Judge: Latrice A. G. Byrdsong, Case: 22STLC05450, Date: 2023-10-05 Tentative Ruling
Case Number: 22STLC05450 Hearing Date: March 13, 2024 Dept: 25
Hearing Date: Wednesday, March 13, 2024
Case Name: AMERICAN CONTRACTORS INDEMNITY COMPANY, a California corporation v. DAVID S PETERSON, an individual; LORI N PETERSON, an individual; RYAN BECK, an individual; and DOES 1 through 75, inclusive
Case No.: 22STLC05450
Motion: Motion of American Contractors Indemnity Company to be Deemed Prevailing Party for an Award for Attorney’s Fees
Moving Party: Plaintiff American Contractors Indemnity Company
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff American Contractors Indemnity Company’s Motion to be Deemed Prevailing Party for an Award for Attorney’s Fees is GRANTED.
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: None filed as of February 29, 2024 [ ] Late [X] None
REPLY: None filed as of March 06, 2024 [ ] Late [X] None
BACKGROUND
On August 17, 2022, Plaintiff American Contractors Indemnity Company, a California Corporation (“Plaintiff” or “ACIC”) filed an action against David S. Peterson (“David”) and Lori N. Peterson (“Lori”) (collectively “Petersons” or “Defendants”), and Ryan Beck (“Beck”) for breach of contract. The Complaint is based on two Bond Application/Indemnity Agreements between Plaintiff and Petersons (“Agreement 1”) and Plaintiff and Beck (“Agreement 2”)
On September 30, 2022, the Petersons filed a Demurrer and Motion to Strike the Complaint. On October 24, 2022, Plaintiff filed opposition to the Demurrer and Motion to Strike. On October 31, 2022, the Petersons filed replies to both oppositions.
On October 26, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendant Beck.
On November 07, 2022, the Court overruled the Petersons’ Demurrer and denied the Motion to Strike, and ordered Defendants to file an Answer to the complaint within ten days’ notice of the Court’s order.
Defendants filed their Answer to Plaintiff’s Complaint on November 17, 2022.
On November 22, 2022, Defendants filed a Cross Complaint against Mr. Beck for 1) fraud and deceit, 2) intentional misrepresentation, and 3) fraudulent misrepresentation.
On July 20, 2023, Plaintiff filed a Motion for Summary Judgment against the Petersons. On September 29, 2023, Plaintiff filed a Notice of No Opposition to the Motion for Summary Judgment. The Court granted Plaintiff’s Motion for Summary Judgment on October 05, 2023.
On October 05, 2023, Plaintiff filed Notice of Ruling indicating that Defendants have been served with a copy of the Court’s Order.
On December 12, 2023, the Court entered default judgment against Defendant Beck.
On December 12, 2023, the Court entered summary judgment against the Petersons in favor of Plaintiff in the amount of $ 15,140.00 plus accrued interest at the statutory rate of 10% per annum in the amount of $5,940.48 for a total amount of $21,080.48. Plaintiff filed notice of entry of judgment on December 18, 2023.
On December 22, 2023, Plaintiff filed its Memorandum of Cost (Summary).
On January 16, 2023, Plaintiff filed the instant Motion to be Deemed Prevailing Party against the Petersons for an Award for Attorney’s Fees.
No opposition has been filed.
MOVING PARTY POSITION
Plaintiff prays for the Court to enter an award of attorney’s fees of $9,817.00 and recoverable court costs of $1,357.91, for a total amount of $11,174.91 against the Petersons deeming Plaintiff as the prevailing party pursuant to Code of Civil Procedure §§ 1032,1033.5, and Civil Code § 1717, and the provisions in the parties’ indemnity agreement.
OPPOSITION
No opposition has been filed.
REPLY
No reply has been filed.
ANALYSIS
I. Legal Standard
A prevailing party in an action 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).)
In a breach of contract action, attorney’s fees shall be awarded when a contract provides that one of the parties or the prevailing party shall be awarded attorney’s fees in an action on that contract. (See Civ. Code § 1717.) A prevailing party is “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 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 fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied 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, 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. (Id. 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. (2006) 144 Cal.App.4th 140, 154:
“[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.]
