Judge David A. Rosen, Case Number: EC068932, Date: 2023-07-21 Tentative Ruling

Judge: David A. Rosen, Case: EC068932, Date: 2023-07-21 Tentative Ruling

Case Number: EC068932 Hearing Date: July 21, 2023 Dept: E

July 20, 2023

Tentative Ruling on Defendants’ Motion for Attorney’s fees, and Plaintiffs’ Motion to Quash Subpoenas in Spinoglio v. Nicolas EC 068932

Plaintiffs do not dispute prevailing Defendants’ entitlement generally, as the prevailing parties in a dispute based upon alleged violations of applicable CC&R’s, to an award of reasonable attorney’s fees and certain costs in the premises of this case. The CC&R’s include prevailing party attorney’s fees provisions. Plaintiffs do dispute the hourly rates claimed or charged by Defendants’ attorneys, the amount of time charged, and the request for a multiplier on top of the requested Lodestar award. Lodestar is, of course, the accepted method for determining a reasonable attorney fee award. Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1321.

Plaintiffs’ citation to and quotations from PLCM Group v. Drexler (2000) 22 Cal. 4th 1084, 1096 (opposition papers, p.1) are on point with respect to the standard and criteria by which the Court is to exercise its discretion in deciding what amount of attorney’s fees is reasonable.

In determining the appropriate hourly rate for an attorney’s fees award, courts are entitled to consider the rate of “fees customarily charged by that attorney and others in the community for similar work.” Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997; Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009.

The moving papers thus sufficiently present the justification for the hourly rates charged (moving papers, pp. 12-14, and Declarations cited therein; Reply, pp. 7-10) and, to some degree, the hours charged (moving papers, pp.7-12). The hourly rates charged at different times by Defendants’ various attorneys of record throughout this matter are, in the Court’s discretion, reasonable and within the current community market rate.

Some of the time charged is not reasonable, especially the total hours billed by Defendants’ two trial attorneys during the trial, as the Court discusses in more detail, infra.

As the court noted in Gorman v. Tassajara Development Corp (2009) 178 Cal. App. 4th 44, 101,

“[T]here is no general rule requiring trial courts to explain their decisions on [attorneys fee] motions…. In cases where the award corresponds to either the lodestar amount…the court 's rationale for its award may be apparent on the face of the record, without express acknowledgement by the court of the lodestar amount or method. When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary. The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney over litigated a case or submitted a padded bill or that the opposing party has stated valid objections.”

It is not an exaggeration to state that Defendants achieved a complete victory at trial. While, given the amount and nature of the litigation pursued by Plaintiffs (essentially, about five years of a relatively aggressive, active battle over the respective parties’ homes) and the potential exposure of Defendants, the overall amount of time is mostly justified and reasonable and the hourly rates are justified and

reasonable, neither the facts nor legal concepts in this case were novel, complex, or difficult. The fees were apparently not contingent. Therefore, the Court declines to award any multiplier on the fees requested. “The trial court is neither foreclosed from, nor required to, award a multiplier.” Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal. App. 5th 240, 254.

The evidence averred at trial, and this Motion and opposition thereto reflect that Defendants did face significant exposure in this case; to Plaintiffs’ attorney’s fees and costs, to further expenditures with respect to Defendants’ property, and possible property value diminution. Moreover, the Court finds Plaintiffs’ general attacks on defense counsels’ hourly rates unpersuasive, and Plaintiffs’ counsel’s ad hominem attacks as to the bona fides of Plaintiffs’ counsel are unsupported by evidence or reasonable inferences. As noted by movant in Reply (page 10), aside from opposing any multiplier and unsuccessfully challenging some of defense counsels’ hourly rates, Plaintiff’s attack on the time billed by defense counsel is primarily, if not completely confined to some of the hours defense counsel billed during the trial of this matter. “…Plaintiffs concede that $829,429.50 (…[defense counsel]…Roth’s trial time and all other pre-trial and post-trial time entries that were unopposed) should be awarded.” Page 10: lines 19-20 of Defendants’ Reply.

The actual bills, as well as some summaries of the time and expenses charged, and a summary of the amounts actually paid by Defendants to their counsel in this case, are in the Declaration of Mark Baute, signed, filed and served on 6/26/2023. The Court has reviewed the bills and summaries in their entirety. The bills which reflect the necessary detail (what services were performed, who performed them and when, and the amount of time and rate charged) are found in Exhibit C to this declaration.

