Judge: David J. Cowan, Case: 18STPB09717, Date: 2023-09-12 Tentative Ruling
Case Number: 18STPB09717 Hearing Date: September 12, 2023 Dept: 200
LOS ANGELES SUPERIOR COURT
WEST DISTRICT - BEVERLY HILLS COURTHOUSE
DEPT. 200
TENTATIVE RULING ON MOTION FOR ATTORNEYS’ FEES
In re: The Houshang Eliafan Living Trust dated June 28, 2006, Case No. 18STPB09717
Joseph Eliafan, Trustee, Petitioner, v. Marvita Floranza, Respondent
Date: September 12, 2023, Time: 8:30 a.m.
BACKGROUND
On July 24, 2023, the Court issued a tentative statement of decision after trial of the petition of Joseph Eliafan (“Joseph”) against respondent Marvita Floranza (“Floranza”). The Court found in favor of Joseph on the cause of action for “financial abuse” of an “elder,” Houshang Eliafan (“Houshang”), in part, finding Joseph should recover $603,017.11 (representing what Floranza wrongfully took after the sale of the property, which amount was doubled pursuant to Welfare & Institutions (“W & I”) Code sec. 15610.30(a)), but denying Joseph’s request he also recover $94,715 separate and apart from the sale proceeds. The Court also rejected Joseph’s claim that Floranza was a “care custodian,” that would have put the burden on Floranza to justify what she had received, as well as potentially invalidate the Second Amendment to Trust. The Court found that Joseph was entitled to attorneys’ fees, again pursuant to Probate Code sec. 859 and W & I Code sec. 15610.30(a), for the reasons stated therein, the amount of which was to be determined by motion.
On August 10, 2023, Joseph filed this motion pursuant to W & I Code sec. 15657.5.
On August 16, 2023, not having received any objection to the tentative statement of decision, the Court entered an order adopting the tentative decision as its final statement of decision.
On August 28, 2023, any opposition by Floranza was required to have been filed. No opposition has been filed to date.
DISCUSSION
Probate Code sec. 859 provides that a court may in its discretion find a respondent liable for reasonable attorneys’ fees, taking into consideration W & I Code sec. 15657.5, where, as here there was
a bad faith wrongful taking of Houshang’s property, constituting “financial abuse” of an elder, as detailed in the final statement of decision.
The Court finds the hourly rates and the time spent to be reasonable given the circumstances, including the length of time this case has been pending, the complexities involved and customary local rates. The Court finds, however, that of the principal amounts sought, essentially, $300,000 plus $100,000, or a total of $400,000, Joseph recovered three quarters of that amount. He did not prevail on all theories asserted. The extra $300,000 awarded based on doubling should not in turn necessarily be a basis for fees since the same work was performed to recover the $300,000. Therefore, Joseph recovered for these purposes three quarters of what he was seeking. The Court therefore believes that a reasonable fee award should match that recovery. The motion seeks $102,030. Three quarters of that amount is $76,522.50.
CONCLUSION
For these reasons, the Court grants the motion in part and awards Joseph $76,522.50 in attorneys’ fees. The Court has no reason to address that part of the motion seeking costs reflected in the Memorandum of Costs that was filed where Floranza has not timely filed any motion to tax costs. Joseph shall lodge a proposed judgment consistent with the final statement of decision, this ruling and the Memorandum of Costs.