Judge: Helen Zukin, Case: 21SMCV00029, Date: 2022-08-19 Tentative Ruling
Case Number: 21SMCV00029 Hearing Date: August 19, 2022 Dept: 207
Background
This is an unlawful
detainer action concerning commercial office space located at 1450 2nd Street,
Santa Monica, CA. On January 6, 2021, Plaintiff 1448 Second Street, LLC
(“Plaintiff”) filed its Complaint against Defendant Blankspaces, LLC
(“Defendant”), alleging Defendant had failed to pay rent.
On November 23,
2021, Defendant filed a motion for summary judgment, arguing the Los Angeles
County Eviction Moratorium prohibited Defendant’s eviction for non-payment of
rent due to Defendant’s COVID-19 related financial distress. Defendant argued
paragraph V(A)(1) of the eviction moratorium prohibited the eviction of tenants
who demonstrate an inability to pay rent because of COVID-19 and have “provided
notice to the Landlord within seven (7) days after the date that rent and/or
such related charges were due, unless extenuating circumstances exists, that
the Tenant is unable to pay.” Defendant argued paragraph V(A)(1) was satisfied
because it had been in communication with Plaintiff in March, August, and
September of 2020 regarding Defendant’s inability to pay rent because of
COVID-19, and on December 14, 2020, sent a more formal letter attesting to the
financial impacts suffered by Defendant as a result of COVID-19. Defendant
argued these communications served to timely notify Plaintiff of Defendant’s
financial hardship as required by the eviction moratorium. Alternatively,
Defendant argued this history of correspondence represented extenuating
circumstances.
Plaintiff argued
the December 14, 2020, letter was the only notice of COVID-19 related financial
distress provided by Defendant and was untimely because it was sent more than 7
days after Defendant’s rent became due.
In advance of the
hearing, the Court issued a tentative ruling granting Defendant’s motion for
summary judgment, holding “The Court agrees Defendant provided Plaintiff with
notice that Defendant was facing financial impact due to Covid-19 on
Defendant’s ability to pay rent.” (Ex. A to Hermansen Decl.) Defendant’s motion
came on for hearing on February 15, 2022, and the Court issued an order taking
the motion under submission. On February 18, 2022, before the Court issued a
final order on the summary judgment motion, Plaintiff filed a request for
dismissal seeking to dismiss its case without prejudice. The dismissal was
entered the same day by the Court clerk and subsequently on March 1, 2022, the
Court issued an order stating Defendant’s summary judgment motion was “now moot
as a Request for Dismissal was filed and entered on February 18, 2022.”
Defendant now
brings two motions. First, Defendant moves the Court to vacate Plaintiff’s
dismissal without prejudice and instead dismiss Plaintiff’s action with
prejudice. Defendant also moves the Court for an award of attorney’s fees and
costs as the prevailing party in litigation pursuant to a term in the subject
lease. As these motions are related, the Court will address them together.
Legal Standards
“The court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as entered, so as to
conform to the judgment or order directed, and may, on motion of either party after
notice to the other party, set aside any void judgment or order.” (C.C.P. § 473(d)
(emphasis added).) “It may be set aside on motion of the aggrieved party under section
[473(d)] or independent of that section.” (Manson, Iver & York v. Black (2009)
176 Cal.App.4th 36, 43.)
A prevailing party is entitled to recover costs, including attorneys’
fees, as a matter of right. (Code Civ. Proc., § 1032(a)(4).) Civil Code § 1717 states
in pertinent part: “[i]n 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(a).)
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. A computation of time spent on a case and the reasonable value of that
time is fundamental to a determination of an appropriate attorneys’ fee award. The
lodestar figure may then be adjusted, based on factors specific to the case, in
order to fix the fee at the fair market value for the legal services provided. (Serrano
v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s
analysis to an objective determination of the value of the attorney’s services,
ensuring that the amount awarded is not arbitrary. (Id., at p. 48, fn. 23.)
After the trial court has performed the lodestar calculations, it shall consider
whether the total award so calculated under all of the circumstances of the case
is more than a reasonable amount and, if so, shall reduce the section 1717 award
so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th
1084, 1095-1096.)
