Judge Holly J. Fujie, Case Number: 22STCV11799, Date: 2023-09-29 Tentative Ruling

MOVING PARTY: Defendant Lisa Marie Vernola Salas, as authorized Co-Special Administrator on behalf of the Estate of Luigi Antonio Vernola (“Moving Defendant”)

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action arises out of a dispute over the assets of Decedent Luigi Antonio Varnola (“Decedent”). Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of contract.

On September 29, 2023, the Court granted Moving Defendant’s motion for summary judgment and found that Plaintiff could not show the existence of an enforceable contract, in part because she failed to overcome the presumption of undue influence established by Probate Code section 21380. Judgment was entered for Moving Defendant on October 19, 2023.

On October 24, 2023, Moving Defendant filed a motion for attorney’s fees (the “Motion”) seeking to recover $167,078.

Unless authorized by either statute or agreement, attorney’s fees ordinarily are not recoverable as costs. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) The party moving for attorney’s fees has 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.)

Probate Code section 21380 enumerates circumstances that create a presumption of fraud or indue influence for provisions of an instrument making a donative transfer. (See Prob. Code § 21380, subd. (a).) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney's fees. (Pron. Code § 21380, subd. (d).)

When it ruled on the MSJ, the Court found that the contract at the heart of the Complaint was a donative transfer subject to the presumption of fraud that Plaintiff failed to rebut. The Court thus finds that Moving Defendant has provided a statutory basis for seeking attorney’s fees.

The party moving for attorney’s fees has 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.) To that end, the court may require a defendant to produce records sufficient to provide a proper basis for determining how much time was spent on particular claims. (Id.) The court also may properly reduce compensation on account of any failure to maintain appropriate time records. (Id.) 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. (Id.)

A court awards attorney’s fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The trial court has broad authority to determine the amount of a reasonable fee. (Id.) The loadstar figure may be adjusted, based on a consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Generally, the reasonable hourly rate used for the lodestar calculation is that prevailing in the community for similar work. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.)

The Motion provides evidence of the fees Moving Defendant incurred in defending this action. (See Declaration of Charles A. Mollis (“Mollis Decl.”) ¶ 9, Exhibit 1.) The Court finds that Moving Defendant has demonstrated that counsel’s hourly rate and the hours of work performed are reasonable. For this reason and because it is unopposed, the Court GRANTS the Motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Given the lack of opposition, the Court finds it appropriate to reduce Moving Defendant’s recovery to $164,970, which accounts for the removal of entries for the anticipated time spent drafting reply papers and attending the hearing. (See Mollins Decl. ¶ 10.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court