Judge: Gail Killefer, Case: 21STCV44518, Date: 2024-12-23 Tentative Ruling
Case Number: 21STCV44518 Hearing Date: December 23, 2024 Dept: 37
HEARING DATE: Monday, December 23, 2024
CASE NUMBER: 21STCV44518
CASE NAME: Andrew K. Chung v.
Vincent Sungtae Kim, et al.
MOVING PARTY: Plaintiff Andrew Chung
OPPOSING PARTY: None
TRIAL DATE: August 2, 2024 (Verdict
for Plaintiff Chung)
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s
Fees
OPPOSITION: None
REPLY: Notice
of non-opposition filed 11/21/2024
TENTATIVE: Plaintiff’s motion for
attorney’s fees and costs is granted in the sum of $86,461.86.
Background
This
is a financial elder abuse case arising out of Plaintiff Andrew Chung investing
$640,000 into AWP Energy, Inc., a joint venture formed by Defendants Vincent
Kim and Man Ho Joung, based on their intentional false representations to
Plaintiff and subsequent misappropriation of Plaintiff’s investment.
On
December 6, 2021, Plaintiff filed his original Complaint alleging five causes
of action: (1) fraud, (2) intentional misrepresentation, (3) negligent
misrepresentation, (4) unjust enrichment, and (5) breach of fiduciary duty.
On
November 29, 2022, Plaintiff filed a First Amended Complaint (“FAC”) alleging five
causes of action: (1) fraud, (2) intentional misrepresentation, (3) negligent
misrepresentation, (4) unjust enrichment, and (5) financial elder abuse.
On
June 25, 2024, this action came on regularly for jury trial. On July 2, 2024,
the jury deliberated and thereafter returned a verdict in favor of Plaintiff on
all cause of actions in the case, including Plaintiff’s claim of Financial
Elder Abuse.
On
August 2, 2024, the court entered the Judgment in favor of Plaintiff, and on
August 23, 2024, Plaintiff’s counsel served and filed Notice of Entry of
Judgment.
On
October 8, 2024, Plaintiff filed the instant motion for attorney’s fees of
$124,453.28 and costs of $3,865.38 in conjunction with litigating this action,
for a total requested amount of $128,318.66. The motion is unopposed.
I. Legal Standard
A. Standard on Attorney’s Fees in
General
The party claiming attorney’s fees must
establish entitlement to such fees and the reasonableness of the fees
claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66
Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by
statute, the measure and mode of compensation of attorneys and counselors at
law is left to the agreement, express or implied, of the parties[.]” (CCP, §
1021.) A prevailing party in entitled to recover costs, including attorney’s
fees, as a matter of right. (CCP, §§ 1032(a)(4), 1032(b), 1033.5.)
“[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.” (PLCM Group v. Drexler
(2000) 22 Cal.4th 1084, 1095.) From there, 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.” (Ibid.)
After the trial court has performed the lodestar calculations, “it shall
consider whether the total award so calculated under all of the circumstances
of the case is more than a reasonable amount and, if so, shall reduce the [] award
so that it is a reasonable figure.” (Id. at p. 1095–96.)
“When a cause of action for which
attorney fees are provided by statute is joined with other causes of action for
which attorney fees are not permitted, the prevailing party may recover only on
the statutory causes of action. However, the joinder of causes of action
should not dilute the right to attorney fees. Such fees need not be
apportioned when incurred for representation of an issue common to both a cause
of action for which fees are permitted and one for which they are not.
All expenses incurred on the common issues qualify for an award.” (Akins
v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.) “When
the liability issues are so interrelated that it would have been impossible to
separate them into claims for which attorney fees are properly awarded and
claims for which they are not, then allocation is not required.” (Ibid.)
B. Standard on Attorney’s Fees for Elder
Abuse
“The Legislature enacted the Elder Abuse
Act ‘to protect elders by providing enhanced remedies which encourage private,
civil enforcement of laws against elder abuse and neglect.’ [Citation.]
