Judge: Katherine Chilton, Case: BC694615, Date: 2022-09-19 Tentative Ruling
Case Number: BC694615 Hearing Date: September 19, 2022 Dept: 25
PROCEEDINGS: MOTION
FOR ATTORNEY’S FEES AND COSTS
MOVING PARTY: Defendant
and Cross-Complainant P.J. West & Associates, Inc.
RESP. PARTY: Plaintiff and Cross-Defendant Kabateck
Brown Kellner, LLP
MOTION FOR ATTORNEY’S FEES AND COSTS
(CCC § 1717)
TENTATIVE RULING:
Defendant and Cross-Complainant P.J. West &
Associates, Inc.’s Motion for
Attorney’s Fees is GRANTED in the amount of $97,500.00
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed on September 6,
2022. [X] Late [ ] None
REPLY: Filed on
September 12, 2022. [ ]
Late [ ] None
ANALYSIS:
I.
Background
On February 20, 2018, Plaintiff Kabateck Brown Kellner,
LLP (“Plaintiff” or “Kabateck”) filed a Complaint for Declaratory Relief
against Defendant P.J. West & Associates, Inc. (“Defendant” or “P.J. West”). The action arose of out an alleged agreement
between the Plaintiff’s law firm and Defendant’s expert services. (See Compl.) Plaintiff sought declaratory relief that
Defendant was not entitled to any compensation for services provided alleging
that the expert witness was unprepared and unqualified to provide testimony. (Compl. p. 6.)
On March 28, 2018, P.J. West filed an Answer to the
Complaint as well as a Cross-Complaint against Kabateck for 1) breach of contract; 2) common counts; and 3) quantum
meruit. On April
30, 2018, Plaintiff/Cross-Defendant Kabateck filed an Answer to the
Cross-Complaint.
On June 4,
2019, the Court ordered the case to be reclassified as a civil limited
jurisdiction case. (6-4-19 Minute
Order.)
On March
18, 2022, P.J. West filed Notice of Settlement and Written Acceptance of P.J.
West & Associate, Inc.’s Statutory Offer to Compromise, Pursuant to Code of
Civil Procedure § 998. (3-18-22 Notice of Settlement.) The Notice indicated that Kabateck had
accepted P.J. West’s statutory offer to compromise in the amount of $5,475.77
on March 15, 2022, not including prejudgment interest, attorney’s fees, and
costs. (Ibid.)
On May 3,
2022, the Court granted Judgment for P.J. West and against Kabateck in the
amount of $5,475.77, $5,575.00 in prejudgment interest, and attorney’s fees and
costs to be determined. (5-3-22
Judgment.) On May 6, 2022, the Court
granted P.J. West’s Ex Parte Application to amend Judgment and on May 18, 2022.
the Court amended the Judgment to reflect the correct prejudgment interest in
the amount of $3,181.29. (5-6-22 Minute
Order; 5-18-22 Judgment.)
On May 13,
2022, P.J. West filed a Memorandum of Costs, seeking costs in the amount of
$7,215.34 and attorney’s fees in an amount to be determined.
On July 5,
2022, Defendant/Cross-Complainant P.J. West filed the instant Motion for
Attorney’s Fees in the amount of $139,662.00.
On July
26, 2022, P.J. West filed Acknowledgment of Partial Satisfaction of Judgment,
in the amount of $8,657.06.
On
September 6, 2022, Plaintiff/Cross-Defendant Kabateck filed a late Opposition
to the Motion and on September 12, 2022, Defendant/Cross-Complainant P.J. West
filed a Reply to the Opposition.
II.
Legal
Standard
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.) 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
The Motion was filed timely.
A. Defendant/Cross-Complainant P.J.
West’s Motion
Defendant/Cross-Complainant P.J. West moves for
attorney’s fees in the amount of $139,662.00 as the prevailing party in this
action. (Mot. p. 1.) P.J. West argues that it is the prevailing
party on the Cross-Complaint because Kabateck accepted its § 998 offer to
compromise. (Ibid. pg. 6.) The Engagement Agreement between P.J. West
and Kabateck for expert witness fees is attached and contains a provision
entitling the prevailing party to attorney’s fees. (Levin Decl. ¶ 13; Ex. F.)
