Judge: Mark A. Young, Case: 19SMCP00388, Date: 2023-02-06 Tentative Ruling
Case Number: 19SMCP00388 Hearing Date: February 6, 2023 Dept: M
CASE NAME: Berges v. Maniscalco,
et al.
CASE NO.: 19SMCP00388
MOTION: Motion
for Attorneys’ Fees
HEARING DATE: 1/26/2023
Legal
Standard
With respect to attorney fees and costs,
unless they are specifically provided for by statute (e.g., CCP §§ 1032, et
seq.), the measure and mode of compensation of attorneys and counselors at law
is left to the agreement, express or implied, of the parties.¿(CCP § 1021.) The
prevailing party on a contract, which specifically provides for attorney fees
and costs incurred to enforce the agreement, is entitled to reasonable attorney
fees in addition to other costs.¿(Civ. Code § 1717(a); CCP §§ 1032, 1033.5(a)(10)(A).)¿The
court, upon notice and motion by a party, shall determine the prevailing party
and shall fix, as an element of the costs of suit, the reasonable attorney
fees.¿(Civ. Code § 1717(a), (b).)¿Any notice of motion to claim attorney fees
as an element of costs under shall be served and filed before or at the same
time the memorandum of costs is served and filed; if only attorney fees are
claimed as costs, the notice of motion shall be served and filed within the
time specified in CRC 3.1700 for filing a memorandum of costs.¿(CRC 3.1702; Gunlock
Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.)
The prevailing
party in the Court of Appeal in a civil case other than a juvenile case is
entitled to costs on appeal. (CRC 8.278 (a)(1).) “Within 40 days after issuance of
the remittitur, a party claiming costs awarded by a reviewing court must serve
and file in the superior court a verified memorandum of costs under rule
3.1700.” (CRC 8.278 (c)(1).) The failure to timely file
a costs bill on appeal forfeits the entitlement to such costs. (Moulin
Electric Corp. v. Roach¿(1981) 120 Cal.App.3d 1067, 1070.) In
addition, “a party may serve and file a motion in the superior court to strike
or tax costs claimed under (1) in the manner required by rule 3.1700.” (CRC
8.278 (c)(2).) “Unless the court orders otherwise, an award of costs
neither includes attorney's fees on appeal nor precludes a party from seeking
them under rule 3.1702.” (CRC 8.278 (d)(2).)
“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. [Citation.]” (Melnyk v. Robledo (1976) 64
Cal.App.3d 618, 623 624.) 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.” (Graciano v. Robinson
Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[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.” (Margolin v. Reg’l
Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.) The lodestar
figure may then be adjusted, based on consideration of factors specific to the
case, in order to fix the fee at the fair market value for the legal services
provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing
factors relevant to proper attorneys’ fees award].) 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 48, fn. 23.) The factors considered in determining the modification of the
lodestar include “(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.” (Mountjoy v. Bank of Am. (2016) 245
Cal.App.4th 266, 271.)
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.¿(Premier Medical Management Systems, Inc. v.
California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿General
arguments that fees claimed are
excessive, duplicative, or unrelated do not suffice. (Ibid.)
Analysis
Respondent Susan Maniscalco
requests post-judgment attorney’s fees and costs as the prevailing party on
appeal. There is no dispute that Respondents are the prevailing parties in this
matter. It is further undisputed that the operative Purchase Agreement provides
for attorneys’ fees for the prevailing party. However, Respondent does not
demonstrate entitlement to the fees asserted based on Trope and its
progeny. (See
Trope v.
Katz (1995) 11 Cal.4th 274, 280 [attorney-litigants appearing in pro se are
not entitled to attorney's fees because they do not “incur” attorney's fees]; see
Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 95 [wife
could not recover fees when interests were indivisible from her
husband-attorney when there was no indication of any different damages sought
between the husband and wife, there was no claim the husband spent more time
representing his wife, and it appeared the “billable” hours were entirely
attributable to representing the husband and wife’s common interests such that
the interests in the matter were joint and indivisible].)
Respondent Mrs.
Maniscalco is not entitled to any of the attorneys’ fees sought by her husband
Mr. Maniscalco because they have had an indivisible interest the outcome of
this case. Mr. Maniscalco was representing his own interests as a respondent in
this matter, as the same exact claims were asserted against both respondents.