These remedies include reasonable attorney fees and costs. (§§ 15657, subd.
(a), 15657.5, subd. (a).) The Elder Abuse Act defines ‘abuse’ as
‘[p]hysical abuse, neglect, abandonment, isolation, abduction, or other
treatment with resulting physical harm or pain or mental suffering,’
‘deprivation by a care custodian of goods or services that are necessary to
avoid physical harm or mental suffering,’ or ‘[f]inancial abuse, as defined in
Section 15610.30.’ (§ 15610.07, subd. (a).)” (Arace v. Medico Inv.,
LLC (2020) 48 Cal.App.5th 977, 981–982.)
Financial abuse occurs when a person or entity “[t]akes,
secretes, appropriates, obtains, or retains real or personal property of an
elder or dependent adult for a wrongful use or with intent to defraud” or
“assists in taking, secreting, appropriating, obtaining, or retaining real or
personal property of an elder or dependent adult for a wrongful use or with
intent to defraud.” (Welf. & Inst. Code, § 15610.30, subds. (a)(1),
(2).) “When a plaintiff provides ‘by a preponderance of the evidence that
a defendant is liable for financial abuse, as defined in Section 15610.30, in
addition to compensatory damages and all other remedies otherwise provided by
law, the court shall award to the plaintiff reasonable attorney’s fees and
costs.’” (Arace, supra, 48 Cal.App.5th at 982 (quoting
Welf. & Inst. Code, § 15657.5(a).) “Such fees need not be apportioned when
incurred for representation of an issue common to both a cause of action for
which fees are permitted and one for which they are not. All expenses incurred
on the common issues qualify for an award.” (Akins, supra, 79
Cal.App.4th at p. 1133.)
II. Discussion
Plaintiff moves for $124,453.28 in attorney’s fees
and $3,865.38 in costs for a total requested award of $128,318.66. (Declaration of Daniel E. Park (“Park Decl.”), Exhs. 2–4.) Defendant
does not oppose the motion. Plaintiff asserts he is entitled to reasonable
attorney’s fees and costs as the prevailing party under CCP § 1033.5 and Welf. & Inst. Code §¿15657 because the court
entered judgment in Plaintiff’s favor on all causes of action, including financial
elder abuse. (Park Decl., ¶ 17, Ex. 1.)
A. Timeliness
“A notice of motion to claim attorney’s fees for services up to
and including the rendition of judgment in the trial court... must be served
and filed within the time for filing a notice of appeal under rules 8.104 and
8.108.” (CRC, rule 3.1702(b)(1).) The deadline to file a notice of appeal, and
by extension a motion for attorney’s fees, is 60 days after service of notice
of entry of judgment. (CRC, rule 8.104.)
The motion is timely filed because Plaintiff filed the instant
motion on October 8, 2024, within the sixty-day statutory period beginning on
August 23, 2024. Defendant has filed no opposition to this
Motion.
B. Reasonable
Hourly Rates¿¿
¿
In
determining what constitutes a reasonable compensation for an attorney who has
rendered services in connection with a legal proceeding, the court may and
should consider the nature of the litigation, its difficulty, the amount
involved, the skill required and the skill employed in handling the litigation,
the attention given, the success of the attorneys’ efforts, their learning,
their age, and their experience in the particular type of work demanded the
intricacies and importance of the litigation, the labor and necessity for
skilled legal training and ability in trying the cause, and the time consumed.
(Stokus v. Marsh (1990) 217
Cal.App.3d 647, 657 (Stokus).)
In setting the hourly rate for an attorney’s fees award, courts
are entitled to consider the rate of “fees customarily charged by that attorney
and others in the community for similar work.” (Bihun v. AT&T
Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of
$450 per hour], overruled on other grounds by Lakin v. Watkins Associated
Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial,
LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in
other cases, particularly those setting a rate for the plaintiffs' attorney,
are satisfactory evidence of the prevailing market rate.”].)
The hourly billing rates of Park LLP’s attorneys in this action
are as follows:
(Park Decl., ¶¶ 24-25, Ex. 4.)
