Judge: Gregory Keosian, Case: 19STCV28595, Date: 2023-05-15 Tentative Ruling

Case Number: 19STCV28595    Hearing Date: May 15, 2023    Dept: 61

Plaintiff and Cross-Defendnat Romex Textiles, Inc.’s Motion for Attorney Fees is GRANTED in the amount of $178,935.00. Costs are awarded in the amount of $21,638.82.

I.                MOTION FOR ATTORNEY FEES

“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; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)

“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.” (Civ. Code, § 1717, subd. (a).) “[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, subd. (b)(1).)

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at p. 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).)  The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.  (See id. at p. 624.)

Plaintiff Romex Textiles, Inc. (Plaintiff) seeks $238,264.00 in attorney fees, representing 603.2 hours of attorney work at the rate of $395 per hour. (Tabibi Decl. ¶ 10.) This entitlement to fees is based on contract, specifically language included in Plaintiff’s invoices to Defendant, which states: “Upon failure of the buyer to make timely payments, buyer agrees to pay any and all costs of collection and litigation, including but not limited to attorney fees and interest at the rate of 10% per year.” (Motion Exh. 8.)

Defendant Dool FNA, Inc. (Defendant) argues that the motion is not supported with sufficient evidence or foundation. (Opposition at p. 4.) Defendant further argues that several charges identified in the motion are for work unrelated to Plaintiff’s contract claims. (Opposition at pp. 5–6.)

Plaintiff may seek to recover fees not specifically incurred in prosecuting its contract claims. “[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 581.) The contract language here entitling Plaintiff to fees is not limited to actions for breach of the agreement, but for any costs related to “collection and litigation” based “[u]pon failure of the buyer to make timely payments.” (Motion Exh. 8.) Plaintiff may therefore seek fees incurred in attempting to impose liability for nonpayment upon Defendant’s alleged individual alter egos, or in prosecuting the claim that Defendant’s failure to timely pay was the product of a fraudulent promise, contra Defendant’s argument in opposition. (Opposition at pp. 5–6.)

There is some merit, however, to Defendant’s argument concerning the foundation for some of the fees sought. In an attorney fees motion, the prevailing party that seeks fees “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Ibid.) Here, although Plaintiff’s counsel testifies to his own rate of $395 per hour, and provides a table of services and charges incurred through the case, he does not provide the dates of the charges incurred, and acknowledges that these charges were incurred by “multiple attorneys,” whom he does not identify and whose rates he does not support. (Tabibi Decl. ¶ 10.) The charges attributable to Plaintiff’s co-counsel are somewhat discernable from the charge sheet provided by Plaintiff, as the charge summaries tend to include mentions of other attorneys, but once more these charges do not identify the attorneys in question or support their rates. (Tabibi Decl. Exh. 10.)

These charges for work performed by unidentified co-counsel amount to 150.2 hours of attorney work at the rate of $395 per hour. Such charges, unsupported as they are, are properly removed from the lodestar, a reduction of $59,329.00.

Accordingly, the motion for attorney fees is GRANTED in the amount of $178,935.00. Costs are awarded in the amount of $21,638.82.