Judge: Mark E. Windham, Case: 20STLC08314, Date: 2023-06-29 Tentative Ruling

Case Number: 20STLC08314    Hearing Date: October 5, 2023    Dept: 26

CMG Mortgage, Inc. v. Enriquez, 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. dba CMG Financial’s Motion for Attorney’s Fees, Costs, and Interest is GRANTED. PLAINTIFF IS AWARDED ATTORNEY’S FEES OF $8,567.00, COSTS OF $1,665.72, AND INTEREST AT A RATE OF TEN (10) PERCENT PER ANNUM FROM DECEMBER 3, 2019 UNTIL THE DATE OF ENTRY OF JUDGMENT. 

ANALYSIS:

On October 1, 2020, Plaintiff CMG Mortgage, Inc. dba CMG Financial (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Byron Enriquez (“Defendant”). The Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted and Request for Monetary Sanctions on March 23, 2022. (Minute Order, 03/23/22.) The case came for trial on April 1, 2022, after which the Court entered judgment in Plaintiff’s favor in the amount of $20,720.00 plus pre- and post-judgment interest, attorney’s fees pursuant to noticed motion and costs pursuant to a memorandum of costs. (Minute Order, 04/01/22; Judgment, 04/07/22.) Notice of Entry of Judgment was served on May 10, 2022. (Notice of Entry of Judgment, filed 05/10/22.)

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 $10,442.50, costs of $1,665.72, 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 28.1 hours of time on this action at rates ranging from $200.00 to $350.00 per hour. (Motion, Ferrante Decl., ¶¶13-17 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) propounding discovery requests; (2) bringing discovery motions; (3) preparing and appearing for trial; and (4) bringing the instant motion. (Id. at ¶¶6-111 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 $$1,665.72. (Memo of Costs, filed 07/11/23.)

Therefore, Plaintiff is awarded attorney fees of $8,567.00 and costs of $1,665.72.

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. dba CMG Financial’s Motion for Attorney’s Fees, Costs and Interest is GRANTED. PLAINTIFF IS AWARDED ATTORNEY’S FEES OF $8,567.00, COSTS OF $1,665.72, 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.