Park LLP’s law clerks and paralegals claim an hourly billing rate
of $150. (Park Decl., ¶ 26, Ex. 4.)
Daniel Park claims an hourly rate of $495. Mr. Park has been a partner
at Park LLP since its inception in 2022 and has 27 years of litigation
experience, with extensive trial experience and a focus in business dispute resolution.
(Park Decl., ¶ 24.) Mr. Park is the partner responsible for this case and
worked with a team of two associate attorneys, law clerks and paralegals over
the course of the litigation and trial. (Ibid.) At the time this action
commenced in December 2021, Mr. Park’s hourly rate was $495 based on his
experience and skill.
(Ibid.) After a consideration of the relevant factors, including Mr.
Park’s experience, the duration of the litigation and the skill required, the court
finds that $495 is a reasonable hourly rate for an attorney with similar skill
and experience. (Stokus, supra, 217 Cal.App.3d at 657.)
Wil Rios claims an hourly rate of $295. While Mr. Rios did not
submit a declaration justifying this rate, Mr. Park states that this rate is
justified based on Mr. Rios’ experience and skill as an associate attorney and
this hourly rate is standard for an associate attorney at Park LLP. (Park
Decl., ¶ 24.) After
a consideration of the relevant factors, including Mr. Rios’ experience, the
duration of the litigation and the skill required, the court finds that $295 is
a reasonable hourly rate for an attorney with similar skill and experience. (Stokus, supra, 217 Cal.App.3d at 657.)
Sam Izzo claims an hourly rate of $295. While Mr. Izzo did not
submit a declaration justifying this rate, Mr. Park states that this rate is
justified based on Mr. Izzo’s experience and skill as an associate attorney. (Park
Decl., ¶ 24.) The hourly rate is standard for an associate attorney at Park LLP,
consistent with the rate claimed by Mr. Rios, another associate with similar
experience. (Park Decl., ¶ 24.) After
a consideration of the relevant factors, including Mr. Izzo’s experience, the
duration of the litigation and the skill required, the court finds that $295 is
a reasonable hourly rate for an attorney with similar skill and experience. (Stokus, supra, 217 Cal.App.3d at 657.)
The law clerks and paralegals for this matter claim a billing rate
of $150 per hour. (Park Decl., ¶ 26.) The law clerks and paralegals provided
document drafting, filing and service support for this matter. The court finds the hourly rate
of $150 reasonable for staff with similar skill and experience. (Stokus, supra, 217 Cal.App.3d at 657.)
The court finds that the hourly
rates charged by Plaintiff’s counsel are reasonable.
C. Reasonable Time Spent
on the Litigation¿
¿
“‘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.’” (Lunada Biomedical v. Nunez¿(2014)
230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163¿Cal.App.4th¿550, 564.) The court
will exercise its discretion in determining if the Plaintiffs’ attorney’s fees
request is reasonable by considering the following factors: the nature of
litigation, its difficulty, the amount involved, the skill required in handling
the matter, the attention given, the success or failure, and the resulting
judgment. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)
Plaintiff argues the amount of time billed for
this elder abuse case is reasonable, as supported by the billing records for
the time incurred to litigate this matter in court. (Park Decl., ¶ 27, Ex. 4.) Plaintiff
notes that its billing entries reflect the legal services necessary to
represent the Plaintiff in this matter, including: filing the Complaint; preparing
and filing the Opposition to Defendant’s Demurrer and Motion to Strike; filing
the First Amended Complaint; attending and preparing for hearings; conducting
written discovery, including interrogatories, requests for admission and
document production; taking Defendant Kim’s deposition, preparing for Mandatory
Settlement Conference, preparing and filing briefs and pretrial documents; and
preparing for and attending the six-day jury trial. (Mot., 9:25-10:12; Park
Decl., ¶ 27.)
