Judge: Mark H. Epstein, Case: 21SMCP00109, Date: 2022-12-08 Tentative Ruling

Case Number: 21SMCP00109    Hearing Date: December 8, 2022    Dept: R

This is a fee motion to recover fees on appeal.  Plaintiff brought the underlying action against defendant for failing to perform under an agreement.  The matter was arbitrated.  Plaintiff moved to confirm the arbitration; defendant moved to vacate.  The court found in plaintiff’s favor and judgment was entered thereon.  Plaintiff sought and obtained fees for that motion.  Defendant appealed and the judgment was affirmed.  Plaintiff now seeks a fee award for the appeal.  Defendant does not dispute that the hourly rates are reasonable or that plaintiff is entitled to recover its attorneys’ fees. 

Defendant first suggests that part of the motion is duplicative.  In its earlier motion before this court, plaintiff sought fees for the fee motion and those fees were awarded.  Plaintiff concedes as much and agrees to reduce its request by $2400 to reflect the amount actually awarded on the prior fee motion.  Plaintiff contends, though, that only $2400 should be deducted for that purpose, and it continues to seek the difference.  The court’s review of the billing records suggests that the value of the time relating to relate to review of the opposition, preparation of the reply and attending the hearing is $3155 (excluding fees incurred to draft the order).  The court will therefore reduce the requested amount by $3155 rather than the $2400 plaintiff concedes or the $3645 defendant seeks. 

Defendant also seeks to bar fees on plaintiff’s unsuccessful motion to require defendant to post a bond.  That motion was denied by the Court of Appeal.  The rule on fee recovery is that fees are recoverable for unsuccessful motions as well as successful ones.  If the motion was so frivolous as to be made in bad faith then defendant needed to seek a sanction in the Court of Appeal not in this court.  This court will not second-guess plaintiff’s litigation strategy nor make what is the equivalent of a finding of bad faith concerning the appellate proceedings. 

The court is a bit concerned with the redactions.  Plaintiff submitted bills, but they were very heavily redacted in some parts.  As plaintiff states, there is no requirement that actual bills be submitted to support a fee motion; a declaration will do.  However, if the bills are not submitted, or if they are so redacted as to lack support for the motion, there must be some other evidence.  Here, the only evidence is to be found in counsel’s declaration, which does little more than state that the hours were worked and conclude that they are reasonable.  The amounts at issue regarding redactions is $7871.25 according to the defense.  Were there some sort of detailed declaration to support this time and what was done, the court would be inclined to make the award.  Absent that, the court is left with its judgment on what constitutes a reasonable fee for this appeal, which, to be frank, is sort of a gestalt kind of finding where there is no evidence.  In fact, there is not even a declaration that all of the fees sought have been billed without discount and have been paid without protest, which the court would have viewed as some independent evidence of reasonableness in that clients are generally not in the habit of paying unreasonably high fees. 

There are a couple of things the court notes in resolving this issue.  First, because this was an appeal from a judgment confirming an arbitration award (and denying the motion to vacate), the cost to prepare the appellate briefs should have been relatively close to the cost of preparing the trial court briefs.  True, the appellate briefs might go into greater depth and analysis, but the heavy lifting in terms of the briefing was presumably done in the trial court.  Second, this is a relatively easy appeal to run.  Because the arbitrator’s factual and legal rulings are not directly at issue, the record is relatively small. 

All of that said, though, If one subtracts the motion to stay enforcement and the $3600 or so in fees that related to the trial court, and another $10,000 for post-appellate work plaintiff seeks about $26,000 in total fees for appellate court work.  The court has trouble finding that to be unreasonable even though the court wishes that it had some additional anchor as to some of the billing entries.  The court has also reviewed the portions of the bills that have fewer redactions and does not find those entries to be inflated.  Because, as an overall matter, the amount billed on appeal is on its face reasonable, the court is not inclined to reduce the request based on the redactions.  

The motion is therefore GRANTED in the amount of $45,986.