Judge Elaine W. Mandel, Case SC122964 2022-09-30 Tentative Ruling

Judge: Elaine W. Mandel, Case: SC122964, Date: 2022-09-30 Tentative Ruling

Case Number: SC122964 Hearing Date: September 30, 2022 Dept: P

Tentative Ruling
SwiftAir v. Row 44, Inc., et al., Case No. SC122964
Hearing Date: September 30, 2022
(1) Defendant Southwest Airlines Co.’s Motion for Attorneys’ Fees; (2) Defendant Row 44, Inc.’s Motion for Attorneys’ Fees

The court previously awarded prevailing parties Southwest and Row 44 attorneys’ fees and costs through trial. These parties now seek fees and costs for post-trial and appellate work. On May 28, 2020, plaintiff appealed the order granting Southwest’s and Row 44’s Motions for Attorneys’ Fees and Costs, arguing the Court erred in concluding defendants the “prevailing parties.” The Court of Appeal affirmed the trial court’s ruling.

The Court considers Southwest’s Motion for Attorneys’ Fees (filed August 3, 2022) and Row 44’s Motion for Attorneys’ Fees (filed August 30, 2022). Plaintiff has not submitted opposition.

Defendant Southwest’s Motion for Attorneys’ Fees
Southwest seeks fees of $572,032.90 and costs of $864.40. Southwest is the prevailing party here, for the same reasons the court found Southwest was the prevailing party previously, as upheld by the Court of Appeal.

California law principles governing an award of attorneys’ fees in an action based on contract are identical to those under Texas law. Hawxhurst Decl., Ex. A. Under Texas law, a “prevailing party” in a contract action may recover attorneys’ fees and costs. Id.; Rohrmoos Venture v. UTSW DVA Healthcare, LLP (2019) 578 S.W.3d 469, 486. Under Texas law, defendant is the “prevailing party” in a contract action where defendant successfully defends against a contract cause of action and secures a “take-nothing judgment on the main issue or issues in the case.” Id.

Southwest is the prevailing party as defined under Civil Code section 1717, as well as under Texas law. The Beta Test Agreement states “[i]n any action to enforce this Agreement, the prevailing party will be entitled to costs and attorney’s fees.” (Hawxhurst Decl., Ex. A.) As

Southwest is the prevailing party, it is entitled to reasonable attorneys’ fees and costs, including fees and costs on appeal.

“A trial court assessing attorney fees 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.” Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321. “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. 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 fees sought are significant but reasonable. The defense of the appeal involved novel issues, requiring significant work. Hawxhurst Decl., ¶¶ 8-10. The appeal presented an issue of first impression regarding interpretation “services” as employed in the Airline Deregulation Act and how Code of Civil Procedure section 998 offers are judged to be valid. Id. ¶ 3.

Southwest submitted billing invoices totaling $572,032.90. Hawxhurst Decl., ¶¶ 11-16, Ex. G; Harris Decl., ¶¶ 2-3, 5-7, Ex. 2; D’Arche Decl., ¶¶ 3, 5-7, Ex. K. Plaintiff failed oppose. The requested fees of $572,032.90 are reasonable and recoverable.

Southwest requests costs of $864.40 and filed a Memorandum of Costs. The costs requested are recoverable pursuant to Code of Civil Procedure section 1033.5. GRANTED. Attorneys’ fees of $572,032.90 and costs of $864.40 awarded to Southwest.

Defendant Row 44’s Motion for Attorneys’ Fees
Defendant Row 44 seeks fees for post-trial motions and appeal pursuant to the parties’ “Content Provider Agreement.” Row 44 requests fees of $288,958.00 ($116,622.50 in fees re: post-judgment trial court proceedings; (2) $49,593.00 in fees re: substantive appeal; (3) $99,692.50 fees re: attorney fee appeal; and (4) $23,050.00 in fees re: this motion).

Row 44 is the “prevailing party,” so is entitled to reasonable attorneys’ fees. The “Content Provider Agreement” includes an attorneys’ fee provision, which states “[i]n the event of any dispute between the parties should result in litigation, arbitration, or mediation[,] the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs, and expenses . . . .” Katz Decl., Ex. A.

Row 44 was wholly successful at trial, successfully opposed post-trial motions, including the motions for new trial and JNOV. Katz Decl., ¶ 8. Row 44 successfully defended against the appeals. Row 44 is entitled reasonable fees and costs, including costs and fees on appeal.

The fees sought are significant but reasonable. Row 44 submitted multiple briefs; the substantive appeal was dismissed. Id. ¶ 9. The appeal involved several complex issues, including whether the Court of Appeal had jurisdiction, the scope of the ADA and the primary rights doctrine. Id. ¶ 10. The matter involved a 23-volume appendix, as well as research, briefing and oral argument. Ib. Row 44 submitted billing invoices totaling $288,958.00. Katz Decl., ¶¶ 14-21, Ex. G. Plaintiff filed no opposition. The fees requested are reasonable and recoverable. GRANTED. Attorneys’ fees of $288,958 awarded to Row 44.