Judge Kenneth J. Medel, Case Number: 37-2021-00003304-CU-OR-CTL, Date: 2024-05-14 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2021-00003304-CU-OR-CTL, Date: 2024-05-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 13, 2024

05/14/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2021-00003304-CU-OR-CTL SENSEMAN VS MIMI REAL PROPERTIES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike or Tax Costs, 08/15/2023

Plaintiffs motion for attorneys' fees and costs is GRANTED in part, and DENIED in part.

Defendants' motion to tax costs is DENIED.

Following trial and a jury verdict in their favor, Plaintiffs Mark Senseman and Phyllis Senseman (collectively 'Plaintiffs') move to recover: (1) $10,888 in costs pursuant to Code of Civil Procedure � 1032; and (2) $164,422.50 in attorney fees and $4,081.22 in costs pursuant to Code of Civil Procedure � 5975, or alternatively section 1717.

Defendants Mimi Real Properties, LLC, Five Star Vacation Rentals, Michael Jones and Lacy Jones (collectively 'Defendants') moved to strike costs and opposed Plaintiffs' motion for attorneys' fees and costs on the basis that Plaintiffs are not the prevailing party, any award of costs under section 1032 are discretionary, Plaintiffs failed to itemize the additional cost sought pursuant to section 5975, and Plaintiffs' counsel's billing for support staff is excessive and therefore unreasonable.

Defendants do not oppose any individual costs sought pursuant to section 1032 and do not challenge the reasonableness of the attorney fees submitted by personally by Plaintiffs' attorney Craig Sherman.

- Premature Motion Defendants argue that Plaintiff's motions for attorneys' fees and costs are premature, and Plaintiffs have not been determined the prevailing party because the Court has not made its final ruling on the scope of abatement work required following issuance of the special master's recommendation.

On July 19, 2023, the Court entered judgment on both the jury verdict and injunction and held that the Plaintiffs were the prevailing parties on each of their claims and causes of action in the complaint. (ROA #141, � 1.) Following denial of Defendants' motion for new trial, the Court modified its ruling and order regarding the permanent injunction. (ROA # 171.) The modified order reiterated that Plaintiffs' request for a permanent injunction was granted, which requires the Defendants to 'abate the disturbing and inordinate noise arising from the use of the Defendants' condominium as a short-term rental.' (Id. at pg.

2.) In order to determine what noise is reasonable given the circumstances the Court ordered a special master to make recommendations on necessary and reasonable abatements. (Id. pg. 3.) Since the Court has already denied Defendants' motion for new trial, has clearly ruled that the Plaintiffs were the prevailing party, and the only pending order relates to the reasonable scope of work to abate the nuisance, Plaintiffs' motions are not premature.

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3125648 29 CASE NUMBER: CASE TITLE: SENSEMAN VS MIMI REAL PROPERTIES LLC [IMAGED] 37-2021-00003304-CU-OR-CTL - Prevailing Party The prevailing party under Civil Code section 5975 is the party 'who prevailed on a practical level by achieving its main litigation objectives.' (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590.) To determine whether a party prevails under a contract, a court must 'compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.' (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) This determination cannot occur until final resolution of the contract claims and requires a comparison of how each party succeeded or failed in its contentions. (Id.) A court may exercise its discretion and determine that there is no prevailing party if the victories and losses are evenly divided. (Harris v. Rojas (2021) 66 Cal.App.5th 817, 826 [trial court did not abuse discretion by holding that there was no prevailing party where plaintiff only recovered a small fraction of the monetary damages being sought and defendant prevailed on other claims].) Here, Plaintiffs achieved their main litigation goal, the abatement of the nuisance caused by Defendants' operation of a short-term rental unit ('STRU'), Defendants did not obtain anything, and therefore, in accordance with the Court's prior order, Plaintiffs are the prevailing parties.