The Court first notes that it is unclear why, since Defendants have paid their counsel a total of $1,100,916.62 (Shalini Nicolas declaration, inter alia), while defense counsel has billed their clients a total of $1,231,010.85 (Baute Declaration, page 5: line 22), the Motion ultimately seeks fees of $1,129,429.50 (moving papers, page 20: lines 26-27). The appropriate reduction of the fees sought by the $23,848.00 in discovery sanctions previously awarded does not explain this discrepancy, nor does the effect of the requested 1.25 multiplier (if Defense applied it to any of the requested numbers).

In any event, the detailed billings further support Defendants’ claim that the time billed by defense counsel before and after the trial is reasonable and supported. This is so even without considering Defendants’ assertion that Plaintiffs’ counsel, in the aggregate, billed similar amounts of time to Mr. Roth during trial, and comparable amounts of time before and after the trial. This is also true without consideration of Plaintiffs’ various counsels’ bills, some information as to which appears in both the moving and opposing papers here. Thus, the Motion to Quash the subpoenas therefor is MOOT.

Plaintiffs, however, accurately note the Court’s expressed concerns about the repetitive nature of some of defense counsel’s direct and cross-examinations during trial. The Court finds generally reasonable Defendants’ use of two attorneys during the trial, especially because of the number of witnesses and exhibits the parties dealt with, but the use of two defense attorneys did not increase efficiency.

Defense counsels’ bills start to reflect the additional time for trial preparation and trial occasioned by two defense attorneys, as well as the continued involvement of senior partner Baute in January 2023. The Court finds that a number of Mr. Bagdishyan’s billing entries appear higher than reasonable and are quite vague. For example, 10.90 hours on 2/4/23 for “Trial preparation,” without any detail, cries out for reduction. Mr. Bagdishyan’s trial preparation time, especially considered in addition to Mr. Roth’s

time, is excessive. Also, some of Mr. Roth’s time is excessive. Thus, the Court finds that Defendants’ counsel 's bills are neither unreasonably inflated nor outrageously unreasonable. Cf. Serrano v. Unruh (1982) 32 Cal. 3d 621, 635.

Nevertheless, upon the foregoing basis, the Court makes the following reductions to defense counsels’ chargeable time:

1/17/23: -1 hours of AB; -1 hour of MDB; - 2 hours of BDR

1/20/23: -1.5 hours AB

1/23/23: -2 hours AB

1/24/23: -4 hours AB; -4 hours BDR

1/25/23: -3 hours AB

1/26/23: -4 hours AB

1/27/23: -2.5 hours AB

1/30/23: -4 hours AB; -3 hours BDR

1/31/23: -3 hours AB

2/1/23: -3.9 hours AB

2/2/23: -3 hours AB; -3 hrs. BDR

2/3/23: -5.1 hours AB; -1 hrs. BDR

2/4/23: -5.9 hours AB; -2 hrs. BDR

2/6/23: -4.6 hours AB

2/7/23: -4 hours AB

2/8/23: -3 hours AB

2/9/23: -3 hours AB

2/10/23: -2 hours AB

2/12/23: -5 hours AB

2/13/23: -6 hours AB

2/14/23: -5 hours AB

2/15/23: -4 hours AB

2/16/23: -4 hours AB

2/18/23: -3 hours AB

2/19/23: -4 hours AB

2/20/23: -5 hours AB

2/21/23: -4 hours AB

2/22/23: -3 hours AB

2/23/23: -1 hour AB

2/24/23: -2 hours AB

2/25/23: -2 hrs. BDR

2/26/23: -1 hour AB

2/27/23: -3 hours AB; -1.5 hrs. BDR

2/28/23: -2 hours AB; -2 hrs. BDR

3/1/23: -3 hours AB; -1 hour BDR

3/28/23: -4.10 hrs. BDR (not related to Plaintiffs)

Total reduction in AB hours: 122.5 x $580= $71,050.00

Total reduction in MDB hours: 1 x $880= 880.00

Total reduction in BDR hours: 23.6 x $580= 13,688.00

Total reduction in Defendants’ attorneys’ fees awarded= $85,618.00

Again, the Court is not clear as to which total is to be reduced by this figure. Defendants are to explain at the hearing.

Finally, the Court will also discuss with counsel at the hearing hereof the pending Motion to Tax Defendants’ costs, although it is not scheduled to be heard until 9/1/2023. It appears that the reductions in Defendants’ chargeable Costs which Plaintiff’s Motion to Tax seeks are not controversial, and that the Motion to Tax Costs should be granted, but the Court will hear argument.