Judge: Gail Killefer, Case: 22STCV23235, Date: 2023-12-14 Tentative Ruling
Case Number: 22STCV23235 Hearing Date: March 26, 2024 Dept: 37
HEARING DATE: Tuesday, March 26, 2024
CASE NUMBER: 22STCV23235
CASE NAME: James Joseph Frank v. Evolv Integrated
Technologies Group Inc., et al.
MOVING PARTY: Defendants KBLED, Inc., All-In
Energy Group LLC, Kenneth Bruce Shaevel, Jamie Shaevel (erroneously sued herein
as Jaime Shaevel), and Bruce Merino
OPPOSING PARTY: Plaintiff James Joseph Frank
TRIAL DATE: Post Judgment
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s Fees
OPPOSITION: 13 March 2024
REPLY: 18
March 2024
TENTATIVE: Defendants’ motion for attorney’s fees is
granted in the sum of $38,303.50 plus $3,455.31 in costs. Defendants to give
notice.
Background
On July 19, 2022, James Joseph Frank filed a Complaint against
Evolv Integrated Technologies Group, Inc.; KBLED, Inc., All-In Energy Group
LLC, Inesa International Corp.;
Feilo International Trade Co. Ltd.; Kenneth Bruce Shaevel, Jamie Shaevel
(erroneously sued herein as Jaime Shaevel), and Bruce Merino, and Does 1 to 50.
The operative First
Amended Complaint (“FAC”) alleges four causes of action: (1) breach of written
contract against Defendants Feilo International Trade Co. Ltd (“Felio”), Jamie
Shaevel (“Jamie”), Bruce Merino (“Merino”) and Does 1 to 50; (2) Declaratory
relief against all Defendants; (3) injunctive relief again all Defendants; and
(4) fraud against all Defendants.
Defendants KBLED,
Inc. (“KBLED”), All-In Energy Group LLC (“All-In”), Kenneth Bruce Shaevel
(“Kenneth”), Jamie Shaevel (“Jamie”), and Bruce Merino (“Merino”) (collectively
“Moving Defendants”) filed a Special Motion to Strike the FAC pursuant to CCP §
425.16 and a demurrer with a motion to strike the FAC. On December 18, 2023,
Defendants’ Anti-SLAPP was granted.
Defendants now move
for attorney’s fees. Plaintiff opposes the Motion. The matter is
now before the court.
I. Legal Standard
A prevailing party is entitled to recover costs,
including attorneys’ fees, as a matter of right.¿ (CCP §§ 1032(a)(4), 1032(b),
1033.5.)¿Attorney’s fees may be recovered as costs when authorized by
contract, statute, or law. (CCP § 1033.5(a)(10).)¿The prevailing party on a
contract, which specifically provides for attorney fees and costs incurred to
enforce the agreement, is entitled to reasonable attorney fees in addition to
other costs.¿ (Civ. Code § 1717(a); CCP §§ 1032, 1033.5(a)(10)(A).)¿ The court,
upon notice and motion by a party, shall determine the prevailing party and
shall fix, as an element of the costs of the suit, the reasonable attorney
fees.¿ (Civ. Code § 1717(a), (b).)¿¿¿¿¿
“It is well established that the determination of what constitutes
reasonable attorney fees is committed to the discretion of the trial court,
whose decision cannot be reversed in the absence of an abuse of discretion.”¿ (Melnyk
v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)¿The fee setting inquiry in
California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of
hours reasonably expended multiplied by the reasonable hourly rate.”¿(Graciano
v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)¿ 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.¿ (See Serrano v. Priest (1977) 20 Cal.3d 25, 49
(discussing factors relevant to proper attorneys’ fees award).)¿ The factors
considered in determining the modification of the lodestar 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.”¿ (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266,
271.)¿¿¿¿¿
Pursuant
to CCP § 425.16(c), a prevailing defendant is entitled to recover attorneys’
fees and costs associated with the motion. Under CRC 3.1702, a request for
attorneys’ fees must be made within 180¿days of service of the notice of entry
of judgment or “within the time for filing a notice of appeal under rules 8.104
and 8.108 in an unlimited civil case[.]” A defendant may only recover fees and
costs related to the motion to strike. (Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This includes
fees associated with bringing the motion for fees. (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not only the fees
incurred with respect to the underlying claim, but also the fees incurred in
enforcing the right to mandatory fees under Code of Civil Procedure section
425.16.”).) Additionally, “[a]ny fee award must also include those incurred on
appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th 113,
122.)¿¿¿
III. Discussion
Defendants move for
an award for attorney’s fees in the sum of $51,345.00, plus costs and expenses.
A. Reasonable Hourly
Rates
“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.)
Defense
counsel Robert K. Full began his legal career in 1975 and his hourly billing
rate in 2008 was $440.00 per hour. (Kull Decl. ¶ 2.) Defense counsel Kevin P.
Hall graduated from law school in 1985 and has about 35 years of experience
practicing law. (Hall Decl. ¶ 2.) Defense counsels’ hourly billing rate for
this matter was $450.00 per hour. (Kull Decl. ¶ 3.)
Based
on the court’s experience, the experience of Defense counsel, and the services
performed, the court finds that Defense counsel’s hourly rates are reasonable.
(See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) No deductions will be made based on
the Defense counsels’ hourly rate.
