Judge Mark A. Young, Case Number: 20SMCV01190, Date: 2024-01-03 Tentative Ruling

Judge: Mark A. Young, Case: 20SMCV01190, Date: 2024-01-03 Tentative Ruling

Case Number: 20SMCV01190 Hearing Date: February 15, 2024 Dept: M

CASE NAME: City of Culver City, et al., v. Los Angeles School of Gymnastics, et al.

CASE NO.: 20SMCV01190

MOTION: Motion for Attorneys’ Fees

HEARING DATE: 2/15/2024

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.)

“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

Plaintiff’s request for judicial notice is GRANTED. (Evid. Code § 452(c).)

Plaintiff City of Culver City moves for an order awarding the City’s reasonable attorneys’ fees and costs against Defendants Los Angeles School of Gymnastics and Tanya Berenson. Plaintiff seeks reasonable attorney fees and costs incurred in connection with this action in the amount of $69,495.78. Plaintiff notes that this action is moot because the City has obtained the relief requested in its complaint and abated the nuisance conditions at Defendants’ property located at 8450 Higuera Street, Culver City. On that basis, the City requests that the Court dismiss this action.

Plaintiff claims that they are entitled to fees under the Culver City Municipal Code (CCMC). CCMC section 9.04.145 provides as follows:

A. The prevailing party of any action, administrative proceeding, or special proceeding to abate a nuisance or to cause the abatement of a public nuisance or other violation of this Code, or in any appeal or other judicial action arising therefrom, shall be entitled to recover reasonable attorney’s fees. Attorneys’ fees shall not be recoverable unless the City Manager (or a designee thereof) or an attorney for and on behalf of the City elects in writing at the initiation of that individual action or proceeding to seek recovery of its own attorneys’ fees.

B. Provided that the City has made an election to seek attorney’s fees, an award of attorney’s fees to a person shall not exceed the amount of reasonable attorney’s fees incurred by the City in that action or proceeding.

C. Unpaid attorneys’ fees shall be collectible in any manner allowed by law.

Plaintiff also claims fees as an item of cost under Code of Civil Procedure (CCP) sections 1032 and 1033.5, as well as under Civil Code section 3496(c). CCP section 1032(b) entitles a “prevailing party” to recover costs in any action or proceeding. CCP section 1032(a)(4) defines a “prevailing party” as including:

[a] the party with a net monetary recovery, [b] a defendant in whose favor a dismissal is entered, [c] a defendant where neither plaintiff nor defendant obtains any relief, and [d] a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Emphasis added.) Civil Code section 3496(c) provides the court with the discretion to award costs, including the costs of investigation and discovery, and reasonable attorney's fees… to the prevailing party… [i]n any case in which a governmental agency seeks to enjoin the use of a building or place, or seeks to enjoin in or upon any building or place the unlawful sale, manufacture, service, storage, or keeping or giving away of any controlled substance[.]”

Considering these statutes, the Court must determine whether Plaintiff is a prevailing party. There is no judgment in this action, and costs are generally incident to judgment. (Folsom v. Butte Cnty. Assn. of Governments (1982) 32 Cal. 3d 668, 677.) Plaintiff has not “recovered” any non-monetary relief, aside from a preliminary injunction. (See Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 [a preliminary injunction is not a determination on the merits of the action, and only represents the trial court's discretionary decision whether defendant should be restrained from exercising a claimed right pending trial].) Plaintiff does not contend that it settled this action with Defendant. Thus, at first blush, Plaintiff has not recovered anything, and therefore could not be considered a prevailing party, even under the discretionary standard of section 1032.

Plaintiff cites a line of cases that discuss whether there is prevailing party even if there is no favorable judgment. Indeed, a plaintiff may be entitled to attorneys’ fees under a “catalyst theory” (in the context of a private attorney general statute, CCP section 1021.5). (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553.) The theory provides that attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. (Id. at 560.) Plaintiff reasons that under such rules, the court takes a “broad, pragmatic view of what constitutes a ‘successful party’ ” and that a fee award “may be justified even when plaintiff's legal action does not result in a favorable final judgment.” (Id. at 565-566.) Under this pragmatic view, plaintiffs may be considered the prevailing parties for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. (Id. at 571 [noting that successful and prevailing parties are synonymous]; see Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348 [recognizing the catalyst theory, where attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation]; see also Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311 [although their action had become moot, plaintiffs were awarded fees under section 1021.5 because they had achieved the relief they sought through preliminary injunction].)

In Graham, truck buyers brought an action for breach of warranty against a manufacturer, alleging that marketing materials misrepresented the towing capacity of the subject trucks. (Graham, supra, 34 Cal.4th at 560.) The manufacturer offered to repurchase the trucks after the lawsuit was filed seeking a repurchase remedy, but before judgment was rendered. (Id.) Despite the fact that the lawsuit was now “moot,” plaintiffs were still awarded substantial attorney fees under the catalyst theory. (Id.) Graham found that the trial court could award fees under the catalyst theory, but required the plaintiff make additional showings that the lawsuit has “some merit” (i.e., that it was not “frivolous, unreasonable or groundless”) and plaintiff “engaged in a reasonable attempt to settle its dispute with the defendant prior to litigation.” (Id. at 575-577 [remanding with instructions to consider these two additional elements].) Graham recognized:

some development of the factual record is required in order to prevail on a catalyst theory. At the very least, a plaintiff must establish ‘the precise factual/legal condition that [it] sought to change or affect’ as a prerequisite for establishing the catalytic effect of its lawsuit… When the suit is mooted early in its prosecution (as occurred in the [Graham]), it may generally be established during the attorney fee proceeding by declarations, or, at the discretion of the trial court, by an abbreviated evidentiary hearing. The trial court may review this factual background not only to determine the lawsuit's catalytic effect but also its merits. Attorney fees should not be awarded for a lawsuit that lacks merit, even if its pleadings would survive a demurrer. We believe that trial courts will be able to conduct an abbreviated but meaningful review of the merits of the litigation designed to screen out nuisance suits without significantly increasing attorney fee litigation costs.

(Citations omitted.)

Following the rules set forth in Graham, Plaintiff must provide more evidence than what was presented here. Simply put, Plaintiff fails to demonstrate that the action is truly moot, and that Defendants ceased their activities because of this lawsuit. Plaintiff cites no competent evidence that demonstrates that Defendants ceased their indoor activities in violation of the COVID-19 stay-at-home orders because of this lawsuit. Plaintiff relies on the declaration of counsel and the prior evidence submitted in support of the other motions in this action, such as the documents in support of Plaintiff’s Application for a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction. Counsel only states (without much foundation) that Defendants have relinquished possession and occupancy of the Subject Property altogether. (Sanchez Decl., ¶ 16.) Even if true, this bare statement does not show a causal connection between this action and cessation. While the evidence regarding the preliminary injunction could show the minimal merits of this lawsuit, Counsel makes no statement on whether Defendants actually ceased indoor activities, why they ceased such activities, or when they ceased such activities. Without such facts, the Court cannot find that a causal connection exists.

The Court further notes that some facts weigh against a finding that Defendants ceased operation because of this lawsuit. For instance, it is undisputed that Defendants filed for chapter 11 bankruptcy. Thus, it is reasonably possible that Defendants ceased operation because of bankruptcy, rather than to comply with this lawsuit. The fact that Defendants have abandoned the property also suggests issues other than Defendants’ alleged violation of the COVID-19 indoor gathering bans from three years ago. In fact, the complaint did not seek to have Defendants relinquish possession and occupancy of the property altogether. For these reasons, it is questionable whether Defendants changed their behavior in the manner sought by the litigation. Plaintiff also proffers no settlement agreement, further distinguishing this case from the cited caselaw.

For these reasons, the Court concludes that Plaintiff has not demonstrated the catalytic effect to be the “successful” party entitled to fees without a favorable judgment. Accordingly, the motion is DENIED without prejudice.