Judge Loren G. Freestone, Case 37-2020-00046267-CU-PN-CTL 2023-09-15 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2020-00046267-CU-PN-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Professional Negligence Motion Hearing (Civil) 37-2020-00046267-CU-PN-CTL PAULIN VS LAW OFFICES OF MOORE SCHULMAN & MOORE APC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Law Offices of Moore Schulman & Moore APC's (MSM) motion for attorney fees is GRANTED.

The retainer agreement between MSM and Plaintiff Douglas Paulin contains an attorney-fee provision that states, in pertinent part: 'Enforcement of Attorney's Fees: The prevailing party in any action or proceeding arising out of or to enforce the payment of any fees or costs charged in connection with this Agreement, with the exception of fee arbitration under Business and Professions Code Sections 6200 et seq., will be awarded attorney's fees and costs incurred in that action or proceeding. . .' The 'arising out of' language renders this provision sufficiently broad to encompass both the tort and contract-based causes of action. (See Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1075–1076; GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1249–1250; compare Loube v. Loube (1998) 64 Cal.App.4th 421, 429–430 & fn. 2 [holding that fee provision in retainer agreement limited to actions 'to enforce the terms of this Agreement' did not encompass malpractice claim, but suggesting the result would have been different if agreement had included 'arising out of' language].) MSM secured a defense verdict on all causes of action. It is therefore the prevailing party and entitled to recover attorney fees incurred defending this case.

'Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of compensation.' (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1176.) MSM requests a total of $103,789.50. This represents 361.6 hours of work, broken down as follows: - Partner Grant – 22.8 hours at $650/hr - Partner Kessler - 65.3 hours at $375/hr - Attorney McKellar – 4.5 hours at $350/hr - Attorney Zunshine – 239.6 hours at $225–250/hr - Paralegal Lupo – 15.6 hours at $150/hr Calendar No.: Event ID: TENTATIVE RULINGS

3006929 33 CASE NUMBER: CASE TITLE: PAULIN VS LAW OFFICES OF MOORE SCHULMAN & MOORE APC 37-2020-00046267-CU-PN-CTL - Paralegal Rice – 13.8 hours at $115/hr Detailed billing records were submitted. The reasonableness of the hours and rates claimed are also substantiated by detailed declarations from MSM's attorney.

Paulin filed an untimely opposition two days before the hearing on this motion. No explanation was given for the late filing. 'A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for the late submission.' (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) MSM objected to the untimely filing, but also replied on the merits. As there does not appear to be any prejudice, the court considers the opposition in the interest of justice.

Paulin also filed a sur-reply the day before the hearing on this motion. The Code of Civil Procedure contemplates a motion, an opposition, and a reply. (See Code Civ. Proc., § 1005, subd. (b).) The court declines to consider the unauthorized sur-reply. (See Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) '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, duplicable, or unrelated do not suffice.' (Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Paulin argues that Attorney Zunshine's inexperience led to increased fees, but he does not explain how.

Paulin does not identify any tasks that were inefficiently performed, nor does he submit any evidence showing that a more experienced attorney would have performed certain tasks more efficiently. Rather, it appears that by assigning the majority of tasks to a newer attorney, with a significantly lower billing rate, fees were kept low. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.

(2016) 6 Cal.App.5th 426, 439 & fn. 15 [uncomplicated work should be assigned to associates billing lower rates].) Paulin argues that fees should not have been so high because the case had already been arbitrated.

But again, Paulin does not submit any evidence showing how specific tasks performed in this case was duplicative of work performed in the prior fee arbitration. MSM, on the other hand, submitted substantial evidence explaining why the work that was performed in this case was reasonably necessary notwithstanding the prior fee arbitration. (See Premier Medical, supra, 163 Cal.App.4th at pp. 563–564 [party opposing fee motion must respond to moving party's evidence with evidence of its own].) Paulin argues that MSM dragged the case out by insisting on amended complaints and filing pleading challenges. But MSM submitted evidence that it was concerned about the breadth and clarity of the pleadings. Having reviewed the pleadings, those concerns could be viewed as reasonable. And although the court ultimately overruled MSM's demurrer to the second amended complaint, that does not mean it was unreasonable to file the demurrer. (See City of Los Angeles v. Metropolitan Water Dist. of Southern California (2019) 42 Cal.App.5th 290, 307 ['There is no requirement that each motion or opposition be successful to be reasonable'].) Paulin argues that he is unemployed and granting the motion would be a miscarriage of justice. Paulin's employment status or ability to pay is not a basis for granting or denying the motion, or reducing the amount of fees awarded. (See Walker v. Ticor Title Co. v. California (2012) 204 Cal.App.4th 363, 372 ['it is inappropriate to consider the losing party's financial status as an equitable factor in assessing contractual attorney fees'].) Paulin's other arguments are likewise unpersuasive.

Having reviewed the case file and the evidence presented, and having presided over the trial, the court Calendar No.: Event ID: TENTATIVE RULINGS

3006929 33 CASE NUMBER: CASE TITLE: PAULIN VS LAW OFFICES OF MOORE SCHULMAN & MOORE APC 37-2020-00046267-CU-PN-CTL finds that the fees claimed are reasonable. The motion is therefore granted in the amount of $103,789.50.

Calendar No.: Event ID: TENTATIVE RULINGS

3006929 33