Judge: Frank M. Tavelman, Case: 19BBCV00366, Date: 2023-01-31 Tentative Ruling

Case Number: 19BBCV00366    Hearing Date: January 31, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEY’S FEES

MP:     Jan Slort, David Slort, Daniel Slort (Defendants)

*Co-Defendant Jennifer Hines was not party to the motion.

RP:      Steven Myers and Linell Myers (Plaintiffs)

Summary:

The Court previously granted Summary Judgment in favor of Defendants.   Defendants have filed a Motion for Attorneys’ Fees and Costs totaling $140,930.10 pursuant to Civil Code §1717 and Code of Civil Procedure §1032.

Defendants argue that they are entitled to attorney’s fees under the broad terms of the Residential Purchase and Sale Agreement, specifically Clause 22 – the same clause upon which the Plaintiff relied to obtain the original attorney’s fees award.

In July 2001, Defendant Jan Slort purchased real property from Plaintiffs.  On June 8, 2011, Defendant Jan Slort transferred via quit claim deed a 50% interest in the property to Jennifer Hines.  In 2013, Defendant Jan Slort transferred his interest in the property to an irrevocable trust, which was recorded on May 22, 2013.  In 2016, Defendant Jan Slort and David Slort as trustee filed suit in an unrelated case against Plaintiffs based on a failure to disclose unpermitted construction on the real property purchased in 2001.   Defendants subsequently were not victorious in that lawsuit as the statute of limitations had run.  Plaintiff obtained an attorney fees award of $113,590 in or about July 2018.  Plaintiffs filed the current action (19BBCV00366) on April 30 2019, seeking to set-aside the prior property transfer to Jennifer Hines, which occurred approximately four years prior to the attorney fees award in the other matter.

Civil Code §1717(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."

"California courts construe the term 'on a contract' liberally." Turner v. Schultz (2009) 175 Cal.App.4th 974, 979. "The phrase 'action on a contract' includes not only a traditional action for damages for breach of a contract containing an attorney fees clause, but also any other action that 'involves' a contract under which one of the parties would be entitled to recover attorney fees if it prevails in the action." Eden Township Healthcare District v. Eden Medical Center (2013) 220 Cal.App.4th 418, 426.

Unlike the prior matter which directly related to the property sold under the Residential Purchase and Sale Agreement, this matter was derivative of that; it was an action to void a transfer of property in an effort to collect the attorney’s fees debt from the prior case.  The ultimate issue is whether a case that is a “one-off” from the underlying case is an action in contract.  Defendant argues that when if the underlying judgment includes an award of attorney’s fees pursuant to a written contract, then attorney fees incurred in enforcing a judgment are included as a collectible cost. (CCP §685.040; CCP §1033.5(a)(10)(A).) Thus, had Plaintiffs prevailed, Plaintiffs would have been entitled to recover their fees under CCP Section 685.040.  The Court believes this provision should be reciprocal. 

The Court acknowledges the late opposition by Plaintiff; however, has the discretion to consider the late opposition and has decided to do so.  Plaintiff argues that Defense counsel unnecessarily delayed the filing of a summary judgment motion after having “all necessary facts and documents.”  This information was conveyed to Plaintiff’s counsel by Defense, but Plaintiff declined to dismiss the case.  Obtaining a summary judgment is not an easy task, for there must be no triable issue of material fact.  Since the Defense was unable to convince Plaintiff to dismiss the case, it stands to reason before they brought such a significant motion Defense may need to obtain additional evidence to refute any of Plaintiff’s claims.   If the quantum of evidence was insufficient to convince Plaintiff it stands to reason that Defense may have a concern that it would convince a Court.   When ultimately Defense brough the summary judgment motion, it was not unopposed, which is a prima facie showing that its granting was not fait accompli.

Attorney’s Fees Requested are Reasonable

"A 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. The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on 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, (4) the contingent nature of the fee award. The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services…Anchoring the calculation of attorney fees to the lodestar adjustment method is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts. When using the lodestar method to calculate attorney fees the ultimate goal is to determine a 'reasonable' attorney fee." Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 271-72

The Court has reviewed the billing provided by Defendant.   Other than the belief that a summary judgment should have been brought earlier, Plaintiff declined to challenge any other aspects of the billing.  "In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal." Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.

The Court believes that the itemized expenses are reasonable; however, based upon other requests for attorney’s fees from those with similar experience the court will reduce the total attorney’s fees.

Shab D. Kerendian (Principal)           $500.00 x 32.90 hours     =  $16,450.00

Edrin Shamtob (Associate)                 $350.00 x 215.50 hours   =  $76,500.00

                                                            $350.00 x 7 hours (future wrk)= $ 2,450.00

Craig Cawlfield (Senior Associate)    $400.00 x 3.10 hours                   =  $1,240.00

Tom Tran (Senior Associate)             $400.00 x 4.00 hours                   =  $1,600.00

Anna Riabokon (Law Clerk)              $75.00 x 1.40 hours                  =  $   105.00

TOTAL:                                                                                                 $98,347.00

+ Filing Fees and Costs                                                                        $   2,044.60

The “total hours worked” category appears to be duplicative of the house listed on page 5’s chart and was double counted by Defendant.

CONCLUSION

Defendant’s motion for attorney’s fees is granted for $98,347 plus costs of $2,044.60.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants’ motion for attorney’s fees and costs came on regularly for hearing on January 31, 2023 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE COURT GRANTS ATTORNEY’S FEES IN THE AMOUNT OF $98,347 AND COSTS OF $2,044.60.

DATE: January 31, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles