Judge Joel R Wohlfeil, Case 37-2018-00034571-CU-PO-CTL 2024-01-26 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2018-00034571-CU-PO-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 23, 2024

01/26/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2018-00034571-CU-PO-CTL AUDIO VISUAL LABOR MANAGEMENT INC VS READ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 11/09/2023

The Motion (ROA # 393) of Plaintiff and Cross-Defendant Audio Visual Labor Management, Inc.

('Plaintiff' or 'AVLM') and Cross-defendant Mike S. Fuller aka Michael S. Fuller ('Fuller) for an award of attorney fees, is GRANTED in the total reasonable amount of $986,954.00.

The Request (ROA # 398) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's '6, 8, 9' and the dates only on which Exh's '1 - 5, 15 - 17' were filed with the Court; otherwise, the Request is DENIED.

It is undisputed that Plaintiff prevailed on the main action, and Plaintiff and Cross-Defendant Fuller prevailed on the cross-action. They are the prevailing parties in this action.

Failure of AVLM to Pray for Attorney Fees in Complaint Plaintiff's claim for breach of fiduciary duty does not contain a request for attorney fees, although the prayer does seek 'costs of suit incurred herein' and 'such other and further relief as the Court deems just and proper.' The Court may grant Plaintiff any relief consistent with the case made by the complaint and embraced within the issue. Code Civ. Proc. 580(a).

A failure to pray for the proper form of relief is not fatal to a complaint. Valdez v. Himmelfarb (2006) 144 Cal. App. 4th 1261, 1276.

Damages may be awarded in a contested case even though not prayed for in the complaint. State v. Hansen (1961) 189 Cal. App. 2d 604, 612.

'Thus, when an answer is filed, the case becomes one in which the court is authorized regardless of the prayer to grant any relief consistent with the plaintiff's averments. The jurisdiction of the court to grant any particular relief depends not on the prayer but on the issues - that is, on the scope of the complaint and the issues made or which might have been made under it - and any relief consistent with the issues raised may be granted regardless of the prayer.' Wright v. Rogers (1959) 172 Cal. App. 2d 349, 367, 368.

Given the authority cited above, the failure to expressly pray for an award of attorney fees is not fatal to this Motion and Defendant's argument is not persuasive.

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3049975 CASE NUMBER: CASE TITLE: AUDIO VISUAL LABOR MANAGEMENT INC VS READ 37-2018-00034571-CU-PO-CTL Whether AVLM's Breach of Fiduciary Duty Claim is Encompassed Within the JVA Attorney Fees Provision? Regarding the Joint Venture Agreement ('JVA'), the Statement of Decision states as follows: 'The JVA is clear that the company would be incorporated for purposes of carrying out the parties' joint venture - 'For purposes of this Joint Venture, the parties will form a corporation to be named Audio Visual Labor Management, Inc. ('AVLM'). All Joint Venture business will be conducted through this Joint Venture Corporation ....' (Ex. 16, p. 1, § 2.) Accordingly, the JVA is enforceable under the Eslbach exception. (See also Eng v. Brown (2018) 21 Cal. App. 5th 675, 607 - 703 ['Eng could rebut this affirmative defense by showing that the parties had a pre-incorporation agreement to continue the partnership notwithstanding the formation of the corporation.'].)'' The JVA states as follows: '22. Governing Law and Venue. In the event litigation is initiated in connection with any dispute arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and costs. All disputes shall be resolved in the San Diego Superior Court, Central Division. This Settlement Agreement shall be construed and enforced in accordance with California law.' (emphasis added) In Maynard v. BTI Group, Inc. (2013) 216 Cal. App. 4th 984, the opinion states: 'If the attorney fee provision is broad enough to encompass contract and noncontract claims, in awarding fees to the prevailing party it unnecessary to apportion fees between those claims. (Cruz v. Ayromloo (2007) 155 Cal. App. 4th 1270, 1277 ['Here, the broad language of the attorney fee clause in the lease agreement covered all fees in any civil action stemming from the lease. The attorney fees clause in the lease provided, 'If civil action is instituted in connection with this Agreement, the prevailing party shall be entitled to recover court costs and any reasonable attorney's fees.' [Fn.] The underlying civil action encompassed both breach of contract and tort causes of action arising from the tenants' leases with appellant. Therefore, the trial court did not have to base its award solely on breach of contract damages because the lease contemplated recovery of attorney fees for all claims in any civil action in connection with the lease. Apportionment of fees for the breach of contract and tort causes of action was thus unnecessary because the broad language of the attorney fee clause in the contract permitted recovery of attorney fees for breach of contract or any other claim asserted in connection with the lease.'].) Similarly, if the attorney fee provision encompasses fees incurred in connection with any dispute arising out of the contract, in order to determine the prevailing party the contract cause of action should not be viewed in isolation from other related claims that were litigated....