In support of
their position, Respondents argue that there are cases that have awarded
attorneys’ fees between spouses. (See Ramona Unified Sch.
Dist. v. Tsiknas, (2005) 135 Cal. App. 4th 510, 525 ["Trope does not preclude the award of
attorney fees merely because Hamilton was a codefendant."]; Rickley v.
Goodfriend, (2012) 207 Cal. App. 4th 1528, 1538 [“…the dispositive factor
in awarding fees is not whether Rickley and Roit were liable for or obligated
to pay fees, but whether there was an attorney-client relationship between Roit
as an attorney and Roit and her spouse Rickley”].) These cases, however, are distinguishable.
Ramona did not address
whether spouses are entitled to fees. Rather, the court in Ramona
was confronted with a factual situation where a co-defendant attorney assisted
other counsel in representing himself and the co-defendants. “[A]ll defendants
retained special counsel James Moneer (an expert in anti-SLAPP motions) to
pursue the anti-SLAPP motion, and he agreed to represent them at a discounted
hourly rate with a contingent fee agreement for the balance of his fees.
Additionally, Hamilton [the attorney-litigant] continued to represent
NASRS, Tsiknas and Apgar by assisting Moneer's pursuit of that motion (contributing
her expertise in environmental litigation to preparing the motion) to aid in
the legal defense of NASRS, Tsiknas and Apgar (as well as herself) against
RUSD's complaint.” (Ramona, supra, at 523, emphasis added.) The court
concluded that “Moneer was representing all defendants in connection with
the anti-SLAPP motion, and Hamilton rendered legal services to Moneer's
nonattorney clients (e.g. NASRS, Tsiknas and Apgar) by assisting Moneer's
successful defense against RUSD's suit. Because an attorney-client
relationship existed between the prevailing defendants and Hamilton, Trope does
not preclude the award of attorney fees merely because Hamilton was a
codefendant with the nonattorney clients to whom she provided
legal assistance.” (Id. at 524-525.) Thus, Ramona does not
aide Respondents’ claim of fees.
Rickley is also
distinguishable. Subsequent authority has limited Rickley to the specific
procedural context of contempt proceedings. As explained by Gilloti v.
Stewart:
Plaintiff claims
Rickley, supra, 207 Cal.App.4th 1528, 145 Cal.Rptr.3d 13, requires that we
remand to allow plaintiff Gillotti to proffer evidence that she had an
attorney-client relationship with Quade. We disagree.
In Rickley, a
homeowner-attorney sought statutory attorney fees against neighbors (Code Civ.
Proc., § 1218) for the attorney representing her wife in contempt proceedings
after the neighbors failed to comply with a nuisance judgment against them.
(Rickley, 207 Cal.App.4th at p. 1530, 145 Cal.Rptr.3d 13.) The appellate court
said the statute, Code of Civil Procedure section 1218, authorizes an award of
attorney fees to encourage parties to prosecute contempt proceedings, which are
quasi-criminal in nature. (Rickley, at p. 1537, 145 Cal.Rptr.3d 13.) Although
the appellants initiated the nuisance lawsuit to protect their own property and
economic interests, when they later sought a contempt citation in the
quasi-criminal proceeding, they were, at that point, “assisting the court and
public interest by seeking to enforce a court order.” (Ibid.) The
homeowner-attorney vindicated an important public interest and risked not being
compensated for her time. That is why the appellate court held she should
recover attorney fees—as long as the homeowner-attorney could show she had an
attorney-client relationship with her homeowner-wife. (Id. at pp. 1537-1538,
145 Cal.Rptr.3d 13.) Since the trial court did not consider whether such a
relationship existed, the appellate court remanded for the trial court to make
that factual determination. (Ibid.)
Rickley is not
controlling here, because here there is no statutory provision and no public
interest being vindicated.
(Gillotti v.
Stewart (2017) 11 Cal.App.5th 875, 906.) Rickley is not controlling
in this matter for the same reasons: this is not a contempt proceeding and
there is no important public interest being vindicated.
Accordingly,
Respondent’s motion is DENIED.