Judge: Latrice A. G. Byrdsong, Case: 22STCP01955, Date: 2023-11-15 Tentative Ruling

Case Number: 22STCP01955    Hearing Date: November 15, 2023    Dept: 25

Hearing Date:                         Wednesday, November 15, 2023

Case Name:                             Sharon Alfers v. Jordan Simons

Case No.:                                22STCP01955

Motion:                                   Motion for Costs after Judgment

Moving Party:                         Plaintiff Sharon Alfers

Responding Party:                   Defendant Jordan Simons

Notice:                                    OK

Tentative Ruling:           Plaintiff Sharon Alfer’s Motion for Costs after Judgment is GRANTED in the reduced amount of $7,979.71.

BACKGROUND

On May 18, 2022, Plaintiff filed an application for entry of judgment on sister-state judgment.

On May 23, 2022, judgment was entered against Defendant Jordan Simons.

On October 5, 2023, Plaintiff filed the instant motion for costs after judgment. On October 31, 2023, Defendant opposed. To date, no reply has been filed.

MOVING PARTY POSITION

            The Court should award post judgment costs and attorney’s fees to Sharon Alfers.

OPPOSITION

            The fees sought are unreasonable and excessive and should be, at most, $1,000.00.

REPLY

            None.

ANALYSIS

I.          Motion for Costs after Judgment

A.                Request for Judicial Notice

Pursuant to Evidence code sections 452(c), (d) and 453, the Court grants Defendant’s request for judicial notice in full, and grants Plaintiff’s request for judicial notice in full.

B.                 Legal Standard

A prevailing party is 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).)

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (Code Civ. Proc., § 685.040.)

“The judgment creditor may claim costs authorized by Section 685.040 by noticed motion. The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred. The costs claimed under this section may include, but are not limited to, costs that may be claimed under Section 685.070 and costs incurred but not approved by the court or referee in a proceeding under Chapter 6 (commencing with Section 708.010) of Division 2.” (Code Civ. Proc., § 685.080(a).)

“The notice of motion shall describe the costs claimed, shall state their amount, and shall be supported by an affidavit of a person who has knowledge of the facts stating that to the person’s best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied. The notice of motion shall be served on the judgment debtor. Service shall be made personally or by mail.” (Code Civ. Proc., § 685.080(b).)

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.)

C.                Analysis

Plaintiff Sharon Alfers obtained judgment in this case against Defendant Jordan Simons in the amount of $12,714.02 on May 23, 2022, pursuant to a sister state judgment from the District Court, Park County, Colorado in case number 20CV030020. Plaintiff claims that Defendant refused to pay the judgment, or any part of it, for well over a year. After refusing to pay the judgment, or any part of it for a year and two months, and facing a judgment debtor’s examination set for August 29, 2023, Defendant on August 23, 2023, tendered a check in the amount of $14,309.06 to Plaintiff’s counsel, representing the face amount of the judgment of $12,714.02 and the accrued interest through August 23, 2023. Plaintiff moves for an order granting costs and attorney’s fees after judgment in the total amount of $9,637.21.

            The following represents a breakdown of the costs incurred:

1.      $81.70 for preparing and issuing abstract of judgment incurred on 8/16/22

2.      $156.70 for recording and indexing of the abstract of judgment incurred on 8/23/22

3.      $39.95 for approved fee on application for order of appearance of judgment debtor incurred on 5/31/23

4.      $1,233.86 for other fees in reference to the service of application and order for appearance and examination re enforcement of judgment

a.       $74.67 incurred 6/1/23

b.      $572.60 incurred 6/23/23

c.       $586.89 incurred 7/5/23

5.      $8,125.00 for attorney’s fees incurred from August 9, 2022 to August 16, 2023

Plaintiff argues that Colorado law applies pursuant to the “governmental interest test” under the California choice-of-law rules because Colorado has the primary interest in seeing that real property within its state is not subject to improper liens, and one method to deter frivolous lien filings is by awarding attorney’s fees. (See Grant v. McAuliffe (1953) 41 Cal.2d 859; Pacific Diamond Company, Inc. v. Superior Court (1978) 85 Cal.App.3d 871; Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal. 4th 95.) Plaintiff cites to Colorado statutes which provide for an award of actual costs incurred in post judgment as well as attorney’s fees. Plaintiff also states that California law also allows for costs that were reasonable and necessary in enforcing the judgment.

