Judge: Gail Killefer, Case: 19STCV31322, Date: 2023-05-10 Tentative Ruling


Case Number: 19STCV31322    Hearing Date: May 10, 2023    Dept: 37

HEARING DATE:                 May 10, 2022     

CASE NUMBER:                   19STCV31322

CASE NAME:                        AAS Design, LLC a California limited liability company v. Crenshaw Investors, LLC, a Delaware limited liability company, et al.

MOVING PARTY:                 Defendant, Crenshaw Investors, LLC, a Delaware limited liability company

OPPOSING PARTY:             Plaintiff, AAS Design, LLC, a California limited liability company

TRIAL DATE:                        None

PROOF OF SERVICE:           OK

                                                                                                                                                           

MOTION:                               Defendant’s Motion for Attorney’s Fees  

OPPOSITION:                        None filed.  

REPLY:                                  No Opposition filed as of May 9, 2023.   

                                                                                                                                                           

TENTATIVE:                         Defendant’s motion is granted in part. Defendant is awarded attorney’s fees of $20,245.50 and costs of $1,555.60. Defendant is to give notice.

 

                                               

                                                                                                                                                           

Background

This action arises out of a dispute between a tenant, AAS Design, LLC (“Plaintiff”) and a property owner, Crenshaw Investors, LLC (“Defendant”) regarding a commercial property located at 3641 10th Avenue, Los Angeles, California 90018 (the “Premises”).  The operative First Amended Complaint (“FAC”) alleges that Defendant is an out-of-state commercial property investor which bought the Premises in June 2017 but is in the process of selling or has already sold the Premises.

Plaintiff alleges that its owner, Azadeh Shaladovsky (“Shaladovsky”), operates an interior design and architecture practice. Shaladovsky alleged began leasing the Premises in March 2018 to use as a permanent location to display her works and for other community projects pursuant to a written lease between the parties (the “Lease”). Plaintiff alleges that the Premises began suffering water intrusion before the effective date of the lease, and that such water intrusion continued as of December 2019 despite Defendant’s representations that the roof repair had been satisfactorily completed. Specifically, Plaintiff alleges that Shaladovsky gave Defendant notice on multiple occasions that the Premises suffered water intrusion and required repair and that Defendant promised to provide repairs but repeatedly failed to do so through December 2019. Plaintiff alleges that as a result of the water intrusion and Defendant’s failure to provide repairs, Shaladovsky has incurred significant personal expenses to bring the Premises up to a suitable condition for opening her business but has been unable to do so as of the filing of the FAC.

On August 31, 2020, Plaintiff filed the operative Second Amended Complaint. (“SAC”) The SAC alleges the following causes of action: (1) breach of contract, (2) breach of covenant of quiet enjoyment, (3) negligent interference with prospective economic relations, (4) negligent misrepresentation.

On June 2, 2021, Defendant’s Motion for Summary Judgment was granted. On August 18, 2021, Plaintiff filed an appeal as to the court’s ruling on Defendant’s Motion for Summary Judgment.

Defendant moved for attorney’s fees pursuant to CCP § 1717. On February 17, 2022, the court granted Defendant’s motion in part and awarded attorney’s fees of $72,490 and costs of $3,326.50 (“February 17 Order”). Plaintiff appealed the summary judgment and the attorney fees award.

On November 7, 2022, the Court of Appeal affirmed both the judgment and the award of attorney fees.

Defendant now moves for an additional attorney fee award and additional costs. Plaintiff has not filed an opposition.

Discussion

 

I.                Legal Standard 

 

California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees.  (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.)  Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery.  (See Code Civ. Proc., § 1021.)   

 

Civil Code, § 1717(a) provides in relevant part: 

 

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. 

 

“[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.”  (Civ. Code, § 1717(b).)  Attorney fees are awarded based “upon the terms of the contractual attorney fee provision” pursuant to CCP § 1021.  (Santisas v. Goodin (1998) 17 Cal.4th 599, 602.)  “The primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.”  (Id. at p. 610.)  The Supreme Court recognized that in order to ensure mutuality, “it has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party’s recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed.”  (Id. at p. 611.) 

 

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . .  The reasonable hourly rate is that prevailing in the community for similar work.  The lodestar figure may then be adjusted, 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.”  (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted].)  The primary factor for determining the fairness of fees is “whether the fees bear a reasonable relationship to the value of the attorneys’ work.”  (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 451.)  Courts have adopted a practice of cross-checking the lodestar against the value of the class recovery because the award is then “anchored” in the time spent by counsel.  (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 45.)   

 

CCP § 1032 allows for the recovery of costs by a prevailing party as a matter of right.   “‘Prevailing party’¿includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”¿ (CCP § 1032(a)(4).)¿¿Pursuant to CCP § 1033.5(a)(10)(B)-(C), attorney’s fees are recoverable as costs when authorized by “statute” or “law.” 

