Judge: Mel Red Recana, Case: 21STCV15335, Date: 2024-03-11 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 21STCV15335    Hearing Date: March 11, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             March 11, 2024

Moving Party:             Plaintiff Victor Burga and Adrienee Han

Responding Party:      Defendant Hoangtram Tong

Motion for Attorneys’ Fees

The court has considered the moving, opposition, and reply papers.

The court GRANTS Plaintiffs’ motion for attorney’s fees. The court awards Plaintiffs attorneys’ fees in the reduced amount of $119,760.

Background

On March 8, 2021, Plaintiffs Victor Burga and Adrienee Han (collectively, “Plaintiffs”) submitted a written offer to purchase 119 N. Manhattan Place, Los Angeles CA from Defendant Hoangtram Tong (“Seller”). On March 11, 2021, Defendant accepted the written offer subject to the counteroffer of $1,082,000, and a legally binding agreement between the parties was allegedly formed (the “Agreement”).

Plaintiffs were served with three Notices of Buyer to Perform to clear three contingencies on March 19, 2023 (the investigation contingency) and March 26, 2021 (the loan and appraisal contingency) (collectively, the “Contingencies”). Plaintiffs allege they timely cleared all contingencies identified in the Notices by March 29, 2021. However, on April 2, 2021, Defendant cancelled the escrow, representing that the Agreement was void. Defendant claimed the Contingencies had not been timely removed.

Thereafter, Plaintiffs served a Demand to Close Escrow on Defendant on April 15, 2021, designating April 19, 2021 as the escrow close date. Defendant ignored the demand. Consequently, Plaintiffs initiated this action on April 22, 2021. On April 26, 2021, Plaintiffs filed a Notice of Pendency of Action relating to the subject property. On July 29, 2021, Plaintiffs filed the operative First Amended Complaint, alleging the following causes of action: (1) breach of contract and specific performance; and (2) declaratory judgment.

 On August 22, 2023, Defendant filed the operative Second Amended Cross-Complaint alleging (1) breach of contract; (2) interference with contractual relationship; (3) intentional misrepresentation; and (4) negligent misrepresentation.

On November 16, 2023, the court granted Plaintiffs’ motion for summary judgment and sustained their demurrer to the Second Amended Cross-Complaint without leave to amend.

On December 22, 2023, the court entered judgment in favor of Plaintiffs and against Defendant with respect to the First Amended Complaint for damages of $113,115.73 and with respect as to the Second Amended Cross-Complaint. Per the judgment, Plaintiffs would be awarded attorneys’ fees in an amount to be determined by motion.

On February 15, 2024, Plaintiffs filed the instant motion for attorney’s fees, seeking $123,200 in fees. Defendant filed an opposition on February 27, 2024 and Plaintiff replied on March 4, 2024.

Legal Standard

“As a general rule, the prevailing party may recover certain statutory costs incurred in the litigation up to and including entry of judgment. [Citations.] These costs may include attorney fees, if authorized by contract, statute . . . or law. [Citation.] . . . attorney fees require a separate noticed motion. [Citations.]” (Lucky United Props. Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.) This motion may be brought: (1) after judgment or dismissal, for fees incurred “up to and including the rendition of judgment in the trial court--including attorney’s fees on an appeal before the rendition of judgment…”; and (2) on an interim basis, upon remittitur of appeal, of only fees incurred on appeal. (CRC, Rule 3.1702(b)-(c).)

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id.) Relevant factors include: “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Entitlement to Attorneys’ Fees

Plaintiffs move for attorney’s fees pursuant to the attorney’s fees provision at Paragraph 25 of the Agreement and CCP § 1717.

Paragraph 25 of the Agreement states: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.” (Motion at pg. 5; Goldberg Decl. ¶21, Exh. 5 FAC, Exh. B at ¶ 25.) As provided under Paragraph 22A, the parties agreed to mediate any dispute before pursuing arbitration or litigation, and failure to abide by this requirement would preclude an award for attorney fees. (Id. at ¶ 22A.) However, under Paragraph 22C, certain exclusions applied; for instance, a party could file a court action in order to enable the recording of a notice of pending action. (Id. at ¶ 22C(2)(ii).)

Plaintiffs assert that they had first filed this action in order to record a notice of pending action in order to prevent the subject property from being sold before relief could be granted, and after initiated this action, the parties engaged in mediation before mediator Barbara Reeves of JAMS. (Goldberg Decl. ¶¶ 18-19.)

