Judge: Mark E. Windham, Case: LAM17K05412, Date: 2022-09-01 Tentative Ruling

Case Number: LAM17K05412    Hearing Date: September 1, 2022    Dept: 26

PROCEEDINGS:     MOTION FOR AWARD OF ATTORNEY’S FEES ON APPEAL

MOVING PARTY:   Plaintiff Helen Xu 

RESP. PARTY:         None

MOTION FOR ATTORNEY’S FEES ON APPEAL

(CCP §§ 1032, 1033.5; Civil Code § 1717; Cal. Rules of Court 3.1702)

TENTATIVE RULING:

Defendant Helen Xu’s Motion for Attorneys’ Fees on Appeal is GRANTED IN THE AMOUNT OF $7,175.00.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract, negligence, and fraud with respect to a property listing agreement.

BASIS OF MOTION: Defendant Xu is entitled to an award of attorney’s fees as the prevailing party on appeal in the amount of $8,200.00 and costs of $652.55.

OPPOSITION: None filed as of August 29, 2022.

REPLY: None filed as of August 29, 2022.

ANALYSIS:

Plaintiff Yvonne Jiang (“Plaintiff”) filed a Complaint for (1) breach of contract, (2) fraud, and (3) fraud against Defendants Helen Xu (“Xu” or “Defendant Xu”), Wenmei Yu and David Gao (collectively, “Defendants”) on April 28, 2017. The first cause of action for breach of contract was alleged against Defendant Xu, whose demurrer to the Complaint came for hearing on August 3, 2017. The Court sustained the demurrer without leave to amend. (Minute Order, 08/03/17.)

On August 10, 2017, Plaintiff filed a First Amended Complaint that purported to name Defendant Xu in the second cause of action. On December 21, 2017, the court sustained Defendant Gao’s demurrer to the Third Cause of Action and ordered Plaintiff to file a properly amended Complaint within 30 days. (Minute Order 12/21/17.)

From January 2018 to October 2018, there was no activity in this case by any party. On October 23, 2018, Plaintiff filed a Second Amended Complaint against Defendants Xu, Yu, and Gao. On November 5, 2018, the Court reaffirmed the August 3, 2017 order sustaining Defendant Xu’s demurrer without leave to amend and ordered Defendant Xu dismissed from the action with prejudice. (Minute Order, 11/05/18.) On June 11, 2019, the Court granted Defendant Xu’s motion for attorney’s fees in the amount of $9,300.00. (Minute Order, 06/11/19.)

On June 20, 2019, Plaintiff filed a Motion for Reconsideration of Order Granting Dismissal of Xu and Judgment for Helen Xu. Plaintiff also filed an appeal of the final judgment of dismissal and of the attorney’s fees award on August 26, 2019. The appeal of the judgment was dismissed by the Appellate Division on October 28, 2019 as untimely, but the appeal of the attorney’s fees award was allowed to proceed. (Order Denying Motion to Dismiss, filed 10/28/19.) Plaintiff’s request to amend the appeal was denied on December 13, 2019. Thereafter, the Court denied the Motion for Reconsideration on February 13, 2020.

Plaintiff filed an appeal of the final judgment and of the order awarding Defendant Xu attorney’s fees on November 27, 2019 (Appellate Division Case No. BV033207).

On February 7, 2020, Plaintiff filed a Motion to Vacate Defendant Xu’s Dismissal. On February 11, 2020, Plaintiff filed a Motion for Leave to Amend the Motion for Reconsideration. On February 24, 2020, Plaintiff filed a second Motion for Reconsideration.

On June 26, 2020, the Court denied the Motion to Amend the Motion for Reconsideration. (Minute Order, 06/26/20.) On July 16, 2020, the Court denied the second Motion for Reconsideration. At the same hearing, the Court set an Order to Show Cause regarding why Plaintiff Yvonne Jiang should not be declared a vexatious litigant and be subject to a pre-filing order for August 10, 2020. (Minute Order, 07/16/20.) The Court entered the order deeming Plaintiff a vexatious litigant on August 10, 2020. (Minute Order, 08/10/20.)

On March 22, 2021, following oral argument, the Appellate Division issued an opinion in Appellate Division Case No. BV033207 upholding the trial court’s orders. The Remittitur was filed in this department on June 23, 2021. Defendant Wu’s Motion for Attorney’s Fees with respect to Appellate Division Case No. BV033207 was granted on February 24, 2022 in the amount of $7,000.00. (Minute Order, 02/24/22.)

On January 3, 2022, following oral argument, the Appellate Division issued an opinion in Appellate Division Case No. BV033363 dismissing Plaintiff’s appeal of the Court’s February 13, 2020 order. The Remittitur was filed in this department on March 8, 2022. Defendant Wu filed the instant Motion for Award of Attorney’s Fees on Appeal on April 7, 2022. No opposition has been filed to date.

Discussion

A motion for attorney’s fees on appeal must be filed and served within the time for filing a memorandum of costs under Cal. Rules of Court Rule 8.891, subdivision (c)(1). (Cal. Rules of Court Rule 3.1702, subd. (c)(1).) A memorandum of costs on appeal must be filed and served within 30 days after the clerk sends notice of issuance of the remittitur. (Cal. Rules of Court, Rule 8.891, subd. (c)(1).) The notice of issuance of remittitur was dated March 8, 2022. (Remittitur, filed 03/08/22.) The instant Motion for Attorney’s Fees was timely filed and served 30 days later on April 7, 2022.

Defendant Xu moves for attorney’s fees pursuant to Civil Code section 1717 and Cal. Rules of Court, Rules 3.1702. Cal. Rules of Court Rule 3.1702 allows a prevailing party to recover fees pursuant to a statute or contract. (Cal. Rules of Court, Rule 3.1702, subd. (a).) “Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is also entitled to attorney fees on appeal.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13-14 (citing Villinger/Nicholls Development Co. v. Meleyco (1995) 31 Cal.App.4th 321, 329).) Similarly, Code of Civil Procedure section 1717 provides that attorney’s fees and costs shall be awarded to the prevailing party in an action on a contract, where the contract specifically provides for attorney’s fees and costs. (Code Civ. Proc., § 1717, subd. (a).)

The Court previously found that Plaintiff was entitled to attorney’s fees pursuant to the parties’ agreements. (Minute Order, 06/11/19, pp. 3-4) This ruling was upheld on appeal. (Remittur, filed 06/23/21, p. 7:7-8.) Defendant Xu again attaches the parties’ agreements, which provide for recovery of attorney’s fees by the prevailing party. (Motion, Lin Decl., Exh. A at ¶9.3; Exh. B at ¶15.) As the prevailing party on the appeal, Defendant Xu is entitled to recover her associated attorney’s fees.

Plaintiff seeks attorney’s fees of $8,200.00 on the appeal based on 20.5 hours of time billed at $400.00 per hour. (Motion, Lin Decl., ¶4.) The Court’s objective is to award attorney’s fee 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.) The Court determines the reasonable hourly rate based on a number 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.)

Previously, the Court approved defense counsel’s hourly rate at $350.00 as reasonable and sees no basis to award a higher rate in the same limited jurisdiction case. (Minute Order, 06/11/19, p. 4.) The Court finds the number of hours billed on this appeal to be reasonable. In addition to Plaintiff’s challenge to the Court’s ruling on February 13, 2020, this appeal involved a potential jurisdictional defect, for which the Appellate Division sought additional briefing by the parties. (See Remittitur, p. 1:20-22.) Accordingly, the Court finds Defendant Xu is entitled to recover 20.5 hours of attorney time for the appeal billed at $350.00 per hour. Defendant Xu is awarded 7,175.00 in attorney’s fees.

Conclusion

Defendant Helen Xu’s Motion for Attorneys’ Fees on Appeal is GRANTED IN THE AMOUNT OF $7,175.00.

Moving party to give notice.