- Reasonableness A Plaintiffs' verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) 'In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated to not suffice.' (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) Plaintiffs' attorneys are also entitled to a presumption of reasonableness. Absent a contrary showing, both the number of hours that the prevailing party's attorney spent litigating the case and his or her regular hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639 (counsel is entitled to all hours actually spent, absent a showing of 'special circumstances' that would render such an award unjust); Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761 (an attorney's regular hourly rate is entitled to a presumption of reasonableness); Pearl, California Attorney Fee Awards, at �� 12.14A, 12.33 (2nd Ed. 2005.) The Court has the discretion to determine the reasonableness of the amount of attorney's fees requested, considering the nature of the litigation, the complexity of the issues, the experience and expertise of counsel, the amount of time involved, and whether the amount requested is based on unnecessary or duplicative work. (See Wysinger v Automobile Club of S. Cal. (2007) 157 Cal.App.4th 413, 430 [trial judge is in best position to evaluate quality of legal services at trial].) Lodestar Analysis Parties who qualify for a fee should recover compensation for 'all the hours reasonably spent' in successfully litigating the action and obtaining their fee. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; See also Hensley v. Eckerhart (1983) 461 U.S. 424, 430 [counsel for prevailing parties should be paid for all time reasonably expended on a matter].) Under the loadstar method, a court begins by deciding 'the reasonable hours spent' on the case and multiplying that number by 'the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.' (Ketchum, at 1133.) Defendants did not challenge Plaintiffs' counsel's hourly rates. Further, the Court finds these rates to be very reasonable. Defendants, however, argue that (1) Plaintiffs' counsel billed excessively, including improperly billing for administrative tasks; and (2) Plaintiffs' billing includes block billing that does not adequately identify the particular tasks. Defendants identified eight specific entries, totaling $2,977.50 in fees, that they argued were block billing or otherwise unreasonable.

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3125648 29 CASE NUMBER: CASE TITLE: SENSEMAN VS MIMI REAL PROPERTIES LLC [IMAGED] 37-2021-00003304-CU-OR-CTL The Court has carefully reviewed the arguments, authorities and evidence submitted by the parties and finds that a reasonable and proper amount of attorney fees to be awarded is this case is $138,875 consisting of the sum of (1) $90,000 for Attorney Craig Sherman (300 hours at $300 per hour) and (2) $48,875 for law clerk Jeffrey Anson and paralegal Paul Best's services (391 hours at $125 per hour).

Costs Pursuant to CCP � 5975 Plaintiffs are seeking $4,081.22 as costs recoverable under Code of Civil Procedure � 5975, which are not included in the costs being sought pursuant to section 1033.5. Defendants object to these costs because they are not itemized or supported by case law.

As Plaintiffs failed to adequately identify and distinguish the additional costs sought pursuant to section 5975, the Court cannot evaluate whether the costs were reasonable and necessary. As such, Plaintiffs' request for additional costs are denied.

Motion to Strike Costs Plaintiffs submitted an amended memorandum of costs seeking $10,888.00 in costs pursuant to Code of Civil Procedure � 1032. Defendants challenged the cost on the basis that Plaintiffs are not the prevailing party. Defendants did not object to the actual requested amounts.

As discussed above, the Court has already held that Plaintiffs are the prevailing party, and the only remaining matter is final order on the scope of the required abatement work. Further, the Court has already denied Defendants' motion for new trial. (ROA # 173.) In this case, Plaintiffs were awarded $2,220.15 in monetary damages and prevailed on all of their causes of action. Defendants did not recover anything. Plaintiffs also obtained their primary litigation goal of obtaining a permanent injunction limiting the noise caused by Defendants operation of an STRU.

As such, Plaintiffs are entitled to recover $10,888.00 in costs.

Conclusion After careful review of the pleadings and evidence, the Court finds that Plaintiffs are entitled to recover a total of $138,875 in attorneys' fees and $10,888.00 in costs, for a total of $149,763.

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