As explained in Graciano v. Robinson Ford Sales, Inc. (2006)
144 Cal.App.4th 140, 154:
“[T]he lodestar is the basic fee for comparable legal services in the
community; it may be adjusted by the court based on factors including, as relevant
herein, (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, (4) the contingent nature of the fee
award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market
value for the particular action. In effect, the court determines, retrospectively,
whether the litigation involved a contingent risk or required extraordinary legal
skill justifying augmentation of the unadorned lodestar in order to approximate
the fair market rate for such services. . . . This approach anchors the trial court's
analysis to an objective determination of the value of the attorney's services,
ensuring that the amount awarded is not arbitrary.” [Internal citations and internal
quotation marks omitted.]
(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th
140.) “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. [Citations.] The value
of legal services performed in a case is a matter in which the trial court has its
own expertise. . . . The trial court makes its determination after consideration
of a number of factors, including the nature of the litigation, its difficulty,
the amount involved, the skill required in its handling, the skill employed, the
attention given, the success or failure, and other circumstances in the case. [Citations.]”
(Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623624.)
No specific findings reflecting the court’s calculations are required.
The record need only show that the attorney fees were awarded according to the “lodestar”
or “touchstone” approach. The court’s focus in evaluating the facts should be to
provide a fee award reasonably designed to completely compensate attorneys for the
services provided. The starting point for this determination is the attorney’s time
records. (Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent
clear indication they are erroneous].) An experienced trial judge is in a position
to assess the value of the professional services rendered in his or her court. (Id.;
Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer,
Inc. (2001) 91 Cal.App.4th 224, 255.)
Analysis
1. Request
to Vacate Dismissal Without Prejudice
Defendant argues Plaintiff did not
have the right to dismiss its action without prejudice after the Court had
issued its tentative ruling granting Defendant’s summary judgment motion.
Plaintiff argues it has “has an absolute right to voluntarily dismiss an action
and, once that dismissal is entered, a court lacks jurisdiction to act further.”
(Opposition at 1.) The Court agrees with Defendant.
Pursuant to Code Civ. Proc. §
581(b)(1) allows a plaintiff to dismiss an action without prejudice “at any
time before the actual commencement of trial.” Code Civ. Proc. § 581(c)
similarly provides, “A plaintiff may dismiss his or her complaint, or any cause
of action asserted in it, in its entirety, or as to any defendant or
defendants, with or without prejudice prior to the actual commencement of
trial.”
However, “‘the right of a plaintiff
to voluntarily dismiss an action before commencement of trial is not absolute.’
[Citation.] There are statutory exceptions to a plaintiff's right of voluntary dismissal,
and ‘other limitations have evolved through the courts’ construction of the term
“commencement of trial.”’ [Citation.] The meaning of the term ‘trial’ is not restricted
to jury or court trials on the merits, but includes other procedures that ‘“effectively
dispose of the case.”’ [Citation.]” (Mary Morgan, Inc. v. Melzark (1996)
49 Cal. App. 4th 765, 769 (“Mary Morgan”).) Accordingly, “A plaintiff is
precluded from voluntarily dismissing an action without prejudice under various
circumstances short of a full trial. Those circumstances include a general demurrer
sustained without leave to amend, a general demurrer sustained with leave to amend
where no amendment is made within the allotted time, and where all issues have been
deemed admitted in defendant's favor. [Citations.]" (Id.)
Defendant relies on a line of
cases beginning with Mary Morgan which have held a plaintiff is not
permitted to voluntarily dismiss an action without prejudice where the
plaintiff is facing adjudication of the action in favor of defendant. The Court
in Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187
summarized this line of cases as follows:
In the wake of Wells,
a number of appellate decisions have applied the Goldtree-Wells approach
to “trial” to voluntary dismissals in the shadow of impending demurrers or summary
judgment motions even though there was no actual ruling or decision on the impending
motion. (The word “shadow” is ours; at this point in the opinion we deliberately
use an imprecise metaphor.) What there was, however, in each of these cases, was
some objective indicia, e.g., by way of publicly announced tentative ruling or a
failure to file opposition by the deadline, that the plaintiff's case was inherently
defective on the merits. In short, as a matter of law, the case was a loser:
See Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765 [57 Cal. Rptr.
2d 4] (Mary Morgan) (plaintiff not permitted to dismiss without prejudice
where adverse tentative summary judgment ruling had been announced and the hearing
had been continued to allow plaintiff opportunity to obtain evidence to defeat motion);
Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253 [60 Cal. Rptr.
2d 436] (Cravens) (plaintiff not permitted to dismiss one day prior to hearing
on summary judgment motion where plaintiff had failed to file any opposition to
summary judgment motion); and Groth Bros. Oldsmobile, Inc. v. Gallagher (2002)
97 Cal.App.4th 60 [118 Cal. Rptr. 2d 405] (Groth Bros.) (no voluntary dismissal
without prejudice where trial court had announced a tentative ruling to sustain
a demurrer without leave to amend).
(Id. at 199.) The Franklin Court announced a two-prong
test to determine whether a plaintiff’s had the power to voluntarily dismiss an
action without prejudice. Under this test, a voluntary dismissal is ineffective
if there has been either: (1) “public and formal judicial expressions of the merits
of a case in the context of a substantively dispositive proceeding” or (2) “some
procedural dereliction by the dismissing plaintiff that made dismissal otherwise
inevitable.” (Id. at 200.)
Mary Morgan is on point. There, the defendants brought a motion for
summary judgment on plaintiff’s claim. The trial court issued a tentative ruling
granting defendants’ motion. At the hearing on the summary judgment motion,
plaintiff requested a continuance to obtain evidence to oppose the motion,
which the trial court granted. However, rather than obtaining such evidence,
plaintiff filed a request for dismissal without prejudice. At the continued
summary judgment hearing, the trial court found plaintiff was no longer
entitled to voluntarily dismiss the case without prejudice. Accordingly, the
trial court struck plaintiff’s request for dismissal and entered orders
granting summary judgment for defendants. The Court of Appeal affirmed, holding
“that a plaintiff may not dismiss an action without prejudice after an adverse
tentative summary judgment ruling has been announced and the hearing has commenced
and is continued for the express and exclusive purpose of permitting the plaintiff
an opportunity to produce opposition evidence it claims was previously unavailable.”
(Mary Morgan, supra, 49 Cal.App.4th at 767.)
The Court of Appeal reached the
opposite conclusion in Zapanta v. Universal Care,
Inc. (2003) 107 Cal.App.4th 1167. In Zapanta
defendants filed a motion for summary judgment on plaintiff’s claims. The day
before plaintiff’s opposition to the motion was due to be filed, plaintiff
filed a request for dismissal without prejudice. The trial court struck
plaintiff’s request and entered summary judgment for defendants. The Court of
Appeal reversed, distinguishing Mary Morgan: “At the time appellants
filed their request for dismissal, the opposition to the summary judgment motion
was not past due, no hearing on the motion had been held and no tentative ruling
or other decision tantamount to an adjudication had been made in respondents' favor.”
(Id. at 1173.)
The Court in
Cole v. Hammond (2019) 37
Cal.App.5th 912 synthesized the holdings in Mary Morgan and Zapata
as follows: “a plaintiff's voluntary
dismissal would be valid if, for example, it was filed while a motion for
summary judgment was pending but the court had not yet issued a tentative or
final ruling. [Citation.] The plaintiff's
right to dismiss would be cut off, however, if the court had issued a tentative
or final ruling on a dispositive motion. [Citations.]” (Id. at 922.)
Here, the Court issued a tentative
ruling granting Defendant’s motion for summary judgment. Under Mary Morgan
and Cole, the Court’s issuance of the tentative ruling “cut off”
Plaintiff’s right to dismiss the action without prejudice and the Court should
not have entered the dismissal requested by Plaintiff.
Plaintiff argues the Court does
not have jurisdiction to vacate its prior dismissal without prejudice and enter
a dismissal with prejudice. However, the Court in Groth Bros.
