Judge Debra Cole-Hall, Case Number: 22NWCV00372, Date: 2024-02-21 Tentative Ruling

Judge: Debra Cole-Hall, Case: 22NWCV00372, Date: 2024-02-21 Tentative Ruling

Case Number: 22NWCV00372 Hearing Date: February 21, 2024 Dept: SEK

BURROW v. CLARK

CASE NO.: 22NWCV00372

Plaintiff’s unopposed Application for Attorney’s Fees is GRANTED in the amount of $43,832.00. Costs are awarded in the amount as sought in the Memorandum of Costs in the amount of $6,124.60.

Moving Party to give notice.

Code of Civil Procedure §874.010 provides that the costs of partition “include: (a) [r]easonable attorney’s fees incurred or paid by a party for the common benefit…” (CCP §874.010(a).) In determining whether to award attorney’s fees, whether the services in question are for the common benefit must be decided on the facts and circumstances in each case. Nevertheless, the case authorities hold that attorney’s fees may be awarded for litigating contested issues in partition actions if that litigation is integral to the partition action. Moreover, “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment may be equitable.” (CCP §874.040.)

The Court is limited to only awarding a reasonable fee, and to fees incurred in the partition action itself which benefit all the property owners—costs are not included. (CCP §874.010(a).)

Here, the parties are engaged in ongoing litigation in an effort to dispose of the Subject Property jointly owned, such that the instant partition action is in the common interest of both parties. Plaintiff has established an entitlement to attorney’s fees.

When assessing the amount of any attorney’s fee award, courts typically determine what is reasonable through the application of the “lodestar” method. Under the lodestar method, a base amount is calculated from a compilation of (1) time reasonably spent and (2) the reasonable hourly compensation of each attorney. (Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d 25, 48); (See also Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 448-449 holding that the lodestar method applies to statutory attorney fees award unless the underlying statute provides for another method of calculation). Normally, a “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) That amount may then be adjusted through the consideration of various 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, and (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The Court is vested with discretion to determine which claimed hours were reasonably spent, and what an attorney’s reasonable hourly rate is. (Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501); (See also Flannery v. California Highway Patrol (1987) 61 Cal.App.4th 629, 644.) [“We readily acknowledge the discretion of the trial judge to determine the value of professional services rendered in his or her court.”].

Plaintiff’s motion seeks an award of $43,832.00 in attorney’s fees. A review of the declarations of Attorneys Khajadourian and Alexander in support of the motion indicate that Plaintiff is seeking to recover fees at the rate of $400/hr.

As of February 5, 2024, no Opposition has been filed with this Court. As such, Defendant fails to articulate any substantive basis as to why this Court should not award Plaintiff attorney’s fees in the amount sought under CCP §874.010.

The Court has reviewed Attorneys Khajadourian and Alexander’s declarations and finds that Plaintiff has established an entitlement to reasonable fees in the amount of $43,832.00, to be paid out of the common fund (Defendant’s share of the sale proceeds). The Court’s determination is undertaken in the exercise of its discretion to determine whether or not rates or hours are reasonable. (Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501.)

Plaintiff filed a Memorandum of Costs on November 7, 2023 (served U.S. Mail on November 7, 2023). Pursuant to CRC Rule 3.1700(b)(1), “[a]ny notice of motion to strike or tax costs must be served and filed 15 days after service of the cost memorandum.” “The failure to file a motion to tax costs constitutes a waiver of the right to object.” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) “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).) 15 calendar days from November 7, 2023 is November 22, 2023.

As of February 5, 2024, no Motion to Strike or Tax Costs has been filed.

Costs are awarded in the amount of $6,0124.60, as sought in the Memorandum of Costs. The Court notes that Plaintiff’s Subject Motion seeks costs in the amount of $8,019.60, which exceeds the amount prayed for the Memorandum of Costs on file with this Court.