Judge Mark E. Windham, Case 18STLC02914 2023-03-23 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Plaintiff Garret Adelman’s Motion for Order Awarding Attorney’s Fees is GRANTED IN THE AMOUNT OF $20,000.00.

On January 8, 2016, Plaintiffs Garret Adelman (“Plaintiff Garret”) and Justin Adelman (“Plaintiff Justin”) filed the instant action for violation of rent stabilization ordinances against Defendants Jerome Adelman, Trustee of The Dolores Adelman Separate Property Trust, Delores Adelman Aka Dolores Adelman, and The Estate of Delores Adelman (“Defendants”). On May 10, 2016, the Court granted Defendants’ Motion to Expunge Lis Pendens. (Order Expunging Notice of Pendency of Action, 05/10/16.)

On October 18, 2016, the Court issued a ruling on Defendants’ demurrer to the First Amended Complaint, which Plaintiffs appealed. (Minute Order, 10/18/16.) The appeal was dismissed on April 10, 2017. (Remittitur, 04/10/17.)

The Court then sustained Defendants’ demurrer to the Second Amended Complaint with leave to amend. (Minute Order, 10/25/17.) The operative pleading, the Third Amended Complaint, was filed on November 21, 2017 and alleges a single cause of action for Violation Of Los Angeles Municipal Code Chapter XV § 151.09(G). The Court sustained Defendants’ demurrer to the Third Amended Complaint against Plaintiff Justin without leave to amend, leaving only Plaintiff Garret. (Minute Order, 01/22/18.) Defendant Jerome filed an Answer to the Third Amended Complaint on January 30, 2018. Following the parties’ stipulation that the amount in controversy was less than $25,000, the action was transferred to the Limited Jurisdiction Court on May 17, 2018.

On September 22, 2020, Plaintiff Garret’s first Motion for Summary Judgment came for hearing and was placed off calendar due to his failure to sufficiently demonstrate to the Court that there were any existing defendants. (Minute Orders, 07/02/20 and 09/22/20.) On March 23, 2021, the Court granted Plaintiff Garret leave to amend to correct the name of Defendant, Jerome Adelman, Trustee of the Delores Adelman Separate Property Trust, to reflect the true name as, Susan Frydrych, Successor Trustee of the Delores Adelman Separate Property Trust. (Minute Order, 03/23/21.)

When the case came for trial on May 3, 2021, Plaintiff Garret failed to appear and the case was dismissed without prejudice. Plaintiff Garret then moved to vacate the dismissal, and the action was reinstated on July 20, 2021. (Minute Order, 07/20/21.)

The court granted Plaintiff Garret’s second Motion for Summary Judgment on May 16, 2022 and entered judgment in his favor on July 26, 2022. (Minute Order, 05/16/22; Entry of Judgment, 07/26/22.) Notice of Entry of Judgment was filed on September 7, 2022. Plaintiff Garret then filed an appeal of the Notice of Entry of Judgment on October 7, 2022. A notice of default and notice of non-compliance of default has since been issued on the appeal, which was then dismissed on January 23, 2023.

Plaintiff Garret also filed the instant Motion for Order Awarding Attorney’s Fees on October 7, 2022, which was set for hearing on January 31, 2023. Defendant filed an untimely opposition on January 25, 2023 and Plaintiff Garret replied on January 24, 2023. The Motion initially came for hearing on January 31, 2023 without the Court having an opportunity to review the opposition and reply. As a result, the Court continued the hearing to March 23, 2023. (Minute Order, 01/31/23.)

A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract, law or statute. (Code Civ. Proc., § 1032, subd. (a)(4); § 1033.5, subd. (a)(10).) Similarly, Code of Civil Procedure section 1717 provides that attorneys’ fees and costs shall be awarded to the prevailing party in an action on a contract, where the contract specifically provides for attorneys’ fees and costs. (Code Civ. Proc., § 1717, subd. (a).)

A motion for attorneys’ fees must be filed and served with the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, judgment was entered on September 7, 2022 and the instant motion was timely filed on October 7, 2022.