Oldsmobile v. Gallagher (2002) 97
Cal.App.4th 60 rejected this argument. There, the trial court issued a
tentative ruling sustaining a defendant’s demurrer without leave to amend.
Plaintiff filed a request for voluntarily dismissal without prejudice after the
tentative ruling had been issued but before the hearing on the demurrer. The
dismissal was entered by the trial court and defendant brought a motion to
vacate the dismissal. The trial court denied the motion, finding it did not
have jurisdiction to vacate the prior dismissal. The Court of Appeal reversed
and remanded “with instructions to vacate the voluntary dismissal” and “enter a
judgment sustaining the demurrer without leave to amend.” (Id. at 74;
see also Cole, supra, 37 Cal.App.5th at 926
[reversing and remanding with instructions to vacate plaintiff’s voluntarily
dismissal without prejudice and grant defendants’ motion for mandatory
dismissal with prejudice for failure to prosecute under C.C.P. § 583.360].)
Accordingly, the
Court GRANTS Defendant’s motion to vacate the February 18, 2022, voluntary
dismissal without prejudice and for entry of dismissal of Plaintiff’s action
with prejudice consistent with the Court’s tentative ruling on Defendant’s
summary judgment motion.
2. Defendant’s
Motion for Attorney’s Fees
In its second motion, Defendant
argues that because Plaintiff’s action should be dismissed with prejudice,
Defendant should be deemed the prevailing party in the action and is thus
entitled to an award of reasonable attorney’s fees pursuant to the subject lease
with Plaintiff. Plaintiff does not dispute the lease contains such a provision,
but rather argues the Los Angeles County Eviction Moratorium prohibits the
Court from deeming Defendant the prevailing party in this action. Specifically,
Plaintiff relies on paragraph 6.8 in the “Revised Guidelines to Aid in the
Implementation of the Los Angeles County Eviction Moratorium during the
COVID-19 Pandemic” published by Los Angeles County which allows a landlord to
avoid having to pay prevailing party fees and costs to a tenant where the
landlord voluntarily dismisses an action. Paragraph 6.8 of those guidelines
provides:
A Landlord who has attempted to evict a Tenant for
nonpayment of rent and who receives notice from the Tenant that the Tenant is
unable to pay rent or other costs or fees, and extenuating circumstances
prevented the Tenant from providing timely notice, must immediately cease all
efforts to evict the Tenant, including but not limited to dismissing a summons
and complaint that has been filed to evict the Tenant. The Tenant shall not be
considered a prevailing party and shall not be entitled to recover costs or
legal fees as a result of any such voluntary dismissal.
Plaintiff argues it did not
receive notice of any “extenuating circumstances” until the Court issued its
tentative ruling granting Defendant’s motion. Plaintiff claims it immediately
ceased all efforts to evict Defendant at that point and thus requested
dismissal of the action to take advantage of the safe harbor provision of
paragraph 6.8.
The Court finds Plaintiff’s
reliance on paragraph 6.8 to be misplaced. By its express terms, Plaintiff can
only obtain the benefit of the safe harbor provision by immediately ceasing its
eviction efforts when it received notice “from the Tenant” that the tenant is
unable to pay rent and extenuating circumstances are present. As detailed
above, Plaintiff received such notice of Defendant’s inability to pay rent and
extenuating circumstances dating back to 2020. Rather than “immediately cease
all efforts to evict” Defendant, Plaintiff filed the instant action in January
2021. At the very latest, Plaintiff was on notice in November 2021 when
Defendant filed its summary judgment motion arguing both the sufficiency of its
notice of inability to pay and the existence of extenuating circumstances.
Again, rather than immediately dismiss this action, Plaintiff filed an
opposition to Defendant’s summary judgment motion contesting the merits of
Defendant’s argument.
Plaintiff argues it did not have
notice that Defendant was validity asserting extenuating circumstances until
the Court issued its tentative ruling, but paragraph 6.8 is tied to Plaintiff’s
receipt of notice from Defendant, not from the Court. Paragraph 6.8 is not
intended to be a windfall for landlords by providing them with a risk-free
ability to subvert a fee-shifting provision of a lease agreement while also
obtaining an adjudication on the merits of their dispute with a tenant.
