Judge: Douglas W. Stern, Case: 21STCV12564, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV12564    Hearing Date: March 24, 2023    Dept: 68

Mario Contreras vs. Oscar Cordova, et al., Case No. 21STCV12564

Motion for Award of Attorney’s Fees

Moving Parties – Plaintiff Mario Contreras

No Opposition

The Attorneys Fees Motion

            On November 29, 2022, Plaintiff’s motion for summary judgment was granted. On December 23, 2022, judgment was entered in Plaintiff’s favor in the amount of $528,570.95, with pre-judgment interest running at the rate of 10% per annum beginning April, 2, 2021, and with attorney’s fees and costs awarded to Plaintiff, the amount to be determined by subsequent motion. (Motion at p. 3.)

Plaintiff has now moved for an order pursuant to Civil Code § 1717 determining that Plaintiff is the party prevailing on the contract and is entitled to an award of attorney’s fees as item of costs and fixing the amount of attorney’s fees to which he is entitled as the party prevailing on the contract in this action. Plaintiff is requesting attorney’s fees in the total amount of $109,739.50. Plaintiff’s attorney represents that this total excludes all time that has been discounted or written off, and it excludes any fees associated with Defendant Bizarro exclusively. (Georgianna Decl., ¶ 9.)

One might expect that if one were claiming entitlement to an award of attorneys fees, one would prominently reference in the Points and Authorities the particular contract and provisions that gives rise to that entitlement.  (Its not in the Points and Authorities.)  In counsel’s Declaration at paragraph 3 he recites:

“3. The above-entitled action is for damages for breach of the contracts memorialized by three separate agreements set out in Exhibit “1” to Plaintiff’s motion for summary judgment in this action, which includes the two subleases. Paragraph 11 of the sublease agreements provides that prevailing party “…is entitled to reasonable attorney’s fees.” True and accurate copies of these lease and sublease agreements are attached hereto and incorporated by reference herein as Exhibits “1” and “2.””

The declaration with exhibits is 161 pages.  Finally, at page 38 the Court found the applicable provision.

Attorney’s Fees

Civil Code § 1717(a) provides that:

“(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.

CCP § 1033.5(c)(5) provides that attorney’s fees awarded pursuant to Civil Code § 1717 are allowable costs under CCP § 1032 as authorized by CCP 1033.5(a)(10)(A).

The Court, on notice and motion by a party, will determine the party prevailing on the contract. (Civil Code § 1717(b)(1).) Except as provided in Civil Code § 1717(b)(2) (tender and deposit; certain dismissals), the party prevailing on the contract is the party who recovered a greater relief in the action on the contract. (Civil Code § 1717(b)(1); see Public Employees’ Retirement System v. Winston (1989) 209 Cal.App.3d 205, 211.)

If a plaintiff obtains relief that the plaintiff has requested on the contract claims in an action, the plaintiff is the prevailing party on the contract as a matter of law. (Texas Commerce Bank v. Garamendi (1994) 28 Cal.App.4th 1234, 1247; Smith v. Krueger (1983) 150 Cal.App.3d 752, 757.)

The “lodestar” method is commonly used by judges and arbitrators to determine attorney’s fees for a prevailing party. “The starting point of every fee award . . . must be a calculation of the attorney’s services in terms of the time he has expended on the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) Thus, the loadstar is calculated by multiplying the reasonable number of hours by a reasonable hourly rate.

In determining what constitutes reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the trial court has broad discretion and wide latitude. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

In this case, because judgment was entered in Plaintiff’s favor as to Plaintiff’s claim on the contract, Plaintiff is the prevailing party on the contract. As the prevailing party on the contract, Plaintiff is entitled to attorney’s fees.

Plaintiff’s counsel, Boyd Law, APC, has the following rates: $400.00 per hour for partner time, and $330.00 per hour for associate time, and $200.00 per hour for paralegal time. (Georgianna Decl., ¶ 6.) The Court finds that these rates are reasonable.

For this case, Plaintiff indicates that his counsel dealt with several issues including: “1) protracted efforts to dialogue with defendant to mitigate damages, to no avail, 2) unlawful detainer action to take possession of subject premises, 3) motion to quash service, 4) defendant’s unauthorized self-granted extensions to file responsive pleading, 5) demurrer to the complaint and continuances of said demurrer from October 2021 to October 2022; 6) motions to compel to address multiple discovery disputes and seek enforcement of court orders; 7) how multiple breaches of interrelated contracts effect the rights and duties of the parties, and 8) filing of motion for summary judgment after defendant refused to participate in litigation.” (Motion at p. 6.)

The time that Plaintiff’s counsel expended on this matter can be broken down as follows (Georgianna Decl., ¶ 8):

a.       Negotiation and drafting of multiple agreements and lease amendments: $9,401.00

b.      Assessing Plaintiff’s option for perfecting claims against Defendant’s assets: $3,595.00

c.       Reviewing documents and researching in preparation for filing litigation: $6,287.50

d.      Drafting the complaint: $4,068.50

e.       Drafting and serving the Notice of Right of Entry, Notices to Pay Rent, Notices to Quit, and litigating an unlawful detainer action to secure possession of the premises: $9,534.00

f.        Efforts to locate and serve Defendant, including coordinating with a private investigator: $4,033.00

g.      Protracted settlement discussions: $5,957.00

h.      Preparation and appearance at 6-7 Case Management Conferences, including drafting related documents: $4,633.50

i.        Meetings with opposing counsel regarding Defendant’s untimely responsive pleading and motion to quash: $11,098.00

j.        Documents and Hearings related to Defendant’s Demurrer with Motion to Strike: $7,434.00

k.      Drafting discovery, serving it, and reviewing discovery responses: $7,252.00

l.        Meet and confer regarding discovery; filing of two Motions to Compel Responses; attempting to enforce the court order regarding the Motions to Compel: $15,064.50

m.    Drafting the Motion for Summary Judgment and all supporting documents; appearing at the hearing; etc.: $19,360.00

n.      Drafting and serving the entry of default and default judgment: $1,021.00

This all adds up to Plaintiff’s requested $108,739.50 in attorney’s fees.

After reviewing the accounting provided by Plaintiff (Georgianna Decl., ¶ 9, Ex. 4) and considering the nature and extent of the litigation, the Court finds that the attorney’s fees requested by Plaintiff are reasonable. Plaintiff’s Motion for Attorney’s fees should be granted.

ORDER

1.      The Court finds that Plaintiff Mario Contreras is the prevailing party on the contract.

2.      The Court finds that as the prevailing party on the contract, Plaintiff Mario Contreras is entitled to reasonable attorney’s fees.

3.      The $108,739.50 in attorney’s fees requested by Plaintiff is reasonable in light of the nature and extent of the litigation.

4.      Plaintiff Mario Contreras is awarded $108,739.50 as attorneys fees against Defendant Oscar Cordova.