Judge Joel R Wohlfeil, Case Number: 37-2020-00005564-CU-BT-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2020-00005564-CU-BT-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2020-00005564-CU-BT-CTL STAHL VS CROSS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 05/13/2024

The Motion (ROA # 505) of Defendant and Cross-Complainant Fenn Cross as Personal Representative of The Estate of Terry M. Cross, and Defendant The Armaid Company, Inc. ('Defendant' or 'Movant') for attorneys' fees and reasonable costs, against Plaintiffs Brian Stahl, Nic Bartlotta, and All Together Assets, LLC (collectively 'Plaintiffs'), is GRANTED IN PART and DENIED IN PART.

As discussed below, attorney fees are awarded in the amount of $121,870.00. No amount will be awarded for ordinary costs. Civ. Code 1717 and Code Civ. Proc. 1033.5(a)(10)(A).

Defendant's Request (ROA # 514) for judicial notice is DENIED.

The prior ruling by Judge Katz (ROA # 395) has already determined these parties prevailed at trial and are entitled to recover contractual attorney fees and costs. Also, the moving parties were the prevailing party on appeal.

Attorney Fees Incurred Enforcing Judgment 'The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment ....

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.' Code Civ. Proc. 685.040.

'The judgment creditor may claim costs authorized by Section 685.040 by noticed motion. The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred.' Code Civ. Proc. 685.080(a).

Under sections 685.070 and 685.080, the judgment creditor cannot accept a payment as full satisfaction of the judgment, then file a memorandum or motion for additional enforcement costs and fees.

Conservatorship of McQueen (2014) 59 Cal. 4th 602, 616.

'Plaintiff's motion for costs and fees was timely as to attorney fees incurred opposing defendant's appeal from the judgment, but untimely as to fees incurred enforcing the judgment through the separate fraudulent transfer action.' Id. In this case, Defendants and Cross-Complainant, as the judgment creditors, filed acknowledgements of full satisfaction of the judgment on September 21, 2023. Therefore, it is now too late to seek fees and Calendar No.: Event ID: TENTATIVE RULINGS

3124852 6 CASE NUMBER: CASE TITLE: STAHL VS CROSS [IMAGED] 37-2020-00005564-CU-BT-CTL costs associated with enforcing the judgment. The McQueen opinion did not create an 'implied' rule permitting a judgment creditor carte blanche to file a motion seeking such fees several months later.

Given this ruling, the total amount awarded will be reduced in the amount of $44,965 for attorney's fees incurred enforcing the judgment.

Attorney Fees Incurred Amending Judgment 'A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court ... must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case ....' California Rules of Court, Rule 3.1702(b)(1).

'The term 'rendition of judgment' has a particular meaning. In the context of a court trial, it means the signing and filing of the court's findings, conclusions, and final judgment in a case.' Carpenter v. Jack in the Box Corp. (2007) 151 Cal. App. 4th 454, 464.

'All of the fees plaintiffs incurred in pursuing their alter ego motion, including the fees plaintiffs incurred in appealing the initial order denying their alter ego motion in Highland Springs I, are prejudgment fees incurred in obtaining the February 8, 2017, judgment granting the alter ego motion.' Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal. App. 5th 416, 427.

'A notice of motion to claim attorney's fees on appeal ... under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case ....' Id. at (c)(1).

In this action, the Corrected Amended Judgment was entered on February 6, 2023. This was before the appeal was filed on April 6, 2023. The Corrected Amended Judgment is the one final judgment in this action because it is the judgment that disposed of the pending causes of action. The fees sought for efforts expended to amend the judgment were fees for services up to and including the rendition of judgment in the trial court. These fees are subject to the timing requirements in Rule 3.1702(b)(1). The Motion for these fees is therefore untimely.

Given this ruling, the total amount awarded will be reduced in the amount of $26,715 for attorney's fees incurred amending the judgment.

Attorney Fees Incurred Defending Appeal The moving parties seek $85,870 for attorney fees incurred defending the appeal. The opposition concedes that the hourly rates billed by counsel are reasonable. Also, the declaration of Ajay Gupta and the attached billing ('Exhibit 2') evidence the hours incurred.

The opposition to this Motion argues that the hours incurred (190.8) is unreasonable and requests that the Court reduce the total hours. However, importantly, the opposition does not identify any particular time entries it contends are unreasonable. It is not unusual for an opposing party to submit a matrix of time entries they contend are unreasonable so that the Court has an efficient means to evaluate multiple time entries. This Court is not in a position to unilaterally comb through 77 pages of billing invoices in search of unreasonable time entries associated with the appeal. The opposition has not satisfied its burden in this regard and this aspect of the attorney fee Motion will not be reduced.

Attorney Fees Incurred on Motion for Undertaking The moving parties seek $24,765 for attorney fees incurred preparing and filing their 'Motion to Order Discretionary Undertaking Under California Code of Civil Procedure � 917.9' (ROA # 440). This equates with 62 hours of work at the blended rate of $400 per hour.

Calendar No.: Event ID: TENTATIVE RULINGS

3124852 6 CASE NUMBER: CASE TITLE: STAHL VS CROSS [IMAGED] 37-2020-00005564-CU-BT-CTL The undertaking motion included a six page memorandum, a four page declaration (plus exhibits) and a four page reply brief. Thus, this was not a complex issue. Given that this is a single, discreet Motion, the Court is able to independently evaluate these time entries.

This amount is unreasonable and is reduced to $12,000 (30 hours x $400).

Attorney Fees Incurred on This Motion The moving parties seek $69,597 for attorney fees incurred preparing and filing this Motion (this includes estimated fees for preparing the reply and appearing at the hearing). This equates with 174 hours of work at the blended rate of $400 per hour.

Given that this is a single, discreet Motion, the Court is able to independently evaluate these time entries. This requested amount is unreasonable. Although this is a complex Motion, this amount still exceeds what is reasonable. In addition, the moving parties have only partially prevailed on this Motion.

This amount is unreasonable and is reduced to $24,000 (60 hours x $400).

Request for Ordinary Costs This Motion seeks $3,715.15 for non-attorney fee, ordinary costs. The opposition argues this request is procedurally deficient because a Memorandum of Costs was not filed.

'A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment ....' California Rules of Court, Rule 3.1700(a)(1).

'Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.' California Rules of Court, Rule 8.278(c)(1).

Given the express language of the applicable Rules of Court, the opposition is correct and the award for costs is disallowed. Given this ruling, the Court does not address the substantive arguments regarding the propriety of the cost items requested.

The reply argues: '... [T]he Motion for Fees, because it was supported by a sworn declaration regarding the claimed costs, is functionally equivalent to a verified memorandum of costs.' Reply at page 9, lines 17 - 19. However, no legal authority is cited supporting this position.

Calendar No.: Event ID: TENTATIVE RULINGS

3124852 6