Judge: Frank M. Tavelman, Case: EC063446, Date: 2023-10-20 Tentative Ruling

Case Number: EC063446    Hearing Date: February 9, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEY’S FEES

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

On November 30, 2023, the Court issued a ruling on the motion of Reon Roski (Roski) to amend her judgment against R&R Construction (R&R) in this matter to include additional judgment debtors. Roski sought to amend the judgment, obtained in 2018, to add CJ Rudolph alongside a number of business entities owned by Rudolph. The Court granted the motion in part, finding enough evidence had been presented that Rudolph was the alter-ego of R&R Construction. The Court denied the motion as to the other business entities.

After the ruling amending the judgment, Roski filed a Memorandum of Costs and a Memorandum of Costs After Judgment, (hereinafter MOCs) both of which include attorney’s fees. These memorandum were both filed on December 5, 2023. On the same day, Roski filed a Motion for Attorney’s Fees. This motion was accompanied by a memorandum of points and authorities and declarations of attorneys Anthony J. Oliva (Oliva) and Marshall C. Wallace (Wallace). A review of the Motion for Attorney’s Fees shows that the motion seeks to recover the same attorney’s fees as those included in the MOCs.

The Court includes this procedural background because it relates to one of Roski’s points in reply. Roski’s argues R&R’s failed to file a motion to tax costs challenging the MOCs pursuant to C.C.P. § 685.070. Roski argues this failure leads to the automatic inclusion of the attorney’s fees in the memorandum of costs in the judgment, essentially resulting in a windfall for Roski of twice the attorney’s fees incurred.

The Court agrees that had Roski only filed the MOCs and R&R failed to tax them via motion, the result would be the automatic addition to the judgment. However, Roski filed a motion to recover the same attorney’s fees included in the MOCs at the same time they filed the MOCs. This indicates either that (1) Roski filed a motion accompanied by substantial declarations under the impression that they would likely be moot, (2) Roski is seeking to recover attorney’s fees twice, or (3) Roski filed the MOCs and the Motion for Attorney’s fees simultaneously hoping that R&R would not file a motion to tax costs and a windfall would result for Roski.

No matter Roski’s motivations for this procedure, the Court finds that the assertion that attorney’s fees must be automatically added to the judgment unpersuasive. Regardless of the mechanism, R&R has objected to certain attorney’s fees and the Court will render its decision on the merits.

The Court’s willingness to address the attorney’s fees issue does not extend to the non-attorney’s fee related costs.  The Court notes that R&R’s opposition presents no argument as to the costs, instead focusing solely on the attorney’s fees issue.  As to those latter costs, the Court agrees that the failure to file a motion to tax those costs results in their automatic addition.

LEGAL STANDARD:

The Court begins the attorney fee inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id.) Relevant multiplier factors include “(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.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) A trial court has broad discretion to award attorney fees in an amount that is less than the lodestar amount and, to discourage claimants from making an unreasonable demand, may deny altogether a fee request that appears unreasonably inflated. (Id. at 1321-1322; see Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

“The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford, supra at 396; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 785.)

“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.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)

MERITS:

Fees Requested

The fees requested by Roski are split between the Oliva and Wallace Declaration.

The Oliva declaration includes the number of hours billed in connection with the general enforcement of the judgment, totaling fees of $276,933.00. (Olive Decl. Exh. 7, pgs. 71-81.) The Oliva declaration also includes the number of hours billed for Roski’s participation in R&R’s bankruptcy action, totaling fees of $61,513.50. (Id. at pgs. 8-84.)

The Wallace declaration includes the number of hours billed for Roski’s participation in an action filed by R&R’s insurer, Preferred Contractors Insurance Company Risk Retention Group, LLC (PCIC). (Wallace Decl. ¶ 2, Exh. 2.) In late 2020, PCIC filed an action in San Diego Superior Court seeking to disclaim coverage for R&R. (Id.) Roski notes that the court in the PCIC action ruled that PCIC’s insurance coverage of R&R did not cover the attorney’s fees component of Roski’s judgment. (Id. ¶ 7.) Ultimately the action settled, resulting in partial satisfaction of the judgment by PCIC for $500,000.00. (Id. ¶ 8.) Roski is asserting $223,027.00 in fees incurred in connection with the PCIC action. (Id. ¶ 11.)