Furthermore, P.J. West argues that “[s]ubstantial legal
fees are reasonable and appropriate” because of “the types of uncivil
litigation tactics West was forced to endure.”
(Mot. p. 5.) These tactics
included threats to “(1) destroy West’s professional reputation in a
public filing for the entire world to see, and (2) to force West to incur
substantial attorney’s fees defending a Superior Court lawsuit rather than
litigating in small claims court where this case was original filed.” (Ibid.) Thus, “Kabateck’s punitive, aggressive,
uncivil, and unprofessional litigation tactics exponentially multiplied a
simple small claims case into $139,662 in legal fees” because “West had no
choice but to retain an attorney whose duty was to defend and protect his
client from Kabateck’s misuse of the Courts.”
(Ibid. at pp. 6-7; West Decl. ¶ 16.) Because of Kabateck’s tactics and attempts to
thwart resolution of the case, it was not resolved for four years. Even after the initial Complaint filed by
Kabateck was dismissed by the court following P.J. West’s Motion for Judgment
on the Pleadings, Kabateck continuing to litigate and “refused to settle unless
West provided him with a general release waiving claims for malicious
prosecution.” (Levine Decl. ¶¶ 15-16;
Ex. G.)
Counsel for
P.J. West seeks attorney fees at an hourly rate of $650.00, which is based on
43 years of experiences in civil litigation.
(Mot. p. 16.) Counsel argues that
even though California Rules of Court, Rule 3.214(a) set out the fee schedule
for reasonable attorney’s fees in a breach of contract case, Rule 3.214(d) allows
“[a]n application for a fee greater than listed in the foregoing schedule
because of extraordinary services,” which “must include an itemized statement
of the services rendered or to be rendered.”
Here, P.J.
West’s counsel has undertaken 215.23 hours of attorney work at a rate of $650
per hour, including the time to prepare the instant Motion. (Mot. p. 17; Levine Decl. ¶ 37; Ex. A.) He has submitted his timekeeping records
along with the Motion, based on 12-minute increments. (Levine Decl. ¶¶ 2-4; Ex. A.) He argues that this was a case that
“presented significant difficulty” because P.J. West was litigating against “‘a
nationally renowned plaintiffs law firm that litigates complex cases with an
impressive record of success.’” (Mot. p.
17.) The subject matter was also complex
as P.J. West had to prove that there was no cause of action for declaratory
relief. (Ibid.) Kabateck’s “disruptive, uncivil,
unprofessional, malicious, and aggressive” tactics, vigorous prosecution of the
case, and attempts to thwart discovery added to the complexity. (Mot. pp. 17-18; Levine Decl. ¶¶ 17, 26-29,
31, 33.) He states that “[s]ettlement
was never a realistic option because Kabateck routinely demanded a release of
malicious prosecution claims. Mediation was not an option because Kabateck had
no intention of offering the full $5,477.75.”
(Levine Decl. ¶ 39.) Given
Kabateck’s national reputation, counsel argues that “[l]itigating this case
against Mr. Kabateck required skill, training, and experience” including
“extensive research and careful briefing on aspects of the law of Declaratory
Judgments…filing a motion for judgment on the pleadings, discovery motions, an
ex parte applications.” (Mot. p.
18; Levine Decl. ¶¶ 40-43.) He has
submitted the court’s record of action for this case. (Levine Decl. ¶ 6; Ex. B.) Furthermore, even though the amount being
litigated was $5,475.77, counsel argues that P.J. West’s professional
reputation as an expert witness “was on the line.” (Mot. p. 18.)
Counsel for P.J. West, Peter Levine,
is a sole practitioner and gave the instant case substantial attention and got
successful results. (Mot. p. 19.) Counsel has been licensed to practice law in
California since 1983 and has 43 years of experience in civil litigation. (Ibid. at p. 19; Levine Decl. ¶ 34.)
B. Plaintiff/Cross-Defendant Kabateck’s
Opposition
The Court notes that Kabateck’s Opposition was not
timely. However, given that
Defendant/Cross-Complainant P.J. West has submitted a Reply to the Opposition,
the Court in its discretion considers the arguments in the Opposition. (California Rules of Court, Rule 3.1300(d).)
