Judge: Marcella O. Mclaughlin, Case: 37-2023-00017275-CU-PA-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Petition re: Arbitration Award Motion Hearing (Civil) 37-2023-00017275-CU-PA-CTL VALERIE CARDEIRO AS TRUSTEE OF THE VALERIE CARDEIRO REVOCABLE TRUST DATED SEPTEMBER 17 1992 VS KANESHIRO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 12/22/2023

Petitioner Valerie Cardeiro's motion for attorney's fees is GRANTED in the reduced amount of $26,782.50.

A. A court must award costs to the prevailing party in a judicial proceeding to confirm an arbitration award. Code Civ. Proc. § 1293.2; Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513. Attorney fees are recoverable as costs if authorized by contract. Code Civ. Proc. § 1033.5(a)(10)(A).

Here, it is undisputed that Cardeiro is the prevailing party on the petition to confirm the arbitration award.

See ROA 36. It is further undisputed that attorney's fees are authorized by the Real Estate Purchase Agreement. (See Novian Decl., Ex. 1 at ¶ 16.) B. The lodestar method has been deemed presumably reasonable for use in calculating reasonable contractual attorney fees. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1097. The lodestar is the product of a reasonable hourly rate and a reasonable number of hours. Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744. The party seeking fees bears the burden of documenting the appropriate hours expended and hourly rates. Roth v. Pilkaytis (2017) 15 Cal.App.5th 283, 290. The burden then shifts to the opposing party 'to present specific objections, supported by rebuttal evidence.' Roos v. Honeywell Internat., Inc. (2015) 241 Cal.App.4th 1472, 1494, disapproved on another ground as stated in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 287.

In this case, the lodestar request is $31,297.50. This amount is based on 56.55 hours of work – including the instant fees motion – and equates to a blended hourly rate of approximately $553.45 ($31,297.50 divided by 56.55). Although the blended hourly rate is not per se unreasonable, '[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.' Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.

C. The lodestar calculation begins with a determination of the 'reasonable hourly rate,' i.e., the rate 'prevailing in the community for similar work.' PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. The relevant 'community' is that where the court is located. Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.

Kaneshiro argues that the requested hourly rates – i.e., $675 for Mr. Novian and $575 for Mr. Gerst – are 'very high.' The court agrees with respect to Mr. Gerst, as he has been practicing for less than 15 years. There is no evidence showing that Mr. Gerst has ever personally been awarded $575 per hour.

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3069310  2 CASE NUMBER: CASE TITLE:  VALERIE CARDEIRO AS TRUSTEE OF THE VALERIE CARDEIRO  37-2023-00017275-CU-PA-CTL Nor is there evidence showing that Mr. Gerst's hourly rate is comparable to the hourly rates of San Diego attorneys with similar skills and experience. In the court's view, an hourly rate of $475 is more in line for attorneys of Mr. Gerst's skill and experience in San Diego County. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 ('The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.').

D. Turning to the second half of the lodestar analysis, '[t]he basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.' Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394.

Here, the court finds that certain billing entries reflect time spent unreasonably and/or on matters that are not compensable.

First, the court disallows the time spent on Case No. 2022-32466, as well as the time spent before the petition to confirm was filed on April 25, 2023. Second, the court cuts the time billed by 'SB' and 'RC.' These unidentified individuals collectively billed less than 3 hours matter on this matter and no showing has been made regarding why their usage was necessary given that there were already two attorneys working on the case. Finally, the court deletes the time spent by attorneys reviewing documents and performing other administrative tasks.

E. Based on the foregoing, the court finds that a reasonable and proper amount of attorney's fees to be awarded to Cardeiro for prevailing in the post-arbitration proceedings is $26,782.50, which consists of (1) $10,395 for Mr. Novian's services (15.4 hours at $675 per hour) and (2) $16,387.50 for Mr. Gerst's services (34.5 hours at $475 per hour). See Code Civ. Proc. § 1293.2.

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