Judge: John C. Gastelum, Case: 16-00864515, Date: 2023-09-14 Tentative Ruling

(1-2) Motion for Attorney Fees (3) Status Conference

Tentative Ruling:  (1) Cross-Defendant Ladera Ranch Maintenance Corporation (“LARMAC”) seeks an order granting its attorney fees incurred on appeal of $38,379.00 and its costs of $432.45 for a total fee award of $42,311.45. LARMAC seeks to recover its attorney fees and costs in connection with Cross-Complaint Grant A. Tinsley (“TINSLEY”) and Karen D. Jennings’ (“JENNINGS”) (collectively “Cross-Complainants”) appeal of the Judgment.

General Authority for Reasonableness of Attorney Fees:  In determining the amount of fees to award, a court has broad authority to determine the amount of a reasonable fee. (PLCM Group v. Drexler (2000) 22 Cal.4^th 1084, 1095.)

Statutory attorney fees are ordinarily determined by the court pursuant to the “lodestar” or “touchstone” method. (The Rutter Group, Cal. Prac. Guide Civ. Trials & Ev. Ch. 17-E at 17:153.2.)  Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.)  

The base amount is then adjusted in light of various factors, which include: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the court's view the two law firms involved had approximately an equal share in the success of the litigation.” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  

An award of fees may include not only the fees incurred with respect to the underlying claim but also fees incurred to establish and defend a fee claim. (Serrano v. Priest (“Serrano IV”) (1982) 32 Cal.3d 621, 639.)  

“The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)

The Motion:  Initially, there is no dispute that LARMAC is the prevailing party on the appeal and entitled to recover its attorney fees and costs as the Court of Appeal affirmed the Judgment on appeal.

LARMAC presents evidence Gordon Rees Scully Mansukhani, LLP was the law firm who represented it on the Cross-Complaint filed by TINSLEY and JENNINGS and the attorneys spent a total of 154.80 hours on the appeal with hourly rates of $220 for the associates and $250 for the partners and Senior Counsel which totals $38,379.00 in attorneys’ fees. (See Cogger Decl., ¶¶ 10-18.) LARMAC presents evidence that John P. Cogger, a partner with the law firm, reviewed the firm’s billing records and the attorneys at his firm spent the following hours and billed the following amounts on the appeal:

(Id.)

LARMAC also presents evidence that $432.45 in costs through 10-25-22 were incurred on the appeal. (See Cogger Decl., ¶ 9, Exh. I.) 

LARMAC also presents evidence that it anticipates spending an additional $3,500 for prosecution of this Motion. (See Cogger Decl., ¶ 21).

In Opposition, Cross-Complainants contend the amount of fees requested should be reduced significantly and at least by half because LARMAC retained two separate law firms to represent it on the appeal; that there was only one appeal of the Judgment which concerned both the Complaint and the Cross-Complaint; that they succeeded on their appeal of the Court’s granting of LARMAC its attorney fees in the underlying case which is evidence LARMAC’s billings are inflated and are unreasonable; and the Court should deny LARMAC its underlying attorney fees since that award has been vacated by the Court of Appeal and LARMAC’s fee request be disallowed entirely. Cross-Complainants do not contend the costs are inappropriate or unreasonable.

Here, the Opposition does not contend that the hourly rates of the attorneys are unreasonable. As such, the Court finds, based on the evidence presented, hourly rates of $250 and $220 are reasonable hourly rates for the services performed by LARMAC’s attorneys on the appeal. (See 569 E. Cty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 436–437 [“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom and this includes the determination of the hourly rate that will be used in the lodestar calculus...In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees...the difficulty or complexity of the litigation to which that skill was applied...and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases...”].)

