Judge: Margaret L. Oldendorf, Case: 18BBCV00147, Date: 2023-03-28 Tentative Ruling


Case Number: 18BBCV00147    Hearing Date: March 28, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

INTERMEDIA FILM DISTRIBUTION, LTD., a California corporation,

 

                                            Plaintiff,

vs.

 

NBC UNIVERSAL MEDIA, LLC, and DOES 1-10, inclusive,

 

                                            Defendants.

 

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Case No.: 18BBCV00147

 

 

[TENTATIVE] ORDER GRANTING INTERMEDIA’S MOTION FOR FEES AND COSTS

 

Date:   March 28, 2023

Time:  8:30 a.m.

Dept.:  P

 

 

 

I.         INTRODUCTION

Plaintiff Intermedia Film Distribution, Ltd. (Intermedia) filed this action against NBC Universal Media, LLC alleging breach of contract and related claims. The First Amended Complaint adds allegations of fraud and related claims against LEI Development Projects, Inc. (LEI) and its principal Christopher Taylor (Taylor). LEI and Taylor filed a motion to compel arbitration as to Intermedia, which was granted.

            Arbitration took place in May 2022. The arbitrator was Bruce Isaacs of Signature Resolution. The arbitrator issued a final written arbitration award on September 8, 2022, serving it September 9, 2022. On September 20, 2022, Intermedia filed a Petition to Confirm the award. LEI/Taylor failed to timely file opposition.

            On November 4, 2022, the Court heard and granted Intermedia’s petition to confirm the award. On December 23, 2022, the Court entered judgment on the award.

            The arbitration award includes an award of fees and costs to Intermedia as the prevailing party pursuant to a contract provision. Intermedia now seeks a further fee and cost award for fees and costs incurred since the award issued. The motion is granted.

 

II.        LEGAL STANDARD

             Civ. Code §1717(a)

            In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.

            Where a contract provides for attorney’s fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

            Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.

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            “Our courts have consistently ‘distinguish[ed] between’ attorney’s fees that are sought as ‘the allowance ... to the prevailing party as an incident to the principal cause of action,’ and those that are sought as ‘part of the cause of action.’ (Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 425, 152 Cal.Rptr. 31 (Mabee), superseded by statute on another ground as stated in Santisas, supra, 17 Cal.4th at p. 629, 71 Cal.Rptr.2d 830, 951 P.2d 399.) When sought by the ‘prevailing party ... as an incident to the judgment’ (ibid.), attorney's fees may be ‘properly awarded [as a form of cost] after entry of a ... judgment.’ (Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 326, 156 Cal.Rptr.3d 657 (Khavarian ).) However, when ‘fees are part of the relief sought [,they] must be pleaded and proved at trial.’ (Id. at p. 327, 156 Cal.Rptr.3d 657.)” Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1228.

 

III.      DISCUSSION

            The written agreement on which this litigation is based contains an attorney fee provision. A copy of the agreement is attached as Exhibit A to the Declaration of Jeremiah Reynolds. Here is what the contract provides:

11.3 Attorneys’ Fees. If Seller or Purchaser shall bring an action against the other by reason of any alleged breach of any covenant, provision or condition hereof, or otherwise arising out of this Agreement, the unsuccessful party shall pay to the prevailing party all attorneys’ fees and costs actually incurred by the prevailing party, in addition to any other relief to which it may be entitled. As used in this Section 11.3 and elsewhere in this Agreement, “actual attorneys’ fees” or “attorneys’ fees actually incurred" means the full and actual cost of any legal services actually performed in connection with the matter for which such fees are sought calculated on the basis of the usual fees charged by the attorneys performing such services, and shall not be limited to “reasonable attorneys’ fees” as that term may be defined in statutory or decisional authority.

            The arbitrator interpreted this to be a broad attorney fee provision and awarded Intermedia its fees in the full amount requested: $247,056.50. Exhibit B to Reynolds Declaration. The arbitration award also gives Intermedia its costs in full: $117,018.50.

            Intermedia now seeks to recover an additional $37,350 in fees and $4,715.20 in costs. These fees and costs are well supported by the Reynolds Declaration. LEI and Taylor were provided with notice of this motion and have not opposed it. Because the contract provides for such recovery and based on the Court’s independent review of the fees and costs requested (discussed below), the motion is granted.

            The evidence is that Reynolds spent 24 hours on this litigation from September 2022 through January 2023; at his hourly rate of $760 that is $18,240. Reynolds states that attorney Katie Pierucci spent 36.75 hours on this litigation for this same period; at her hourly rate of $520 her lodestar amount is $19,110. The combined lodestar amount is $37.350. Information is provided to support the hourly rates of each attorney. Reynolds Declaration, ¶¶12 and 14. The Court finds these rates to be reasonable for attorneys of similar experience in the Los Angeles marketplace. The billing records at Exhibit D to the Reynolds Declaration describe in adequate detail the tasks performed. The fees requested are awarded in full.

            The cost bill is at Exhibit C. The itemized amounts include $695.70 for motion fees, $3,775 for court reports fees, and $244.50 for “Other.” This last amount, while unexplained, is supported by the verified cost bill and by the supporting declaration.

 

IV.      ORDER

            Intermedia’s motion for fees and costs is granted in the amount requested.  Intermedia is ordered to give notice.

 

           

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT