Judge: Mark A. Young, Case: 21SMCP00037, Date: 2022-10-26 Tentative Ruling
Case Number: 21SMCP00037 Hearing Date: October 26, 2022 Dept: M
CASE NAME: Tourney Professional Partners LLC, v. Wasserstein
CASE NO.: 21SMCP00037
MOTION: Motion for Attorneys’ Fees
HEARING DATE: 10/26/2022
BACKGROUND
On January 29, 2021, Petitioner filed a petition to confirm an arbitration award against Respondent. On June 25, 2021, the Court confirmed the arbitration award. On July 8, 2021, Petitioner filed a notice of entry of judgment or order.
On July 13, 2021, Petitioner filed a memorandum of costs after judgment. On July 28, 2021, Respondent filed a motion to tax costs. On February 4, 2022, Petitioner withdrew its memorandum of costs after judgment, and filed a notice of non-opposition of the motion to tax, arguing the motion was moot. On February 10, 2022, the Court took the motion off calendar due to the withdrawal of the memorandum of costs.
On June 10, 2022, Petitioner filed the instant motion for pre-judgment attorneys’ fees, interest and costs. Respondent opposes.
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
Petitioner requests the Court grant Pre-Judgment Attorney’s Fees, Interest and Costs as follows: (1) $59,216.00 in pre-judgment attorney’s fees; (2) $18,224.58 in interest; and (3) $4,362.46 in costs. As set forth herein, the motion is untimely.
“A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court-including attorney's fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.”
(CRC Rule 3.1702(b)(1).) Based on rule 8.104, a motion for attorneys fees’ must be noticed “(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.”
Here, judgment was entered on June 25, 2021. On July 8, 2021, Petitioner filed a notice of entry of judgment, indicating service of the judgment on July 7, 2021. Petitioner filed this motion on June 10, 2022. Petitioner therefore filed the instant motion more than 60 days after that service, and more than 180 days after judgment.
Petitioner further filed a memorandum of costs on July 13, 2021. This memo claimed pre-judgment fees. Petitioner contends that this memorandum was timely. Be that as it may, Petitioner voluntarily withdrew that memorandum on February 4, 2022, and failed to re-file it. Instead, Petitioner waited four additional months and filed the instant motion on June 10, 2022. As such, Petitioner cannot demonstrate that the instant motion is timely.
Petitioner also does not demonstrate good cause as to why this motion was not timely made. Petitioner does not explain why their voluntary withdrawal of the memorandum claiming attorneys’ fees creates good cause to file this motion four months later. The Court is therefore not inclined to use its discretion to consider this belated re-filing. Counsel cites attorney error and asks for relief. (CCP § 473(b).) However, counsel targets no “order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” for the court to grant relief. (Id.) Statutory deadlines are simply not orders or proceedings taken against parties.
Accordingly, the motion is DENIED.