Paragraph 6.8 is intended to incentivize landlords to forgo eviction
proceedings and in return grants them safe harbor from fee-shifting provisions.
The purpose is nullified where, as here, the Plaintiff insists on a full
adjudication of Defendant’s defense before it dismisses an action. Accordingly,
the Court finds Plaintiff is not entitled to the protections of paragraph 6.8
of the guidelines and Defendant is deemed to be the prevailing party in this
action for purposes of the attorney fee provision in the lease.
The Court thus turns to the
reasonableness of the attorney’s fees sought by Defendant. Defendant seeks an
award of $55,065 in attorneys fees. Plaintiff opposes Defendant’s request on
multiple bases.
A. Reasonableness
of Hourly Rates
Defendant seeks to recover for
112.5 hours of time billed by attorney Kevin Hermansen (“Hermansen”) at $450
per hour, and 7.4 hours of time billed by attorney Daniel J. Bramzon
(“Bramzon”) at $600 per hour. Plaintiff claims these rates are not reasonable
because Plaintiff’s counsel has only billed at $295 per hour in this action.
Plaintiff further argues the $450 per hour rate charged by Hermansen is
unreasonable because only a few other courts have awarded him fees at that
rate. The Court finds Defendant has established the reasonableness of the
hourly rates charged by its counsel. Defendant has submitted evidence showing
its rates are generally consistent with hourly rates in the landlord-tenant
field in Los Angeles. (Hermansen Decl. at ¶¶9-10.) Defendant has also submitted
evidence of awards of attorney’s fees for Hermansen at a rate of $425 per hour
in 2020 and 2021. (Id. at ¶¶11-13, Exs. D, E, and F.) Hermansen’s rate
increased from $425 to $450 per hour in December 2021, and thereafter courts
have awarded fees for Hermansen’s work at the increased rate. (Id. at ¶¶14-15,
Exs. G, H.) Plaintiff’s evidence of the rate charged by its own counsel is
anecdotal and does not rebut the considerable evidence advanced by Defendant showing
the rates charged by Defendant’s counsel are reasonable in the area.
Accordingly, the Court
finds those rates to be reasonable under the lodestar analysis set forth above
B. Disputed Billing Entries
Plaintiff also identifies
categories of billing entries which it disputes. First, Plaintiff argues 11
billing entries reference e-filing or e-service of documents, which could have
been done by clerical staff. Plaintiff does not identify these entries or argue
for any specific reduction in the attorney fee award to account for this
clerical work. The Court notes several of Defendant’s billing entries reference
e-filing and e-service in conjunction with other tasks. For example, a January
27, 2021, billing entry reads “Review and finalize demurrer and request for
judicial notice; e-file and serve.” Similarly, a February 18, 2021, entry reads
“Finalize discovery responses; e-serve,” and a March 9, 2021, entry reads
“Finalize reply to demurrer, e-file and serve.” Defendant offers no argument on
these specific entries. As these entries reflect mixed work including
substantive and clerical tasks, the Court declines Plaintiff’s request to
reject these billing entries in their entirety. Rather, in its discretion the
Court finds it reasonable to reduce each of these 11 entries by .25 hours to
account for clerical work undertaken by Hermansen. Using the hourly rate of
$450 per hour, the Court will reduce Defendant’s award by $1,237.50.
Plaintiff next argues Defendant’s
billing statements include 54 entries which reference “drafting documents”
which Plaintiff contends “could have been done by paralegals or legal
secretaries.” (Opposition at 4.) The Court notes Plaintiff does not identify
the specific entries it is challenging, or provide any argument, evidence, or
authority supporting the claim that all of this work could have been done by
paralegals and legal secretaries. A review of Defendant’s billing entries shows
Defendant’s attorneys billed for time spend drafting substantive pleadings or
motions. For example, a January 26, 2021, entry reads “Research and draft
demurrer re Santa Monica COVID-19 moratorium.” A February 2, 2021, entry
similarly states “Draft opposition to ex parte application.” A February 8, 2021,
entry reads “Review client’s responsive documents; begin drafting responses to
discovery requests.” The Court finds these entries reflect substantive legal
work which was appropriately handled by counsel and not support staff. Unlike
the e-filing and e-service entries discussed above, this work reflects research
and writing concerning legal issues rather than boilerplate forms or service
documents. Accordingly, the Court declines Plaintiff’s request to strike these
entries from Defendant’s fee award.