As to the reasonableness of the time spent by LARMAC’s attorneys, Cross-Complainants contend  LARMAC’s fee request is excessive because it retained two different attorneys to represent it on the appeal when one firm would have sufficed and that the reasonableness of LARMAC’s fee request should be viewed holistically rather than on a line-by-line review of the billing records. As examples of the unreasonableness of LARMAC’s fee request, Cross-Complainants contend that there was excessive “over” “conferencing” in LARMAC’s billing records as the term “corporate counsel” shows up in 38 separate entries which pertain to communications with LARMAC’s other counsel or review of that counsel’s work; that a tally of these entries represent 16.8 hours of Mr. Cogger’s time at $250 per hour for a total of $4,200; that time entries were redacted without explanation; that there is a risk of overlapping on the appeals and TINSLEY prevailed on the appeal of the attorney fee order; and that an unreasonable amount of time was spent on various tasks such as reviewing notices or on matters which had no effect on litigation strategy, i.e. 10.2 hours from April 20, 2021 through August 23, 2022. In sum, Cross-Complainants contend that LARMAC’s fee request should be reduced by at least half in recognition of attorney over conferencing, task padding, and the fact it retained two separate law firms.

Although Cross-Complainants contend LARMAC’s fee request is unreasonable, Cross-Complainants do not submit any evidence to support their contentions. Cross-Complainants do not submit a declaration to support their contention that there was over conferencing by LARMAC’s counsel, that the time spent by counsel to review notices was excessive or had no effect on litigation strategy, or that the use of two law firms was unwarranted or unreasonable. Cross-Complainants cannot simply contend the hours incurred by LARMAC’s attorneys were unnecessary or excessive.

In Premier Med. Mgmt. Sys., Inc. v. CA Ins. Gurantee Ass’n (2008) 163 Cal.App.4^th 550, 563-64, the Court states: 

“Appellants complain that each respondent claimed fees for the joint pleadings on appeal, suggesting that much of this work must have been duplicative and unnecessary. They also argue that the fees on appeal should have been reduced because the issues on appeal are the same as the issues researched and briefed in the trial court. But appellants submitted no evidence to contradict the declarations and billing records submitted by respondents to establish that this work was performed in connection with the collaborative appellate briefing. Once again, appellants have given us no basis to overturn the trial court's exercise of discretion. Respondents supported their fee requests with declarations describing the joint defense and the division of labor, with billing records to establish the hours of work. Appellants had two options to oppose such a showing: attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. They did neither.” 

Further, a prevailing party “can carry its burden of establishing its entitlement to attorney fees by submitting a declaration from counsel instead of billing records or invoices.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal.App.4th 359, 396.)

LARMAC submitted the Declaration of Mr. Cogger who states he reviewed the firm’s billing records and the attorneys spent the following hours on the appeal and the billing records were attached in support of the Reply. He also attests the time spent “was reasonably necessary to mounting a proper defense on behalf of LARMAC.” (See Cogger Decl., ¶¶ 18 and 19.) Cross-Complainants did not submit evidence to support their contention that the billings were unreasonable.  As such, the Court GRANTS the Motion and award LARMAC its fees and costs as requested -- a total fee award of $42,313.45

Request for Judicial Notice:  The Court GRANTS LARMAC’S request for judicial notice of Exhibits A and B pursuant to Evidence Code section 452(d).

(2) Plaintiff Ladera Ranch Maintenance Corporation (“LARMAC”) seeks an order granting its attorneys fees incurred on appeal of $33,320.50 and costs incurred of $519.54 for a total fee award of $33,840.04. LARMAC seeks to recover its attorney fees and costs in connection with Grant A. Tinsley (“TINSLEY”) and Karen D. Jennings’ (“JENNINGS”) (collectively “Defendants”) appeal of the Court’s Judgment on LARMAC’s First Amended Complaint (“FAC”).

General Authority for Reasonableness of Attorney Fees

In determining the amount of fees to award, a court has broad authority to determine the amount of a reasonable fee. (PLCM Group v. Drexler (2000) 22 Cal.4^th 1084, 1095.)  Statutory attorney fees are ordinarily determined by the court pursuant to the “lodestar” or “touchstone” method. (The Rutter Group, Cal. Prac. Guide Civ. Trials & Ev. Ch. 17-E at 17:153.2.)  Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.)  

The base amount is then adjusted in light of various factors, which include: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the court's view the two law firms involved had approximately an equal share in the success of the litigation.” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  

An award of fees may include not only the fees incurred with respect to the underlying claim but also fees incurred to establish and defend a fee claim. (Serrano v. Priest (“Serrano IV”) (1982) 32 Cal.3d 621, 639.)  