In opposition, Defendant does not dispute that Plaintiff is not entitled to costs but rather asserts that the fees sought are unreasonable and excessive.

Since Defendant fails to argue against Plaintiff’s award of actual costs, the Court awards $1,512.21 for actual costs incurred. However, Defendant does dispute the $8,125.00 that Plaintiff claims she incurred in attorney’s fees. Plaintiff’s counsel, Mark Egerman claims an hourly rate of $650. Defendant does not dispute that the claimed rate is unreasonable but rather the hours spent. Mr. Egerman provides in his declaration that he has been practicing law in the state of California for 57 years, and he is a senior partner at the Egerman Law Group, LLP firm. Egerman Decl. ¶¶ 2, 3.) He also attaches a copy of his curricula vitae, which shows he graduated from UCLA School of Law, specializes in real property law, participated in numerous multi-million dollar transactions, served as judge pro-tem in multiple courts, and received an “a.v.” rating by Martindale, Hubble, a national publication of attorneys, which is the highest rating given for professional qualifications and ethics. (Id., Exhib. A.) The Court finds Mr. Egerman’s hourly rate to be reasonable.

Defendant challenges the fees on the grounds that lower billers could have performed much of the work, which included filling out judicial council forms. The Court addresses the reasonableness of the breakdown of fees in turn.

June 20, 2023: Review email from First Legal

Mr. Egerman billed a half hour to review a two-page email from First Legal regarding service issues. (Egerman Decl., Ex. F.) Defendant argues that at most this should have been .1 hours, and that a lower billing associate or paralegal could have handled service issues.

The Court agrees that the hours claimed here are excessive and reduces the number of hours for the June 20, 2023 entry to .1 hours as Defendant requests.

July 5, 2023: Research execution sale of a dwelling; Research value of 6977 Los Tilos Road

Mr. Egerman billed a half hour for this research. Defendant argues this information is readily available in a treatise that should take no more than 15 minutes to research, and a two-minute Zillow search will reveal the property value. Moreover, a lower billing associate or paralegal could have performed the research.

The Court agrees that the hours claimed here are excessive and reduces the number of hours for the July 5, 2023 entry to .25 hours as Defendant requests.

July 19, 2023: Received email from Dana Delman; Email to Dana Delman & July 21, 2023: Memo re Jordan Simons' Judgment payoff.

Mr. Egerman billed .2 hours for the following email exchange: From Ms. Delman: “Please let me know the current amount owing on the Colorado judgment.” Mr. Egerman’s response: “My secretary is on vacation until the end of next week. When she return, I shall forward the information to you.” (Delman Decl., Ex. 7.) Defendant states none of this is reasonable under the circumstances and it demonstrates that Mr. Egerman’s billing is excessive.

Mr. Egerman billed .1 hours for a memorandum. Defendant states this appears to be a memorandum to Mr. Egerman’s assistant to provide the payoff amount. Defendant claims this is an unreasonable amount as he could have just forwarded the two-sentence email exchange to his secretary. At most, the billing for July 19 and 21 should be .1 hours.

The Court agrees that the hours claimed here are excessive and reduces the number of hours for the July 19, 2023 and July 21, 2023 entries to .1 hours, collectively, as Defendant requests.

August 3, 2023: Received email from Sharon Alfers; Telephone conference with Wade Ash; Review C.R.S. 15- 10-602(6); Reserve hearing date for Motion for Attorney's Fees and Costs; Email to Sharon Alfers.

Mr. Egerman billed .6 hours. Defendant states none of this time should be compensable. A secretary could have reserved the hearing date. Moreover, § 1710.35 makes it clear that California law applies and therefore any research regarding Colorado law is unreasonable. Moreover, this is block billing and it is impossible to determine how much time was spent on each task, and whether the emails to and from Ms. Alfers were necessary or reasonable.

The Court agrees that the hours claimed here are excessive and declines to award attorney’s fees for the August 3, 2023 entry.