The same is true for the 57
unspecified entries which Plaintiff contends were to “review” documents, which
also could have been done “by secretaries or paralegals at much lower rates.”
(Opposition at 4.) A review of Defendant’s billing records shows Defendant’s
counsel billed time to review and respond to email correspondence from
Plaintiff’s counsel, including draft stipulations, reviewing and finalizing
work on substantive motions and pleadings, and reviewing discovery documents.
As with the “drafting” entries, Plaintiff provides no authority or argument
showing these entries were improperly billed by Defendant’s counsel. The Court
finds these billing entries to be reasonable and declines to deduct them from
Defendant’s fee award.
Plaintiff next asks the Court to
only allow Defendant to recover its fees and costs incurred on successful
motions or filings. Specifically, Plaintiff asks the Court to disallow
Defendant’s billing entries for (1) work in preparing Defendant’s unsuccessful
demurrer, (2) work in opposing Plaintiff’s successful ex parte application to advance
the hearing on Defendant’s demurrer, (3) work to prepare further discovery
responses following an informal discovery conference in which Defendant was
directed to serve further responses, and (4) Defendant’s motion for summary
judgment.
While ultimately unsuccessful, the
Court does not find Defendant’s demurrer to be unreasonable or unwarranted as a
whole and declines Defendant’s request to deduct all fees associated with the
demurrer from Plaintiff’s attorney fee award. Further, as set forth above,
Defendant’s summary judgment motion was ultimately meritorious and thus the
Court rejects Plaintiff’s contention that Defendant cannot collect for fees
incurred in preparing the summary judgment motion.
However, the Court agrees with
Plaintiff as to work necessitated by Defendant’s less than fulsome initial
responses to discovery. This includes both time spent to brief the discovery
dispute and to prepare supplemental responses. Hermansen’s billing entries for
this work span from April 20, 2021, to May 25, 2021, and total 6.9 hours. Using
the $450 billing rate, the Court will deduct $3,105 from Defendant’s fee award.
Additionally, the Court will deduct Defendant’s billing entries concerning Defendant’s
unsuccessful opposition to Plaintiff’s ex parte application. These entries from
Hermansen span from January 29, 2021, to February 3, 2021, and total 1.7 hours.
Using the $450 per hour figure, the Court will reduce Defendant’s fee award by $765.
Finally, Plaintiff asks the Court
to reduce Defendant’s fee award to reflect only reasonable, non-duplicative
billings, or adjust the lodestar figure downward. Plaintiff does not identify
any specific entries which it contends are unreasonable or duplicative beyond
those discussed above. Nor does Plaintiff offer any argument or analysis
showing a downward adjustment of the lodestar figure is warranted here, or even
articulate what downward adjustment it seeks. “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.)
The Court finds Plaintiff’s generalized arguments about the unreasonableness of
Defendant’s billing entries to be unpersuasive. However, the Court does find
the billings of defense counsel do overlap as both Mr. Hermansen and Mr.
Bramzon billed to attend the same summary judgment hearing. The Court will
deduct the one hour billed by Mr. Bramzon at $600 per hour from Defendant’s fee
award. The Court declines to make any further downward adjustment of
Defendant’s fee award.
Accordingly,
the Court GRANTS Defendant’s motion for attorney’s fees. Factoring in the above
deductions, the Court finds Defendant is entitled to an award of $49,357.50 in
attorney’s fees.
Conclusion
Defendant’s
motion to vacate the February 18, 2022, voluntary dismissal without prejudice
and for entry of dismissal of Plaintiff’s action with prejudice is GRANTED.
Defendant’s
motion for attorney’s fees is GRANTED in the amount of $49,357.50.