Judge: Kevin A. Enright, Case: 37-2019-00021702-CU-MC-NC, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  Misc Complaints - Other Motion Hearing (Civil) 37-2019-00021702-CU-MC-NC KLIMAS VS KLIMAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Esther Joy Klimas and Juliann Klimas's Motion for Attorneys' Fees and Costs is GRANTED in part. Plaintiffs are awarded $90,936.00 in attorneys' fees and $6,366.68 in costs.

Preliminary Matters The Court has considered the parties' briefings filed between June and August 2021, Defendants' supplemental opposition (ROA 275), and Plaintiffs' supplemental reply (ROA 276-278).

Background After a bench trial, on February 1, 2021, the Court issued its Decision and Order Thereon, finding in favor of Plaintiffs as to all causes of action. (ROA 171.) The Court found Defendants committed financial elder abuse and dependent adult abuse within the meaning of Welfare and Institutions Code section 15610.30. The Court ordered Defendants to pay money damages in the amount of $414,180.00, subject to a $5,000.00 offset to Defendants. The Court also imposed a constructive trust over the Quicken Loan proceeds in the amount of $364,000.00, for the benefit of Plaintiffs until such time the money judgment is satisfied. Further, the Court found in favor of Plaintiffs as to the causes of action for quiet title of the Residential Lot and Vacant Lot.

A final Statement of Decision was filed on April 21, 2021. (ROA 183.) Judgment was entered accordingly on May 10, 2021. (ROA 186.) On June 18, 2021, Plaintiffs filed and served their instant motion for attorneys' fees. (ROA 222-227.) The Court continued the hearing to August 26, 2021, for counsel to provide additional information regarding the number of hours expended in this case and set a briefing schedule regarding the supplemental information. (ROA 244.) On August 11, 2021, Plaintiffs timely filed their supplement to the motion. (ROA 248.) On August 20, 2021, Defendants timely filed their response to Plaintiffs' supplement. (ROA 250.) On August 25, 2021, Defendants filed a Notice of Stay of Proceedings in this action arising from Defendants' filing of a bankruptcy action. (ROA 256.) Thus, on September 23, 2021, the Court took this motion off calendar after becoming aware of Defendants' Notice of Stay. (ROA 264.) On December 11, 2023, Plaintiffs filed a Notice of Termination or Modification of Stay. (ROA 271.) On December 15, 2023, the Court granted Plaintiff Juliann Klimas's ex parte application for an order lifting the stay and re-setting this motion. (ROA 270.) The Court set the instant hearing on the motion, deemed Calendar No.: Event ID:  TENTATIVE RULINGS

3066572 CASE NUMBER: CASE TITLE:  KLIMAS VS KLIMAS [IMAGED]  37-2019-00021702-CU-MC-NC the moving papers previously filed as the moving papers, and set a briefing schedule for supplemental opposition and reply. (Ibid.) Analysis Attorneys' Fees Plaintiffs seek $92,721.00 in attorneys' fees. This figure represents the $91,286.00 in fees initially sought in this motion, plus $1,435.00 in fees incurred after the stay was lifted to set this motion for hearing, review and respond to Defendants' supplemental briefings, and attend the hearing. (ROA 222, p. 6: 22-23 and Ex. 1; ROA 276, p. 5: 1-5; ROA 277, ¶¶ 3-4.) Plaintiffs also request a 1.284 multiplier. (ROA 276, p. 5: 5-8.) 'Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs.' (Welf. & Inst.

Code, § 15657.5, subd. (a).) Here, the Judgment provides that Plaintiffs are entitled to an award of costs and attorneys' fees pursuant to a memorandum of costs and a post-judgment motion for attorney's fees pursuant to this section. (ROA 186, ¶ 18.) Defendants argue Plaintiffs' motion should be denied, or their amount of fees reduced, on the grounds Plaintiffs failed to provide sufficient information to determine the nature and value of the fees and the only evidence presented was the declarations of counsel. However, Plaintiffs filed and served a supplemental to the motion with billing records pursuant to the Court's order, and these records provide sufficient information regarding the number of hours expended in this case. (ROA 248.) Moreover, Defendants provided a response to the billing records (ROA 250) and have requested specific reductions for work identified in those records as set forth below.

Defendants also dispute the reasonableness of the hourly rates and hours spent claimed by Plaintiffs' counsel. '[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.' (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) 'The lodestar may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.' (Ibid.) '[A]n attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those solely related to the fee.' (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) In determining the reasonableness of the lodestar, courts can consider the complexity of the case, procedural demands, the skill exhibited, and the results achieved. (Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 817.) The moving party has the burden of establishing that the requested attorney fees are allowable, reasonable in amount, and were reasonably necessary for the litigation. (Warren v. Kia Motor America, Inc. (2018) 30 Cal.App.5th 24, 36.) 'The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.' (Ketchum, supra, 24 Cal.4th at p. 1132.) 'To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.' (Id. at p. 1138.) Here, Petitioners' counsel claims hourly rates of $350.00 for attorney Will M. Smith, $375.00 for attorney Kimberly McGhee, $400.00 for attorney Laurence Haines, $75.00 for Paralegal Donna Bertolero, and $125.00 for a paralegal who worked with attorney McGhee. Having reviewed the declarations of Plaintiffs' counsel and the billing information requested by the Court, the Court concludes the claimed hourly rates for all counsel and paralegals were reasonable. Contrary to Defendants' arguments, Plaintiffs did not seek rates based on the Laffey Matrix but cited the Matrix rates as comparative rates to demonstrate the reasonableness of the rates actually requested. Further, the requested rates are reasonable based on the Court's own familiarity with the legal market.

