Judge: H. Jay Ford, III, Case: 19SMCP00467, Date: 2022-07-28 Tentative Ruling

Case Number: 19SMCP00467    Hearing Date: July 28, 2022    Dept: O

  ^{Case Name:                                   Crooymans, et al. v. Givner, et al.}

^{SUBJECT:                                       MOTION TO TAX COSTS}

^{MOVING PARTY:                        Respondents Bruce Givner and Givner & Kaye, P.C.}  

^{RESP. PARTY:                              Petitioners Kathryn Crooymans and David King}

^{TENTATIVE RULING}

                    ^{Respondents’ Motion to Tax Costs is GRANTED in the amount of $97,552, which reflects a reduction based on the amount of fees charged by counsel Heller and his firm.} 

^{I. Petitioners are entitled to seek post-judgment attorney’s fees through either a memo of costs or a noticed motion}

                    ^{Respondents argue on reply that Petitioners were required under CCP §1033.5(c)(5)(A) to file a noticed motion for recovery of attorney’s fees.  However, CCP §1033.5(c)(5)(A) sets forth the procedure for recovery of pre-judgment attorney’s fees.  Petitioners are seeking recovery of post-judgment attorney’s fees.}

                    ^{CCP §687.070(a) expressly includes the type of attorney’s fees sought by Petitioner.  CCP §687.070(b) sets forth the deadline for filing a memo of costs “claiming costs under this section.”}

                    ^{Pursuant to CCP §687.080, Petitioner “may” recover reasonable and necessary attorney’s fees pursuant to noticed motion. There is no mandatory language contained therein.  The Legislative Committee Comments also acknowledge that such fees may be recovered either by memo of costs under CCP §687.070 or noticed motion under CCP §687.080:  “Section 685.080 also permits the judgment creditor by motion to claim costs that could have been claimed pursuant to the memorandum procedure set forth in Section 685.070.”} 

                    ^{Petitioner was therefore entitled to seek fees by way of a memo of costs.  Failure to file a noticed motion under CCP §685.080 is not grounds to strike the costs.}

^{II.  There is no dispute that Petitioners are entitled to recovery of post-judgment fees under CCP §685.040}

                    ^{“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”  CCP §685.040.}

                    ^{Respondents do not argue that Petitioners are not entitled to fees under CCP §685.040.  Respondents only challenge the amount as being unreasonable and unnecessary.}

^{III.  Respondents establish  some of the attorney’s fees sought are unreasonable and excessive}

                    ^{“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.”  Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.}

                    ^{A.  Duplicative time spent by Smith and Nemecek}

                    ^{Respondents identify those entries by Nemecek they believe were “duplicative” of prior counsel Smith’s work in Exhibit 5.  See Compendium of Exhibits, Ex. 5.  However, the highlighted entries are for Nemecek’s review of various aspects of the client file once he was retained, i.e. “getting up to speed.”  Respondents fail to demonstrate that it was unreasonable or unnecessary for Petitioners’ to replace Smith from Buchalter, Nemer with Nemececk & Cole.  The request to strike $12,432 in entries identified by Respondents in Exhibit 5 is DENIED.}

                    ^{B.  Attempts to sell property held in Trust in 21SMCV01157}

                    ^{Respondents argue it was unreasonable for Petitioners to try and sell Respondents’ residence by way of an OSC re: Sale of Residence under CCP §§695.010 and 704.740.  Respondents’ residence is owned by an irrevocable trust.  Petitioners failed to present any evidence that Respondents personally held any interest in the dwelling.  The Court denied the application for sale of dwelling on 5-13-21, and Petitioners were instructed to pursue the proper procedure for the requested relief.  See 5-13-21 Minute Order.} 

                    ^{After failing to obtain an order for sale of residence. Petitioners filed a separate civil action attempting to reach that same residence.  See Respondents’ Compendium of Exhibits, Ex. 6.  Respondents argue the filing of a separate civil action to try and reach assets held in a trust was unreasonable.  Respondents argue their briefing in opposition to the OSC re: sale of dwelling should have informed Petitioners that a separate civil action was improper and an action in probate court was required.  The Court ultimately sustained Respondents’ demurrer to the entire FAC in 21SMCV01157 without leave to amend.  See 21SMCV01157, Judgment of Dismissal filed on 6-10-22.} 

                    ^{The Court agrees that Petitioners’ subsequent attempt to reach that same trust property by way of a civil action was unreasonable and unnecessary.  However, Respondents failed to identify which specific entries in Exhibit 8 are subject to being stricken as unreasonably incurred in connection with 21SMCV01157.  There are no “highlighted” entries.  In addition, none of the Exhibits are authenticated.  For this reason, the motion to strike $35,651.50 of the requested fees based on 21SMCV01157 is DENIED.} 

                    ^{C.  Heller’s involvement}

                    ^{Respondents argue Heller’s involvement in the post-judgment proceedings was unnecessary.  Respondents argue there was already competent counsel pursuing post-judgment collection, Nemecek of Nemecek & Cole.  Respondents argue it was unreasonable for Petitioners to retain Heller.  Respondents ask that Heller’s fees in the amount of $183,012 be stricken from the memo of costs.} 

                    ^{Respondents also argue that Heller’s hourly rate is unreasonable at $975/hr.  Respondents ask in the alternative that Heller’s fees be reduced to reflect a rate of $415/hr.} 

                    ^{Respondents rely on Heller’s invoices attached as “Exhibit 3” to the Petitioner’s Memo of Costs.  Based on a review of those invoices, Heller’s invoiced fees were unreasonable given the types of tasks he performed and his caliber as an attorney.  The Court does not find it unreasonable for Heller to charge a rate of $975/hr for work commensurate with his experience and for limited tasks, as with the petition to confirm arbitration (six hours).  However, it is unreasonable and unnecessary to have an attorney of Heller’s caliber perform all of the tasks he performed in connection with the post-judgment collection efforts.} 

                    ^{According to the declaration of Phillip Heller, his firm billed a total of $183,012 in fees for legal services related to enforcement of judgment in this case.  See Memo of Costs filed on 3-29-22, Dec. of P. Heller, ¶2; Ex. 3.  Heller’s ordinary rate is $975/hr.  “The lodestar is the product of a reasonable hourly rate and a reasonable number of hours.  The court then may adjust the lodestar based on a variety of factors. Germane factors include the nature, difficulty, and extent of the litigation, the skill it required, the attention given, and the success or failure of the enterprise, as well as other factors.  Whether the attorney worked on a contingency is relevant.  A trial court is not required to state each charge it finds reasonable or unreasonable. A reduced award might be fully justified by a general observation that an attorney over-litigated a case.”  Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744.} 

                    ^{Applying the lodestar method, the Court finds the reasonable rate for the tasks performed by Heller and his firm to be $415/hr and the reasonable number of hours to be 174.2 for a total of $97,552.  The motion to strike is therefore GRANTED in the amount of $97,552.}