Judge: Mark E. Windham, Case: 20STLC08311, Date: 2023-06-29 Tentative Ruling
Case Number: 20STLC08311 Hearing Date: October 5, 2023 Dept: 26
CMG Mortgage, Inc. v. McDonald, et al.
ATTORNEY’S
FEES, COSTS AND INTEREST
(Civil Code §§ 1717, 3287; CRC Rules 3.1700, 3.1702, 8.822)
TENTATIVE RULING:
Plaintiff CMG Mortgage, Inc.’s Motion for Attorney’s Fees,
Costs, and Interest is GRANTED. PLAINTIFF IS AWARDED ATTORNEY’S FEES OF $6,795.00,
COSTS OF $2,619.70, AND INTEREST
AT A RATE OF TEN (10) PERCENT PER ANNUM FROM DECEMBER 3, 2019 UNTIL THE DATE OF
ENTRY OF JUDGMENT.
ANALYSIS:
On
June 29, 2023, the Court granted Plaintiff’s Motion for Relief from Dismissal
of Memorandum of Costs and Attorney’s Fees. (Minute Order, 06/29/23.) Plaintiff
filed the instant Motion for Attorney’s Fees, Costs, and Interest on July
11, 2023. No opposition has been filed to date.
Discussion
Plaintiff moves for
attorney’s fees of $8,670.00, costs
of $2,619.70, and pre- and
post-judgment interest of $4,816.43 pursuant to Civil Code section 1717 and the
applicable costs provision in the parties’ contract. The Court grants
Plaintiff’s request for judicial notice of (1) the Court’s Statement of
Decision and Judgment; and (2) the Notice of Entry of Judgment.
Entitlement to
Attorney Fees
A prevailing party is entitled to recover costs, which can include
attorney’s fees, as a matter of right.
(Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This
right may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5,
subd. (a)(10).) Additionally, a party prevailing on an action on a contract is
entitled to attorney fees if the contract contains an attorney’s fees
provision. (Civ. Code, § 1717, subd. (a).)
It is undisputed that Plaintiff is the
prevailing party in this action, as the party in whose favor judgment was
granted. (Code Civ. Proc., § 1032, subd. (a)(4).) It is also undisputed that
the parties’ employment agreement, which is the subject of this action,
provided for recovery of attorney’s fees by the prevailing party. Paragraph
VIII of the agreement sates: “To the extent permitted by any federal, state or
local, law, regulation or any agencies thereof, including but not limited to
FHA, RESPA and/or HUD, Employee hereby agrees to indemnify and defend CMG
Mortgage and its principals for any and all attorney’s fees, costs of prudent
settlement, judgments, fines, or damages incurred by Employer as a result
Employee’s repeated knowing or intentional breach of the terms of this
Agreement.” (Motion, Ferrante Decl., Exh. 2 at ¶VIII.) Therefore, Plaintiff has
demonstrated it is entitled to an award of attorney’s fees and costs in this
action.
Calculation
of Attorney Fees and Costs
The Court’s objective is to award
attorney fees at the fair market value
based on the particular action. (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132.) “The reasonable
hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000)
22 Cal.4th 1084, 1095.) “‘[T]he fee setting inquiry in California ordinarily
begins with the 'lodestar,' i.e., the number of hours reasonably expended
multiplied by the reasonable hourly rate . . . .’” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1134.) The lodestar method is based on the factors, as
relevant to the particular case: “(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.” (Id. at 1132.) “The ‘‘experienced
trial judge is the best judge of the value of professional services rendered in
his court, and while his judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’’” (Id.) A negative modifier was appropriate
when duplicative work had been performed.
(Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)
Plaintiff
submits the declaration of its attorney, Giuliana R. Ferrante (“Ferrante”), in
support of its request for attorney’s fees. Ferrante declares Plaintiffs’
counsel billed 27.4 hours of time on this action at rates ranging from $200.00
to $350.00 per hour. (Motion, Ferrante Decl., ¶¶14-18 and Exh. 3.) The Court
finds the time spent and rates charged were reasonable for the efforts
undertaken by Plaintiff to obtain judgment in this action. These efforts
included (1) effectuating service on Defendant; (2) propounding
discovery requests; (3) bringing discovery motions; (4) preparing and appearing
for trial; and (5) bringing the instant motion. (Id. at ¶¶6-12 and Exh. 3.) However,
the amount is reduced by the five hours Plaintiff anticipated for an opposition
to this Motion billed at $1,875.00, which was never made. (See id. at
¶15.) Plaintiff also incurred costs for filing, service and hosting electronic
documents in connection with this action, in the amount of $2,619.70. (Memo of
Costs, filed 07/11/23.)
Therefore,
Plaintiff is awarded attorney fees of $6,795.00 and costs of $2,619.70.
Amount of
Interest
Civil Code section 3287 provides for the recovery of
prejudgment interest on damages. “The purpose of prejudgment interest is to
compensate plaintiff for loss of use of his or her property. [Citation.]” (Segura v. McBride (1992) 5
Cal.App.4th 1028, 1041.) Subdivision (a) of Civil Code section 3287 pertains to
interest on liquidated claims. One who is “entitled to recover damages certain,
or capable of being made certain by calculation ... is entitled also to recover
interest thereon” from the time the right to recover arises. (Civ. Code section
3287, subd. (a).)
Here, the damages were capable of being made certain by
calculation from the date of Defendant’s breach. Therefore, Plaintiff is
entitled to an award of interest from that date, December 3, 2019, at ten
percent per annum until the date of entry of judgment. (Civ. Code, § 3289,
subd. (b).)
Finally, to the extent Plaintiff requests an award of
post-judgment interest that is not accounted for by the above language, this
may be sought by filing mandatory Judicial Council Form MC-012, “Memorandum of
Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued
Interest.”
Conclusion
Plaintiff CMG Mortgage, Inc.’s Motion for Attorney’s Fees,
Costs and Interest is GRANTED. PLAINTIFF IS AWARDED ATTORNEY’S FEES OF $6,795.00,
COSTS OF $2,619.70, AND INTEREST
AT A RATE OF TEN (10) PERCENT PER ANNUM FROM DECEMBER 3, 2019 UNTIL THE DATE OF
ENTRY OF JUDGMENT.
Moving party to give notice.