Judge Gregory Keosian, Case Number: BC610791, Date: 2024-02-13 Tentative Ruling

Judge: Gregory Keosian, Case: BC610791, Date: 2024-02-13 Tentative Ruling

Case Number: BC610791 Hearing Date: February 13, 2024 Dept: 61

Defendant James A. Westbrook’s Motion for Attorney Fees and Costs is GRANTED in the amount of $67,130.00 in fees, and $1,023.72 in costs...

Defendant to give notice.

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.)

Defendant James A. Westbrook (Defendant) seeks attorney fees and costs against Plaintiff William Hawkes (Plaintiff) after securing an appellate order affirming this court’s dismissal of Plaintiff’s claims. Defendant seeks $89,350.00 in fees, and $1,023.72 in costs. (Motion at p. 1.) These fees are for a total of 164.4 hours billed by three attorneys, with 36.1 hours of attorney work billed by Michael J. Saltz at $800 per hour (Saltz Decl. ¶¶ 21–27), 62.8 hours billed by Elana R. Levine at $650 per hour (Levine Decl. ¶¶ 3–7), and 65.5 hours billed by Simone E. Poyourow at $300 per hour. (Poyourow Decl. ¶¶ 4–7.) The fees sought are based upon clauses in the promissory notes at issue that guarantee the lender reimbursement of “all reasonable attorney fees and costs of collection” in the event of default. (Complaint Exhs. A, B.) These provisions are made applicable to Plaintiff (the alleged lender) by Civil Code § 1717, subd. (a).

Plaintiff argues that the total 84 hours claimed in working on Defendant’s respondent brief on appeal is unreasonable, as it consisted largely of facts and argument already contained in Defendant’s opposition to the motion to vacate dismissal that this court heard prior to the appeal. (Opposition at pp. 3–5.) Plaintiff argues that certain fees incurred prior to the filing of Plaintiff’s opening brief on appeal were unreasonably incurred, as Defendant was not required to respond to any appellate documents prior to filing their respondent brief. (Opposition at p. 6.) Plaintiff argues that the more than 50 hours sought in connection with the present fee motion are unreasonable. (Opposition at p. 6.) And finally, Plaintiff argues that the hourly rates cited are too high. (Opposition at p. 7.)

Plaintiff’s opposition to the present motion is meritorious in two respects. First, Plaintiff persuasively argues that work performed by Defendant’s counsel on the appeal prior to the filing of Plaintiff’s opening brief — amounting to 5.3 hours of work at $800 per hour plus two hours of work at $650 per hour, for a total of $5,540.00 — is ill-explained and unreasonable. Defendant’s counsel claims this work was done “[r]eviewing and responding to Plaintiff’s filing for appeal,” but while they include a catalog of the delays and defaults that Plaintiff committed in prosecuting his appeal, they do not explain why these delays prompted further work from Defendant’s counsel. (Supp. Saltz Decl. ¶¶ 5–6.) These fees amounting to $5,540.00 are properly deducted from the lodestar.

Moreover, Plaintiff is correct that the 59.6 hours sought by the three attorneys in connection with the present fee motion is unreasonably high. The matters for which fees are presently sought are the appeal and the fee motion itself. Neither the procedural history covered by the motion nor any party’s legal entitlement to fees is the subject of vigorous dispute. The 55.6 hours sought by Simone E. Poyourow in relation to this motion — amounting to $16,680.00 at a $300 hourly rate — are properly reduced to a reasonable 20 hours at the same rate, a lodestar reduction of $10,680.00.

Plaintiff’s arguments for further reduction are unpersuasive, however. The hourly rates sought by Defendant’s attorneys are reasonable and supported by attestations to their experience in similar or more-complex cases, as well as by other judicial decisions awarding them fees at the rates sought. (Saltz Decl. ¶¶ 26–27; Levine Decl. ¶ 7; Poyourow Decl. ¶¶ 3–4, 8.) Moreover, Plaintiff’s characterization of Defendant’s respondent brief as duplicative of their opposition to the motion to vacate dismissal is without merit. Plaintiff attaches both the opposition papers and respondent brief to his own opposition, and Defendant’s appellate brief is both wider in scope, encompassing the entire history of the case, and more detailed in its explanation of the relevant procedural history leading up to the dismissal. (Opposition Exhs. 2, 4.) This is properly the case with appellate level materials, which must generally apprise judicial officers, unfamiliar with the particular case before them, with the facts of trial court proceedings they are to review. Plaintiff cites his own appellate brief as a counterexample, which differed from his unsuccessful motion to vacate dismissal chiefly by the addition of a section describing the appellate standard of review. (Opposition at p. 4.) But Defendant secured an order affirming the ruling below, and was not obliged to emulate the example of the non-prevailing party.

Accordingly, the motion for attorney fees and costs is GRANTED in the amount of $67,130.00 in fees, and $1,023.72 in costs.