It is undisputed that Plaintiff Garret is the prevailing party in this action, as the party in whose favor the summary judgment was granted. (See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, Plaintiff Garret is entitled to recover costs under Code of Civil Procedure section 1033.5, subdivision (a). Those costs may include attorney’s fees if such recovery is provided for in the contract at issue, or in statute or law. Plaintiff Garret first argues the parties’ lease agreement includes an attorney’s fees provision: “The Tenant agrees that any expenses and/or damages incurred as a result of a breach of the Lease Agreement including attorney’s fees and costs will be paid to the Landlord or prevailing party.” (Motion, Tamer Decl., Exh. A, ¶23(a).) The Motion contends that the tenants can also recover attorney’s fees because under Civil Code section 1717, a one-sided contractual attorney’s fees provision becomes reciprocal. Defendant responds that the claim in this action does not pertain to breach of the lease agreement such that the contractual attorney’s fees provision is not triggered. None of the Complaints in this action have alleged breach of the lease agreement. The original Complaint alleged (1) violation of Los Angeles Municipal Code Chapter XV § 151.05(A); and (2) violation of Los Angeles Municipal Code Chapter XV § 151.09(G). The operative Third Amended Complaint only alleged violation of Los Angeles Municipal Code Chapter XV § 151.09(G). Plaintiff Garret’s motion papers offer no analysis as to how the statutory cause of action can be considered a claim “on a contract” under Civil Code section 1717, such that attorney’s fees provision in the lease applies.

Plaintiff Garret also argues that the rent stabilization ordinance under which the action was brought provides for an award of attorney’s fees. Los Angeles Municipal Code sections 152.05 and 152.07 provide for an award of attorney’s fees for failure to comply with the moving statute, section 151.09, subdivision (G). (LAMC, §§ 152.05, 152.07.) Defendant argues that they substantially complied with the requirement to pay the relocation fee, contending that Decedent Jerome Adelman had paid Plaintiffs $10,300.00. (Opp., Frydrych Decl., ¶5.) However, no details regarding this purported payment, or evidence of the same, is offered. (Ibid.)

Therefore, the Court finds that Plaintiff Garret is entitled to an award of attorney’s fees under Los Angeles Municipal Code Chapter XV, sections 152.05 and 152.07.

Plaintiff Garret asks for attorney’s fees of $81,793.75 based on 142.25 hours billed at $575.00 per hour. (Motion, Tamer Decl., ¶¶6-8.) Plaintiff’s attorney indicates that the hourly rate is reasonable because he has been practicing for 30 years. (Id. at ¶8.) The number of years of experience of these attorneys, however, is not the only consideration for a reasonable hourly rate.

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East, supra, 6 Cal.App.5th at p. 437, 212 Cal.Rptr.3d 304; see Mountjoy, supra, 245 Cal.App.4th at p. 272, 199 Cal.Rptr.3d 495 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors .... [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case” ’ ”].)

(Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.) The Court notes that this case involves a specialized area of law and had its challenges concerning the status of the various Defendants. However, the factual basis of the dispute was straightforward and virtually undisputed. (See Minute Order, 05/16/22, p. 5.) Therefore, the reasonable hourly rate for this action should not exceed $400.00.

Regarding the number of hours billed, this action has been litigated since January 8, 2016. However, it appears that much of the time was spent due to over-litigation by Plaintiffs. First, it took filing four pleadings and two full years before this action was even at issue. Following multiple demurrers, all of which were opposed by Plaintiffs, the action was pared down to a single cause of action by a single Plaintiff against a single Defendant. Plaintiffs improperly filed a lis pendens, which required Defendants to move to expunge it. Plaintiff prematurely filed an appeal of the order sustaining the demurrer to the First Amended Complaint, which was dismissed. Plaintiff Garret also prematurely filed the first Motion for Summary Judgment, which was eventually taken off calendar. When the case came for trial, Plaintiff Garret simply failed to appear, necessitating a motion to vacate dismissal to reinstate the action. The action now having concluded following the grant of summary judgment in favor of Plaintiff Garret on May 16, 2022 and entry of judgment on July 26, 2022, Plaintiff Garret filed an appeal of the Notice of Entry of Judgment, which has since been dismissed after default. In light of the grossly inefficient litigation set forth above, the amount of time that was reasonably spent on this action by Plaintiff Garret is reduced to 50 hours. Plaintiff, therefore, is awarded attorney’s fees of $20,000.00.

Plaintiff Garret Adelman’s Motion for Order Awarding Attorney’s Fees is GRANTED IN THE AMOUNT OF $20,000.00.