Judge: Martha K. Gooding, Case: 2014-00742486, Date: 2022-10-31 Tentative Ruling
Motion for Attorney Fees
The Motion by Defendants KDF Cobblestone Village, VPM Management, Inc., KDF Communities, LLC, and Cynthia Glidden (collectively, “Defendants”) for attorney fees of “at least $1 Million” against Plaintiff Simi Akin is DENIED.
The Court considered Plaintiff’s late-filed opposition but finds that the motion for attorneys’ fees was timely filed. The time to file was triggered by Defendant’s 5/27/22 mail service of notice of entry of the judgment of dismissal [ROA #979], not their service of notice of entry of the minute order granting their motion to dismiss, which order contemplated entry of judgment as the final determination. [ROA #971.] In re Greer's Estate (1968) 261 Cal.App.2d 827, 831. See also Saben, Earlix & Assocs. v. Fillet (2005) 134 Cal.App.4th 1024, 1029-1031 (finding entry of non-appealable order granting summary judgment, or service of notice of entry of same, as opposed to entry of summary judgment, does not trigger Rule 3.1702(b)(1) limitations period; compare CRC 3.1702(c)(1) (time limit for claiming fees on post-judgment appeal)).
The Court denies Plaintiff’s request for leave to file a supplemental opposition.
Under section 1032(b) of the Code of Civil Procedure (“CCP”), a prevailing party is entitled as a matter of right to recover costs. Under CCP section 1033.5(a)(10)(A), attorney’s fees authorized by contract are allowable as costs under CCP section 1032. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “greater relief” on the contract claim. Code Civ. Proc. § 1032(a)(4); Civil Code § 1717(b)(1).
If a contractual attorney-fee provision is phrased broadly enough, it may support an award of attorney’s fees to the prevailing party on non-contract claims. Under CCP section 1021, parties may validly agree that the prevailing party will be awarded attorney’s fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract. Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App. 4th 1338, 1341.
Here, Defendants point to an attorneys’ fee provision in Plaintiff’s tenancy agreement and note that there are statutory fee provisions for certain of Plaintiff’s statutory claims. Defendants do not separately analyze their right to recover fees under the contract and each statute as to each cause of action in the FAC.
The Lease Agreement provides that “[i]n any legal action brought by either party to enforce the terms of this Agreement or relating to the Premises, the prevailing party shall be entitled to recover all costs incurred in that action, including reasonable attorneys’ fees.” [Bouses Decl. (ROA #989), Ex. 1 at ¶ 32.] The Lease Agreement is between Plaintiff and KDF Cobblestone Village. [Id.]
Most of Plaintiff’s causes of action involved her allegations of mold in her apartment, which would put them within the scope of the contractual attorneys’ fee provision. But causes of action eleven through fourteen, do not; they are based on allegations of racial discrimination. The eleventh and twelfth cause of action are brought under Govt. Code section 12955. The thirteenth and fourteenth causes of action are brought under 42 U.S.C. § 1981.
Defendants contend the fees they seek are reasonable. They are based on 1,824 hours – from the inception of this case in 2014 to present, by attorneys and paralegals – at what Defendants contend is an average, market rate of $631/hour, even though Defendants were billed a blended rate of $180/hour. [Motion MPA; Brouses Decl., ¶¶ 8-12.] The total fees claimed is $1.15 million. [Id., ¶ 12.]
While Defendants’ counsel declares she has reviewed the bills, including task descriptions and hours spent, and declares the fees to be reasonable, the bills are not included in the moving papers for the Court’s review.
The Court has broad authority to determine the amount of reasonable fees. PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.
Courts apply a lodestar method to calculate reasonable attorneys’ fees. Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-49. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney or other time-biller involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court’s discretion. PLCM Group v. Drexler (2000) 22 Cal. 4th 1084.
Courts begin with an independent review of the evidence to determine the reasonableness of the hours actually spent litigating the matter and to assess whether there was padding, over-staffing, duplication or marked inefficiency. Donahue v. Donahue (2010) 182 Cal. App. 4th 259, 272. Other factors courts consider include the development of the case, the complexity of the issues, and how long the court estimates it should have taken to perform the services. Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1249. After the court determines the number of hours reasonably necessary to the conduct of litigation, the next step is to determine an appropriate hourly rate for the work performed, based on market trends in the particular region for that kind of work. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 619; Chacon v. Litke (2010) 181 Cal. App. 4th 1234, 1260.
Reasonable Hourly Rate:
The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1094. This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represented the client on a straight contingent fee basis, or are in house counsel. Id. To determine that reasonable market value, the court must determine whether the requested rates are within the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal. App. 4th 740, 783.
Some of the factors to be considered in determining whether counsel’s rates are reasonable include: (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by counsel; and (3) the contingent nature of the fee award. Serrano v. Priest, supra, 20 Cal.3d at 49. Additional factors that may be considered include 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. Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1139.
The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. See Davis v. City of San Diego (2003) 106 Cal. App. 4th 893, 903. If the moving party meets its burden, the burden shifts to the opposing party to produce admissible evidence sufficient to show that the rates requested are not reasonable. See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140, 155 (finding court erred in reducing rates where evidence of reasonableness of rate requested was undisputed); Davis v. City of San Diego, supra, 106 Cal. App. 4th at 904.
Here, for the most part, the attorneys and paralegals who billed time in this action are not identified. Only the attorney who provided the declaration, and her predecessor, are named in her declaration. And even for these, little information about their experience is provided.
Defendants seek a single blended billing rate of $631 based on counsel’s presentation of the prevailing market rate of attorneys with comparable experience and skill. [Id., ¶¶ 10-12.] As noted above, however, no information about the identities, experience, and skill of Defendants’ lawyers and paralegals is provided. It is hard for the Court to imagine awarding more than $600 per hour for paralegal time.
On the paltry information provided, it is impossible for the Court to make a meaningful finding as to a reasonable hourly rate.
Hours Reasonably Expended:
Counsels' verified time records should be “entitled to credence in the absence of a clear indication the records are erroneous.” Horsford v. Board of Trustees (2005) 132 Cal. App. 4th 359, 396. Actual time records need not be submitted, however, so long as the court has sufficient and reliable information upon which to exercise its discretion. Raining Data Corp. v. Barrenechea (4/3 2009) 174 Cal. App. 4th 1363, 1375 (stating records not required and finding counsel declarations describing work and hours expended by category sufficient); Syers Properties III, Inc. v Rankin (2014) 226 Cal. App. 4th 691, 698-99 (same).
Here, Defendants’ counsel declares that lawyers and paralegals billed a total of 1,824 hours defending this case since its inception. [Brouses Decl., ¶ 9.]
Defendants have not, however, supplied any time records – or even any task descriptions – to show what the time billers spent their time doing. There is no information on which the Court can determine if the time was reasonably spent – i.e., whether it was necessary, not duplicative of another timekeeper’s work, not excessive, and appropriate to their level of expertise.
Again, it is the Court’s role to determine the amount of reasonable fees. PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095. This begins with an independent review of the evidence to determine the reasonableness of the hours actually spent litigating the matter and to assess whether there was padding, over-staffing, duplication or marked inefficiency. Donahue v. Donahue (2010) 182 Cal. App. 4th 259, 272.
Defendants failed to meet their burden of proof because they did not provide sufficient information for the court to conduct its independent review to determine the reasonableness of the hours actually spent litigating the matter. Donahue v. Donahue (2010) 182 Cal. App. 4th 259, 272.
The Motion is DENIED in its entirety.
Defendants are ordered to give notice.