B. Reasonable Hours Spent
The
burden is on the party seeking attorney’s fees to prove that the fees it seeks
are reasonable. (See Vines v. O'Reilly Auto Enterprises, LLC (2022) 74
Cal.App.5th 174, 184.) But “‘[i]n 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 anti-SLAPP statute
provides for an award of attorney fees and costs to the prevailing defendant on
a special motion to strike. (§ 425.16(c).) The defendant may recover fees and
costs only for the motion to strike, not the entire litigation.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th
1315, 1320.) In conjunction with the special motion to strike under CCP § 425.15,
Defendants also filed a demurrer to the FAC with a motion to strike under CCP §
436. (See 12.18.23 Order.) The court granted the Anti-SLAPP motion, and the
demurrer and motion to strike were taken off calendar as moot. Despite spending
time drafting a demurrer and motion to strike, section 425.25(c) only permits
the recovery of attorney’s fees for the motion to strike and not the related
demurrer and motion to strike.
However, Plaintiff fails to consider that Defendants are also
requesting attorney’s fees for the entire time spent litigating this action
under Civ. Code § 1717, as the prevailing party in a breach of contract action,
here the Sales Manager Employment Agreement between Plaintiff and Defendant
Evolv. (Kull Decl. ¶ 7, Ex. C, § 10.)
Plaintiff fails to explain why Defendants cannot recover the entire cost of the
litigation pursuant to Civ. Code §§ 1717 and 415.16. Therefore, Defense counsel
may recover fees for the entire time spent defending this action. Defense
counsel seeks fees for this matter, consisting of $49,095.00 for the time
already spent defending this action plus another 5.0 hours or $2,250.00 spent
reviewing the opposition, preparing a reply, and appearing at the hearing.
(Kull Decl. ¶ 8.) This brings the fee total to $51,345.00. (Ibid.)
Defense counsel Kull billed 99.9 hours for this matter and Defense counsel Hull
billed 9.2 hours resulting in a total of 117.4 hours spent litigating this
action.
a. 1.0 Hour to Prepare File and Notice of
Related Cases
The court finds that
although the filing was mandated, it should only have taken Defense counsel 0.5
hours to complete the form and related filing. Therefore, 0.5 hours or $224.00
will be deducted from the lodestar.
b. 20.3 Hours Spent on Informally Resolving
the Issues Raised by Filing the Complaint and FAC in this Action
Defense counsel’s
billing records show that about 7.6 hours, excluding research, were spent on
drafting the meet and confer letter and email. (Mot. Ex. D.) The court agrees
that the time billed is excessive and Defense counsel should have spent at most
2.5 hours drafting and revising the corresponding email.
Accordingly, 5.1
hours or $2,295.00 will be subtracted from the lodestar.
Defense counsel
billing records reflect that about 30.73 hours were spent drafting and
revising the demurrer to the FAC, including the request for judicial notice and
declaration. This does not include the time spent researching the basis for the
demurrer on 5-22-24 and 5-24-24. Defense counsel’s meet and confer letter to
the Plaintiff’s counsel already highlighted the deficiencies in the Plaintiff’s
Complaint, which formed the basis of the Plaintiff’s demurrer and motion to
strike.
The court finds
that Defense counsel should have spent about 10.5 hours drafting the demurrer,
accompanying request for judicial notice, and any declaration related to the
demurrer. This does not include the time spent preparing for the hearing or
time related to the motion to strike or the Anti-SLAPP Motion, or the reply to
the demurrer. Accordingly, 20.23 hours or $9,172.50 will be subtracted from the
lodestar.
c. 2.2 Hours to Prepare Notice of Ruling
sand Form of Proposed Judgment and Review Judgment as Entered
Having reviewed the
Defense counsel’s billing records, the court finds a deduction of 1.5 hours is
warranted as checking the court website and filing and serving the judgment are
administrative tasks that should have been performed by a paralegal. Accordingly,
1.5 hours or $315 will be subtracted from the lodestar.
d. 5.8 hours Spent Checking For and
Reviewing Tentative Ruling on the Special Motion to Strike and Appearance at
Hearing and 15.5 Hours Billed on Miscellaneous Tasks and Correspondence
The court reviewed
Defense counsel’s billing records finds that time spent corresponding with
opposing counsel, client, or any correspondence between defense counsel does
not warrant a deduction as the time billed was necessary and reasonably
incurred. However, the court finds that 2.3 hours or $1,035 should be
deducted from the lodestar for time spent calling the court clerk seeking
continuance, checking for tentative rulings, and serving and filing the motions
as these are administrative that should have been performed by a paralegal.
C. Costs
In addition to the
$51,345.00 in attorney’s fees, Plaintiff’s counsel requests $3,455.31 in costs
as reflected in the memorandum of costs filed on January 19, 2024. The
Plaintiff’s opposition admits that no motion to strike or tax costs will be
filed. Accordingly, the court grants Defendants’ request for costs.
D. Adjusted Lodestar
Defendants’
unadjusted lodestar is $51,345.00. Deductions total $13,041.50. Accordingly,
the adjusted lodestar is $38,303.50.
Defendants’ request
for attorney’s fees is granted in the sum of $38,303.50 plus $3,455.31 in
costs.
Conclusion
Defendants’
motion for attorney’s fees is granted in the sum of $38,303.50 plus $3,455.31
in costs. Defendants to give notice.