The Wallace Declaration also includes the number of hours billed for Roski’s motion to amend the judgment to add Rudolph as a debtor (hereinafter the alter-ego motion). (Wallace Decl. ¶ 10, Exh. 3.) The total amount of fees claimed is $23,938.00. (Id.)

In total, Roski seeks $585,411.50 in attorney’s fees.

Highland Springs Decision

Both the moving papers and the opposition cite Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416. Highland Springs held that attorney’s fees incurred in bringing a motion to amend a judgment to add judgment debtors qualify as attorney’s fees incurred pre-judgment. (Id. at 422.) The Highland Springs court held that such requests for attorney’s fees were governed by C.R.C. Rule 3.1702(b) and not C.C.P. §§ 685.040 & 685.080. (Id.)

It appears that Roski and R&R agree on the holding of Highland Springs but disagree as to its effect on this motion. R&R argues that Highland Springs bars Roski from seeking any costs associated with the alter-ego motion because C.R.C. Rule 3.1702(b) requires a noticed motion for pre-judgment attorney’s fees. The Court finds Roski adequately noticed this motion and included facts speaking to its intent to recover attorney’s fees in connection with the alter-ego motion. The Court finds adequate notice was given to R&R that Roski would try to recover attorney’s fees pursuant to the alter-ego motion such that R&R presented substantial argument to the contrary. As such, the holding in Highland Springs does not affect the Court’s ruling in this matter.

Reasonable Rate

R&R argues that the rates claimed by Roski’s counsel are inflated and beyond reasonable bounds. R&R cites to PCLM Group v. Drexler for the contention that a reasonable hourly rate is one that is prevailing in the community where the case is litigated for similar work. (PLCM supra, at 1095.) R&R argues that Roski has produced no evidence of the complexity of the case and whether the litigation was unduly time consuming.

It is true that Roski bears the burden of showing entitlement to a reward and documenting the appropriate hours expended and hourly rates. (See Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) However, the Court is not aware of any case law which states a moving party is required to produce evidence of industry practice in order to justify their rates. As previously stated, the Court is vested with large discretion in determining the reasonable nature of attorney’s fees. Part of this discretion is the Court’s knowledge of rates associated with the legal work required to litigate a case. While the Court’s understanding can be bolstered by showings from the moving party, there is no requirement that the moving party provide industry standard rates to show that their own rates are reasonable.

Here, Roski has provided the billed hours for all staff that engaged with the file from which the rates for partners, associates, paralegals, and e-Discovery clerks can be gleaned. R&R’s only argument that these rates are unreasonable is that Roski has provided no evidence of industry standard rates. Yet, R&R submits no evidence of industry standard rates in contravention, instead suggesting an alternative rate for each staff member which is apparently based purely on R&R’s conception of what constitutes reasonable. R&R provides no support for the Court to consider Roski’s requests unreasonable outside of the fact that R&R thinks the rates are too high. The combination of Roski’s submissions along with the Court’s in evaluating the reasonable value of the effort expended in this case leads the Court to conclude that the rates are reasonable.

Amended Judgment and Collection Costs

R&R concedes that some of the hours billed in connection with the general collection efforts, PCIC matter, and alter-ego motion were reasonably necessary. However, R&R asserts that many of the billable entries were not reasonably necessary and should be stricken. The Court will address each of these items in turn.

Two Year Time Limit

R&R argues that Exhibit 2 of the Wallace Declaration, which contains the billable hours for the PCIC case, impermissibly contains entries prior to December 5, 2021. (Bassirian Decl. ¶ 24, Ex. J.)  These hours account for $108,026 in fees.  provides that a motion for postjudgment fees or costs must be made no later than two years after the costs have been incurred. By the plain language of the statute, the entries dated before December 5, 2021 cannot properly be included in Roski’s claim for fees. As such, the Court finds the fees should be reduced in the amount of $108,026.

Overstaffing

R&R argues that Roski’s counsel improperly overstaffed the bankruptcy, PCIC, and alter-ego matters. The Court agrees that the use of five partners and two associates across these matters is unnecessary on its face. While Roski has submitted declarations from partners Wallace and Oliva attesting to the necessity of their work on the file, Roski has submitted no declarations from partners Marissa Dennis (Dennis) or Jared Kassan (Kassan). The Court notes that partner Michael Greger’s involvement is justified by his identification as the firm’s bankruptcy specialist. (Olvia Decl. ¶ 13.) neither the Wallace nor the Oliva declaration contain statements as to why Dennis and Kassan were required to work on the file.