Kabateck
states that he “is not challenging that Mr. Levine is entitled to attorney’s
fees or the rate he charges.” (Oppos. p.
13.) Instead, he is challenging “the
necessity and reasonableness of the hours he allegedly devoted to this case.” (Ibid.)
First, he argues that Counsel Levine unnecessarily
continued to litigate the case on the mistaken belief that he needed to obtain
a verdict to bring an action in malicious prosecution against Kabateck. (Oppos. p. 14: Karnikian Decl. ¶ 3; Ex. 3.) Kabateck argues that P.J. West’s counsel’s
contentions that Kabateck refused to settle are false given that Kabateck
offered the full amount sought in the Cross-Complaint and attorney’s fees “as
early as June 1, 2018—two months and four days after PJW filed its
Cross-Complaint” and “consistently demanded mediation.” (Oppos. pp. 4-5, 9, Karnikian Decl. ¶¶ 13-14.) He states that “KBK made repeated efforts to
settle this dispute over $5,475.77, but PJW’s counsel was determined to
generate additional attorney fees all in a futile effort to use this action as
a springboard for a malicious prosecution action.” (Oppos. p. 8; Karnikian Decl. ¶ 13, Ex. 4.) Specifically, on June 4, 2018, Kabateck
served an Offer to Compromise Pursuant to § 998 for the full amount sought
in the Cross-Complaint and attorney’s fees up to that date, in the amount of
$9,594.00. (Karnikian Decl. ¶ 14; Exs. 5.) He denies P.J. West’s argument that the case
was “some kind of personal vendetta.” (Ibid.
at p. 8.) Kabateck explains that he made
various attempts to reach an informal resolution through negotiation and
mediation in June and July of 2018, June of 2020, and January and February of
2022, yet P.J. West’s counsel’s refused to engage in discussions about
settlement. (Oppos. pp. 8-11, Karnikian
Decl. ¶¶ 13-21, Exs. 4-11.) Kabateck
argues that Mr. Levine’s refusal was premised on his misunderstanding of the
law that he needed to obtain a judgment after a verdict to file a subsequent
malicious prosecution action against Kabateck.
(Oppos. p. 11; Karnikian Decl. ¶ 22.) After conducting research and realizing his
mistake, Mr. Levine served an Offer to Compromise Pursuant to Civil Code § 998,
which Kabateck accepted. (Oppos.
p. 11; Karnikian Decl. ¶ 23.)
Kabateck also argues that Mr. Levine refused to negotiate and informally
resolve the dispute to “drive up his fees.”
(Oppos. p. 11.)
Furthermore, he argues that a malicious prosecution action against
Kabateck will not survive as P.J. West was the first to file a lawsuit against
Kabateck and Kabateck had “probable cause” to file the Complaint. (Ibid. at p. 12.)
Kabateck requests that the Court
not consider the hours expended on the case following Kabateck’s offer to
compromise on June 4, 2018, because P.J. West could have accepted the offer at
the time and any further work on the case after this date was unnecessary. (Oppos. pp. 14-15.) Kabateck argues that “[t]he vast majority of
the time incurred by Mr. Levine was not reasonably incurred, but manufactured
to churn up the fee request on a mistaken basis of safeguarding a meritless
malicious prosecution claim.” (Oppos. p.
16.) Kabateck also argues that even if
the hours expended after June 4, 2018, are considered by the Court, they are
excessive. (Ibid. at p. 17.). He specifies
examples of unreasonable billing, such as 13 hours spent on preparing for a
deposition and 3.5 hours spent on reviewing documents on February 21,
2019. (Ibid.)
Kabateck concludes his Opposition
by requesting that the Court limit its award of attorney’s fees to $9,594.00,
the amount in attorney’s fees incurred as of June 4, 2018. (Ibid.)
C. Defendant/Cross-Complainant P.J. West’s
Reply
In its Reply, P.J. West argues that Kabateck’s arguments
regarding its intentions to settle the case misrepresent the fact that its
offers were conditioned on: “(1) Ms. West signing a general release waiving her
right to legal fees, and (2) Ms. West releasing her claims for Kabateck’s
malicious prosecution of the Declaratory Judgment action brought without
foundation and in bad faith.” (Reply. p.
