Judge: Gregory Keosian, Case: BC663581, Date: 2023-10-06 Tentative Ruling

Case Number: BC663581    Hearing Date: October 6, 2023    Dept: 61

Plaintiff Timed Out, LLC’s Motion for Attorney Fees and Costs is GRANTED in the amount of $216,034.50 in fees and $2,375.80 in expenses.

Plaintiff to provide notice.

I.                   MOTION FOR ATTORNEY FEES

Plaintiff Timed Out, LLC (Timed Out) seeks an award of attorney fees in the amount of $216,034.50, and expenses in the amount of $2,375.80, resulting from former Cross-Defendant and Intervenor Chippewa’s (Chippewa) intervention in this case following trial. (Motion at p. 2.)

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree. (Code Civ. Proc. § 1021.) But Civil Code § 3344, the statute that describes an individual’s right to their likeness and remedy for misappropriation thereof, provides, “The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.” (Civ. Code § 3344, subd. (a).)

Timed Out contends that, since Chippewa’s attempts to vacate the judgment, forestall an award of attorney fees, and appeal of this court’s rulings on both have proved unsuccessful, Timed Out is the “prevailing party” against Chippewa under Civil Code § 3344, and therefore entitled to seek attorney fees incurred in defending its section 3344 judgment against Chippewa’s attacks. (Motion at pp. 15–17.)

Chippewa in opposition argues that Timed Out cannot be the prevailing party under Civil Code § 3344 because it has obtained no judgment against Chippewa, but only against Defendant Prisma Entertainment, LLC (Prisma). Chippewa contends that the authority that Timed Out relies upon attests only to the availability of fees and costs against intervenors who intervened prior to trial and litigated the underlying case on the merits. (Opposition at pp. 2–3, 5–8.)

Chippewa was made party to this case through a cross-complaint for indemnity filed by Defendant Prisma on August 25, 2017. Chippewa filed an answer to the cross-complaint, and a special answer to the Timed Out’s Complaint on October 27, 2017, as provided for under Code of Civil Procedure § 428.70. Prisma dismissed Chippewa as a cross-defendant on January 21, 2020, prior to the rendering of any verdict in the trial. But after a verdict was entered against Prisma, and Timed Out moved for attorney fees, Chippewa sought leave to intervene to challenge the judgment and contest Plaintiff’s motion for attorney fees, which leave was granted on June 26, 2020. Chippewa’s complaint-in-intervention, deemed filed on June 26, 2020, stated that Chippewa had “become the real party in interest,” by virtue of the assignment of Prisma’s claims against Chippewa to Timed Out. (6/24/2020 Ex Parte Application, Exh. J.) Chippewa’s motion to vacate the judgment was denied, but its opposition to Timed Out’s motion for attorney fees yielded a substantial reduction in the amount awarded. Chippewa appealed both orders, but both were affirmed on appeal.

Timed Out cites authority for the proposition that third party intervention is the means by which “a third person is permitted to become a party to an action or proceeding between other persons.” (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1013, italics in original.) As such, upon intervening, “[t]he intervenor becomes a party to the action, with all of the same procedural rights and remedies of the original parties.” (Id. at pp. 1013–1014.) “Upon being permitted to intervene, the intervenor is to be regarded as a plaintiff or as a defendant in the action (unless he seeks something adversely to both) according as is the party for whose success he seeks to intervene.” (Id. at p. 1014.) Thus Timed Out contends that Chippewa made itself a party to this action, one for relief under Civil Code § 3344, and thus vulnerable to attorney fees under that statute, when it sought to intervene in this case and vacate the judgment upon which Plaintiff had obtained relief under that statute. (Motion at pp. 15–16.)

Chippewa in opposition argues that its complaint-in-intervention was not “an action under this section [3344],” as it sought no relief, and resulted in no adjudication on the merits against it under that statute. (Opposition at pp. 5–6.)

Chippewa’s argument is unpersuasive. Judgment has not been entered against Chippewa under section 3344, but the judgment that Timed Out obtained, and which Chippewa sought to overturn by posttrial intervention, was one for relief under that statute. Chippewa is a party to this action by virtue of its intervention; the action is one brought under section 3344; and Chippewa’s primary prayer for relief — the vacatur of the judgment for alleged collusion — has been denied. Chippewa was aware of the nature of the action when it intervened, and indeed, asserted in its complaint in intervention that it was the “real party in interest” under the judgment that it challenged. Indeed, Chippewa sought reimbursement of its own attorney fees in its motion to vacate the judgment. (8/18/20 Motion at pp. 11–12.)

The fact that Chippewa’s arguments against the judgment sounded in the procedural facts of the case is of little moment when the object of the attack was Timed Out’s claim under section 3344, through which it is entitled to claim fees. Chippewa correctly notes that fees sought by a prevailing party requires “a disposition on the merits of the claim.” (Varney Entertainment Group, Inc. v. Avon Plastics, Inc. (2021) 61 Cal.App.5th 222, 230.) But such a disposition was here made in the judgment that Chippewa sought to vacate, and Timed Out may seek compensation for fees incurred in successfully preserving that judgment from collateral attack. The dismissal of Chippewa’s claims for relief made in its complaint-in-intervention thus renders Timed Out the prevailing party under the statute. (See Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1014 [holding that voluntary dismissal of complaint in intervention created liability for costs under Code of Civil Procedrue § 1032].)

Timed Out is thus the prevailing party under Civil Code § 3344, and is entitled to the fees sought in connection with the defense of its judgment against Chippewa’s complaint in intervention.

“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.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (See id.) 

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.)

Timed Out submits materials corroborating the amount of fees sought. It states that two attorneys and two paralegals together performed 490.9 hours of work litigating Chippewa’s complaint in intervention and subsequent appeal, for a total fee lodestar of $216,034.50. (Engel Decl. ¶ 21, Exhs. A1, A2.) The fees sought range from $150 per hour for a paralegal to $575 for attorney work, and the average hourly charge was $440.08. (Engel Decl. Exh. A1.) The fees were incurred dating from Chippewa’s initial ex parte application to intervene in June 2020, and the work performed thereafter relates to Chippewa’s challenges to the judgment, the prior attorney fee award, and Chippewa’s subsequent appeals. Chippewa has not submitted any argument as to the reasonableness of the fees sought here.

Accordingly, the motion for attorney fees is GRANTED in the amount of $216,034.50 in fees and $2,375.80 in expenses.