Judge: Melvin D. Sandvig, Case: 21CHCV00768, Date: 2024-01-03 Tentative Ruling

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Case Number: 21CHCV00768    Hearing Date: January 3, 2024    Dept: F47

Dept. F47

Date: 1/3/24

Case #21CHCV00768

MOTION FOR ATTORNEYS’ FEES & COSTS

Motion filed on 12/6/23.

MOVING PARTY: Plaintiff/Cross-Defendant Tamar Hagopian

RESPONDING PARTY: Defendant/Cross-Complainant Raffi Hagopian

NOTICE: ok

RELIEF REQUESTED: An order awarding Plaintiff/Cross-Defendant Tamar Hagopian attorneys’ fees and costs.

RULING: The motion is granted, in part, and denied, in part, as set forth below. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arose out of a dispute between a sister, Plaintiff Tamar Hagopian (Plaintiff), and brother, Defendant Raffi Hagopian (Defendant) regarding certain real property.  Plaintiff claimed that in 2016 she and Defendant entered an oral agreement whereby Defendant would acquire the house Plaintiff had been living in with her family from Plaintiff’s husband whom she was divorcing because Plaintiff could not qualify for a mortgage in her name.  Plaintiff further contended that pursuant to the alleged oral agreement, she paid all expenses associated with the ownership of the house and Defendant was supposed to transfer title to Plaintiff when she was able to obtain financing in her own name.  Upon Plaintiff’s request Defendant refused to transfer title back to Plaintiff when she was able to obtain financing in her name.  Defendant claimed that there was no such oral agreement.  Rather, Defendant contended that Plaintiff was his tenant pursuant to a written rental agreement whereby she agreed to rent the house for $2,800 per month.

As a result, on 10/21/21, Plaintiff filed this action against Defendant for specific performance and damages.  Defendant answered the complaint and cross-complained against Plaintiff for breach of contract.  On 11/7/23, after a non-jury trial, the Court ordered judgment for Plaintiff and against Defendant.  (See 11/7/23 Minute Order).  Additionally, the Court ordered that Plaintiff was to be “awarded costs pursuant to a timely filed and served memorandum of costs and attorney’s fees pursuant to a timely noticed motion.”  (Id., p.2).  Further, Plaintiff was ordered to prepare, serve and submit a proposed judgment and a proposed statement of decision within 10 days.  Id.  Despite the Court ordering that Plaintiff would be awarded costs pursuant to a timely filed and served memorandum of costs, Plaintiff prepared a Judgment which provides that “[c]osts and fees shall be determined by motion.”  (See 12/4/23 Judgment, p.3:8).     

On 12/6/23, Plaintiff filed and served the instant motion seeking an order awarding Plaintiff/Cross-Defendant Tamar Hagopian (Plaintiff) attorneys’ fees and costs.  Defendant/Cross-Complainant Raffi Hagopian (Defendant) has not opposed the motion.  On 12/21/23, Defendant filed a Notice of Appeal indicating Defendant is appealing the judgment after court trial. 

ANALYSIS

The filing of an appeal does not stay a motion for attorney fees.  See Domestic Linen Supply Co., Inc. (2020) 58 CA5th 180, 187 citing Hennessy (1924) 194 Cal 368, 372.   

The contract/lease agreement on which Defendant based his cross-claim for breach of contract includes an attorneys’ fee provision which provides:

“If any legal action or proceeding is brought by either party to enforce any part of this Agreement, the prevailing party shall recover, in addition to all other relief, reasonable attorneys’ fees and court costs, unless one of the following boxes is checked . . .”

(See Cross-Complaint ¶5, Ex.A ¶23)

Neither of the following boxes in the lease agreement is checked.  Id.  Where an attorney fee provision provides for an award of fees incurred in enforcing the contract, the prevailing party is entitled to fees for any action “on the contract” regardless of whether they were incurred offensively or defensively and/or whether the party prevails on the ground that the contract is inapplicable, invalid, unenforceable or nonexistent.  See Turner  (2009) 175 CA4th 974, 979-980; MBNA America Bank, N.A. (2006) 147 CA4th Supp. 1, 8; Civil Code 1717(a). 

As the prevailing party on both the complaint and cross-complaint, Plaintiff is entitled to recover all of her attorneys’ fees, including those associated with the prosecution of her complaint because her defense to the cross-complaint required the establishment of her claims in the complaint.  See Turner, supra.

Plaintiff has established that the $214,760.00 in attorneys’ fees she incurred to prosecute her claims and defend against Defendant’s cross-claim are reasonable. 

An attorney fee award is calculated using the lodestar method of calculation (reasonable number of hours expended multiplied by a reasonable hourly rate).  PLCM Group (2000) 22 C4th 1084, 1085.  The reasonable hourly rate is that rate prevailing in the community for similar work.  Id. at 1095; Flannery (1998) 61 CA4th 629, 632-633.  Additionally, time spent by paralegals billed at the market rate may be included where the prevailing practice in the community is for attorneys to bill separately for paralegal services.  See Guinn (1994) 23 CA4th 262, 269. 

Here, Plaintiff’s lawyers billed at hourly rates of $850/hour for attorney/partner Sheldon Eisenberg and $450/hour for attorney/associate Nairi Shirinian.  (Eisenberg Decl. ¶¶4-5).  Paralegal work was billed at the hourly rate of $250/hour.  (Id. ¶6).  The Court finds such hourly fees to be reasonable based on the prevailing rates in the Greater Los Angeles area.   

Reasonable hours spent include time spent before an action is filed and those expended in relation to the fees motion itself.  See Stokus (1990) 217 CA3d 647, 655-656; Serrano (1982) 32 C3d 621, 639; McKenzie (2015) 238 CA4th 695, 703.

Additionally, as the prevailing party, Plaintiff is entitled to recover costs incurred in this action.  CCP 1032(a)(4), (b).  Plaintiff has incurred $9,620.09 in costs.  (See Eisenberg Decl. ¶¶11, 14-15, Ex.24). 

As noted above, on 11/7/23, the Court ordered that Plaintiff was “to be awarded costs pursuant to a timely filed and served memorandum of costs.”  (See 11/7/23 Minute Order, p.2); See also CRC 3.1700(a)(1).  Plaintiff has not filed a memorandum of costs.  Instead, Plaintiff requests an award of costs through the instant motion as reflected in the Judgment prepared by Plaintiff’s counsel which does not accurately reflect this Court’s 11/7/23 order. 

Even if the failure to timely file a memorandum of costs could be excused due to confusion caused by the conflicting statements in the 11/7/23 Minute Order and 12/4/23 Judgment regarding how costs should be requested, the Court finds that Plaintiff has failed to adequately support the request for costs in the amount of $9,620.09. 

Plaintiff relies on paragraph 14 of attorney Eisenberg’s declaration to support her claim for costs.  (See Motion, p.5:1-15).  Therein, attorney Eisenberg refers to Exhibit 24 of his declaration which is a summary of costs.  (See Eisenberg Decl. and  Ex.24 thereto).  From the foregoing, the Court cannot determine exactly what Plaintiff is claiming to constitute the $9,620.09 and, therefore, cannot determine if any of those costs are recoverable under CCP 1033.5.   

CONCLUSION

The request for attorneys’ fees is granted in the amount of $214,760.00.  The request for costs is denied.