Judge: Mark C. Kim, Case: BC715087, Date: 2023-05-11 Tentative Ruling

Case Number: BC715087    Hearing Date: May 11, 2023    Dept: S27

1.     Relevant Background Facts

Plaintiff, Armanak Bagramyan initiated this action against Defendants, Siamak Kalhor, Shahab Saba, and Cyberset Corp. on 7/24/18.  The Court ordered the parties to submit their dispute to binding arbitration.  On 3/02/22, the arbitrator issued his final award in the action.  He found in favor of Defendants, and he awarded them $48,433.07 in attorneys’ fees and $4066.85 in costs.  On 5/05/22, the Court granted Defendants’ petition to confirm the arbitration award. 

2.     Motion for Sanctions

Plaintiff failed to appear for his ORAP on 10/18/22, 2/07/23, and 3/15/23.  Defendants seek to recover the attorneys’ fees they expended in appearing at those ORAPs.  Defendants seek to recover those fees both as sanctions under CCP §708.170(a)(2) and also pursuant to the attorneys’ fees clause in the parties’ contract. 

Plaintiff, in opposition to the motion, argues sanctions pursuant to §708.170(a)(2) are not appropriate because his failure to appear at the ORAPs was justified.  Specifically, he contends he did not appear at the first ORAP because he was not aware of it, as his attorney was unrepresented at the time and does not read or speak English.  He notes that he did appear at the second ORAP, but he had only recently retained a new attorney, and he needed to seek a continuance of the ORAP, which the Court granted.  Finally, he contends he appeared at the third ORAP with his new attorney, but they went to the wrong department, and by the time they realized their mistake, Defense Counsel had already left the building and was unable to return.

§708.170(a)(2) requires sanctions for failure to appear at an ORAP unless there is “good cause” for the failure to appear.  In reply, Defendants point out potential issues with credibility concerning the statements made in opposition to the motion.  Even if all of the statements are true, the opposition ignores the alternative argument, which is that the parties’ contract permits the prevailing party to recover all attorneys’ fees expended in connection with the litigation.  If the underlying judgment includes an award of contract attorney fees, attorney fees incurred by the judgment creditor in enforcing the judgment are also recoverable as costs.  CCP §685.040; Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1274.

Plaintiff clearly incurred these fees, and there was nothing unreasonable about Plaintiff attempting to take Defendants’ judgment debtor examination or Plaintiff’s conduct in connection with the examination.  Thus, the Court declines to determine whether fees are appropriate under §708.170(a)(2), but finds they must be imposed per the parties’ contract.

Plaintiff also argues the amount of fees sought, $9000, is excessive.  Defense Counsel bills at the rate of $600/hour, which is on the high end but is reasonable.  Defense Counsel declares twelve hours were spent driving to and from the three ORAP hearings.  This amounts to four hours for each ORAP.  Counsel does not specify from where he was traveling for the hearings.  Four hours is reasonable, as the hearings were set to commence at the height of rush hour, some time had to be spent parking, going through security, and waiting for Plaintiff to appear, and then there was still travel back to the office after the failed hearing.  Counsel also seeks to recover three hours of time in connection with this motion, which is a reasonable amount considering the issues presented.  The Court therefore awards the amount requested in full. 

The motion is granted.  The Court will add the $9000 in attorneys’ fees incurred to the judgment against Plaintiff by interlineation. 

Defendants are ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.