Judge: Jon R. Takasugi, Case: 19STCV03680, Date: 2022-10-13 Tentative Ruling

Case Number: 19STCV03680    Hearing Date: October 13, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant is awarded $175,000 in reasonable attorney fees.

On 12/5/2019, Plaintiff Walid Amiri (Plaintiff) filed suit against Meritage Homes of California (Defendant), alleging (1) breach of contract; (2) breach of good faith and fair dealing; (3) false promise; (4) intentional misrepresentation; and (5) negligent misrepresentation.

            On 3/14/2022, Defendant’s motion for summary judgment was granted.

            Now, Defendant moves for attorney fees totaling $250,710. Plaintiff moves to tax costs.

Discussion

            Defendant seeks to recover $250,710 in attorney fees pursuant to the attorney fees clause of the NHPA. Here, the NHPA provided:

In the event Meritage retains the service of one or more attorneys to enforce or protect its rights or remedies under the Contract, and whether or not an action or claim is filed, Meritage shall be titled to recover from Buyer all legal fees and all other costs, including court costs, incurred by Meritage in connection therewith.

            In opposition, Plaintiff argues that Defendant should only be able to recover for the contract-based causes of action, and cited a number of cases in support. However, those cases are distinguishable. For example, Plaintiff cites to Reyes v. Beneficial State Bank (2022) 76 Cal.App.4th 596 where the Court concluded that plaintiff’s fraud and negligent misrepresentations did not arise out of contract for purposes of section 1717. However, there, the underlying contract provided:

You may have to pay collection costs. You will pay our reasonable costs to collect what you owe, including attorney fees, court costs, collection agency fees and fees paid for other reasonable collection efforts....”

            Based on this narrow language, the Court concluded that “ the fee provision was narrowly worded to apply only to attorney fees incurred in collecting amounts owed under the Contract.” (Reyes, supra, 76 Cal.App.5^th 596.)

            Here, by contrast, the attorney fees provision is broad and provided for all fees and costs if Defendant retains attorney to “enforce or protect its rights or remedies under the Contract.” In Thompson v. Miller (2003) 112 Cal.App.4^th 327, the Court there found that an attorney fees clause using the language “any dispute under [the agreements]” embraced the defendant’s assertion of the contract as a defense to a fraud claim. Defendant here similarly asserted the language of the NHPA—specifically, its articulation of the relationship between the parties—as part of its defense to Plaintiff’s fraud claims. This is best evidenced by the extensive analysis of the NHPA’s language in the motion for summary judgment.

            In sum, the Court concludes that Defendant is entitled to recover attorney fees pursuant to the NHPA’s attorney fee clause. Accordingly, the Court turns to the reasonable of the requested sum of $250,710.

Rates

Edward R. Huguenin seeks a rate of $500/hr. Mr. Huguenin has been in practice for over 28 years and specializes in civil litigation defense. After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, and the skill required, the Court finds that this is a reasonable hourly rate for an attorney with similar skill and experience. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

Drew C. Wagner-Weird seeks a rate of $400/hr. Mr. Wagner-Weir has been in practice since 2015, and specializes in construction defect and civil litigation defense. After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, and the skill required, , the Court finds that this is a reasonable hourly rate for an attorney with similar skill and experience. (Stokus, supra, 217 Cal.App.3d at p. 657.)

James Bothwell, Joshua Willert, Jeffrey Nordlander, Elisabeth Connell, Stacey Lyons, and Grace Bransen also seek rates of $500/hr, $400/hr, and $200/hr respectively. The Court finds these rates to be reasonable. (Stokus, supra, 217 Cal.App.3d at p. 657.)

Hours

            Mr. Hugenin claims 142.4 hours worked. Mr. Wagner-Weird claims 353.5 hours worked.

In opposition, Plaintiff argues that Defendant’s request remains unreasonable and excessive on its face, and identifies a number of entries in support. For example:

-         3.4 hours on February 18, 2019 reviewing Plaintiff’s Complaint and drafting an email, and another 4.5 hours on March 20 and March 21, 2019 performing the same tasks;

-         1.20 hours billed by Defendant’s partner for reviewing documents and compiling the same for bates stamping;

-         Nearly three hours billed by an associate on March 22, 2019 preparing a tender of defense letter, which included other City of LaVerne actions, with additional billing in April 2019;

-         19.5 hours spent drafting an 11 page Demurrer and 8 page Motion to Strike - 2.5 hours drafting a complaint against Michael Baker International unrelated to the litigation;

-         Legal research concerning drafting of indemnity letters to non-parties;

-         12.4 hours drafting first set of written discovery; and

-         Various entries for “indexing” document production.

            Plaintiff also notes that a considerable portion of billing was for internal meetings and conversations. (See Rodriguez v. Barrita, Inc. (N.D. Cal. 2014) 53 F. Supp. 3d 1268, 1281 (See reductions when attorney spent 24% of hours conferencing).

      The Court agrees that these entries indicate padding and inflation in the hours claimed by Mr. Hugenin and Mr. Wagner-Weird. 

            The same is true of the limited legal work performed by the remaining individuals. Limited additional work was claimed by: (1) James Bothwell and Joshua Willert, totaling 25.1 hours; (2) Jeffrey Nordlander and Elisabeth Connell, totaling 48 hours; (3) paralegal Stacey Lyons, totaling 25.2 hours; and (4) law clerk Grace Bransen, totaling 6.6 hours.

While the hours billed for by Mr. Willert and Mr. Nordlander appear to be reasonably incurred, the others entries strongly indicate padding. For example, Mr. Bothwell billed 4.8 hours for “efforts to try and secure a defense of the action by securing agreements to defend from the subcontractors involved in the Boudreau action.”; Ms. Connell billed 13.2 hours to “assist” with legal research; Ms. Lyons billed 25.2 hours to “assist[] with trying to secure a defense for Meritage in this action, discovery and subpoena preparation, subject property history and analysis, and document review; Ms. Bransen billed 10.9 hours to assist with preparing jury instructions, research the requirements for filing and submitting a memorandum of costs, and “assisting with analyzing” the results of the motion. The Court is not persuaded that such vague claims of “assistance” in such minimal quantities were reasonably incurred.  

            In sum, the Court finds a portion of the hours claimed to be “excessive, redundant, or otherwise unnecessary.” (Hensley v. Eckerhart, 461 U.S. 424, 434.)  As a result, and given the Court’s power to make “across-the-board percentage cuts either in the numbers of hours claimed or in the final lodestar figure,” the Court finds a final lodestar figure of $175, 000 to be reasonable. (Gonzalez v. City of Maywood (9th Cir. 2013) 729 F.3d 1196, 1203 (Gonzalez).

It is so ordered.

Dated:  October    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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