Plaintiff
asserts that the legal services associated with Plaintiff’s elder abuse claim
are common and interrelated issues that the fees cannot be apportioned with
attorney fees that are not compensable. (Akins, supra, 79
Cal.App.4th at p. 1133.) The court disagrees to a certain
extent. Plaintiff filed this action on December 6, 2021, but the complaint did
not include a cause of action that permitted attorney fees. The elder abuse
claim was not added until the filing of the FAC on November 29, 2022. Consequently,
any work prior to the drafting of the FAC is not compensable because no statute
provides for attorney’s fees as to the claims asserted in the original
complaint. Plaintiff’s billing entry for June 28, 2022, reflects that this was
the date that Plaintiff’s counsel started amending the FAC to add an elder
abuse claim. Therefore, any work done before June 28, 2022, totaling $15,919.50
in fees, will be deducted from the lodestar.
The bills submitted by Plaintiff also include several instances of
incorrect hourly rates for law clerks above the reasonable hourly rate of $150
for such staff and without supporting evidence to justify billing above this
rate. (Park Decl., Ex. 4.) Accordingly, the court reduces these law clerk rates
to $150 as follows:
10/17/22 1 hour x ($250-$150) = $100
11/29/22 1 hour x ($250-$150) = $100
9/8/23 3
hours
x ($295-$150) = $435
6/27/24 4 hours x ($250-$150) =
$400
10/7/24 3.6667 hr x ($295-$150) = $531.67
As reflected above, the reductions to hourly fees due to incorrect
billing rates total $1,566.67, which will be deducted from the lodestar.
Plaintiff’s
counsel billed 25.80 hours to draft this simple fee Motion and incurred
$6,130.85 in fees. The court finds the hours billed in drafting this fee motion
was excessive. Two law clerks/paralegals should have billed no more than 2.0
hours (totaling $300.00) on this fee Motion. An associate revising,
researching, and drafting this Motion should have billed no more than 4.0 hours
(totaling $1,180.00) on this fee Motion. Mr. Park in drafting and revising his
declaration and this Motion, including preparing for the hearing on this
Motion, should have billed no more than 4.0 (totaling $1,485.00) on this fee
Motion. Thus, $3,165.85 will be deducted from the lodestar ($6,130.85 -
$2965.00 = $3,165.85).
Lastly,
in analyzing the Plaintiff’s billing statements, the court observed various
instances of duplicative and inefficient billing practices.
This
includes excessive billing for preparing and attending the January 5, 2023, hearing
because the parties appeared telephonically, and the court continued the
hearing. Plaintiff also billed excessively for attending the Case Management Conference
and the OSC: Answer or Default on May 8, 2023, because attending the hearing
takes no more than 30 minutes and the Parties appeared virtually.
Attending
the Final Status Conference hearing on April 30, 2024, should have taken no
more than 20 minutes to attend as the parties orally stipulated to continue the
hearing. Yet Mr. Park, Mr. Rios, and a law clerk billed a total of 6 hours for
attending the hearing when the record shows that only Mr. Rios made an
appearance. On June 25, 2023, a law clerk billed 8.5 hours to “Compile
documents for trial and exhibit binders; Attend Jury Trial” despite his
attendance not being necessary and no legal work being performed.
Plaintiff
also billed for non-compensable clerical tasks. “Of course, purely clerical or
secretarial tasks should not be billed at a paralegal rate, regardless of who
performs them.” (Missouri v. Jenkins by Agyei (1989) 491 U.S.
274, 288, fn. 10.) “Time spent on clerical tasks are typically excluded by
courts because such tasks are properly considered part of an attorney's
overhead and are reflected in his or her hourly rate.” (Spitz Technologies
Corp. v. Nobel Biocare USA LLC (C.D. Cal., Aug. 13, 2018, No.
SACV1700660JVSJCGX) 2018 WL 6016149, at *3, aff'd (Fed. Cir. 2019) 773
Fed.Appx. 625; see also Neil v. Commissioner of Social Sec. (9th Cir.
2012) 495 Fed.Appx. 845, 847 [“We find that the district court did not abuse
its discretion in declining to award Neil attorney's fees for purely clerical
tasks such as filing documents and preparing and serving summons.”].)