In the present case, the attorney fee provision, though somewhat unique in form, applies to fees incurred in the arbitration or litigation of 'any dispute.' Like provisions referring to any claim 'in connection with' a particular agreement ..., an attorney fee provision awarding fees based on the outcome of 'any dispute' encompasses all claims, whether in contract, tort or otherwise. 'A 'dispute' is a more general term that includes any conflict or controversy .... Any conflict concerning the effect of the agreements gives rise to a right to an attorney fees award by the prevailing party.' (Thompson v. Miller (2003) 112 Cal. App. 4th 327, 337.) '[W]here the language of the agreement broadly applies to ' 'any dispute' ' under it, the attorney fee clause encompasses any conflict concerning the effect of the agreement, including a tort claim.' (Miske v. Coxeter, supra, 204 Cal. App. 4th at p. 1259.)' Id. at 992, 993 (emphasis added, some citations omitted).

As with the case authority cited above, in this case the language of the JVA's attorney fee provision demonstrates that the parties intended the fee clause to apply to noncontract claims. The cross claims Calendar No.: Event ID: TENTATIVE RULINGS

3049975 CASE NUMBER: CASE TITLE: AUDIO VISUAL LABOR MANAGEMENT INC VS READ 37-2018-00034571-CU-PO-CTL for breach of fiduciary duty and the remainder of Read's Cross-Complaint were initiated in connection with the parties' relationship arising out of the JVA. The gravamen of this dispute involves their purported rights and obligations pursuant to the JVA. The corporate entity was formed as a result of the JVA. The JVA sets forth the terms of the parties' business relationship. Therefore, Plaintiff and Cross-Defendants are entitled to recover attorney fees related to all of the asserted causes of action and apportionment is not necessary.

Hourly Rate for Plaintiff / Cross-Defendant's Counsel The Court has broad authority to determine the amount of a reasonable fee. PLCM Group v. Drexler (2000) 22 Cal. 4th 1084, 1095.

The fee setting inquiry ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. Id. This Motion is supported by the declarations of counsel David M. Parker, James Jay Stoffel and Gregory L. Riggs. In addition, the Parker declaration indicates that counsel were also assisted by attorney David J. Zubkoff, and paralegals Sarah J. Lawless and Ana Romo McMahon. Surprisingly, these declarations do not indicate the hourly rates actually billed by counsel or the paralegals. The declarations also do not attach any billing records. Instead, the Parker declaration includes a table of time incurred on various broad tasks, as well as referencing the 'Laffey Matrix.' Given this information, as well as the rates billed by defense counsel and the Court's own experience, the Court assigns the following hourly rates: David Parker: $600.00 David Zubkoff: $600.00 Gregory Riggs: $450.00 Jay Stoffel: $600.00 Sarah Lawless: $160.00 Ana McMahon: $160.00 Hours Incurred and Final Lodestar Calculation Defendant Read's opposition (p. 5, line 8 - p. 8, line 28) challenges various time entries as being unreasonable and / or duplicative. The Court agrees that some of the time entries are unreasonable and did not need to involve multiple billing personnel. After reviewing these time entries, the Court imposes specific time reductions for the individual attorneys and paralegals. These time reductions are set forth below: David Parker: 427.6 hours - 74 hours x $600.00 = $212,160.00 David Zubkoff: 629.2 hours - 130.8 hours x $600.00 = $299,040.00 Gregory Riggs: 720.4 hours - 207 hours x $450.00 = $231,030.00 Jay Stoffel: 408.5 hours - 43 hours x $600.00 = $219,300.00 Sarah Lawless: 132.0 hours - 14 hours x $160.00 = $18,880.00 Ana McMahon: 45.8 hours - 4.9 hours x $160.00 = $6,544.00 TOTAL: $986,954.00 Calendar No.: Event ID: TENTATIVE RULINGS

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