Judge: Mark H. Epstein, Case: SC128632, Date: 2023-04-07 Tentative Ruling

Case Number: SC128632    Hearing Date: April 7, 2023    Dept: R

This is a fee motion.  It is DENIED WITHOUT PREJUDICE or CONTINUED.

The underlying case was brought by a tenant against a landlord for allegedly overcharging rent.  Following a bench trial on largely stipulated facts, the court found in plaintiff’s favor although not for as much as plaintiff requested.  A judgment has been entered based on that decision.

Plaintiff contends that he is statutorily entitled to attorneys’ fees.  Plaintiff is correct.  The statute is clear and it states that a prevailing plaintiff in a case alleging overcharging of rent is entitled to fees.  And while the judgment was not as high as plaintiff sought, that does not change the entitlement.  Plaintiff’s recovery was substantial enough to trigger the statute.  Defendant agrees with the foregoing. 

Defendant concedes that plaintiff is entitled to fees, but defendant contends that the fees sought are unreasonable.  Defendant also contests plaintiff’s “amended notice.”  The objection to the “amended notice” is well taken.  Plaintiff’s lead counsel was not able to provide a fee declaration with the moving papers and therefore provided an “amended notice” with his fees.  The amended notice is improper, and the question is not close.  An amended notice is proper to inform the opposing party of a change in the date or time of the hearing, and it has been used where there is a change in the relief sought but the change is minor or is in the nature of the correction of an obvious typographic error.  It is even not inappropriate, in some cases, to conform the notice to a timely filed memorandum of points and authorities.  This is different.  This is a major increase in the amount of fees requested (about 50%).  And it was filed after the opposition was filed.  While it is true that plaintiff forthrightly foreshadowed this issue in the moving papers, that does not make this procedure proper and there is no valid excuse for the failure to include the Bramzon fees in the moving papers.

Putting Bramzon to one side, in its moving papers plaintiff provided significant evidence as to the hours worked and the fees billed.  Each counsel working on the case provided a declaration and specific time records were provided that set forth by day the time billed and the task done.  The court has looked at that time and the court does have some questions about some entries.  But there is a larger question.

At the end of the day, the case was tried (properly and efficiently) on stipulated facts.  While there was some live testimony, the vast bulk of the facts were agreed upon.  That was a commendable effort by the parties and it made the trial much more efficient.  However, nowhere in the papers is that discussed.  It is hard for the court to tell, but it appears that the case was litigated until the very end (about the time Bramzon came on board in a larger way) that the case was being litigated as a normal case where there were major factual disputes that would have to be tried.  If that is so, then the court needs to know how to deal with that inefficiency.  The way the case was actually tried was a textbook example of parties working together to minimize the burden on themselves and on the court.  But there is no declaration explaining whether that found its way into the way the case was handled until shortly before trial.

It could be that plaintiff initially tried to streamline the case but found resistance.  That could have occurred by way of a suggestion to the defense that was rejected or perhaps in the form of RFA’s that were denied but were later made into stipulated facts, or the notion of stipulated facts was always front and center and this is just what a trial takes even on stipulated facts.  Or it could be that no one really thought about how best to try the case until the very end.  If the former, then the fees sought are for the most part appropriate.  But if the latter, then the inefficiency ought not be borne solely by the defense.  (Any increase in defense fees due to the inefficiency is, of course, borne by the defense in that the client paid the bill and there is no argument for any fee shifting.)  In any event, that needs to be discussed.  That is especially so in that plaintiff seeks fees for 150 hours of attorney time (including Bramzon’s time) here. 

So the court is inclined to do one of the following.  It can deny the motion without prejudice and allow plaintiff to re-file (this time including Bramzon’s time) and also to address the question above.  Or it can continue the hearing to do the following to deal with the earlier question.  However, if the motion is continued, then Bramzon’s time will be disallowed because the notice was improper.  The court is inclined to do the former because of Bramzon’s important role in the case and giving plaintiff no recovery for his time seems to the court at odds with the statute’s intent.  That said, the court will give plaintiff his choice in the matter.  If the matter is to be continued, the court will discuss an appropriate date with counsel that includes time for plaintiff to file the supplemental papers and for defendant to respond.