Judge: Mark A. Young, Case: SC129356, Date: 2022-09-08 Tentative Ruling

Case Number: SC129356    Hearing Date: September 8, 2022    Dept: M

CASE NAME:           Brian Leung v. Alireza Alivandivafa, et al., v. Y, et al.

CASE NO.:                SC129356

MOTION:                  Motion for Attorneys’ Fees

HEARING DATE:   September 8, 2022

 

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.) 

 

EVIDENTIARY ISSUES

 

Plaintiff’s objections are OVERRULED.

 

Plaintiff’s request for judicial notice is GRANTED.

 

Analysis

 

Plaintiff argues that the instant motion is untimely. (CRC Rule 3.1702(b)(1); Rule 8.104(a).) The Court record does not indicate when the judgment was served by the clerk or any party. (See RJN 2.) Plaintiff contends that OneLegal served the Judgment on January 3, 2022 or January 4, 2022. (Leung Decl., ¶ 3.) As recognized by the declaration itself, this is based on hearsay. Otherwise, Defendant provides that notice of this judgment was served by the Clerk, via the electronic service provider One Legal, on Defendant on January 18, 2022, making this motion due March 21, 2022. (8/31/22 Gupta Decl., ¶ 6 [“I was copied on an email receipt dated January 18, 2022, stating that the Court had Accepted Mr. Alivandivafa’s filing and that the same judgement and proof of service I had filed were received. At this time, a link to the file stamped documents, though no actual notice of judgment, was received.”]; see CRC Rule 3.1702(b)(1); Civ. Code §1010.6.) In the face of the unrebutted declaration that Defendant never served with the judgment (not even on January 18, 2022), the 180-day period would apply. Thus, the motion is timely.

 

Plaintiff further objects to the electronic service. While Plaintiff is correct that in this case Plaintiff would presumptively not be subject to electronic service, Defendant presents competent evidence that Mr. Leung’s counsel agreed to accept service electronically, and served documents electronically. (Gupta Decl., ¶ 4.) Plaintiff does not state that he rescinded this agreement, or that he even could rescind this agreement. Further, Plaintiff is apparently amenable to electronic service.

 

Defendant requests that he be awarded $117,960 in attorneys’ fees. This accounts for 196.50 hours at $600.00/hour. Both reciprocity (Civil Code § 1717) and section H of the retainer agreement requires an attorneys’ fees award here. There is no reasonable dispute that as the prevailing party, Defendant is entitled to their reasonable attorneys’ fees.

 

Defendant meets their initial burden by presenting a verified billing records. (Gupta Decl., ¶ 6.)  Plaintiff makes two general objections. Plaintiff argues that defense counsel block billed, and that the rates are excessive. The Court does not note any significant block billing and will not reduce any hours on this basis.

 

            The Court agrees that $600.00 an hour appears excessive in this action based on counsel’s training, experience, education, and performance during litigation, including trial. (See Gupta Decl., ¶¶ 3, 5.)  The Court has the ability to award fees based upon the knowledge and experience of the trial judge.  (See East West Bank v. Rio School Dist., (2015) 235 Cal. App. 4th 742, 750; Fed-Mart Corp. v. Pell Enterprises, Inc., (1980) 111 Cal. App. 3d 215, 227 (“award for attorney fees may be made in some instances solely on the basis of the experience and knowledge of the trial judge without the need to consider any evidence.”).)  Based upon the Court’s experience with this matter, the Court concludes that $400 an hour appears to be a reasonable rate.  Accordingly, the Court will fix the award at $78,600.00. Considering the totality of circumstances, the Court finds this amount to be a reasonable fee in this action.

 

Motion to Tax Costs

 

            As to the timeliness issue, the Court concludes for the reasons set forth above that the motion is timely.  The Court does grant the motion to tax costs as to the court reporter fees in the amount of $5,577.55.  As an initial matter, the Court did not order a court reporter to be provided by the parties but gave the parties the option of either having a court reporter or providing each day a joint statement of the previous day’s testimony.  The Court did request that Defendant provide transcript citations for the proposed statement of decision, but those citations were absent.