Judge: Loren G. Freestone, Case: 37-2022-00017583-CU-BC-CTL, Date: 2023-10-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 18, 2023

10/19/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00017583-CU-BC-CTL SCRIPPS ENERGY LLC VS CALGARY ENTERPRISES [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff/Cross-Defendant Scripps Energy LLC's motion for attorney fees and costs is GRANTED in the amount of $173,462.82.

Section 20.6 of the Gas Station and Convenience Store Lease states: 'In any action or proceeding which the Landlord or the Tenant may be required to prosecute to enforce its respective rights hereunder, the unsuccessful party therein agrees to pay all costs incurred by the prevailing party therein, including reasonable attorneys' fees, to be fixed by the court, and said costs and attorneys' fees shall be made a part of the judgment in said action.' Judgment was entered in favor of Scripps on its complaint. Judgment was also entered in favor of Scripps on the cross-complaint. Calgary does not dispute that Scripps is the prevailing party under the circumstances. The issue is the amount of fees to award.

'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.) The party seeking fees can support its motion with declarations from counsel and their billing records. (Id. at p. 1177.) Here, the motion is supported by a declaration from Scripps' attorney Erin Tramontano explaining that a total of $160,763.51 was incurred on this matter for pre-litigation work, fact investigation, discovery, depositions, trial preparation, trial attendance, and post-trial work (including this fee motion). Attorney Tramontano declares that her rate as a senior associate was $225/hr and the partner rate was $300/hr.

The declaration also attaches copies of all invoices, with descriptions of the work performed, time spent, and the associated hourly rates for all billers. This is substantial evidence supporting the requested fee award.

Defendant/Cross-Complainant Calgary Enterprises Inc. does not dispute that the requested hourly rates are reasonable. However, it makes a number of arguments as to why the total hours claimed is unreasonable. '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.) Calendar No.: Event ID:  TENTATIVE RULINGS

3034433  19 CASE NUMBER: CASE TITLE:  SCRIPPS ENERGY LLC VS CALGARY ENTERPRISES [IMAGED]  37-2022-00017583-CU-BC-CTL Calgary argues that the matter was overstaffed at trial because Scripps 'had three legal professionals attending the trial-two attorneys and a paralegal-while defendant had one attorney.' However, Scripps submits evidence that the two attorneys both actively participated at trial, and that a paralegal was only sent during parts of trial when the lead attorney had to appear remotely. Under the circumstances, the staffing was reasonable. (See Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 967, 999 ['Having a second chair at trial is not unusual and often necessary'].) Calgary argues that over $160,000 in fees is excessive in relation to the amount Scripps recovered ($951 plus injunctive relief valued at another $26,868.23). Although Scripps was only awarded some of the damages it sought, it also successfully defended the cross-complaint, which according to Calgary 'was worth about a million dollars.' Under the circumstances, there was not a lack of overall success that warrants a reduction to the fee request. (See also Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270, 1276 ['It is not uncommon to award attorneys' fees in an amount higher than the total damages awarded to a plaintiff or plaintiffs in a particular case'].) Along the same lines, Calgary argues that Scripps' 'recovery is one that could have been brought in small claims court.' A court may, but is not required, to reduce a fee award where the plaintiff obtains a judgment that could have been recovered in a limited civil case. (See Code Civ. Proc., § 1033, subd.

(a); Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 231–232.) Given that the purpose of the statute is 'to discourage plaintiffs from 'over filing' their cases and thereby wasting judicial resources,' a key factor to consider is 'the amount of damages the plaintiff reasonably and in good faith could have expected to recover.' (Cruz, supra, 57 Cal.App.5th at p. 234.) The mere fact the plaintiff recovered less than the jurisdictional threshold does not, in and of itself, prove that the amount sought was unreasonable or not pursued in good faith. (Ibid.; accord Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1053.) Here, Scripps' judgment could only have been rendered in an unlimited civil case. The monetary value of the order directing the signs be removed was $26,868.23, which exceeds the $25,000 limited civil amount in controversy threshold. (Code Civ. Proc., § 85, subd. (a).) The injunctive relief that was ordered was also not a type of relief that could be ordered in either a small claims or limited civil case.

(See Code Civ. Proc., §§ 85, subds. (b), (c)(4), 86, subd. (a)(8), 116.220, subd. (a)(5).) Moreover, it was not unreasonable for Scripps to demand additional monetary damages that were well-within the unlimited civil jurisdiction. For example, Scripps requested $45,000 to replace the tree that the court held 'was cut down and removed without permission or consult.' Although the court ultimately concluded that the estimate was too speculative to award, and therefore only awarded $1 in nominal damages, it was not unreasonable to at least seek more than $1 to replace an entire tree.

Calgary argues that the 'big dollar issue' in the cross-complaint was 'resolved economically and reasonably with a stipulation for facts along with oral argument before the court on the first day of trial.' However, Calgary does not identify any specific work that Scripps performed that was unreasonable in light of that stipulation. Moreover, the fact remains that Calgary aggressively defended the signage aspect of the case. (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114 ['A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response'].) Calgary argues that 'this lawsuit was akin to a SLAPP action-strategically brought to silence the defendant for asserting that a reduction in rent was supported by the lease.' Yet Calgary did not file a SLAPP motion. Nor did Calgary ultimately prevail on either the rent or signage issues. Nor did Calgary submit evidence showing that Scripps' true motive was to silence it. Overall, Calgary has not demonstrated that Scripps' purported motives in pursuing its meritorious claims warrant a reduction to the fee request. (See Silver Creek LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1541 [improper to consider 'litigation motives' when determining prevailing party under section 1717]; see also EnPalm LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 775, fn. 5 [court may not reduce an award of fees 'for purely subjective reasons, such as its views on the merits of a case, or antipathy toward a party, her counsel, or counsel's litigation strategy,' or 'to punish a party for such reasons'].) Calendar No.: Event ID:  TENTATIVE RULINGS

3034433  19 CASE NUMBER: CASE TITLE:  SCRIPPS ENERGY LLC VS CALGARY ENTERPRISES [IMAGED]  37-2022-00017583-CU-BC-CTL Finally, Scripps challenges the following discrete tasks as excessive: (1) 6.6 hours to prepare an initial status report regarding the cross-complaint; (2) 1.6 hours to prepare for and attend a meeting with Scripps to discuss the cross-complaint; (3) 2.3 hours to prepare an answer to the cross-complaint; (4) 6.6 hours to prepare another status report; (5) 4.8 hours to prepare a PMK deposition notice; and (6) $6,500 for the fee motion, reply, and appearance at the hearing. The court finds an excessive amount of time was spent on the status reports and PMK deposition notice, and therefore deducts a total of 6 hours of Attorney Tramontano's time (i.e., $1,350). The court also finds the request for fees associated with this fee motion excessive, and therefore deducts another $1,500.

The court therefore awards Scripps a total of $157,913.51 in attorney fees.

Scripps also requests a total of $15,549.31 in costs, which are set forth in a verified memorandum of costs. Calgary never filed a motion to tax. (Cal. Rules of Court, rule 3.1700(b).) Nor did Calgary dispute Scripps' entitlement to those costs in its opposition to this motion. As such, the court awards Scripps the entirety of the costs requested.

The motion is therefore granted in the total amount of $173,462.82.

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