Judge: Katherine Chilton, Case: 22STLC01520, Date: 2022-12-08 Tentative Ruling

Case Number: 22STLC01520     Hearing Date: December 8, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY:   Plaintiff UBS Bank USA

RESP. PARTY:         Defendant Corey Collins

MOTION FOR ATTORNEY’S FEES AND COSTS

(CPP §§ 1032, 1033.5, CCC § 1717)

TENTATIVE RULING:

Plaintiff UBS Bank USA’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $7,500.00 in attorney’s fees and $1,432.57 in costs, for a total of $8,932.57.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          Filed on November 28, 2022.                           [X] Late                       [   ] None

REPLY:                     Filed on December 1, 2022.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On March 8, 2022, Plaintiff UBS Bank USA (“Plaintiff”) filed an action against Defendant Corey Collins (“Defendant”) for (1) breach of contract, (2) account stated, and (3) unjust enrichment due to Defendant’s alleged failure to make payments on his account.  On April 12 (and  again on April 18, 2022), Defendant, in propria persona, filed an Answer.

On July 27, 2022, Defendant filed Substitution of Attorney, substituting Counsel Noha Gabra as Defendant’s representative.

On April 28, 2022, Plaintiff filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Motion”).  On August 19, 2022, the Court granted Defendant’s Motion for Summary Judgment.  (8-19-22 Minute Order.)  Judgment was entered for Plaintiff and against Defendant in the amount of $20,480.86, plus post-judgment interest and attorney’s fees and costs to be determined based on a separate motion.  (8-24-22 Judgment.)

On September 6, 2022, Plaintiff filed the instant Motion for Attorney’s Fees (“Motion”).  Plaintiff also filed a Memorandum of Costs on the same day.  On November 28, 2022, Defendant filed an Opposition to the Motion (“Opposition”).  On December 1, 2022, Plaintiff filed a Reply to the Opposition (“Reply”).

II.              Legal Standard

A prevailing party in a lawsuit includes “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Code of Civ. Proc. § 1032(a)(4).)

A prevailing party in entitled to recover costs, including attorney’s fees, as a matter of right.  (See Code Civ. Proc. §§ 1032(a)(4), 1032(b), 1033.5.)  Furthermore, attorney’s fees are allowable as costs when authorized by contract, statute, or law.  (Code Civ. Proc. § 1033.5(a)(10).)

Civil Code § 1717 states in pertinent part: “[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce¿that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the¿party¿prevailing¿on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to¿other¿costs.”  (Civ. Code, § 1717(a)).

“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 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, rule 3.1702(b)(1).)  In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, rule 8.822(a)(1).)

The calculation of attorney’s fees in California begins with the “lodestar” method – multiplying the number of hours reasonably expended by the reasonable hourly rate.  A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.  The lodestar figure may then be adjusted, based on factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.  (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.  (Ibid. at p. 48, fn. 23.)  After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc.:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.]  The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” [Internal citations and internal quotation marks omitted.]

((2006) 144 Cal.App.4th 140, 154.)  “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.  [Citations.]  The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . 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.  [Citations.]”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

No specific findings reflecting the court’s calculations are required.  The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach.  The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided.  The starting point for this determination is the attorney’s time records.  (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].)  However, California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.)  An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.  (Ibid.; Serrano, 20 Cal.3d 25 at 49.)

III.            Discussion

Plaintiff’s Motion was filed timely.

Plaintiff moves for attorney’s fees in the amount of $14,272.00, plus interest at the legal rate from the date of entry of the Order, as the prevailing party in the case and pursuant to the UBS Bank Cardmember Agreement.  (Mot. p. 2.)  Plaintiff also requests costs in the amount of $1,432.57.  (9-6-22 Memorandum of Costs.)

Plaintiff cites to the Utah Code Annotated Section 78B-5-826, which states that “[a] court may award costs and attorney fees to either party that prevails in a civil action based upon any promissory note, written contract, or other writing executed after April 28, 1986, when the provisions of the promissory note, written contract, or other writing allow at least one party to recover attorney fees.”  The Cardmember Agreement states that:

As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account) and, in the event we refer your Account after your default to an attorney who is not our regularly salaried employee, you agree to pay the reasonable fees of such attorney.

(Watson Decl. ¶ 12 – Ex. D (Darvin Decl., Ex. A.))

Plaintiff cites to Barker v. Utah Public Service Com’n (1998) 970 P.2d 702, 708 for the contention that the analysis of reasonable attorney’s fees is the same under Utah state law as under California state law.  (Memorandum p. 6.)