Without declarations attesting to the necessity of the additional work by partners Dennis and Kassan, the Court considers the time entries billed in their names to be insufficient to have those fees incurred by Roski.  As such, those entries by Dennis and Kassan will be stricken from Roski’s request.

From the billed hours, the Court determines that a total of $10,996 is attributable to Dennis and $330 is attributable to Kassan. $3,573 of the fees attributable to Dennis were billed for the alter-ego motion. As will be discussed in a later section, the entire alter-ego motion is subject to another reduction which will be calculated after Dennis’ fees are subtracted. $2,570.50 of the fees attributable to Dennis are already stricken as a result of being billed more than two years prior to the judgment. The remaining $4,852.5 is billed in relation to the PCIC case and will be subtracted from that total. The Kassan fees are attributable to the general post judgment collection efforts and will be subtracted from that total.

Communication

R&R argues that 101 hours and $94,731.58 in fees were incurred by four partners and one associate to communicate with each other. (Bassirian Decl. ¶ 7, Ex. B.) R&R argues these fees should be removed from any award.  R&R makes a similar argument regarding the PCIC billing, which includes 20 hours and $14,890.50 of communication (Bassirian Decl. ¶ 25, Ex. K.)

The Court notes that R&R does not make any substantive argument that this communication was not reasonably necessary to the conducting of this litigation. R&R simply asserts that these should be removed. Without any argument to the contrary, the Court does not see how communication between members of the law firm handling the case is not reasonably necessary. Accordingly, these hours are reasonable.

Amendment

R&R argues that when Roski’s counsel filed their alter-ego motion, they wrongfully filed unredacted copies of private financial information which included tax returns and social security numbers (Bassirian Decl. ¶ 9.) R&R argues that $12,802.50 of the fees claimed in connection with the motion were to correct Roski’s own errors. Roski provides no response to this argument in her reply papers.

The Court agrees that fees incurred by fixing a mistake in filing a motion are not reasonably necessary to the litigation. R&R should not bear the burden for Roski’s failure to properly redact the information in its alter-ego motion. Accordingly, $12,802.50 should be stricken from Roski’s request.

Block Billing

R&R argues that $8,513.50 be stricken from the requested fees because Roski billed certain entries as a block. (Bassirian Decl., ¶ 11, Exh. D; ¶ 27, Exh. L.) R&R cites to In re Marriage of Nassimi (2016) 3 Cal.App.5th 667 for the concept that trial courts may penalize block billing when the practice prevents them from distinguishing compensable tasks from ones that are not. The Court finds the entries which R&R argues are block billing are not constructed in a way that prevents distinguishing which practices are billable. Each block entry includes the component tasks performed. Further, R&R does not point to any of the tasks in the block which are objectionable. The simple consolidation of many tasks into one entry is not per se unreasonable.

Exhibit E

R&R points to a number of entries in their Exhibit E which they claim are just generally unreasonable. The only one of these entries for which R&R presents substantial argument is an August 8, 2023 entry for attorney Stacey Villagomez. This entry is for 1.7 hours and reflects a total of $1,096.50 of attorney time. R&R argues this entry is unreasonable because an attorney is not required to attend service of motion to amend (Bassirian Decl. ¶ 13.) R&R neglects to include the second half of the billing entry which reads draft stipulation re: hearing date, which certainly appears as an activity requiring an attorney to complete. Having reviewed these entries, the Court does not find them unreasonable.

Repetitive Entries

R&R argues that the Court should strike $4,979.5 from paralegal and eDiscovery clerk for “doing the same task” (Bassirian Decl. ¶ 15, Ex. F; ¶ 30, Ex. N.) R&R does not substantially argue how these tasks are duplicative. Doing the same task is not the equivalent of duplicative action. Where the billable hours show three entries for “analysis and determination of deposition materials in preparation for attorney review”, the Court does not presume the paralegal did the exact same task all three times. A showing of duplicative action to pad attorney’s fees requires evidence that such action was taken, which R&R has not provided. Accordingly, these fees are reasonable.

