Judge: Mark C. Kim, Case: 22LBCV00171, Date: 2023-02-07 Tentative Ruling
Case Number: 22LBCV00171 Hearing Date: February 7, 2023 Dept: S27
Plaintiff, Three Willow Partners,
LLC filed this action against Defendant, GFC Warren, LLC dba Gus’s World Famous
Fried Chicken for commercial properly unlawful detainer. Plaintiff filed the action on 4/14/22.
On 10/11/22, the Court heard and
granted Plaintiff’s motion for summary judgment on the complaint. On 11/16/22, the Court entered judgment. The judgment provides for possession in favor
of Plaintiff, with Plaintiff to recover damages, fees, and costs according to
proof.
Plaintiff seeks to recover
attorneys’ fees in the amount of $38,470.00.
Defendant concedes Plaintiff is entitled to recover fees, but contends
the amount is both excessive and unsupported.
Plaintiff’s motion for fees is
supported by the Declaration of Counsel, Rudie D. Baldwin. She declares the attorneys’ fees incurred are
reflected in the billing statement, which is attached as Exhibit B to her
declaration. She indicates portions of
the statement are redacted to reflect attorney-client privilege and/or work
product. The Court has reviewed the
billing statement, and EVERY SINGLE WORD relating to the tasks completed is
redacted. This is clearly improper. By way of example, Plaintiff was clearly
billed for filing the complaint. Nothing
about drafting the complaint would be work product or privileged, especially in
the manner it would be described in a billing statement.
Defendant correctly notes in
opposition that it cannot meaningfully respond to the request for fees without
being able to, on some level, review the tasks being billed for. Notably, Plaintiff bears the burden of
proving any amount of attorneys’ fees not based on the court’s established fee
schedule. See CCP §1033.5(c)(5). Pursuant to Martino v. Denevi (1986) 182
Cal.App.3d 553, 559, competent evidence as to the nature and value of the
services rendered must be provided with the moving papers. Pursuant to Taylor v. County of Los Angeles
(2020) 50 Cal.App.5th 205, 207, while contemporaneous time records
are not absolutely required with a motion for fees, they are the best possible evidence,
and they eclipse all other forms of proof.
Plaintiff must bring the unredacted
billing records to court for review. The
Court will determine the amount of fees to be awarded at the hearing upon
review of the records.
a. Memorandum
of Costs
Plaintiff filed a memorandum of
costs on 11/29/22. The memorandum seeks
to recover $1231.80 in filing and motion fees, $38,470 in attorneys’ fees, and
$70,971.64 in “other costs,” which the costs worksheet explains is for holdover
damages.
b. Parties’
Positions
Defendant seeks to tax the attorneys’
fees and holdover damages from the memorandum.
It contends attorneys’ fees are not properly sought by way of a
memorandum of costs, and holdover damages are also not recoverable as an item
of costs.
Plaintiff opposes the motion. It argues attorneys’ fees are recoverable per
the parties’ contract. It argues
holdover damages were sought by way of the complaint, and are a proper item of
discretionary costs under the circumstances.
c. Attorneys’
Fees
Attorneys’ fees are not available by
way of a memorandum of costs. The memorandum,
on its face, states, “enter here if contractual or statutory fees are fixed
without necessity of a court determination; otherwise a noticed motion is required.” The motion to tax these costs is
granted. Nothing about this ruling
alters the ruling on the motion for attorneys’ fees, discussed above.
d. Holdover
Rent
Holdover rent is not an item of
costs; rent is an item of damages. See Adler
v. Elphick (1986) 184 Cal.App.3d 642, 649.
While Plaintiff correctly notes that Civil Code §1033.5 has a
discretionary provision permitting the Court to award costs neither expressly
allowed nor expressly permitted, the items still must be ones of cost. Rent is not a cost. Plaintiff may use other mechanisms to recover
holdover rent if those are available, but a memorandum of costs is patently improper. The motion to tax these costs is granted.
The Court asks Counsel to make arrangements
to appear remotely at the hearing on the above motions.