Judge: Mark A. Young, Case: SC129264, Date: 2022-10-04 Tentative Ruling
Case Number: SC129264 Hearing Date: October 4, 2022 Dept: M
CASE NAME: Marina City
Club Condo. Owners Assoc. v. Cynergy Group Intl LLC
CASE NO.: SC129264
MOTION: Motion
for Attorneys’ Fees
HEARING DATE: 10/5/2022
BACKGROUND
On March 25, 2022, the Court granted Plaintiff’s Motion
to Enforce Settlement per CCP § 664.6.
Relevantly to the instant motion, the Court found that section 16
of the Agreement awarded the prevailing party attorney’s fees and costs “due to
Defendant’s breach of the Agreement”, deemed Plaintiff the prevailing party for
such purposes, and allowed Plaintiff to file a “duly noticed motion for
attorney’s fees and costs.”
Also on March 25, 2022, Plaintiff
filed a notice of entry of order granting the §664.6 motion.
On May 25, 2022, Plaintiff filed a
notice of motion for the instant attorneys’ fees motion. Defendant 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.)
The evidentiary objections are
OVERRULED.
Plaintiff moves for attorney’s fees
in the total amount of $101,662.82, plus $60.00 in costs. This includes
$87,177.50 for fees incurred after the Agreement and an anticipated $14,120.00
for the instant motion for attorney’s fees.
Defendant contends that the motion
is untimely because it was only served with a notice of motion. Plaintiff
argues that it was not required to serve the memorandum, etc., with the notice
of motion. Plaintiff is correct. CRC Rules 3.1702 and 8.104 dictates when the notice
of an attorneys’ fees motion should be filed. Rule 3.1702(b)(1) requires a
moving party to “file and serve” a “notice of motion” per rule 8.104. Rule
8.104 provides that “a notice” of appeal must be filed on or before 60 days
after the party filing the notice of appeal serves or is served by a party with
a Notice of Entry of judgment. The plain language of the statute shows that
only the notice of motion was required. Otherwise, “all moving and supporting
papers shall be served and filed at least 16 court days before the hearing.” (CCP
§ 1005(b).) Defendant’s argument to the contrary is unsupported.
Plaintiff meets its initial burden to show
entitlement to fees, and the amount of fees sought. Plaintiff demonstrates that
they are owed fees under the settlement agreement. Consistent with the findings
of the section 664.6 hearing, the SAR provides:
Attorneys’ Fees Arising from or
Relating to This Agreement. In the event of any action, suit or other
proceeding concerning the interpretation, validity, performance or breach of
any of the terms and conditions of this Agreement, including without
limitation those brought pursuant to California Code of Civil Procedure §664.6
as set forth in Section 19 herein, the prevailing party shall recover
reasonable attorneys’ fees, costs, and expenses incurred in each and every
such action, suit or other proceeding, including any and all appeals and/or
petitions relating thereto.
As noted in its minute order of March
25, 2022, the Court ruled that Plaintiff was the prevailing party for this
purpose. Thus, Plaintiff is entitled to all fees in connection with this
proceeding concerning the breach and performance of the Agreement.
Counsel Steven Roseman, Esq.,
Patrick M. Malone, Esq., Karina Babikian, Esq., and Joshua B. Nozar, Esq.
billed at $280.00/hr. (Malone Decl., ¶¶ 42-45) Paralegals Christy Jones and
Julie Ho both bill at $125.00/hr. (¶¶ 46-47.) Plaintiff argues that the
reasonable market rate for the services provided is $350.00 per hour for
attorney work performed. (¶ 48.) Based on the presented evidence, the Court
finds that $280/hr. is a reasonable market rate for counsel.
Based on a review of the verified
time records, and considering Defendant’s objections, Plaintiff demonstrates
recoverable reasonable fees $84,420.00 (301.50 hours at $280.00/hr.) connected
with this proceeding following the settlement. Plaintiff also demonstrates
entitlement to $2,800.00 of fees in connection with the instant motion (reduced
10 hours at $280.00/hr.). The Court will not include any purely anticipated
time. Thus, the total reasonable fee award would be $87,050.00.
Accordingly,
Plaintiff’s motion is GRANTED in the amount of $87,110.00, inclusive of costs.