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3066572 CASE NUMBER: CASE TITLE:  KLIMAS VS KLIMAS [IMAGED]  37-2019-00021702-CU-MC-NC Defendants rely on Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449 (Meister) to argue the attorneys' fees should be reduced by $45,835.00 for the fees expended for trial after Plaintiffs refused Defendants' 'reasonable offer' to settle in March 2020. Defendants request a further reduction of $4,432.50 reflecting: 1) Plaintiffs' unsuccessful and unsupported motion to enforce judgment ($3,990.00); and 2) Plaintiffs' bank subpoenas issued after the discovery cutoff that sought records Plaintiffs did not even use at trial ($442.50).

The Court finds the amount of hours expended by attorneys and paralegals in prosecuting this case were reasonable, with one exception. The Court reduces the attorneys' fees by $1,785.00 for the fees related to the motion to enforce judgment that the Court denied. (ROA 248, Ex. 2, p. 1.) The Court is not persuaded the attorneys' fees should be reduced any further. In Meister, the Court of Appeal affirmed the trial court's decision to reduce the requested attorneys' fees by the amount incurred after Plaintiffs rejected a settlement offer. (Meister, supra, at 449.) The trial court found the offer to settle was as good or better relief than the judgment obtained in that case, and the request for fees was unreasonably inflated given the modest financial award and relief counsel achieved. (Id. at 454-455.) 'In a case where a rejected settlement offer exceeds the ultimate recovery, the plaintiff-although technically the prevailing party-has not received any monetary benefits from the postoffer services of his attorney.' (Id. at 452, citing Marek v. Chesny (1985) 473 U.S. 1, 11.) Unlike in Meister and contrary to Defendants' contentions, Plaintiffs here obtained an award that was significantly better than the March 2020 settlement offer. As noted above, the Court ordered Defendants to pay a money judgment of over $414,180.00 (minus the $5,000.00 offset) based on a finding of financial elder and dependent adult abuse, imposed a constructive trust over the Quicken Loan proceeds of $364,000.00, and quieted title to the Residential Lot and Vacant Lot in favor of Plaintiffs. On the other hand, the March 2020 settlement offer proposed to return the Residential Lot only and to pay Plaintiffs $50,000.00 over a five-year period. Further, a determination of the reasonableness of the fees considers the time spent and the rate charged to litigate the case. Defendants risked paying for attorneys' fees to Plaintiffs in failing to reach a settlement. 'A defendant ' 'cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.' ' [Citation.]' (Internat. Longshoremen's & Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 304.) Moreover, although Defendants challenge the fees incurred by Plaintiffs for the bank subpoenas, Defendants did not provide any evidence or argument they previously objected to these subpoenas as untimely. Thus, Defendants waived any objection to the production of these records for the purposes of trial, and the fees associated with the subpoenas were incurred as part of Plaintiffs counsels' preparation for trial, even if Plaintiffs ultimately did not rely on this evidence.

Based on the billing records, Attorney Smith incurred 5.1 hours in work related to the motion to enforce judgment at an hourly rate of $350.00, for a total of $1,785.00. (See ROA 248, Ex. 2, p. 1.) Defendants argue Plaintiffs incurred $3,990.00 in fees to bring the enforcement motion but cite no evidence or provide any basis for this calculation. Therefore, the Court reduces the attorneys' fees award by $1,785.00. Accordingly, the total adjusted lodestar is $90,936.00.

Plaintiffs' request for a multiplier is denied. Plaintiffs did not raise any grounds for a multiplier until they filed in their supplemental reply filed on February 8, 2024. 'The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.' (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) 'This rule is based on the same solid logic applied in the appellate courts, specifically, that '[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' ' (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538, citations omitted.) Moreover, the Court finds that the lodestar sufficiently fixes the fee at the fair market value inclusive of the factors to be considered for an enhancement.

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3066572 CASE NUMBER: CASE TITLE:  KLIMAS VS KLIMAS [IMAGED]  37-2019-00021702-CU-MC-NC Costs On May 21, 2021, Plaintiffs filed and served their memorandum of costs in the amount of $6,279.02.

(ROA 202.) Defendants did not file a motion to strike or tax costs. Following the stay, Plaintiffs incurred an additional $87.66 in costs, which the Court finds are reasonable. (ROA 277, ¶ 4.) Accordingly, Plaintiffs are awarded $6,366.68 in costs.

Conclusion Plaintiffs' Motion for Attorneys' Fees is GRANTED in part. Plaintiffs are awarded $90,936.00 in attorneys' fees and $6,366.68 in costs.

If this tentative ruling is confirmed, the Minute Order will be the order of the Court. No formal order is required.

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