“The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)

The Motion:  Initially, there is no dispute that LARMAC is the prevailing party on the appeal and entitled to recover its attorney fees and costs as the Court of Appeal affirmed the Judgment on appeal.  

LARMAC presents evidence that Whitney | Petchul is the law firm who represented it on the Complaint and their attorneys spent a total of 104.80 hours on the appeal and had hourly rates ranging from $125 for a paralegal and $275-$305 for the attorneys which totals $29,447.00 in attorney fees. (See Wang Decl., ¶¶ 14 and 15.) The below reflects the hours spent and the hourly rates charged:

(Id.) 

LARMAC attaches a breakdown of the hours spent by the attorneys and paralegals on the appeal which describes the specific nature of the services rendered as well as the monthly billing statements sent to LARMAC. (See Wang Decl., ¶¶ 14 and 15, Exhs. A and B.)

LARMAC presents evidence to show $519.54 in costs incurred during the appeal. (See Wang Decl., ¶ 16.)

LARMAC presents evidence that their attorneys spent a total of 10.2 hours on the Motion and anticipates spending another 2.5 hours to review any Opposition, prepare a Reply, and attend the hearing on the Motion plus $60 in filing fees – a total of $3,873.50. (See Wang Decl., ¶ 16.)

In Opposition, Defendants contend the amount of fees requested should be reduced significantly and at least by half because LARMAC retained two separate law firms to represent it on the appeal; that there was only one appeal of the Judgment which concerned both the Complaint and the Cross-Complaint; that they succeeded on their appeal of the Court’s granting of LARMAC its attorney fees in the underlying case which is evidence that LARMAC’s billings are inflated and are unreasonable; and the Court should deny LARMAC its underlying attorney fees since that award has been vacated by the Court of Appeal and LARMAC’s fee request be disallowed entirely. Defendants do not contend the costs are inappropriate or unreasonable.

Here, LARMAC submitted the declaration of its counsel who attests “that all the services rendered and the time expended...were reasonable and necessary with regard to the appeal” and attached a copy of its billing entries and statements. (See Wang Decl., ¶¶ 14 and 15.) A prevailing party “can carry its burden of establishing its entitlement to attorney fees by submitting a declaration from counsel instead of billing records or invoices.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal.App.4th 359, 396.)

The Opposition does not contend that the hourly rates of the attorneys are unreasonable. As such, the Court finds, based on the evidence presented, hourly rates of $250 and $220 are reasonable hourly rates for the services performed by LARMAC’s attorneys on the appeal. (See 569 E. Cty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 436–437 [“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom and this includes the determination of the hourly rate that will be used in the lodestar calculus...In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees...the difficulty or complexity of the litigation to which that skill was applied...and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases...”].)

Further, Defendants do not contend that any specific amount of time spent by a particular attorney was unreasonable. Rather, they merely contend that LARMAC’s fee request is excessive because it retained two different attorneys to represent it on the appeal when one firm would have sufficed. Defendants do not submit any evidence to support their contention that the use of two law firms was unreasonable or that any specific time entry was unreasonable.

Defendants cannot simply contend the hours incurred by LARMAC’s attorneys were unnecessary or excessive. In Premier Med. Mgmt. Sys., Inc. v. CA Ins. Gurantee Ass’n (2008) 163 Cal.App.4^th 550, 563-64, the Court states: 

“Appellants complain that each respondent claimed fees for the joint pleadings on appeal, suggesting that much of this work must have been duplicative and unnecessary. They also argue that the fees on appeal should have been reduced because the issues on appeal are the same as the issues researched and briefed in the trial court. But appellants submitted no evidence to contradict the declarations and billing records submitted by respondents to establish that this work was performed in connection with the collaborative appellate briefing. Once again, appellants have given us no basis to overturn the trial court's exercise of discretion. Respondents supported their fee requests with declarations describing the joint defense and the division of labor, with billing records to establish the hours of work. Appellants had two options to oppose such a showing: attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. They did neither.” 

Accordingly, the Court finds the hourly rates and number of hours spent by LARMAC’s attorneys are reasonable.

The Motion is GRANTED, in its entirety.