 

“ ‘[B]ecause¿contractually authorized attorney fees are now listed as costs under Code of Civil Procedure section 1033.5, … they may either be requested of the court of appeal while the appeal is pending, or of the trial court upon issuance of the remittitur.¿ The trial court has jurisdiction to award them, regardless of the lack of specific instructions in the opinion or the remittitur.’ ”¿ (Butler-Rupp v.¿Lourdeaux¿(2007) 154 Cal.App.4th 918, 924, quoting¿Harbour¿Landing-Dolfann, Ltd. v. Anderson¿(1996) 48 Cal.App.4th 260, 264-265.)¿ 

 

II.             Analysis

 

A.    Basis for Attorney’s Fees

 

Defendant has already established their entitlement to attorney fees in the prior February 17, 2022 hearing. (February 17 Order, 4-5.) Here, Defendant asserts it is entitled to additional attorney fees and costs as the prevailing party on appeal, pursuant to California Rules of Court, Rule 8.278(a). (Motion, 6-7.)

 

“Here, pursuant to Rule 8.278(a)(2), Defendant is the prevailing party according to the Court of Appeal’s November 7, 2022 decision, which affirmed this Court’s grant of judgment in favor of Defendant.” (Motion, 7.)

 

Pursuant to California Rules of Court, rule 8.278(a)(2), a party “prevailing in the Court of Appeal in a civil case other than a juvenile case” is entitled to costs on appeal except when “…[t]he prevailing party is the appellant if the court reverses the judgment in its entirety.”  

 

Further, as previously established, Defendant again asserts its entitlement to attorney fees pursuant to the Lease’s Attorney Fees provision, contained in paragraph 31 of the Lease. (Motion, 7-8; Goodkin Decl. ¶15, Exh. A.)

 

The court agrees with Defendant. Defendant had previously established entitlement to attorney fees prior to the appellate court’s decision, and now has established its entitlement to additional attorney fees and costs as the prevailing party on appeal, pursuant to CRC Rule 8.278(a) and CCP section 1033.5.

 

Thus, the court finds that Defendant is entitled to additional attorney’s fees and costs. The court will proceed to analyze the reasonableness of the amounts requested.

 

B.    Reasonableness of Rates Requested

 

Defendant again requests attorney’s fees for four attorneys (Daniel L. Goodkin, Gregory Maestri, Elisabeth Turner, and Michaela Hall) and one law clerk (Michael Seuylemezian), who bill at between $95 to $450 per hour. Defendant submits the declaration of Daniel L. Goodkin (“Goodkin”) in support of its request.

 

Goodkin attests that his billing rate for this matter is $450 per hour. (Goodkin Decl. ¶ 17(a).) Goodkin has been licensed to practice law in California since 1987 and has focused on business litigation and real estate matters. (Id.) Goodkin attests that Maestri’s billing rate was $315, then increased to $345 per hour. (Goodkin Decl. ¶ 17(b).) Goodkin attests that Maestri has been licensed to practice since 2015 and has primarily focused his practice on representing developers, commercial property owners and other clients in litigation matters. (Id.) Goodkin attests Elisabeth Turner’s billing rate is $365 per hour. (Goodkin Decl. ¶17(c).) Michaela Hall’s billing rate is $325 per hour. (Goodkin Decl. ¶17(d).) Finally, Goodkin attests that Michael Seuylemezian’s billing rate is $95 per hour and that he is a graduate of Loyola Law School who worked as a law clerk for the firm prior to passing the Bar. (Goodkin Decl. ¶ 17(e).)

 

Plaintiff does not challenge the reasonableness of defense counsel’s requested rates.

 

The court finds that the requested rates are reasonable given each attorney or paralegal’s experience and the prevailing market.

C.    Reasonableness of Lodestar Requested

 

Defendant requests a lodestar of $20,245.50 representing 58 hours of attorney time. Goodkin attests that this amount includes work performed during the appeal through the hearing on the instant motion. (Goodkin Decl. ¶ 18.) Specifically, Goodkin attests that this work included: analyzing the Notice of Appeal and conferring with opposing counsel; analyzing and attending to a settlement offer; corresponding with appellate counsel; preparing for oral argument on appeal; attending the hearing on appeal; and reviewing appellate documents. (Goodkin Decl. ¶ 16.) Goodkin submits billing statements as Exhibit E to his declaration in support of the amounts requested.

 

Plaintiff has not filed an opposition and thus does not challenge the reasonable of the hours requested.

 

According to the Goodkin Declaration, he anticipates that defense counsel will spend 8 hours reviewing the opposition and preparing a reply and 2 hours attending the hearing on this motion. (Goodkin Decl. ¶ 19.) No opposition was filed, nor a reply, and thus, the court finds that the amount requested for reviewing the opposition and preparing a reply is excessive. Additionally, much less time is required to attend a hearing via CourtConnect than the amount budgeted. For these reasons, the court reduces the requested lodestar by $4,500.00.

 

Defendant’s motion is granted in part. The court awards a total lodestar of $ 20,245.50.

 

D.    Request for Costs

 

Defendant requests costs in the amount of $1,555.60, for filing and motion fees and copy fees for appeal, as well as this present attorney fees motion. (Motion, 13.) Plaintiff does not oppose the request for costs as well.

Defendant’s request for costs is granted. “[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.”  (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) 

 

Conclusion

 

Defendant’s motion is granted in part. Defendant is awarded attorney’s fees of $20,245.50 and costs of $1,555.60. Defendant is to give notice.