On
June 15, 2022, Plaintiff billed 0.25 hours to file and serve SROGS. Plaintiff’s
block billing for June 29, 2022 includes time spent eServing opposing counsel. On
April 19, 2022, Plaintiff billed 0.5 hours for the clerical task of “Draft,
serve, and file Proof of Service; locate and edit First Amended Complaint.”
On
July 7, 2023, 0.25 hours were filled to “Compile documents to assist with case
strategy.” Plaintiff’s July 8, 2023 block billing include time spent to “File
and Serve the Notice of Posting Jury Fees.” On July 11, 2023, 0.25 hours were
billed for “Compile documents to assist with case strategy.” On July 17, 2023,
the 0.75 hours spent on “Work on initial draft of the Notice of Ruling;
Finalize the Notice of Ruling” including time spent to “File and serve the
Notice of Ruling.” On March 7, 2023, 0.83 hours were billed for “Conduct
document retrieval and review.”
On
July 23, 2024, Plaintiff billed 0.16 hours for “Project Management re pre-trial
documents” and block billed 2.0 hours for “Document retrieval, upload, and
organization; Revision of Jury Instructions.” On April 26, 2024, 1.0 hours were
block billed for “File/serve pretrial documents; Correspond with clerk re.
pretrial documents procedure; Download documents and upload to firm folder” and
0.75 hours to “Finalize pretrial documents; oversee filing and service of same;
oversee creation of trial notebooks for same.” On June, 25, 2024, Plaintiff’s
counsel billed 0.5 hours for “File and serve pre trial document.” On October 1,
2024, Plaintiff’s counsel billed 0.5 hours to “Gather all invoices for this
case and organize them for firm record keeping purposes.”
“Although
discussions in the case law of the use of multipliers to adjust a lodestar
figure relate primarily to the use of multipliers to increase fees, our Supreme
Court has repeatedly observed that a lodestar figure may be adjusted not just
upward but also, where appropriate, downward.” (Thayer v. Wells Fargo
Bank, N.A. (2001) 92 Cal.App.4th 819, 840; Graciano v. Robinson Ford
Sales, Inc. (2006) 144 Cal.App.4th 140, 160 [accord].) “To the extent a
trial court is concerned that a particular award is excessive, it has broad
discretion to adjust the fee downward or deny an unreasonable fee altogether.”
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)
To
correct the above billing inefficiencies the court applies a negative
multiplier of 0.2 to the lodestar.
D. Reasonable Costs Incurred in the
Litigation¿
Plaintiff seeks $3,865.38 in costs
incurred while litigating this matter. (Park Decl., ¶
28.) Defendant
does not object to the reasonableness of the costs incurred by Plaintiff’s
counsel.
The court reviewed the costs submitted
by Plaintiff’s counsel for review and finds the evidence submitted by
Plaintiff’s counsel does not support the full requested amount. Instead, the
costs submitted include only the following: $1,308 in deposition costs,
$1,449.17 in filing fees, and $663.68 in jury fees, totaling $3,420.85. (Park
Decl., ¶ 14; Exhs. 2–3.) The court finds these costs were reasonably
incurred in litigating Plaintiff’s claims. Accordingly, the court reduces the
amount of reasonable costs incurred from $3,865.38 to $3,420.85.
E. Lodestar Adjustments
Deductions total $20,652.02, and after subtracting
it from the fee request of $124,453.28,
the new lodestar is $103,801.26. After applying a 0.2 negative multiplier
($103,801.26 x 0.2 = $20,760.25), the adjusted lode star is $83,041.01.
Applying these reductions to the requested
attorney’s fees and costs, the court concludes that the following hourly fees
and costs incurred by Plaintiff’s counsel were reasonable and necessary:
Adjusted Lodestar: $83,041.01
Costs: $3,420.85
Total fees and costs $86,461.86
Plaintiff’s
motion for attorney’s fees and costs is granted in the sum
of $86,461.86.