In opposition, Defendant contends that there was no pre-litigation mediation, and therefore under Paragraph 22A of the Agreement, Plaintiffs are not entitled to an award of attorneys’ fees. (Opposition at pg. 5.) However, the court does not find this argument persuasive. While the parties did not engaged in mediation prior to initiating this action, the Agreement under Paragraph 22C affords the parties the ability to initiate litigation in order to preserve their rights without waiving their entitlement to attorney fees. As shown in the court’s records, a Notice of Pendency of Action was filed days after the Complaint had been filed on April 22, 2021. (See Notice of Pendency of Action, filed on April 26, 2021.) Furthermore, Defendant does not contend that the parties did not participate in mediation with JAMS.

Furthermore, as set forth above, on December 22, 2023, the court entered judgment in this matter in favor of Plaintiffs and against Defendant with respect to the First Amended Complaint for a total amount of $117,723.42. Thus, because they are the prevailing parties under the Agreement and had not waived their ability to recover attorneys’ fees, the court finds Plaintiffs have met their burden in establishing that they are entitled to attorney’s fees in this matter.

Reasonableness of Attorneys’ Fees

Plaintiffs seek to recover $123,200 in attorney’s fees. (Goldberg Decl., ¶¶ 2-3, 5.) Plaintiffs’ counsels’ hourly rate is $400 per hour and Plaintiff seeks to recover 305 hours expended on this action. (Id. at ¶¶ 1, 6.) Additionally, Plaintiff’s counsel anticipates an additional 3 hours in order to review any opposition, draft any reply papers, and prepare and attend the hearing, amounting to $1,200. (Id.at ¶5.)

Plaintiff’s counsel attests to over 32 years of experience, with experience in real property disputes and commercial litigation. (Goldberg Decl., ¶ 6.) Additionally, he further attests that his partner, Counsel Janson Cirlin, has 20 years of experience, with experience in real estate and commercial litigation. Based on the experience of Plaintiffs’ counsels, the court finds the claimed hourly rate of $400 is reasonable.

In opposition, Defendant first argues that Plaintiffs’ counsels have engaged in block billing. (Opposition at pp. 8-10.) However, the court disagrees with this contention. “Block billing is not objectionable ‘per se,’ though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation…from work that does not. (Jaramillo v. County of Orange (2011) 200 Cal.App.4^th 811, 830 [citations omitted].) Even though the submitted billing entries have grouped certain tasks together, the descriptions provided for each block sufficiently apprises the court about the tasks that were conducted. Therefore, in this instance, the usage of block-billing is not objectionable because the entries are not vague.

Next, Defendant argues that Plaintiffs’ counsel has engaged in duplicative billing relating to preparation of Vadim Khabyuk’s declaration. (Opposition at pp. 10-11.) Under the circumstances, the court does not find it unreasonable that several days were spent preparing Vadim Khabyuk’s declaration. As shown within the court’s record, this declaration comprised of 18 exhibits, and they were necessary for Plaintiffs to meet their burden on summary judgment. Thus, the fees incurred in preparing Vadim Khabyuk’s declaration were reasonable.

Defendant also asserts that it is questionable that Plaintiffs’ counsel was able to bill over 8 hours in a single day on September 19, 2022, and he reasons that Counsel Goldberg is seeking recovery of work that is normally conducted by clerical staff. (Opposition at pp. 11-12.) However, Defendant fails to submit any prove that Counsel Goldberg engaged in clerical work. Instead, Defendant merely points to billing entries relating to preparation of Plaintiffs’ demurrer to the First Amended Cross-Complaint.

Lastly, Defendant’s argues that it is unreasonable for Plaintiffs to recovery attorney fees associated with the motion to dismiss pursuant to CCP 128.7, which the court denied. In this regard, the court finds that the it would be unreasonable to award costs associated with the motion to dismiss because the court found that Plaintiffs failed to abide by the 21-day safe harbor requirement, and as a result, the court did not reach a decision on the merits of that motion. (See November 16, 2023 Order at pp. 7-9.) Thus, the court reduces the total fee award by $3,440 to represent the time expended on the motion to dismiss.

Based on the foregoing, the court GRANTS Plaintiff’s motion for attorney’s fees. The court awards Plaintiff the reduced amount of his attorney’s fees, $119,760.

It is so ordered.

Date:   March 8, 2024

______________________

ROLF M. TREU

Judge of the Superior Court