Alter-Ego Motion

R&R argues that the fees associated with the alter-ego motion should be reduced by 80% because the motion was only 20% successful. R&R makes this argument without citation to case law or other authority. While true that Roski’s motion was only partially successful in that only Rudolph was added as judgment debtor, the Court finds R&R’s argument to be an extreme oversimplification of the motion process. R&R presumes the addition of Rudolph as a judgment debtor and the other business entities as judgment debtors are equivalent in significance. Given the lion share of the documentation in support of Roski’s motion spoke to the addition of Rudolph, the Court is inclined to believe that Rosi’s motion was more than 20% successful.  Likewise, the quantum of work needed for one debtor can be extensive, with less work needed to add additional debtors.  However, the Court does agree that that the one debtor should not bear the cost for an unsuccessful attempt to add other debtors.   Ultimately, the Court will reduce the fees associated with the alter-ego motion by 35% to reflect the value of the successful motion relative to the unsuccessful portion.

The Court notes that the amount of fees requested in connection with the alter-ego motion was $23,938.00. Given the Court has found the hours billed by Dennis to be without sufficient support and some of these hours were incurred on the alter-ego motion, the total of reasonable fees sought before the 35% reduction would be $20,365. The total fees after the 35% reduction would be $13,237.25.

Mediation

R&R requests that $23,160 fees associated with an August 2023 mediation be stricken (Bassirian Decl., ¶ 19, Ex. H.) The extent of R&R’s argument on this point is as follows: “All parties participated in mediation and should bear the brunt of that effort attempting to resolve this matter” (Oppo. p. 15.).  The Court agrees.   While mediation can be an efficient means to resolve cases, each party should bear the cost of mediation.  The Court will strike the $23,160 for mediation.  From a public policy perspective, imposing mediation costs may discourage parties from seeking mediation as the cost of an unsuccessful mediation would be imposed in addition to costs for trial.  Such a result could have significant impact on a party’s willingness to mediate.  If the agreement included a mandatory mediation provision, the Court may view the matter differently, but that does not appear to be the case.

Travel

Lastly, R&R argues that $14,877.50 for travel to Los Angeles by Mr. Wallace be stricken. (Bassirian Decl., ¶ 31, Ex. O.)  R&R argues that it was unnecessary for Wallace to conduct depositions when other attorneys in the firm were available in Los Angeles already.

The Court finds this request suffers from the same generalization as the request to strike block billing. The entries included in Exhibit O indicate that Wallace was billing for work in preparing the deposition while enroute to Los Angeles from Oakland. The Court notes the entries did not bill for travel back to Oakland because Wallace did not work on the case during return travel. The entries appear to relate to the conduct of the deposition and not the travel itself and the Court finds these fees reasonable. Where time appears appropriately billed, the Court declines to police a firm’s decision on which attorneys handle depositions.

Conclusion

In conclusion, the Court finds the vast majority of Roski’s attorney’s fees were reasonably necessary to her pre and post judgment efforts.

For clarity the fees originally sought by Roski’s motion are as follows:

·         $276,933.00 in general post judgment enforcement efforts

·         $61,513.50 for bankruptcy action representation

·         $223,027.00 for the PCIC action

·         $23,938.00 for the alter-ego motion

·         Total Fees Requested = $585,411.50

The Court now awards attorney’s fees as to each of these categories as follows:

·         $253,443 in general post judgment enforcement efforts

o   Reduced by $330, attributable to partner Kassan

o   Reduced by $23,160 attributable to August 2023 mediation

·         $61,513.50 for bankruptcy action representation

o   No reduction

·         $110,148.5 for the PCIC action

o   Reduced by $108,026 for entries which are barred by C.C.P. § 685.080

o   Reduced By $4,852.50 for entries attributable to partner Dennis

·         $13,237.25 for the alter-ego motion

o   Reduced by $3,573, attributable to partner Dennis

o   Reduced by $7,127.75, reflecting a 35% reduction as the motion was only partially successful.

·         Total Fees Awarded = $438,342.25

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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 

Reon Roski’s Motion for Attorney’s Fees came on regularly for hearing on February 9, 2024, 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 MOTION IS GRANTED.

ATTORNEY’S FEES ARE AWARDED IN THE AMOUNT OF $438,342.25

UNLESS ALL PARTIES WAIVE NOTICE, REON ROSKI TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: February 9, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles