Judge: Jon R. Takasugi, Case: 19STCV43458, Date: 2023-01-11 Tentative Ruling

Case Number: 19STCV43458    Hearing Date: January 11, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            The Changs’ motion for attorney fees is DENIED.   

On 1/17/2020, Plaintiff filed a first amended complaint (FAC) against Lah-Eaton, LLC, Joel H. Chang, Chieko Dan, Suretec Insurance Company, and One Ventures, LL, alleging: (1) breach of contract; (2) action on mechanics lien release bond; (3) enforcement of mechanics liens; and (4) common counts

            On 4/20/2022, the Court granted an order to expunge Plaintiff’s mechanics lien.

            On 6/15/2022, the Court granted the Changs’ motion for judgment on the pleadings.

            Now, the Changs move for attorney fees.

Legal Standard 

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed.  (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.]” (CCP § 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (Ibid.)

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorneys’ efforts, their learning, their age, and their experience in the particular type of work demanded the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination … [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney … in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); see also Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.)  The value of legal services performed in a case is a matter in which the trial court has its own expertise.  (Id. at 1096.)  The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.  (Ibid.)  The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.  (Ibid.)

Discussion

            On 9/28/2022, the Court determined that the Changs were not entitled to recover fees from LAH, and continued this motion to allow the Changs to address a number of additional deficiencies: “The Changs will be provided an opportunity to address the deficiencies identified herein. More specifically, counsel must set forth adequate information about Ms. Olsen’s associates and Mr. O’Brien to allow the Court to determine the reasonableness of the rates claimed. Counsel will also have an opportunity to either justify the at-first-glance vague or excessive hours claimed, or to remove them from their requested recovery.” (9/28/2022 Ruling.)

            Then, the Changs failed to file any supplemental materials prior to the 12/9/22 hearing. Despite tentatively denying the motion due to this failure, the Court ultimately continued the motion to allow the Changs another opportunity, and instructed them to refile a complete motion/briefing per code.

            Now, despite this being their third opportunity to file, the Changs’ motion remains be procedurally and substantively deficient.

            Ignoring the clear directive to electronically refile a complete motion/briefing per code, the Changs filed a supplemental brief outside the 16 court days before the hearing date, as required by CCP Sec. 1005. Indeed, rather than file on the December 16 deadline, the Changs did not file until December 23, a full five Court days after the deadline.

            The motion remains deficient for a number of additional reasons.

First, as for Mr. O’Brien, the Court clearly instructed Ms. Olson to provide information which could establish the reasonableness of Mr. O’Brien’s hourly rate and services performed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) (The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed)

All that was submitted to establish the reasonableness of Mr. O’Brien’s hourly rate and services was a hearsay statement from Ms. Olson based on a conversation she had over the phone with Mr. O’Brien’s assistant regarding his hourly rate: “On or around November 14, 2022, I called the office of former counsel, Mr. O’Brien to inquire about his hourly rate at the time he was representing the Changs in 2020 and 2021. I spoke to Mr. O’Brien’s female assistant on the phone, who verbally informed me that Mr. O’Brien’s hourly rate at the time was $400.00 per hour. This rate appears reasonable to me given Mr. O’Brien’s extensive experience.” (Olson Decl., ¶ 3.) It goes without saying that a statement that Ms. Olson believes Mr. O’Brien’s hourly rate to be reasonable based on a hearsay statement from a conversation with Mr. O’Brien’s assistant is insufficient to establish the reasonableness of his hourly rate for purposes of this motion. Moreover, no billing statement or even a summary of the hours the Mr. O’Brien purportedly billed was submitted. As such, the Court has absolutely no way to determine the reasonableness of those hours.

Second, Plaintiffs’ motion contains a request for an additional award of attorney fees—$12,155.02—to reflect fees they have incurred to date since filing their motion on 9/1/2022. The Changs may not reasonably recover attorney fees which have been incurred due their own counsel’s inadequate filings. Moreover, the claim that it took Ms. Olson and her firm 18 hours to file the supplemental brief here is unreasonable on its face.

Third, the billing records submitted to the Court to support the reduced request of $21,195.37 still do not provide any information as to the associates who are claiming billable hours. As this Court has already stated, the Court cannot determine the reasonableness of the hourly rates billed by associates if it is not provided the identities of the associates performing the work, and declarations establishing the reasonableness of those hourly rates.

Moreover, as noted by Defendant, the billing entries highlighted to support the reduced request do not add up to the requested amount. As such, despite this being the Changs’ third opportunity to establish attorney fees, the Court remains unable to determine the reasonableness of the hours performed because it is not clear who performed what work, or how the request is being calculated. Without this information, the Court cannot determine if the services contributing to the request were reasonably incurred.

The Changs did not file a reply justifying any of counsel’s conduct, or attempting to address or resolve any of these deficiencies.

            In light of the procedural and substantive defects that remain after three rounds of motion practice, the Court finds it must deny this motion. 

            Based on the forgoing, the Changs’ motion for attorney fees is denied.  

It is so ordered.

Dated:  January    , 2023

   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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