)
“The
reasonableness of attorney fees is within the discretion of the trial court, to
be determined from a consideration of such factors as the nature of the
litigation, the complexity of the issues, the experience and expertise of
counsel and the amount of time involved. [citation] The court may also
consider whether the amount requested is based upon unnecessary or duplicative
work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443,
448.) “The basis for the trial court's calculation must be the actual
hours counsel has devoted to the case, less those that result from inefficient
or duplicative use of time.” (Horsford v. Board Of Trustees Of
California State University (2005) 132 Cal.App.4th 359, 395.) “The law
is clear, however, that an award of attorney fees may be based on counsel's
declarations, without production of detailed time records.” (Raining
Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) The
Court has the discretion to reduce the amount of fees (or deny recovery
altogether) when the amount of attorney fees is inflated. (Serrano v. Unruh (1982)
32 Cal.3d 621, 635; Meister v. Regents of the Univ. of California (1998)
67 Cal. App. 4th 437, 455).
Here, Defendant argues that the Court is required to
apply a lodestar calculation and then may modify the figure upward or downward
based on various factors, such as success in the case. In Defendant’s motion
itself, Defendant does not state how much in fees Defendant is requesting. In
Defendant’s motion, Defendant refers the Court to Defendant’s counsel’s
declaration.
In Opposition, Opposition states Defendant’s request
is unreasonable, but the only basis under which Plaintiff argues the request is
unreasonable is as follows, “Here, the Court has already previewed its
determination as to the skill employed by Defendant's attorney, i.e., the
Demurrer and subsequent reply were simply unintelligible as stated in the
Tentative Ruling. Nevertheless, almost all of the hours and fees defense
counsel claims pertains to the Demurrer. Thus, Plaintiff submits that no fees
should be awarded given that defense counsel essentially wasted the Court's
time with his unintelligible writing and related tasks.” (Oppo. p. 8.)
As to Defendant’s counsel’s fee request, the
declaration of Hovsepian states in relevant part as follows:
I have been
practicing law since 1995. During that time, I have handled thousands of
unlawful detainer actions, both in representing landlords and tenants, as well
as a myriad of civil actions in real estate and other areas of practice as
well. My regular and customary hourly rate for handling defense of commercial
unlawful detainer actions, and the fee which I am actually charging Defendant
in this action, is $475.00 per hour.
I use a billing
system that I personally oversee. I review each and every entry for accuracy.
The entries reflect the customary and reasonable services that I personally
render to my client in the case herein. A copy of the itemized billing charged
to Defendant is attached hereto and incorporated herein by reference as Exhibit
"G" as though fully set forth hereat.
I am respectfully
requesting 26.6 hours at $475.00 per hour. Attached hereto as Exhibit E is a
true and correct copy of the billing for which fees are sought in the case
herein.
The present motion
has taken 2.5 hours to prepare. I anticipate that if an opposition were filed,
the review of the opposition and the preparation of a reply would require 3.5
additional hours. I anticipate that the appearance at the hearing hereon,
coupled with preparation time, will require no less than an additional 4 hours.
There will be a filing fee of approximately $60.00 for the present motion. The
total of future estimated fees and expenses which are being sought by this
motion is therefore 10 hours x $475.00 per hour= $4,750.00, plus $60.00 filing
fees= $4,810.00 in future estimated fees and expenses.
Therefore, I am
respectfully requesting a total of $18,091.43 which includes $13,281.43 for
attorney's fees and costs previously billed and $4,810.00 for future
anticipated fees and costs.
(Decl. Hovsepian
¶13.)
In Opposition,
Plaintiff argues that Defendant’s request for costs is too late. In particular,
Plaintiff argues, “Defendant's Motion is unclear as to the amount of costs he
seeks. Regardless, Defendant has not filed a memorandum of costs as required by
CRC 1700(a) and it is far too late now given that such memorandum should have
been filed within 15 days of the service of the Request for Dismissal and
Clerk's entry of the Dismissal on November 10, 2022. (See Defendant's Exhibit
"F" .) The time provisions relating to the filing of a memorandum of
costs, while not jurisdictional, are mandatory. (Sanabria v. Embrey (2001) 92
Cal.App.4th 422.)”
TENTATIVE RULING
ON MOTION FOR FEES: Defendant’s Motion is granted per Civil Code 1717, the
lease here, and CCP 1032(a)(4).
Defendant’s interpretation of the application of the Drybread holding
to this case is correct.
Plaintiff is
nevertheless correct as to Defendant’s failure to timely file a Memorandum of
Costs (cost bill), so Defendant’s costs, totaling $646.43, are not awarded.
CRC 3.1700.
The Court finds Defendant’s
attorney’s hourly rate of $475.00 reasonable.
However, the Court reduces the total number of hours from 36.6 claimed
(26.6 on the fee bill, Exhibit G to the moving papers, and 10 hours for this
motion, reply, etc., per the Reply declaration) to 31.1. Most of counsel’s post-dismissal meeting with
Defendant is not chargeable hereto, and the time related to this Motion is
high. Thus, the Court awards attorney’s
fees to Defendant in the total amount of $14,772.50.