4.) Kabateck did not agree to settle
without a release “until a month before the March 22, 2022 trial.” (Ibid.; Levine Decl. ¶ 4.) Counsel for Defendant/Cross-Complainant also
argues that on July 13, 2020, the same offer to settle, as was later agreed on,
was rejected by Kabateck because it did not contain a general release. (Reply p. 5; Levine Decl. ¶ 5; Ex. D.) He replies to Kabateck’s argument that the
fees are unreasonable by stating that it was due to Kabateck’s actions that Ms.
West had to hire counsel, file the Cross-Complaint, litigate the case until
March 2022. (Reply. p. 5; Levine Decl. ¶
6.)
P.J. West also counters Kabateck’s contention that the
legal work performed after the June 4, 2018, settlement offer was “unreasonable
and non-compensable.” (Reply p. 7.) Counsel argues that “Kabateck forced
Ms. West’s counsel to incur legal fees responding to discovery, filing motions
to compel discovery, and preparing, filing, and proceeding with the motion for
judgment on the pleadings dismissing the baseless Declaratory Relief Complaint,
among other things.” (Ibid.).
P.J.
West also addresses Kabateck’s arguments that the potential action in malicious
“lacks merits and lacks probable cause.”
(Reply p. 8.) However, this issue
is irrelevant to the instant Motion.
Counsel
Levine also reiterates his arguments regarding the complexity of the case and
the several matters that were being litigated, including the demand for
declaratory relief. (Reply p. 11.)
D. Analysis
The Court notes that the Engagement Agreement attached to
Counsel Levine’s declaration demonstrates that the Agreement between the
parties set out that the prevailing would be entitled to reasonable attorney’s
fees and costs. (Levin Decl. ¶ 13; Ex.
F.) Kabateck does not dispute
that P.J. West is the prevailing party and is thus entitled to attorney’s fees.
The matter in controversy between
the parties is the amount of attorney’s fees that can be reasonably awarded to
P.J. West.
In determining the reasonable amount of attorney’s fees,
the Court considers counsel’s expertise, number of hours expended on each task,
and other necessary factors, and finds Petitioner’s request for attorney’s fees
to be unreasonable.
First, the Court rejects Kabateck’s argument that
attorney’s fees should only be calculated up to June 4, 2018. Although an offer to compromise was made by
Kabateck, its conditions were not acceptable to P.J. West and were thus
rejected.
Second, the Court notes that although the case began as a
simple breach of contract case, due to both parties’ litigation methods, it did
extend over several years and involve substantial litigation and discovery.
However, having reviewed the
timekeeping records of Counsel Levine and his contention that he is an
experienced attorney in the field of civil litigation, the Court finds that the
number of hours spent on many of the tasks are excessive and would require much
less time from an attorney of his caliber.
Some tasks also are clerical and should not require a lawyer to perform
them.
For example, the Court finds that six hours
spent on March 24, 2018, on reviewing documents, preparing the Cross-Complaint,
and preparing notices of deposition is excessive. (Levine Decl. – Ex. A.) Additionally, given counsel’s experience, the
Court finds billing four hours for a motion to compel production of documents,
on June 29, 2018, to be excessive and unreasonable. A Focus Group for a case that is pending in
Limited Civil also seems excessive.
Counsel regularly billed three hours for court appearances, including
the one on May 1, 2019 for an ex parte motion for which the Court does not take
the bench. Spending four hours to
prepare summaries of depositions that Counsel actually took is excessive. Additionally, the instant Motion does not
warrant fifteen (15) hours of billing, as billed on July 1, 2, 3, 4, and 5. Counsel also had a number of very long calls
with his client which also appear to be excessive. After reviewing each entry
and assessing whether it was reasonable, the Court finds that 215 hours is not
reasonable and therefore reduces the number of hours to 150 hours. At a billing rate of $650.00 per hour, the
Court finds $97,500.00 in attorney’s fees to be reasonable.
IV.
Conclusion
& Order
Defendant and Cross-Complainant P.J. West &
Associates, Inc.’s Motion for
Attorney’s Fees is GRANTED in the amount of $97,500.00
Moving party is
ordered to give notice.