Judge: Melvin D. Sandvig, Case: 20CHCV00832, Date: 2023-03-01 Tentative Ruling

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Case Number: 20CHCV00832    Hearing Date: March 1, 2023    Dept: F47

Dept. F47

Date: 3/1/23

Case #20CHCV00832

 

MOTION FOR ATTORNEY’S FEES

 

Motion filed on 12/2/22. 

 

MOVING PARTY: Plaintiff Brian Powers

RESPONDING PARTY: Defendants Andrew Michael Parr and Liron Parr

NOTICE: ok

 

RELIEF REQUESTED: An order awarding Plaintiff Brian Powers attorney’s fees in the amount of $67,402.50 as the prevailing party in this action. 

 

RULING: The motion is granted.   

 

This was an action for breach of contract wherein both Plaintiff/Cross-Defendant Brian Powers (Powers) and Defendants/Cross-Complainants Andrew Michael Parr and Liron Parr (the Parrs) claimed that the other breached a settlement agreement between the parties.  The settlement agreement contained an attorney fee provision.  After an expedited jury trial, on 10/24/22, a Judgment on Special Verdict was entered in favor of Powers and against the Parrs in the amount of $78,000.

 

Powers now moves for an order awarding Powers attorney’s fees in the amount of $67,402.50 as the prevailing party in this action.  Without explanation, the Parrs have filed a late opposition to the motion.  Despite the late filing of the opposition, it was considered by the Court in ruling on the motion.  CRC 3.1300(d). 

 

Civil Code 1717provides, in relevant part:

 

“(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.

 

Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

 

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

 

Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void.

 

(b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

 

Here, the Parrs do no dispute that the contract underlying this action included an attorney fee provision which provides:

 

“Should any action or proceeding be commenced to enforce this Agreement, then the prevailing party in such action shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees.”  (See Stelnick Decl., Ex.1, p.4, ¶10).

 

Similarly, the Parrs do not dispute that based on the Judgment entered in this case on 10/24/22 Powers is the prevailing party.  (See Stelnick Decl., Ex.2); Civil Code 1717(b)(1).

 

The opposition contends that Powers has failed to meet his burden of establishing the fees were actually incurred and/or the reasonableness of such fees.  The Court disagrees.

 

In determining a reasonable fee award, the Court begins with the “lodestar” method of calculation (reasonable number of hours expended multiplied by the reasonable hourly rate).  PLCM Group, Inc. (2000) 22 C4th 1084, 1095.  Additionally, the Court should consider the novelty and difficulty of the questions involved, the skill displayed in presenting them and the extent to which the litigation precluded other employment by the attorney.  See Aetna  Life & Casualty Co. (1985) 170 CA3d 865, 880. 

 

The Court finds that Powers has presented sufficient evidence of the hours spent by his attorneys  and their support staff in prosecuting Powers claims and defending against the Parrs’ claims in the almost two years this action was pending.  (See Stelnick Decl.).  Additionally, the Court finds the hourly rates charged by Powers’ attorneys (ranging from $350/hour to $550/hour) and their support staff (ranging from $150/hour to $250/hour) to be reasonable.  Id.

 

The fact that the Parrs’ attorney charges less per hour than Powers’ attorney and/or spent less time preparing their case is unpersuasive, especially since the Parrs did not prevail against Powers’ claims or on their cross-claims.  Additionally, the Parrs cite no authority for the proposition that the fees must have already been paid to have been incurred.  (See Opposition, p.5:12-16). 

The argument in the opposition regarding imposing the fee award only on the Parrs and not on their counsel is confusing, at best.  (See Opposition, p.5:18-p.6:4).  The case cited by the Parrs concerns an award of attorney’s fees against clients under Civil Code 1717 and a separate award of sanctions against their attorney under CCP 128.5.  See Wong (1988) 206 CA3d 264, 272.  Here, no sanctions against the Parrs attorney are sought by Powers.