August 7, 2023: Telephone conference with Sharon Alfers; Review C.R.S. §§38-35- 204 and 38-35-109; Telephone conference with Dana Delman; Print out time records and review time records.

Mr. Egerman billed 1.1 hours. Defendant claims this is block billing and therefore automatically suspect. The telephone conference with Ms. Delman was six minutes (Delman Decl., ¶ 2.) Moreover, since Colorado law does not apply in this case, any research regarding Colorado law is unreasonable. There was no need to review time records. At most, only .1 hours should be compensated.

California courts have recognized that block billing “obscure[s] the nature of some of the work claimed,” damaging a counsel’s credibility. (Id. at p. 1325.) Block billing, while not objectionable per se, exacerbates the vagueness of a counsel’s fee request, which is a risky choice since the burden of proving entitlement to fees rests on the moving party. (Ibid.) Block billing, however, is less problematic when a party is entitled to recover all of its attorney’s fees than when the fee request must be apportioned between recoverable and non-recoverable claims. (See Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010-1011 [“Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.”].)   

The Court notes that the fact of block billing alone does not automatically disqualify a prevailing party from being awarded attorney’s fees. However, the Court finds that the hours claimed are excessive and reduces the number of hours for the August 7, 2023 entry to .1 hours as Defendant requests.

August 8, 2023: Received email from Dana Delman; Work on Motion for Costs After Judgment; Email to Dana Delman;

Mr. Egerman billed 0.9 hours. The emails referenced were with respect to the probate case pending between the parties. (Delman Decl., Ex. 8.) On August 7, Mr. Egerman promised to send the fees billed to date before drafting the motion. He ignored his promise, and did not send a fee breakdown until September 18, after he drafted the motion. Moreover, a lower biller could have done the research on the motion. Defendant claims all the time spent researching Colorado law was unreasonable, and there was no research on California law other than citation to one statute.

            The Court does not find the hours billed in this entry to be unreasonable. Further, Defendant fails to provide any authority which would require a lower biller to do research on a motion such as the one in the August 8, 2023. Thus, the Court declines to reduce the hours for this entry.

August 9, 2023: Work on Points and Authorities for Cost Motion;

Mr. Egerman billed 2.8 hours. Defendant states all of the case law cited in the motion related only to the applicability of Colorado law. Without the extensive unnecessary and inapplicable recitation of Colorado law, the motion consists of a short summary of the probate case and Mr. Egerman’s declaration, which should have taken no more than an hour to draft. Moreover, none of the fees incurred in drafting the motion should be compensated given that Simons was willing to pay reasonable fees without the need for motion practice.

The Court finds that Defendant does not present sufficient evidence that the time spent on the motion was excessive. Thus, the Court declines to reduce the hours for this entry.

August 10, 2023: Work on Motion for Costs.

Mr. Egerman billed 1.2 hours. Defendant simply states this is excessive.

The Court finds that Defendant does not present sufficient evidence that the time spent on the motion was excessive. Thus, the Court declines to reduce the hours for this entry.

August 14, 2023: Received email from Dana Delman(two);

Mr. Egerman billed 0.2 hours. Defendant points out that only one of these emails related to this case (Delman Decl., Ex. 5) and it was a short follow up email. The other email on that date related to the Probate Case. (Delman Decl., Ex. 9.) Thus, this time billed was excessive.

The Court agrees that the hours claimed here are excessive and declines to award attorney’s fees for the August 14, 2023 entry.

August 16, 2023: Work on Points and Authorities for Motion.

Mr. Egerman billed 0.9 hours. Defendant states this is excessive time given that almost the entire motion was dedicated to inapplicable law.

The Court finds that Defendant does not present sufficient evidence that the time spent on the motion was excessive. Thus, the Court declines to reduce the hours for this entry.

Upon review of the breakdown of fees charged, the Court makes the following reductions:

Thus, Plaintiff is entitled to $6,467.50 in attorney’s fees ($8125 – $1,657.50 = $6,467.50).

Accordingly, the Court awards $1,512.21 in costs and $6,467.50 in attorney’s fees.

III.       Conclusion

            In light of the foregoing, the Court GRANTS in part Plaintiff’s motion for costs and attorney’s fees after judgment in the amount of $7,979.71.

            Moving party to give notice.