Plaintiff argues that the requested attorney’s fees in the amount of $14,272.00 are reasonable.  The requested attorney’s fees were incurred “researching the causes of action set forth in the Complaint; preparing, serving and filing the Complaint; researching the alleged ‘unauthorized practice of law’ committed by David Schram, ‘retained’ by Defendant to ‘represent’ him in this action; researching, drafting, filing and serving the Motion for Summary Judgment or in the alternative, Summary Adjudication; analyzing Defendant's opposition to said motion and the research and preparation of the reply brief to same; and preparing the instant Motion for Attorneys' Fees.”  (Watson Decl. ¶ 10.)  Plaintiff explains that David Schram was an individual who allegedly had power of attorney from Defendant to represent him and who was not a licensed attorney.  (Memorandum p. 6.)  As a result, Plaintiff was compelled to conduct research to determine the implications of Mr. Schram’s representation of Defendant.  (Ibid.)  Plaintiff also argues that due to counsel’s “thorough, skillful work” Plaintiff was successful in its Motion for Summary Judgment.  (Watson Decl. at ¶ 11.)

Counsel also argues that his hourly rate of $320.00 is reasonable because he has been practicing law for more than 23 years and had handled consumer finance litigation for banking entities.  (Watson Decl. ¶ 8.)  His rate is similar to the hourly rate of other attorneys in the community with similar education, experience, and background.  (Ibid. at ¶ 9.)

Plaintiff has attached a copy of its counsel’s billing statements as Exhibit C, which was prepared by a computerized program called InTapp.  (Watson Decl. ¶¶ 4-7, Ex. C.)  Plaintiff states that it had to redact some of the entries due to attorney-client privilege and confidentiality and has, thus, waived the charges for the items that were redacted.  (Ibid. at ¶¶ 4, 10.)

On November 28, 2022, Defendant filed a late opposition to Plaintiff’s Motion.  Given that Plaintiff has filed a Reply, the Court, in its discretion, considers Defendant’s Opposition.  (California Rules of Court, Rule 3.1300(d).)

First, Defendant argues that its motion was not baseless as Judgment Creditor, Western Federal Credit Union never served its motion and did not allow Debtor Christopher Jordan to withdraw its motion.  (Oppos. p. 3.)  The Court cannot discern whether Defendant is referring to his opposition to the summary judgment motion and notes that the parties mentioned are not part of the instant case.

Second, Defendant states that attorney’s fees in the amount of $26,143.72 are unreasonable, although here, Plaintiff is requesting $14,272.00 in attorney’s fees, and once again refers to parties that are not part of the instant case.  (Ibid. at p. 4.)  Defendant refers to specific time entries from March 8, 17, April 14, 15, and 18, July 7, 11, 13, August 3, 4, 5, 9, and 10, and argues that the entries show that counsel spent an excessive amount of time on tasks entered on those dates.  (Ibid. at pp. 4-6.)  Defendant states the charges should be reduced by at least $6,440.00.  (Ibid. at 6.)  Finally, Defendant argues that the hourly rate of $320.00 is excessive in a collections case.  (Ibid.)

In its Reply, Plaintiff argues that Defendant’s Opposition was filed and served late and should be disregarded.  (Reply pp. 2-3.)  Furthermore, “large portions of Defendant’s opposition is [sic] clearly ‘cut and pasted’ from an unrelated opposition in another lawsuit” as the Opposition states facts that relate to a different case.  (Ibid.)  Finally, Defendant has misconstrued the Motion and “has offered only vague and conclusory arguments for any reduction in the fee award.”  (Ibid. at pp. 4-7.)

            The Court finds that Plaintiff is entitled to attorney’s fees and costs based on the Cardmember Agreement and as the prevailing party on the Motion for Summary Judgment.

In determining the reasonable amount of attorney’s fees, the Court considers the complexity of the tasks, number of hours expended on each task, and other necessary factors.  The Court finds that the hourly rate of $320.00 for Counsel Watson is reasonable.  However, having reviewed the billing statement submitted by Plaintiff’s counsel, the Court agrees with Defendant and finds that the hours expended on certain tasks are excessive.

For example, on April 11 and 13, 2022, Counsel expended 2.3 hours preparing a default judgment package even though Defendant filed responsive pleadings on April 12 and 18, 2022, and request for default had not been filed.  (Watson Decl. ¶ 4, Ex. C.)  Plaintiff also argues that it had to conduct research regarding an individual, David Schram, who contacted Plaintiff on behalf of Defendant.  However, the Court views the time spent on this issue to be excessive.  Finally, from July to August, Plaintiff spent approximately seventeen (17) hours on tasks related to filing a reply to Defendant’s opposition to the Motion for Summary Judgment.  Having reduced the hours expended to reflect hours that would be considered necessary and reasonable, the Court finds attorney's fees in the amount of $7,500.00 to be reasonable.

The Court has also reviewed Plaintiff’s Memorandum of Costs and finds costs in the amount of $1,432.57 to be reasonable.  (9-6-22 Memorandum of Costs.)

Thus, the Court grants Plaintiff’s Motion for Attorney’s Fees and Costs as follows: $7,500.00 in attorney’s fees and $1,432.57 in costs.  Plaintiff may seek post-judgment interest through a separate motion.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff UBS Bank USA’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $7,500.00 in attorney’s fees and $1,432.57 in costs, for a total of $8,932.57.

Moving party is ordered to give notice.