(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140.) “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, 623624.)
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 able to assess the value of the professional services rendered in his or her court. (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)
II. Discussion
As a preliminary matter, the Court notes that the Motion is timely filed.
CRC rule 3.1702(b)(1) states in relevant part that “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).)
Here, Petitioner served Notice of Entry of Judgement on December 18, 2023. (12/18/23 Notice of Entry of Judgment.). Here, Plaintiff filed the instant Motion on January 16, 2024, less than 30 days from when it served its Notice of Entry of Judgment on the Petersons. Therefore, the Court considers the motion timely filed under CRC rule 3.1702(b)(1).
The Court finds Plaintiff to be the prevailing party in the instant case. Here, the Court granted Plaintiff’s Motion for Summary Judgment against the Petersons on October 05, 2023. (10/05/23 Minute Order.) The Court entered summary judgment against the Petersons in favor of Plaintiff on December 12, 2023. (12/12/23 Judgment Pursuant to Summary Judgment.) As part of the judgment, the Court also awarded “attorneys’ fees to be determined by memorandum of costs and motion, as provided by law.” (Id.) Thus, as the prevailing party, Plaintiff is entitled to attorney’s fees and cost.
Here, Plaintiff provides the Court with the declaration of its counsel and copy of the Indemnity Agreement entered between the parties. (Amber N. Kim Decl.; Exh. 1.) The agreement provides the following language,
2. To indemnify Surety against all losses, liabilities, costs, damages, attorneys’ and consultants’ fees and expenses the Surety may incur or has incurred due to the execution and issuance of the bond on, before or after this date including any modifications, renewals or extensions of the bond or the enforcement of the terms of this indemnity agreement.”
(Mot. p. 3; Kim Decl. ¶ 4; Exh. 1 ¶ 2.) (Emphasis added) Thus, the Court finds that the provision in the Indemnity Agreement allows Plaintiff to recover attorney’s fees and costs.
Plaintiff requests $9,817.00 in attorney’s fees. (Id. ¶ 13.) Plaintiff’s Counsel submits a detailed billing statement to the Court reflecting the time spent and work performed. (Id.) Counselor Kim states she bills between $275.00-$325.00 per hour as an associate with seven years of experience. (Id. ¶ 12.) Michael K. Murray, a partner at Plaintiff’s Counsel’s firm, charges $300.00-$375.00 per hour based on his thirteen (13) years of experience. (Id.) Lanak & Hanna, P.C.’s paralegals, billed between $185.00 and $205.00 per hour.
No opposition has been filed by Defendant to contest Plaintiff’s arguments.
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 Plaintiff’s counsel’s billing rate to be reasonable. Having reviewed the billing statement submitted by Plaintiff’s counsel, the Court finds that the hours expended are not excessive considering the circumstances in this case. Given that no opposition or reply papers have been filed, the Court need not grant an additional $487.50 in fees requested by Plaintiff’s counsel.
The Court grants Plaintiff’s Motion for Attorney’s Fees in the amount of $9,817.00.
Additionally, the Court reviewed Plaintiff’s Memorandum of Costs and finds that $1,357.91 in costs is reasonable (12-22-23 Memorandum of Costs). Thus, Plaintiff’s request for costs is GRANTED for $1,357.91.
Accordingly, the Court grants Plaintiff’s Motion for Attorney’s Fees and Costs in the amount of $11,174.91.
III. Conclusion
Petitioner American Contractors Indemnity Company’s Motion to be Deemed Prevailing Party for and Attorney’s Fees is GRANTED.
Attorney’s Fees in the amount of $9,817.00 and Costs in the amount of $1,357.91 for a total amount of $11,174.91 are awarded to Plaintiff and against Defendants David S. Peterson and Lori N. Peterson.
Plaintiff is ordered to Submit an Amended Proposed form of Judgment within 10-days.
Moving party is ordered to give notice.